`571-272-7822
`
`
`Paper No. 7
`Entered: March 20, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NOKIA OF AMERICA CORPORATION,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01641
`Patent 8,897,828 B2
`____________
`
`Before KRISTEN L. DROESCH, MICHAEL W. KIM, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`MELVIN, Administrative Patent Judge.
`
`
`
`DECISION
`Instituting Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
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`Case IPR2018-01641
`Patent 8,897,828 B2
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`
`I.
`INTRODUCTION
`Petitioner, Nokia of America Corporation, filed a Petition (Paper 2,
`“Pet.”) requesting inter partes review of claims 1, 2, 5, 6, 8, 9, 12, 13, 15,
`16, 19, 20, 22, 23, 26, 27, 29, 30, 33, 34, 36, 37, 40, and 41 (“the challenged
`claims”) of U.S. Patent No. 8,897,828 B2 (Ex. 1001, “the ’828 patent”).
`Patent Owner, Intellectual Ventures II LLC, timely filed a Preliminary
`Response. Paper 6 (“Prelim. Resp.”). Pursuant to 35 U.S.C. § 314 and
`37 C.F.R. § 42.4(a), we have authority to determine whether to institute
`review.
`An inter partes review may not be instituted unless “the information
`presented in the petition . . . and any response . . . shows that there is a
`reasonable likelihood that the petitioner would prevail with respect to at least
`1 of the claims challenged in the petition.” 35 U.S.C. § 314(a). For the
`reasons set forth below, we conclude that Petitioner has shown a reasonable
`likelihood it will prevail in establishing the unpatentability of at least one
`challenged claim. We, therefore, institute inter partes review of the
`challenged claims of the ’828 patent in this proceeding.
`
`A. RELATED MATTERS
`As required by 37 C.F.R. § 42.8(b)(2), each party identifies various
`judicial or administrative matters that would affect or be affected by a
`decision in this proceeding. Pet. 3; Paper 4 (Patent Owner’s Mandatory
`Notices).
`
`B. THE ’828 PATENT
`The ’828 patent is titled “Power Control in a Wireless Communication
`System” and describes power-control systems that can operate in multiple
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`modes. Ex. 1001, (54), (57). In particular, the ’828 patent describes open-
`loop power control, in which a user equipment (UE) can measure path loss
`and use it to determine the transmit power level. Id. at 2:5–16. The ’828
`patent also describes closed-loop power control, in which the network
`measures the “signal to noise-plus-interference ratio (SNIR)” and uses it to
`issue transmit power control (TPC) commands to the UE. Id. at 1:50–56,
`2:17–32. The ’828 patent discloses that a UE receiving TPC commands may
`accumulate the commands to determine the transmit power level. Id. at
`6:39–46, 7:16–19. The UE may include both open- and closed-loop
`functionality so that it may respond to either TPC commands or to a change
`in the path loss. Id. at 8:5–7.
`
`C. CHALLENGED CLAIMS
`Challenged claims 1, 8, 15, 22, 29, and 36 are independent. Claim 1 is
`illustrative of the claimed subject matter and is reproduced below:
`1. A method performed by user equipment (UE), the method
`comprising:
`[1.1] receiving, by the UE, an indication of whether
`accumulation of transmit power control (TPC)
`commands is enabled;
`[1.2] determining, by the UE, a path loss of a downlink
`channel;
`[1.3] receiving, on a single physical channel by the UE if
`accumulation is enabled, an allocation of a scheduled
`uplink resource and a TPC command, wherein the TPC
`command is accumulated with other received TPC
`commands;
`[1.4] calculating, by the UE if accumulation is enabled,
`transmit power in association with an uplink
`communication based on both the path loss and the
`accumulated TPC commands; and
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`[1.5] receiving, on the single physical channel by the UE if
`accumulation is not enabled, an allocation of a
`scheduled uplink resource to transmit data at a power
`level calculated by the UE based on the path loss.
`Ex. 1001, 13:37–55.1
`
`D. PROPOSED GROUNDS OF UNPATENTABILITY
`Petitioner asserts the following grounds of unpatentability, each based
`on 35 U.S.C. § 103:
`
`References
`Zeira2 and Whinnett3
`
`Zeira, Whinnett, and R1-991514
`
`Claims
`1, 5, 6, 8, 12, 13, 15, 19, 20, 22, 26,
`27, 29, 33, 34, 36, 40 and 41
`2, 9, 16, 23, 30, and 37
`
`Pet. 6. Petitioner also relies on the Declaration of Dr. Paul Min (Ex. 1003).
`See generally Pet. 15–60.
`
`II. DISCUSSION
`A. 35 U.S.C. § 325(D)
`Patent Owner argues that we should deny institution because the
`Petition relies on Zeira, which was “extensively considered during
`
`
`1 We add square-bracketed annotations to separate claim limitations as
`identified by the parties. See Pet. 29–39.
`2 U.S. Patent No. 6,728,292 B2 (filed June 11, 2003; iss. Apr. 27, 2004)
`(Ex. 1005).
`3 U.S. Patent App. Pub. No. 2004/0219919 A1 (filed Apr. 30, 2003; pub.
`Nov. 4, 2004) (Ex. 1006).
`4 3GPP TSG RAN WG1#3 TDoc R1-99151, “Adaptive Step Power Control
`(ASPC)”, Panasonic (Matsushita Communication Industrial Co., Ltd.)
`(pub. March 24, 1999) (Ex. 1007).
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`prosecution,” and relies on Zeira for the same limitations the Examiner
`determined are patentable over Zeira. Prelim. Resp. 13–22.
`We consider multiple factors when determining whether to exercise
`our discretion not to institute under 35 U.S.C. § 325(d), potentially
`including:
`
`(a) the similarities and material differences between the asserted
`art and the prior art involved during examination; (b) the
`cumulative nature of the asserted art and the prior art evaluated
`during examination; (c) the extent to which the asserted art was
`evaluated during examination, including whether the prior art
`was the basis for rejection; (d) the extent of the overlap between
`the arguments made during examination and the manner in
`which Petitioner relies on the prior art or Patent Owner
`distinguishes the prior art; (e) whether Petitioner has pointed
`out sufficiently how the Examiner erred in its evaluation of the
`asserted prior art; and (f) the extent to which additional
`evidence and facts presented in the Petition warrant
`reconsideration of the prior art or arguments.
`Becton, Dickinson & Co. v. B. Braun Melsungen AG, Case IPR2017-01586,
`slip op. at 17–18 (PTAB Dec. 15, 2017) (Paper 8) (informative). As Patent
`Owner points out, Zeira was applied a number of times during prosecution.
`Prelim. Resp. 17–19. After the Board affirmed the Examiner’s rejection over
`a combination of Zeira5 and two other references (Chen6 and Van Lieshout7)
`(Ex. 1002, 971–78), the applicant amended the claims (id. at 987–1003). The
`Examiner, in a statement of reasons for allowance, stated that Zeira teaches
`“receiving by the IE, an indication of whether accumulation of transmit
`
`
`5 The Examiner applied the international publication of Zeira,
`WO 20/57574. Ex. 1002, 227–57.
`6 Published U.S. Patent Application No. US 2005/0025056 A1.
`7 Published U.S. Patent Application No. US 2001/0036823 A1.
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`power commands (TPC) is enabled” and “determining, by the UE, a path
`loss of a downlink channel.” Id. at 1073. According to the Examiner,
`however, none of the cited prior art, alone or in combination, teaches the
`remaining limitations of the independent claims. Id. at 1074.
`Petitioner presents the prosecution history of the ’828 patent, in
`particular showing the claim amendments made after the Examiner’s
`rejection was affirmed by the Board. Pet. 11–14. As compared to those
`claims deemed unpatentable, Petitioner submits the challenged claims differ
`because
`
`(1) the Applicant amended the previously claimed “shared
`channel” to recite a “single physical channel” and (2) the
`Applicant added conditional limitations, specifically the UE
`receives “an indication of whether accumulation of transmit
`power control (TPC) commands is enabled . . . if accumulation
`is enabled, a transmit power in association with an uplink
`communication [is] based on both the path loss and the
`accumulated TPC commands; and . . . if accumulation is not
`enabled, . . . power level [is] calculated . . . based on the path
`loss.
`Id. at 13–14 (quoting Ex. 1002, 1037–51) (alterations added by Petitioner).
`Petitioner submits that those “differences do not merit or rise to the level of
`patentability.” Id. at 14. Petitioner’s position, therefore, is that the Examiner
`made a mistake in allowing the claims. Petitioner argues also that, in light of
`Ex parte Schulhauser, Appeal 2013-007847, 2016 WL 6277792 (PTAB Apr.
`28, 2016), the Examiner should not have allowed the claims to issue.
`Pet. 14–15.
`In this proceeding, Petitioner asserts a combination of Zeira and
`Whinnett and applies Whinnett in a role similar to that of Chen as applied by
`the Examiner. Compare Ex. 1002, 976, with Pet. 29–42. Thus, the art
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`previously applied was very similar to the art now asserted. The Examiner,
`however, did not reject the amended claims based on prior art. See Ex. 1002,
`1011–15. Thus, we cannot compare how the Examiner applied the cited
`prior art references to the amended and now issued claims to contrast that
`with Petitioner’s assertions. We recognize the similarities between the prior
`version of the claims for which the Board affirmed the Examiner’s rejection
`and the amended claims the Examiner ultimately allowed. See Pet. 13.
`In a statement of reasons for allowance, the Examiner stated that Zeira
`discloses certain limitations in the challenged claims, but that even a
`combination of the cited prior art did not disclose other limitations.
`Ex. 1002, 1073–74. The Examiner’s statement, however, does not appear
`consistent with Zeira’s disclosures. For example, the Examiner stated that
`Zeira teaches “receiving, by the IE, an indication of whether accumulation of
`transmit power control (TPC) commands is enabled” and cited Zeira’s
`summary section. Id. at 1073 (citing id. at 232:17–233:8). But Zeira’s
`summary does not provide a disclosure supporting that Zeira teaches that
`limitation. Thus, we have concerns with the Examiner’s statements
`regarding Zeira. Although the Examiner stated that neither Zeira alone nor a
`combination of the cited references discloses other limitations of the
`challenged claims, our review of Petitioner’s contentions as discussed below
`indicates that the Examiner erred.
`In light of Petitioner’s analysis comparing the amended and now
`issued claims to the prior version of the claims rejected by the Examiner and
`affirmed by the Board, and in light of Petitioner’s convincing presentation of
`unpatentability discussed below, we decline to exercise our discretion not to
`institute review in this proceeding. See Becton, Dickinson, slip op. at 18
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`(factors (e) and (f)). We note additionally that our intervening, precedential
`Schulhauser case may provide additional reasons for a conclusion that
`departs from the Examiner’s allowance. As discussed below, our conclusion
`regarding Schulhauser’s applicability may affect our final decision in this
`case.
`
`B. CLAIM CONSTRUCTION
`In an inter partes review, the Board interprets claims of an unexpired
`patent using the broadest-reasonable construction in light of the specification
`of the patent.8 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136
`S. Ct. 2131, 2144–46 (2016).
`Both Petitioner and Patent Owner assert no construction is required
`for any term in the challenged claims. Pet. 16; Prelim. Resp. 12. Patent
`Owner further argues that Schulhauser is not applicable to the challenged
`claims, because the Examiner found both claimed methods were missing
`from the prior art. Prelim. Resp. 12–13.
`We conclude that, for the purpose of this Decision, there is no need to
`construe any term to resolve any issue presented by the Petition and
`Preliminary Response. See Nidec Motor Corp. v. Zhongshan Broad Ocean
`Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017); Vivid Techs., Inc. v. Am.
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`
`8 The Petition was filed before the November 13, 2018, effective date of the
`amendment to 37 C.F.R. § 42.100 changing the claim-construction
`standard applied in inter partes reviews. 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) (to
`be codified at 37 C.F.R. pt. 42).
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`As noted above, however, our precedential Schulhauser case may
`affect the outcome in this case. In Schulhauser, we held that a method claim
`directed to two alternative outcomes based on a binary indicator is construed
`to cover two different methods, and that the broadest-reasonable
`construction encompasses either one of those methods. Schulhauser,
`2016 WL 6277792, *4. Thus, an obviousness showing for such a claim need
`only address one of the two claimed methods. Id. Although Patent Owner
`argues that Schulhauser is inapplicable to the ’828 patent, that argument is
`based on the Examiner’s statements during prosecution of the ’828 patent.
`See Prelim. Resp. 12–13. As explained above, we are persuaded, at this stage
`of the proceeding, that at least some of the Examiner’s statements were
`erroneous. Moreover, whether Schulhauser applies to the challenged claims
`does not depend on any conclusions about the prior art; rather, the prior art
`may only affect the result of applying Schulhauser. In their briefing, the
`parties should discuss the applicability of Schulhauser in addition to the
`result of applying it to the claims here.
`
`C. OBVIOUSNESS OVER ZEIRA AND WHINNETT
`Petitioner asserts that Zeira teaches a conditional open- and closed-
`loop power-control scheme, and that Whinnett teaches sending an allocation
`of a scheduled uplink resource to UEs. Pet. 29–55.
`Zeira discloses a system and method for controlling wireless
`transmission power using combined open- and closed-loop operation.
`Ex. 1005, 1:12–16, 2:57–59. In closed-loop operation, Zeira describes a
`receiving unit measuring signal interference and sending a power command
`to a transmitting unit. Id. at 3:65–4:13. Zeira also describes that a
`transmitting unit can measure path loss to implement open-loop control.
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`Id. at 4:14–17, 5:33–37. Zeira’s combined system applies weighting to the
`various factors for determining transmission power. Id. at 6:4–49, 7:13–20.
`That weighting parameter, α, permits the network operator “to use solely
`open loop or solely closed loop power control” if desired. Id. at 7:23–27.
`Whinnett discloses a system and method for scheduling uplink
`transmissions in wireless communications. Ex. 1006 ¶¶ 40–41. Whinnett
`discloses that a “UE” (“any suitable wireless communication device”) sends
`information to a “node B” (“base transceiver station”) regarding the data to
`be transmitted and the capabilities of the UE. Id. ¶¶ 42, 44. Using a
`“downlink dedicated channel or a high speed shared control channel,” the
`network device sends a “scheduling assignment message (SAM)” to the UE
`that “informs the UE of the allocated transmission time and also for example
`the maximum power that the UE is permitted to use for the uplink
`transmission.” Id. ¶ 45. The UE uses the scheduled allocation to transmit
`data. Id. ¶ 46.
`Petitioner asserts that, in Zeira, “power control is used to reduce
`undesired errors in received signals and minimize interference with other
`communications.” Pet. 54 (citing Ex. 1005, 1:43–54). Petitioner asserts that
`Whinnett furthers Zeira’s performance goals “by introducing explicit Node-
`B scheduling as a ‘feature of the enhanced uplink . . . whereby the node B
`controls the timing and power of uplink transmissions in such a way as to
`maximize uplink through put, while maintaining interference at an
`acceptable level.’” Pet. 54–55 (quoting Ex. 1006 ¶ 10).
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`1. Power control process that depends on whether accumulation is enabled
`(all challenged claims)
`Zeira discloses that, “[u]nder certain conditions, the network operator
`may desire to use solely open loop or solely closed loop power control” and
`that “the operator may use solely closed loop power control by setting α to
`zero.” Ex. 1005, 1:60–65, 7:23–27; see Pet. 30. Petitioner submits that
`because Zeira’s closed-loop control uses the previous power-control factor
`when calculating the current power control factor, it includes a previous
`TPC command and, therefore, “TPC commands are being accumulated as
`claimed.” Pet. 31 (citing Ex. 1005, 6:22–29; Ex. 1002, 489–90, Ex. 1003
`¶¶ 85–86). Thus, because Zeira teaches that the network operator may use α
`to selectively use open- or closed-loop operation, Petitioner asserts that Zeira
`teaches the “indication of whether accumulation of transmit power control
`(TPC) commands is enabled” and operating with closed-loop control when
`that accumulation is enabled. Pet. 30–32.
`Patent Owner argues “Zeira does not teach the claimed control
`process that depends on whether accumulation has been enabled.” Prelim.
`Resp. 26. Patent Owner recognizes that Zeira discloses using the parameter
`α to operate in solely open-loop or solely closed-loop power control, but
`maintains that Zeira does not describe the claimed process. Id. at 27–28. But
`Patent Owner does not explain its position other than to assert that Zeira fails
`to disclose the claimed process and that “the Office has already determined
`that Zeira’s iterative process does not teach the conditional control
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`process.”9 Id. at 28. As discussed above, the Office’s prior determination
`appears to have been in error.
`We determine that Petitioner has shown adequately for purposes of
`institution that Zeira teaches using its α parameter to selectively control
`operation in open-loop or closed-loop power control.
`
`2. Single physical channel (all challenged claims)
`The challenged claims require “a single physical channel” carry both
`“an allocation of a scheduled uplink resource and a TPC command.” E.g.,
`Ex. 1001, 13:42–47.
`Petitioner submits that Zeira teaches sending TPC commands in a
`dedicated channel, which is a type of physical channel, and that “TPC
`commands are only sent in a physical channel.” Pet. 33 (citing Ex. 1005,
`4:31–35; Ex. 1052, 13, 38–39, 57, 60; Ex. 1053 ¶¶ 82–83). Petitioner further
`relies on Whinnett disclosing a “scheduling assignment message (SAM)”
`sent to a UE to inform it of the allocated transmission time and maximum
`permitted transmit power. Id. at 35 (citing Ex. 1006 ¶¶ 44–45). Because
`Whinnett discloses sending its SAM as “layer 1 (L1) signaling” over a
`“downlink dedicated channel” (Ex. 1006 ¶ 40; Ex. 1052; Ex. 1053), and
`because Zeira operates as a TDD10 system where layer 1 signaling such as
`
`
`9 Patent Owner additionally points out that the Petition does not rely on
`Whinnett to teach the recited conditional control process. Prelim. Resp. 29
`(identifying “enablement of accumulation” as the relevant limitation).
`Petitioner relies on Zeira in this regard, so Patent Owner’s argument
`regarding Whinnett is inapposite.
`10 “In Time Division Duplex (TDD) systems, both uplink and downlink
`share the same carrier frequency.” Ex. 1001, 4:35–36; accord Ex. 1005,
`1:11–12.
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`TPC commands are transmitted on a single dedicated physical channel
`(“DPCH”) (Ex. 1052, 13, 38, 39, 57, 60), Petitioner asserts the combination
`of Zeira and Whinnett results in a system where an allocation of a scheduled
`uplink resource and a TPC command are received on a single physical
`channel, as claimed. Pet. 36–37 (additionally citing Ex. 1003 ¶¶ 82, 83, 88,
`90; Ex. 1053, 19–20).
`Patent Owner argues that the combination does not result in use of a
`“single physical channel” as claimed. Prelim. Resp. 29–31. To that end,
`Patent Owner argues that the Examiner and Board previously determined
`Zeira does not disclose a “shared physical channel used to carry allocation
`and scheduling information from the base station to the remote transceiver.”
`Id. at 29–30 (quoting Ex. 1002, 975). Petitioner, however, submits that a
`“shared physical channel” is but one type of physical channel, and that a
`“single physical channel” is broader than a shared physical channel. Pet. 33–
`34 (citing Ex. 1052; Ex. 1003 ¶¶ 82–83). For the purposes of institution, we
`agree with that analysis, and, thus, a prior determination regarding a “shared
`physical channel” does not control the result for the challenged claims.
`We determine that Petitioner has shown adequately for purposes of
`institution that the combination would satisfy the claims’ requirement for
`using a single physical channel.
`
`3. Actual transmission (claims 1 and 15)
`In addition to the issues discussed above, claims 1 and 15 recite
`“receiving, by the UE” or “sending, by the wireless network” (respectively)
`“an indication of whether accumulation of TPC commands is enabled.” See
`Ex. 1001, 13:39–41, 14:43–45. Patent Owner appears to distinguish those
`recitations as requiring actual transmissions, in contrast to other claims
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`requiring the capability for such transmissions. See Prelim. Resp. 31–32.
`According to Patent Owner, neither setting Zeira’s parameter α to a
`particular value nor measuring path loss of a channel equates to sending the
`claimed indication. Id.
`In Zeira, the transmitting device implements the dual-mode, open-
`and-closed-loop controller using the α parameter (Ex. 1005, 7:8–20, Fig. 4),
`so it appears that the operator’s action must cause α to be sent to the UE.
`The communication of the α parameter causes Zeira’s network devices to
`operate using “solely open loop or solely closed loop power control,” and
`because only closed-loop control involves the accumulation of TPC
`commands, using the α parameter to select open- versus closed-loop control
`means the α parameter is an indication of whether accumulation of TPC
`commands is enabled. See Pet. 30–32.
`We determine that Petitioner has shown adequately for purposes of
`institution that the combination would satisfy the claims’ requirement for
`“receiving, by the UE” or “sending, by the wireless network” “an indication
`of whether accumulation of TPC commands is enabled.”
`
`4. Conclusion
`We have reviewed Petitioner’s submissions and Patent Owner’s
`arguments, and we determine that Petitioner has shown a reasonable
`likelihood of prevailing with respect to unpatentability over Zeira and
`Whinnett.
`
`D. OBVIOUSNESS OVER ZEIRA, WHINNETT, AND R1-99151
`Petitioner asserts that a combination of Zeira, Whinnett, and R1-
`91511 renders obvious dependent claims 2, 9, 16, 23, 30, and 37. Pet. 55–60.
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`In particular, Petitioner asserts that R1-91511 teaches the claimed
`“multilevel TPC command” by disclosing “Adaptive Step Power Control,”
`which uses a TPC command where “the step size is represented by the ratio
`of the amplitudes between the power control data and pilot symbol.”
`Pet. 55–56 (quoting Ex. 1007, 1–2). Petitioner asserts that, “[b]y using
`Adaptive Step Power Control as recited in R1-99151, power control systems
`can achieve better performance under any condition such as fast or slow
`changing channel environments without any additional overhead.” Pet. 58
`(citing Ex. 1007, 1, 11).
`At this time Patent Owner does not contest Petitioner’s assertions
`regarding R1-99151. At this time and on this record, we are persuaded that a
`skilled artisan would have understood the benefit offered from using R1-
`99151’s multilevel TPC command, and would have applied R1-99151’s
`teachings to the combination of Zeira and Whinnett to achieve that benefit.
`Petitioner has shown a reasonable likelihood of prevailing with respect to the
`combination of Zeira, Whinnett, and R1-99151.
`
`III. CONCLUSION
`We have addressed all of Patent Owner’s arguments raised in the
`Preliminary Response. For the foregoing reasons, we determine the
`information presented in the Petition establishes a reasonable likelihood that
`Petitioner will prevail in showing the challenged claim unpatentable. Thus,
`based on the standard in 35 U.S.C. § 314(a), and our evaluation of the
`present record, we institute inter partes review.
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`IV. ORDER
`
`Accordingly, it is:
`ORDERED that pursuant to 35 U.S.C. § 314(a), inter partes review of
`the ’828 patent is instituted of the challenged claims on the grounds
`identified in the Petition.
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`PETITIONER:
`
`Brianne Straka
`John Poulos
`John McKee
`QUINN EMANUEL URQHART & SULLIVAN LLP
`briannestraka@quinnemanuel.com
`johnpoulos@quinnemanuel.com
`johnmckee@quinnemanuel.com
`
`
`PATENT OWNER:
`
`Byron Pickard
`Daniel Block
`Tyler Dutton
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`bpickard-ptab@sternekessler.com
`dblock-ptab@sternekessler.com
`tdutton-ptab@sternekessler.com
`
`James Hietala
`Russell Rigby
`Tim Seeley
`INTELLECTUAL VENTURES
`jhietala@intven.com
`rrigby@intven.com
`tim@intven.com
`
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