throbber
Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 9
`Entered: April 22, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`T-MOBILE USA, INC., T-MOBILE US, INC.,
`SPRINT SPECTRUM L.P., and SPRINTCOM, INC.,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01773
`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
`
`
`
`
`
`

`

`Case IPR2018-01773
`Patent 8,897,828 B2
`
`
`I.
`
`INTRODUCTION
`
`Petitioner, T-Mobile USA, Inc., T-Mobile US, Inc., Sprint Spectrum
`
`L.P., and Sprintcom, Inc., filed a Petition (Paper 1, “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 7 (“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. 2–3; 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
`
`2
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`

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`Case IPR2018-01773
`Patent 8,897,828 B2
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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 15
`
`is illustrative of the claimed subject matter and is reproduced below:
`
`1. A method performed by user equipment (UE), the method
`comprising:
`
`[a] receiving, by the UE, an indication of whether
`accumulation of transmit power control (TPC)
`commands is enabled;
`
`[b] determining, by the UE, a path loss of a downlink
`channel;
`
`[c] 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;
`
`[d] 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
`
`3
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`

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`Case IPR2018-01773
`Patent 8,897,828 B2
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`
`[e] 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
`
`Claims
`
`Zeira,2 Krishnan,3 and Khan4
`
`Zeira, Krishnan, Khan, and
`Andersson5
`
`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
`
`2, 9, 16, 23, 30, and 37
`
`Pet. 8. Petitioner also relies on the Declaration of Martin G. Walker, Ph.D.
`
`(Ex. 1002). See generally Pet. 1, 11, 16–67.
`
`
`
`1 We add square-bracketed annotations to separate claim limitations as
`identified by Petitioner. See Pet. 24–43.
`
`2 U.S. Patent No. 6,600,772 B1 (filed Mar. 21, 2000; iss. July 29, 2003)
`(Ex. 1004).
`
`3 U.S. Patent No. 7,493,133 B2 (filed Feb. 5, 2004; iss. Feb. 17, 2009)
`(Ex. 1005).
`
`4 U.S. Patent App. Pub. No. 2004/0190485 A1 (filed Mar. 24, 2003)
`(Ex. 1006).
`
`5 U.S. Patent No. 6,334,047 B1 (filed Apr. 9, 1999; iss. Dec. 25, 2001)
`(Ex. 1007).
`
`4
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`Case IPR2018-01773
`Patent 8,897,828 B2
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`
`II. DISCUSSION
`
`A. 35 U.S.C. § 325(D)
`
`Patent Owner argues that we should deny institution because the
`
`Petition relies on Zeira, Krishnan, and Khan, which were “heavily
`
`considered during prosecution,” and because “the Petition’s arguments
`
`directly overlap with those considered during prosecution.” Prelim.
`
`Resp. 16; see also id. at 13–21.
`
`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. 16–18. After the Board affirmed the Examiner’s rejection over
`
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`a combination of Zeira6 and two other references (Chen7 and Van Lieshout8)
`
`(Ex. 1008, 120–127), the applicant amended the claims (id. at 91–107). The
`
`Examiner, in a statement of reasons for allowance, stated that Zeira teaches
`
`“receiving by the UE, an indication of whether accumulation of transmit
`
`power commands (TPC) is enabled” and “determining, by the UE, a path
`
`loss of a downlink channel.” Id. at 16. 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 17.
`
`Petitioner discusses the prosecution history of the ’828 patent,
`
`including the claim amendments made after the Examiner’s rejection was
`
`affirmed by the Board. Pet. 11–16. Petitioner notes that the Examiner “did
`
`not substantively discuss the newly filed claims, including the added ‘single
`
`physical channel’ limitation, with reference to Zeira PCT, Krishnan, or any
`
`other prior art of record.” Id. at 15; see also id. at 6 (“Although Khan was
`
`cited in an IDS by the applicant, it was not substantively considered during
`
`the original prosecution.”).
`
`Petitioner argues that, particularly when focusing on the limitations
`
`added after amendment, the allowed claims are unpatentable over Zeira,
`
`Krishnan, and Khan, and that the Office never considered the arguments
`
`presented by the Petition. Id. at 6 (“The combination of Khan with Zeira and
`
`Krishnan raises novel arguments regarding the patentability of the ’828
`
`patent that were not considered during the original prosecution of the
`
`
`
`6 The Examiner applied the international publication of Zeira,
`WO 00/57574. Ex. 1008, 935–65.
`
`7 Published U.S. Patent Application No. US 2005/0025056 A1.
`
`8 Published U.S. Patent Application No. US 2001/0036823 A1.
`
`6
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`Case IPR2018-01773
`Patent 8,897,828 B2
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`allowed claims. . . . Khan is particularly relevant in view of new limitations
`
`added by the patentee in the final set of claims.”), 7 (“In view of Khan’s
`
`bearing on this limitation [added after appeal], and the examiner’s prior
`
`findings as to Zeira and Krishnan, the Board should decline to exercise its
`
`discretion under § 325(d).”).
`
`Thus, the art previously applied was extremely similar to the art now
`
`asserted. The Examiner, however, did not reject the amended claims based
`
`on prior art. See Ex. 1008, 74–78. 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.
`
`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. 1008, 16–17. The Examiner’s statement, however, does not appear
`
`consistent with Zeira’s disclosures. For example, the Examiner stated that
`
`Zeira teaches “receiving, by the UE, an indication of whether accumulation
`
`of transmit power control (TPC) commands is enabled” and cited Zeira’s
`
`summary section. Id. at 16 (citing id. at 940:17–941:8). 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
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`7
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`Case IPR2018-01773
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`review of Petitioner’s contentions as discussed below indicates the Examiner
`
`erred.
`
`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 (factors (e) and (f)).9
`
`We note additionally that our intervening, precedential Schulhauser case
`
`may provide additional reasons for a conclusion that departs from the
`
`Examiner’s allowance. See Ex parte Schulhauser, Appeal 2013-007847,
`
`2016 WL 6277792 (PTAB Apr. 28, 2016). 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.10 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136
`
`S. Ct. 2131, 2144–46 (2016).
`
`Petitioner proposes a construction for one term: “multilevel TPC
`
`command.” Pet. 18–19. Patent Owner asserts no construction is required for
`
`
`
`9 Similar § 325(d) facts and arguments were made in IPR2018-01641 and
`IPR2018-01694, each of which also involve the ’828 patent. Our
`determination here is consistent with the determination made in those
`proceedings.
`
`10 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).
`
`8
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`Case IPR2018-01773
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`any term. Prelim. Resp. 12. We conclude that, for the purpose of this
`
`Decision, there is no need to construe any term to resolve issues 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).
`
`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. 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.
`
`Additionally, discussing Petitioner’s contentions, Patent Owner argues
`
`that “if accumulation is not enabled, the claims recite ‘receiving . . . an
`
`allocation of a scheduled uplink resource to transmit data at a power level
`
`calculated by the UE based on the path loss” without a TPC command.”
`
`Prelim. Resp. 34. That appears to be an argument by Patent Owner that the
`
`claims require that, if operating such that accumulation is not enabled, a UE
`
`cannot receive a TPC command. To the extent Patent Owner wishes to
`
`pursue such a claim construction in this proceeding, it should explain the
`
`basis for such a position in the Response.
`
`9
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`Case IPR2018-01773
`Patent 8,897,828 B2
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`
`C. OBVIOUSNESS OVER ZEIRA, KRISHNAN, AND KHAN
`
`Petitioner asserts that Zeira teaches a conditional open- and closed-
`
`loop power-control scheme and that Krishnan teaches a similar power-
`
`control technique and further discloses that “the receiving terminal enables
`
`closed-loop control by sending a feedback signal to the transmitting
`
`terminal.” Pet. 21; id. at 19–22. Petitioner asserts Khan teaches sending
`
`scheduling allocations and power-control information over a single physical
`
`channel. Id. at 22–24.
`
`Zeira discloses a system and method for controlling wireless
`
`transmission power using combined open- and closed-loop operation.
`
`Ex. 1004, 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. 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 factor, α, permits the network operator “to use solely open
`
`loop or solely closed loop power control” if desired. Id. at 7:23–27.
`
`Krishnan discloses a system and method for configuring devices to
`
`enable or disable closed-loop power control. Ex. 1005, Abstract. Based on
`
`whether interference is detected, Krishnan’s system sends a “feedback signal
`
`indicating the status of closed-loop power control, such as an enable/disable
`
`bit.” Id. at 7:49–8:3.
`
`Khan discloses “[a] method for transmitting control information in a
`
`wireless communication system.” Ex. 1006, Abstract. Khan’s transmitted
`
`information relates to “reverse link packet transmission,” or uplink
`
`10
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`Case IPR2018-01773
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`transmissions from UEs to base stations. Id. ¶¶ 3, 11, 12. The information
`
`sent to a UE includes both a scheduling grant and TPC information. Id. ¶ 12.
`
`Khan’s scheduling grant allows the system to manage resources for wireless
`
`units (UEs) to transmit information. Id. ¶¶ 33–35. Khan discloses sending
`
`information to a UE using a “Forward MAC Channel” composed of “Walsh
`
`Channels,” each identified by a “MACIndex value.” Id. ¶¶ 40, 47.
`
`1. Power control process that depends on whether accumulation is enabled
`
`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. 1004, 1:60–65, 7:23–27. Petitioner asserts that because Zeira’s
`
`second station (the UE) receives a plurality of power commands, a person of
`
`skill would have understood that it also receives an indication of whether
`
`accumulation of TPC commands is enabled. Pet. 25 (citing Ex. 1002 ¶¶ 107–
`
`108).
`
`Krishnan discloses that “receiving terminal sends a feedback signal
`
`indicating the status of closed-loop power control, such as an enable/disable
`
`bit.” Ex. 1005, 7:43–45. Petitioner submits that Krishnan’s feedback signal
`
`“indicates that accumulation of TPC commands is enabled because such
`
`accumulation is inherent in closed-loop power control.” Pet. 26 (citing
`
`Ex. 1002 ¶ 112); see Ex. 1002 ¶¶ 110–113.
`
`Petitioner asserts that combining Krishnan’s feedback signal with
`
`Zeira’s power-control system would have amounted to using known,
`
`predictable elements according to their established functions. Pet. 26.
`
`Further, Petitioner asserts that causing Zeira’s closed-loop factor to be
`
`weighted to zero would have ceased accumulation of TPC commands.
`
`11
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`Case IPR2018-01773
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`Pet. 27–28 (citing Ex. 1004, 7:20–22, 6:4; Ex. 1002 ¶ 117). That disclosure
`
`by Zeira, continues Petitioner, would have led skilled artisans to consider
`
`Krishnan’s disclosures regarding how to use a feedback signal to enable or
`
`disable closed-loop and open-loop power control. Id. (citing Ex. 1002
`
`¶¶ 118–119). Petitioner argues further that implementing Zeira’s power-
`
`control options “would require some way to communicate to devices on a
`
`wireless network what power control scheme is being implemented,” and
`
`that using Krishnan’s feedback signal “was one of a limited number of
`
`design choices to do this and was thus ‘obvious to try’ as a means of
`
`communicating the power control scheme being used per Zeira.” Pet. 29
`
`(citing Ex. 1002 ¶ 120).
`
`Patent Owner argues “Zeira does not teach the claimed control
`
`process that depends on whether accumulation has been enabled.” Prelim.
`
`Resp. 28. 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 29–30. 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
`
`process.”11 Id. at 30–31. As discussed above, the Office’s prior
`
`determination appears to have been in error.
`
`
`
`11 Patent Owner additionally points out that the Petition does not rely on
`Khan to teach the recited conditional control process. Prelim. Resp. 33–36.
`Petitioner relies on Zeira and Krishnan in this regard, so Patent Owner’s
`argument regarding Khan is inapposite.
`
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`
`Patent Owner further argues that “Krishnan also does not teach the
`
`specific control process recited in the claims.” Id. at 31–33. According to
`
`Patent Owner, “Krishnan describes controlling closed loop power and open
`
`loop power based on whether interference is detected not based on whether
`
`or not accumulation has been enabled as recited in the claims of the ’828
`
`patent.” Id. at 31–32. That argument, however, ignores that the claims do not
`
`restrict how a system performing the claim decides when to send an
`
`“indication of whether accumulation of transmit power control (TPC)
`
`commands is enabled” or which operational mode the indication triggers
`
`when sent. Thus, that Krishnan discloses using detected interference to
`
`trigger an indication of open/closed-loop operation does not bear on the
`
`claim. Based on the present record, Petitioner shows that Krishnan uses an
`
`indication (its feedback signal) to inform a UE whether to operate with
`
`open- or closed-loop power control, as described above.
`
`Patent Owner argues further that Krishnan’s feedback signal controls
`
`open/closed-loop operation, but does not necessarily indicate whether
`
`accumulation of TPC commands is enabled, because “[c]losed-loop power
`
`controls may be configured in numerous ways and may not include the
`
`accumulation of TPC commands.” Id. at 32. As an example, Patent Owner
`
`states that “a transmit power may be calculated after a single TPC command
`
`has been received.” Id. at 32–33 (citing Ex. 1001, 2:25–28, 6:31–38). Patent
`
`Owner’s argument fails for two reasons. First, Petitioner asserts a
`
`combination where Krishnan’s feedback signal controls Zeira’s operation, so
`
`whether the feedback signal necessarily controls accumulation of TPC
`
`commands in Krishnan is inapposite. Second, the example Patent Owner
`
`provides, in which the initial TPC command in closed-loop operation causes
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`transmit-power recalculation, does not mean that accumulation is not
`
`enabled. At most, Patent Owner’s example states that “accumulation may
`
`not occur,” which is not the same as accumulation not being enabled.
`
`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 (and whether TPC
`
`commands are accumulated), that Krishnan teaches a feedback signal to
`
`control whether a UE operates in open- or closed-loop power control, and
`
`that skilled artisans would have had reason to combine the teachings of
`
`Krishnan and Zeira as asserted.
`
`2. Single physical channel
`
`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,” and that skilled artisans would have understood that
`
`such a “dedicated channel” could have been a single physical channel.
`
`Pet. 34–35 (citing Ex. 1002 ¶ 131; Ex. 1004, 4:10–14, 4:31–34; Fig. 3).
`
`Petitioner further relies on Khan disclosing “that a single physical
`
`downlink channel may include both TPC commands and such an allocation
`
`of a scheduled uplink resource.” Id. at 35 (citing Ex. 1002 ¶¶ 138–140). In
`
`particular, Petitioner submits that skilled artisans “would recognize that
`
`‘scheduling grants’ are an ‘allocation of a scheduled uplink resource’
`
`because they designate a particular time or rate at which a UE may transmit
`
`on the uplink.” Id. at 36 (citing Ex. 1002 ¶ 137; Ex. 1006 ¶¶ 33, 35). Further,
`
`Petitioner relies on Khan’s disclosures that a UE may be allocated a
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`particular physical channel (a “Walsh channel” identified by a “MACIndex
`
`value”) carrying a scheduling grant and a TPC bit. Id. at 36–38 (citing
`
`Ex. 1006 ¶¶ 40, 45, 47, Fig. 5; Ex. 1002 ¶¶ 138–141).
`
`Finally, Petitioner submits that it would have been obvious to
`
`combine Khan’s single physical channel, used to carry an allocation of a
`
`scheduled uplink resource and a TPC command, with Zeira’s power-control
`
`system, because doing so would have been using predictable, known
`
`elements according to their established functions. Id. at 38. Petitioner notes
`
`that Zeira discloses that UE transmits “in the appropriate time slots and
`
`codes of the assigned resource units” but does not specify how such resource
`
`units are assigned to the UE. Id. at 38–39 (quoting ex. 1004, 2:62–63, 6:63–
`
`65). Zeira’s reference to “assigned resource units” would have motivated
`
`skilled artisans to seek out Khan, according to Petitioner, by indicating “that
`
`Zeira contemplates some scheduling function located at the receiving station
`
`that allocates such resources for uplink transmission.” Id. at 39 (citing
`
`Ex. 1002 ¶¶ 142; Ex. 1006, Abstract).
`
`At this stage, Patent Owner does not contest Petitioner’s contentions
`
`regarding the single physical channel. 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. 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, Krishnan,
`
`and Khan.
`
`15
`
`

`

`Case IPR2018-01773
`Patent 8,897,828 B2
`
`
`D. OBVIOUSNESS OVER ZEIRA, KRISHNAN, KHAN, AND ANDERSSON
`
`Petitioner asserts that a combination of Zeira, Krishnan, Khan, and
`
`Andersson renders obvious claims 2, 9, 16, 23, 30, and 37. Pet. 62–67. At
`
`this time Patent Owner does not contest Petitioner’s assertions regarding
`
`Andersson. At this time and on this record, we are persuaded that a skilled
`
`artisan would have understood the benefit offered from using Andersson’s
`
`teachings, and would have applied those teachings to the combination of
`
`Zeira, Krishnan, and Khan to achieve that benefit. Petitioner has shown a
`
`reasonable likelihood of prevailing with respect to the combination of Zeira,
`
`Krishnan, Khan, and Andersson.
`
`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 claims 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.
`
`Accordingly, it is:
`
`IV. ORDER
`
`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.
`
`
`
`16
`
`

`

`Case IPR2018-01773
`Patent 8,897,828 B2
`
`PETITIONER:
`
`Robert Hilton
`rhitlon@mcguirewoods.com
`
`George Davis
`gdavis@mcgruirewoods.com
`
`PATENT OWNER:
`
`Byron Pickard
`Bpickard-ptab@sternekessler.com
`
`Lestin Kenton
`Lkenton-ptab@sternekessler.com
`
`Tim Tang
`Ttang-ptab@sternekessler.com
`
`Daniel Block
`Dblock-ptab@sternekessler.com
`
`Tyler Dutton
`Tdutton-ptab@sternekessler.com
`
`James Hietala
`jhietala@intven.com
`
`Russell Rigby
`rrigby@intven.com
`
`Time Seeley
`tims@intven.com
`
`
`17
`
`

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