throbber
Paper 20
`Trials@uspto.gov
`Entered: February 28, 2018
`Tel: 571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNIFIED PATENTS INC.,
`Petitioner,
`v.
`RED ROCK ANALYTICS, LLC,
`Patent Owner.
`
`IPR2017-01490
`Patent 7,346,313 B2
`
`
`
`
`
`
`
`
`Before MICHAEL R. ZECHER, BARBARA A. BENOIT, and
`JOHN D. HAMANN, Administrative Patent Judges.
`HAMANN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`INTRODUCTION
`I.
`Unified Patents Inc. (“Petitioner”) filed a Petition to institute an inter
`partes review of claims 1–7, 15, 16, 21, 22, 30, 32, 37–44, 52, 53, 58, 59,
`67, 69, and 74 (the “challenged claims”) of U.S. Patent No. 7,346,313 B2
`(Ex. 1001, “the ’313 Patent”) pursuant to 35 U.S.C. § 311. Paper 2 (“Pet.”).
`Red Rock Analytics, LLC (“Patent Owner”) filed a Patent Owner
`Preliminary Response. Paper 7 (“Prelim. Resp.”). Petitioner, after obtaining
`authorization (Paper 15), filed a Reply (Paper 16) to the Preliminary
`Response. In our Decision, we determined that the information presented in
`the Petition and accompanying evidence did not establish a reasonable
`likelihood that Petitioner would prevail in showing the unpatentability of at
`least one challenged claim of the ’313 Patent. Paper 18 (“Dec.”) at 8–19.
`Accordingly, we denied the Petition and did not institute an inter partes
`review of the ’313 Patent. Id. at 19–20.
`Petitioner now requests rehearing of our Decision not to institute trial
`on the challenged claims. Paper 19 (“Req. Reh’g”). For the following
`reasons, we deny Petitioner’s Request for Rehearing.
`STANDARD OF REVIEW
`II.
`
`The applicable standard for a request for rehearing is set forth in 37
`C.F.R. § 42.71(d), which provides in relevant part:
`A party dissatisfied with a decision may file a request for
`rehearing, without prior authorization from the Board. The
`burden of showing a decision should be modified lies with the
`party challenging the decision. The request must specifically
`identify all matters the party believes the Board misapprehended
`or overlooked, and the place where each matter was previously
`addressed in a motion, an opposition, or a reply.
`
`2
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`
`When reconsidering a decision on institution, we review the decision
`for an abuse of discretion. See 37 C.F.R. § 42.71(c). An abuse of discretion
`may be determined if a decision is based on an erroneous interpretation of
`law, if a factual finding is not supported by substantial evidence, or if the
`decision represents an unreasonable judgment in weighing relevant factors.
`See Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed. Cir.
`2005); Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004); In re
`Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000).
`
`III. ANALYSIS
`Each independent challenged claim recites that “the calibration RF
`signal includes a calibration cycle.” Ex. 1001, 11:56–12:5 (claim 1), 12:22–
`54 (claim 7), 13:18–49 (claim 16), 13:63–14:30 (claim 22), 14:65–15:32
`(claim 32), 15:46–62 (claim 38), 16:12–44 (claim 44), 17:8–37 (claim 53),
`17:52–18:19 (claim 59), 18:52–19:18 (claim 69) (emphasis added). In
`denying the Petition, we found that Petitioner did not establish that the prior
`art disclosed or rendered obvious this limitation. Dec. 8–19. More
`specifically, we found that the calibration cycle relates to a feature of the
`calibration radio frequency (“RF”) signal (i.e., the signal includes), rather
`than simply requiring having a calibration process occur, as Petitioner
`submitted. Id. at 15–19. Our reasoning underlying this finding related to
`(A) the language of the limitation, (B) the language of dependent claims, and
`(C) the ’313 Patent’s Specification. Id.
`Petitioner contends we misapprehended the meaning of “calibration
`cycle” and overlooked that the parties and their experts agreed on its
`meaning. Req. Reh’g 1–5. Petitioner argues, rather than being a feature of
`the calibration RF signal, “calibration cycle” refers to “a three-step process,
`
`3
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`independent of the type of calibration signal.” Id. at 1–3. Petitioner
`contends that this three-step process comprises: “[1] originating a
`calibration signal at the baseband transmit input, [2] observing the
`calibration signal at the receive baseband output, and [3] processing the
`calibration signal to form and minimize an observable indicator of I-Q
`imbalance.” Id. at 2 (quoting Ex. 1004 (Declaration of Tim A. Williams,
`Ph.D.) ¶ 73). As a result of misapprehending the scope and meaning of
`“calibration cycle,” Petitioner contends we overlooked that Warner1
`discloses that “the calibration RF signal includes a calibration cycle.”2 Id. at
`1.
`
`We are not persuaded by Petitioner’s arguments. We address these
`arguments below regarding “calibration cycle” in the context of our
`reasoning.
`
`Language of the limitation
`A.
`The limitation requires that “the calibration RF signal includes a
`calibration cycle.” E.g., Ex. 1001, 11:66–67 (emphasis added). We found
`that how the calibration cycle is referred to in this limitation (i.e., signal
`includes it) underscores that the calibration cycle is a feature of the
`calibration RF signal itself. Dec. 15–16. Rather than addressing this claim
`
`1 U.S. Patent No. 6,940,916 B1 (issued Sept. 6, 2005) (Ex. 1003, “Warner”).
`2 We do not address further Warner’s teachings because Petitioner’s
`arguments are predicated on our having misapprehended the meaning of
`“calibration cycle,” which we did not. In an inter partes review, the
`petitioner has the burden to show why the patent it challenges is
`unpatentable. Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
`Cir. 2016). This burden never shifts to Patent Owner. See Dynamic
`Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed.
`Cir. 2015)(citation omitted).
`
`4
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`language substantively, Petitioner calls the wording “awkward.” Req. Reh’g
`5. Petitioner does so, however, despite “the claims [being] ‘of primary
`importance, in the effort to ascertain precisely what it is that is patented.’”
`Merrill v. Yeomans, 94 U.S. 568, 570 (1876); see also In re Hiniker Co., 150
`F.3d 1362, 1369 (Fed. Cir. 1998) (“[T]he name of the game is the claim.”).
`We also found that subsequently referring to using the included
`“calibration cycle so as to determine” the minimizing gain settings — each
`of the independent challenged method claims require such — also supports
`that the calibration cycle is a feature of the calibration RF signal. Dec. 15.
`Petitioner argues, to the contrary, that this requirement supports its argument
`because “determining gain settings requires the three-step process, not
`merely a signal alone.” Req. Reh’g 3. We are not persuaded by Petitioner’s
`argument, which ignores that these method claims, in addition to reciting
`“using the calibration cycle,” separately recite steps of the alleged three-step
`process.3 See, e.g., Ex. 1001, 15:50–62 (claim 38) (reciting “injecting a
`calibration RF signal, generated in response to and as a function of a signal
`generated through the transmit chain, into the receive chain” and
`“determining receiver I-Q gain settings so as to minimize the observable
`indicator while holding transmit I-Q gain settings constant”), 16:12–44
`(claim 44) (reciting “generating a calibration RF signal,” “injecting the
`calibration RF signal,” “processing the baseband receive calibration RF
`signal,” and “varying the differential I-Q gain”).
`
`
`3 We similarly are not persuaded by Petitioner noting (Req. Reh’g 2) that
`claim 1 recites “the calibration cycle determines transmitter I-Q gain settings
`which minimize an observable indicator” as claim 1 also recites aspects of
`Petitioner’s alleged three-step process. Ex. 1001, 11:56–12:5.
`
`5
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`
`Language of dependent claims
`B.
`We also found that numerous dependent claims evidence that the
`included calibration cycle is a feature of the calibration RF signal. Dec. 16.
`For example, a series of dependent claims also recite “the calibration RF
`signal includes” phrase followed by specific features (e.g., “a sequence of
`pulses taking on purely real or imaginary values at any instant,” “a sampled
`phasor,” “a discrete phasor,” and “a discrete phasor comprising jn or j-n”).
`Id. at 16 & n.5 (citing, inter alia, Ex. 1001, 13:4–13 (reciting these
`dependent claims as issued)). These dependent claims underscore that the
`calibration cycle is a feature (e.g., pulses, phasors, jn, j-n, calibration cycle)
`included in the calibration RF signal.
`Petitioner misses the point in arguing that “the claims refer
`exclusively to the ‘calibration RF signal’—not the ‘calibration cycle’—as
`including these features.” Req. Reh’g 4 (citation omitted). The repeated use
`of “the calibration RF signal includes” phrase followed by a specific feature
`shows that the calibration cycle is yet another example of a feature. In other
`words, the included calibration cycle is akin to a sequence of pulses, a
`discrete phasor (e.g., jn or j-n), or a sampled phasor. See Innova/Pure Water,
`Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1119 (Fed. Cir.
`2004) (citing Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed.
`Cir. 2003) (“Unless otherwise compelled, when different claims of a patent
`use the same language, we give that language the same effect in each
`claim.”)).
`Furthermore, Petitioner points us to dependent claim 15 as supporting
`its argument because this claim “requires that ‘successive calibration cycles
`are used to refine or maintain I-Q balance,’” and asserts that “the calibration
`
`6
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`cycle (i.e., the three-step process) must be repeated over time at some
`interval or frequency, as the ’313 Patent describes.” Req. Reh’g 3 (citing
`Pet. 58; Ex. 1001, 6:10–21, 11:19–28). The paragraphs of the ’313 Patent
`that Petitioner cites, however, relate to “[t]he overall calibration process”
`and “[t]he calibration operation,” rather than simply a calibration cycle. Ex.
`1001, 6:1–13 (emphasis added), 10:24 (emphasis added), 11:17–37. Rather,
`in accordance with dependent claim 15, the Specification discloses that a
`calibration “signal may be produced by the sequence {l, j, -1, -j} [(i.e., a
`calibration cycle)] repeated [(i.e., “successive calibration cycles”)] for the
`duration of the calibration signal.” Id. at 10:67–11:1; see also id. at 10:24–
`11:16 (showing that this signal relates to calibration). We, thus, also do not
`find persuasive Petitioner’s arguments (Req. Reh’g 4–5) that the ’313 Patent
`fails to teach or suggest that the sequence {l, j, -1, -j} “embodiment of a
`calibration signal is a calibration cycle” or that our interpretation of this
`claim limitation “would render the claims invalid for indefiniteness and lack
`of written description.” See, e.g., Ex. 1001, 10:24–11:16.
`
`’313 Patent’s Specification
`C.
`We found that the ’313 Patent’s Specification focuses on features of
`the calibration signal and supports our interpretation that the calibration
`cycle is a feature of the calibration RF signal. Dec. 16–17. For example, the
`’313 Patent discloses:
`
`The calibration signal must be designed to be sensitive to
`I-Q gain imbalance. Furthermore, reasonably simple processing
`should be capable of producing an observable indicator of that
`imbalance. The calibration signal and subsequent processing
`must be such that the observable indicator of gain imbalance can
`only be minimized when both the transmit and receive gain
`imbalances have been individually minimized.
`
`7
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`Dec. 16 (quoting Ex. 1001, 5:58–65); see also id. at 16–17 (quoting
`Ex. 1001, 8:48–53 (“A variety of calibration signals could be found useful.
`These should be easy to generate and process, and the effect of I-Q gain
`imbalance must be directly related to an observable feature.”)).
`Petitioner ignores these teachings of the ’313 Patent and argues we
`overlooked that the ’313 Patent describes a “calibration cycle” as a three-
`step process, as explained by its expert, Dr. Williams. Req. Reh’g 2
`(quoting Ex. 1004 ¶ 73 (citing Ex. 1001, 2:55–56, 3:49–51, 5:29–31, 10:26–
`42)) (“The ’313 Patent describes [1] originating a calibration signal at the
`baseband transmit input, [2] observing the calibration signal at the receive
`baseband output, and [3] processing the calibration signal to form and
`minimize an observable indicator of I-Q imbalance.”). Petitioner also argues
`we overlooked that Patent Owner’s expert, Payam Heydari, Ph.D.,
`“describe[d] the ‘calibration cycle’ the same way.” Req. Reh’g 2 (citing
`Paper 7; Ex., 2001 ¶ 53 (citing Ex. 1001, 10:24–42, Fig. 4)).
`We are not persuaded by these arguments. “Although expert
`testimony and declarations are useful to confirm that the construed meaning
`is consistent with the denotation ascribed by those in the field of the art, . . .
`such extrinsic evidence cannot be used to vary the plain language of the
`patent document.” Omega Engineering, 334 F.3d at 1332 (citing Pitney
`Bowes, Inc. v. Hewlett–Packard Co., 182 F.3d 1298, 1309 (Fed. Cir. 1999)
`& Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584 (Fed. Cir.
`1996)). Furthermore, the parties’ experts do not explain how, in their view,
`the calibration RF signal includes a calibration cycle, nor what meaning they
`are ascribing to “includes.” See 37 C.F.R. § 42.65(a) (“Expert testimony
`
`8
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`that does not disclose the underlying facts or data on which the opinion is
`based is entitled to little or no weight.”).
`
`Petitioner also cites to other portions of the ’313 Patent’s
`Specification as supporting its arguments that calibration cycle means a
`three-step process. See Req. Reh’g 4–5 (quoting Ex. 1001, 8:21–26 (arguing
`that the “RF signal from the transmit chain is provided a path to the RF
`receive chain, shown for example through an attenuator 120. This injection
`can be effected in many ways. It could be a dedicated signal path which is
`disabled in normal transceiver operation but activated for a calibration
`cycle.”)). The aforementioned portions of the ’313 Patent Specification,
`however, do not serve to contradict the clear teachings of the ’313 Patent
`regarding the importance of what the calibration RF signal includes. The
`calibration signal chosen “must be designed to be sensitive to I-Q gain
`imbalance” and produce an observable indicator of that imbalance that “can
`only be minimized when both the transmit and receive gain imbalances have
`been individually minimized.” See Ex. 1001, 5:58–65, 8:48–53. An
`example of such a calibration signal is “a sequence of pulses, in any order,
`for which a pulse is either purely real or purely imaginary at the transmit
`baseband input.” Ex. 1001, 8:51–53; see also id. at Fig. 5, 8:54–62
`(providing “a phase control 130 for shifting RF carrier phase so that the
`signal can be made to substantially appear at only the I or Q output of the
`receive baseband”).
`
`
`
`
`9
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`IV. CONCLUSION
`Upon consideration of Petitioner’s Request for Rehearing, our
`Decision, and the evidence of record as of the date of our Decision, we
`determine that Petitioner has not demonstrated that we misapprehended or
`overlooked the scope and meaning of “calibration cycle,” much less that we
`abused our discretion in denying the Petition. Accordingly, we deny the
`request for rehearing.
`V. ORDER
`
`In consideration of the foregoing, it is hereby:
`
`ORDERED that Petitioner’s Request for Rehearing is denied.
`
`10
`
`

`

`IPR2017-01490
`Patent 7,346,313 B2
`PETITIONER:
`
`Lionel Lavenue
`lionel.lavenue@finnegan.com
`
`C. Brandon Rash
`brandon.rash@finnegan.com
`
`Ashraf Fawzy
`afawzy@unifiedpatents.com
`
`
`PATENT OWNER:
`Jason Shapiro
`js@usiplaw.com
`
`Patrick Finnan
`pjf@usiplaw.com
`
`
`
`
`
`
`11
`
`

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