Paper 43
`Trials@uspto.gov
`571-272-7822 Entered August 27, 2019
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`XR COMMUNICATIONS, LLC d/b/a VIVATO TECHNOLOGIES,
`Patent Owner.
`____________
`
`Case IPR2018-00762
`Patent 6,611,231 B2
`____________
`
`
`
`Before BARBARA A. PARVIS, TERRENCE W. McMILLIN, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`McMILLIN, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
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`

`

`IPR2018-00762
`Patent 6,611,231 B2
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`I. INTRODUCTION
`Cisco Systems, Inc. (“Petitioner”) filed a Petition (Paper 2, “Pet.”) to
`institute an inter partes review of claims 1–9 and 12 of U.S. Patent No.
`6,611,231 B2 (Ex. 1001, “the ’231 patent”). XR Communications LLC
`d/b/a Vivato Technologies (“Patent Owner”) filed a Preliminary Response
`(Paper 8, “Prelim. Resp.”). We instituted this review. Paper 10 (“Inst.
`Dec.”).
`Subsequent to institution, Patent Owner filed a Patent Owner
`Response. Paper 17 (“Resp.”). Petitioner filed a Reply. Paper 25
`(“Reply”). Patent Owner filed a Sur-Reply. Paper 32 (“Sur-Reply”).
`Petitioner filed a Sur-Sur-Reply. Paper 39 (“Sur-Sur-Reply”). An oral
`argument was held on June 18, 2019, and a transcript was entered. Paper 42
`(“Tr.”).
`Patent Owner has also filed a Motion to Strike directed against new
`arguments and evidence presented in the Reply. Paper 27 (“Motion to
`Strike”). Petitioner filed an opposition to the Motion to Strike. Paper 30.
`Patent Owner filed a Reply in Support of its Motion to Strike. Paper 31.
`This Final Written Decision is entered pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons that follow, Petitioner has not
`established by a preponderance of the evidence that any of the challenged
`claims of the ’231 patent are unpatentable.
`A. Related Matters
`The parties indicate that the ’231 patent has been asserted in the
`following litigations:
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`IPR2018-00762
`Patent 6,611,231 B2
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`XR Communications, LLC d/b/a Vivato Technologies v. ARRIS
`International plc, 8-18-cv-00192 (C.D. Cal.), filed February 2, 2018; XR
`Communications, LLC d/b/a Vivato Technologies v. Aruba Networks, Inc.,
`2-17-cv-02945 (C.D. Cal.), filed April 19, 2017; XR Communications, LLC
`d/b/a Vivato Technologies v. Newo Corp. d/b/a Amped Wireless, 5-17-cv-
`00744 (C.D. Cal.), filed April 19, 2017; XR Communications, LLC d/b/a
`Vivato Technologies v. ASUS Computer International, 2-17-cv-02948 (C.D.
`Cal.), filed April 19, 2017; XR Communications, LLC d/b/a Vivato
`Technologies v. Cisco Systems, Inc., 2-17-cv-02951 (C.D. Cal.), filed April
`19, 2017; XR Communications, LLC d/b/a Vivato Technologies v. Extreme
`Networks, Inc., 2-17-cv-02953 (C.D. Cal.), filed April 19, 2017; XR
`Communications, LLC d/b/a Vivato Technologies v. NETGEAR, Inc., 2-17-
`cv-02959 (C.D. Cal.), filed April 19, 2017; XR Communications, LLC d/b/a
`Vivato Technologies v. Ruckus Wireless, Inc., 2-17-cv-02961 (C.D. Cal.),
`filed April 19, 2017; XR Communications, LLC d/b/a Vivato Technologies v.
`Ubiquiti Networks, Inc., 2-17-cv-02968 (C.D. Cal.), filed April 19, 2017; XR
`Communications, LLC d/b/a Vivato Technologies v. Belkin International,
`Inc., 8-17-cv-00674 (C.D. Cal.), filed April 13, 2017; XR Communications,
`LLC d/b/a Vivato Technologies v. D-Link Systems, Inc., 8-17-cv-00596
`(C.D. Cal.), filed April 3, 2017; and XR Communications, LLC d/b/a Vivato
`Technologies v. Xirrus, Inc., 3-17-cv-00675 (C.D. Cal.), filed April 3, 2017.
`Pet. 8–9; Paper 5, 2–4.
`The ’231 patent was also challenged in IPR2018-00701 and IPR2018-
`01016. A Decision Denying Institution of Inter Partes Review (Paper 10)
`was entered in IPR2018-00701 on August 27, 2018. A Decision Denying
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`Institution of Inter Partes Review (Paper 17) was entered in IPR2018-01016
`on October 31, 2018.
`
`B. The ’231 Patent
`The ’231 patent is titled, “Wireless Packet Switched Communication
`Systems and Networks Using Adaptively Steered Antenna Arrays.”
`Ex. 1001, (54). The described apparatus “includes an adaptive antenna that
`is configurable to receive a transmission signal from a transmitter and in
`response transmit corresponding outgoing multi-beam electromagnetic
`signals exhibiting a plurality of selectively placed transmission peaks and
`transmission nulls within a far field region of a coverage area.” Id. at (57)
`(Abstract). Figure 2 of the ’231 patent is reproduced below.
`
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`Figure 2 depicts a “wireless routing device 102 having an adaptive antenna
`comprising an antenna array 110 and control logic 112.” Id. at 7:1–3.
`Control logic 112, which includes routing information 120 and the antenna
`array, is coupled to a receiver and transmitter. Id. at 7:3–7. The lobes of
`multibeam pattern 122 emanate from antenna array 110. Id. at 7:15–16.
`Transmission peaks “illuminate buildings 124 and a mobile user 126 with
`transmitted energy” and transmission nulls “to not significantly illuminate an
`external transmitter 128 and a residence 130.” Id. at 7:16–20.
`C. Illustrative Claim
`Petitioner challenges claims 1–9 and 12 of the ’231 patent. Pet. 7–8.
`Claim 1 is the only challenged independent claim. Claims 2–9 and 12
`depend directly or indirectly from claim 1. Independent claim 1, reproduced
`below, is illustrative of the claimed subject matter:
`1. An apparatus for use in a wireless routing network, the
`apparatus comprising:
`an adaptive antennas;
`at least one transmitter operatively coupled to said adaptive
`antenna;
`at least one receiver operatively coupled to said adaptive
`antenna;
`control logic operatively coupled to said transmitter and
`configured to cause said at least one transmitter to output at
`least one transmitter signal to said adaptive antenna to
`transmit corresponding outgoing multibeam electromagnetic
`signals exhibiting a plurality of selectively placed
`transmission peaks and transmission nulls within a far field
`region of a coverage area based on routing information; and
`search receiver logic operatively coupled to said control logic
`and said at least one receiver and configured to update said
`routing information based at least in part on cross-correlated
`
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`signal information that is received by said receiver using said
`adaptive antenna.
`Ex. 1001, 29:6–26 (disputed limitation emphasized).
`D. Cited Art
`Petitioner relies on the following prior art:
`U.S. Patent No. 6,597,678 B1, filed July 30, 1999 (“Kuwahara”)
`
`(Ex. 1005);
`
`U.S. Patent No. 7,031,266 B1, filed February 25, 2000 (“Patel”)
`(Ex. 1006);
`
`Simon C. Swales et al., The Performance Enhancement of Multibeam
`Adaptive Base-Station Antennas for Cellular Land Mobile Radio Systems,
`39 IEEE Transactions on Vehicular Technology 1 (1990) (“Swales”)
`(Ex. 1017);
`
`U.S. Patent No. 6,169,759 B1, issued January 2, 2001 (“Kanterakis”)
`(Ex. 1009);
`
`IEEE Standard 802.11-1997, Wireless LAN Medium Access Control
`(MAC) and Physical Layer (PHY) Specifications, Institute of Electrical and
`Electronics Engineers (1997) (“IEEE 802.11-1997”) (Ex. 1011); and
`
`U.K. Patent Application GB 2,349,045 A, published October 18, 2000
`(“Khalab”) (Ex. 1008).
`The earliest priority date claimed for the ’231 patent is April 27, 2001.
`There is no dispute that the cited art qualifies as prior art.
`E. Asserted Grounds of Unpatentability
`Petitioner challenges claims 1–9 and 12 of the ’231 patent on the
`following grounds:
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`Claims 1, 3–6, 9, and 12 as obvious under 35 U.S.C. § 1031 in view of
`Kuwahara, Patel, and Swales;
`Claim 2 as obvious under 35 U.S.C. § 103 in view of Kuwahara,
`Patel, Swales, and Kanterakis;
`Claim 2 as obvious under 35 U.S.C. § 103 in view of Kuwahara,
`Patel, Swales, and IEEE 802.11-1997; and
`Claims 5–8 as obvious under 35 U.S.C. § 103 in view of Kuwahara,
`Patel, Swales, and Khalab. Pet. 22.
`II. ANALYSIS
`The dispute between the parties relates to the last limitation of
`
`independent claim 1, which is “configured to update said routing
`information based at least in part on cross-correlated signal information that
`is received by said receiver using said adaptive antenna” (the “cross-
`correlated limitation”). Reply 5 (“The only dispute is whether Kuwahara
`teaches [the cross-correlated limitation].”). The only limitation discussed in
`the Patent Owner Response is the cross-correlated limitation. See generally
`Resp. Our consideration of the issues relating to the cross-correlated
`limitation is dispositive. Thus, we limit our discussion to those issues and
`the cross-correlated limitation.
`
`
`1 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. §103. Because the ’231 patent has an
`effective filing date before the effective date of the applicable AIA
`amendment, we refer to the pre-AIA version of 35 U.S.C. §103.
`7
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`A. Legal Standards
`A patent claim is unpatentable under 35 U.S.C. § 103 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 ordinary skill in the art; and (4) objective evidence of
`nonobviousness.2 Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`“In an [inter partes review], the petitioner has the burden from the
`onset to show with particularity why the patent it challenges is
`unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
`Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring inter partes review
`petitions to identify “with particularity . . . the evidence that supports the
`grounds for the challenge to each claim”)). This burden of persuasion never
`shifts to Patent Owner. See Dynamic Drinkware, LLC v. Nat’l Graphics,
`Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) (discussing the burden of proof in
`inter partes review). Furthermore, Petitioner cannot satisfy its burden of
`proving obviousness by employing “mere conclusory statements.” In re
`Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016).
`
`
`2 Neither party presents any objective evidence of nonobviousness or any
`related arguments for us to consider.
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`B. Level of Skill in the Art
`With regard to the level of ordinary skill in the art, Petitioner
`contends:
`[A] Person of Ordinary Skill In The Art (“POSITA”) is
`
`someone knowledgeable concerning wireless communication
`systems employing beamforming techniques. Ex.1003, ¶18.
`That person would have (i) a master’s degree in electrical
`engineering, and (ii) two years of smart antenna design
`experience. Id. Lack of work experience can be remedied by
`additional education, and vice versa. Id.
`
`Pet. 16. Petitioner’s witness, Dr. Winters, addresses level of ordinary skill in
`the art in paragraphs 16–19 of his Declaration (Ex. 1003) and his testimony
`supports Petitioner’s contention. Patent Owner does not address this issue.
`See generally Resp.; Sur-Reply. We find Petitioner’s contention to be
`reasonable and consistent with the prior art of record. We adopt the level of
`ordinary skill in the art as proposed by Petitioner.
`C. Claim Construction
`The claim construction standard to be employed in an inter partes
`review has changed. See Changes to the Claim Construction Standard for
`Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal
`Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018) (amending 37 C.F.R.
`§ 42.100(b) effective November 13, 2018). At the time of the filing of the
`Petition in this proceeding, however, the applicable claim construction
`standard was set forth in 37 C.F.R. § 42.100(b) (2017), which provides that
`“[a] claim in an unexpired patent . . . shall be given its broadest reasonable
`construction in light of the specification of the patent in which it appears.”
`37 C.F.R. § 42.100(b) (2017); see also Cuozzo Speed Techs., LLC v. Lee,
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`136 S. Ct. 2131, 2142 (2016) (upholding the use of the broadest reasonable
`interpretation standard). Consistent with the broadest reasonable
`construction standard, the challenged claims are presumed to be 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).
`Petitioner contends that the phrase “cross-correlated signal
`information that is received by said receiver” should be construed as
`“including, ‘cross-correlated signal information based on information that is
`received by said receiver.’” Pet. 20–21; see also Tr. 8:19–24. The
`Petitioner argues that such a construction is proper because “the ’231 Patent
`only describes performing cross-correlation on received signals and
`information derived from received signals. The ’231 Patent does not
`describe any examples in which a receiver receives signal information that
`has already been cross-correlated.” Pet. 21; see also Tr. 9:11–10:14. We do
`not believe Petitioner’s position on construction of the cross-correlated
`limitation is well-taken.
`Patent Owner contends that the cross-correlated limitation requires
`that the “signal information” that is “received” by the “adaptive antenna”
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`must be already “cross-correlated” at the time it is “received.” Resp. 1.3
`Patent Owner relies on “[t]he plain and ordinary language of claim 1, the
`language of the other claims of the ’231 patent, the patent’s teachings, and a
`recent decision of the same panel of the Board as to the exact same issue.”4
`Id. For the reasons that follow, we adopt the construction of the cross-
`correlated limitation proposed by Patent Owner.
`We begin our analysis with the wording of claim 1. “[T]he claim
`construction inquiry . . . begins and ends in all cases with the actual words of
`the claim.” Renishaw PLC v. Marposs Società per Azioni, 158 F.3d 1243,
`1248 (Fed. Cir. 1998) (citing Abtox, Inc. v. Exitron Corp., 122 F.3d 1019,
`1023 (Fed. Cir. 1997) (“[T]he language of the claim frames and ultimately
`
`
`3 Patent Owner did not contest Petitioner’s proposed construction of the
`cross-correlated limitation in its Preliminary Response. Prelim. Resp. 9
`(“Patent Owner disagrees with [Petitioner’s proposed construction of the
`cross-correlated limitation], but the disagreement is not material to the issues
`that this Preliminary Response presents, and thus the limitation should not
`be construed at this time.”). The Board did not construe the cross-correlated
`limitation in the Decision on Institution. Inst. Dec. 10 (“We agree with
`Patent Owner that we need not resolve this issue in order to make our
`determination regarding institution of trial.”).
`4 The same claims of the ’231 patent were challenged in IPR2018-01016.
`Unlike in this proceeding, in the Preliminary Response in that case, Patent
`Owner challenged the construction of the cross-correlated limitation.
`IPR2018-01016 Paper 13, 21 n.1; see also IPR2018-01016 Paper 16 (Sur-
`Reply), 1 (“In order for an adaptive antenna to ‘receive’ ‘cross-correlated
`signal information,’ that ‘signal information’ must come to the adaptive
`antenna in already cross-correlated form. That is the limitation’s plain and
`only possible meaning.”). In our Decision Denying Institution, the Board
`“construe[d] claim 1 as requiring that the ‘signal information’ that is
`‘received’ by the ‘adaptive antenna’ must be ‘cross-correlated’ at the time
`[it] is ‘received.’” IPR2018-01016 Paper 17, 19.
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`resolves all issues of claim interpretation.”)). Again, claim 1 recites, “search
`receiver logic . . . configured to update said routing information based at
`least in part on cross-correlated signal information that is received by said
`receiver using said adaptive antenna.” Ex. 1001, 29:22–26. The term
`“cross-correlated” is in the past tense and is used as a modifier or restrictor
`of “signal information.” “That” is a defining or restrictive pronoun.
`“Receive” means to come into possession of or acquire. See, e.g., Receive
`Definition, Merriam-Webster.com, https://merriam-
`webster.com/dictionary/receive (last visited August 26, 2019) (providing
`confirmation of our understanding of the definition of “receive”). Thus, the
`plain and ordinary meaning of the operative terms in this limitation provides
`that the “cross-correlated signal information” is acquired by the “receiver
`using the adaptive antenna.” Patent Owner’s proposed construction is in
`accord with the plain and ordinary meaning of the separate terms in the
`limitation and in accord with the terms as used together in the limitation.
`Petitioner argues that the plain language of the cross-correlated
`limitation is ambiguous and supports the construction presented in the
`Petition. Reply 6–9. Specifically, Petitioner argues, “The claim recites that
`the claimed signal information is both ‘cross-correlated’ and ‘received’ but
`the claim does not specify whether cross-correlation or reception occurred
`first.” Id. at 7. We disagree. In the disputed cross-correlated limitation,
`“cross-correlated” modifies and limits “signal information,” and “that is
`received by said receiver using said adaptive antenna” modifies and further
`limits “cross-correlated signal information.” Thus, the plain language is not
`ambiguous.
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`We also look to other claims of the ’231 patent for guidance as to the
`proper interpretation of claim 1. Phillips v. AWH Corp., 415 F.3d 1303,
`1314 (Fed. Cir. 2005) (en banc) (“Other claims of the patent in question,
`both asserted and unasserted, can also be valuable sources of enlightenment
`as to the meaning of a claim term.” (citing Vitronics Corp. v. Conceptronic,
`Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996))). The differences between claim
`1 and the other claims of the ’231 patent support construing claim 1 as
`Patent Owner contends. See id. (“Differences among claims can also be a
`useful guide in understanding the meaning of particular claim terms.” (citing
`Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1538 (Fed. Cir. 1991))).
`Independent claim 20, like claim 1, is directed to “[a]n apparatus for use in a
`wireless routing network” comprising an adaptive antenna, a transmitter, and
`a receiver. Ex. 1001, 30:58–31:12. In regard to the related limitation, claim
`20 recites, “at least one adaptive antenna is further configured to cross-
`correlate data sequences in said at least one received signal and based
`thereon selectively adjust said outgoing multi-beam electromagnetic
`signals.” Id. at 31:8–12. Independent claim 52 is directed to “[a] wireless
`routing network system” comprising “at least one wireless routing device.”
`Id. at 33:46–47. Claim 52 recites “cross-correlate data sequences in said at
`least one received signal and based thereon selectively adjust said outgoing
`multi-beam electromagnetic signals.” Id. at 33:61–64. It is not necessary or
`appropriate for us to construe independent claims 20 and 52 as they are not
`challenged or otherwise at issue in this proceeding. Nonetheless, these
`claims show that the patentee used different language in the ’231 patent
`when intending to convey that the cross-correlation was to be performed in
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`an apparatus rather than having that apparatus receive information that was
`already cross-correlated. See Free Motion Fitness, Inc. v. Cybex Int’l, Inc.,
`423 F.3d 1343, 1351 (Fed. Cir. 2005) (“The doctrine of claim differentiation
`‘create[s] a presumption that each claim in a patent has a different scope.’
`The difference in meaning and scope between claims is presumed to be
`significant ‘[t]o the extent that the absence of such difference in meaning
`and scope would make a claim superfluous.’” (quoting Comark Commc’ns,
`Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) and Tandon
`Corp. v. ITC, 831 F.2d 1017, 1023 (Fed. Cir. 1987))). The use of different
`language by the patentee in claims 20 and 52 strongly supports concluding
`that the patentee intended to convey a different meaning than the language in
`claim 1 and supports construing claim 1 as argued by Patent Owner.
`Importantly, in contrast to the recitations in claims 20 and 52, the plain
`meaning of the disputed limitation in claim 1 is that the “cross-correlated
`signal information” is acquired by the “receiver using the adaptive antenna.”
`Independent claim 63 also supports construing claim 1 as argued by
`Patent Owner. Claim 63 recites:
`63. A reciprocal feedback method for use in a wireless routing
`network, the method comprising:
`
`at a first wireless routing device, measuring an unwanted signal
`from a second wireless routing device and updating routing
`information based at least in part on cross-correlated data
`sequences in received data packets;
`
`
`causing said first wireless device to provide information
`associated with said measured unwanted signal to said second
`wireless routing device; and
`
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`causing said second wireless routing device to adaptively apply
`a transmission null in a direction towards said first wireless
`routing device based on said information associated with said
`measured
`unwanted
`signal,
`such
`that
`subsequent
`transmissions by said second wireless routing device will be
`substantially reduced in said direction towards said first
`wireless routing device.
`
`
`Id. at 35:29–36:7 (emphasis added). According to the first limitation of
`“reciprocal feedback method” claim 63, it is directed to “a first wireless
`routing device” that receives a “signal” from “a second wireless routing
`device” and updates “routing information based at least in part on cross-
`correlated data sequences in received data packets.” Thus, method claim 63
`is directed to an apparatus receiving “cross-correlated signal information”
`that is used to update routing information, in accordance with Patent
`Owner’s proposed construction of claim 1. Accordingly, we determine that
`Patent Owner’s proposed construction is consistent with a reasonable
`claiming scheme in which the patentee uses different terms and limitations
`to claim its invention with varying scope.
`Patent Owner cites Figure 15 and the related disclosure (22:1–40) in
`the ’231 patent Specification as describing “reciprocal and feedback
`methods” “in which cross-correlated signal information arrives, in already
`cross-correlated form, at a wireless routing device, which then uses the
`received correlated signal information to update routing information.” Resp.
`4. Figure 15 of the ’231 patent is reproduced below.
`
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`Figure 15 depicts “an exemplary reciprocal and feedback process, in
`accordance with certain implementations of the present invention.”
`Ex. 1001, 4:24–26 (emphasis added). Figure 15 of the ’231 patent explicitly
`depicts first and second wireless routing devices and sending information
`associated with the measured signal from the first to the second device. Id.
`at Fig. 15. Additionally, as discussed above, claim 63, which is the only
`claim in the ’231 patent directed to a “reciprocal feedback method,” does
`recite “updating routing information based at least in part on cross-
`correlated data sequences in received data packets.” Id. at 35:28–36:7.
`Accordingly, taking Figure 15 and claim 63 together, we determine that they
`support Patent Owner’s proposed construction of claim 1.
`Figure 22 of the ’231 patent is reproduced below.
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`Figure 22 depicts “a functional flow diagram depicting various processing
`associated with an exemplary search receiver process, in accordance with
`certain exemplary implementations of the present invention.” Ex. 1001,
`5:1–4 (emphases added). The related detailed description of Figure 22
`states:
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`FIG. 22 is a functional flow diagram depicting processing
`associated with an exemplary search receiver process 600. Here,
`in step 602, a receiver processes the RF signal received with an
`antenna array. The resulting element domain values are provided
`to step 604, wherein a special [fast Fourier transform (“FFT”)]
`process converts them into corresponding pattern domain values.
`The pattern domain values are then provided to step 606, wherein
`a FFT process or other process, such as, e.g., a pilot cross-
`correlation process, is employed to estimate the channel. The
`resulting estimated channel data is then provided to step 608,
`wherein a known sequence cross correlation process, such as,
`e.g., a [physical layer convergence procedure (“PLCP”)] header
`preamble or other like information cross-correlation process, is
`conducted. The resultant data from the cross-correlation process
`is then provided to step 610 in which system signal parameters
`are extracted. These parameters may then be included or
`otherwise incorporated in constraints 504 (FIG. 18). The data is
`then provided to step 612, wherein the weighting values are
`computed and stored, for example, in a weighting matrix. . . . In
`this manner, the search receiver essentially acts as an adaptive
`filter to optimize/update the weighting values so as to detect the
`signal indicated by knowledge of the PLCP header or other like
`information that is cross-correlated.
`
`Ex. 1001, 25:65–26:31 (emphases added). We determine that this example,
`which explains how cross-correlation that takes place after the signal
`information is received can be used to update routing information, does not
`compel reading this temporal requirement into claim 1, which contains plain
`and ordinary language to the contrary. E-Pass Techs., Inc. v. 3Com Corp.,
`343 F.3d 1364, 1369 (Fed. Cir. 2003) (stating that limitations from the
`specification should not be imported into a claim even if found in the
`description of a preferred embodiment). Taking the Specification, including
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`the claims, as a whole, we determine that it supports interpreting claim 1 in
`accordance with Patent Owner’s argument.
`Petitioner argues that Patent Owner’s proposed construction of the
`cross-correlated limitation does not have written description support in the
`original application for the ’231 patent. Reply 12–20. As shown by plain
`language of claims 1 and 63 discussed above, the ’231 patent issued with
`claims reciting that the information received was already cross-correlated. It
`is beyond the scope of this inter partes review to consider whether the ’231
`patent complies with 35 U.S.C. § 112, including considering compliance
`with the written description requirement. 35 U.S.C. § 311(a) (“A petitioner
`in an inter partes review may request to cancel as unpatentable 1 or more
`claims of a patent only on a ground that could be raised under section 102 or
`103 and only on the basis of prior art consisting of patents or printed
`publications.”).
`Petitioner argues that statements made by Patent Owner and its expert
`in District Court proceedings contradict the position Patent Owner has taken
`in this proceeding concerning the construction of the last limitation of claim
`1. Reply 8–9. We have reviewed the arguments and evidence presented by
`Petitioner and determine that they do not directly relate to or contradict
`Patent Owner’s position in litigation. Moreover, we analyze the language of
`claim 1, the entire set of claims in the ’231 patent, and the related disclosure
`of the ’231 patent, and conclude that Patent Owner’s proposed construction
`is proper. The language of claim 1 and the ’231 patent is more pertinent and
`persuasive as to the proper construction of the last limitation of claim 1 than
`the evidence from the District Court litigation cited by Petitioner.
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`The plain and ordinary meaning of the disputed language in claim 1
`supports construing the claim as Patent Owner argues. Our consideration of
`the other evidence discussed above and argued by the parties supports this
`construction.5 Taking all the evidence into consideration, but particularly
`relying on the plain language of claim 1, we construe claim 1 as requiring
`that the “signal information” that is “received” by the “adaptive antenna”
`must be “cross-correlated” at the time it is “received.”6
`
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`5 In addition to the evidence cited by the parties, we also reviewed the file
`history of the ’231 patent (Ex. 1002). Markman v. Westview Instruments,
`Inc., 52 F.3d 967, 980 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996)
`(in construing the claims, the file history should be considered if it is in
`evidence). We did not discern any evidence contained in the file history that
`is relevant to interpretation of the disputed limitation in claim 1. The claims
`as originally filed did not contain the limitations relating to cross-correlation
`discussed in this decision. See Ex. 1002, 109–132. After being rejected, the
`limitations relating to cross-correlation were added and the claims were
`allowed, but neither the applicants nor the examiner made any specific
`reference to the cross-correlation limitations. See id. at 279–323
`(Amendment); 333–335 (Notice of Allowability (without any statement of
`the reasons for allowance)).
`6 Petitioner recognized as early as December 10, 2018, that the Patent Owner
`might argue this construction in this proceeding and that the Board might
`adopt this construction in its final written decision. Ex. 1021, 5:9–6:10. The
`Petitioner addressed this construction and the issues raised by this
`construction in its Reply filed March 20, 2019, and in its Sur-Sur-Reply filed
`May 31, 2019. See generally Reply; Sur-Sur-Reply.
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`D. Analysis of Kuwahara Relative to the Cross-Correlated Limitation
`Petitioner challenges claims 1, 3–6, 9, and 12 as obvious7 in view of
`
`Kuwahara, Patel, and Swales. Pet. 22, 24–71. However, Petitioner cites
`only Kuwahara against the cross-correlated limitation. See Pet. 55–57,
`Reply 20–32; Sur-Sur-Reply 13–18. Therefore, we limit our discussion of
`the cited art to Kuwahara.
`1. Summary of Kuwahara (Ex. 1005)
`Kuwahara is titled “Radio Communication System Using Adaptive
`Array Antenna.” Ex. 1005, (54). “An AAA [adaptive antenna array]
`form[s] a beam directed toward a desired mobile station in a[n] optional
`direction or a beam having null in a direction of an optional interference
`source to increase the capacity of the system.” Id. at 3:1–5. Figure 2 of
`Kuwahara is reproduced below.
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`7 Petitioner’s other asserted obviousness grounds are directed against
`dependent claims 2 and 5–8 and, for these other grounds, Petitioner relies on
`its showing for independent claim 1. See Pet. 71–90. Thus, the same issues
`are presented for the other asserted grounds.
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`Figure 2 depicts a preferred embodiment of the invention disclosed in
`Kuwahara. Id. at 2:57–58. Kuwahara discloses a base station “provided
`with a plurality of antennas 100 constituting an AAA [adaptive antenna
`array].” Id. at 3:34–35. “[I]nformation received by the antennas 100 is
`down-converted by an RF circuit 101, and a despreading system 102
`multiplies the down-converted information by an appropriate code se