UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. AND
`TELEFONAKTIEBOLAGET LM ERICSSON
`Petitioners
`
`v.
`
`INTELLECTUAL VENTURES II LLC
`Patent Owner
`____________
`
`Case No. Unassigned
`Patent 8,897,828
`____________
`
`
`
`
`
`
`PETITION FOR 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, 40-41 OF U.S. PATENT NO.
`8,897,828
`
`DECLARATION OF DR. WAYNE STARK
`UNDER 37 C.F.R. § 1.68
`
`
`
`1
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`Ericsson Exhibit 1003
`Page 1
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`TABLE OF CONTENTS
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`I. BACKGROUND AND QUALIFICATIONS ................................................. 4
`II. LEGAL UNDERSTANDING .......................................................................... 6
`III. MATERIALS CONSIDERED ....................................................................... 10
`IV. LEVEL OF ORDINARY SKILL IN THE ART .......................................... 12
`V. OVERVIEW OF THE ’828 PATENT .......................................................... 13
`A. Subject Matter of the ’828 Patent .................................................................. 13
`B. Prosecution History of the ’828 Patent ......................................................... 19
`C. Priority Date of the ’828 Patent .................................................................... 22
`VI. SUMMARY OF PRIOR ART ....................................................................... 23
` Combined Closed-Loop and Open-Loop Power Control Schemes (Zeira) .. 23
`B. Switching Between Power Control Modes at the Network Level (Cheng) .... 25
`C. Power Control Commands and Allocations on the Same Channel (Chen) .. 26
`D. Multilevel TPC commands (Tong) ................................................................. 27
`E. Setting Transmit Power Based on Selected Transport Format (Shiu) .......... 27
`VII. CLAIM CONSTRUCTION ........................................................................ 28
` “accumulation of transmit power control (TPC) commands” ...................... 28
`B. “multilevel TPC command” .......................................................................... 31
`VIII. THE CHALLENGED CLAIMS ARE UNPATENTABLE ..................... 32
`A. Ground 1: The Combination of Zeira, Chen, and Cheng Renders Claims 15,
`19, 22, 26, 29, 33, 36, and 40, as well as Claims 1, 5, 8, and 12, Obvious. ........ 33
`1. A POSITA would have been motivated to combine Zeira, Chen, and
`Cheng with a reasonable expectation of success. ............................................. 33
`2. Claim 15 ..................................................................................................... 42
`3. Claim 19 ..................................................................................................... 73
`4. Claim 22 ..................................................................................................... 74
`5. Claim 26 ..................................................................................................... 80
`6. Claim 29 ..................................................................................................... 80
`7. Claim 33 ..................................................................................................... 82
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`8. Claim 36 ..................................................................................................... 83
`9. Claim 40 ..................................................................................................... 86
`10. Claim 1 ....................................................................................................... 87
`11. Claim 5 ....................................................................................................... 88
`12. Claim 8 ....................................................................................................... 88
`13. Claim 12 ..................................................................................................... 89
`B. Ground 2: The Combination of Zeira, Chen, Cheng, and Tong Renders
`Obvious Claims 16, 23, 30, and 37, as well as Claims 2 and 9. .......................... 89
`1. Claim 16 ..................................................................................................... 89
`2. Claim 23 ..................................................................................................... 93
`3. Claim 30 ..................................................................................................... 93
`4. Claim 37 ..................................................................................................... 93
`5. Claim 2 ....................................................................................................... 93
`6. Claim 9 ....................................................................................................... 94
`C. Ground 3: The Combination of Zeira, Chen, Cheng, and Shiu Renders
`Obvious Claims 20, 27, 34, and 41, as well as Claims 6 and 13. ........................ 94
`1. Claim 20 ..................................................................................................... 94
`2. Claim 27 ..................................................................................................... 99
`3. Claim 34 ..................................................................................................... 99
`4. Claim 41 ...................................................................................................100
`5. Claim 6 .....................................................................................................100
`6. Claim 13 ...................................................................................................100
`IX. CONCLUSION ..............................................................................................100
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`Ericsson Exhibit 1003
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`DECLARATION OF DR. WAYNE STARK, PH.D.
`I, Dr. Wayne Stark, declare as follows:
`
`1.
`
`I make this declaration based on my own personal knowledge and, if
`
`called upon to testify, would testify competently to the matters contained herein.
`
`2.
`
`I have been asked to provide technical assistance in the inter partes
`
`review of U.S. Patent No. 8,897,828 (“the ’828 Patent”).
`
`3.
`
`This declaration is a statement of my opinions on issues related to the
`
`unpatentability of claims 1-2, 5-6, 8-9, 12-13, 15-16, 19-20, 22-23, 26-27, 29-30,
`
`33-34, 36-37, and 40-41 of the ’828 Patent.
`
`I.
`
`BACKGROUND AND QUALIFICATIONS
`4.
`In forming my opinions, I have relied upon my knowledge, training,
`
`and experience in the relevant art. While my qualifications are stated more fully in
`
`my curriculum vitae (Ex. 1002), here I provide a summary of my qualifications.
`
`5.
`
`I received a Ph.D. in electrical engineering from the University of
`
`Illinois in 1982. I also received Bachelor and Master’s Degrees in electrical
`
`engineering from the University of Illinois in 1978 and 1979, respectively. My
`
`Curriculum Vitae is attached as Ex. 1002.
`
`6.
`
`I have over 35 years of experience as a researcher and a practitioner in
`
`electrical engineering, particularly in the field of wireless communications, and
`
`
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`more specifically in the technical areas of frequency hopping and error correction
`
`coding.
`
`7.
`
`I currently am a Professor of Electrical Engineering and Computer
`
`Science at the University of Michigan, Ann Arbor campus, and have held that
`
`position since September 1996. Prior to becoming a full Professor, I had been
`
`employed continuously either as an Associate Professor or an Assistant Professor
`
`(with the exception of sabbaticals working for various corporations, as noted in my
`
`attached CV), at the University of Michigan, Ann Arbor campus since September
`
`1982.
`
`8.
`
`I am a named inventor on several U.S. Patents. I have also authored
`
`over two hundred (200) technical articles and conference publications, and have
`
`contributed
`
`to several books. Most of
`
`those articles, publications, and
`
`contributions, relate to wireless communications in general, and frequency hopping
`
`and error correction coding in particular.
`
`9.
`
`I have received several honors for the research I have done. I am an
`
`IEEE Fellow (for contributions to the theory and practice of coding and
`
`modulation in spread spectrum systems). I received the National Science
`
`Foundation Presidential Young Investigator Award in 1985. I received the IEEE
`
`Milcom Board 2002 Technical Achievement Award. I received the Journal of
`
`Communications and Networks Best Paper Award in 2010.
`
`
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`10.
`
`In preparation of this declaration, I have reviewed the patents and
`
`printed publications listed in the “Materials Considered” section below, together
`
`with any other publications cited in this declaration.
`
`11.
`
`12.
`
`I have also reviewed the ’828 Patent and its prosecution history.
`
`I am being compensated at an hourly rate for my work preparing this
`
`declaration. My compensation is not based on the resolution of this matter. My
`
`findings, as I explain below, are based on my education, experience, and
`
`background in the fields I discuss above.
`
`II. LEGAL UNDERSTANDING
`13.
`I am not an attorney and I render no opinion on the law itself. My
`
`opinions are informed by my understanding of the relevant law, as it has been
`
`provided to me by counsel. I understand that the patentability analysis is
`
`conducted on a claim-by-claim and element-by-element basis, and that there are
`
`several possible reasons that a patent claim may be found to be unpatentable.
`
`14.
`
`In preparing this declaration, I have considered the noted prior art and
`
`formed my opinions described herein, based on my understanding of the legal
`
`terms of anticipation and obviousness.
`
`15.
`
`I understand that a prior art reference “anticipates” an asserted claim,
`
`and thus renders the claim invalid, if all elements of the claim are disclosed in that
`
`prior art reference, either explicitly or inherently (i.e., necessarily present or
`
`
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`implied). I understand that a prior art reference inherently anticipates a claim
`
`element even though that claim element is not expressly disclosed if a person of
`
`ordinary skill in the art (“POSITA”) would understand that the missing descriptive
`
`matter is necessarily present in the thing described in the reference. I have been
`
`instructed by counsel on the law regarding obviousness, and understand that even
`
`if a patent is not anticipated, it is still invalid 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 of ordinary skill
`
`in the pertinent art.
`
`16.
`
`I understand that a person of ordinary skill in the art provides a
`
`reference point from which the prior art and claimed invention should be viewed.
`
`This reference point prevents one from using his or her own insight or hindsight in
`
`deciding whether a claim is obvious.
`
`17.
`
`I understand
`
`that an obviousness determination
`
`includes
`
`the
`
`consideration of various factors, such as: (1) the scope and content of the prior art;
`
`(2) the differences between the prior art and the asserted claims; (3) the level of
`
`ordinary skill
`
`in
`
`the pertinent art; and (4)
`
`the existence of secondary
`
`considerations, such as commercial success, long-felt but unresolved needs, failure
`
`of others, etc.
`
`
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`18.
`
`I understand that an obviousness evaluation can be based on a
`
`combination of multiple prior art references. I understand that the prior art
`
`references themselves may provide a suggestion, motivation, or reason to combine.
`
`Other times, the nexus linking two or more prior art references is simple common
`
`sense or ordinary knowledge available to a person of ordinary skill in the art. I
`
`further understand that obviousness analysis recognizes that market demand, rather
`
`than scientific literature, often drives innovation, and that a motivation to combine
`
`and/or modify subject matter of references may be supplied by the direction of the
`
`marketplace.
`
`19.
`
`I also understand that practical and common sense considerations
`
`should guide a proper obviousness analysis, because familiar items may have
`
`obvious uses beyond their primary purposes. I understand that obviousness
`
`analysis takes into account the inferences and creative steps that a person of
`
`ordinary skill in the art would employ under the circumstances.
`
`20.
`
`I understand that a particular combination may be proven obvious
`
`merely by showing that it was obvious to try the combination. For example, when
`
`there is a design need or market pressure to solve a problem and there are a finite
`
`number of identified, predictable solutions, a person of ordinary skill has good
`
`reason to pursue the known options within his or her technical grasp because the
`
`
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`result is likely the product not of innovation but of ordinary skill and common
`
`sense.
`
`21. The combination of familiar elements according to known methods is
`
`likely to be obvious when it does no more than yield predictable results. When a
`
`work is available in one field of endeavor, design incentives and other market
`
`forces can prompt variations of it, either in the same field or a different one. If a
`
`person of ordinary skill can implement a predictable variation, it is likely not
`
`patentable.
`
`22.
`
`It is further my understanding that a proper obviousness analysis
`
`focuses on what was known or obvious to a person of ordinary skill in the art, not
`
`just the patentee. Accordingly, I understand that any need or problem known in the
`
`field of endeavor at the time of invention and addressed by the patent can provide a
`
`reason for combining the elements in the manner claimed. I understand that a
`
`person of ordinary skill would find motivation to combine two pieces of prior art
`
`or substitute one prior art element for another if the substitution can be made with
`
`predictable results, even if the swapped-in element is different from the swapped-
`
`out element. In other words, the prior art need not be like two puzzle pieces that
`
`must fit together perfectly. The relevant question is whether prior art techniques
`
`are interoperable with respect to one another, such that a person of ordinary skill
`
`
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`would view them as a design choice, or whether a person of ordinary skill could
`
`apply prior art techniques into a new combined system.
`
`23.
`
`In sum, my understanding is that prior art teachings are properly
`
`combined where a person of ordinary skill in the art having the understanding and
`
`knowledge reflected in the prior art and motivated by the general problem facing
`
`the inventor and would have been led to make the combination of elements recited
`
`in the claims. Under this analysis, the prior art references themselves, or any need
`
`or problem known in the field of endeavor at the time of the invention, can provide
`
`a reason for combining the elements of multiple prior art references in the claimed
`
`manner.
`
`24.
`
`I have been informed and understand that the obviousness analysis
`
`requires a comparison of the properly construed claim language to the prior art on
`
`a limitation-by-limitation basis.
`
`III. MATERIALS CONSIDERED
`25.
`In the preparation of this declaration, I have studied the following
`
`materials (for consistency with the Petition, the exhibit numbers have been
`
`provided to me by counsel):
`
`1001
`
`1004
`
`1005
`
`
`
`U.S. Pat. 8,897,828 to Anderson (“the ’828 Patent”)
`
`U.S. Pat. 6,728,292 (“Zeira”)
`
`U.S. Pat. 6,411,817 (“Cheng”)
`
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`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`U.S. Pat. 7,532,572 (“Chen”)
`
`Harri Holma & Antti Toskala, WCDMA for UMTS: Radio Access for
`Third Generation Mobile Communications (2d ed. 2002)
`
`U.S. Pat. 6,983,166 (“Shiu”)
`
`U.S. Pat. 6,529,741 (“Tong”)
`
`Prosecution History of U.S. Ser. No. 10/917,968 (application leading
`to the ’828 Patent)
`
`WO 00/57574 (“Zeira”)
`
`U.S. Pat. Pub. 2005/0025056 (“Chen”)
`
`U.S. Pat. Pub. 2001/0036823 (“Van Lieshout”)
`
`Shin & Zeira et al., “Pathloss-Aided Closed Loop Transmit Power
`Control for 3G UTRA TDD,” IEEE (2003).
`
`Prabhakar Chitrapu, Wideband TDD: WCDMA for the Unpaired
`Spectrum (2004)
`
`Newton’s Telecom Dictionary (18th ed. 2002)
`
`IEEE Standard Dictionary of Electrical and Electronics Terms (4th ed.
`1988)
`
`1018
`
`Merriam-Webster’s Collegiate Dictionary (1993)
`
`1019
`
`26.
`
`Declaration of Dr. Sylvia Hall-Ellis
`
`In forming the opinions I express below, I have considered the
`
`materials listed above, and my knowledge and experience based on my work in
`
`this area as I describe above.
`
`27.
`
`I understand the above materials are prior art to the ’828 Patent
`
`because they were published or known to the public before August 12, 2004, the
`
`
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`assumed priority date of the ’828 Patent. See Ex. 1019 (Declaration of Dr. Sylvia
`
`Hall-Ellis confirming the publication dates of the nonpatent literature listed above).
`
`IV. LEVEL OF ORDINARY SKILL IN THE ART
`28. Based on the technologies disclosed in the ’828 Patent and my
`
`experience in the field, it is my opinion that a person of ordinary skill in the art
`
`(“POSITA”) would have a B.S. degree in electrical engineering, computer
`
`engineering, or equivalent training, with at least three to four years of experience in
`
`wireless communication technology, or a Master’s degree in electrical engineering,
`
`computer engineering, or other equivalent degree. I recognize, however, that
`
`someone with less or different technical education but more relevant practical
`
`experience, or more relevant education but less practical experience, could also be
`
`considered a person of ordinary skill in the art.
`
`29. Such a person would be familiar with various well-known
`
`communication methodologies, networking protocols, and power control
`
`techniques. For example, that person would be familiar with open loop power
`
`control, closed loop power control, and combined open loop and closed loop power
`
`control schemes. That person would also have had intimate familiarity with well-
`
`known signalling protocols used by operators to configure parameter settings on
`
`user equipment (UE) devices, such as the Radio Resource Configuration (RRC)
`
`protocols used in 3GPP networks. That person would have also had the benefit of
`
`
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`the knowledge of 3GPP UTRA protocols and knowledge of the WCDMA air
`
`interface mentioned in the ’828 Patent as admitted prior art.
`
`30.
`
`In short, a POSITA would have had the benefit of the great wealth of
`
`knowledge gained by the development of three generations of wireless cellular
`
`systems, techniques, and protocols, along with years of knowledge regarding
`
`power control protocols.
`
`31. My opinions with respect to the ’828 Patent and the prior art
`
`referenced here are based on what a person of ordinary skill in the art would have
`
`perceived at the time of the alleged invention of the ’828 Patent.
`
`32. Unless otherwise stated, when I provide my understanding and
`
`analysis below, it is consistent with the level of a POSITA in these techniques at
`
`and around the priority date of the ’828 Patent.
`
`V. OVERVIEW OF THE ’828 PATENT
`A. Subject Matter of the ’828 Patent
`33. The ’828 Patent is directed to uplink power control in a cellular
`
`communication network with a base station (sometimes called a Node B) and a
`
`mobile (sometimes called user equipment or UE). Ex. 1001, at Abstract (referring
`
`to a calculation of “transmit power for an uplink communication”). The uplink
`
`refers to the transmissions from the mobile to the base station. The ’828 Patent
`
`
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`Background acknowledges that two well-known power control modes include
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`“open loop” and “closed loop.” Ex. 1001, at 2:1-5.
`
`34.
`
`“Open loop” refers to a power control method in which the UE makes
`
`its own measurements of received signal strength from the base station in order to
`
`set its transmission power based on “path loss.” Id. at 2:6-16. Path loss is the
`
`“difference between the actual transmit power level and the received signal power
`
`level.” Id. at 4:53-56. “Closed loop” refers to a power control mode in which the
`
`base station issues transmit power control (TPC) commands to the UE to increase
`
`or decrease the UE’s transmit power where the transmit power is also based on one
`
`or more previous TPC commands (which is also referred to as “accumulation” of
`
`TPC commands). Id. at 2:17-25.
`
`35. The ’828 Patent states that its novelty lies in a power control method
`
`in which “aspects of both an open loop and closed loop scheme are strategically
`
`combined to form a power control method.” Id. at 7:64-66. This alleged novelty is
`
`illustrated by, for example, Figure 4, which is reproduced as annotated below:
`
`
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`Id. at 9:22-25 (“FIG. 4 illustrates a wireless communication system using elements
`
`of both open loop and closed loop schemes, in accordance with the present
`
`invention.”). As seen above, the “UE saves 432 the signaled power level,
`
`measures the received power level and, if available, saves 434 the interference
`
`measurements for later processing.” Id. at 9:44-46. The difference between the
`
`signaled power level 432 transmitted by the network (base station) and the
`
`measured power level at the UE is calculated to determine a path loss. Id. at 9:63-
`
`65. In addition, the “network generates and transmits a TPC command and
`
`
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`“downlink signal 416 carries the TPC command 418 over the radio link.” Id. at
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`9:55-58. The UE uses the path loss calculation and “accumulates 420 the TPC
`
`commands and uses the accumulated TPC commands . . . to set 436 the transmit
`
`power for future uplink transmissions 400.” Id. at 9:58-60; 10:9-13.
`
`36.
`
` The ’828 Patent goes on to disclose that in “a system using the
`
`combined power control scheme, a new physical channel on the downlink may be
`
`used to carry fast allocation and scheduling information to a user, thereby
`
`informing the UE of the uplink resources that it may use.” Id. at 12:44-47. “This
`
`new physical channel could also be used as the feedback channel for the combined
`
`power control scheme” that may “carry TPC commands.” Id. at 12:47-51. The
`
`’828 Patent also describes the use of an allegedly “new parameter” that tells the
`
`UE whether to use the conventional open loop power control, conventional closed
`
`loop power control, or the allegedly novel combined scheme:
`
`For example, a Node-B or RNC [radio network controller] may be
`implemented with a new parameter, either included in a signaling
`command or a broadcast message, where the new parameter instructs
`a UE to enable or disable the setting of uplink transmit power level
`based on both the path loss estimation and the TPC commands. A
`parameter may indicate whether a UE is to use open loop power
`control, closed loop power control or a combined scheme.
`
`Id. at 12:57-65.
`
`
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`37.
`
` Claim 15 of the ’828 Patent is representative of the challenged
`
`independent claims and recites generally (a) sending an indication to the UE as to
`
`whether to “enable accumulation” of TPC commands, (b) if accumulation is
`
`enabled, operating according to a combined closed loop/open loop power control
`
`scheme (where path loss and TPC commands are used to calculate transmit power),
`
`and (c) if accumulation is not enabled, operating according to an open loop power
`
`control scheme (where path loss is used to calculate transmit power). These
`
`general concepts are emphasized in Claim 15 as reproduced below:
`
`A method performed by a wireless network, the
`method comprising:
`sending, by the wireless network, an indication of
`whether accumulation of transmit power control (TPC)
`commands is enabled;
`determining, by a user equipment (UE), a path loss
`of a downlink channel;
`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;
`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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`receiving, on the single physical channel by the UE if
`accumulation
`is not enabled, an allocation of a
`scheduled uplink resource to transmit data to the
`wireless network at a power level calculated by the UE
`based on the path loss.
`
`38.
`
` Contrary to the ’828 Patent’s alleged statement of novelty, the
`
`combination of open loop/closed loop power control scheme was already well-
`
`known by the filing date of the application that led to the ’828 Patent. As I will
`
`explain further below, the obviousness of these concepts was also established
`
`during prosecution by both the Examiner and the Board. Ericsson Exhibit 1010,
`
`pp. 127, 129-130, March 3, 2014 Patent Board Decision. After losing an appeal to
`
`the Board, the patentee added the requirement for the UE to switch its operation
`
`between multiple well-known power control schemes using an “indicator.”
`
`Ericsson Exhibit 1010, p. 96, April 30, 2014 Amendment. As I will explain in
`
`detail in my analysis below, this narrow concept was also a known technique to a
`
`POSITA as shown by prior art that was not previously before the Examiner during
`
`prosecution.
`
`39.
`
`
`
`It is my opinion that the dependent claims add no novel concepts to
`
`the independent claims. For example, multilevel TPC commands (Claims 16); the
`
`calculation of path loss (Claim 19); and the calculation of transmit power based on
`
`
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`a selected transport format (Claim 20) were all well-known and conventional
`
`power control techniques.
`
`B. Prosecution History of the ’828 Patent
`40. During prosecution of the application that led to the ’828 Patent, the
`
`Examiner rejected the originally filed claims, because the stated novelty (i.e., the
`
`combination of open and closed loop power control) was already known in the
`
`prior art. Ericsson Exhibit 1010, pp. 745-746, July 2, 2007 Office Action (relying
`
`on WO version of Zeira).1 The Examiner showed that the combination of open
`
`loop with closed loop power control was anticipated by Zeira. Id.
`
`41.
`
`In response, the applicant amended its claims to add the concept of
`
`receiving on a downlink channel an allocation of a scheduled uplink transmission
`
`resource and TPC commands. Ericsson Exhibit 1010, p. 667 December 28,
`
`2007Amendment. The Examiner, however, found that these limitations were
`
`taught by the combination of Zeira’s teachings combined with other, well-known
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`concepts taught by Chen (relying on U.S. Publication of Chen).2
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`1 The Examiner relied on the WO version of Zeira (Ex. 1011), which is
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`substantially identical to its U.S. counterpart (Ex. 1004).
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`2 The Examiner relied on the published patent application of Chen (Ex. 1012),
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`which is substantially identical to the patented version of Chen (Ex. 1005).
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`19
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`Page 19
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`42. After the applicant further amended its claims to specify that the
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`downlink channel was a “shared physical channel,” the Examiner again found
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`these concepts were obvious over Zeira and Chen and another reference called Van
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`Lieshout (U.S. Pub. 2001/0036823). Ericsson Exhibit 1010, pp. 508-511, January
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`8, 2010 Final Office Action. On appeal of these rejections, the Board upheld the
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`Examiner’s findings that these concepts were obvious over the prior art. Ericsson
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`Exhibit 1010, pp. 127, 129-130, March 3, 2014 Patent Board Decision. It is my
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`opinion that the Board and the Examiner’s findings with respect to the limitations
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`at issue were correct.
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`43.
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`In response to the Board upholding the Examiner’s rejections, the
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`patentee removed from the claims the concept of a “shared physical channel” and
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`instead added another concept directed to the UE receiving “an indication of
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`whether accumulation of transmit power control (TPC) commands is enabled,” and
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`operating according to the combined open/closed loop power control scheme if
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`accumulation is enabled (e.g., using the prior art combined scheme anticipated by
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`Zeira) or operating according to open loop power control scheme if accumulation
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`is not enabled. Ericsson Exhibit 1010, p. 96, April 30, 2014 Amendment.
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`44. As will be shown by my analysis herein, however, the use of an
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`indication to inform the UE of what power control scheme to use was a well-
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`known concept. Other prior art (U.S. Pat. 6,411,817 (“Cheng”) discloses the well-
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`20
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`Page 20
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`known ability of a base station compatible with two power control modes to send a
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`“physical layer control message” to the UE to control whether the UE is to operate
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`according to a “basic” power control mode or an “enhanced” power control mode.
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`Ex. 1005, at 11:9-15 (“Whenever the base station 116 seeks to change the dynamic
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`power control mode between the basic dynamic power control mode and the
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`enhanced dynamic power control modes, the base station 116 preferably sends a
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`physical layer control message to the mobile stations (23, 25)”); id. at 11:1-4 (“The
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`base station 116 is preferably compatible with a basic dynamic power control
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`mode for basic mobile stations 21 and an enhanced dynamic power control mode
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`for enhanced mobile stations (23, 25)”).
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`45. Moreover, Zeira itself acknowledges that as an alternative to its
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`combined open/closed loop scheme, an operator may, depending on certain
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`conditions, “desire to use solely open loop or solely closed loop power control.”
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`Ex. 1004, at 7:23-25. Zeira further discloses that the operator may change which
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`power control mode is to be used by changing the weighting factors used in the
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`power control calculation. Id. at 7:21-27 (“Although the two above algorithms
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`only weighted the open loop factor, the weighting may be applied to the closed
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`loop factor or both the open and closed loop factors. . . . For example, the operator
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`may use solely closed loop power control by setting α to zero.”). It would have
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`been well understood by a POSITA how an operator (i.e. the base station/network)
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`
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`21
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`Page 21
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`can signal changes in these parameter settings to a UE. My opinion that a POSITA
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`would have such knowledge is supported by, for example, 3GPP UTRA
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`specifications which included the ability to signal power control parameters to the
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`UE using RRC signaling messages. Ex. 1015, at 116 (“Initialization: For each
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`dedicated DL CCtrCH, the SRNC provides initial power control parameters
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`(including target BLER and Step size) to the UE via RRC signaling and to Node B
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`via internal UTRAN signaling.”); see also id. at 117 (“For each dedicated UL
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`CCTrCH, an initial value of target SIR (determined by the CRNC and passed to the
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`SRNC) is provided to the UE (via RRC signaling) when the CCTrCH is first
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`established.”).
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`46.
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`It is my opinion that it would have been obvious to a POSITA to use
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`the mode switching control message taught by Cheng to control the UEs of Zeira
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`to operate according to the combined open/closed loop scheme or to use solely
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`open loop, depending on the desire of the operator. For example, it would have
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`been obvious to a POSITA in view of Cheng to include one or more weighting
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`factors in a physical layer control message to set the weights to be applied to the
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`open loop factor and closed loop factor as taught by Zeira.
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`C. Priority Date of the ’828 Patent
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`
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`22
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`47. The application leading to the issuance of the ’828 Patent was filed on
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`August 12, 2004. I have assumed this priority date for the purpose of my analysis
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`in this declaration.
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`VI. SUMMARY OF PRIOR ART
`48. As evidenced by the prior art I rely on in my analysis, the claimed
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`ability to switch between two conventiona