UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`MICROSOFT CORPORATION,
`APPLE INC., and ERICSSON INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`IPR2019-009731
`Patent 7,075,917
`
`
`_________________
`
`
`PETITIONER’S REPLY TO
`PATENT OWNER’S RESPONSE TO PETITION
`
`
`
`
`1 Apple Inc., who filed a petition in IPR2020-00224, has been joined as a petitioner
`in this proceeding. Ericsson Inc., who filed a petition in IPR2020-00315, has been
`joined as a petitioner in this proceeding.
`
`
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`MICROSOFT CORPORATION,
`APPLE INC., and ERICSSON INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`IPR2019-009731
`Patent 7,075,917
`
`
`_________________
`
`
`PETITIONER’S REPLY TO
`PATENT OWNER’S RESPONSE TO PETITION
`
`
`
`
`1 Apple Inc., who filed a petition in IPR2020-00224, has been joined as a petitioner
`in this proceeding. Ericsson Inc., who filed a petition in IPR2020-00315, has been
`joined as a petitioner in this proceeding.
`
`
`
`IPR2019-00973
`Patent 7,075,917
`
`TABLE OF CONTENTS
`
`B.
`C.
`
`Page
`EXHIBIT LIST ........................................................................................................ iv
`I.
`INTRODUCTION ........................................................................................... 1
`II.
`LEVEL OF ORDINARY SKILL IN THE ART (“POSITA”)........................ 1
`III. TR25.835 IS PRIOR ART ............................................................................... 1
`Public Accessibility Turns On Whether Interested
`A.
`Members Of The Public Could Obtain The Information ...................... 3
`Critical Dates ......................................................................................... 4
`The 3GPP Email Listserv, Email Archives,
`And FTP Site Were Open To All, And Provided
`Multiple Ways To Freely Access TR25.835 By September 2000 ........ 5
`IV. A POSITA WOULD HAVE BEEN MOTIVATED AND ABLE TO
`
`IMPLEMENT THE TR25.835 FAST HARQ USING ABROL’S
`
`ABBREVIATED SEQUENCE NUMBERS (ELEMENT 1.3) ....................10
`A. Abrol’s Express Teaching To Use Its Improvement
`In W-CDMA Networks Is Dispositive As To Combinability ............11
`B. Abrol’s Ability To Handle Varying Channel Capacities
`Makes It Well-Suited For The TR25.835 Wireless Network .............12
`That Abrol Teaches Use Of Byte Sequence Numbers Would Not Have
`Discouraged A POSITA From Using Abrol’s Abbreviated Sequence
`Numbers When Implementing The TR25.385 Network .....................14
`The POR’s Other Arguments Do Not Change That A
`POSITA Would Have Been Motivated To Implement
`Abbreviated Sequence Numbers In the TR25.835 Network...............17
`THE PHYSICAL LAYER IN TR25.835 TESTED FOR CORRECT
`V.
`RECEPTION OF CODED TRANSPORT BLOCKS (ELEMENT 1.5).......20
`
`VI. APJS ARE PROPERLY-APPOINTED AND CONSTITUTIONAL ...........24
`
`C.
`
`D.
`
`Petitioner’s Reply to POR
`
`Page i
`
`
`
`IPR2019-00973
`Patent 7,075,917
`VII. CONCLUSION ..............................................................................................25
`CERTIFICATE OF COMPLIANCE WITH
`TYPE-VOLUME LIMITATION PURSUANT TO 37 C.F.R. § 42.24 ..................26
`
`
`
`
`
`
`
`
`
`
`
`
`Petitioner’s Reply to POR
`
`Page ii
`
`
`
`TABLE OF AUTHORITIES
`
`IPR2019-00973
`Patent 7,075,917
`
`Pages
`
`Cases
`Arthrex, Inc. v. Smith & Nephew, Inc.,
`953 F.3d 760 (Fed. Cir. March 23, 2020) (en banc) ............................................24
`In re Enhanced Sec. Research, LLC,
`739 F.3d 1347 (Fed. Cir. 2014) .............................................................................. 3
`In re Lister,
`583 F.3d 1307 (Fed. Cir. 2009) .............................................................................. 3
`Mahurkar v. C.R. Bard, Inc.,
`79 F.3d 1572 (Fed. Cir. 1996) ................................................................................ 4
`Natural Alternatives Int., Inc. v. Iancu,
`904 F.3d 1375 (Fed. Cir. 2018) .............................................................................. 5
`PowerOasis, Inc. v. T-Mobile USA, Inc.,
`522 F.3d 1299 (Fed. Cir. 2008) .............................................................................. 5
`Samsung Elecs. Co. v. Infobridge Pte. Ltd.,
`929 F.3d 1363 (Fed. Cir. 2019) .............................................................................. 3
`Tech. Licensing Corp. v. Videotek, Inc.,
`545 F.3d 1316 (Fed. Cir. 2008) .............................................................................. 4
`Board Decisions
`Hulu, LLC v. Sound View Innovations, LLC,
`IPR2018-01039, Paper 29 (P.T.A.B. Dec. 20, 2019) (precedential) ...................... 4
`Statutes
`35 U.S.C. § 102 ................................................................................................. 3, 4, 9
`35 U.S.C. § 103 ........................................................................................................25
`
`
`
`
`Petitioner’s Reply to POR
`
`Page iii
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`
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`IPR2019-00973
`Patent 7,075,917
`
`EXHIBIT LIST
`LIST OF NEWLY-FILED EXHIBITS
`
`Exhibits 1012-1033: Concurrently filed with Petitioner’s Reply to Patent Owner’s
`
`Response to Petition:
`
`No.
`1012
`
`1013
`1014
`
`1015
`1016
`1017
`
`1018
`
`1019
`
`1020
`
`1021
`
`1022
`
`Description
`ETSI LISTSERV Archives List, showing publicly archived
`3GPP listservs
`3GPP Structure and Contact (August 17, 2000 archive)
`3GPP Email Exploder/Discussion Lists (August 15, 2000
`archive)
`ETSI 3GPP List Archives (August 24, 2000 archive)
`ETSI 3GPP List Archives (October 31, 2000 archive)
`ETSI 3GPP Listserv Subscription Page for
`3GPP_TSG_RAN_WG2 (July 28, 2002 archive)
`3GPP Discussion Lists: How to Subscribe to E-mail Exploders
`(August 17, 2000 archive)
`September 25, 2000 3GPP email, as maintained in
`3GPP_TSG_RAN_WG2 Archives
`September 13, 2000 3GPP email distributing TR 25.835 v1.0.0,
`as maintained in 3GPP_TSG_RAN_WG2 Archives
`TR25.385 v1.0.0, as attached to Ex. 1020 (September 13, 2000
`email)
`September 15, 2000 3GPP email notification of upload of TR
`25.835 v1.0.0 to ftp site, as maintained in
`3GPP_TSG_RAN_WG2 Archives
`
`Petitioner’s Reply to POR
`
`Page iv
`
`
`
`No.
`1023
`
`1024
`1025
`
`1026
`1027
`
`1028
`
`1029
`
`1030
`
`1031
`
`1032
`
`1033
`
`IPR2019-00973
`Patent 7,075,917
`
`Description
`September 15, 2000 3GPP email with document list for RAN9
`conference, as maintained in 3GPP_TSG_RAN Archives
`Intentionally Left Blank - Not Used
`3GPP TSG-RAN (Radio Access Network): List of TSG-RAN
`Temporary Documents, as attached to Ex. 1023 (September 15,
`2000 email)
`Intentionally Left Blank - Not Used
`3G TS 25.201 V3.1.0 (2000-06) - 3rd Generation Partnership
`Project; Technical Specification Group Radio Access Network;
`Physical Layer - General Description (Release 1999)
`(“TS25.201”)
`WCDMA for UMTS, Holma & Toskala, Copyright 2000 (Wiley
`& Sons) (June 2000 Reprint) (“WCDMA for UMTS”)
`RFC793, Transmission Control Protocol, DARPA Internet
`Program Protocol Specification (September 1981) (“RFC793”)
`W-CDMA and cdma2000 for 3G Mobile Networks, Karim &
`Sarraf, Copyright 2002 (McGraw-Hill) (“W-CDMA and
`cdma2000”)
`Hossain et al., TCP Performance in WCDMA-Based Cellular
`Wireless IP Networks, IEEE (2000) (“Hossain”)
`Declaration of Harry Bims, PhD., signed and dated May 5, 2020
`(“Bims_Reply”)
`Declaration of Friedhelm Rodermund, signed and dated May 6,
`2020 (“Rodermund_Reply”)
`
`
`
`
`
`
`Petitioner’s Reply to POR
`
`Page v
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`
`
`IPR2019-00973
`Patent 7,075,917
`
`No.
`1001
`1002
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`LIST OF PREVIOUSLY FILED EXHIBITS
`
`
`Description
` U.S. Patent No. 7,075,917 (“the ’917 Patent”)
`
` File History of U.S. Patent No. 7,075,917
`
` Declaration of Harry Bims, PhD., signed and dated April 15, 2019
`(“Bims Decl.” or “Bims”)
` Declaration of Friedhelm Rodermund, signed and dated April 12,
`2019 (“Rodermund Decl.” or “Rodermund”)
` 3G TR 25.835 V1.0.0 (2000-09) - 3rd Generation Partnership
`Project; Technical Specification Group Radio Access Network;
`Report on Hybrid ARQ Type II/III (Release 2000)” (TR25.835)
` 3G TR 25.835 V0.0.2 (2000-08) - 3rd Generation Partnership
`Project; Technical Specification Group Radio Access Network;
`Report on Hybrid ARQ Type II/III (Release 2000), TSG-RAN
`Working Group 2 (Radio L2 and Radio L3), Sophia Antipolis,
`France, 21–15 August 2000 (TR25.835 (V0.0.2))
` U.S. Patent No. 6,507,582 “Radio Link Protocol Enhancements
`For Dynamic Capacity Wireless Data Channels,” issued January
`14, 2003 (Abrol)
`(3GPP), Technical
` 3rd Generation Partnership Project
`Specification Group (TSG) RAN; Working Group 2 (WG2);
`Radio Interface Protocol Architecture; TS 25.301 V3.2.0 (1999-
`10) (TS25.301)
` R2-001762 – “Title: Fast Hybrid ARQ Description” (TSG-RAN
`Working Group 2 (Radio L2 and Radio L3) Sophia Antipolis,
`France, 21th to 25st August 2000) (R2-001762)
` R2-001875 – “Title: Draft Report of the 15th TSG-RAN WG2
`meeting (Sophia Antipolis, France, 21-25 August 2000)” (R2-
`001875)
`
`Petitioner’s Reply to POR
`
`Page vi
`
`
`
`IPR2019-00973
`Patent 7,075,917
`
`No.
`1011
`
`Description
` Complaint for Patent Infringement, Uniloc 2017 LLC v. Microsoft
`Corp., Case No. 8:18-cv-02053 (C.D. Cal.) (Complaint)
`
`
`
`
`Petitioner’s Reply to POR
`
`Page vii
`
`
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`IPR2019-00973
`Patent 7,075,917
`
`I.
`
`INTRODUCTION
`The Patent Owner Response (Paper 9 (“POR”)) fails to overcome the showing
`
`of unpatentability made by the Petition. Each argument raised by the POR fails for
`
`the reasons discussed below, and each challenged claim should be held unpatentable.
`
`II. LEVEL OF ORDINARY SKILL IN THE ART (“POSITA”)
`
`The POR neither proposes its own definition of a POSITA, nor disagrees with
`
`the Petition’s definition. POR, 14. The Petition’s undisputed definition provides that
`
`“[t]he POSITA would have had working knowledge of the hybrid ARQ methods
`
`described in the ’917 patent and closely followed ARQ developments by 3GPP and
`
`other network standardization groups.” Petition, 28 (emphasis added) (citing ’917
`
`patent 1:5-62 and 5:13-36 (admitting TR25.835 v0.0.2 and its wireless network were
`
`“known”).
`
`III. TR25.835 IS PRIOR ART
`
`TR25.3852 “was published and freely available on 3GPP’s ftp server by
`
`September 13, 2000” and presented at a September 2000 meeting attended by 140
`
`people. Ex. 1004, ¶ 25. That is the unequivocal testimony of Friedhelm Rodermund,
`
`who had direct experience with 3GPP documents during the relevant timeframe. Id.,
`
`¶¶ 12-24. The Petition pointed to this testimony in showing that “TR25.835 (Ex.
`
`1005) was published by 3GPP in 2000 and publicly available on the 3GPP file server
`
`
`2 Reference to TR25.835 is to TR25.835 v1.0.0 (Ex. 1005), unless otherwise noted.
`
`Petitioner’s Reply to POR
`
`Page 1
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`
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`IPR2019-00973
`Patent 7,075,917
`no later than September 13, 2000,” thus qualifying as prior art under Sections 102(a)-
`
`(b). Petition, 10 (citing Ex. 1004, ¶¶ 12-25).
`
`The Institution Decision found that the Petition and cited testimony
`
`established a “reasonable likelihood that interested persons and those skilled in the
`
`art would have been able to access TR25.835, at least because notification of such
`
`document was made by way of email to interested persons.” Paper 7, 16.
`
`The wide distribution and availability of TR docs such as TR25.835 v1.0.0 is
`
`confirmed by the ’917 patent itself, which admits that the preceding version of the
`
`same document – TR25.835 v0.0.2 (Ex. 1006), published August 2000 – was
`
`“known.” ’917 patent, 1:10-15; see also id., 5:18-28. Moreover, Uniloc itself has
`
`recently touted the wide dissemination of 3GPP TR docs, submitting at oral
`
`argument in another IPR that “TR’s and TS’s are called official publications by
`
`3GPP,” and that these documents were “a set of publications that they’re [3GPP]
`
`trying to make standard and make available to the whole world.” Apple, Inc. et al. v.
`
`Uniloc 2017 LLC, IPR2019-00222, Paper 26, TR at 41:10-25. And, Uniloc does not
`
`dispute that, here, a POSITA would have “closely followed ARQ developments by
`
`3GPP and other network standardization groups.” See Petition, 28; POR, 14.
`
`Despite these admissions, Uniloc inexplicably argues that TR25.835 was not
`
`publicly accessible. In doing so, it neither cross-examined Mr. Rodermund nor
`
`submitted testimony of its own. As discussed in the following sections,
`
`Petitioner’s Reply to POR
`
`Page 2
`
`
`
`IPR2019-00973
`Patent 7,075,917
`overwhelming evidence rebuts each POR argument and shows that TR25.835 was
`
`known and readily available to skilled artisans well before both the 102(a) date
`
`(October 9, 2001) and 102(b) date (October 9, 2000).
`
`A.
`
`Public Accessibility Turns On Whether Interested
`Members Of The Public Could Obtain The Information
`“A reference is considered publicly accessible if ‘persons interested and
`
`ordinarily skilled in the subject matter or art, exercising reasonable diligence, can
`
`locate it.’” Samsung v. Infobridge, 929 F.3d 1363, 1369 (Fed. Cir. Jul. 16, 2019)
`
`(citations omitted). While they may be relevant factors, “neither cataloging nor
`
`indexing is a necessary condition for a reference to be publicly accessible.” In re
`
`Lister, 583 F.3d 1307, 1312 (Fed. Cir. 2009) (citing In re Klopfenstein, 380 F.3d
`
`1345, 1348). As noted by the Institution Decision, “even relatively obscure
`
`documents qualify as prior art so long as the public has a means of accessing them”
`
`and “[a]ccessibility goes to the issue of whether interested members of the relevant
`
`public could obtain the information if they wanted to.” In re Enhanced Sec.
`
`Research, LLC, 739 F.3d 1347, 1354 (Fed. Cir. 2014) (citations omitted) (cited by
`
`DI, Paper 7, 13). Moreover, “a petitioner need not establish that specific persons
`
`actually accessed or received a work to show that the work was publicly accessible.”
`
`Samsung Elecs. Co. v. Infobridge Pte. Ltd., 929 F.3d 1363, 1374 (Fed. Cir. 2019)
`
`Petitioner’s Reply to POR
`
`Page 3
`
`
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`IPR2019-00973
`Patent 7,075,917
`(quoted by Hulu, LLC v. Sound View Innovations, LLC, IPR2018-01039, Paper 29
`
`at 10 (P.T.A.B. Dec. 20, 2019) (precedential)).
`
`In IPR proceedings, “if the patent owner challenges a reference’s status as a
`
`printed publication, a petitioner may submit a supporting declaration with its reply
`
`to further support its argument that a reference qualifies as a printed publication.”
`
`Hulu, IPR2018-01039, Paper 29 at 15 (citing 37 C.F.R. §§ 42.2, 42.23).
`
`B. Critical Dates
`The 102(b) date is October 9, 2000. Pre-AIA Section 102(b) specifies that
`
`time bars are triggered off “the date of the application for patent in the United
`
`States.” (emphasis added). That date here is October 9, 2000, one year prior to the
`
`U.S. application filing date.
`
`The 102(a) date is October 9, 2001. Under pre-AIA 35 U.S.C. § 102(a), once
`
`a party introduces prior art published before the application date of the challenged
`
`patent, the burden of production shifts to Patent Owner to “offer evidence showing
`
`he invented the subject matter of his patent before” the prior art publication.
`
`Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1576–77 (Fed. Cir. 1996). “This requires
`
`[patent owners] to show not only the existence of [an] earlier application, but why
`
`the written description in the earlier application supports the claim.” Tech. Licensing
`
`Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008). While the ’917 patent
`
`on its face alleges priority to a German application, it is not presumed entitlement to
`
`Petitioner’s Reply to POR
`
`Page 4
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`
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`IPR2019-00973
`Patent 7,075,917
`the filing date of that German application because “neither the PTO nor the Board
`
`has previously considered priority.” See PowerOasis, Inc. v. T-Mobile USA, Inc.,
`
`522 F.3d 1299, 1305 (Fed. Cir. 2008) (considering the issue in the context of priority
`
`under Section 120); see also Natural Alternatives Int., Inc. v. Iancu, 904 F.3d 1375,
`
`1380 (Fed. Cir. 2018) (“Claims in a patent or patent application are not entitled to
`
`priority under § 120 at least until the patent owner proves entitlement to the PTO,
`
`the Board, or a federal court.”) (emphasis in original). Patent Owner has done
`
`nothing to prove entitlement to the earlier-filed German application date or some
`
`other earlier date, and the 102(a) date remains the date of application in the U.S.,
`
`October 9, 2001.
`
`C. The 3GPP Email Listserv, Email Archives,
`And FTP Site Were Open To All, And Provided
`Multiple Ways To Freely Access TR25.835 By September 2000
`In support of his testimony that 3GPP was published and freely available on
`
`3GPP’s ftp server by September 13, 2000, Mr. Rodermund explained that “as early
`
`as December 1998, 3GPP’s ftp server was freely accessible to the general public
`
`with no login, password, or membership requirement” (Ex. 1004, ¶ 18); that “3GPP
`
`working groups sent emails notifying [interested] individuals as soon as new or
`
`additional documents had been uploaded to 3GPP’s ftp server” (id., ¶ 19); and that
`
`“[b]y June 1999, 3GPP’s ftp server was well-known to persons in the cellular
`
`Petitioner’s Reply to POR
`
`Page 5
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`
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`IPR2019-00973
`Patent 7,075,917
`telecommunications industry as a source of public information regarding industry
`
`standards and technological advances” (id., ¶ 20).
`
`The POR does not contest that 3GPP uploaded TR25.835 to its ftp site, that
`
`3GPP sent out email notifications of its new documents, that the ftp site was freely
`
`accessible, or that “3GPP’s ftp server was well-known to persons in the cellular
`
`telecommunications industry.” Instead, the POR makes several unsupported
`
`arguments challenging Mr. Rodermund’s testimony that TR25.835 was freely and
`
`publicly available. Each POR arguments fails, and overwhelming evidence shows
`
`the document was publicly accessible prior
`
`to October 2000. See
`
`Rodermund_Reply,3 ¶¶ 28-30. The POR argues inter alia that:
`
`• “The Rodermund Declaration does not state that TR25.835, or a notification
`
`as to the uploading of TR25.835 to the 3GPP server, was distributed by
`
`email.” POR, 16-17; see also id., 28-29 (arguing lack of “email notifications,”
`
`and “sufficient dissemination via email notification”).
`
`• “[T]he ordinarily skilled artisan had no opportunity to receive an email
`
`notification of the upload of TR25.835 to the 3GPP ftp server ….” Id., 29.
`
`
`3 Ex. 1033, Supplemental Declaration of Friedhelm Rodermund, signed and dated
`
`May 6, 2020 (hereinafter “Rodermund_Reply”).
`
`
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`Petitioner’s Reply to POR
`
`Page 6
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`
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`IPR2019-00973
`Patent 7,075,917
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`•
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`A lack of indexing (POR, 25).4
`
`The evidence proves these arguments wrong and shows that any interested
`
`member of the public could easily sign up for emails distributed by the 3GPP listserv,
`
`that the 3GPP maintained these emails in a publicly-accessible archive, that specific
`
`emails providing direct access to TR25.835 v1.0.0 were sent and archived in
`
`September 2000, and that another email specifically linked TR25.835 v1.0.0 to the
`
`document name RP-000416.
`
`First, regardless of 3GPP/ETSI membership, anyone could easily subscribe to
`
`and access the 3GPP email listservs (aka “exploders”) relating to the technology
`
`discussed in TR25.835. Rodermund_Reply, ¶¶ 6-10, 15-19. A POSITA would have
`
`known, through TR25.835 v0.0.2 or the ETSI/3GPP staff or both, that the relevant
`
`3GPP working group was TSG RAN Working Group 2. See ’917 patent, 1:10-15
`
`(noting “TSG-RAN Working Group 2” in describing TR25.835 v0.0.2 as “known”);
`
`see also Ex. 1006, 1 (noting TSG-RAN Working Group 2); Rodermund_Reply,
`
`¶¶ 11-12. A POSITA also would have known that the relevant email listservs were
`
`3GPP_TSG_RAN_WG2 and 3GPP_TSG_RAN. Rodermund_Reply, ¶¶ 11-13. That
`
`
`4 The arguments against distribution at a September 2000 conference (POR, 30-31)
`
`also fail, but regardless TR25.385 was publicly available independent of distribution
`
`at that conference.
`
`Petitioner’s Reply to POR
`
`Page 7
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`
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`IPR2019-00973
`Patent 7,075,917
`these exploders were well-known is confirmed by the fact that each had over 800
`
`subscribers by late October 2000. Rodermund_Reply, ¶ 14; see also Exs. 1015-16.
`
`Given the clear renown, public availability, and ease of access to the 3GPP email
`
`listserv (aka “exploders”), a POSITA interested in HARQ technology would have
`
`located and easily subscribed to the TSG_RAN_WG and TSG_RAN_WG2 email
`
`archives, which were open to anyone. Rodermund_Reply, ¶¶ 15-16.
`
`Second, the POSITA also would have easily located TR25.835 because 3GPP
`
`emailed interested individuals both an attached copy of that document and notice
`
`that the document had been placed on the public ftp server in September 2000, and
`
`those emails were thereafter maintained on the easily-accessible email archive.
`
`Specifically, on September 13, 2000, TR 25.835 v1.0.0 was shared as an attachment
`
`to another exploder email. Exs. 1020-21; Rodermund_Reply, ¶ 21. On September
`
`15, 2000, another email was sent out via the RAN2 exploder, announcing the upload
`
`of TR.25.835 v1.0.0 to the 3GPP ftp server and providing a specific link to its
`
`location. Ex. 1022; Rodermund_Reply, ¶ 22. Each email specifically mentioned
`
`TR25.835 in its subject line. Exs. 1020, 1022.
`
`Third, 3GPP sent an email clearly linking the document named RP-000416 to
`
`TR25.835 v1.0.0. Exs. 1023, 1025; Rodermund_Reply, ¶¶ 23-26. Thus, a POSITA
`
`would have had knowledge sufficient to easily locate TR25.835 v1.0.0 on the 3GPP
`
`FTP server and there would have been no problem of indexing.
`
`Petitioner’s Reply to POR
`
`Page 8
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`
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`IPR2019-00973
`Patent 7,075,917
`In sum, TR25.835 was publicly accessible to a POSITA no later than
`
`September 2000, at least because a POSITA could have easily signed up for the
`
`relevant email exploders, was motivated to do so given interest in Hybrid ARQ and
`
`related technologies, and in September 2000 would have received separate emails
`
`(i) providing a copy of TR25.835, (ii) announcing that TR25.835 was available on
`
`the FTP site, along with a link, and (iii) correlating TR25.835 v1.0.0 to document
`
`RP-000416 on the ftp site. Rodermund_Reply, ¶¶ 28-30; Exs. 1020-23; see also
`
`Rodermund_Reply, ¶¶ 5-27; Exs. 1012-1019. Any one of these emails, alone, rebuts
`
`the POR arguments and confirms the Petition’s showing that TR25.835 was
`
`accessible to the public. Together, they leave no doubt. As put by Mr. Rodermund,
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`“for somebody interested in HARQ functionality and similar radio layer
`
`technologies, TR 25.835 v1.0.0 (Ex. 1005) would have been easily locatable and, in
`
`fact quite hard to miss, in September 2000.” Rodermund_Reply, ¶ 31; see also
`
`Bims_Reply, ¶ 11.5
`
`Thus, as publicly accessible to a POSITA by September 2000, TR25.835 is
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`prior art under both Section 102(b) (published before October 9, 2000) and under
`
`Section 102(a) (published before October 9, 2001).
`
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`5 Ex. 1032, Reply Declaration of Harry V. Bims, dated May 5, 2020 (hereinafter
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`“Bims_Reply”).
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`Petitioner’s Reply to POR
`
`Page 9
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`
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`IPR2019-00973
`Patent 7,075,917
`IV. A POSITA WOULD HAVE BEEN MOTIVATED AND ABLE TO
`IMPLEMENT THE TR25.835 FAST HARQ USING ABROL’S
`ABBREVIATED SEQUENCE NUMBERS (ELEMENT 1.3)
`The POR argues several scattershot reasons why the Petition allegedly does
`
`not establish a POSITA would have implemented the TR25.835 fast HARQ system
`
`using abbreviated sequence numbers, in satisfaction of Element 1.3. POR, 31-38.
`
`Notably, the POR submits no expert testimony or other evidence to rebut the
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`Petition’s showing. Id. And Patent Owner did not cross-examine Petitioner’s expert.
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`Thus, the only testimony of record is uncontroverted that a POSITA would have
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`been motivated to implement the TR25.835 network using the claimed abbreviated
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`sequence numbers. Bims, ¶¶ 80-86.6
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`Ironically, while accusing the Petition of not “consider[ing] the Abrol
`
`reference as a whole” (POR, 32), the POR itself focuses myopically on limited
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`aspects of Abrol without accounting for its broader teachings. Abrol’s techniques
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`“minimize[d] the overhead inherent in the error control protocol” of wireless
`
`communications. Abrol, 1:10-11. Abrol expressly teaches that its “efficient
`
`transmission” techniques are broadly “applicable to any communication system
`
`employing transmission of a byte stream over a wireless channel,” including W-
`
`CDMA, the Layer 1 technology used in the TR25.385 network. Abrol, 3:24-38;
`
`
`6 Ex. 1003, Declaration of Harry V. Bims, dated April 19, 2019 (hereinafter “Bims”).
`
`Petitioner’s Reply to POR
`
`Page 10
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`
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`IPR2019-00973
`Patent 7,075,917
`Petition, 44-45. These and other Abrol teachings would have motivated a POSITA
`
`to implement TR25.835 using abbreviated sequence numbers. Bims, ¶¶ 80-86;
`
`Bims_Reply, ¶¶ 12-35.
`
`A. Abrol’s Express Teaching To Use Its Improvement
`In W-CDMA Networks Is Dispositive As To Combinability
`Abrol expressly teaches that its solution is “applicable to systems such as …
`
`W-CDMA,” which just like TR25.385 was part of the 3GPP standardization efforts.
`
`Petition, 44-45 (citing Abrol, 3:32-36); Bims, ¶ 83; see also Abrol, 2:42-46 (noting
`
`ETSI publication on “wideband CDMA” aka “W-CDMA”); TR25.835, 3 (noting
`
`ETSI as a 3GPP partner); Rodermund, ¶ 1 (noting “standards activities carried out
`
`by [3GPP] and [ETSI]”). The Petition explained how this relationship provided a
`
`“specific motivation to apply [Abrol’s] teachings (and gain its benefits) in the fast
`
`HARQ implementation of TR25.835.” Petition, 44-45; Bims, ¶ 83.
`
`A POSITA knew that Layer 1 of the TR25.385 network was “‘based on
`
`WCDMA technology.’” Bims_Reply, ¶ 13 (quoting Ex. 1027, 6); see also id., ¶ 14;
`
`Ex. 1027, 8 (describing the Layer 1 access scheme as “often denoted as Wideband
`
`CDMA (WCDMA)”) (parenthetical in original); Ex. 1028, 1; Abrol, 2:40-46. As
`
`explained by Petitioner’s expert, WCDMA was part of the UTRAN used in the
`
`TR25.835 network. Bims_Reply, ¶ 15; compare Ex. 1028, 1 (“[w]ithin 3GPP,
`
`Petitioner’s Reply to POR
`
`Page 11
`
`
`
`IPR2019-00973
`Patent 7,075,917
`WCDMA is called UTRA …) with Ex. 1005, 27 (Figure 2 showing UTRAN
`
`network).
`
`Thus, Abrol expressly teaches its own applicability to W-CDMA, the Layer 1
`
`technology of the TR25.385 network. Petition, 44-45 (citing Abrol, 3:32-36); Bims,
`
`¶ 83; Bims_Reply, ¶ 16. This fact alone establishes that a POSITA would have been
`
`motivated and able to implement Abrol’s abbreviated sequence numbers in the
`
`TR25.835 network.
`
`B. Abrol’s Ability To Handle Varying Channel Capacities
`Makes It Well-Suited For The TR25.835 Wireless Network
`The POR suggests, without any evidentiary support, that Abrol’s focus on
`
`networks with varying channel capacity would somehow discourage a POSITA from
`
`using its teachings in the TR25.835 network. POR, 32 (citing Abrol, Abstract); see
`
`generally POR, 32-35. This is wrong, not only because Abrol expressly teaches use
`
`with WCDMA networks (supra Section IV.A), but also because a POSITA would
`
`have known that the TR25.835 network had varying channel capacity, similar to
`
`all wireless networks (Bims_Reply, ¶ 17). This is reflected in the common channels
`
`employed by such networks, such as the DSCH channel, that had “variable bit rate
`
`on a frame-by-frame basis.” Ex. 1028, 77; see also Bims_Reply, ¶ 18. In fact,
`
`TR25.385 states that “Fast HARQ is planned to be employed on DSCH” (TR25.835,
`
`27 § 7.2) (emphasis added), which a POSITA would have understood was a variable-
`
`Petitioner’s Reply to POR
`
`Page 12
`
`
`
`IPR2019-00973
`Patent 7,075,917
`rate channel (e.g., Ex. 1028, 77; Bims_Reply, ¶ 18; see also Abrol, 3:29-37
`
`(indicating, by context, that WCDMA had “varying channel capacities”).
`
`Accordingly, even if a POSITA mistakenly understood Abrol as applying only to
`
`wireless networks of varying capacity, she still would have been motivated to
`
`implement Abrol’s abbreviated sequence numbers in the TR25.835 network.
`
`Bims_Reply, ¶¶ 19-21.
`
`Additionally, Abrol is not limited to varying channel capacity networks, but
`
`rather states that it is “applicable to any communication system employing
`
`transmission of a byte stream over a wireless channel.” Abrol, 3:24-38 (emphasis
`
`added) (cited by Petition, 44-45); Bims_Reply, ¶ 19. The POR neither challenges
`
`this statement of broad applicability nor questions that TR25.835 describes a system
`
`that transmits a byte stream over a wireless channel. Thus, regardless of channel
`
`capacity variance, a POSITA would have recognized the “benefit of ‘minimizing the
`
`overhead inherent’ in error control protocols,” as taught by Abrol. Petition, 43 (citing
`
`Abrol, 1:7-11); Bims_Reply, ¶ 20. Similarly, irrespective of channel capacity, a
`
`POSITA would have appreciated Abrol’s teachings that larger sequence numbers
`
`resulted in transmission of less data, and thus it was desirable to transmit “a fraction
`
`of the sequence number bits” whenever possible. Petition, 43 (citing Abrol 4:25-48
`
`and 9:28-33). Remarkably, the POR never disputes either of these points. This would
`
`have motivated a POSITA to implement abbreviated sequence numbers in any
`
`Petitioner’s Reply to POR
`
`Page 13
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`
`
`IPR2019-00973
`Patent 7,075,917
`wireless network employing error control such as HARQ. Infra Section IV.C
`
`(explaining Abrol details relating to byte sequence numbers).; Bims_Reply, ¶ 21.
`
`C. That Abrol Teaches Use Of Byte Sequence Numbers Would Not
`Have Discouraged A POSITA From Using Abrol’s Abbreviated
`Sequence Numbers When Implementing The TR25.385 Network
`The POR also argues that “[t]he Petition and Declaration further do not
`
`consider that Abrol teaches … adding byte sequence numbers rather than frame
`
`sequence numbers” and “do not mention whether a POSITA would be discouraged
`
`from using Abrol in TR25.835 as adding sequence numbers to constituents of packet
`
`data units would result in unnecessary and additional data processing and
`
`transmission.” POR 35-36. Notably, the POR does not allege that a POSITA actually
`
`would have been discouraged from implementing Abrol in the TR25.835 network.
`
`Nor is there any evidence supporting the allegation that Abrol would somehow cause
`
`“unnecessary and additional data processing and transmission.” POR, 35-36.7 Abrol
`
`itself never states or suggests this.
`
`
`7 Notably, a POSITA would have known that use of byte sequence numbers was
`
`perfectly acceptable for reliable transmission, as reflected by the use of byte
`
`sequence numbers in the well-known Transmission Control Protocol (“TCP”).
`
`Bims_Reply, ¶ 28; Ex. 1029, 24, 81.
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`Petitioner’s Reply to POR
`
`Page 14
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`
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`IPR2019-00973
`Patent 7,075,917
`In fact, Abrol’s solution actually reduced overall data processing and
`
`transmission by reducing transmission errors and, thus, avoiding the processing and
`
`transmission associated with additional retransmissions and lost data. Abrol, 3:52-
`
`4:24 (explaining how use of byte sequence numbers beneficially addressed
`
`problematic scenarios in which “the retransmission of the [data] segments would
`
`often fail, causing data loss, and a break in the byte stream”) and 5:13-35 (explaining
`
`why the Abrol technique helps avoid “byte stream discontinuity”); Bims_Reply,
`
`¶¶ 23-24. And, for those scenarios when channel capacity remained the same from
`
`frame-to-frame, there would be no additional transmissions required. Abrol, 7:18-
`
`23; Bims_Reply, ¶ 24. Perhaps even more importantly, by avoiding data loss and
`
`byte stream discontinuity, this solution provided the benefit of higher-quality and
`
`continuous network service to the user. Even if it had required some additional
`
`processing for certain steps, the solution’s benefits would have far outweighed that
`
`minimal cost. Bims_Reply, ¶ 24.
`
`Abrol teaches use of frame sequence numbers, or “RLP sequence numbers,”
`
`which in its preferred embodiment correspond to the first byte in the frame: “Within
`
`RLP frame 140 are a sequence number 150 and the data 100. … In an exemplary
`
`embodiment of the invention, each sequence number corresponds to the first byte of
`
`the data in the RLP frame. The sequence number carried within an RLP frame is
`
`called the RLP sequence number.” Abrol, 6:8-24 (emphasis added); see also
`
`Petitioner’s Reply to POR
`
`Page 15
`
`
`
`IPR2019-00973
`Patent 7,075,917
`Bims_Reply, ¶ 25. These frame sequence numbers are desirably shortened in at least
`
`two different ways, each of which satisfies the claimed “abbreviated sequence
`
`number.” See Petition, 46-51. As taught by Abrol, each form of shortening avoids
`
`waste by choosing the shortest sequence number possible “without impacting the
`
`performance of the protocol.” Abrol, 4:48-62; see also 4:37-39 (discussing how
`
`larger sequence numbers result in less data being transmitted); Bims_Reply, ¶¶ 26-
`
`29 (explaining forms of shortening sequence numbers). These two independent
`
`forms of shortening are now discussed in turn.
`
`In the first approach, “a shortened RLP sequence number … is equal to the
`
`byte sequence number of the first data byte in the RLP frame divided by the page
`
`size.” Abrol, 6:52-58. In the sec
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