UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`IPR2019-01116
`Patent 7,016,676 B2
`
`
`_________________
`
`
`PETITIONER’S REPLY TO
`PATENT OWNER’S RESPONSE TO PETITION
`
`
`
`
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`IPR2019-01116
`Patent 7,016,676 B2
`
`
`_________________
`
`
`PETITIONER’S REPLY TO
`PATENT OWNER’S RESPONSE TO PETITION
`
`
`
`
`
`IPR2019-01116
`Patent 7,016,676
`
`TABLE OF CONTENTS
`
`Page(s)
`EXHIBIT LIST ......................................................................................................... iv
`I.
`INTRODUCTION ........................................................................................... 1
`II. UNILOC OFFERS NO EXPERT,
`RELIES ON ATTORNEY ARGUMENT ....................................................... 1
`III. UNILOC OFFERS NO COMPETING POSITA PROPOSAL ....................... 2
`IV. CLAIM CONSTRUCTION ............................................................................ 2
`A. Uniloc Does Not Offer Complete Construction of
`“Stations Which Operate In Accordance With A First Radio
`Interface Standard And/Or A Second Radio Interface Standard” ........ 2
`Uniloc’s Construction Of
`1.
`“Radio Interface Standard” As A
`“Complete Specification” Is Incomplete And Unsupported ....... 3
`The Board Did Not Construe “Radio Interface Standard” ......... 6
`2.
`Uniloc’s Bluetooth Argument Is A Red Herring ........................ 7
`3.
`V. UNILOC’S COMPARISON OF
`HOMERF’S DISCLOSURE TO THE CLAIMS IS FAULTY ...................... 8
`A. Uniloc Omits “In Accordance With” Claim Language ........................ 8
`HomeRF Closely Tracks
`1.
`’676 Patent’s Primary Embodiment .......................................... 10
`Both HomeRF And ’676 Patent
`Adapt Existing Radio Interface Standards ................................ 13
`3. Main Difference Between ’676 Patent’s Two
`Radio Interface Standards – Their Access Mechanism –
`Is Mirrored In HomeRF’s Two Radio Interface Standards ...... 14
`
`2.
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page i
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`IPR2019-01116
`Patent 7,016,676
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`B. HomeRF Control Point Provides “Alternate Use”
`Of Common Frequency Band, “Controls Access To
`The Common Frequency Band For Stations Working
`In Accordance With The First Radio Interface Standard” .................. 14
`C. HomeRF References Teach Making Access Available
`To Second Radio Interface Standard Stations Access “If”
`First Radio Interface Standard Stations Do Not Request It ................ 16
`VI. PETITION DEMONSTRATES THAT HOMERF
`REFERENCES WERE PUBLICLY AVAILABLE PRIOR ART ............... 23
`VII. LANSFORD TEACHES OR SUGGESTS AT LEAST THE
`NON-CONDITIONAL STEPS OF THE CLAIMED METHOD ................. 24
`VIII. CONSTITUTIONALITY .............................................................................. 27
`IX. CONCLUSION .............................................................................................. 28
`CERTIFICATE OF COMPLIANCE ....................................................................... 29
`
`
`
`Petitioner’s Reply To Patent Owner’s Response To Petition
`
`Page ii
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`
`
`TABLE OF AUTHORITIES
`
`IPR2019-01116
`Patent 7,016,676
`
`Page(s)
`
`Cases
`Arthrex, Inc. v. Smith & Nephew, Inc.,
`Case No. 2018-2140, 953 F.3d 760 (Fed. Cir. March 23, 2020) ......................... 27
`Cybersettle, Inc. v. Nat’l Arbitration Forum, Inc.,
`243 F.App’x 603 (Fed. Cir. 2007) ........................................................................ 26
`Elbit Sys. of Am., LLC v. Thales Visionix, Inc.,
`881 F.3d 1354 (Fed. Cir. 2018) .............................................................................. 2
`Icon Health & Fitness, Inc. v. Strava, Inc.,
`849 F.3d 1034 (Fed. Cir. 2017) .............................................................................. 2
`Inwood Labs., Inc. v. Ives Labs., Inc.,
`456 U.S. 844 (1982) ............................................................................................... 1
`Trs. of Columbia Univ. v. Illumina, Inc.,
`620 Fed. Appx. 916 (Fed. Cir. 2015) ..................................................................... 1
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996) ................................................................................ 5
`
`
`
`
`
`
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page iii
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`IPR2019-01116
`Patent 7,016,676
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`EXHIBIT LIST
`LIST OF NEWLY-FILED EXHIBITS
`
`Concurrently filed with Petitioner’s Reply to Patent Owner’s Response to
`
`Petition:
`
`No.
`
`1013
`
`
`
`Description
`
`Supplemental Declaration of Peter Rysavy, including Appendix 1
`thereto, signed and dated May 19, 2020 (“Rysavy Supp.”)
`
`LIST OF PREVIOUSLY FILED EXHIBITS
`
`1002
`
`1003
`
`Description
`No.
`1001 U.S. Patent No. 7,016,676, “METHOD, NETWORK AND
`CONTROL STATION FOR THE TWO-WAY ALTERNATE
`CONTROL OF RADIO SYSTEMS OF DIFFERENT
`STANDARDS IN THE SAME FREQUENCY BAND,” issued
`March 21, 2006 (the “’676 patent”)
`File History for U.S. Patent No. 7,016,676, Application No.
`10/089,959 (“’676 FH”)
`Plaintiff’s “Disclosure of Asserted Claims And Infringement
`Contentions”, dated January 4, 2019, and including Exhibit A
`thereto (“UNILOC Contentions”)
`1004 Declaration of Peter Rysavy, including Appendix 1 thereto, signed
`and dated May 29, 2019 (“Rysavy”)
`Excerpts of “Webster’s New World College Dictionary, 4th
`Edition”, © 1999 by Macmillan USA (“Webster’s”)
`“HomeRF: Wireless Networking for the Connected Home”, by
`Kevin J. Negus et al., IEEE Personal Communications, Vol. 7,
`Issue 1, pgs. 20-27, Feb. 2000 (“HomeRF”)
`
`1005
`
`1006
`
`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page iv
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`IPR2019-01116
`Patent 7,016,676
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`1009
`
`1008
`
`Description
`No.
`1007 Declaration of Gerard P. Grenier, including Exhibit A thereto,
`signed and dated February 22, 2019 (“Grenier Dec.”)
`“HomeRF: Bringing Wireless Connectivity Home”, by
`Jim Lansford, Technical Committee Chair for the Home RF
`Working Group, March 9, 1999 (“HomeRF Tutorial”)
`“HomeRF™ Working Group 3rd Liaison Report”, by Tim Blaney
`of Commcepts, July 1998 (“HomeRF Liaison Report”)
`1010 Declaration of Christina Boyce, including Exhibits A-D thereto,
`signed and dated March 11, 2019 (“Boyce Dec.”)
`1011 Declaration of Rene DelaRosa, including Exhibits A and B thereto,
`signed and dated May 28, 2019 (“DelaRosa Dec.”)
`1012 U.S. Patent No. 6,937,158, “METHOD AND APPARATUS FOR
`WIRELESS COMMUNICATION BETWEEN ELECTRONIC
`DEVICES,” filed December 29, 1999 and issued August 30, 2005
`(“Lansford”)
`
`
`
`
`
`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page v
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`IPR2019-01116
`Patent 7,016,676
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`I.
`
`INTRODUCTION
`Uniloc’s Patent Owner Response to Petition (Paper 11, “POR”) seeks to
`
`rewrite the claims of the ’676 patent, and even to rewrite the record in an attempt to
`
`distinguish prior art that either expressly recites or clearly teaches the combined
`
`elements of the challenged claims.
`
`II. UNILOC OFFERS NO EXPERT,
`RELIES ON ATTORNEY ARGUMENT.
`In its Petition (“Pet.”), Petitioner proffered the expert testimony of Peter
`
`Rysavy (“Rysavy”), establishing his credentials. Mr. Rysavy was subject to cross-
`
`examination, and his credentials are subject to the Board’s scrutiny.
`
`Rather than cross-examine him, Uniloc’s Response relies on attorney
`
`argument to rebut Mr. Rysavy’s conclusions. Uniloc offers no expert. Mr. Rysavy
`
`testified as a sworn declarant subject to cross-examination; Uniloc’s attorneys
`
`cannot. Mr. Rysavy’s qualifications and the evidentiary basis for his conclusions are
`
`both clearly established.
`
`It is the PTAB’s province to weigh the credibility of witnesses. See Trs. of
`
`Columbia Univ. v. Illumina, Inc., 620 Fed. Appx. 916, 922 (Fed. Cir. 2015); Inwood
`
`Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 856 (1982). This includes weighing
`
`relative merits of expert testimony and mere attorney argument. Petitioner’s
`
`admissible expert evidence cannot be rebutted by Uniloc’s unsworn attorney
`
`argument. Elbit Sys. of Am., LLC v. Thales Visionix, Inc., 881 F.3d 1354, 1359 (Fed.
`
`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 1
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`
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`IPR2019-01116
`Patent 7,016,676
`Cir. 2018); Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed.
`
`Cir. 2017).
`
`III. UNILOC OFFERS NO COMPETING POSITA PROPOSAL
`Petitioner agrees with the Board’s adopting Petitioner’s articulation of a
`
`POSITA from the Petition, while removing the words “or more.” (Paper 8,
`
`“Decision.”) Petitioner’s arguments for unpatentability are unaffected by this
`
`change. Ex. 1013, Supplemental Declaration of Peter Rysavy (“Rysavy Supp.”),
`
`¶¶9-11.
`
`Uniloc offers no competing proposal.
`
`IV. CLAIM CONSTRUCTION
`A. Uniloc Does Not Offer Complete Construction of
`“Stations Which Operate In Accordance With A First Radio
`Interface Standard And/Or A Second Radio Interface Standard.”
`The Board found that construction of the phrase “stations which operate in
`
`accordance with a first radio interface standard and/or a second radio interface
`
`standard” was not necessary because “all references applied by the Petitioner
`
`disclose radio interface standards.” Decision, 12. Petitioner agrees.
`
`The POR argues for:
`
`[A] construction to clarify that “a radio interface standard”
`constitutes a complete specification for a radio interface,
`and not merely a characteristic of a specification … is
`required here.
`POR, 9. This construction is flawed.
`
`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 2
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`IPR2019-01116
`Patent 7,016,676
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`1.
`
`Uniloc’s Construction Of
`“Radio Interface Standard” As A
`“Complete Specification” Is Incomplete And Unsupported.
`Uniloc’s construction should be rejected. It: a) ignores a portion of the phrase
`
`entirely; b) inserts words that are not supported by the ’676 patent claims or
`
`specification; and (c) would revise the claims to not read on the primary embodiment
`
`described in the specification. Rysavy Supp., ¶13.
`
`First, the phrase “radio interface standard” is part of a larger phrase, bringing
`
`important context. Claim 1 requires “stations which operate in accordance with a
`
`first radio interface standard and/or a second radio interface standard.” Nothing in
`
`the ’676 patent’s specification or claims requires that to “operate ín accordance with”
`
`a standard these stations implement a “complete” radio interface standard, and a
`
`POSITA would not have understood the claims to be so limited. Rysavy Supp., ¶14.
`
`Second, in discussing its embodiments, the ’676 patent does not provide a
`
`plausible mechanism for stations implementing two different “complete” standards
`
`to alternate usage of a common frequency band. The ’676 patent uses the example
`
`of HiperLAN/2 and IEEE 802.11a standard stations, describing an “advantageous
`
`embodiment as claimed in claim 2” (NOTE: application claim 2 issued into claim 1)
`
`with HiperLAN/2 as the first radio interface standard and a “control station” sending
`
`control information releasing the frequency band for IEEE 802.11a second radio
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 3
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`Patent 7,016,676
`interface standard stations. Rysavy Supp., ¶15, citing ’676 patent, 3:15-19; see
`
`generally id., 2:63-3:19.
`
`The IEEE 802.11a specification, however, makes no provision for its stations
`
`sending or receiving such control information. Instead, its protocol assumes that
`
`stations can transmit if the medium is clear, based on a mechanism called Carrier
`
`Sense Collision Avoidance/Multiple Access (CSMA/CA), which the ’676 patent
`
`itself describes, e.g., at 1:43-59; see Rysavy Supp., ¶16.
`
`In this claimed embodiment, the ’676 describes that the control station [which
`
`sends control information] “performs the function of the [HiperLAN/2] central
`
`controller” (’676 patent, 2:63-3:6), not an IEEE 802.11a point coordinator. Making
`
`IEEE 802.11a stations being able to recognize “control information” that results in
`
`the “release of the common frequency band for the second radio interface” would
`
`require changes to their implementation of the IEEE 802.11a specification to
`
`recognize such a controller. Rysavy Supp., ¶¶17-18, citing ’676 patent, 3:15-19, 33-
`
`38; 5:42-48.
`
`A POSITA would have understood that to function in the manner described,
`
`the functionality for stations operating in accordance with the IEEE 802.11a standard
`
`would necessarily have to be modified to support receiving and responding to such
`
`a broadcast signal. The embodiment described and claimed would not function with
`
`stations implementing a “complete” version of the standard, but would instead
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 4
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`IPR2019-01116
`Patent 7,016,676
`necessarily require that the standard implementation be modified for its second radio
`
`stations. Id., ¶19.
`
`Third, not only does the specification not support Uniloc’s proposed
`
`construction, Uniloc’s construction would “read out” the primary embodiment. Id.,
`
`¶20. Such a construction is “rarely, if ever, correct.” Vitronics Corp. v.
`
`Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996). In fact, such a construction
`
`is correct only if offered in conjunction with “highly persuasive evidentiary
`
`support.” Id. Uniloc offers no such support here, relying instead on attorney
`
`argument and a misapprehension of the patent’s own specification to attempt to rebut
`
`Petitioner’s expert’s explanation of how a POSITA would understand this phrase.
`
`Finally, while the Board has concluded that construction is not necessary to
`
`find unpatentability as all references disclose radio interface standards, to the extent
`
`that the Board deems it necessary for purposes of issuing a final written decision,
`
`Petitioner’s construction of “two or more devices in a wireless network, each of
`
`which operates in a manner that is in agreement with or conforms to a first radio
`
`standard, a second radio standard, or both a first and a second radio standard, or
`
`variants thereof” (Pet., 20-22) (emphasis in original) is consistent with the ’676
`
`patent’s description of radio stations operating “in accordance with” radio interface
`
`standards.
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`
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 5
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`The Board Did Not Construe “Radio Interface Standard.”
`
`2.
`
`Uniloc argues that the Board construed that “TDMA and CSMA are radio
`
`interface standards.” POR, 13. Not so. The Board stated that it was unnecessary to
`
`construe the longer claim phrase including “radio interface standard” because “all
`
`references applied by Petitioner disclose radio interface standards.” Decision, 12.
`
`In explaining its decision, the Board states:
`
`the A-nodes (asynchronous peer-peer devices) operate in
`accordance with CSMA transmission protocol, and the I-
`node (isochronous voice devices) operate in accordance
`with TDMA transmission protocol.
`
`
`Decision, 21.
`
`The Board further cites to the declaration of Peter Rysavy, in explaining that
`
`the I-nodes operate in accordance with a first radio interface standard, and the A-
`
`nodes operate in accordance with a second radio interface standard.
`
`Decision 25, citing Rysavy, ¶97.
`
`Mr. Rysavy makes clear that these TDMA and CSMA modes of
`
`communication are derived from different radio interface standards, namely DECT
`
`and 802.11/OpenAir, respectively. See, e.g, Rysavy, ¶¶80-81, citing HomeRF, pg.
`
`23, 1:10–21.
`
`DECT, 802.11, and OpenAir are clearly all radio interface standards. Equally
`
`clearly, the DECT standard, a subset of which is used for the TDMA-based
`
`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 6
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`IPR2019-01116
`Patent 7,016,676
`isochronous voice communication for the I-nodes, is a different radio interface
`
`standard from 802.11 and OpenAir, from which the CSMA/CA service for
`
`asynchronous data communication for A-nodes, is derived. Rysavy Supp., ¶21.
`
`Against this backdrop, Petitioner understands the Board’s explanation of
`
`SWAP implementing TDMA and CSMA, e.g., in the Decision at 26 (“SWAP
`
`implements and supports two different interface standards, i.e., TDMA for I-node
`
`type devices and CSMA for A-node type devices as discussed in detail above.”), as
`
`utilizing a shorthand for the respective standards from which they are derived.
`
`Namely, first radio interface standard stations (I-nodes) communicate using a first,
`
`DECT-derived TDMA protocol, and second radio interface standard stations (A-
`
`nodes) communicate using a second, 802.11/OpenAir – derived CSMA protocol.
`
`3.
`
`Uniloc’s Bluetooth Argument Is A Red Herring.
`
`Uniloc points out that Bluetooth, like HomeRF, appears to be a “hybrid”
`
`standard that allows asynchronous and isochronous communication, but is itself “a
`
`single radio interface standard.” Uniloc further argues that construing access
`
`mechanisms that may co-exist in a single standard or may be found in multiple
`
`standards as standards themselves “would give absurd results.” POR, 14.
`
`As stated above, neither the Board nor Petitioner has argued that access
`
`schemes themselves are standards, in and of themselves. And, as the Board has
`
`already noted, “[t]hat HomeRF discloses a single hybrid SWAP interface standard
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 7
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`Patent 7,016,676
`… does not change or undermine the fact that SWAP implements and supports two
`
`different interface standards …” Decision, 26.
`
`Uniloc does not dispute that DECT, 802.11, or OpenAir are themselves
`
`complete standards. So, even were the claims to be read as requiring that the recited
`
`radio interface standards must be complete standards, DECT, 802.11, and OpenAir
`
`are, in fact, complete standards. Uniloc’s partial construction is not helpful in
`
`resolving any issues regarding the Petition’s grounds of unpatentability based on
`
`stations operating “in accordance” with these standards.
`
`V. UNILOC’S COMPARISON OF
`HOMERF’S DISCLOSURE TO THE CLAIMS IS FAULTY.
`A. Uniloc Omits “In Accordance With” Claim Language.
`Uniloc’s response glosses over what it means to operate “in accordance with”
`
`a radio interface standard, and effectively reads this language out of the claim, as
`
`explained above. Uniloc’s response states:
`
`HomeRF has incorporated portions of existing standards
`and simplified them, such that the stations operate
`according to the ‘HomeRF Shared Wireless Access
`Protocol (‘SWAP’)’ … [a]s HomeRF only uses portions
`of existing standards, and modifies
`those existing
`standards, there is no reason to believe that DECT-
`compliant devices or 802.11 compliant devices would
`operate under the HomeRF system.
`
`
`POR, 18.1
`
`
`1 Unless otherwise noted, emphasis in quoted language in this Reply is added.
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 8
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`IPR2019-01116
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`Uniloc fails to explain why “incorporat[ing] portions of existing standards”
`
`would not qualify as operating “in accordance with” those standards. Instead, Uniloc
`
`ignores the “in accordance with” claim language entirely. And, as noted, Uniloc
`
`offers no evidentiary support for its conclusions, relying solely on attorney argument
`
`to rebut Petitioner’s expert’s testimony.
`
`Uniloc argues that “HomeRF makes clear that the SWAP protocol does not
`
`employ the DECT protocol.” POR, 21. To the contrary, HomeRF expressly
`
`describes basing its MAC for delivering interactive voice communications “using a
`
`subset of the Digital Enhanced Cordless Telecommunications (DECT) standard,” as
`
`described above. HomeRF, pg. 23, 1:10-18; Rysavy Supp., ¶22.
`
`Uniloc argues that the SWAP specification “does not incorporate the existing
`
`DECT standard” and “is different from the DECT standard.” POR, 21-22. This is
`
`misleading. HomeRF describes improvements that allow combining aspects of two
`
`different access mechanisms – TDMA from the DECT standard and CSMA/CA, as
`
`described below – into a hybrid protocol that, like the ’676 patent, is designed to
`
`improve interoperability between voice and data nodes. HomeRF describes taking
`
`elements of both a first standard, DECT, and a second standard, 802.11/OpenAir to
`
`permit interoperability between voice and data nodes, much as the ’676 patent
`
`describes combining elements of HiperLAN and 802.11 to permit interoperability of
`
`its first and second radio interface standard stations. Rysavy Supp., ¶23.
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 9
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`Uniloc’s argument that because HomeRF calls all of its devices “SWAP
`
`devices,” it discloses only a single protocol, is unavailing. POR, 26. Even the
`
`sections of HomeRF quoted in the POR make clear that HomeRF’s “A-node”
`
`devices are different from its isochronous “I-node” devices. Id., quoting HomeRF,
`
`pg. 22, column 2. And, as described above, “A-nodes” and “I-nodes” operate using
`
`different protocols derived from different radio interface standards for asynchronous
`
`and isochronous data transmission. Rysavy Supp., ¶24.
`
`The balance of Uniloc’s arguments in this section appear to rehash previous
`
`arguments, and should be rejected for the reasons set forth above.
`
`1. HomeRF Closely Tracks ’676 Patent’s Primary Embodiment.
`
`HomeRF’s first and second radio interface standard stations and their
`
`interaction with the Control Point (“CP”) are remarkably similar to the ’676 patent’s
`
`primary embodiment. Rysavy Supp., ¶25.
`
`First Stations
`
`TDMA, or “time-division multiple access,” used in HomeRF to support
`
`interactive voice data for I-nodes and the CP (first radio interface standard stations)
`
`is an access mechanism which operates in accordance with a “subset of the DECT
`
`standard.” HomeRF, pg. 23, 1:10-18; Rysavy Supp., ¶¶26-27.
`
`This access mechanism described in HomeRF is similar to the medium access
`
`control for the “first radio interface standard” stations in the ’676 patent, which is
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 10
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`IPR2019-01116
`Patent 7,016,676
`described as operating in accordance with the HiperLAN/2 standard. Specifically,
`
`the ’676 patent describes HiperLAN/2’s access system, including its use of, e.g., a
`
`centrally controlled reservation-based method and repeating frame structure. Rysavy
`
`Supp., ¶28, citing ’676 patent, 2:36-42, Fig. 1. From this, a POSITA would have
`
`understood that communications among the different stations described in the ‘’676
`
`patent would be divided in time, and would constitute a TDMA type of system,
`
`similar to HomeRF. Id.
`
`Second Stations
`
`CSMA/CA, used in HomeRF to communicate with A-nodes (second radio
`
`interface standard stations), is an access mechanism that HomeRF describes as being
`
`“derived from wireless LAN standards such as IEEE802.11 and OpenAir to support
`
`the delivery of asynchronous data.” HomeRF, pg. 23, 1:18-21. Obviously, Uniloc
`
`cannot dispute that IEEE802.11 is a standard, as it is the same “second standard”
`
`cited by the ’676 patent itself. Rysavy Supp., ¶29.
`
`Uniloc does not explain why A-nodes in communication with a control station
`
`and utilizing a CSMA service derived from these wireless LAN standards, would
`
`not be considered as operating in accordance with a second radio interface standard.
`
`Rysavy Supp., ¶30.
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 11
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`CP Beacon
`
`The similarities between HomeRF and the ’676 patent’s primary embodiment
`
`are striking. Rysavy Supp., ¶31.
`
`The ’676 patent Access Point is described as controlling access to the shared
`
`band by “provid[ing] certain predefinable time intervals for the use of the first and
`
`second radio interface standard and allocat[ing] the frequency band alternately to the
`
`first radio interface standard and then to the second radio interface standard in a kind
`
`of time-division multiplex mode.” ’676 patent, 2:53-57.
`
`It both “receives the requests for capacity from the various [first interface
`
`standard] stations and assigns capacity accordingly” (id., 5:58-61) and sends out a
`
`“broadcast signal” or “broadcast message” that:
`
`
`
`“informs the stations of a time period in which the frequency
`
`band can be used by stations operating in accordance with the
`
`second radio interface standard” (id., 3:36-38); and
`
`
`
`“informs the stations 14 to 17 of the IEEE802.11 standard how
`
`long they are allowed to utilize the common frequency band”
`
`(id., 5:46-48).
`
`Rysavy Supp., ¶33.
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`Similarly, the HomeRF beacon is sent out by the CP to set forth, inter alia:
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 12
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`IPR2019-01116
`Patent 7,016,676
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`
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`the time periods that are requested by I-nodes (“first radio
`
`interface standard stations”), i.e. the DECT-based CFPs for voice
`
`communication) and
`
`
`
`contention periods for data communications with and among the
`
`A-nodes (“second radio interface standard stations”).
`
`Pet., 35-37, 41-44; Rysavy ¶¶84-87, 99-101; see generally, HomeRF, pg. 23, 2:8 –
`
`pg. 24, 2:13; Rysavy Supp., ¶32.
`
`2.
`
`Both HomeRF And ’676 Patent
`Adapt Existing Radio Interface Standards.
`Uniloc suggests that HomeRF’s application of a subset of the DECT (first
`
`radio interface) standard and adapting the 802.11 or OpenAir (second radio
`
`interface) standards does not teach or suggest “stations operating under ‘a first radio
`
`interface standard and/or a second radio interface standard’” POR, 18, 21-22. This
`
`argument, however, is at odds with the fact that the primary embodiment in the ’676
`
`patent itself requires, among other things, providing a broadcast message to “second
`
`radio interface standard” stations letting them know when “first radio interface
`
`standard” stations do not need frequency, which, as described in the claim
`
`construction section above is a modification to existing standards that allows
`
`stations communicating using different standards to make use of otherwise unused
`
`transmission capacity for the common frequency band. Rysavy Supp., ¶34.
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 13
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`IPR2019-01116
`Patent 7,016,676
`3. Main Difference Between ’676 Patent’s Two
`Radio Interface Standards – Their Access Mechanism –
`Is Mirrored In HomeRF’s Two Radio Interface Standards.
`The primary difference between the ’676 patent’s first and second radio
`
`interface standard stations operating in accordance with respective standards is a
`
`difference in these standards’ respective access control mechanisms. This
`
`fundamental difference is managed by the control station, e.g., through the primary
`
`embodiment’s use of a broadcast message to announce times that are available for
`
`the second radio interface standard stations to communicate. ’676 patent, 5:38-48.
`
`Neither the ’676 patent, nor Uniloc’s response explains any other difference – other
`
`than their respective access mechanisms – between stations operating in accordance
`
`with the ’676 patent’s first radio interface standard (in the primary embodiment,
`
`HiperLAN/2) and the second radio interface standard (in the primary embodiment,
`
`IEEE802.11). Rysavy Supp., ¶35.
`
`Notably, this access method asymmetry between the ’676 patent’s first and
`
`second radio interface standard stations is mirrored in the HomeRF SWAP I-nodes
`
`and A-nodes. Rysavy Supp., ¶36, citing HomeRF, pg. 23, 1:15-24.
`
`B. HomeRF Control Point Provides “Alternate Use”
`Of Common Frequency Band, “Controls Access To
`The Common Frequency Band For Stations Working
`In Accordance With The First Radio Interface Standard.”
`Uniloc’s arguments regarding these claim limitations mix and match and take
`
`out of context a) statements and citations from the Petition addressed to different
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 14
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`IPR2019-01116
`Patent 7,016,676
`claim limitations, and b) a conditional alternative argument for obviousness in an
`
`attempt to misconstrue the assertions contained therein. When placed in context, it
`
`is clear that HomeRF teaches or suggests each of these limitations.
`
`Uniloc simply has not credibly disputed that the HomeRF control point
`
`“controls the access to the common frequency band for stations working in
`
`accordance with the first radio interface standard.” ’676 Patent, cl. 1, 6:29-31.
`
`Indeed, it cannot. HomeRF clearly describes that the CP’s beacon assigns slots
`
`during the contention-free period for each of the I-nodes that has requested
`
`communication As the Board noted, this beacon “is used to maintain network
`
`synchronization, control the format of the superframe, and manage when each node
`
`would transmit and receive data.” Decision 31, citing HomeRF, pg. 22, 1:4-5; pg.
`
`23, 2:22-25 and Pet., 41-42. HomeRF clearly teaches this element.
`
`As noted in the Petition, the HomeRF CP’s control over the first radio
`
`interface standard stations is further evidenced by its assigning slots to the various
`
`respective I-nodes during the contention period (Pet., 42-43). While this further
`
`evinces the required “control” over these nodes, the Board found that this contingent
`
`argument was not necessary, as the Petition already demonstrated that HomeRF
`
`“directly discloses” this claim limitation, for the reasons stated above. Decision, 32.
`
`Uniloc’s arguments regarding “alternate use of the common frequency band”
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`are both confusing and disingenuous. In its preliminary response, Uniloc argued that
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 15
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`Patent 7,016,676
`because “there is always a contention period in the superframe,” (Paper 7, 13)
`
`(emphasis omitted from original) and A-nodes can communicate without going
`
`through the control station, there is no control over the alternate use of the frequency
`
`band. The Board properly disposed of this argument, citing the specification of the
`
`’676 patent itself as supporting a broader reading of controlling alternate use of the
`
`frequency band as requiring only “providing alternating uses of the frequency band.”
`
`Decision, 29 (emphasis omitted from original). Clearly, the HomeRF superframe
`
`beacon defines alternating uses of the frequency band, namely a contention period
`
`(for A-node communication) and a contention-free period
`
`(for
`
`I-node
`
`communication). Nothing more is required by this claim element.
`
`Uniloc next misstates Petitioner’s argument for this limitation as relying on
`
`“variable throughput.” POR, 28-30. This is simply not the case. The Petition’s
`
`“variable throughput” discussion relates to the next claim limitation, discussed
`
`below. Uniloc’s further assertion (POR, 30-32) that the Board instituted on a ground
`
`not advanced by Petitioner is baseless.
`
`C. HomeRF References Teach Making Access Available
`To Second Radio Interface Standard Stations Access “If”
`First Radio Interface Standard Stations Do Not Request It.
`Uniloc does not dispute that HomeRF teaches that its SWAP protocol
`
`“establishes a higher priority for isochronous devices than for synchronous devices.”
`
`POR, 34. Uniloc challenges the Petition’s showing that the HomeRF CP makes
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`Petitioner’s Reply To Patent Owner’s Response To Petition
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`Page 16
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`IPR2019-01116
`Patent 7,016,676
`access available to the A-nodes “if” I-nodes do not request it. Uniloc’s two-fold
`
`challenge argues that: a) the Petition’s expert’s explanation regarding this element
`
`is based on speculation, and b) while HomeRF describes giving I-nodes “priority,”
`
`there are alternative explanations to the one provided by Petitioner’s expert for how
`
`this acknowledged priority over A-nodes is provided. POR, 39-44. Both arguments
`
`miss the mark.
`
`Uniloc first argues that Petitioner’s expert relies on speculation in setting forth
`
`HomeRF’s disclosure regarding this element. POR, 39-42. Mr. Rysavy’s testimony
`
`is not based on speculation, but rather on a tautology: the overall fixed superframe
`
`length minus the time required for a variable number of fixed length contention-free
`
`slots required for the requested voice connections (by I-nodes) and retransmissions
`
`of those I-node transmissions dictates the variable length of time available for
`
`communications in a contention period by and among data nodes (A-nodes).
`
`Because the number of requested voice connections and retransmissions of
`
`messages not properly received for those requested connections is variable, while
`
`the length of time allotted for each of t
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