united states patent and trademark...

Patent No. 7,454,212 B2 Petition For Inter Partes Review

Paper No. 1

IN THE

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________

ZTE CORPORATION, ZTE (USA) INC.,

AND T-MOBILE USA INC.,

Petitioners - vs. -

ADAPTIX, INC.,

Patent Owner

_____________

Patent No. 7,454,212 B2 Issued: November 18, 2008

Inventors: Xiaodong Li, Hui Lui, Kemin Lee & Wenzhong Zhang Title: OFDMA WITH ADAPTIVE SUBCARRIER-CLUSTER CONFIGURA-

TION AND SELECTIVE LOADING

Inter Partes Review No.

PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,454,212 B2 UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R. §§ 42.1-.80,

42.100-.123 _____________

Mail Stop Patent Board Patent Trial and Appeal Board

P.O. Box 1450 Alexandria, VA 22313-1450


ii

TABLE OF CONTENTS

Page

I. INTRODUCTION .......................................................................................... 1

II. MANDATORY NOTICES (37 C.F.R. § 42.8(A)(1)) .................................... 1

A. Real Party-In-Interest (37 C.F.R. § 42.8(b)(1)) ................................... 1

B. Notice of Related Matters (37 C.F.R. § 42.8(b)(2)) ............................. 1

C. Designation of Lead and Backup Counsel (37 C.F.R. § 42.8(b)(3)) ... 2

D. Service of Information (37 C.F.R. § 42.8(b)(4)) .................................. 3

III. GROUNDS FOR STANDING (37 C.F.R. § 42.104(A)) ............................... 4

IV. IDENTIFICATION OF CHALLENGE (37 C.F.R. § 42.104(B)) ................. 4

A. Effective Filing Date of the ’212 patent ............................................... 4

B. There Is a Reasonable Likelihood That at Least One Claim of the ’212 Patent Is Unpatentable under 35 U.S.C. § 103. .................................................................................. 4

V. OVERVIEW OF THE ’212 PATENT ........................................................... 5

VI. CONSTRUCTION OF THE CHALLENGED CLAIMS (37 C.F.R. § 42.104(B)(3)) .................................................................................................. 7

VII. “THE CHALLENGED CLAIMS ARE UNPATENTABLE. ...................... 15

A. Overview of the Prior Art ................................................................... 15

1. DE 19800953 C1 (“Ritter”) (Exs. 1004 & 1005) ...................... 15

2. U.S. Patent No. 6,795,424 B1(“Kapoor”) (Ex. 1006) ............... 17

3. Motivation to Combine the Prior Art ......................................... 17

B. Specific Grounds for the Petition ....................................................... 19


iii

1. Ground 1: A Combination of Kapoor and Ritter Renders Claims 1, 8-13, 15, 16, 18-21 and 23-30 Obvious. .................... 19

2. Claim Charts............................................................................... 23

3. Claim Chart 1: Ritter and Kapoor ............................................. 23

VIII. CONCLUSION ............................................................................................. 40


iv

TABLE OF AUTHORITIES Page(s)

CASES

In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359 (Fed. Cir. 2004) ............................................................................ 7

In re Yamamoto, 740 F.2d 1569 (Fed. Cir. 1984) ............................................................................ 7

SAP Am., Inc. v. Versata Dev. Grp., Inc., CBM2012–00001 (PTAB June 11, 2013) ....................................................................................................... 8

STATUTES

35 U.S.C. §102 ..................................................................................................passim

35 U.S.C. §103 ....................................................................................................... 4, 5

35 U.S.C. § 311 .................................................................................................... 1, 40

35 U.S.C. § 314(a) ..................................................................................................... 5

RULES

37 C.F.R. § 42.8 ................................................................................................. 1, 2, 3

37 C.F.R. § 42.100 ................................................................................................... , 7

37 C.F.R. § 42.101 ................................................................................................... 40

37 C.F.R. § 42.104 ........................................................................................... 4, 7, 19


v

EXHIBIT LIST (37 C.F.R. § 42.63(e))

Exhibit Description

1001 U.S. Patent No. 7,454,212 B2 to Xiaodong Li, et al.

1002 File History of U.S. Patent No. 7,454,212 B2

1003 Declaration of Tim A. Williams, Ph.D.

1004 DE 19800953 C1 to Ritter (German patent document)

1005 DE 19800953 C1 to Ritter (Certified English translation with attached affidavit attesting to accuracy of translation)

1006 U.S. Patent No. 6,795,424 B1 to Kapoor

1007 Claim Construction Order in Adaptix v. AT&T Mobility et al., E.D. Tex., Case Nos. 6:12-17, -20, -120 (dated Mar. 12, 2014) (“E.D. Tex. CCO”)

1008 Claim Construction Order in Adaptix v. Motorola Mobility et al., N.D. Cal., Case Nos. 5:13-1774, -1776, -1777, -1778, -1844, -2023 (dated Dec. 19, 2013) (“N.D. Cal. CCO”)

1009 File History of U.S. Patent No. 6,947,748 B2


1

I. INTRODUCTION

In accordance with 35 U.S.C. §§ 311-319 and 37 C.F.R. §§ 42.1-.80 &

42.100-.123, inter partes review is respectfully requested for claims 1, 8-13, 15,

16, 18-21 and 23-30 of United States Patent No. 7,454,212 B2 to Xiaodong Li, et

al., titled “OFDMA with Adaptive Subcarrier-Cluster Configuration and Selective

Loading” (the “’212 patent”) owned by Adaptix, Inc. (“Adaptix”). (Ex. 1001.)

This petition demonstrates that there is a reasonable likelihood that the petitioners

will prevail on at least one of the claims challenged in the petition. Claims 1, 8-13,

15, 16, 18-21 and 23-30 of the ’212 patent should therefore be canceled as un-

patentable. This petition is filed concurrently with a motion for joinder with Case

IPR2014-01525 pursuant to 35 U.S.C. § 315(c) and 37 C.F.R. § 42.122(b).

II. MANDATORY NOTICES (37 C.F.R. § 42.8(A)(1))

A. Real Party-In-Interest (37 C.F.R. § 42.8(b)(1))

The real parties-in-interest for this petition are ZTE Corporation, ZTE

(USA) Inc., and T-Mobile USA Inc. (collectively, “Petitioner”).

B. Notice of Related Matters (37 C.F.R. § 42.8(b)(2))

This petition presents the same prior art references, and the same ground ap-

plying those references, in Sony Mobile Communications (USA) Inc.’s petition

upon which inter partes review was instituted in Case IPR2014-01525 (PTAB Sep-

tember 19, 2014). The ’212 patent is also involved in Case IPR2015-00318

(PTAB Nov. 26, 2014) and was involved in Case IPR2014-01408 (PTAB Aug. 28,


2

2014), which was terminated by the Board on January 29, 2015. The ’212 patent is

presently the subject of the following patent infringement lawsuits brought by

Adaptix, Inc. in the following E.D. Tex. and N.D. Cal. district court litigations:

Case Caption (E.D. Tex.) Case Nos. Adaptix, Inc. v. AT&T, Inc., et al. 6:12-cv-00017 Adaptix, Inc. v. Pantech Wireless, Inc., 6:12-cv-00020 Adaptix, Inc. v. Cellco Partnership 6:12-cv-00120 Adaptix, Inc. v. Pantech Wireless, Inc. 6:13-cv-00778

Case Caption (N.D. Cal.) Case Nos. Adaptix, Inc. v. Blackberry Limited 5:14-cv-01380, -01386, -01387 Adaptix, Inc. v. Kyocera Corp. 3:14-cv-02894, -02895 Adaptix, Inc. v. Apple, Inc. 5:13-cv-01776, -01777, -02023 Adaptix, Inc. v. AT&T, Inc. 5:13-cv-01778 Adaptix, Inc. v. Cellco Partnership 5:13-cv-01844 Adaptix, Inc. v. Dell, Inc. 5:14-cv-01259 Adaptix, Inc. v. Amazon.com, Inc. 5:14-cv-01379 Adaptix, Inc. v. Sony Mobile Commc’ns, Inc.

5:14-cv-01385

Adaptix, Inc. v. ASUSTek 5:14-cv-03112 Adaptix, Inc. v. HTC Corp. 5:14-cv-02359, -02360 Adaptix, Inc. v. ZTE Corp. 5:15-cv-00165, -00166, -00167, -00168

C. Designation of Lead and Backup Counsel (37 C.F.R. § 42.8(b)(3))

Petitioner provides the following designation of counsel:


3

Lead Counsel Steven A. Moore (Reg. No. 55,462) PILLSBURY WINTHROP SHAW PITTMAN LLP Postal and Hand Delivery Address 501 W. Broadway Suite 1100 San Diego, CA 92101 Telephone: 619.544.3112 Facsimile: 619.236.1995 Email: [email protected]

Back-Up Counsel Barry K. Shelton (Reg. No. 43,113) PILLSBURY WINTHROP SHAW PITTMAN LLP Postal and Hand Delivery Address 111 Congress Avenue, Suite 400 Austin, TX 78701 Telephone: 512.375.4907 Facsimile: 512.270.7823 Email: [email protected]

Back-Up Counsel Richard W. Thill (Reg. No. 53,686) PILLSBURY WINTHROP SHAW PITTMAN LLP Postal and Hand Delivery Address 501 W. Broadway Suite 1100 San Diego, CA 92101 Telephone: 619.544.3112 Facsimile: 619.236.1995 Email: [email protected]

Back-Up Counsel Brian Nash (Reg. No.58,105) PILLSBURY WINTHROP SHAW PITTMAN LLP Postal and Hand Delivery Address 111 Congress Avenue, Suite 400 Austin, TX 78701 Telephone: 512.375.4929 Facsimile: 512.375.4901 Email: [email protected]

Back-Up Counsel Chad C. Walters (Reg. No. 48,022) BAKER BOTTS LLP 2001 Ross Avenue Dallas, TX 75201-2980 Telephone: 214.953.6511 Facsimile: 214.661.4511 Email: [email protected]

D. Service of Information (37 C.F.R. § 42.8(b)(4))

Service of any documents via hand-delivery may be made at the postal mail-

ing addresses of the respective lead and back-up counsel designated above with

courtesy copies to the email address [email protected]. Petitioner

consents to electronic service.


4

III. GROUNDS FOR STANDING (37 C.F.R. § 42.104(A))

Petitioner certifies pursuant to Rule 42.104(a) that the ’212 patent is availa-

ble for inter partes review and that Petitioner is not barred or estopped from re-

questing an inter partes review challenging the validity of the above-referenced

claims of the ’212 patent on the grounds identified in the petition.

IV. IDENTIFICATION OF CHALLENGE (37 C.F.R. § 42.104(B))

A. Effective Filing Date of the ’212 patent

The ’212 patent issued from U.S. Application No. 11/199,586. It was filed

as a continuation application on August 8, 2005 and it claims priority to Applica-

tion No. 09/738,086, filed December 15, 2000, which issued as U.S. Patent No.

6,947,748 B2 (the “’748 patent”). Claims 1 and 18 of the ’212 patent are inde-

pendent claims. The effective filing date of these claims and claims that depend on

them (claims 8-13, 15, 16, 19-21 and 23-30) is no earlier than December 15, 2000.

B. There Is a Reasonable Likelihood That at Least One Claim of the ’212 Patent Is Unpatentable under 35 U.S.C. § 103.

The challenged claims 1, 8-13, 15, 16, 18-21 and 23-30 of the ’212 patent

are generally directed to a wireless communications system. Prior art had dis-

closed the subject matter of these claims. The claims are unpatentable in view of

the following patents:

DE 19800953 C1 was published on July 29, 1999 and titled “Procedure

and Radio Communication System to Allocate the Radio Resources of a


5

Radio Interface” (“Ritter”). This German patent is prior art to the ’212

patent under § 102(a) and (b), (Exs. 1004 (German patent) and 1005

(certified English translation with attached affidavit attesting to accuracy

of translation));

U.S. Patent No. 6,795,424 B1 was filed on June 30, 1998 and titled

“Method and Apparatus for Interference Suppression in Orthogonal Fre-

quency Division Multiplexed (OFDM) Wireless Communications Sys-

tems” (“Kapoor”). This patent is prior art to the ’212 patent under §

102(e), (Ex. 1006).

Section VII below explains how the above-cited patents and patent applica-

tion publication create a reasonable likelihood that Petitioner will prevail on at

least one of the challenged claims. See 35 U.S.C. § 314(a). Indeed, section

VII.B.1, as supported by the claim charts in Section VII.B.2 and Declaration of

Tim A. Williams, Ph.D. (“Williams Decl.,” Ex. 1003), demonstrates that all of the

challenged claims are rendered obvious in view of each of these references. Peti-

tioner requests cancellation of claims 1, 8-13, 15, 16, 18-21 and 23-30, the chal-

lenged claims, as unpatentable under 35 U.S.C. § 103.

V. OVERVIEW OF THE ’212 PATENT

The ’212 patent relates to subcarrier selection for each of multiple subscrib-

ers (e.g., mobile phones) that includes measuring channel and interference infor-


6

mation for subcarriers based on pilot symbols received from a base station. Ex.

1001, Abstract. “Orthogonal frequency division multiplexing (OFDM) is an effi-

cient modulation scheme for signal transmission over frequency-selective chan-

nels. In OFDM, a wide bandwidth is divided into multiple narrow-band subcarri-

ers, which are arranged to be orthogonal with each other. The signals modulated

on the subcarriers are transmitted in parallel.” Id. at 1:23-28.

The purported invention of the ’748 patent employs orthogonal frequency

division multiple access (OFDMA), which is a method for multiple access using

the basic format of the OFDM modulation scheme. See id. at 1:36-51; see general-

ly id. at 1:14-2:30, 3:4-11.

Claim 1 is representative:

1. A method for subcarrier selection for a system employing or-

thogonal frequency division multiple access (OFDMA) comprising:

a subscriber unit measuring channel and interference infor-

mation for a plurality of subcarriers based on pilot symbols received

from a base station;

the subscriber unit selecting a set of candidate subcarriers;

the subscriber unit providing feedback information on the set of

candidate subcarriers to the base station;

the subscriber unit receiving an indication of subcarriers of the

set of subcarriers selected by the base station for use by the subscriber

unit;


7

and the subscriber unit submitting updated feedback infor-

mation, after being allocated the set of subcarriers to be allocated an

updated set of subcarriers, and thereafter the subscriber unit receiving

another indication of the updated set of subcarriers.

Id. at claim 1.

VI. LEVEL OF ORDINARY SKILL

A person of ordinary skill in the art of the subject matter of the ’212 Patent

would have had a Bachelor’s degree in electrical engineering or a similar degree,

with 3-5 years of experience in the design and implementation of such wireless

communications systems, or the equivalent. Ex. 1003, Williams Decl. ¶¶ 48-50.

VII. CONSTRUCTION OF THE CHALLENGED CLAIMS (37 C.F.R. § 42.104(B)(3))

The terms in claims 1, 8-13, 15, 16, 18-21 and 23-30 are to be given their

broadest reasonable interpretation (“BRI”), as understood by one of ordinary skill

in the art and consistent with the disclosure. See 37 C.F.R. § 42.100(b); see also In

re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984); In re Am. Acad. of Sci. Tech

Ctr., 367 F.3d 1359, 1363-64 (Fed. Cir. 2004). Petitioner notes that this is not the

same interpretation that would be given to the claims in other proceedings, because

the standard of claim construction used in this proceeding differs from the standard

used to interpret claims in a district court proceeding. Consequently, constructions

of the claim terms that the Panel may adopt in this proceeding, and positions Peti-

tioner takes in response to those constructions, are not relevant to or binding upon


8

Petitioner in current or subsequent litigation related to the ’212 patent. See SAP

Am., Inc. v. Versata Dev. Grp., Inc., CBM2012–00001, at 6–19 (PTAB June 11,

2013) (explaining that the broadest reasonable interpretation standard is only rele-

vant to Patent Office proceedings). In particular, Petitioner expressly reserves the

right to and may submit constructions for the claims or for individual claim terms

in Adaptix, Inc. v. ZTE Corporation, et al., Civil Action Nos. 5:15-cv-00165; 5:15-

cv-00166; 5:15-cv-00167; 5:15-cv-00168 and related cases, now pending in the

United District Court for the Northern District of California, San Jose Division,

under the legal standard applicable in those proceedings which are different than

those proposed or adopted in this proceeding, including how a person of ordinary

skill in the art would understand the claims in light of relevant intrinsic and extrin-

sic evidence.

1. “arbitrarily ordering” and “arbitrarily ordered”

The term “arbitrarily ordering” appears in claim 13, and the term “arbitrarily

ordered” appears in claim 28. The BRI of these terms is “ordering in a list of

which the entries and/or their order is unknown to the base station.”

The specification teaches that the significance of “arbitrarily ordering” is

that identifying information must accompany the feedback regarding subcarrier

performance because the order of the feedback information is not known to the

base station. See Ex. 1001, ’212 patent at 6:6-13 (discussing an embodiment


9

where cluster indices are unnecessary because an order is “known to the base sta-

tion”); id. at 10:56-66 (discussing Fig. 5, “an exemplary format for arbitrary cluster

feedback” that includes cluster indices).

The BRI of this term encompasses various embodiments of “arbitrarily or-

dered” feedback disclosed in the ’212 patent. The subscriber may provide feed-

back in the form of a list that includes only a subset or portion of the clusters or

subcarriers determined by the subscriber, and in an order that can be either known

or unknown by the base station. For example, “[t] feedback may comprise channel

and interference information (e.g., signal-to-interference-plus-noise-ratio infor-

mation) on all subcarriers or just a portion of subcarriers.” Id. at 3:23-26. Moreo-

ver, the ’212 patent discloses embodiments in which the order of the clusters is

known by the base station (e.g., id. at 6:6-9) and in which the order is not known

by the base station (e.g., id. at 6:9-12). During prosecution, the examiner read the

term “arbitrarily ordering” in pending claim 19 on prior art that determined the

“first L acceptable channels” and “arbitrarily orders the L acceptable channels into

the list of L acceptable channels.” See Ex. 1002, ’212 Pros. Hist. at 99. Since the

subscriber determines the “first L acceptable channels,” the L entries in the list are

necessarily unknown to the base station, even if the base station knows the order in

which the channels were determined to be acceptable by the subscriber. Ex. 1003,

Williams Decl. ¶¶ 55-58.


10

Alternatively, the subscriber may provide feedback in the form of a list

whose entries are known to the base station, but the order of those entries is un-

known to the base station. The specification discloses an embodiment in which

“the information in the feedback is ordered according to which clusters have the

best performance relative to each other for the subscriber.” Ex. 1001, ’212 patent

at 6:9-12.Thus, even if the base station knows the entries on the list (e.g., all avail-

able clusters), the base station does not know the order of those entries in advance

because the subscriber determines the order based on performance. See id. at 6:9-

12 (“In such a case, an index is needed to indicate to which cluster the accompany-

ing SINR value corresponds.”). See also Ex. 1003, Williams Decl. ¶ 59.

A district court construed “arbitrarily ordering” to mean “ordering in an or-

der not known by the base station.” Ex. 1008, E.D. Tex. CCO at 31-32. In that

case, Patent Owner proposed a construction of “based on or determined by indi-

vidual preference or convenience.” Id. at 29. The district court rejected this con-

struction, noting that it was disfavored because it was completely subjective. Id. at

31. The court also rejected the defendants’ proposed construction of “or-

der[ed][ing] in a manner not previously defined,” characterizing it as “unclear and

potentially confusing as to when, by what, and as to what the order has not been

‘previously defined.’” Id.


11

Accordingly, in light of the ’212 specification and the prosecution history, a

person of ordinary skill in the art would understand the broadest reasonable inter-

pretation of the claim terms “arbitrarily ordering” and “arbitrarily ordered” to mean

“ordering in a list of which the entries and/or their order is unknown to the base

station.” Moreover, this construction is consistent with the district court’s con-

struction in related litigation. Ex. 1003, Williams Decl. ¶¶ 60-61.

2. “sequentially ordering”

Claim 15 includes the term “sequentially ordering.” The broadest reasonable inter-

pretation of this term at least includes “priority ordering (e.g., a priority list).”

During examination of the ’212 patent application, the examiner applied such a

construction by plainly stating: “Priority list includes or is a sequential order.” Ex.

1002, ’212 Pros. Hist. at 100 (reading pending claim 23, now claim 15, on U.S.

Pat. No. 6,052,594 to Chuang). This BRI is also consistent with the ’212 patent

specification. Ex. 1001, ’212 patent at 11:1-3 (“[S]elected clusters can also be or-

dered in the feedback to indicate priority. In one embodiment, the subscriber may

form a priority list of clusters ….”). Ex. 1003, Williams Decl. ¶ 62

3. channel and interference information”

The term “channel and interference information” appears in challenged

claims 1 and 18. The broadest reasonable interpretation of this term should be

construed to at least include “signal-to-interference plus noise ratio (SINR) infor-


12

mation.” The ’212 patent uses the term in the specification: “[t]he feedback may

comprise channel and interference information (e.g., signal-to-interference-plus-

noise-ratio information) on all subcarriers or just a portion of subcarriers.” Ex.

1001, ’212 patent at 3:23-25; Ex. 1003, Williams Decl. ¶¶ 63.

4. “cluster[s]”

The term “cluster” or “clusters” appears in challenged claims 9 ,13, 15, 18,

24, 28, and 29. The term “cluster” is defined in the ’212 specification as “a logical

unit that contains at least one physical subcarrier.” Id. at 5:15-16. Accordingly,

the broadest reasonable interpretation of the term “cluster” includes at least in-

cludes “a logical unit that contains at least one physical subcarrier.” Ex. 1003,

Williams Decl. ¶¶ 64.

5. “pilot symbols”

The term “pilot symbols” appears in challenged claims 1 and 18. The ’212

specification teaches that “pilot symbols, often referred to as a sounding sequence

or signal, are known to both the base station and the subscribers.” Id. at 5:34-36.

Accordingly, the broadest reasonable interpretation of “pilot symbols” includes at

least “symbols, sequences, or signals known to both base station and subscriber.”

Ex. 1003, Williams Decl. ¶¶ 65. The parties agreed to this construction in related

litigation. See Ex. 1008, E.D. Tex. CCO at 34.


13

6. “SINR”

The term “SINR” appears in challenged claim 19. The broadest reasonable

interpretation of this term is “signal-to-interference-plus-noise ratio and related

measures such as signal-to-interference ratio (SIR), carrier-to-interference-plus-

noise ratio (C/(I+N)), and carrier-to-interference ratio (C/I).” Each of these

measures of channel quality indicate a ratio of the carrier (or signal), i.e. the de-

sired signal which carries the users information and system control information, to

an undesired signal which has the potential to disrupt the correct reception of the

signal. Noise can be thermal noise of the channel and/or noise caused by the re-

ceiver electronics. Interferers, in a system with co-channel transmitters as is being

discussed in the ’212 patent is predominately the interference caused by the co-

channel transmissions. In systems with strong Interfering signals the noise (N)

component is typically ignored or insignificant. These issues would be well under-

stood by one of ordinary skill in the art at the time of the ’212 patent application.

Ex. 1003, Williams Decl. ¶¶ 66.

7. “control channel”

Claims 11 and 26 include the term “control channel.” The broadest reasonable in-

terpretation of this term at least includes “logical or physical unit of resources pre-

allocated for the exchange of control or signaling information.” Ex. 1003, Wil-

liams Decl. ¶¶ 67. The ’212 patent specification states: “In a cellular system, there


14

are typically other channels, pre-allocated for the exchange of control information

and other purposes. These channels often include down link and up link control

channels . . . .” Ex. 1001, ’212 patent at 5:8-13. This proposed construction is also

based on the examiner’s interpretation during prosecution. Ex. 1002, ’212 Pros.

Hist. at 106 (“[A] base station communicates with a mobile station using signal-

ing/control channel.”).

8. “subcarriers [of/from] the set of subcarriers selected by the [first] base station”

The term “subcarriers [of/from] the set of subcarriers selected by the [first]

base station” appears in challenged claims 1 and 18. The antecedent basis for “the

set of subcarriers” in the claims is “a set of candidate subcarriers” that are selected

by the subscriber and provided to the base station. This is consistent with the spec-

ification, which teaches that “[u]pon receiving the feedback from a subscriber, the

base station further selects one or more clusters for the subscriber among the can-

didates (processing block 104).” Ex. 1001, ’212 patent at 6:14-16; see also id. at

5:47-50 (discussing subscriber feedback of “candidate clusters”).

Accordingly, the broadest reasonable interpretation of this term is “subcarri-

ers that the base station has chosen from the set of candidate subcarriers selected

by the subscriber.” Ex. 1003, Williams Decl. ¶¶ 68-69. This construction is identi-

cal to the construction adopted by two district courts in related litigation. See Ex.


15

1008, E.D. Tex. CCO at 34; Ex. 1009, N.D. Cal. CCO at 2-3.

VIII. “THE CHALLENGED CLAIMS ARE UNPATENTABLE.

A. Overview of the Prior Art

1. DE 19800953 C1 (“Ritter”) (Exs. 1004 & 1005)

The Ritter patent, a German patent titled “Procedure and Radio Communica-

tion System to Allocate the Radio Resources of a Radio Interface,” was filed on

January 13, 1998 and published on July 29, 1999. Ritter qualifies as prior art to the

’212 Patent under 35 U.S.C. § 102(a) and (b). An English translation of the Ritter

patent was considered during prosecution of the ’212 patent.

Ritter relates to “a procedure to allocate the radio resources of a radio inter-

face of a radio communications system.” Ex. 1005, Ritter at 2:1-3. The radio sys-

tem in Ritter includes the “OFDMA multi-carrier procedure.” Id. at 5:17-18. The

available frequency spectrum is divided into “sub-carriers” (denoted as “oc00

…oc40,” for example), which are grouped into “segments” (denoted as “Sx,” for

example) as shown in Ritter Fig. 2. Id. at 16:13-24. The segments disclosed in

Ritter meet the BRI of “clusters” of the ’212 patent. Ex. 1003, Williams Decl. ¶¶

71-72.

Ritter teaches “a radio interface across which data symbols can be transmit-

ted between a fixed base station and usually several mobile station[s] in a radio

coverage area – e.g. a radio cell.” Ex. 1005, Ritter, at 3:20-24. The “mobile sta-


16

tions” in Ritter are akin to “subscribers” in the ’212 patent, in my opinion. Each

mobile station in Ritter measures the quality of various segments of the frequency

spectrum, determines at least one suitable segment based on the quality measure-

ment, and transmits the appropriate information about the segments to the base sta-

tion. Id. at 5-6. In response, the base station allocates at least one segment to each

mobile station based on an evaluation of the information, and can then transmit in-

formation across the allocated segment to each mobile station. Id. at 6:5-10.

Ritter teaches that the mobile station can also send a priority list of the

“segment best suited for its communication link” and other “suitable segments” to

the base station. Id. at 9:3-7. Information about each suitable segment can be en-

tered on a priority list according to each segment’s suitability. Id. at 14:7-11. The

base station evaluates the information from the mobile stations and “assigns each

mobile station a segment for the respective communication link depending on the

evaluation.” Id. at 15:9-12. The base station can also take into account “transmis-

sion conditions and/or the capacity utilization of the radio cell overseen by the base

station.” Id. at 15:16-18. The base station “sends the mobile station information

about the assigned segment,” which may be one of the suitable segments identified

by the mobile station. Id. at 15:12-16.


17

2. U.S. Patent No. 6,795,424 B1(“Kapoor”) (Ex. 1006)

The Kapoor patent, titled “Method and Apparatus for Interference Suppres-

sion in Orthogonal Frequency Division Multiplexed (OFDM) Wireless Communi-

cations Systems,” was filed June 30, 1998. The Kapoor patent issued on Septem-

ber 21, 2004. Ex. 1006, Kapoor. Kapoor qualifies as prior art to the ’212 patent

under 35 U.S.C. § 102(e). Kapoor was not considered during prosecution of the

’212 patent.

Kapoor discloses an OFDMA system in which the uplink to the base station

is dynamically allocated to a plurality of users. Id. at 7:40-42. Kapoor also dis-

closes estimating the statistics of a desired signal and co-channel interference

(CCI) using periodic pilot symbols. Id. at 4:40-46. Kapoor discloses that pilots

can be embedded not only in the uplink but also in the downlink, and that the in-

vention is applicable to both uplink and downlink resource assignment. Id. at 7:50-

51, 3:32-38.

The base station can periodically reassign frequency resources (“bins”)

based on various factors, including changes in CCI conditions. Id. at 6:9-17. The

base station may avoid assigning otherwise-available bins that have excess CCI.

Id. at 20:21-18.

3. Motivation to Combine the Prior Art

It would have been obvious to a person of ordinary skill in the art based on


18

combinations of (a) the teachings of Ritter, (b) the teachings of Kapoor, and (3) the

knowledge of a person of ordinary skill in the art at the time of the alleged inven-

tion of the ’212 patent. Ex. 1003, Williams Decl. ¶ 78. A person skilled in the art

would combine these teachings because these references all relate to similar prob-

lems related to allocating frequency resources in an OFDMA communications sys-

tem. See, e.g. Ex. 1005, Ritter at 4:8-11; Ex. 1006, Kapoor at Abstract; see also

Ex. 1003, Williams Decl. ¶ 78. Both allocate resources to mitigate and/or avoid

co-channel interference based on quality measurements. Ex. 1005, Ritter at 6; Ex.

1006, Kapoor at 2:35-48, 3:32-38. Kapoor teaches using pilot symbols for the

measurement of channel quality, a well-known technique with predictable results.

Ex. 1006, Kapoor at 4:41-46. One of ordinary skill would have been motivated to

substitute Kapoor’s well known pilot symbol approach for Ritter’s data symbol ap-

proach to obtain predictable results for measuring channel and interference infor-

mation, thereby improving interference avoidance in Ritter’s system. Ex. 1003,

Williams Decl. ¶ 78. The combination of these prior art elements, or substitution

of one element for another, would require nothing more than the knowledge or

common sense of a skilled artisan using known methods to yield predictable results

in this field of technology. Id. As the Board concluded in its Decision on Institu-

tion for IPR2014-01525, the combination of Ritter and Kapoor is appropriate. See

IPR2014-01525, Decision on Institution (Paper 15), at 6-9.


19

B. Specific Grounds for the Petition

Pursuant to 37 C.F.R. § 42.104(b), the following section and corresponding

claim charts demonstrate that there is a reasonable likelihood that the challenged

claims are unpatentable.

1. Ground 1: A Combination of Kapoor and Ritter Renders Claims 1, 8-13, 15, 16, 18-21 and 23-30 Obvious.

Claims 1, 8-13, 15, 16, 18-21 and 23-30 of the ’212 patent are obvious over Ritter

in view of Kapoor for at least the reasons given below, including the claim charts.

Ritter discloses “sequentially ordering candidate clusters,” as recited in claims 15

and 29. Under the broadest reasonable interpretation, “sequential order” includes

“priority ordering (e.g., a priority list).” Ritter discloses that “[i]nformation about

segments Sx, Sy, Sz is entered on a priority list, PLl, numbered according to their

suitability for the communication link and sent to the base station, BS.” Ex. 1005,

Ritter at 13; id. at 12 (defining “segment” as plurality of sub-carriers); see also Ex.

1003, Williams Decl. ¶ 80.

Under the broadest reasonable interpretation, Ritter discloses “arbitrarily or-

dering the set of candidate of subcarriers as clusters of subcarriers” as recited in

claim 13 and “arbitrarily ordered set of candidate subcarriers as clusters of subcar-

riers” as recited in claim 28. Ex. 1003, Williams Decl. ¶ 81. The broadest reason-

able interpretation of “arbitrarily order[ed][ing]” is “ordering in a list of which the


20

entries and/or their order is unknown to the base station.” Ritter discloses that “in-

formation about several preferred, suitable segments” are reported in “a sequence

of suitability [that] is determined by the mobile station, MS.” Ex. 1005, Ritter at

19. In other words, Ritter discloses that the mobile – not the base station – deter-

mines both the entries (“preferred, suitable segments”) and their order in the list

(“sequence of suitability”). Accordingly, both are unknown to the base station. Ex.


In the alternative, Ritter also discloses “arbitrarily order[ed][ing]” under Pa-

tent Owner’s proposed construction of “based on or determined by individual pref-

erence or convenience,” or a substantially similar one. Ex. 1003, Williams Decl. ¶

82. As discussed above, Ritter discloses that the mobile not only determines the

“preferred, suitable segments” but also the “sequence of suitability” for reporting

the segments based on its individual preference. Ex. 1005, Ritter at 19; see also Ex.


The combination of Ritter and Kapoor disclose “measuring channel and in-

terference information for a plurality of subcarriers based on pilot symbols re-

ceived from a base station” as recited in claims 1 and 18. Ritter discloses deter-

mining a “quality result” for individual sub-carriers based on measured effects of

interference and noise on the amplitudes of data symbols. Ex. 1005, Ritter at 21-

22. Kapoor discloses measuring “channel estimates” and “signal and interference


21

statistics” based on pilot symbols. Ex. 1006, Kapoor at 4:41-46. Using pilot sym-

bols to measure signal and interference information was well known as of the pri-

ority date of the ’212 patent. Ex. 1003, Williams Decl. ¶ 83. Thus, one of ordinary

skill would have been motivated to substitute Kapoor’s well-known pilot symbol

approach for Ritter’s data symbol approach to obtain predictable results for meas-

uring channel and interference information. Id.

Under the broadest reasonable interpretation, Ritter discloses “each sub-

scriber unit … measures signal-plus-interference-to-noise ratio (SINR) of each

cluster of subcarriers” as used in claim 19. Ritter discloses that subscribers meas-

ure “quality values” for each segment based on “quality results” measured for in-

dividual sub-carriers. See, e.g., Ex. 1005, Ritter at 21-22. The quality value can be

determined from interference and noise appearing on individual subcarriers. Id. at

20-21; see also Ex. 1003, Williams Decl. ¶ 84. To the extent that Ritter does not

expressly or inherently define “quality” as SINR, Kapoor discloses measuring

SINR on individual sub-carriers. Ex. 1006, Kapoor at 2:35-47. Accordingly, one

of ordinary skill would have understood that Ritter’s segment “quality value” could

be SINR. Ex. 1003, Williams Decl. ¶ 84.

Ritter further discloses “the indication of subcarriers is received via a down-

link control channel” as recited in claims 11 and 26. The broadest reasonable in-

terpretation of “control channel” is “logical or physical unit of resources that is


22

pre-allocated for the exchange of control or signaling information.” Ritter disclos-

es a base station control means (BSE) that allocates segments and sends allocation

information over the downlink to mobile stations (MS). Each MS includes a con-

trol means (MSE) that receives and utilizes the allocation. Ex. 1005, Ritter at 24-

25; see also Ex. 1003, Williams Decl. ¶ 85. To the extent that Ritter does not ex-

pressly or inherently disclose a pre-allocated “channel” for exchanging segment

allocations between control means BSE and MSE, Kapoor discloses “bandwidth

overhead for control and signaling” that is unavailable for user data. Ex. 1006,

Kapoor at 16:11-15; see also Ex. 1003, Williams Decl. ¶ 85.

A person of ordinary skill in the art would have been motivated to combine

the teachings of Ritter and Kapoor because both are directed to addressing similar

problems related to allocating frequency resources in an OFDMA communications

system. See, e.g., Ex. 1005, Ritter at 4:8-11; Ex. 1006, Kapoor at Abstract; see al-

so Ex. 1003, Williams Decl. ¶ 86. Both allocate resources to mitigate and/or avoid

co-channel interference based on quality measurements. Ex. 1005, Ritter at 5; Ex.

1006, Kapoor at 2:35-48, 3:32-38. Kapoor teaches using pilot symbols for the

measurement of channel quality, a well-known technique with predictable results.

Ex. 1005, Kapoor at 4:41-46. One of ordinary skill would have been motivated to

substitute Kapoor’s well-known pilot symbol approach for Ritter’s data symbol

approach to obtain predictable results for measuring channel and interference in-


23

formation, thereby improving interference avoidance in Ritter’s system. Ex. 1003,

Williams Decl. ¶ 86.

Accordingly, the combination of Ritter and Kapoor renders claims 1, 8-13,

15-16, 18-21, and 23-30 of the ’212 patent obvious, as shown in the corresponding

chart in the following section.

2. Claim Charts

Claim charts showing where in each reference or combination of references

each element of the challenged claims appears are set forth below. More detailed

claim charts are included in the declaration of Tim A. Williams, Ph.D., Exhibit

1003.

3. Claim Chart 1: Ritter and Kapoor

’212 Patent Disclosure from Ritter and Kapoor

Claim 1. A method for subcarrier selec-tion for a system employing orthog-onal frequency di-vision multiple ac-cess (OFDMA) comprising:

See, e.g., Ritter at 4 (“The procedure of the invention be-gins with the OFDMA multi- carrier procedure and the use of a number of subcarriers which are assigned for the communication link between the base station and the mo-bile stations.”); see also Ritter at 5 (summarizing the radio system aspect of the invention).


24


[1a][1] a subscriber unit measuring channel and inter-ference information for a plurality of subcarriers

See, e.g.:

“According to the device of the invention every mobile sta-tion, MS, measures the quality of various segments of the frequency spectrum, whereby it receives all subcarriers in the time slot assigned to it, checks the quality of each indi-vidual sub-carrier and then determines the quality of the sub-carriers.” Ritter at 12.

“There thus arises a resulting signal, rs, from a wanted sig-

nal, ss, by means of an interference signal or a noise signal,

is, with a definite amplitude which lies between a maximum

amplitude, Amax, and a minimum amplitude, Amin. If inter-

ference or noise is present, the amplitudes of the individual

data symbols on a certain sub-carrier vary from data symbol

to data symbol. If there is no interference or noise, the am-

plitudes of all data symbols manifest the same value. Rela-

tive deviations of the amplitudes of the data symbols can

thereby be most easily determined …. In this example, the

quality results of all 40 sub-carriers of the segment, Sx, are

determined and an appropriate quality value is determined

for the segment, Sx. This is also done for a variety of other

segments and a number of segments of the best quality for a

communication link is determined.” Ritter at 21-22.


25


[1a][2] based on pi-lot symbols re-ceived from a base station;

See, e.g.:

“If CCI is also present, an optimal method (i.e., according to

one specific criterion) is the so-called maximum SINR op-

timum combining (MSOC). This method also uses channel

estimation. In addition, some statistics of the signal and in-

terference must also be estimated. Periodic pilot sub-

symbols can be used for both these tasks.” Kapoor at 4:41-

46; see also 7:50-51 (“the base-station embeds pilot tones in

the transmitted downlink signal”), 3:32-38 (describing ap-

plicability of the invention to both uplink and downlink).

[1b] the subscriber unit selecting a set of candidate sub-carriers;

See, e.g.:

“Then each mobile station determines at least a suitable

segment preferred for its own communication link and

transmits appropriate information to the base station, BS. In

this example the first mobile station determines a segment,

Sx, with subcarriers oc00 ... oc40 as the best suitable seg-

ment for it. In addition, it determines the segments, Sy, Sz

as additional suitable segments preferred for its own com-

munication link.” Ritter at 12-13; see also 15-16 (discuss-

ing “sub-carriers also categorized as suitable by the mobile

stations”).

[1c] the subscriber unit providing feedback infor-mation on the set of candidate subcarri-ers to the base sta-tion,

See, e.g.:

“Information about segments Sx, Sy, Sz is entered on a pri-

ority list, PLl, numbered according to their suitability for

the communication link and sent to the base station, BS.”

Ritter at 13; see also 19 (discussing sending “priority lists”

to the base station).


26


[1d] the subscriber unit receiving an indication of sub-carriers of the set of subcarriers selected by the base station for use by the sub-scriber unit; and

See, e.g.:

“The base station, BS, evaluates all information received from the mobile stations, MS, and assigns each mobile sta-tion a segment for the respective communication link de-pending on the evaluation. The base station sends the mo-bile station information about the assigned segment. It is assumed in this example, that each mobile station, MS, can be assigned the best suitable segment desired by it.” Ritter at 14.


27


[1e][1] the sub-scriber unit submit-ting updated feed-back information, after being allocat-ed the set of subcar-riers to be allocated an updated set of subcarriers, and thereafter

See, e.g.:

“As a result, the base station receives knowledge from the

incoming lists of the desires of the mobile station with re-

spect to the best suited segment for it and can make appro-

priate new assignments of the segments of the frequency

spectrum for all mobile stations which are better adapted to

their transmitted needs. It has proven useful, that the num-

ber of assigned subcarriers in a time slot be set variably by

the base station for each mobile station, in order to not only

change the segments when needed but to also be able to

change their bandwidth.” Ritter at 8.

“Other items are better suited for update in an event driven

mode (such as user activity and constellation size), e.g.,

when a user arrives, departs, requests (or is forced to have)

a change in the amount of allocated bandwidth. Thus,

through the use of the above factors, individual bins may be

dynamically allocated and re-allocated on-the-fly. The com-

position of neighborhoods may also be changed dynamical-

ly if a trigger event, such as the advent of a new CCI source

should arise. The number of bins assigned to a neighbor-

hood may also change.” Kapoor at 21:53-63; see also 6:9-

17.

See also disclosure set forth at claim element 1[c].


28


[1e][2] the sub-scriber unit receiv-ing another indica-tion of the updated set of subcarriers.

See, e.g.: “[T]he number of allocated sub-carriers (oc) in a

time slot (ts) for each mobile station (MS) can be variably

adjusted by the base station.” Ritter at 29 (claim 6); see al-

so 28 (claim 3).

“In this method, the BS continually monitors a number of parameters and uses them to compute the bin allocations for a given user. Such allocations are typically made at start-up, but may also be made on-the-fly for non-constant bit-rate type applications. The allocations can also be changed dy-namically in response to changes in the prevalent noise and interference conditions. For operation over SFC, deep fades may occur over portions of the signal spectrum (perhaps spanning several bins) for extended periods of time, perhaps seconds or even minutes. Bins can also be dynamically re-assigned in such cases.” Kapoor at 6:11-21.

See also disclosure set forth at claim element [1d] and

[1e][1].


29


Claim 8. The method defined in claim 1 further comprising the base station selecting the subcarriers from the set of candidate subcarriers based on additional in-formation available to the base station.

See, e.g.:

“Based on the evaluation of the totality of the incoming in-

formation, the control means, BSE, assigns a segment, S...,

to each of its mobile stations and schedules the transmit-

ter/receiver, BHF, to transmit appropriate information

through the air to the respective mobile station. The change

of the segments of the frequency spectrum also considers

the transmission conditions (strong impediments and inter-

ference) and the utilization capacity of the radio resources

(time slots, frequencies, splay code) in the radio cell. These

conditions are signaled to the control means, BSE, by the

base station controller, BSC, or the Operation and Mainte-

nance Center, OMC.” Ritter at 24-25.

See also Kapoor at Abstract, 20:21-26 (discussing us-ing direction of arrival information in bin allocation).

Claim 9. The method defined in claim 8 wherein the additional infor-mation comprises traffic load infor-mation on each cluster of subcarri-ers.

See, e.g., disclosure set forth at claim element 8.


30


Claim 10. The method defined in claim 9 wherein the traffic load infor-mation is provided by a data buffer in the base station.

See, e.g.:

“The device according to Figure 6 – designed as a base

station, BS, or a base station control, BSC – manifests a

control means, BSE, with a memory means, BSP ....

Stored in the memory device, BSP, are, among other

things, the priority lists with the preferred suitable seg-

ments coming from the mobile stations.” Ritter at 24-25,

Fig. 6.

Claim 11. The method defined in claim 1 wherein the indication of sub-carriers is received via a downlink con-trol channel.

See, e.g.:

“The transmitter/receiver, BHF, is scheduled by the control

means, BSE, to transmit through the air the sub-carriers, oc,

in the down-link direction to the mobile stations. … [T]he

control means, BSE, assigns a segment, S..., to each of its

mobile stations and schedules the transmitter/receiver,

BHF, to transmit appropriate information through the air to

the respective mobile station.” Ritter at 24-25; see also 20

(“information about the allocated segments, Sx, Sa, and Sm

is sent via the radio interface to the mobile stations, MS”).

“In keeping with the allocated frequency resources the con-trol means, MSE, makes a change of the radio parameters in the radio cell for the mobile station, MS.” Ritter at 24.

“Other factors which can reduce the user available data rate or the number of usable bins include analog and digi-tal filtering constraints, spectral mask requirements, and bandwidth overhead for control and signaling.” Kapoor at 16:11-15; see also 21:41-44.


31


Claim 12. The method defined in claim 1 wherein the plurality of subcar-riers comprises all subcarriers alloca-ble by a base sta-tion.

See, e.g.:

“Another advantageous model of the invention to measure

the quality of segments of the frequency spectrum envisions,

that the mobile station receives all subcarriers in the time

slot allocated to it, checks for each sub-carrier, whether an

amplitude modulation of the data symbols transmitted in the

time slot is present, and forms an average value from the re-

sults of the test for all subcarriers belonging to the respective

segment.” Ritter at 8-9; see also 12-13, 23.

Claim 13. The method defined in claim 1 wherein providing feedback information com-prises arbitrarily ordering the set of candidate subcarri-ers as clusters of subcarriers.

“In another step (4) the mobile station, MS, sends via the ra-dio interface to the base station, BS, its priority lists, PLl ... PL3, with the information about several preferred, suitable segments, i.e., about segments Sx, Sy, Sz or Sa, Sb, Sc or Sm, Sn, So for which a sequence of suitability is determined by the mobile station, MS.” Ritter at 19.

See also Ritter at 15-16 (defining each of segments Sx,

Sy, Sz, Sa, Sb, Sc, Sm, Sn, So as a plurality of sub-

carriers).

Claim 15. The method defined in claim 1 wherein providing feedback information com-prises sequentially ordering candidate clusters.

See, e.g.:

“[S]everal segments (e.g., Sx, Sy, Sz) of the best quality

are determined by the mobile station {MS) and are num-

bered in a priority list (e.g., PL1) corresponding to in-

creasing amplitude modulation.” Ritter at 29.

See also Ritter at 19, the disclosure of which is set forth at claim 13.


32


Claim 16. The method defined in claim 1 further comprising:

See e.g. claim 1 preamble above.

[16a] the base sta-tion allocating a first portion of the subcarriers to estab-lish a data link be-tween the base sta-tion and the sub-scriber unit; and then

See, e.g., Kapoor at 6:9-15 and 21:53-59, the disclosure of which is set forth at claim elements [1e][1] and [1e][2].


33


[16b] the base sta-tion allocating a second portion of the subcarriers to the subscriber unit to increase commu-nication bandwidth.

See, e.g.:

“[T]he best suited segments for communication can be de-

termined at any time for individual communications links

which differ from each other and they can be changed as

needed.” Ritter at 7-8.

“[T]he base station receives knowledge from the incom-

ing lists of the desires of the mobile station with respect

to the best suited segment for it and can make appropri-

ate new assignments of the segments of the frequency

spectrum for all mobile stations which are better

adapted to their transmitted needs. It has proven useful,

that the number of assigned subcarriers in a time slot be

set variably by the base station for each mobile station,

in order to not only change the segments when needed

but to also be able to change their bandwidth.” Ritter at

8; see also 28 (claim 3), 29 (claim 6).

See also Kapoor at 6:9-15 and 21:53-59, the disclosure

of which is set forth at claim elements [1e][1] and

[1e][2].

Claim 18. An ap-paratus comprising:

See e.g. claim 1 preamble above.


34


[18a] a plurality of subscriber units in a first cell operable to generate feedback information indicat-ing clusters of sub-carriers desired for use by the plurality of subscriber units; and

See, e.g.,:

“Then each mobile station determines at least a suitable

segment preferred for its own communication link and

transmits appropriate information to the base station, BS.”

Ritter at 12-13.

See also disclosure of Ritter set forth at claim elements [1c],

13.

[18b] a first base station in the first cell, the first base station operable to allocate OFDMA subcarriers in clus-ters to the plurality of subscriber units;

See, e.g., 2:66-3:32:

“The base station, BS, evaluates all information received

from the mobile stations, MS, and assigns each mobile sta-

tion a segment for the respective communication link de-

pending on the evaluation.” Ritter at 14; see also Fig. 1.

“The base station 7 of the OFDMA system segments the

available bandwidth into multiple frequency bins which can

then be allocated based on predetermined factors.” Kapoor

at 19:9-11; see also Kapoor at 21:64-66 (“the preferred em-

bodiment above was implemented using groupings of fre-

quency bins called neighborhoods”).

[18c][1] each of said plurality of subscriber units to measure channel and interference in-formation for the plurality of subcar-riers

See e.g. disclosure set forth at claim element [1a][1].


35


[18c][2] based on pilot symbols re-ceived from the first base station and

See e.g. disclosure set forth at claim element [1a][2].

[18c][3] at least one of the plurality of subscriber units to select a set of candidate subcarri-ers from the plurali-ty of subcarriers, and

See e.g. disclosure set forth at claim element [1b].

[18c][4] said at least one subscriber unit to provide feedback infor-mation on the set of candidate subcarri-ers to the base sta-ti d t

See e.g. disclosure set forth at claim element [1c].

[18c][5] receive an indication of sub-carriers from the set of subcarriers se-lected by the first base station for use by the at least one subscriber unit,

See e.g. disclosure set forth at claim element [1d].


36


[18c][6] and where-in the subscriber unit submits updat-ed feedback infor-mation after being allocated the set of subscriber units to receive an updated set of subcarriers and thereafter

See e.g. disclosure set forth at claim element [1e][1].

[18c][7] receives another indication of the updated set of subcarriers.

See e.g. disclosure set forth at claim element [1e][2].

Claim 19. The ap-paratus defined in claim 18 wherein

See e.g. disclosure set forth at claim 1 preamble.

[19a] each of the plurality of sub-scriber units con-tinuously monitors reception of the pi-lot symbols known to the base station and the plurality of subscriber units and

See, e.g.:

“A method for allocation of frequency bins as communica-

tion channels to remote units in a multi-point communica-

tions system, said method comprising: … continuously

monitoring at least one parameter of the communications

channels and determining allocation of said frequency bins

based on said at least one parameter ….” Kapoor at 24:27-

41.

“[T]hose skilled in the art will recognize that the application of this invention is not limited to the BS uplink channel, but is also applicable elsewhere including the BS downlink and at the remote transmitter/receivers.” Kapoor at 3:34-38.

“To facilitate the former task, the base-station embeds pilot tones in the transmitted downlink signal which are utilized by the remote receiver to “lock-on” to the base’s timing ref-erence.” Kapoor at 7:50-51.


37


[19b] measures signal-plus- inter-ference-to- noise ratio (SINR) of each cluster of sub-carriers.

See, e.g.:

“[T]he quality results of all 40 sub-carriers of the segment,

Sx, are determined and an appropriate quality value is de-

termined for the segment, Sx. This is also done for a variety

of other segments and a number of segments of the best

quality for a communication link is determined.” Ritter at

21-22.

“By converting possibly appearing interferences or noises

into an amplitude modulation from data symbol to data

symbol, the quality of the individual sub-carriers and thus

the entire segment can be measured across all associated

sub-carriers in a simple but effective manner.” Ritter at 20-

21.

“If CCI is localized in frequency (i.e., narrowband CCI), the

particular bin (or bins) that are affected such that the aver-

age signal-to-interference-plus-noise ratio (SINR) is re-

duced below a certain threshold can be left unused. …

However, the problem is more difficult in wireless systems

because of the presence of fading which can also greatly re-

duce the SNR. Thus, the average SNR must be tracked.”

Kapoor at 2:35-47; see also 6:9-17.

“This method also uses channel estimation. In addition,

some statistics of the signal and interference must also be

estimated. Periodic pilot subsymbols can be used for both

these tasks.” Kapoor at 4:41-46.


38


Claim 20. The ap-paratus defined in claim 19 wherein each of the plurality of subscriber units measures inter-cell interference, wherein the at least one subscriber unit selects candidate subcarriers based on the inter-cell in-terference.

See, e.g.:

“[T]he quality results of all 40 sub-carriers of the segment, Sx, are determined and an appropriate quality value is de-termined for the segment, Sx. This is also done for a variety of other segments and a number of segments of the best quality for a communication link is determined.” Ritter at 21-22.

“Another important advantage consists of the fact, that by

means of the invention the interferences, especially the crit-

ical inter-cell interference in the radio communication sys-

tems and the inter-symbol interferences, are considered and

compensated for.” Ritter at 6; see also 18.

See also the disclosures set forth at claim elements 1[a][1]

and 1[b].

Claim 21. The ap-paratus defined in claim 20 wherein the base station se-lects subcarriers for the one subscriber unit based on inter-cell interference avoidance.

See, e.g.:

“[A]ssigning module further identifies frequency bins that

contain co-channel interference and prevents allocation of

signals to frequency bins containing co-channel interfer-

ence.” Kapoor at 25:14-17.

See also Ritter at 6 and 24-25, the disclosure of which is set forth at claim elements 20 and 8, respectively.


39


Claim 23. The ap-paratus defined in claim 18 wherein the base station se-lects the subcarriers from the set of can-didate subcarriers based on additional information availa-ble to the base sta-tion.

See e.g. disclosure set forth at claim 8.

Claim 26. The ap-paratus defined in claim 18 wherein the indication of subcarriers is re-ceived via a down-link control channel between the base station and the at least one subscriber unit.


Claim 27. The ap-paratus defined in claim 18 wherein the plurality of sub-carriers comprises all subcarriers allo-cable by a base sta-tion.



40


Claim 28. The ap-paratus defined in claim 18 wherein the plurality of sub-scriber units pro-vide feedback in-formation that comprises an arbi-trarily ordered set of candidate sub-carriers as clusters of subcarriers.


Claim 29. The ap-paratus defined in claim 18 wherein


Claim 30. The ap-paratus defined in

[30a] the base sta-tion allocates a first portion of the sub-

See e.g. disclosure set forth at claim element [16a].

[30b] allocates a second portion of the subcarriers to the subscriber unit to increase com-munication band-width.

See e.g. disclosure set forth at claim element [16b].

IX. CONCLUSION

For the reasons given above, inter partes review under 35 U.S.C. § 311 and

37 C.F.R. § 42.101 of United States Patent No. 7,454,212 B2 to Xiaodong Li, et

al., titled “OFDMA with Adaptive Subcarrier-Cluster Configuration and Selective

Loading” is hereby requested.


41

Dated: May 8, 2015 By: / Steven A. Moore /

Steven A. Moore Registration No. 55,462 Pillsbury Winthrop Shaw Pittman LLP 501 W. Broadway Suite 1100 San Diego, CA 92101 Phone: (619) 544-3112

CERTIFICATE OF SERVICE

Pursuant to 37 CFR §§ 42.6(e)(4)(i) et seq. and 42.105(b), the undersigned

certifies that on May 8, 2015, a complete and entire copy of Petitioner’s Petition

for Inter Partes Review of U.S. Patent No. 7,454,212 B2 Under 35 U.S.C. §§ 311-

319 and 37 C.F.R. §§ 42.1-.80, 42.100-.123 was served EXPRESS MAIL® to the

Patent Owner by serving the correspondent of record, as indicated below:

MARTIN & FERRARO, LLP

1557 Lake O’Pines Street, NE

Hartville OH 44632

In addition, a courtesy copy of the foregoing Petition was served by

EXPRESS MAIL® on Patent Owner’s litigation counsel at the following address:

HAYES MESSINA

200 State Street,

Boston, MA 02109

Respectfully submitted, PILLSBURY WINTHROP SHAW PITTMAN

LLP

/s/ Steven A. Moore

Steven A. Moore, Reg. No. 55,462

Barry K. Shelton, Reg. No. 43,113

Richard W. Thill, Reg. No. 53,684

Attorneys for Petitioner

501 West Broadway

Suite 1100

San Diego, CA 92101

united states patent and trademark...

Documents