Trials@uspto.gov
`571-272-7822
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` Paper: 8
` Date: February 5, 2021
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LENOVA HOLDING COMPANY, INC., LENOVA (UNITED STATES)
`INC., and MOTOROLA MOBILITY LLC,
`Petitioner,
`
`v.
`
`INTERDIGITAL TECHNOLOGY CORPORATION,
`Patent Owner.
`____________
`
`IPR2020-01413
`Patent 8,199,726 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, MIRIAM L. QUINN, and
`KRISTI L. R. SAWERT, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`571-272-7822
`
` Paper: 8
` Date: February 5, 2021
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LENOVA HOLDING COMPANY, INC., LENOVA (UNITED STATES)
`INC., and MOTOROLA MOBILITY LLC,
`Petitioner,
`
`v.
`
`INTERDIGITAL TECHNOLOGY CORPORATION,
`Patent Owner.
`____________
`
`IPR2020-01413
`Patent 8,199,726 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, MIRIAM L. QUINN, and
`KRISTI L. R. SAWERT, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`IPR2020-01413
`Patent 8,199,726 B2
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`I. INTRODUCTION
`Lenovo Holding Company, Inc., Lenovo (United States) Inc., and
`Motorola Mobility LLC (collectively “Petitioner”) filed a Petition for inter
`partes review of claims 1–10 and 14–18 of U.S. Patent No. 8,199,726 B2
`(Ex. 1001, “the ’726 patent”). Paper 1 (“Pet.”). InterDigital Technology
`Corporation (“Patent Owner”) filed a Preliminary Response. Paper 7
`(“Prelim. Resp.”). Institution of an inter partes review is authorized by
`statute when “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). Upon consideration of the Petition, the
`Preliminary Response, and the evidence of record, we determine that
`Petitioner has established a reasonable likelihood of prevailing with respect
`to the unpatentability of at least one claim of the ’726 patent. Accordingly,
`for the reasons that follow, we institute an inter partes review of claims 1–
`10 and 14–18 of the ’726 patent.
`
`A. Related Matters
`The parties indicate that the ’726 patent is or has been the subject of,
`or relates to, the following proceeding: InterDigital Technology
`Corporation et al. v. Lenovo Holding Company, Inc. et al., Case No. 1:19-
`cv-01590 (D. Del.) (“the underlying litigation”). Pet. 3; Paper 6, 2.
`
`B. The ’726 Patent
`The Specification of the ’726 patent relates to wireless digital
`communication systems with communication stations using code-division
`multiple access (CDMA) technology utilizing measurement techniques to
`determine downlink resource allocation. Ex. 1001, 1:12–16. The
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`’726 patent describes measuring channel quality (CQ) and signaling the
`information from user equipment (UE) to a base station. Id. at 2:27–31.
`Specifically, the ’726 patent describes “several embodiments to measure and
`signal the CQ per timeslot, or subchannel, from the UE to the base station.”
`Id. at 2:29–31. Reproduced below is Figure 2.
`
`
`
` Figure 2 shows a block diagram illustrating a UE and a base station
`for implementing channel quality measurements for downlink resource
`allocation.
`Figure 2 shows a UE with antenna 16 coupled through isolator/switch
`18 to matched filter 20, which receives a downlink signal from the base
`station through wireless interface 14. Id. at 3:21–23, 3:51–53. Power
`measurement device 22 analyzes the output of matched filter 20 to determine
`the power level of the downlink signal and outputs this power level to CQ
`determination device 28. Id. at 3:26–29. Interference measurement device
`24 is connected to a second input of CQ determination device 28. Id. at
`3:30–33. CQ determination device 28 analyzes the power level output from
`power measurement device 22 and interference level from interference
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`measurement device 24 and provides a CQ measurement to transmitter 26.
`Id. at 3:33–37.
`
`C. Illustrative Claim
`Petitioner challenges claims 1–10 and 14–18 of the ’726 patent.
`Claims 1, 6, and 14 are independent claims. Claim 1 is reproduced below.
`1. A user equipment (UE), comprising:
`a measurement device configured to take a plurality of
`measurements based on a downlink quality, wherein each of
`the plurality of measurements is taken on a respective
`downlink resource of a plurality of downlink resources;
`a channel quality determination device configured to:
`derive a first channel quality indication indicating a channel
`quality of the plurality of downlink resources; and
`derive a plurality of difference indications, each difference
`indication being between
`the first channel quality
`indication and a channel quality indication for one of the
`plurality of downlink resources; and
`a transmitting device configured to transmit at least one report
`including the first channel quality indication and the
`plurality of difference indications.
`Ex. 1001, 6:58–7:7.
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 1–10 and 14–18 are unpatentable based
`on the following grounds (Pet. 5):
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`Claim(s) Challenged
`1–10, 14–18
`1–3, 6–8, 14–16
`1–10, 14–18
`6–10
`1–10, 14–18
`1–10, 14–18
`
`Reference(s)/Basis
`Tiedemann2
`Li3
`Li, Tiedemann
`Tiedemann, Padovani4
`Li, Gesbert5
`Tiedemann, Gesbert
`
`
`35 U.S.C §
`103(a)1
`103(a)
`103(a)
`103(a)
`103(a)
`103(a)
`II. DISCUSSION
`A. Claim Construction
`In this inter partes review, claims are construed using the same claim
`construction standard that would be used to construe the claims in a civil
`action under 35 U.S.C. § 282(b). 37 C.F.R. § 42.100 (b) (2019). The claim
`construction standard includes construing claims in accordance with the
`ordinary and customary meaning of such claims as understood by one of
`ordinary skill in the art and the prosecution history pertaining to the patent.
`See id.; Phillips v. AWH Corp., 415 F.3d 1303, 1312–14 (Fed. Cir. 2005) (en
`banc).
`
`“first channel quality indication”
`Claim 1 recites “a first channel quality indication indicating a channel
`quality of the plurality of downlink resources.” Independent claims 6 and 14
`recite a similar phrase. Petitioner contends that “a first channel quality
`
`
`1 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. § 103. Because the ’726 patent has an
`effective filing date before the effective date of the applicable AIA
`amendments, we refer to the pre-AIA version of 35 U.S.C. § 103.
`2 U.S. Pat. No. 6,307,849 B1, issued Oct. 23, 2001 (Ex. 1005,
`“Tiedemann”).
`3 U.S. Pat. No. 6,947,748 B2, issued Sept. 20, 2005 (Ex. 1006, “Li”).
`4 U.S. Pat. No. 6,574,211 B2, issued June 3, 2003 (Ex. 1014, “Padovani”).
`5 U.S. Pat. No. 6,760,882 B1, issued July 6, 2004 (Ex. 1012, “Gesbert”).
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`indication indicating a channel quality of the plurality of downlink
`resources” should be construed “to encompass a channel quality indication
`providing quality information for the ‘plurality of downlink resources’ as a
`whole, and also encompass the use of a channel quality indication of one
`resource as a reference value related to the plurality.” Pet. 11 (citing
`Ex. 1003 ¶ 77).
`Claim 1 further recites “derive a plurality of difference indications,
`each difference indication being between the first channel quality indication
`and a channel quality indication for one of the plurality of downlink
`resources.” Petitioner argues that, when the two phrases are read together,
`the “claims therefore seem to distinguish between ‘a channel quality of the
`plurality’ and ‘a channel quality indication for one of the plurality,’
`suggesting that the former phrase refers to a channel quality indication
`relating to the plurality as a whole.” Id. at 11–12 (citing Ex. 1003 ¶ 78).
`Petitioner further argues that the ’726 patent “supports this view, as it
`provides two examples that employ the ‘differential’ channel quality
`encoding to which the claims are directed.” Id. at 12. Petitioner contends
`that Table 2, Alternative 8 of the ’726 patent describes reporting channel
`qualities to the base station as “[a] mean of the CQ for all timeslots (i.e., 4-5
`bits) and the difference from the mean (i.e., 1 or 2 bits) for each timeslot.”
`Id. (citing Ex. 1001, 5:38–39). Petitioner further contends that the mean of
`all channel quality values of the plurality of downlink resources relates to
`the plurality as a whole because it describes the middle point of the set
`consisting of each such channel quality. Id. (citing Ex. 1016, 891; Ex. 1003
`¶ 79). Petitioner argues that Alternative 9 of Table 2 discloses reporting
`channel qualities to the base station as “[t]he actual measured value of one
`predetermined or identified timeslot or sub-channel as a reference, and then
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`transmit the difference of the remaining timeslots from the reference
`timeslot.” Id. (citing Ex. 1001, 5:38–39) (emphasis omitted). According to
`Petitioner, the actual measured value of one predetermined or identified
`timeslot or sub-channel as a reference relates to the plurality as a whole
`because it represents a value to which each channel quality of the plurality is
`to be compared and represents a source of information that can be used to
`describe each channel quality. Id. at 12–13 (citing Ex. 1016, 1203; Ex. 1003
`¶ 80).
`
`Patent Owner disagrees with Petitioner’s proposed construction, but
`does not propose a construction for the phrase. Prelim. Resp. 3–4. In
`particular, Patent Owner argues that Petitioner’s contention “that a quality of
`one of the plurality is actually a quality of the plurality as a whole if it is
`used as a reference for other channels” lacks relevant support. Id. (citing
`Pet. 12–13; Ex. 1001, 5:39–42, Table 2, Alternative 9).
`Based on the record before us, at this juncture of the proceeding, we
`adopt Petitioner’s proposed construction. Claim 1 recites a channel quality
`determination device configured to “derive a first channel quality indication
`indicating a channel quality of the plurality of downlink resources.” The
`claim recites that the quality indication indicates “a channel quality” of the
`plurality of resources, not the channel qualities of the plurality of resources.
`Thus, at first blush, Petitioner’s assertion that a single reference point that is
`related to the quality of the whole of the resources is reasonable. Moreover,
`as pointed out by Petitioner, the only two embodiments that describe
`“differential” channel quality encoding to which the claims are directed,
`describe a reference that relates to the plurality as a whole. Patent Owner
`does not address Alternative 8 from Table 2 that Petitioner relies upon or
`explain why that embodiment of determining the mean and a difference from
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`the mean for each time slot is not descriptive of the claimed invention.
`Thus, for purposes of this decision, we determine that “a first channel
`quality indication indicating a channel quality of the plurality of downlink
`resources” should be construed “to encompass a channel quality indication
`providing quality information for the plurality of downlink resources as a
`whole, and also encompass the use of a channel quality indication of one
`resource as a reference value related to the plurality.”
`“difference indication”
`Petitioner argues that the phrase “difference indication” should be
`construed to mean “an indication of a difference” and does not require any
`particular mathematical relationship. Pet. 13. Petitioner further argues that
`“each difference indication being between the first channel quality indication
`and a channel quality indication for one of the plurality of downlink
`resources” should be construed to mean that each recited difference
`indication indicates a difference between the two recited quality indications.
`Id. Patent Owner argues that no construction is necessary for “difference
`indication” or “each difference indication being between the first channel
`quality indication and a channel quality indication for one of the plurality of
`downlink resources.” Prelim. Resp. 4–5. For purposes of this decision, we
`preliminarily adopt Petitioner’s proposed constructions.
`“receiver configured to receive . . . ”
`Dependent claim 2 recites “[t]he UE of claim 1, further comprising: a
`
`receiver configured to receive at least one subsequent downlink transmission
`associated with at least one modulation and coding set in response to the
`transmitted first channel quality indication and the plurality of difference
`indications.” Dependent claims 7 and 15 include a similar phrase.
`Petitioner contends that the phrase “should be construed to require only that
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`‘a receiver’ at the UE is configured to receive a downlink transmission
`‘associated with’ a modulation and coding set and that the transmission is
`received ‘in response to’ the first channel quality indication.” Pet. 14 (citing
`Ex. 1003 ¶ 85).
`Patent Owner argues that Petitioner impermissibly seeks “an advisory
`opinion on claim definiteness.” Prelim. Resp. 5–6. Patent Owner otherwise
`does not explain why Petitioner’s construction is erroneous or provide its
`own proposed construction. Id. We determine Petitioner’s proposed claim
`construction is reasonable, and preliminarily adopt that construction. Pet.
`13–15; Ex. 1003 ¶¶ 85–88.
`For purposes of this Decision, we need not expressly construe any
`other claim terms. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
`795, 803 (Fed. Cir. 1999) (holding that “only those terms need be construed
`that are in controversy, and only to the extent necessary to resolve the
`controversy”); see also Nidec Motor Corp. v. Zhongshan Broad Ocean
`Motor Co. Matal, 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs.
`in the context of an inter partes review).
`
`B. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved based on underlying factual
`determinations including: (1) the scope and content of the prior art; (2) any
`differences between the claimed subject matter and the prior art; (3) the level
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`of ordinary skill in the art;6 and (4) when in evidence, objective indicia of
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`
`C. Asserted Obviousness of Claims 1–10 and 14–18 over Tiedemann
`Petitioner contends claims 1–10 and 14–18 are unpatentable under
`35 U.S.C. § 103(a) as obvious over Tiedemann. Pet. 18–42. In support of
`its showing, Petitioner relies upon the declaration of Dr. Anthony Acampora.
`Id. (citing Ex. 1003).
`
`1. Tiedemann
`Tiedemann describes a system for adjusting forward traffic channel
`power allocation in a communications system. Ex. 1005, code (57). A
`mobile station (mobile) measures signal qualities (signal to interference
`ratios) of pilot channels from base stations. Id. at 3:5–8. The mobile “uses a
`ratio of the received pilot energy per chip (Ec) to total received spectral
`density, noise and signals, denoted as Ec/Io, as a measure of the quality of the
`received pilot.” Id. at 7:12, 8:50–60, Fig. 3. The signal qualities are
`
`
`6 Relying on the testimony of Dr. Anthony Acampora, Petitioner offers an
`assessment as to the level of ordinary skill in the art and the general
`knowledge of a person of ordinary skill at the time of the ’726 patent.
`Pet. 6–7 (citing Ex. 1003 ¶ 49). For example, Dr. Acampora states that a
`person having ordinary skill in the art “would have been someone with at
`least a bachelor’s degree in electrical engineering, or related field, with four
`years of experience in a relevant technical field, such as working with any
`one of a number of wireless communications systems that were known in the
`relevant time period.” Ex. 1003 ¶ 49. Patent Owner does not propose an
`alternative assessment. See generally Prelim. Resp. To the extent
`necessary, and for purposes of this Decision, we accept the assessment
`offered by Petitioner as it is consistent with the ’726 patent and the asserted
`prior art.
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`compared to a signal quality standard and the comparison results are
`reported to a system controller, indicating which of the pilot channels
`surpass the standard. Id., code (57).
`
`2. Discussion
` Claim 1 recites “user equipment.” Petitioner contends that
`Tiedemann describes examples of a mobile unit or “mobile,” which is “user
`equipment,” because it provides for the delivery of user data to a user.
`Pet. 19 (citing Ex. 1005, 4:18–5:5, 7:11–9:53, 10:64–16–19, Figs. 1, 3, 11;
`Ex. 1003 ¶ 115). Patent Owner does not contest Petitioner’s showing as to
`the above limitation. See generally Prelim. Resp.
`Claim 1 further recites “a measurement device configured to take a
`plurality of measurements based on a downlink quality.” Petitioner contends
`that Tiedemann describes that the mobile measures downlink quality of a
`number of pilot channels, and that the pilot channels are “a plurality of
`downlink resources” because each channel is transmitted in the downlink
`direction (from base station to mobile). Id. at 20 (citing Ex. 1005, code (57),
`1:67–2:4, 3:5–10, 4:47–61, 5:6–6:5, 18:6–11; Ex. 1003 ¶ 118). Petitioner
`further contends that the mobile includes a search receiver 44 that receives
`the pilot channel information and “uses a ratio of the received pilot energy
`per chip (Ec) to total received spectral density, noise and signals, denoted as
`Ec/Io, as a measure of the quality of the received pilot.” Id. (citing Ex. 1005,
`8:50–60, Fig. 3; Ex. 1003 ¶ 119). Petitioner asserts that measurements of
`“received pilot energy per chip (Ec)” and of “total received spectral density,
`noise and signals” for each pilot meets the “measurements based on a
`downlink quality,” because each is an indication of how efficiently a channel
`is capable of communicating information. Id. (citing Ex. 1007, 1:30–2:30;
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`Ex. 1003 ¶ 120). Petitioner contends that, to the extent Tiedemann’s mobile
`receiver 44 does not meet the claimed “measurement device,” it would have
`been obvious to include structures and functionality required to take the
`claimed measurements within the search receiver 44. Id. at 21–22 (citing
`Ex. 1005, 8:50–60, Fig. 3; Ex. 1003 ¶¶ 122–124). Patent Owner does not
`contest Petitioner’s showing as to the above limitation. See generally
`Prelim. Resp.
`Claim 1 further recites, “wherein each of the plurality of
`measurements is taken on a respective downlink resource of a plurality of
`downlink resources.” Petitioner asserts that Tiedemann describes that search
`receiver 44 “provides a signal strength measurement signal to the control
`processor 46 indicative of the respective pilot channels and their strengths.”
`Id. at 22 (quoting Ex. 1005, 8:50–60). Petitioner contends that a person
`having ordinary skill in the art would have understood “from this that search
`receiver 44 is taking the disclosed measurements on each ‘of the respective
`pilot channels.’” Id. at 22–23 (citing Ex. 1005, 18:6–10, Fig. 7; Ex. 1003
`¶ 125). Patent Owner does not contest Petitioner’s showing as to the above
`limitation. See generally Prelim. Resp.
`Claim 1 further recites “a channel quality determination device.”
`Petitioner contends that Tiedemann’s mobile control processor 46 is a
`channel quality determination device, because it is a device that makes
`several different determinations related to channel quality. Pet. 23 (citing
`Ex. 1005, 11:18–12:38, Fig. 5B; Ex. 1003 ¶¶ 127–130). Patent Owner does
`not contest Petitioner’s showing as to the above limitation. See generally
`Prelim. Resp.
`Claim 1 further recites, “derive a first channel quality indication
`indicating a channel quality of the plurality of downlink resources” and
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`“derive a plurality of difference indications.” Petitioner proffers two
`different “mappings” to Tiedemann, where either mapping meets the “first
`channel quality indication” and “plurality of difference indications.” Pet.
`23–31. We first address Petitioner’s first mapping (Pet. 23–25, 28–30).
`Petitioner contends that Tiedemann describes that control processor
`46 derives a three-bit data field index (I1, Is, I3) (“a first channel quality
`indication”) that identifies the pilot having the best quality (i.e., highest
`signal to interference ratio). Id. at 23 (citing Ex. 1005, 13:21–33, Fig. 6A;
`Ex. 1003 ¶ 133). Petitioner further contends that Tiedemann’s control
`processor 46 derives both the best quality pilot of the mobile’s active set and
`the three-bit data field index (I1, I2, I3) identifying that pilot, because the
`processor “would necessarily have to compare the individual Ec/Io values
`provided by the search receiver 44” to determine the pilot having the best
`quality and encode that value in the three-bit format. Id. at 24 (citing
`Ex. 1005, 8:51–60, 11:18–46, 13:41–49; Ex. 1003 ¶¶ 134–136). Petitioner
`argues that the “three-bit data field index” (I1, I2, I3) identifying the best
`quality pilot of the mobile’s active set meets the phrase as a whole, because
`it reflects a characteristic of the entire active set, i.e., the best quality, which
`Petitioner asserts is similar to how the ’726 patent describes identifying the
`mean of all channel quality values. Id. at 25 (citing Ex. 1001, 6:11–19; Ex.
`1003 ¶¶ 138–139).
`Patent Owner argues that Petitioner has failed to show that
`“Tiedemann’s ‘three-bit data field index,’ which is simply a label indicating
`the identity of an individual pilot—not a channel quality, let alone a channel
`quality of the plurality—satisfies the recited ‘first channel quality of the
`plurality.’” Prelim. Resp. 7–9. We disagree with Patent Owner’s assertion,
`on this record and for institution, that the three-bit data field index is simply
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`a label indicating the identity of an individual pilot. As pointed out by
`Petitioner, Tiedemann describes that the three-bit data field index identifies
`“the pilot having the best quality (i.e., highest signal to interference ratio).”
`Pet. 23 (citing Ex. 1005, 13:21–33, Fig. 6A; Ex. 1003 ¶ 133).
`Next, Patent Owner argues that, even if an index could qualify as a
`channel quality, “the petition fails to show that Tiedemann’s index indicates
`a channel quality ‘of the plurality.’” Prelim. Resp. 8–10. Patent Owner’s
`arguments are directed to Petitioner’s proposed construction of “a first
`channel quality indication indicating a channel quality of the plurality of
`downlink resources,” which we address above, in the claim construction
`section. At this juncture of the proceeding, we agree with Petitioner that, for
`example, the “three-bit data field index” (I1, I2, I3) identifying the best
`quality pilot of the mobile’s active set meets the phrase “as a whole because
`it reflects a characteristic of the entire active set, i.e., the best quality”
`similar to how the ’726 patent describes identifying the mean of all channel
`quality values. Id. at 25 (citing Ex. 1001, 6:11–19; Ex. 1003 ¶¶ 138–139);
`see also Ex. 1005, 13:5–65.
`Claim 1 further recites “derive a plurality of difference indications,
`each difference indication being between the first channel quality indication
`and a channel quality indication for one of the plurality of downlink
`resources.” Petitioner contends that Tiedemann discloses that the mobile
`receives from the communication system a quantity “Δ” which the mobile
`uses to calculate a threshold value “Δr” that represents “a fixed level Δ
`beneath the strongest signal-to-noise ratio of the pilots A, B, and C in the
`mobile’s active set,” for making comparisons between respective qualities of
`the pilot channels being measured. Pet. 28 (citing Ex. 1005, 11:18–67;
`Ex. 1003 ¶ 149). Petitioner further contends that control processor 46
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`derives an indicator U for each respective pilot channel in the set that
`indicates whether the corresponding pilot channel was received above the Δr
`threshold signal. Id. (citing Ex. 1005, 13:35–45, 15:41–56, Figs. 6A, 6B;
`Ex. 1003 ¶ 150). Petitioner argues that each quantity U is a “difference
`indication” as claimed because U indicates whether the quality of a
`particular pilot channel associated with the U bit is different from the best
`pilot quality of the plurality (identified by I1, I2, I3) by more or less than the
`threshold Δ. Id. at 28–29 (citing Ex. 1005, 11:18–22, 13:38–39, Fig. 5B;
`Ex. 1003 ¶¶ 151–152).
`Patent Owner argues that Petitioner fails to show that Tiedemann’s U
`bits meet the “plurality of difference indications.” Prelim. Resp. 10–11.
`Patent Owner contends that Petitioner identifies “the index of the best
`pilot—not that pilot’s SNR—as the ‘first quality indication,” yet with
`respect to the difference indications Petitioner states “that the alleged
`difference indication is between the best pilot’s SNR—not its index—and
`the SNRs of the other channels.” Id. at 10. At this juncture, we are not
`persuaded by Patent Owner’s arguments. Petitioner argues that the “U bit is
`different from the best pilot quality of the plurality, identified by the three
`bits by I1, I2, I3 by more or less than the threshold quantity Δ” and therefore
`meets the claim phrase. Pet. 28 (citing Ex. 1005, 11:18–22, 13:38–39, Fig.
`5B; Ex. 1003 ¶ 151).
`Accordingly, from our review of the parties’ arguments presented in
`the Petition and Preliminary Response, the first mapping of Tidemann seems
`reasonable.
`For Petitioner’s second mapping, Petitioner argues that Tiedemann’s
`description of the mobile sending to the base station “the Ec/Io of the largest
`pilot in the active set” also meets “a channel quality indication indicating a
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`
`channel quality of the plurality of downlink resources.” Id. at 25 (citing
`Ex. 1005, 15:57–16:9, Fig. 6C). Petitioner further argues that where the
`“first channel quality indication” is the Ec/Io of the largest pilot in the active
`set, Tiedemann’s “relative Ec/Io” value is a “difference indication being
`between the first channel quality indication and a channel quality indication
`for one of the plurality of downlink resources.” Id. at 31 (citing Ex. 1005,
`16:7–10, Fig. 6C; Ex. 1008, 1:65–2:7, 3:7–11, 3:26–35, Ex. 1009, 5:8–13;
`Ex. 1003 ¶ 156).
`At this stage of the proceeding, we disagree with Patent Owner’s
`argument that the Ec/Io of the largest pilot does not meet “a first channel
`quality indication” for similar reasons already provided with respect to the
`construction of that phrase. Prelim. Resp. 12–13. Based on the record
`before us, however, we preliminarily agree with Patent Owner that
`Petitioner’s explanation of how Tiedemann’s description of “relative Ec/Io”
`values meet the claim 1 phrase of “derive a plurality of difference
`indications, each difference indication being between the first channel
`quality indication and a channel quality indication for one of the plurality of
`downlink resources” is lacking. Prelim. Resp. 13–14. Although Petitioner
`argues that a person having ordinary skill in the art would have understood
`the “relative” values to represent difference indications, we agree with
`Patent Owner that Petitioner fails to explain how such relative values are
`“between the first channel quality indication and a channel quality
`indication for one of the plurality of downlink resources.” On the present
`record, Petitioner’s explanation is brief and conclusory in that regard. Pet.
`31.
`
`Claim 1 further recites, “a transmitting device configured to transmit
`at least one report including the first channel quality indication and the
`
`16
`
`
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`IPR2020-01413
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`
`plurality of difference indications.” Petitioner contends that Tiedemann
`describes that the mobile includes a Transmit Modulator 52, a Transmit
`Power Control 38, a Transmit Power Amplifier 36, a Diplexer, and an
`Antenna 30, which collectively constitute a transmitting device. Id. at 32
`(citing Ex. 1005, 8:18–32, 9:24–53, Fig. 3; Ex. 1003 ¶ 159). Petitioner
`asserts that Tiedemann describes that the transmitter is configured to
`transmit “bit vector messages” (at least one report). Id. at 32–33 (citing
`Ex. 1005, 12:39–18:5, Figs. 6A–6C; Ex. 1003 ¶¶ 160–162). Patent Owner
`does not contest Petitioner’s showing as to the above limitation. See
`generally Prelim. Resp.
`Patent Owner argues that Petitioner relies on unsupported inherency
`arguments. Prelim. Resp. 14–15 (citing Pet. 24, 26). At this stage of the
`proceeding, however, we view Patent Owner’s attorney argument as
`conclusory. See Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed.
`Cir. 1997) (argument of counsel cannot take the place of evidence lacking in
`the record). At this stage of the proceeding, Petitioner provides supporting
`evidence sufficient to demonstrate a reasonable likelihood, for example, that
`a person having ordinary skill in the art would have understood Tiedemann’s
`control processor 46 to “derive” the best quality pilot of the mobile’s active
`set and the three-bit data field index, because it is the control processor 46
`that is described as performing these functions. See Pet. 24 (citing Ex. 1003
`¶¶ 134–136, which in turn cites to evidence (Ex. 1005) in support of the
`assertions made).7
`
`
`7 As explained above, we preliminarily agree with Patent Owner regarding
`Petitioner’s “second mapping” of Tiedemann meeting the claimed
`“difference indication” phrase. Thus, we do not at this time address Patent
`
`17
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`IPR2020-01413
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`
`Independent claims 6 and 14 are similar to claim 1. Petitioner’s
`showing for claims 6 and 14 is nearly the same as that for claim 1, while
`sufficiently accounting for differences between claims 6, 14 and claim 1.
`Pet. 40–42. Patent Owner’s arguments for claims 6 and 14 are the same as
`its arguments for claim 1, which we have addressed. Prelim. Resp. 7–16.
`We also have reviewed Petitioner’s showing for dependent claims 2–5, 7–
`10, and 15–18, and find such showing sufficiently persuasive at this stage of
`the proceeding. Pet. 33–40. Patent Owner does not contest those claims
`separately. See Prelim. Resp.
`We conclude that, based on the totality of the arguments and evidence
`currently in the record, Petitioner has sufficiently shown for purposes of
`institution a reasonable likelihood that it would prevail in establishing that at
`least one of the challenged claims 1–10 and 14–18 would have been obvious
`over Tiedemann.
`
`D. Asserted Obviousness of Claims 1–3, 6–8, and 14–16 over Li
`Petitioner contends claims 1–3, 6–8, and 14–16 are unpatentable
`under 35 U.S.C. § 103(a) as obvious over Li. Pet. 42–54.
`1. Li
`
`Li describes a method and system for subcarrier selection. Ex. 1006,
`2:8–9. Li’s system employs orthogonal frequency division multiple access
`(OFDMA). Li describes subcarrier selection comprising “a subscriber
`measuring channel and interference information for subcarriers based on
`pilot symbols received from a base station.” Id. at 2:12–14. The subscriber
`selects a set of candidate subcarriers, provides feedback information on the
`
`Owner’s arguments regarding the “second mapping” with respect to the
`claimed “transmitting device.” Prelim. Resp. 16.
`
`18
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`IPR2020-01413
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`
`set of candidate subcarriers to the base station, and receives an indication of
`subcarriers of the set of subcarriers selected by the base station for use by
`the subscriber. Id. at 2:14–19. Subcarriers are selected “with good
`performance (e.g., a high signal-to-interference plus noise ratio (SINR))”
`and the information on these candidate subcarriers is sent to the base station.
`Id. at 3:7–12.
`
`2. Discussion
`Claim 1 recites “user equipment.” Petitioner c
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