`571-272-7822
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`Paper 11
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`Entered: February 27, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HUAWEI TECHNOLOGIES CO., LTD.,
`Petitioner,
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2017-01979
`Patent 8,761,130 B2
`____________
`
`
`
`Before JAMESON LEE, PATRICK M. BOUCHER, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`JIVANI, Administrative Patent Judge.
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`
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`IPR2017-01979
`Patent 8,761,130 B2
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`INTRODUCTION
`I.
`Huawei Technologies Co., Ltd. (“Petitioner”)1 requested an inter
`partes review of claims 9–16 (the “Challenged Claims”) of U.S. Patent No.
`8,761,130 B2 (Ex. 1001, “the ’130 patent”). Paper 1 (“Petition” or “Pet.”).
`Samsung Electronics Co. Ltd. (“Patent Owner”) filed a Preliminary
`Response. Paper 7 (“Prelim. Resp.”).
`Under 35 U.S.C. § 314(a), an inter partes review may not be instituted
`unless it is determined that there is a reasonable likelihood that Petitioner
`will prevail with respect to at least one of the Challenged Claims. Applying
`this standard, we are not persuaded Petitioner has shown a reasonable
`likelihood that it would prevail with respect to at least one of the Challenged
`Claims because the Petition does not account properly for all the limitations
`of either independent claim 9 or independent claim 13. Accordingly, we
`deny the Petition and decline to institute inter partes review of the
`Challenged Claims for the reasons set forth below.
`
`
`BACKGROUND
`II.
`The ’130 patent (Ex. 1001)
`A.
`The ’130 patent is related to wireless communication systems and was
`“considered in the development of the 3rd Generation Partnership Project
`(3GPP) Evolved Universal Terrestrial Radio Access (E-UTRA) long term
`evolution (LTE).” Ex. 1001, 1:15–16, 1:25–28. The ’130 patent describes
`transmitting “control and data information” simultaneously in a Single-
`
`1 Petitioner identifies the following additional real parties in interest to the
`Petition: HiSilicon Technologies Co., Ltd., Huawei Device USA, Inc.,
`Huawei Investment and Holding Co., and Huawei Technologies USA, Inc.
`Pet. 2.
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`Carrier Frequency Division Multiple Access communication systems. Id. at
`1:15–19. “Control information” consists of positive and negative
`acknowledgement information (“ACK/NAK”) and a channel quality
`indicator (“CQI”). Id. at 1:36–38. Figure 1 of the ’130 patent is reproduced
`below.
`
`
`
`Figure 1 depicts a block diagram of a sub-frame structure 110 used to
`transmit information. Id. at 1:53–55. The sub-frame includes two slots 120.
`Id. at 1:55–56. Each slot further includes seven symbols 130. Id. at 1:56–
`57. The middle symbol in each slot carries the transmission of reference
`signals (RS) 140, also known as “pilot signals.” Id. at 1:61–65. These
`reference signals are used to provide channel estimation for coherent
`demodulation of the received signal. Id. According to the ’130 patent, the
`control information should be placed “immediately next to the RS” in order
`to minimize the bit error rate degradation. Id. at 5:57–59. Figure 6 of the
`’130 patent is reproduced below.
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`Figure 6 of the ’130 patent illustrates the placement of both
`ACK/NAK bits 610 and CQI bits 620 within a slot of a sub-frame. Id. at
`5:60–62. “Due to the requirement for better reception reliability, the
`ACK/NAK bits are placed closer to the RS than the CQI bits.” 5:65–67.
`Data bits 640 occupy the remaining space of the symbols in the slot,
`including the otherwise unoccupied space of the symbols containing the
`control bits. 5:62–65.
`Illustrative Challenged Claims
`B.
`Claims 9 and 13 are independent and illustrative of the Challenged
`Claims. Claims 9 and 13 are reproduced below.
`9.
`An apparatus for transmitting a signal in a slot of a
`sub-frame in a wireless communication system, the signal
`including data
`information and acknowledgement
`information, the apparatus comprising:
`a mapper for mapping a reference signal to a middle
`symbol in the slot, mapping the data information to
`remaining symbols in the slot that are not used to map the
`reference signal, and mapping the acknowledgement
`information to first symbols among the remaining symbols
`in the slot, the first symbols not being used to map
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`reference signals and the first symbols being directly
`adjacent to the middle symbol; and
`a transmitter for transmitting the signal including
`the mapped
`data
`information,
`the mapped
`acknowledgement information, and the mapped reference
`signal,
`wherein some of the data information is mapped to
`the first symbol which are directly adjacent to the middle
`symbol, and
`wherein CQI information is multiplexed with the
`data information.
`Id. at 7:52–8:14.
`13. A method for transmitting a signal in a slot of a sub-
`frame in a wireless communication system, the signal
`including data
`information and acknowledgement
`information, the method comprising:
`mapping a reference signal to a middle symbol in
`the slot;
`mapping the data information to remaining symbols
`in the slot that are not used to map the reference signal;
`mapping the acknowledgement information to first
`symbols among the remaining symbols in the slot, the first
`symbols not being used to map reference signals and the
`first symbols being directly adjacent to the middle symbol;
`and
`
`transmitting the signal including the mapped data
`information, the mapped acknowledgement information,
`and the mapped reference signal,
`wherein some of the data information is mapped to
`the first symbols which are directly adjacent to the middle
`symbol, and
`wherein CQI information is multiplexed with the
`data information.
`Id. at 8:26–45.
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`Evidence Relied Upon
`C.
`Petitioner relies on the following references (Pet. 4):
`1. Cho et al., U.S. Pub. No. 2006/0262871 (“Cho”) (Ex. 1005);
`2. 3GPP Contribution R1-072122, published on 2007 (Exs. 1015,
`1024), in advance of the RAN1 Working Group 1 meeting 49 (R1-
`49) held in Kobe, Japan, May 7–11, 2007 (“R1-072122”)
`(Ex. 1006);
`3. 3GPP Contribution R1-070777, published on February 6, 2007
`(Ex. 1035), in advance of the RAN1 Working Group 1 meeting 48
`(R1-48) held in St. Louis, Missouri, Feb. 12–16, 2007 (“R1-
`070777”) (Ex. 1007); and
`4. 3GPP Contribution R1-071000, published on February 6, 2007
`(Ex. 1022), in advance of the RAN1 Working Group 1 meeting 48
`(R1-48) held in St. Louis, Missouri, Feb. 12–16, 2007 (“R1-
`071000”) (Ex. 1008).
`Petitioner further relies on a declaration of Dr. Robert Akl (Ex. 1003).
`Proposed Grounds of Unpatentability
`D.
`Petitioner advances the following grounds of unpatentability (Pet. 5):
`1. Claims 9–11 and 13–15 as anticipated under 35 U.S.C. § 102 by
`Cho;
`2. Claims 9–16 as rendered obvious under 35 U.S.C. § 103(a) by
`Cho;
`3. Claims 12 and 16 as rendered obvious under 35 U.S.C. § 103(a) by
`Cho and R1-072122;
`4. Claims 9–16 as rendered obvious under 35 U.S.C. § 103(a) by R1-
`072122 and R1-070777;
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`5. Claims 13–16 as rendered obvious under 35 U.S.C. § 103(a) by
`R1-072122 and R1-071000; and
`6. Claims 9–16 as rendered obvious under 35 U.S.C. § 103(a) by R1-
`072122, R1-070777, and R1-071000.
`Related Proceedings
`E.
`According to Petitioner, the ’130 patent is a continuation of
`U.S. Patent No. 8,331,328 and is the parent application of U.S. Patent No.
`9,300,454 and three pending continuation applications, namely U.S. Patent
`App. Nos. 14/862,995, 14/863,015, and 14/863,024. Pet. 2. Petitioner
`further states the ’130 patent is at issue in Huawei Techs Co. v. Samsung
`Elecs. Co., 3:16-cv-02787-WHO (N.D. Cal.). Id.; Paper 4, 2. Finally, the
`’130 patent is the subject of the petition filed in IPR2017-01980. Paper 4, 2.
`
`
`III. ANALYSIS
`Principles of Law
`A.
`Petitioner bears the burden of proving unpatentability of the
`Challenged Claims, and the burden of persuasion never shifts to Patent
`Owner. Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375,
`1378 (Fed. Cir. 2015). At this stage of the proceeding, Petitioner must
`establish that there is a reasonable likelihood that it will prevail with respect
`to at least one of the Challenged Claims. 35 U.S.C. § 314(a).
`A claim is unpatentable under 35 U.S.C. § 102 only if every element
`set forth in the claims is found, either expressly or inherently described in a
`single prior art reference. Verdegaal Bros., Inc. v. Union Oil. Co. of Cal.,
`814 F.2d 628, 631 (Fed. Cir. 1987). “The identical invention must be shown
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`in as complete detail as is contained in the . . . claim.” Richardson v. Suzuki
`Motor Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989).
`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 skill in the art; and (4) when in evidence, objective
`evidence of non-obviousness, i.e., so-called secondary considerations such
`as commercial success, long felt but unsolved needs, and failure of others.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). The obviousness
`inquiry further requires an analysis of “whether there was an apparent reason
`to combine the known elements in the fashion claimed by the patent at
`issue.” KSR, 550 U.S. at 418 (citing In re Kahn, 441 F.3d 977, 988 (Fed.
`Cir. 2006) (requiring “articulated reasoning with some rational underpinning
`to support the legal conclusion of obviousness”)).
`Claim Construction
`B.
`Petitioner addresses proposed constructions of the following three
`terms: (i) “a mapper” (claim 9); (ii) “a middle symbol in the slot” (claims 9,
`13); and (iii) “the some of the data information and the acknowledgement
`information are respectively transmitted over different subcarriers for
`transmission of the first symbols” (claims 10, 14) (Ex. 1001, 8:15–18, 8:46–
`49). Pet 9–12. Patent Owner does not seek construction of these terms
`because “the construction of all three terms has no bearing on whether inter
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`partes review should be instituted.” Prelim. Resp. 14, fn. 7. We do not
`construe the terms identified by Petitioner because construction of these
`terms is not necessary for our analysis on whether to institute a trial, as
`detailed below. Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
`803 (Fed. Cir. 1999) (explaining that only claim terms in controversy need
`to be construed, and only to the extent necessary to resolve the controversy).
`Asserted Anticipation of Claims 9–11 and 13–15 by Cho
`C.
`Overview of Cho
`1.
`Cho describes multiplexing and transmitting data and control
`information in a wireless communication system based on frequency
`division multiple access. Ex. 1005 ¶ 3. More specifically, Cho discloses
`multiplexing data and control information in at least one symbol block and
`simultaneously transmitting the multiplexed data and control information.
`Id. at ¶ 37. Control information may include “Channel Quality Indicator
`(CQI) or ACK/NACK.” Id.
`As described by Cho, each symbol block includes M number of
`symbols. Id. at ¶ 40. “When there is control information to be transmitted
`during one [Transmission Time Interval (TTI)], the transmitter inserts the
`control information into a symbol block predetermined within the TTI.” Id.
`at ¶ 44. Data is inserted into a remaining portion of the symbol block. Id.
`“The pilot signal is included in and transmitted by one symbol block.” Id.
`Cho further describes that “data is included in a portion of the symbol block
`including the control signal and other symbol blocks except for the symbol
`block including the pilot signal.” Id. Figure 6 of Cho is reproduced below.
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`Figure 6 depicts an embodiment of Cho’s invention where “the
`control information 602 is transmitted after being distributed to multiple
`symbol block periods within one TTI 600.” Id. at ¶ 62. Cho describes:
`“The core of the second exemplary embodiment of the present invention is
`that the control information 602 is multiplexed with the data in each symbol
`block period 604 and is transmitted after being distributed to the multiple
`symbol block periods in the TTI 600.” Id. The “control information
`includes K number of symbols, [and] data includes (M-K) number of
`symbols.” Id.
`Analysis
`2.
`Petitioner contends that Cho anticipates the “symbols” recited in
`independent claims 9 and 13 by reciting “symbol block periods.” See, e.g.,
`Pet. 35, 45. For instance, Petitioner asserts: “Cho discloses this claim
`element because Cho discloses a TTI consisting of 8 symbol block periods
`(claimed ‘symbol’).” Id. at 35 (citing Ex. 1005, Fig. 6; Ex. 1003 ¶ 119).
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`Patent Owner responds, inter alia, that Petitioner erroneously conflates a
`symbol and a symbol block. Prelim. Resp. 28–29.
`Petitioner has not shown in the record before us that Cho’s symbol
`block anticipates the claimed symbol. Unlike the ’130 patent’s disclosure of
`multiplexing data and control information within one symbol (see, e.g.,
`Ex. 1001, 6:60–67), Cho describes multiplexing data and control
`information into different symbols within one symbol block. Ex. 1005 ¶ 37.
`Cho states a symbol block comprises M number of symbols. Id. at ¶ 40.
`The embodiment of Cho cited by Petitioner describes using the M number of
`symbols within a symbol block to multiplex K number of symbols of control
`information with M−K number of symbols of data information. Id. at ¶ 62.
`The implied equivalence of a “symbol block” in Cho to a “symbol” in
`the ’130 patent must be adequately explained. Petitioner and its declarant,
`Dr. Akl, offer no construction of the claim term “symbol” and no
`explanation of why one of ordinary skill would have understood the
`foregoing description of Cho’s symbol block—which itself is comprised of
`symbols—as meeting the claimed symbol. See id.; see also Ex. 1003 ¶¶
`119, 175. Also, significantly, the first named inventor of the Cho reference,
`Joon-Young Cho, is also the second named inventor of the ’130 patent.
`Compare Ex. 1001, at [72], with Ex. 1005, at [76]. Petitioner does not
`address why one of ordinary skill would have understood overlapping
`inventive entities to have used different terms, namely Cho’s “symbol
`block” and the ’130 patent’s “symbol,” ostensibly to refer to equivalent
`structures. See generally Pet. Accordingly, we determine Petitioner has not
`demonstrated a reasonable likelihood of prevailing on its anticipation
`challenge to claims 9 and 13.
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`Petitioner’s analysis of claims 10, 11, 14, and 15 refers back to its
`analyses of claims 9 and 13. Pet. 40–42, 49–50. For the same reasons
`discussed above in the context of claims 9 and 13, we determine Petitioner
`has not demonstrated a reasonable likelihood of prevailing on its anticipation
`challenge to claims 10, 11, 14, and 15.
`Asserted Obviousness of Claims 9–16 over Cho, either alone or in
`D.
`combination with R1-072122
`Petitioner’s obviousness analyses of claims 9–16 relying in whole or
`in part on Cho do not repair the deficiencies of its analysis with regard to the
`claimed “symbol,” as described above in Section III.C.2. Pet. 50–56.
`Accordingly, for the same reasons discussed above, we determine Petitioner
`has not demonstrated a reasonable likelihood of prevailing on this
`obviousness challenge to claims 9–16.
`Asserted Obviousness of Claims 9–16 over various combinations of
`E.
`R1-072122, R1-070777, and R1-071000
`Overview of R1-072122, R1-070777, and R1-071000
`1.
`R1-072122 is directed to multiplexing of uplink data-non-associated
`control signals without data. Ex. 1006, 1. R1-072122 describes situations in
`which control information is transmitted separately from data. Id. In such
`situations, R1-072122 discloses multiplexing ACK/NACK and CQI, and
`further depicts mapping ACK/NACK to the symbol directly adjacent to the
`reference signal. Id. at 2, Fig. 2.
`R1-070777 is directed to multiplexing of uplink control signals with
`data. Ex. 1007, 1. This multiplexing is achieved by puncturing the data “to
`provide room for control signalling.” Id.
`R1-071000 is directed to transmission of control information together
`with data. Ex. 1008, 1. R1-071000 depicts placing data in the symbols
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`directly adjacent to the symbol containing the reference signal. Id. at 4,
`Figs. 4 and 5.
`Analysis
`2.
`Independent claims 9 and 13 each recite, in relevant part: mapping a
`reference signal to a middle symbol in the slot, mapping acknowledgement
`information to first symbols being directly adjacent to the middle symbol,
`wherein some of the data information is mapped to the first symbols which
`are directly adjacent to the middle symbol, and wherein CQI information is
`multiplexed with the data information. Id. at 7:52–8:14, 8:26–45. Thus,
`independent claims 9 and 13 each require mapping acknowledgement
`information and data information to the symbols directly adjacent to the
`middle symbol, which contains a reference signal.
`Petitioner contends R1-072122 describes that “reference signals are
`mapped to the 4th symbol of each slot, and the ACK/NACK signals are
`mapped to the 3rd and 5th symbols of each slot,” thus teaching a reference
`signal in the middle symbol with acknowledgement information directly
`adjacent to the middle symbol. Pet. 64–65 (citing Ex. 1006, Fig. 3; Ex. 1003
`¶ 229). Petitioner further asserts R1-070777 maps data information to the
`“the 3rd and 5th symbols of the same slot by multiplexing, and more
`particularly by puncturing the data to create space for the ACK/NACK.” Id.
`at 66–67 (citing Ex. 1007, 1; Ex. 1003 ¶ 245). Additionally, Petitioner
`argues that R1-071000 teaches mapping data information to the symbols
`directly adjacent to the middle symbol. Id. at 87 (citing Ex. 1008, Figs. 4, 5;
`Ex. 1003 ¶ 254).
`Relying on Dr. Akl’s testimony, Petitioner asserts one of ordinary
`skill in the art would have been motivated to combine the teachings of R1-
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`072122 and R1-070777 “because of the advantages of using the puncturing
`technique of R1-070777 over other multiplexing techniques.” Id. at 67–68
`(citing Ex. 1003 ¶ 248). Petitioner further argues that one of ordinary skill
`would have been motivated to combine the teachings of R1-072122 and R1-
`071000 because “R1-071000 teaches that even when data and control
`information is multiplexed and transmitted together, the mapping scheme for
`data should not be altered.” Id. at 85–86 (citing Ex. 1008, Fig. 5; Ex. 1003
`¶ 224).
`Patent Owner contends that Petitioner fails to identify in the combined
`references sufficient teaching of mapping acknowledgement and data
`information together to the same symbols directly adjacent to the middle
`symbol containing a reference signal. Prelim. Resp. 48–51, 52–54.
`R1-072122, entitled “Multiplexing of uplink data-non-associated
`control signal without data,” specifically segregates control information
`(including acknowledgement information) from data information and is
`limited to situations in which control signals are transmitted without data
`information. Ex. 1006, 1. Petitioner and Dr. Akl offer no persuasive
`explanation of why an ordinary artisan would have applied the teachings of
`R1-072122 in such a manner so as to transmit control signals with data
`information––the exact opposite of R1-072122’s disclosure. Petitioner’s
`reliance on R1-070777 does not remedy this deficiency. R1-070777,
`entitled “Multiplexing of Uplink Control Signaling with Data,” is directed to
`the opposite scenario of R1-072122. Ex. 1007, 1. That is, R1-070777 is
`limited to situations in which control information is transmitted with data
`information and seeks to present a “multiplexing method based on
`puncturing of the data to accommodate control signalling.” Id. Petitioner
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`and Dr. Akl do not explain in the record before us how or why an ordinarily
`skilled artisan would harmonize the disparate teachings of these two
`references. Similarly, R1-071000 is directed to the opposite scenario of R1-
`072122 in that it addresses transmission of control information together with
`data information. Ex. 1008, 1 (Title: “Data non-associated control signal
`transmission with UL data.”). We are not persuaded sufficiently that one
`with ordinary skill in the art would have modified the system of R1-072122
`to do the opposite of what R1-072122 discloses.
`Further, R1-070777 does not address a reference signal, much less
`placement of a reference signal at the middle symbol of a slot and placement
`of control and data information in the first symbols directly adjacent to the
`middle symbol. See generally Ex. 1007. Petitioner and Dr. Akl do not
`address why an ordinarily skilled artisan would look to R1-070777 when
`considering the teachings of R1-072122 related to placement of control
`information directly adjacent to the reference signal. See Pet. 67–69.
`Finally, although the cited portions of R1-071000 teach placing data
`in the symbols directly adjacent to the symbol containing the reference
`signal, R1-071000 depicts placing the ACK/NAK in the symbols farthest
`from the symbol containing the reference signal––directly opposite to the
`cited teachings of R1-072122 describing placing the ACK/NAK in the
`symbols directly adjacent to the reference signal. Ex. 1008, Figs. 4, 5. Here
`too, Petitioner and Dr. Akl do not address how or why an ordinarily skilled
`artisan would have harmonized the disparate teachings of these two
`references.
`Accordingly, we determine Petitioner has not demonstrated a
`reasonable likelihood of prevailing on its obviousness challenges to either
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`claim 9 or claim 13 relying on various combinations of R1-072122, R1-
`070777, and R1-071000. Petitioner’s analyses of claims 10–12 and 14–16
`refer back to its analyses of claims 9 and 13. Pet. 70–72, 83, 89–91, 92. For
`the same reasons discussed above in the context of claims 9 and 13, we
`determine Petitioner has not demonstrated a reasonable likelihood of
`prevailing on its obviousness challenges to claims 10–12 and 14–16 relying
`on various combinations of R1-072122, R1-070777, and R1-071000.
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`IV. SUMMARY
`We determine that Petitioner has not demonstrated a reasonable
`
`likelihood of prevailing on its challenges to any one of claims 9–16 of the
`’130 patent.
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`V. ORDER
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`It is, therefore,
`ORDERED that the Petition is denied and no trial is instituted.
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`FOR PETITIONER:
`Joseph A. Micallef
`Jeffrey P. Kushan
`SIDLEY AUSTIN LLP
`jmicallef@sidley.com
`jkushan@sidley.com
`
`PATENT OWNER:
`Kevin Johnson
`Alan L. Whitehurst
`Marissa R. Ducca
`Brian Mack
`Deepa Acharya
`Jared Newton
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`QE_Huawei.Samsung@quinnemanuel.com
`
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