Trials@uspto.gov
`571.272.7822
`
`Paper 16
`Entered: December 7, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`
`TOYOTA MOTOR CORP. and
`CONTINENTAL AUTOMOTIVE SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`IPR2022-00972
`Patent 9,681,466 B2
`____________
`
`
`Before KRISTEN L. DROESCH, DAVID C. MCKONE,
`and AMBER L. HAGY, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
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`

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`IPR2022-00972
`Patent 9,681,466 B2
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`
`INTRODUCTION
`I.
`Toyota Motor Corp. and Continental Automotive Systems, Inc.,
`(collectively, “Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting inter
`partes review of claims 1–10 of U.S. Patent No. 9,681,466 B2 (Ex. 1001,
`“the ’466 patent”). Intellectual Ventures II LLC (“Patent Owner”) filed a
`Preliminary Response to the Petition. Paper 7 (“Prelim. Resp.”). Petitioner
`filed a Preliminary Reply to the Preliminary Response (Paper 12, “Prelim.
`Reply”) and Patent Owner filed a Preliminary Sur-reply to the Preliminary
`Reply (Paper 14, “Prelim. Sur-reply”).
`We have authority to determine whether to institute an inter partes
`review. See 35 U.S.C. § 314 (2016); 37 C.F.R. § 42.4(a) (2019). The
`standard for instituting an inter partes review is set forth in 35 U.S.C.
`§ 314(a), which provides that an inter partes review may not be instituted
`“unless . . . there is a reasonable likelihood that the petitioner would prevail
`with respect to at least 1 of the claims challenged in the petition.” For the
`reasons explained below, we institute an inter partes review of the ’466
`patent.
`
`
`II. BACKGROUND
`A. Related Proceedings
`The parties identify several district court and inter partes review
`proceedings in which the ’466 patent is or has been involved. Pet. 72–74;
`Paper 4, 2.
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`
`B. The ’466 Patent
`The ’466 patent relates to queuing algorithms for packet data
`transmission, for example, for use in the universal mobile
`telecommunication standard (UMTS). Ex. 1001, 1:23–26. Such algorithms
`can be used in a system such as illustrated in Figure 1, reproduced below:
`
`
`
`Figure 1 is a block diagram of a 3rd Generation Partnership Project (3GPP)
`cellular communication system, e.g., UMTS Radio Access Network
`(UTRAN) system 100. Id. at 5:33–34, 6:8–10. UTRAN 100 includes
`terminal equipment (TE) 112 connected to mobile equipment (ME) 114,
`which, along with user service identity module (USIM) 116, constitutes user
`equipment (UE) 118. Id. at 6:13–18. UE 118 can be, for example, a mobile
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`station, a personal digital assistant, or a laptop computer communicating
`over an air interface using a cellular communication system. Id. at 6:18–23.
`UE 118 communicates with base station (Node-B) 122 via wireless
`interface Uu. Id. at 6:24–26. Node-B 122 communicates with radio network
`controller (RNC) 124. Id. at 6:26–28. Mapper 128 of RNC 124 maps
`internet protocol (IP) packets to separate radio bearers (RBs). Id. at 7:40–
`44. Scheduler 129 allocates a certain proportion of a radio resource to each
`of the RBs. Id. at 7:45–47. Node-B 122 and RNC 124 together form
`UTRAN 126. Id. at 6:31–32. RNC 124 communicates with serving general
`packet radio service (GPRS) service node (SGSN) 132, which
`communicates with gateway GPRS support node (GGSN) 134, which, in
`turn, communicates with public data network (PDN) 138. Id. at 6:34–40.
`The ’466 patent describes a mechanism to provide prioritization of
`services across multiple users in an uplink (from UE 118 to Node-B 122)
`direction. Id. at 9:19–21. A single physical allocation of resources can be
`made to UE 118. Id. at 9:29–31. “This single physical allocation of radio
`resources provided to a UE is shared amongst a number of services, in
`proportion to their respective QoS requirements, for example in proportion
`to the signalled weight values (Stier).” Id. at 9:32–36. Scheduler logic in the
`network and UE “takes the single physical allocation and splits it between
`different RBs using the weight, Stier, values.” Id. at 9:46–50.
`Figure 6, reproduced below, illustrates an example queuing algorithm:
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`Figure 6 is a flow chart of a method to limit a number of services/queues to
`be allocated RBs at a particular instant in time. Id. at 5:47–49. “The
`algorithm may be run when a number of active users (i.e. those users known
`to have a buffer occupancy greater than zero in any queue) is greater than a
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`known fixed parameter, for example ‘max_number_queues_serviced’, as
`defined by the Element Manager (EM).” Id. at 10:48–53.
`Algorithm 600 starts by determining a normalized queue weighting
`parameter W’q1 of the allocated resources. Id. at 10:54–67 (step 605).
`Algorithm 600 then determines the number of RAAU allocated to each
`queue, RAAUq, where RAAU represents a quantum of physical resource
`(codes and timeslots), and is calculated by multiplying the total number of
`free RAAU resources by normalized queue weighting parameter W’q
`(equation 7). Id. at 11:1–10 (step 610). If the number of queues that have
`resources allocated is greater than a threshold (step 615), the algorithm re-
`calculates RAAUq to produce the value RAAUq’ (step 620). Id. at 11:11–
`37. The queues are then ordered, beginning with the highest RAAUq’ value,
`and a number of the top queues equal to a maximum number of queues value
`are selected. Id. at 11:38–41 (steps 625, 628). For all queues not selected in
`step 628, an Nq’ value (number of entries in the queue, a value used in
`calculating normalized queue weighting parameter W’q) is set to zero
`(step 630); for all queues selected, Nq’ is set to Nq (step 635). Id. at 11:42–
`44. The normalized queue weighting parameter for each queue is
`recalculated as Wq”, and a modified number of RAAU allocated to each
`queue, RAAUq”, is determined. Id. at 11:45–60 (steps 640, 645). If the
`sum of all RAAUq” is greater than the number of free RAAU resources,
`RAAUq” may be modified in step 566. Id. at 11:62–67. Spare resources
`may be allocated to other queues in step 665. Id. at 12:11–15. A running
`
`
`1 The equation for W’q includes a Stier weighting value, Sq, which Petitioner
`contends (and Patent Owner does not contest), is a “first parameter,” as
`recited in claim 1. Ex. 1001, 10:57–63 (equation 6); Pet. 42.
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`difference between resources actually allocated to a queue (RAAUq”) and
`the originally determined RAAUq is updated in step 675. Id. at 12:16–24.
`Claim 1, reproduced below is illustrative of the subject matter at issue:
`1.
`A user equipment (UE) comprising:
`circuitry configured to receive, from a network device, a first
`transmission including a first parameter corresponding to
`each of a plurality of channels and a second transmission
`including an allocation message for an uplink resource
`from the network device;
`a processor configured to allocate resources in response to the
`allocation message, wherein resources are allocated for
`data of each channel having a second parameter above
`zero prior to another channel’s data for transmission
`having a third parameter less than or equal to zero; and
`wherein the second parameter is derived from a first channel’s
`first parameter and the third parameter is derived from a
`second channel’s first parameter.
`
`
`
`C. Evidence
`Petitioner relies on the references listed below.
`Reference
`Date
`US 2007/0258433 A12
`pub. Nov. 8,
`2007
`iss. Feb. 1,
`2005
`pub. Mar. 3,
`2005
`
`Speight
`
`Peisa
`
`Heo
`
`US 6,850,540 B1
`
`US 2005/0047416 A1
`
`Exhibit No.
`1006
`
`1010
`
`1011
`
`
`2 The ’466 patent issued from a chain of continuations of U.S. Application
`No. 11/430,421 (Ex. 1005, “the ’421 application”), which published as
`Speight. Ex. 1001, code (63); Ex. 1006, code (21). Petitioner contends that
`Speight and the ’421 application have the same specification as the ’466
`patent in all material respects, which Patent Owner does not appear to
`contest. Pet. 6.
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`
`Petitioner also relies on the Declaration of Robert Akl, D.Sc.
`(Ex. 1004).
`Patent Owner relies on the Declaration of Gary Lomp, Ph.D.
`(Ex. 2001).
`
`
`D. The Asserted Grounds of Unpatentability
`Petitioner contends that claims 1–10 are unpatentable under the
`following grounds. Pet. 19.
`Claims Challenged
`1–10
`1–3, 6–8
`2, 7
`
`References
`
`Speight
`Peisa
`Peisa, Heo
`
`35 U.S.C. §
`102(a)(1)3
`102(a)(1)
`103
`
`
`
`III. ANALYSIS
`A. Level of Skill in the Art
`Petitioner, relying on the testimony of Dr. Akl, contends that a person
`of ordinary skill in the art “would have had a Bachelor of Science in
`electrical engineering, computer engineering, or an equivalent field, as well
`as three years of experience in wireless communication technology, or a
`master’s degree in electrical engineering, or other equivalent degree,” and
`that “[a]dditional education could substitute for professional experience and
`vice versa.” Pet. 14 (citing Ex. 1004 ¶¶ 47–49). Patent Owner does not
`contest Petitioner’s contention or propose a level of skill. Petitioner’s
`
`
`3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287–88 (2011), amended 35 U.S.C. §§ 102 and 103. Because the
`’466 patent was filed after March 16, 2013, and Petitioner alleges that the
`’466 patent cannot claim priority to any earlier application, for purposes of
`this Decision, we apply the AIA versions of §§ 102 and 103.
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`proposal is consistent with the technology described in the Specification and
`the cited prior art. For purposes of this Decision, we adopt this level of skill.
`
`
`B. Claim Construction
`For petitions filed after November 13, 2018, we construe claims
`“using the same claim construction standard that would be used to construe
`the claim in a civil action under 35 U.S.C. 282(b), including construing the
`claim in accordance with the ordinary and customary meaning of such claim
`as understood by one of ordinary skill in the art and the prosecution history
`pertaining to the patent.” 37 C.F.R. § 42.100(b) (2019); see also Phillips v.
`AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc).
`
`
`1. “wherein resources are allocated for data of each channel
`having a second parameter above zero prior to another
`channel’s data for transmission having a third parameter less
`than or equal to zero”
`Claim 1 recites “wherein resources are allocated for data of each
`channel having a second parameter above zero prior to another channel’s
`data for transmission having a third parameter less than or equal to zero.”
`Independent claims 4, 6, and 9 include similar recitations. The District
`Court in a case construing terms of the ’466 patent, Intellectual Ventures II
`LLC v. Sprint Spectrum L.P., Case No. 2:17-cv-JRG-RSP (E.D. Tex.),
`construed this term, for claims 1 and 6, to mean “wherein resources are
`allocated for a first set of data before any are allocated for a second set of
`data, where the first set of data is the data of each channel of a radio bearer
`having a second parameter above zero and the second set of data is another
`channel’s data-for transmission having a third parameter less than or equal to
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`zero.” Pet. 16 (quoting Ex. 1026, 25). The District Court provided a similar
`construction for the similar terms of claims 4 and 9. Id. at 15 (quoting
`Ex. 1026, 24). Petitioner does not expressly ask us to adopt this
`construction, but instead argues that it is a “potential term[]” for construction
`and that Petitioner’s “proffered grounds are consistent with” this
`construction. Pet. 15–16. Patent Owner does not comment on the District
`Court’s constructions. Prelim. Resp. 16–19. We need not adopt or comment
`on the District Court’s constructions at this stage of the proceeding to
`resolve the parties’ dispute. See Nidec Motor Corp. v. Zhongshan Broad
`Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (noting that “we
`need only construe terms ‘that are in controversy, and only to the extent
`necessary to resolve the controversy’”) (quoting Vivid Techs., Inc. v. Am.
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`Petitioner also contends that this claim term recites “two alternatives
`with respect to the claimed ‘third parameter,’” specifically,
`[Alternative A] allocating resources for data of each channel
`having a second parameter above zero prior to another
`channel’s data for transmission having a third parameter less
`than . . . zero.
`[Alternative B] allocating resources for data of each channel
`having a second parameter above zero prior to another
`channel’s data for transmission having a third parameter . . .
`equal to zero.
`Pet. 2 (color emphasis omitted).
`Patent Owner agrees, arguing that claim 1’s “processor’s
`programming causes it to apply the claimed allocation process when either
`of two mutually-exclusive, alternative conditions are satisfied.” Prelim.
`Resp. 17. According to Patent Owner,
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`the processor must include: (i) programming that allocates
`resources “for data of each channel having a second parameter
`above zero prior to another channel’s data for transmission
`having a third parameter less than . . . zero,” and (ii) it must
`include programming that allocates resources “for data of each
`channel having a second parameter above zero prior to another
`channel’s data for transmission having a third parameter . . .
`equal to zero.”
`
`Id.
`
`For purposes of this Decision, we accept the parties’ apparent
`agreement that this claim term should be read as reciting two mutually-
`exclusive alternatives with respect to the “third parameter.” The parties
`differ on how this term, so construed, should be applied to the asserted prior
`art, with Petitioner arguing that it need only show art that discloses one
`alternative while Patent Owner argues that Petitioner must show art that
`discloses both alternatives. Pet. 31; Prelim. Resp. 17–19. We address that
`dispute below.
`
`
`2. “second parameter” and “third parameter”
`Claim 1 recites “wherein resources are allocated for data of each
`channel having a second parameter above zero prior to another channel’s
`data for transmission having a third parameter less than or equal to zero.”
`(emphasis added). Claims 4, 6, and 9 include similar recitations. The
`parties dispute whether the second and third parameters must be separate
`parameters within the queuing algorithm for a particular channel or can be
`the same parameter in the algorithm, but for different channels.
`Petitioner contends that the second parameter disclosed in the
`Specification and Speight (which Petitioner contends essentially has an
`identical specification) is RAAUq’ and the third parameter is RAAUq”, two
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`different values within algorithm 600 depicted in Figure 6 (reproduced
`above for the ’466 patent). Pet. 17, 41–43. Petitioner argues that the second
`and third parameters are “separate and different claim terms” and are
`presumed to have different meanings. Id. at 16–17 (citing, inter alia, Bd. of
`Regents of the Univ. of Tex. Sys. v. BENQ Am. Corp., 533 F.3d 1362, 1371
`(Fed. Cir. 2008) (“Different claim terms are presumed to have different
`meanings.”); Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d
`1324, 1333 n.3 (Fed. Cir. 2006) (“[T]he use of two terms in a claim requires
`that they connote different meanings. . . .”)). Petitioner argues that
`construing the parameters as separate and different is consistent with the
`Specification, Id. at 17, although the Specification does not use the terms
`“second parameter” and “third parameter.”4
`Patent Owner contends that two instances of the same parameter for
`different channels can be the second and third parameters. Referring to
`Speight and providing an analysis of algorithm 600 of Figure 6, Patent
`Owner argues that RAAUq’ can be positive, zero, or negative and that, in
`
`
`4 Consistent with Petitioner’s proposal, a District Court in Intellectual
`Ventures I LLC v. General Motors Co., 6:21-CV-1088-ADA (W.D. Tex.)
`“construe[d] the terms ‘first parameter,’ ‘second parameter,’ [and] ‘third
`parameter,’ . . . [to be] different parameters for a channel.” Ex. 1036
`(Dec. 1, 2022, Memorandum in Support of Claim Construction Order), 68.
`According to the District Court, Patent Owner “provides no evidence that
`the second and third parameters may be the same parameter. Even when the
`second and third parameters are ‘derived from’ the first parameter, this does
`not mean that they derive from the first parameter in identical ways such that
`they are the same parameter. Indeed, Claim 3 specifies the different ways in
`which the second and third parameters are derived from the first parameter.
`If the second and third parameter were the same parameter, there would be
`no need to specify two different parameters, the claim would simply refer to
`a single parameter.” Id. at 67.
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`some instances, a negative RAAUq’ value for one channel will result in a
`resource being allocated for another channel having a RAAUq’ value above
`zero. Prelim. Resp. 7–12. Patent Owner argues that, in such an instance of
`channels q1 and q3, “the ‘second parameter’ maps, e.g., RAAU3’, and the
`‘third parameter’ maps to RAAU1’. RAAU3’ and RAAU1’ are ‘different
`parameters.’” Id. at 14–15 & n.2. According to Patent Owner, “[t]o the
`extent the Petition is proposing a narrower construction of ‘second
`parameter’ and ‘third parameter,’ it must be rejected as it would exclude the
`disclosed embodiment (as shown, e.g., in the illustrated example) from the
`scope of the claims.” Id. at n.2.
`Patent Owner’s view of the second and third parameters is
`inconsistent with the language of claim 1. First, claim 1 recites “wherein
`resources are allocated for data of each channel having a second parameter
`above zero . . . .” Here, the claim language makes clear that each channel
`can have a second parameter. This is consistent with the second parameter
`being the same value or position in algorithm 600 for each channel. This
`also suggests the “third parameter” is a different value or position in the
`algorithm rather than the same value for different channels. Because the
`claim language refers to the second parameter of each of multiple channels,
`if the patentee intended to refer to that same value for yet another channel,
`we expect the patentee would have referred to it as that channel’s second
`parameter.
`Second, claim 1 recites that “the second parameter is derived from a
`first channel’s first parameter and the third parameter is derived from a
`second channel’s first parameter.” Patent Owner argues that “[t]his
`language makes clear that the ‘second parameter’ and ‘third parameter’ are
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`each derived from the first parameter of a different channel. Given that they
`are both derived from the first parameter for two different channels, both
`parameters could certainly correspond to the same parameter for two
`different channels.” Prelim. Sur-reply 1. We find that this claim language
`suggests the opposite. Consistent with our reading of “each channel having
`a second parameter,” this additional language suggests that the “first
`parameter” is the same value or position in the algorithm for both the first
`and second channels. If Patent Owner were correct that claim 1 uses
`different parameter numbers to refer to different instances of the same
`parameter, we would expect the claim to refer to a first channel’s second
`parameter derived from a first channel’s first parameter and a second
`channel’s third parameter derived from a second channel’s parameter with a
`different enumeration.
`On the current record, we agree with Petitioner that the second and
`third parameters are separate and different parameters, and not different
`instances of the same parameter for separate channels.
`
`
`3. Remaining Terms
`Based on the record before us, we do not find it necessary to provide
`express claim constructions for any other terms. See Nidec, 868 F.3d at
`1017; Vivid Techs., 200 F.3d at 803.
`
`
`C. Priority Date of the ’466 Patent; Prior Art Status of Speight
`As noted above, the ’466 patent issued from a chain of continuation
`applications that included the ’421 application that published as Speight.
`Ex. 1001, code (63); Ex. 1006, code (21). Petitioner contends (and Patent
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`Owner does not contest) that Speight has an identical disclosure, in material
`respects, to the Specification of the ’466 patent. Pet. 4–6.
`Petitioner contends that, to provide written description support for,
`and thus be an application eligible for the ’466 patent to claim priority to,
`Speight must, but does not, disclose both Alternative A and Alternative B in
`Petitioner’s reading of the limitation “wherein resources are allocated for
`data of each channel having a second parameter above zero prior to another
`channel’s data for transmission having a third parameter less than or equal to
`zero,” as recited in claim 1. Pet. 6–14. As noted above, the parties appear to
`agree that this limitation recites two distinct alternatives.
`“An application for patent for an invention disclosed in the manner
`provided by the first paragraph of section 112 of this title in an application
`previously filed in the United States . . . , which is filed by an inventor or
`inventors named in the previously filed application shall have the same
`effect, as to such invention, as though filed on the date of the prior
`application, if filed before the patenting or abandonment of or termination of
`proceedings on the first application or on an application similarly entitled to
`the benefit of the filing date of the first application and if it contains or is
`amended to contain a specific reference to the earlier filed application.”
`35 U.S.C. § 120.5 According to 35 U.S.C. § 112 ¶ 1, “[t]he specification
`shall contain a written description of the invention, and of the manner and
`process of making and using it, in such full, clear, concise, and exact terms
`
`
`5 Here, we refer to the pre-AIA versions of §§ 112 and 120, as the parties
`dispute whether an application filed before the effective date of the relevant
`provisions of the AIA provides written description support for claims of the
`’466 patent.
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`as to enable any person skilled in the art to which it pertains, or with which it
`is most nearly connected, to make and use the same.” “[T]he test for
`sufficiency [of written description under § 112 ¶ 1] is whether the disclosure
`of the application relied upon reasonably conveys to those skilled in the art
`that the inventor had possession of the claimed subject matter as of the filing
`date.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir.
`2010) (en banc). “And while the description requirement does not demand
`any particular form of disclosure, or that the specification recite the claimed
`invention in haec verba, a description that merely renders the invention
`obvious does not satisfy the requirement.” Id. at 1352 (internal citations
`omitted). “[A] recitation of how to make and use the invention across the
`full breadth of the claim is ordinarily sufficient to demonstrate that the
`inventor possesses the full scope of the invention, and vice versa.”
`LizardTech, Inc. v. Earth Resource Mapping, Inc., 424 F.3d 1336, 1345
`(Fed. Cir. 2005). That said, “[a] claim will not be invalidated on section 112
`grounds simply because the embodiments of the specification do not contain
`examples explicitly covering the full scope of the claim language.”
`Id. (citing Union Oil Co. v. Atl. Richfield Co., 208 F.3d 989, 997 (Fed. Cir.
`2000)).
`According to Petitioner, “[w]here a claim recites alternative
`limitations, the disclosure must provide written description support for each
`of the alternative limitations.” Pet. 8 (citing Sanofi-Aventis Deutschland
`GmbH v. Mylan Pharms. Inc., No. 2020-2066, 2021 WL 6137375, at *2–*3
`(Fed. Cir. Dec. 29, 2021) (unpublished) (affirming PTAB Final Written
`Decision in IPR2018-01680 denying priority claim where patent claim
`recited “a piston rod comprising either an internal or an external fourth
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`thread,” but foreign priority application only disclosed externally-threaded
`piston rods)).
`We agree with Petitioner that, to provide written description support
`for the full scope of claim 1, an application must describe both Alternative A
`and Alternative B. A “third parameter” equal to zero is the terminal end of
`an unbounded range “less than or equal to zero.” By showing only
`Alternative B, an application cannot be said to describe the “full breadth” or
`“full scope” of claim 1. See LizardTech, 424 F.3d at 1345. Patent Owner
`does not contest Petitioner’s statement of the legal background, and does not
`argue that it would be sufficient to show only Alternative B to establish
`written description support for claim 1.
`Rather, Patent Owner argues that Speight discloses both Alternative A
`and Alternative B under its identification of the third parameter. Prelim.
`Resp. 14–15. The parties’ dispute here, then, turns on the value in Speight’s
`algorithm 600 (shown in Figure 6, reproduced above for the ’466 patent) that
`corresponds to the “third parameter” in the limitation “wherein resources are
`allocated for data of each channel having a second parameter above zero
`prior to another channel’s data for transmission having a third parameter
`less than or equal to zero,” as recited in claim 1 (emphasis added). The
`parties agree that RAAUq’ corresponds to the “second parameter” recited in
`claim 1. Pet. 41–43; Prelim. Resp. 14–15 & n.2.
`As explained in the Claim Construction Section above, Petitioner
`contends that RAAUq” corresponds to the “third parameter” while Patent
`Owner contends that the value of RAAUq’ for a different channel
`corresponds to the “third parameter.” Pet. 41–43; Prelim. Resp. 14–15 &
`n.2. As also explained above, on the preliminary record, we agree with
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`
`Petitioner’s identification of the parameters and conclude that Speight’s
`RAAUq’ discloses the second parameter and RAAUq” discloses the third
`parameter. RAAUq’ for a different channel does not disclose the third
`parameter.
`Petitioner contends that RAAUq” is a physical resource allocation for
`a channel that can be set to zero for lower-priority channels when there are
`insufficient resources to accommodate all channels at a particular instance, a
`condition that satisfies Alternative B. Pet. 11–13 (citing Ex. 1005 ¶¶ 88, 89,
`94, 956; Ex. 1004 ¶¶ 85–87). Petitioner presents evidence that RAAUq” is
`never set below zero. Id. at 13 (citing Ex. 1005 ¶¶ 86, 94; Ex. 1004 ¶¶ 87,
`88). For instance, Dr. Akl testifies that “[b]ecause the RAAU values
`(RAAUq, RAAUq’, RAAUq”, and FreeRAAU) described in the Parent
`Application refer to the number of physical resources (codes and timeslots)
`to be allocated to a channel, nominal or actual, they must always be non-
`negative numbers.” Ex. 1004 ¶ 87. Patent Owner does not, at this stage of
`the proceeding, allege that RAAUq” can be set below zero. We credit
`Dr. Akl’s testimony and find, on the preliminary record, that RAAUq” will
`not drop below zero in algorithm 600. Thus, on the current record, the ’421
`application and Speight do not provide written description support for
`claim 1. The remaining claims either include a limitation similar to that in
`claim 1 that lacks written description support, or depend from a claim that
`does. Thus, for purposes of this Decision, we conclude that the earliest
`
`
`6 Petitioner cites to the originally filed ’421 application (Ex. 1005). These
`paragraphs correspond to paragraphs 93–95, 100, and 101 of Speight
`(Ex. 1006).
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`priority date of the ’466 patent is its filing date of April 18, 2016, and that
`Speight is prior art to the ’466 patent.
`We note that Patent Owner has presented argument and evidence that
`RAAUq’ will, at times, drop below zero. Prelim. Resp. 3–15. That
`evidence includes expert testimony provided by Dr. Lomp (Ex. 2001) and a
`Matlab simulation performed by Dr. Lomp. Prelim. Resp. 7–13. Petitioner
`takes issue with the assumptions Dr. Lomp makes in his analysis, and argues
`that his simulation does not accurately represent algorithm 600 of Figure 6
`and does not show that RAAUq’ actually hits zero. Prelim. Reply 3–5.
`Although we need not resolve whether RAAUq’ will drop below zero, as it
`does not correspond to the “third parameter,” at least on the current record,
`Petitioner’s attorney argument would likely be less persuasive than Patent
`Owner’s testimonial and simulation evidence.
`
`
`D. Anticipation by Speight
`Petitioner contends that claims 1–10 are anticipated by Speight.
`Pet. 31–51. “[A] prior art reference will anticipate if it ‘disclose[s] each and
`every element of the claimed invention . . . arranged or combined in the
`same way as in the claim.’” Blue Calypso, LLC v. Groupon, Inc., 815 F.3d
`1331, 1341 (Fed. Cir. 2016) (quoting In re Gleave, 560 F.3d 1331, 1334
`(Fed. Cir. 2009) (alteration by Federal Circuit)). “However, a reference can
`anticipate a claim even if it ‘d[oes] not expressly spell out’ all the limitations
`arranged or combined as in the claim, if a person of skill in the art, reading
`the reference, would ‘at once envisage’ the claimed arrangement or
`combination.” Id. (quoting Kennametal, Inc. v. Ingersoll Cutting Tool Co.,
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`780 F.3d 1376, 1381 (Fed. Cir. 2015) (alteration by Federal Circuit); In re
`Petering, 301 F.2d 676, 681 (CCPA 1962)).
`As noted above, Petitioner contends that Speight has substantially the
`same disclosure as the Specification of the ’466 patent, which we summarize
`above. Pet. 6. Patent Owner does not dispute this or point us to any
`divergence between Speight and the Specification.
`Regarding the preamble of claim 1, Petitioner argues that Speight
`discloses user equipment, e.g., UE 118 or UE 505, that performs a resource
`allocation method. Pet. 31 (citing Ex. 1006 ¶¶ 2, 43, 47, 79, 85–103). As to
`“circuitry configured to receive, from a network device, a first transmission
`including a first parameter corresponding to each of a plurality of channels
`and a second transmission including an allocation message for an uplink
`resource from the network device,” as recited in claim 1, Petitioner points to
`mobile equipment (ME) 114 of UE 118, which is configured to receive data
`from Node-B 122. Id. at 32–33 (citing Ex. 1006 ¶¶ 2, 47, 48, 53). Petitioner
`alleges that a first transmission received from Node-B 122 includes queue
`weighting parameters Stier 550, which Petitioner contends corresponds to the
`recited “first parameter,” and that a second transmission from Node-B 122
`includes allocation message 560. Id. at 33–34 (citing Ex. 1006 ¶¶ 60, 71–73,
`77, 80). Petitioner’s evidence regarding these limitations is sufficient at this
`stage of the proceeding.
`As to “a processor configured to allocate resources in response to the
`allocation message, wherein resources are allocated for data of each channel
`having a second parameter above zero prior to another channel’s data for
`transmission having a third parameter less than or equal to zero,” as recited
`in claim 1, Petitioner contends that UE mirror scheduler 525 is configured to
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`allocate resources in response to allocation message 560, and that UE 118
`includes a processor to implement the mirror scheduler. Pet. 34–45 (citing
`Ex. 1006 ¶¶ 47, 77, 80). Pointing to th