Ericsson Inc. and Telefonaktiebolaget LM Ericssonv.Intellectual Ventures I LLC

Patent Trial and Appeal Board

Oct 22, 2015

09789023 (P.T.A.B. Oct. 22, 2015)

Trials@uspto.gov Paper 29
Tel: 571-272-7822 Entered: October 22, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
ERICSSON INC. and
TELEFONAKTIEBOLAGET LM ERICSSON,
Petitioner,
v.
INTELLECTUAL VENTURES I LLC,
Patent Owner.
_______________

Case IPR2014-00963
Patent 6,952,408 B2
_______________

Before JOSIAH C. COCKS, WILLIAM A. CAPP, and
DAVID C. MCKONE, Administrative Patent Judges.

MCKONE, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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I. INTRODUCTION
A. Background
Ericsson Inc. and Telefonaktiebolaget LM Ericsson (collectively
“Petitioner”) filed a Corrected Petition (Paper 6, “Pet.”) to institute inter
partes review of claims 1–16 of U.S. Patent No. 6,952,408 B2 (Ex. 1001,
“the ’408 patent”). Intellectual Ventures I LLC (“Patent Owner”) filed a
Preliminary Response (Paper 8, “Prelim. Resp.”). Pursuant to 35 U.S.C.
§ 314, in our Decision to Institute, we instituted this proceeding as to all of
the challenged claims of the ’408 patent. Paper 10 (“Dec.”), 26.
After the Decision to Institute, Patent Owner filed a Patent Owner
Response (Paper 16, “PO Resp.”), and Petitioner filed a Reply to the Patent
Owner Response (Paper 18, “Reply”). An oral hearing was held on August
26, 2015. Paper 28 (“Tr.”).
Petitioner relies on the testimony of Wayne Stark, Ph.D. (Ex. 1003,
“Stark Decl.”; Ex. 1022, “Stark Reply Decl.”) in support of its contentions.
Patent Owner relies on the testimony of Jonathon Wells, Ph.D. (Ex. 2007,
“Wells Decl.”) in support of its contentions.
We have jurisdiction under 35 U.S.C. § 6(c). This Decision is a final
written decision under 35 U.S.C. § 318(a) as to the patentability of the
challenged claims. Based on the record before us, Petitioner has not
demonstrated, by a preponderance of the evidence, that any of the
challenged claims is unpatentable.

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B. Related Matters
Patent Owner has asserted the ’408 patent against various companies
in several lawsuits filed in the United States District Court for the District of
Delaware. Pet. 1; Paper 5, at 1.

C. References Relied Upon
Petitioner relies upon the following prior art references:
Ex. 1006 US 5,592,480 Jan. 7, 1997 (“the ’480 patent”)
Ex. 1007 US 5,537,435 July 16, 1996 (“the ’435 patent”)
Recommendation GSM 05.02, Radio Sub-system Link Control,
EUROPEAN TELECOMMUNICATIONS STANDARDS INSTITUTE,
v. 3.8.0 (Dec. 1995) (Ex. 1012, “GSM 05.02”)

D. The Asserted Grounds
We instituted this proceeding based on the following specific grounds
(Dec. 26):
Reference(s) Basis Claims Challenged
The ’480 patent § 102(b) 1–10, 12–16
The ’480 patent, the ’435
patent, and GSM 05.02
§ 103(a) 1–16

II. ANALYSIS
A. The ’408 Patent
The ’408 patent is directed to a method for frequency hopping in
cellular wireless communication. Ex. 1001, Abstract. Frequency hopping is
a modulation technique in which a transmission frequency is changed
according to a schedule in order to reduce the amount of interference
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experienced at particular frequencies. Id. at 2:23–29, 2:33–36, 11:19–24.
According to the ’408 patent the Groupe Spécial Mobile (“GSM”) set of
mobile communications standards developed by the European
Telecommunications Standards Institute (“ETSI”) provides for frequency
hopping. Id. at 3:1–5. Communications between mobile stations (e.g.,
cellular phones) and basestations can include several logical channels time
division multiplexed into recurring time slots of a single radio frequency
(“RF”) channel. Id. at 11:43–45. In frequency hopping, a mobile station
maintains its time slot when hopping to a different frequency. Id. at 11:45–
50.
A preferred embodiment of the invention of the ’408 patent is
illustrated in Figure 1, reproduced below:

Figure 1 is a block diagram of wideband digital basestation 10 in
communication with mobile subscriber terminals 40a, 40b. Id. at 3:46–48,
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4:36–38. Wideband digital tuner 12 receives a composite RF modulated
signal (e.g., modulated voice or data) from a mobile subscriber terminal
(e.g., 40a, 40b), down converts the signal to an intermediate frequency, and
converts it from analog to digital. Id. at 4:53–59. Digital channelizer 14
receives the composite digital signal 13 from digital tuner 12 and separates it
into a plurality of digital channel signals 15. Id. at 5:1–3.
The digital channel signals are provided to a plurality of digital signal
processors (“DSPs”) over time division multiplex (“TDM”) bus 16. Id. at
31–34. The DSPs (e.g., 18-1-1 to 18-1-P) demodulate the digital channel
signals. Id. at 5:31–34, 5:49–51. The TDM bus is configured to route the
same recurring time slot to a particular demodulator DSP such that the DSP
performs baseband processing for the same mobile station before and after a
change in RF frequency. Id. at 12:22–24. In other words, the TDM bus
routes a physical RF channel to the DSP corresponding to the correct logical
channel for the mobile station.
Figure 8, reproduced below, is an example of a structure to indicate to
the TDM bus how to map digital channel signals to DSPs. Id. at 11:50–58.
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Figure 8 is a block diagram of a TDM dual port (“DP”) driver 144 within
digital channelizer 14. Id. A control processor for the basestation supplies
indications of current and next physical RF channel-to-logical channel
mappings to frequency hop dual port random access memory (“FHOP DP-
RAM”) 312, which stores the current and next values in address locations
that differ by the most significant address bit. Id. at 11:57–11. RX
PING/PONG signal 304 toggles according to a hop sequence interval,
causing the TDM bus to be remapped at a rate corresponding to the hop
sequence interval. Id. at 12:15–21. The hop sequence interval can be
synchronized to a timing signal from a Global Positioning System (“GPS”)
receiver (see Fig. 1, items 35–37). Id. at 12:31–56.
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Data to be transmitted from the basestation to mobile stations are
handled similarly. Id. at 6:44–45. With reference to Figure 1, DSPs 18-2-1
through 18-2-Q modulate the data, which are routed to digital combiner 24
via TDM bus 16. Id. at 6:47–56. Digital combiner 24 combines the data,
which it receives in multiple RF frequencies, into a composite signal. Id. at
7:7–9, 8:5–7. Digital exciter 26 then generates a composite RF signal to be
transmitted over an antenna to the mobile stations. Id. at 7:9–13.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for frequency hopping in a cellular
communications system having multiple mobile subscribers
communicating on a plurality of different physical RF channels
on any time division multiplexed scheme with a basestation
having a broadband transceiver, said method comprising the
steps of:
operating said broadband transceiver using a plurality of
transceiver RF frequencies, each of which
represents one of said physical RF channels; and
changing from a first of said physical RF channels upon
which said mobile subscribers communicate with
said basestation to a second of said physical RF
channels, while maintaining a same logical
channel.

B. Claim Construction
We interpret claims of an unexpired patent using the broadest
reasonable construction in light of the specification of the patent in which
they appear. See 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC,
793 F.3d 1268, 1278 (Fed. Cir. 2015). Claim terms generally are given their
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ordinary and customary meaning, as would be understood by one of ordinary
skill in the art in the context of the entire disclosure. See In re Translogic
Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
In the Decision to Institute, in light of an agreement between the
parties, we preliminarily determined that “broadband transceiver,” recited in
claim 1, means “a transceiver that covers a substantial portion of the
bandwidth available to the wireless service provider who is operating the
basestation,” with the clarification that such a transceiver does not include a
set of single-frequency transceivers. Dec. 10. Neither party contests this
construction. On the complete record, we maintain this construction.
We further determined that no other claim term required express
construction. Dec. 10. Neither party proposes a construction of any other
term and we find it unnecessary to construe any other term to resolve the
dispute between the parties.

C. Anticipation by the ’480 Patent
To anticipate, a reference must “show all of the limitations of the
claims arranged or combined in the same way as recited in the claims.”
Net MoneyIN, Inc. v. Verisign, Inc., 545 F.3d 1359, 1370 (Fed. Cir. 2008);
accord In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). However, as
Petitioner argues (Pet. 21–22), “a prior art reference must be ‘considered
together with the knowledge of one of ordinary skill in the pertinent art.’”
In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (quoting In re Samour,
571 F.2d 559, 562, (CCPA 1978)).
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Petitioner contends that claims 1–10 and 12–161 are anticipated by the
’480 patent, in light of the knowledge of a person of ordinary skill in the art,
as exemplified by GSM 05.02. Pet. 18–28. For the reasons given below, we
disagree.

1. Overview of the ’480 Patent
The ’480 patent, also assigned to Patent Owner, describes a wideband
wireless basestation. Ex. 1006, Abstract. Figure 1 of the ’480 patent,
reproduced below, illustrates an example:

1 In our Decision to Institute, we determined that Petitioner had not shown a
reasonable likelihood that it would prevail with respect to claim 11 as
anticipated by the ’480 patent. Dec. 15.
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Figure 1 is a block diagram of a wideband digital basestation. Id. at 4:26–
28.
The ’480 and ’408 patents are not related; however, they share
significant disclosure. For example, wideband digital tuners 12, 26, digital
channelizer 14, digital combiner 24, TDM bus 16, modulators 18-2, and
demodulators 18-1 are described similarly to the components sharing those
designations in Figure 1 of the ’408 patent, reproduced above. Compare
Ex. 1006, 5:28–6:26, 6:60–7:35, with Ex. 1001, 4:60–5:56, 6:35–7:12.
Figure 3 is reproduced below:

Figure 3 is a block diagram of an addressable bus driver using dual port
RAM. Ex. 1006, 4:33–34. Figure 3 is a detailed diagram of TDM DP driver
144, a component of digital channelizer 14 shown in Figure 1. Id. at 8:41–
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42. In one embodiment, digital channelizer 14 uses a set of convolutional
digital filters 140 and a Fast Fourier Transform (“FFT”) processor 142 (both
shown in Figure 2) to separate a combined signal into n individual channels.
Id. at 5:42–56. TDM DP driver 144 operates to assert the output samples
from FFT 142 in the proper time slots on TDM bus 16. Id. at 8:43–44.
DP-RAM Enable 202 is a memory with locations corresponding to
each time slot on TDM bus 16. Id. at 9:54–58. During the process of setting
up a new call, controller 30 writes to DP-RAM Enable 202 a mapping of
“1’s” and “0’s” indicating whether each time slot on TDM bus 16 is active
(the time slot has been assigned to TDM driver 144 and data is to be asserted
at that time slot) or inactive (no data is to be asserted at that time slot). Id. at
9:59–63. TDM Slot Counter 200 uses a pair of signals (TDM CLK and
TDM FRAME SYNC) received from synchronization circuit 32 (shown in
Figure 1) to keep track of the presently active TDM slot. Id. at 8:60–9:4.
DP-RAM Data 204 receives digital channel signal samples output by FFT
142 and stores the samples until addressed by TDM Slot Counter 200. Id. at
10:4–8. Using the programmed mapping and the presently active TDM slot
from TDM Slot Counter 200, DP RAM Enable 202 generates enable signal
203 to driver 208 to indicate when TDM DP driver 144 may assert data from
DP RAM Data 204 on TDM bus 16. Id. at 9:48–50.
According to the ’480 patent, “[t]he particular modulation . . . used [in
the described system] may be any one of a number of different wireless (air
interface) standards such as . . . frequency hopping standards such as the
European Groupe Speciale Mobile (GSM) . . . .” Ex. 1006, 5:9–17. As can
be seen by comparing Figure 3 of the ’480 patent with Figure 8 of the ’408
patent, the two patents describe bus drivers with similar components.
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Nevertheless, Figure 3 of the ’480 patent lacks the DP RAM FHOP 312,
Comparator 206, control processor 300, and RX Ping/PONG 304
components shown in Figure 8 of the ’480 patent. As explained above, these
additional components of Figure 8 are described as implementing a
frequency hopping functionality. Ex. 1001, 11:19–12:24. A key dispute
between the parties is whether the structure shown in Figure 3 of the ’480
patent, with appropriate programming, would implement frequency hopping,
despite a lack of a specific example such as Figure 8 of the ’408 patent.

2. Overview of GSM 05.02
GSM 05.02 is one of the various documents defining the GSM
standard. According to Dr. Stark,
The cellular system developed, now known as GSM (Global
System for Mobile Communications), was deployed in the early
1990ʼs by the European Telecommunications Standards
Institute (“ETSI”) and is a set of protocols for second
generation (2G) digital cellular networks used by mobile
phones. It is the de facto global standard for mobile
communications with over 90% market share and is available in
over 219 countries and territories.
Ex. 1003 ¶ 20.
GSM 05.02 is a recommendation from ETSI that “defines the physical
channels of the radio sub-system required to support the logical channels”
and “includes a description of the logical channels and the definition of
frequency hopping, TDMA frames, timeslots and bursts.” Ex. 1012, 5.
Dr. Stark admits that frequency hopping is an optional part of the GSM
standard. Ex. 1003 ¶ 20 (“GSM uses a combination of TDMA and
optionally slow frequency-hopping with a spectrally-efficient modulation
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technique known as Gaussian minimum shift keying (GMSK).”); Ex. 2001,
50:11–21.
GSM 05.02 describes an algorithm for mapping logical channels onto
physical channels. Ex. 1012, 15. In particular, GSM 05.02 describes an
algorithm for hopping sequence generation. Id. at 16 (Section 6.2.3).

3. Claims 1–10 and 12–16
Patent Owner frames the invention of the ’408 patent, generally, as
“[f]or the first time it provided a mobile broadband base station that could
frequency hop.” Tr. 33:5–8.
Petitioner contends that the ’480 patent’s basestation 10, including
digital tuner 12, is a basestation having a broadband transceiver. Pet. 28–29.
Petitioner cites to the ’480 patent’s description of down-converting a
wideband signal into channel signals as a disclosure of “operating said
broadband transceiver using a plurality of transceiver RF frequencies, each
of which represents one of said physical RF channels,” as recited in claim 1.
Id.
Petitioner further contends that the ’480 patent describes “changing
from a first of said physical RF channels upon which said mobile subscribers
communicate with said basestation to a second of said physical RF channels,
while maintaining a same logical channel,” as recited in claim 1. Id. at 29–
30. Petitioner acknowledges that the ’480 patent does not include the
detailed discussion of frequency hopping presented in the ’408 patent,
including the discussion of the dedicated memory component depicted in
Figure 8 of the ’408 patent (reproduced above) used to facilitate frequency
hopping. Pet. 16–17. Nevertheless, Petitioner argues that the ’480 patent
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states explicitly that its system implements frequency hopping and that a
skilled artisan would have possessed the requisite background knowledge to
understand how frequency hopping is implemented in the ’480 patent. Id. at
17–24.
The ’480 patent states that:
More particularly, the basestation exchanges radio frequency
(RF) signals with a number of mobile subscriber terminals
(mobiles) 40a, 40b. The RF carrier signals are modulated with
voice and/or data (channel) signals which are to be coupled to
the public switched telephone network (PSTN) by the
basestation 10. The particular modulation in use[] may be any
one of a number of different wireless (air interface) standards
such as the well known Advanced Mobile Phone Service
(AMPS), time division multiple access (TDMA) such as IS-
54B, code division multiple access (CDMA) such as IS-95,
frequency hopping standards such as the European Groupe
Speciale Mobile (GSM), personal communication network
(PCN) standards, and the like.
Ex. 1006, 5:4–17 (emphasis added). Petitioner argues that this is a
statement, in the ’480 patent, “that the basestation permitted frequency
hopping in accordance with the GSM standard.” Pet. 17.
As to the background knowledge of a skilled artisan, Petitioner’s
declarant, Dr. Stark, testifies that “a [person of ordinary skill in the art]
would have understood that explicit reference to GSM [in Ex. 1006, 5:9–16]
to include reference to the constituent part of the GSM standard that
specifies frequency hopping, i.e., GSM 05.02 [Ex. 1012].” Ex. 1003 ¶ 90.
In light of this testimony, Petitioner argues that “[a]s evidenced by GSM
05.02, a [person of ordinary skill in the art] would understand that the GSM
standard contains details about how frequency hopping works, including
formula and algorithms for generating initial and subsequent frequency
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hopping mappings, which could easily be programmed into the DP RAM
and basestation controller disclosed in the ʼ480 Patent.” Pet. 20.
Specifically, relying on Dr. Stark’s testimony, Petitioner argues that GSM
05.02 discloses algorithms for “changing from a first of said physical RF
channels upon which said mobile subscribers communicate with said
basestation to a second of said physical channels while maintaining a same
logical channel,” as recited in claim 1. Id. 23–24 (citing Ex. 1012 §§ 5.6,
6.2, 6.2.1–6.2.3; Ex. 1003 ¶¶ 32–36, 90–97).
Petitioner contends that the existing hardware shown in Figure 3 of
the ’480 patent could be used for frequency hopping, specifically by using
controller 30 to program appropriate RF channel mapping structures into DP
RAM Enable 202 via VME bus 17. Pet. 19. The mapping structures would
be programmed at appropriate intervals according to the frequency hopping
algorithm provided in GSM 05.02. Id. at 20–21. In the Reply, Petitioner
reiterates that the existing hardware shown in the ’480 patent, with
appropriate software changes, would support frequency hopping without any
hardware changes. Reply 10. According to Petitioner,
all that was needed to implement frequency hopping was for the
basestation controller or DSPs2 to have the GSM frequency
hopping algorithm or hop sequence and then for the basestation
controller or DSPs to update the hop pattern every new TDMA
frame. This could be done simply by programming the
basestation controller or DSPs with as little as 20 lines of code.

2 As explained below, Petitioner did not argue in the Petition that frequency
hopping could be implemented by re-programming the DSPs described in
the ’480 patent. Petitioner raised that argument for the first time in the
Reply. Thus, Petitioner waived this argument.
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Id. at 13 (citing Ex. 1003 ¶¶ 87–97, 99, 102–03; Ex. 1022 ¶¶ 9–10, 19, 25–
44).
In response, Patent Owner argues that the ’480 patent “merely states
that it can support GSM, which is characterized as a frequency-hopping
standard,” and that this “does not mean that [the ’480 patent] supports
frequency hopping, one of the many features in the GSM standard.” PO
Resp. 9. Patent Owner makes additional arguments regarding the capability
of the structure described in the ’480 patent to implement frequency
hopping, arguments it substantially repeats in opposing Petitioner’s
obviousness allegations. Id. at 16–27. Consideration of these arguments is
not necessary to resolve the dispute over anticipation.
To be clear, Petitioner’s contention is not that the ’480 patent
incorporates by reference GSM 05.02. See Reply 4 (conceding that
“Petitioner made no such assertion.”). Nor has Petitioner introduced
evidence or argument that implementation of the algorithm disclosed in
GSM 05.02 necessarily is required by (and thus inherently disclosed in) the
’480 patent. Rather, Petitioner’s theory is that the ’480 patent expressly
states that it implements the frequency hopping portion of the GSM standard
and that a skilled artisan would have understood, per GSM 05.02, the
appropriate algorithm that would have been programmed in the ’480 patent’s
existing components to implement that standard. Pet. 22–23 (“A [person of
ordinary skill in the art] would have understood the explicit reference in the
ʼ480 Patent to GSM to include reference to GSM 05.02 and thus that the
reference discloses ‘a plurality of different physical RF channels on any time
division multiplexed scheme.’”; “A [person of ordinary skill in the art]
would have understood the explicit reference to GSM (and, therefore GSM
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05.02) to additionally disclose ‘a plurality of transceiver RF frequencies,
each of which represents one of said physical RF channels.’”). Thus,
Petitioner’s anticipation ground hinges on Petitioner’s assertion that the ’480
patent explicitly discloses that its system implements the frequency hopping
portion of the GSM standard.
The passage from the ’480 patent on which Petitioner relies
(Ex. 1006, 5:4–17) describes a basestation’s exchange of RF signals with
mobile subscriber terminals. Specifically, the passage is directed to the
modulation of voice and data channels over RF carrier signals: “The RF
carrier signals are modulated with voice and/or data (channel) signals
which are to be coupled to the public switched telephone network (PSTN)
by the basestation 10.” Ex. 1006, 5:6–9 (emphasis added). In that context,
the ’480 patent explains that “[t]he particular modulation in use[] may be
any one of a number of different wireless (air interface) standards such as
the well known Advanced Mobile Phone Service (AMPS), time division
multiple access (TDMA) such as IS-54B, code division multiple access
(CDMA) such as IS-95, frequency hopping standards such as the European
Groupe Speciale Mobile (GSM).” Id. at 5:9–17 (emphases added). We find
that this passage states, at most, that the system described in the ’480 patent
supports the modulation specified by the GSM standard.
Petitioner admitted at the hearing that frequency hopping is not a
modulation scheme and that GSM specifies the same modulation scheme
whether or not frequency hopping is used. Tr. 62:17–63:23. The passage of
column 5, lines 9–17, of the ’480 patent is consistent with the system of the
’480 patent being programmed to support the modulation scheme of GSM,
without supporting the optional frequency hopping functionality. While
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GSM is referred to as a “frequency hopping standard[],” the frequency
hopping functionality is inapposite to the modulation being discussed in the
passage. Tr. 63:17–22 (“JUDGE McKONE: And you can use the same
modulation regardless of whether you are using frequency hopping or not, is
that right? MR. SPEARS: Exactly. Yeah, it’s the same slot. It’s the same
framing. It’s the same TDMA frames. It is all the same.”). We find that the
’480 patent does not state, explicitly or implicitly, that the described system
implements the optional frequency hopping functionality of GSM.
We recognize that Dr. Stark testifies that “a [person of ordinary skill
in the art] would have understood that explicit reference to GSM to include
reference to the constituent part of the GSM standard that specifies
frequency hopping, i.e., GSM 05.02, and thus a [person of ordinary skill in
the art] would understand that the ʼ480 Patent discloses this limitation as
described below.” Ex. 1003 ¶ 90. Dr. Stark’s testimony, however, relies on
his assumption that frequency hopping is a type of modulation. Id. As
noted above, Petitioner has conceded that frequency hopping is not a type of
modulation. Accordingly, we do not credit Dr. Stark’s testimony on this
point.
At the hearing, Petitioner argued that “there is no reason to say you
are doing frequency hopping unless you are frequency hopping.” Tr. 63:22–
23. We are not persuaded. The ’480 patent does not state that its system is
“doing frequency hopping.” Rather, it characterizes GSM as a “frequency
hopping standard[].” While this characterization may be relevant to
obviousness (discussed below), it is not a statement explicitly showing that
the system of the ’480 patent implements frequency hopping.
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In sum, Petitioner has not shown persuasively that the ’480 patent
describes a system that implements frequency hopping. Accordingly,
regardless of the background knowledge of a skilled artisan, Petitioner has
not shown that the ’480 patent “show[s] all of the limitations of the claims
arranged or combined in the same way as recited in the claims.”
Net MoneyIN, 545 F.3d at 1370. Specifically, Petitioner has not shown
persuasively that the ’480 patent discloses “changing from a first of said
physical RF channels upon which said mobile subscribers communicate with
said basestation to a second of said physical RF channels, while maintaining
a same logical channel,” as recited in claim 1 and each of its dependents
(claims 2–10 and 12–16).
On the complete record, Petitioner has not shown by a preponderance
of the evidence that the ’480 patent anticipates claims 1–10 and 12–16.

D. Obviousness Over the ’480 Patent, the ’435 Patent, and
GSM 05.02
A 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.” We resolve the question of obviousness on the basis of
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 of skill in the art; and (4) objective evidence of
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nonobviousness, i.e., secondary considerations.3 Graham v. John Deere Co.,
383 U.S. 1, 17–18 (1966).
In the Petition, Petitioner contends that claims 1–16 would have been
obvious over the ’480 patent, the ’435 patent, and GSM 05.02. Pet. 3, 35.
The ’435 patent also is assigned to Patent Owner. Petitioner contends that
the ’435 patent provides further details regarding digital channelizers and
combiners in basestations, including dynamic mapping of digital channelizer
outputs to DSP inputs (Pet. 36–38) and cites the ’435 patent as further
evidence of the obviousness of claims 3 and 4 (id. at 41–42). At the hearing,
Petitioner clarified that it is asserting the ’435 patent only against claims 3,
4, and their dependents (claims 5–16). Tr. 8:16–9:1. Accordingly, we
evaluate whether claims 1 and 2 would have been obvious over the ’480
patent and GSM 05.02 and whether claims 3–16 would have been obvious
over the ’480 patent, the ’435 patent, and GSM 05.02.
Petitioner raises this ground “[t]o the Extent the Board disagrees that
the frequency hopping features of GSM as described in Ground 1
[anticipation by the ’480 patent] would be understood by a [person of
ordinary skill in the art] from the teachings of the ’480 patent.” Pet. 36.
Petitioner provides explicit citations to GSM 05.02 for claims 1, 2, and 4,
and refers to its evidence of anticipation to show obviousness of claims 5–
16. Pet. 39–42. Petitioner contends that a skilled artisan would have
combined the ’480 patent and GSM 05.02 because the ’480 patent expressly
references frequency hopping standards such as GSM. Id. at 38.

3 The record does not contain any evidence of secondary considerations.
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1. Level of Skill in the Art
Petitioner contends that a person of ordinary skill in the art would
have had at least a B.S. degree in Electrical Engineering, Computer
Engineering, or the like, and at least three years of additional academic or
industry experience. Pet. 11 (citing Ex. 1003 (Stark Decl.) ¶ 45). Dr. Wells
“generally agree[s] with Dr. Stark in paragraph 45 of his declaration.”
Ex. 2007 ¶ 20. We adopt the parties agreed statement of the level of skill of
a person of ordinary skill in the art.

2. Reasonable Expectation of Success
A party challenging a patent based on obviousness must demonstrate
that a skilled artisan would have had a reason to combine the teachings of
prior art references and would have had a reasonable expectation of success
in doing so. See Procter & Gamble Co. v. Teva Pharm. USA, Inc., 566 F.3d
989, 994 (Fed. Cir. 2009). Likewise, the challenger must show that the
obviousness combination would have worked for its intended purpose.
See Geo. M. Martin Co. v. Alliance Machine Sys. Int’l, Inc., 618 F.3d 1294,
1303 (Fed. Cir. 2010). We recognize that, “[u]nder an obviousness analysis,
a reference need not work to qualify as prior art; ‘it qualifies as prior art,
regardless, for whatever is disclosed therein.’” Id. at 1302 (quoting Amgen
Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1357 (Fed.Cir.2003)).
Nevertheless, “prior art must teach a person of ordinary skill to make an
apparatus that works for its intended purpose.” Id. at 1303; accord id. (“If
the Visy machine did not do so on its own, Alliance would have needed to
establish that a person of ordinary skill would have nonetheless been able to
make a working apparatus.”).
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As explained below, Petitioner has not shown that the obviousness
combination it proposes would have worked for its intended purpose. For
the same reasons, Petitioner has not shown that a skilled artisan would have
had a reasonable expectation of success in combining the teachings of the
’480 patent and GSM 05.02 in the way Petitioner proposes.
Although the parties agree as to the level of skill in the art, as
discussed above, the parties disagree as to whether a skilled artisan would
have had the expertise to combine the teachings of the ’480 patent and GSM
05.02 to arrive at a system that implements frequency hopping. Patent
Owner contends that a skilled artisan would not have been able to grasp the
technical problems and challenges necessary to implement frequency
hopping on the system of the ’480 patent. PO Resp. 37 (citing Ex. 2007
¶¶ 1005–06). Specifically, Patent Owner argues that a skilled artisan would
lack “significant expertise in GSM protocol, TDMA, programming,
synchronization, VME bus capabilities, hardware design, and real-life
wireless implementation challenges” and that the changes to the ’480 patent
proposed by Petitioner “are not entry level endeavors, but require substantial
experience or education to ensure that the desired synchronization is
achieved.” Id. at 37–38 (citing Ex. 2007 ¶ 106). Dr. Wells bases his
testimony on his own experience managing engineers and concludes that
system-wide re-designs require more experience than the skilled artisan
postulated by Dr. Stark would have had. Ex. 2007 ¶¶ 21–22. In reply,
Petitioner contends that the ’480 patent would have required a modification
of a mere twenty lines of software code, with no hardware changes, to
implement frequency hopping. Reply 7 (citing Ex. 1022 ¶¶ 9–10).
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Petitioner’s obviousness analysis is sparse as to the combined
teachings of the ’480 patent and GSM 05.02 and is predominately dedicated
to explaining Petitioner’s contentions regarding the ’435 patent (which
admittedly is not at issue for claims 1 and 2, Tr. 8:22–9:3). Pet. 35–39.
Petitioner includes several pages of claim charts that refer back to
Petitioner’s anticipation analysis and add quotations from GSM 05.02, but
not explanatory argument. Id. at 39–42. In order to evaluate whether a
skilled artisan reasonably would have expected success in combining the
’480 patent and GSM 05.02, we look to Petitioner’s anticipation analysis to
understand what teachings Petitioner identifies from each reference and how
Petitioner proposes combining those teachings. We note also that Patent
Owner’s arguments regarding whether Petitioner’s combination would have
worked is presented in the first instance in response to Petitioner’s
anticipation contentions. We thus consider Petitioner’s anticipation
evidence and Patent Owner’s evidence in response thereto in evaluating
Petitioner’s obviousness contentions.
Petitioner argues that Figures 1–3 of the ’480 patent and the
associated text “describe how a particular RF channel at a channelizer output
is mapped onto a specific time slot on the TDM bus and routed to the desired
DSP for demodulation.” Pet. 19 (citing Ex. 1006, 6:28–45). Specifically,
Petitioner argues that controller 30 programs a mapping schedule into DP
RAM Enable 202 via VME bus 17, which, according to Petitioner
“provid[es] the mapping from the RF channel onto the TDM bus and to a
designated DSP, during a time slot.” Id. (citing Ex. 1006, 9:47–10:3;
Ex. 1003 (Stark Decl.) ¶ 98). According to Petitioner:
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The “mapping structure” is formed by basestation control
processor 30 and the TDM bus 16 acting as a cross-bar switch,
with the basestation control processor 30 writing the proper
configuration parameters in the DP RAM ENABLE 202 of the
TDM dual-port (“DP”) driver 144 and the TDM dual-port
(“DP”) receiver 244 (in both cases via VME bus 17).
Id.; see also id. at 24 (providing substantially the same summary of the ’480
patent).
Regarding GSM 05.02, Petitioner argues that “a [person of ordinary
skill in the art] would understand that the GSM standard contains details
about how frequency hopping works, including formula and algorithms for
generating initial and subsequent frequency hopping mappings, which could
easily be programmed into the DP RAM and basestation controller disclosed
in the ʼ480 Patent.” Id. at 20.
Regarding how these teachings would have been combined, Petitioner
argues that the frequency hopping schedule of GSM 05.02 “is easily
programmed into controllers, such as the ‘basestation controller 30’
described by the ʼ480 Patent. The ʼ480 Patentʼs basestation would
‘synchronize’ the ‘frequency hopping schedule’ to the physical RF channels
by use of the TDM synchronization clock generator (32 in Fig. 1), TDM slot
counter (200 in Fig. 3) and TDM CLK and TDM FRAME SYNC signals.”
Id. at 25. Dr. Stark repeats this argument in his testimony. Ex. 1003 ¶ 99;
see also Ex. 1022 ¶ 16 (“In order to perform frequency hopping (and
dehopping), the ’480 Patent’s basestation controller could simply provide a
new mapping signal (table) to the DP RAM Enable 202 for each successive
GSM TDMA frame, which as [I] describe in more detail below, is every
4.615 milliseconds.”).
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Thus, the theory advanced in the Petition is that the data programmed
into DP RAM Enable 202 provide a mapping between particular channels
and particular TDM time slots, thereby switching data associated with a
particular RF channel to a DSP corresponding to a particular logical channel.
According to Petitioner, by reprogramming DP RAM Enable 202, according
to the frequency hopping schedule, each time there is a new frame, DP RAM
Enable 202 would remap TDM bus 16 to switch time slots to different DSPs
such that the same RF channel appearing in a different time slot nevertheless
would be switched to the same DSP corresponding to the logical channel.
See also Reply 13 (“As Dr. Stark explained, the ’480 Patent’s basestation
could adjust its internal synchronization—including number of slots per
frame as well as frame and slot duration—to accommodate different air
interface standards. (Ex. 1003, ¶¶ 88, 99; Ex. 1022, ¶¶ 9-11, 31). This,
allegedly, could accommodate frequency hopping in one of two ways.4
First, the basestation controller could update the hopping sequence in DP
RAM Enable 202 (Fig. 3) every frame. (Ex. 1022, ¶¶ 9–11, 33). These
maps would then be synchronized for assertion to the TDM bus by the TDM
Clk.”).
Patent Owner argues that combining the teachings of the ’480 patent
and GSM 05.02 in the way proposed by Petitioner would not have resulted
in a system that could perform frequency hopping. PO Resp. 22–27.
Specifically, and in reliance on the testimony of Dr. Wells, Patent Owner
argues that “the Carney ’480 system cannot generate the frequency-hopping

4 The second “way” of accommodating frequency hopping, first argued in
the Reply, exceeds the scope of a proper reply and is waived, as explained
below.
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sequence according to the pseudo-random algorithm defined in sub-section
6.2.3 of GSM 05.02 through programming the DP RAM enable 202 alone.”
PO Resp. 26–27 (citing Ex. 2007 ¶ 97). According to Patent Owner, the
only mapping provided by DP RAM Enable 202 is a set of 1’s and 0’s
representing enabled time slots and the associated logical channels of the
DSPs. Id. at 27. Patent Owner argues that “these ‘mapping structures’ do
not allow for the ‘changing from a first of said physical RF channels upon
which said mobile subscribers communicate with said basestation to a
second of said physical RF channels, while maintaining a same logical
channel,’ as recited in independent claim 1.” Id.
We agree with Patent Owner that Petitioner has not shown that the
system of the ’480 patent could be modified to implement frequency
hopping through re-programming of DP RAM Enable 202 alone. According
to the ’480 patent, the association between RF channels and DSPs (logical
channels) is maintained by the locations in which the data samples from
FFT 142 are stored in DP RAM Data 204. Ex. 1006, 10:4–17. The ’480
patent explains that, although the samples come in frames, FFT 142 does not
necessarily provide them in the same order as expected by TDM bus 16.
Id. at 10:10–13. The samples are put into the correct order by storing them
at the correct addresses in DP RAM Data 204. Id. at 10:15–17.
TDM Slot Counter 200 cycles through the addresses consecutively,
supplying those addresses to both DP RAM Data 204 and DP RAM
Enable 202. Id. at 9:2–4, Fig. 3. When TDM Slot Counter 200 provides an
address to DP RAM Data 204, DP RAM Data 204 makes the data for the RF
channel stored at that address available to driver 208. Id. at 10:6–8, Fig. 3.
When DP RAM Enable 202 receives the same address, it provides a “1” or
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“0” to driver 208, indicating that the data from DP RAM Data 204 is to be
asserted (or not) on TDM bus 16 and made available to the DSP associated
with the time slot. Id. at 9:46–10:3, Fig. 3 (table showing “A” to “D”
mapping).
Petitioner and Dr. Stark do not explain persuasively how simply re-
programming DP RAM Enable 202 would provide a different mapping
between the data stored in DP RAM Data 204 and the DSPs. In the example
of Figure 3, if DP RAM Enable 202 is programmed to provide a “0” to
driver 208 rather than a “1” when it receives address 27, the data stored in
DP RAM Data 204 for the RF channel stored at address 27 will not be
switched to a different DSP (and logical channel). Rather, the “0” will
instruct driver 108 to not apply the data at all during that time slot.
Likewise, changing the mapping for address 2 from “0” to “1” does not
change the DSP that will receive the data in the time slot for address 2.
Rather, the “1” will instruct driver 108 to assert the data during the time slot.
According to the ’480 patent, all DP RAM Enable 202 stores are indications
of whether time slots are active or inactive. Ex. 1006, 9:59–63. Petitioner
does not point to persuasive evidence showing that DP RAM Enable 202
stores a mapping of physical RF channels to logical channels. Rather,
according to the ’480 patent, that mapping is determined by the addresses of
DP RAM 204 at which the data are stored. Id. at 10:9–17.
Although Petitioner places much significance on the similarities of the
disclosures of the ’480 and ’408 patents (Pet. 15–17), Patent Owner argues
that the ’480 patent’s lack of the mapping structure disclosed in the ’408
patent also is significant (PO Resp. 27). As explained above, Figure 8 of the
’408 patent illustrates an example in which DP RAM FHOP 312, under the
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control of additional processor 300 and the signal RX Ping/Pong 304,
provides addresses to DP RAM Data 204. We do not consider claim 1 to be
limited to the example disclosed in the ’408 patent and shown in Figure 8.
Nevertheless, Figure 8 provides an example of the type of detailed
description that is missing from the ’480 patent. Specifically, DP RAM
FHOP provides a mapping that changes the order in which DP RAM
Data 204 is addressed and, consequently, changes the order in which data
are asserted on TDM bus 16. Ex. 1001, 12:4–14. DP RAM Enable 202
behaves the same as described in the ’480 patent, simply indicating whether
or not the data provided by DP RAM Data 204 should be asserted for the
time slot. Id. at 11:59–62. The data switched to the DSP associated with
that slot will correspond to a different RF channel because DP RAM
FHOP 312 intercepts the address provided by TDM Slot Counter 202 and
provides a different address to DP RAM Data 204. Id. at 12:14–24.
Petitioner does not persuasively argue that the system described in the ’480
patent can be provided with a similar change in mapping through
programming of DP RAM Enable 202 alone.
Dr. Stark’s testimony also is not supported by the description in the
’480 patent. In one example, Dr. Stark testifies that:
For the case of the receiver side (dehopping) as shown is Fig. 3,
the same logical channel would “hop” onto different RF
channels each successive GSM TDMA frame. This would
mean that for a particular TDMA frame, a given logical
channel, e.g., channel 1 on slot 1, would be at a particular RF
channel such as indicated by location “27” in the table in Fig. 3.
But in the next TDMA frame, the same logical channel, would
be placed onto a different RF channel, e.g., location “2” in the
table in Fig. 3. By the controller supplying a new mapping
signal (table) every TDMA frame, the samples from the correct
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RF channel for the associated logical channel could be placed
onto the TDM bus for processing by the corresponding DSP 18.
Ex. 1022 ¶ 17. This is inconsistent with the description in the ’480 patent.
Locations “27” and “2” in DP RAM Enable 202 merely indicate whether
data can be asserted into time slots 27 and 2. Ex. 1006, 9:46–10:3.
Changing the mapping in DP RAM Enable 202 to enable slot “2” and
disable slot “27,” without additional changes elsewhere in the system, would
not result in different RF channels being switched to the same logical
channel.
In this example, and the others cited above, Dr. Stark repeatedly
testifies that simply re-programming DP RAM Enable 202 will change the
mapping of physical RF channels and logical channels. Nevertheless, as
Patent Owner argues (PO Resp. 26–27), the ’480 patent does not support
that testimony. Because Dr. Stark’s testimony is inconsistent with the
description in the ’480 patent, we give his testimony little weight.5
Dr. Stark’s testimony accompanying the Petition is undermined
further by admissions he made during deposition and by Petitioner’s change
in position in the Reply. At deposition, Dr. Stark admitted that the ’480

5 Patent Owner argues that we should disregard Dr. Stark’s testimony in its
entirety because he is biased based on his “longstanding, ongoing, economic
relationship with Petitioner.” PO Resp. 40–42. We recognize that the expert
witnesses in this case are being paid. We have considered the respective
backgrounds of Dr. Stark and Dr. Wells and note that, while Dr. Stark has an
established relationship with Petitioner (id. at 42), Dr. Wells appears to have
an equally extensive history opposing Petitioner (Ex. 1007, App’x A, pp. 3–
4). Given the potential for bias on the part of both experts, we evaluate their
testimony by considering, inter alia, cross-examination and the consistency
of the testimony with other evidence in the record (including the cited prior
art).
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patent could not be modified to perform frequency hopping through
programming of DP RAM Enable 202 alone. Rather, because DP RAM
Enable 202 merely indicates that a “frequency should be put on the bus for
some DSP,” the basestation controller must re-program some other
component to place appropriate data on TDM bus 16 or re-program the
DSPs to change how they take data off of TDM bus 16. Ex. 2008, 150:7–
151:21:
Q. So under your theory, the presence of a 1 indicates that
frequency channel is active. It does not guarantee you
who is using that channel; is that correct?
A. It -- it just -- the presence of a 1 says that frequency
should be put on the bus for some DSP.
Q. But it doesn’t tell you which DSP should get it?
A. No, it doesn’t tell you which DSP. This is what goes
onto the bus, as opposed to what’s taken off the bus.
Q. And so, therefore, there’s nothing in this figure that
dehops or identifies who the target user is?
A. Well, when the -- the -- I mean, this 1 is connected to a --
the basestation controller, which controls the table; right?
. . . So the basestation controller knows which user
should be using which frequency at which time, and
therefore which entries in this table should be 1 and
therefore the data should be put onto the bus. Similarly
the controller knows which data should be taken off the
bus for which DSP.
Q. But that, quote, taken off for the DSP does not show up
in this figure.
A. This is putting onto the -- the bus. . . . There is a
corresponding taken off the bus that -- . . . -- that makes
sure that the appropriate DSP picks off from the bus the
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appropriate time, the appropriate frequency that was put
on the bus for it.
See also id. at 136:1–5 (“Q. Okay. And so therefore there’s no dehopping
that’s done by this circuit? A. Well, the dehopping is done by the overall
system of connecting any frequency to any DSP.”), 139:1–6 (“A. The
architecture shown in Figure 3 is just one part of implementing the cross-bar
switch. It’s not the whole thing. So the whole thing is a cross-bar switch,
and it allows any frequency to be connected to any DSP at any time.”);
Paper 21 (Mot. for Observations), 6.
Similar to Dr. Stark’s change in position during deposition, Petitioner
argues, for the first time in the Reply, that the basestation could be
reprogrammed to “accommodate frequency hopping in one of two ways,”
including that “the DSPs could be directly programmed with the hopping
sequence.”). Reply 13 (citing Ex. 1022 ¶¶ 9, 19, 29, 31). Our rules,
however, state that “[a]ll arguments for the relief requested in a motion must
be made in the motion. A reply may only respond to arguments raised in the
corresponding opposition or patent owner response.” 37 C.F.R. § 42.23(b).
As the Office has explained:
While replies can help crystalize issues for decision, a reply that
raises a new issue or belatedly presents evidence will not be
considered and may be returned. The Board will not attempt to
sort proper from improper portions of the reply. Examples of
indications that a new issue has been raised in a reply include
new evidence necessary to make out a prima facie case for the
patentability or unpatentability of an original or proposed
substitute claim, and new evidence that could have been
presented in a prior filing.
Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48767 (Aug. 14,
2012). Petitioner’s Reply argument is not simply a response to Patent
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Owner’s arguments. Patent Owner introduced evidence that Petitioner’s
theory failed to make a prima facie case of obviousness because re-
programming DP RAM Enable 202 with an algorithm from GSM 05.02
would not accomplish the result testified to by Dr. Stark. PO Resp. 26–27.
In Reply, Petitioner argues a new theory based on new evidence (including
extensive new testimony from Dr. Stark) necessary to make its prima facie
case. That new theory should have been brought in the Petition.
Accordingly, Petitioner has waived the argument that other components of
the ’480 patent’s system (such as the DSPs) would have been re-
programmed to implement frequency hopping.
In sum, after considering the complete record, including the disclosure
of the ’480 patent (summarized above), Dr. Stark’s testimony, and
Dr. Wells’ testimony, we find that the combined teachings of the ’480 patent
and GSM 05.02, as presented in the Petition, would not have resulted in a
system capable of frequency hopping. Dr. Stark’s admission that the theory
presented in his testimony submitted with the Petition was, at best,
incomplete, accompanied by Petitioner’s introduction of new evidence and a
new theory in the Reply, is additional persuasive evidence that the
combination of the ’480 patent and GSM 05.02 presented in the Petition
would not have implemented frequency hopping.
Petitioner has not met its burden of showing that a skilled artisan
would have had a reasonable expectation of success in combining the
teachings of the ’480 patent and GSM 05.02. Nor has Petitioner shown that
its proposed combination would have worked for its intended purpose, as it
would not have performed frequency hopping. Specifically, we find that
Petitioner has not shown that a combination of the ’480 patent and GSM
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05.02 teaches both “operating said broadband transceiver using a plurality of
transceiver RF frequencies, each of which represents one of said physical RF
channels” and “changing from a first of said physical RF channels upon
which said mobile subscribers communicate with said basestation to a
second of said physical RF channels, while maintaining a same logical
channel,” as recited in claim 1. Thus, Petitioner has not shown, by a
preponderance of the evidence, that claim 1 would have been obvious over
the ’480 patent and GSM 05.02.
Claims 2–16 depend from claim 1. Petitioner does not cite the ’435
patent against claims 1 and 2 (Tr. 8:16–9:1) and does not contend that the
’435 patent cures the deficiencies we find with respect to claim 1.
Accordingly, Petitioner has not shown, by a preponderance of the evidence,
that claim 2 would have been obvious over the ’480 patent and GSM 05.02
or that claims 3–16 would have been obvious over the ’480 patent, GSM
05.02, and the ’435 patent.

III. CONCLUSION
For the reasons given, Petitioner has not demonstrated, by a
preponderance of the evidence, that any of claims 1–16 is anticipated by the
’480 patent or obvious over the ’480 patent, GSM 05.02, and the ’435
patent.

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IV. ORDER
For the reasons given, it is
ORDERED that claims 1–16 of U.S. Patent No. 6,952,408 B2 have
not been shown by a preponderance of the evidence to be unpatentable; and
FURTHER ORDERED that, because this is a Final Written Decision,
parties to this proceeding seeking judicial review of it must comply with the
notice and service requirements of 37 C.F.R. § 90.2.

PETITIONER:

Steven G. Spears
Matthew McCloskey
MCDERMOTT WILL & EMERY LLP
sspears@mwe.com
mmccloskey@mwe.com

PATENT OWNER:

Michael D. Specht
Lori A. Gordon
Byron Pickard
Ross Hicks
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
mspecht-PTAB@skgf.com
lgordon-PTAB@skgf.com
bpickard-PTAB@skgf.com
rhicks-PTAB@skgf.com

James Hietala
Tim Seeley
INTELLECTUAL VENTURES
jhietala@intven.com
tim@intven.com