IN THE UNITED STATES PATENT AND TRADEMARK...

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

PATENT: US 6,947,748

INVENTOR: XIAODONG LI ET AL.

FILED: December 15, 2000 ISSUED: September 20, 2005

TITLE: OFDMA WITH ADAPTIVE SUBCARRIER-CLUSTER

CONFIGURATION AND SELECTIVE LOADING

___________________________________________________________

Mail Stop PATENT BOARD

Patent Trial and Appeal Board

U.S. Patent & Trademark Office

P.O. Box 1450

Alexandria, VA 22313-1450

PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 6,947,748

UNDER 35 U.S.C. § 312 AND 37 C.F.R. § 42.104

TABLE OF CONTENTS

I. Mandatory Notices........................................................................................... 1

A. Real Parties-in-Interest .......................................................................... 1

B. Related Matters ...................................................................................... 1

C. Counsel .................................................................................................. 3

D. Service Information ............................................................................... 3

II. Certification of Grounds for Standing ............................................................. 3

III. Overview of Challenge and Relief Requested................................................. 3

A. Prior Art Patents and Printed Publications ............................................ 3

1. Exhibit 1004 – Translation of German Patent No. DE 198

00 953 C1 (“Ritter”). ................................................................... 3

2. Exhibit 1005 – Certified Translation of Japanese

Unexamined Patent Application Publication H10-303849

(“Van Nee”). ............................................................................... 4

3. Exhibit 1006 – “A pilot based dynamic channel

assignment scheme for wireless access TDMA/FDMA

systems,” Chuang, J.C.-I.; Sollenberger, N.R.; Cox, D.C.,

Universal Personal Communications, 1993. Personal

Communications: Gateway to the 21st Century.

Conference Record., 2nd International Conference on ,

vol.2, no., pp. 706,712 vol.2, 12-15 (“Chuang”). ....................... 4

4. Exhibit 1007 – U.S. Patent No. 6,721,569 (“Hashem I”). .......... 4

5. Exhibit 1008 – U.S. Patent No. 6,701,129 (“Hashem II”). ........ 4

B. Grounds for Challenge .......................................................................... 5

IV. Overview of the ‘748 Patent ............................................................................ 5

V. Claim Construction .......................................................................................... 6

ii

A. Pilot Symbol .......................................................................................... 7

B. SINR ...................................................................................................... 7

C. Preambles .............................................................................................. 9

D. Broadest Reasonable Construction For Remaining Terms ................... 9

VI. Level of Ordinary Skill in the Art ................................................................. 10

VII. Summary of Prior Art .................................................................................... 10

VIII. Identification of How the Challenged Claims Are Unpatentable ................. 12

A. Ground 1: Claims 8, 9, 21 and 22 are obvious over Ritter (Ex.

1004) in view of Van Nee (Ex. 1005) and Chuang (Ex. 1006) .......... 13

B. Ground 2: Claims 8, 9, 21 and 22 are obvious over Hashem I

(Ex. 1007) in view of Hashem II (Ex. 1008)....................................... 33

IX. Conclusion ..................................................................................................... 50

iii

TABLE OF AUTHORITIES

Cases

SAP America, Inc. v. Versata Development Group, Inc., CBM2012-00001, Paper

No. 70 (P.T.A.B. June 11, 2013) ............................................................................. 6

Ariosa Diagnostics v. Isis Innovation Ltd., IPR2012-00022, Paper No. 166

(P.T.A.B. Sept. 2, 2014) ……………….................................................................. 6

Foursquare Labs Inc. v. Silver State Intellectual Tech., Inc., IPR2014-00159, Paper

No. 13 (P.T.A.B. Aug. 1, 2014) ….......................................................................... 6

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

Am. Med. Sys., Inc. v. Biolitec, Inc., 618 F.3d 1354 (Fed. Cir. 2010) ..................... 9

St. Jude Medical, IPR2013-00041, Paper No. 12..................................................... 9

In re GPAC Inc., 57 F.3d 1573 (Fed. Cir. 1995).....................................................10

KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007) ........................................ passim

Statutes

§ 103 ............................................................................................................... passim

35 U.S.C. § 314 …................................................................................................... 5

35 U.S.C. § 325 ....................................................................................................... 2

Rules and Other Authorities

37 C.F.R. § 42.22 ............................................................................................... 3, 10

37 C.F.R. § 42.104 …......................................................................................... 3, 12

iv

37 C.F.R. § 42.300 .................................................................................................. 6

I. MANDATORY NOTICES

A. Real Parties-in-Interest

Kyocera Corporation and Kyocera Communications Inc. (collectively, the

“Petitioner”) are the real parties-in-interest.

B. Related Matters

As of the filing date of this petition and to best of Petitioner’s knowledge,

the challenged patent is involved in pending inter partes review proceedings

IPR2014-01406 (filed by BlackBerry Corporation and BlackBerry Limited,

together the “BlackBerry Petitioners”) and IPR2014-01524 (filed by Sony Mobile

Communications (USA) Inc.). There are two pending continuation applications –

14/294,106 and 14/294,117 – filed on June 2, 2014. The ‘748 patent is also

asserted in the following E.D. Tex. and N.D. Cal. litigation.

E.D. Tex. Case Caption Nos.

Adaptix, Inc. v. AT&T, Inc. 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. Huawei Techs. Co., Ltd. 6:13-cv-00438, ‘439, ’440, ‘441

Adaptix, Inc. v. ZTE Corp. 6:13-cv-00443, ‘444, ’445, ’446

Adaptix, Inc. v. NEC CASIO Mobile

Commc’ns, Ltd.

6:13-cv-00585, ‘922

Adaptix, Inc. v. Pantech Wireless, Inc. 6:13-cv-00778

N.D. Cal. Case Caption Nos.

Adaptix, Inc. v. BlackBerry Limited

(now dismissed, as discussed below)

5:14-cv-01380, ‘386,’387

Adaptix, Inc. v. Kyocera Corp. 3:14-cv-02894, ‘895

Adaptix, Inc. v. Apple, Inc. 5:13-cv-01776, ‘1777, ‘2023

Adaptix, Inc. v. AT&T, Inc. 5:13-cv-01778

2

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, ‘360

This petition presents substantially different arguments than any pending

petition for inter partes review. Some of the art and combinations presented in this

petition have not been used in any pending petition for any purpose. Other prior

references were used by the BlackBerry Petitioners, but as anticipatory references

rather than in a obviousness combinations. Moreover, Adaptix has dismissed

without prejudice the district court cases filed against the BlackBerry Petitioners

“pursuant to a written agreement signed and effective on October 15, 2014.” Ex.

1001, Joint Motion For Dismissal at 1; see also Ex. 1002, Order Granting Joint

Motion. In view of this agreement and dismissal, Kyocera expects the BlackBerry

petition will likely be withdrawn or not actively pursued by BlackBerry, further

reducing the burden on the Board with regard to petitions challenging the ‘748

patent. As such, even to the extent there is some overlap between the present

petition and that of the BlackBerry Petitioners with regard to some prior art, this

petition is the only opportunity for the Board to fully evaluate that prior art and

related arguments. For all of these reasons, this petition, filed by a different

petitioner accused of infringing the ‘748 patent should proceed. 35 U.S.C. 325(d).

3

C. Counsel

Lead Counsel: Marc K. Weinstein (Registration No. 43,250)

Backup Counsel: Ryan Goldstein, David Eiseman, Robert Hill (Pro Hac

Vice applications to be filed)

D. Service Information

Email: [email protected]

Post: Quinn Emanuel Urquhart & Sullivan LLP, NBF Hibiya Bldg., 25F,

1-1-7 Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-0011, Japan

Telephone: +813-5510-1711 Facsimile: +813-5510-1712

II. CERTIFICATION OF GROUNDS FOR STANDING

Petitioner certifies pursuant to Rule 42.104(a) that the patent for which review

is sought is available for inter partes review and that Petitioner is not barred or

estopped from requesting an inter partes review challenging the patent claims on

the grounds identified in this Petition.

III. OVERVIEW OF CHALLENGE AND RELIEF REQUESTED

Pursuant to Rules 42.22(a)(1) and 42.104(b)(1)-(2), Petitioner challenges

claims 8, 9, 21 and 22 of U.S. Patent No. 6,947,748 (the “‘748 patent,” Ex. 1003).

A. Prior Art Patents and Printed Publications

Petitioner relies upon the following patents and printed publications.

1. Exhibit 1004 – Translation of German Patent No. DE 198 00 953

4

C1 (“Ritter”).

Ritter is prior art under 35 U.S.C. § 102(b) based on its July 22, 1999 issue

date. Citations to Ritter herein refer to the English translation of Ritter which was

substantively considered during prosecution of the U.S. Pat. No. 7,454,212, related

to the ‘748 patent. See, e.g., Ex. 1012 at 4 et seq.

2. Exhibit 1005 – Certified Translation of Japanese Unexamined

Patent Application Publication H10-303849 (“Van Nee”).

Van Nee is prior art under 35 U.S.C. § 102(b) based on its November 1998

publication date. Van Nee was not cited during the prosecution of the ‘748 patent.

3. Exhibit 1006 – “A pilot based dynamic channel assignment

scheme for wireless access TDMA/FDMA systems,” Chuang, J.C.-

I.; Sollenberger, N.R.; Cox, D.C., Universal Personal

Communications, 1993. Personal Communications: Gateway to the

21st Century. Conference Record., 2nd International Conference

on , vol.2, no., pp. 706,712 vol.2, 12-15 (“Chuang”).

Chuang is prior art under 35 U.S.C. § 102(b) based on its October 1993

publication date. Chuang was not cited during the prosecution of the ‘748 patent .

4. Exhibit 1007 – U.S. Patent No. 6,721,569 (“Hashem I”).

Hashem I is prior art under 35 U.S.C. § 102(e) based on its September 29,

2000 filing date. Hashem I was not cited during the prosecution of the ‘748 patent.

5. Exhibit 1008 – U.S. Patent No. 6,701,129 (“Hashem II”).

Hashem II is prior art under 35 U.S.C. § 102(e) based on its September 27,

2000 filing date. Hashem II was not cited during the prosecution of the ‘748

5

patent.

B. Grounds for Challenge

Petitioner requests cancelation of the challenged claims under the following

statutory grounds:

1. Claims 8, 9, 21 and 22 are obvious over Ritter in view of Van Nee and

Chuang under 35 U.S.C. § 103(a).

2. Claims 8, 9, 21 and 22 are obvious over Hashem I in view of Hashem II

under 35 U.S.C. § 103(a).

Section VIII below contains detailed claim charts that demonstrate, for each of

the statutory grounds, that there is a reasonable likelihood that Petitioner will

prevail with at least one of the challenged claims. See 35 U.S.C. § 314(a).

IV. OVERVIEW OF THE ‘748 PATENT

The ‘748 patent (Ex. 1003) issued on September 20, 2005, from Application

No. 09/738,086, which was filed on December 15, 2000.

The ‘748 patent describes a method and apparatus for enabling subcarrier

selection in a cellular system. Ex. 1003 at Abstract. To make the selection, each

subscriber measures channel and interference information for a plurality of

subcarriers. Id. The measurement can be based on pilot symbols received from a

base station. Id. A subscriber selects a set of candidate subcarriers and provides

feedback information on the set of candidate subcarriers to the base station. Id. In

6

response, the base station selects subcarriers from the set and provides an

indication to the subscriber of the selected subcarriers for use by the subscriber. Id.

In addition to providing feedback information, the subscriber can send an

indication of coding and modulation the subscriber desires to use. Id. at 18:4-6.

V. CLAIM CONSTRUCTION

In accordance with 37 C.F.R. § 42.300(b), the challenged claims must be

given their broadest reasonable interpretations (“BRI”) in light of the specification.

The Board has recognized that although proceedings in a district court are subject

to a narrower standard for claim construction, the positions of the parties and the

determinations of the court in proceedings with respect to the challenged claims

are nonetheless instructive as the Board construes terms. See, e.g., SAP America,

Inc. v. Versata Development Group, Inc., CBM2012-00001, Paper No. 70 at 19-24

(P.T.A.B. June 11, 2013). Furthermore, the Board has recognized the incongruity

of adopting a narrower construction for the purpose of its review than was adopted

in parallel venues that apply a narrower standard: “[W]e find it incongruous to

adopt a narrower construction in this proceeding, wherein the claims are construed

using the broadest reasonable interpretation standard, than was adopted in Ariosa

Diagnostics, in which a narrower, Phillips construction standard applied.” Ariosa

Diagnostics v. Isis Innovation Ltd., IPR2012-00022, Paper No. 166 at 24 (P.T.A.B.

Sept. 2, 2014). See also, e.g., Foursquare Labs Inc. v. Silver State Intellectual

7

Tech., Inc., IPR2014-00159, Paper No. 13 at 4 (P.T.A.B. Aug. 1, 2014) (the Board

revisited and broadened its previous construction of a term, and further noted that

its new construction was “consistent with the district court’s construction of the

term”).

Because the standard for claim construction at the PTO is different than that

used in litigation, see In re Am. Acad. Of Sci. Tech Ctr., 367 F.3d 1359, 1364, 1369

(Fed. Cir. 2004); MPEP § 2111, Kyocera expressly reserves the right to argue in

litigation a different claim construction for any term in the ‘748 patent, as

appropriate to that proceeding.

A. Pilot Symbol

In other litigation involving the ‘748 patent, a court construed the term “pilot

symbols” to mean “symbols, sequences, or signals known to both the base station

and subscriber.” Ex. 1009, E.D. Tex. CCO II at 17. Further, the specification of

the ‘748 patent is clear that the “pilot symbol” concept includes different types of

sequences and pilot signals. See, e.g., Ex. 1003, ‘748 Patent at 5:28-30 (“The pilot

symbols, often referred to as a sounding sequence or signal, are known to both the

base station and the subscribers”). Accordingly, the BRI of “pilot symbol” is

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

B. SINR

8

In other litigation involving the ‘748 patent, a court construed the term

“SINR” to mean “signal-to-interference-plus-noise ratio.” Ex. 1010, E.D. Tex.

CCO I at 33. In cellular system, a wireless communication link has a certain

signal-to-interference-plus-noise ratio (SINR), where the “signal” refers to the

signal power seen at the receiver. Bambos Decl. ¶¶ 53. The “noise” refers to the

power of the thermal noise at the receiver, which is typically constant as it

primarily depends on the electronic and thermal properties of the link receiver

circuits. Id. ¶¶ 54. The “interference” refers to the cumulative power, that is

received at the link’s receiver, of signals transmitted by the transmitters of other

communication links operating in the same channel. Id. ¶¶ 55. Because, the

“noise” is fixed while the interference is variable and often substantially larger

than noise, the terms “signal-to-interference ratio” (SIR or S/I, or C/I, where C

stands for “carrier,” which is equivalent to “signal”) and “signal-to-interference-

plus-noise-ratio” (SINR) can be broadly used interchangeably. Id. ¶¶ 56. Even

under the narrowest possible interpretation where noise is excised from SIR and

included in SINR, a high SIR implies and is correlated with a high SINR and vice

versa, which is consistent with the fact that both SINR and SIR (as well as S/I and

C/I) are metrics of transmission quality. Id. Accordingly, the BRI of “SINR” is

“signal-to-interference-plus-noise ratio and related measures such as signal-to-

9

interference ratio (SIR or S/I), carrier-to-interference-plus-noise ratio (C/(I+N)),

and carrier-to-interference ratio (C/I).” Id.

C. Preambles

The preambles of the claims are generally not limiting. See, e.g., Am. Med.

Sys., Inc. v. Biolitec, Inc., 618 F.3d 1354, 1358-59 (Fed. Cir. 2010). Although the

‘748 patent specification makes clear that claim preambles should not be limiting,

see, e.g., Ex. 1003, ‘748 patent at 3:6-7, the prior art satisfies the preambles as

shown below in the claim charts for the specific grounds.

D. Broadest Reasonable Construction For Remaining Terms

In the context of this proceeding and the prior art relied upon herein, Petitioner

submits that all other claim terms are limitations that may be afforded their plain

and ordinary meanings, and that further construction of those terms is not

necessary in this proceeding. See St. Jude Medical, IPR2013-00041, Paper No. 12

at 5–6.1

1 Other forums, such as the District Courts, require different standards of

proof and claim interpretation that are not applied by the PTO for inter partes

review. Accordingly, any interpretation or construction of the challenged claims in

this Petition, either implicitly or explicitly, should not be viewed as constituting,

in whole or in part, Petitioner’s own interpretation or construction, except as

regards the broadest reasonable construction of the claims presented.

10

VI. LEVEL OF ORDINARY SKILL IN THE ART

A person of ordinary skill in the art for this patent would have either a

Bachelor’s degree in electrical engineering or a similar degree, with at least three

to five years of experience in wireless communication technology, or the

equivalent. Id. ¶¶ 36-38. The level of ordinary skill in the art is also evidenced by

the references. See In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)

(determining that the Board did not err in adopting the approach that the level of

skill in the art was best determined by references of record).

VII. SUMMARY OF PRIOR ART

Pursuant to 37 C.F.R. § 42.22, Petitioner submits the following statement of

material facts:

Ritter (Ex. 1004)

Ritter is an adaptive channel allocation system which uses OFDMA carriers.

Ex. 1004, Ritter at 4. In Ritter, each mobile station measures the quality of various

segments of the frequency spectrum, determines at least one suitable segment

based on the quality measurement, and transmits the appropriate information to the

base station. Id. at 12-14. The base station then uses that information to assign

segments to the mobile station. Id. at 12-14.

Van Nee (Ex. 1005)

Van Nee teaches a “dynamically scaleable OFDM (orthogonal frequency

11

division multiplexing) system” for adaptive channel allocation that “increases

flexibility and adaptability by enabling the scaling (scaling [alternative spelling in

Japanese]) of the operating parameters or characteristics of the system.” Ex. 1005,

Van Nee at Abstract; see also e.g. id. at p. 9, ll. 6-9 (“[A] certain subset of carriers

can by dynamically selected while taking into account feedback (feedback

[alternative spelling in Japanese]) from the adaptive antenna control circuit”). A

major feature of Van Nee is that the scaleable OFDM system can dynamically

adjust coding and modulation rates, among other parameters of the system. Ex.

1005, Van Nee at p. 4, ll. 22-33. Such dynamic adjustment is controlled by a

control circuit residing in the mobile unit. Ex. 1005, Van Nee at p. 4, ll. 11-16, p.

7, ll. 10-22, Figs. 1, 4 and 5.

Chuang (Ex. 1006)

Chuang discloses a system for using pilot signals to permit mobile units to

evaluate channel interference for the purposes of facilitating an adaptive channel

allocation system. Ex. 1006, Chuang at 708, lines 11-18.

Hashem I (Ex. 1007)

Hashem I discloses a method and apparatus for OFDM-based adaptive

allocation of channels (sub-carriers). Ex. 1007, Hashem I at Abstract. Specifically,

Hashem I discloses a system “for selecting and signaling the identity of sub-

carriers to be used for transmission of data in a radio communication system, and

12

for using other sub-carriers. A remote unit determines which sub-carriers are

acceptable for use in data transmission by comparing the signal to interference

ratio of each subcarrier with a threshold. A base station transmits data over the

acceptable sub-carriers . . . .” Id.

Hashem II (Ex. 1008)

Hashem II discloses an OFDM-based adaptive channel allocation system

wherein a “remote unit measures the channel quality of a radio channel along

which a signal from a base station reached the remote unit.” Ex. 1008, Hashem II

at Abstract. “Based on the channel quality, the remote unit determines a desired

set of transmission parameters from a list of sets of transmission parameters.” Id.

Hashem I on its face purports to incorporate Hashem II by reference. Ex. 1007,

Hashem I at 7:1-7 (“Overhead on the reverse link can be reduced if the remote unit

calculates the optimum Link Mode itself and transmits a reference to the optimum

Link Mode to the base station, as disclosed in a U.S. patent application entitled

“Receiver based adaptive modulation scheme” by Hashem et al., filed on Sep. 27,

2000, and assigned to the assignee of the present application, and incorporated by

reference herein.”).

VIII. IDENTIFICATION OF HOW THE CHALLENGED CLAIMS ARE

UNPATENTABLE

Pursuant to Rule 42.104(b)(4)-(5), the following charts demonstrate that the

challenged claims are unpatentable.

13

A. Ground 1: Claims 8, 9, 21 and 22 are obvious over Ritter (Ex. 1004) in

view of Van Nee (Ex. 1005) and Chuang (Ex. 1006)

’748 Patent Claim 8 Disclosure

8. A method for

subcarrier

selection for a

system

employing

orthogonal

frequency

division multiple

access (OFDMA)

comprising:

Ritter discloses a method for subcarrier selection for a system

employing orthogonal frequency division multiple access

(OFDMA)[“OFDMA multi-carrier procedure”].

“The procedure of the invention begins with the OFDMA

multi-carrier procedure2 and the use of a number of

subcarriers which are assigned for the communication link

between the base station and the mobile stations.” Ritter at 4;

see also Ritter at 5 (summarizing the radio system aspect of the

invention).

[a][1] a

subscriber

measuring

channel

and

interferenc

e

informatio

n for a

plurality of

subcarriers

Ritter discloses a subscriber [“mobile station MS”] measuring

channel and interference information [“measures the quality of

various segments of the frequency spectrum;” quality includes

determining if interference or noise is present] for a plurality of

subcarriers [“checks the quality of each individual sub-carrier ”].

“According to the device of the invention every mobile station, 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 individual sub-carrier and then

determines the quality of the sub-carriers.” Ritter at 12.

“Figure 4 shows a schematic depiction of the amplitude modulation

of the transmitted data symbols on a OFDMA subcarrier to measure the quality of the segments through each mobile station.

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. For every transmitted data symbol in a time slot an FFT

signal processing is performed and the signal processing is continued

in a carrier-selective manner for the sub-carriers of the segment.

There thus arises a resulting signal, rs, from a wanted signal, ss, by

2 All emphases are added unless otherwise stated.

14

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 interference 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 amplitudes of all data symbols manifest the same value.

Relative 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

20-22.

[a][2]

based on

pilot

symbols

received

from a base

station;

Chuang discloses pilot symbols received from a base station [“pilot

signals to permit portables to evaluate downlink interference”], and

further that those pilot symbols are used by the subscriber

[“portable”] to measure channel and interference information for a

plurality of subcarriers [“to evaluate downlink interference”].

“A common control frequency, which is frame-synchronized

among base stations, provides (1) beacons for portables to locate

base-stations and obtain DCA information, (2) broadcast channels

for system and alerting information, and (3) pilot signals to permit

portables to evaluate downlink interference.” Chuang Abstract.

“The portable makes measurements on the pilots corresponding

to the downlinks of the traffic channels on the short list, and it

chooses as the final paired communications channel that channel

with the lowest measured power. In this manner, both the port

and the portable provide significant input into the distributed

DCA algorithm to select channels with low interference on both the uplink and downlink.” Chuang at 708, lines 12-19.

[b] the

subscriber

selecting a

set of

candidate

subcarriers;

Ritter discloses the subscriber [“mobile station”] selecting a set of

candidate subcarriers [“determines at least a suitable segment

preferred for its own communication link”].

“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

15

station determines a segment, Sx, with subcarriers oc00 ... oc40 as

the best suitable segment for it. In addition, it determines the

segments, Sy, Sz as additional suitable segments preferred for its own

communication link.” Ritter at 12-13; see also 15 (discussing “sub-

carriers also categorized as suitable by the mobile stations”).

[c] the

subscriber

providing

feedback

informatio

n on the set

of

candidate

subcarriers

to the base

station;

Ritter discloses the subscriber [“mobile station”] providing feedback

information [“suitability for the communication link;” “average

value”/”quality value for the entire segment” ] on the set of candidate

subcarriers to the base station.

“According to the device of the invention every mobile station, 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 individual sub-carrier and then

determines the quality of the sub-carriers. 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 ocOO ... Oc40 as the best suitable

segment for it. In addition, it determines the segments, Sy, Sz as

additional suitable segments preferred for its own communication link. Information 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. In a similar

manner, the second mobile station determines a segment, Sa, with

sub-carriers oc41 ... oc60 as the suitable segment best for it. In

addition, it determines segments, Sb, Sc, as additional suitable

segments preferred for its own communication link. Information

about segments Sa, Sb, Sc is entered on a priority list, PL2, numbered

according to their suitability for the communication link and likewise

is sent to the base station, BS.” Ritter at 12-13; see also Fig. 1

(showing three mobile stations, MS).

“For each sub-carrier, oc, the mobile station checks as a second step

(2), whether an amplitude modulation is present in the data symbols

transmitted in the time slot, ts, and thus has a measurement result

about the quality of the respective sub-carrier, oc. It forms an

average value from the results of the check for all subcarriers

belonging to a selected segment which results in a quality value for the entire segment.” Ritter at 18-19.

16

“Figure 4 shows a schematic depiction of the amplitude modulation

of the transmitted data symbols on a OFDMA subcarrier to measure the quality of the segments through each mobile station.

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. For every transmitted data symbol in a time slot an FFT

signal processing is performed and the signal processing is continued

in a carrier-selective manner for the sub-carriers of the segment.

There thus arises a resulting signal, rs, from a wanted signal, 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 interference 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 amplitudes of all data symbols manifest the same value.

Relative 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

20-22.

[d] the

subscriber

sending an

indication

of coding

and

modulation

rates that

the

subscriber

desires to

employ for

each

cluster; and

“Each cluster" is indefinite due to antecedent basis failure, but

Kyocera interprets it as referencing the "set of candidate subcarriers"

for purposes of this petition only. Van Nee discloses the subscriber

[a “remote station” or “mobile unit” containing a “dynamically

scaleable OFDM transmitter”, which in turn contains the “dynamic

control circuit”] sending an indication of coding and modulation rates

[“dynamically scaled or adjusted” “coding rate” and “carrier

modulation scheme”].

“The scalable OFDM system can scale operating parameters or

characteristics in various ways. For example, in order to dynamically

scale the transmission rate, the scalable OFDM system can

dynamically adjust the symbol duration, the coding rate, the number

of bits per symbol per carrier, or the number of carriers in

accordance with the desired operating parameters or characteristics.

17

In this particular example, depending on how the control circuit

scales the transmission rate, the scalable OFDM system scales the

delay spread tolerance, the SN ratio (SNR, signal-to-noise ratio), and

the signal bandwidth in different ways. Therefore, the scalable

OFDM system thus becomes an attractive scheme for the

implementation of a flexible and (dynamically) scalable

communication system.

(0018) For example, in order to double the transmission rate of the

scalable OFDM system, the following operating parameters or

characteristics of the system can be dynamically scaled or adjusted.

1. Coding rate

A channel code is typically used to reduce the rate of bit errors

caused by OFDM-specific channel noise (channel impairment) such

as multipath (multiple carrier paths) among the carriers. The rate of

such a code can be varied so as to establish a relationship in which

the bit rate is traded off against the bit error rate.

2. Carrier modulation scheme

By doubling the number of bits per symbol per carrier, the

bandwidth and delay spread tolerance do not change. However, the

SN ratio (SNR, signal-to-noise ratio) decreases, thereby resulting in a

higher bit error rate. ” Van Nee at p. 4, ll. 4-30.

“FIG. 1 illustrates an OFDM transmitter having a signal circuit 11

which receives a stream of data bits from a data source 12. A coding

block 14 receives the data stream and divides the data stream into

successive groups or blocks of bits. The coding block 14 introduces

redundancy for forward error correction (forward direction error

correction) coding. In an embodiment according to another aspect of

the present invention, a variable data transfer rate in OFDM is

realized by using different forward error correction (forward

direction error correction) coding schemes or a variable

modulation scheme for each carrier as controlled by a dynamic control circuit 15.

(0021) For example, if a mobile unit is positioned at the edge of a

coverage zone (cover zone, service area), the dynamic control circuit

18

can reduce the coding rate in order to decrease the data transfer rate

so as to achieve the advantage of increased delay spread tolerance

and better SN ratio performance. Such a decrease in the coding rate

then leads to a decrease in spectral efficiency (the amount of bits per

second that can be transmitted in a certain bandwidth) proportional to

the decrease in the coding rate. ” Van Nee p. 4, ll. 5-21; Fig. 1:

“(0022) According to the principles of the present invention, the

dynamic control circuit 15 can respond to any of a number of

possible inputs in order to set the coding block 14 to an appropriate coding rate. For example, in an embodiment of a transceiver, the

dynamic control circuit 15 can detect transmission errors in the form

of feedback (feedback [alternative spelling in Japanese]) from an

OFDM receiver (FIG. 4) and dynamically reduce the coding rate. For

example, in an embodiment of a transceiver, the dynamic control

circuit 15 can detect transmission errors in the form of feedback

(feedback [alternative spelling in Japanese]) from an OFDM receiver

(FIG. 4) and dynamically reduce the coding rate. ” Van Nee at p. 4,

ll. 26-30.

“(0049) FIG. 5 illustrates an improved OFDM system 70 consisting

of a base station 72 and a plurality of remote stations 74. The remote

stations 74 use dynamically scalable OFDM transmitters 10 (FIG. 1) and receivers 30 (FIG. 4) in accordance with the principles of the

present invention in order to provide a dynamically scalable OFDM

system 70. The dynamic control circuits 15 (FIG. 1) and 47 (FIG. 4)

provide scalability of operating parameters or characteristics between

the base station 72 and the remote units 74.” Van Nee at p. 7, ll. 10-

21, Figs. 1, 4; Fig. 5:

19

[e] the

subscriber

receiving

an

indication

of

subcarriers

of the set

of

subcarriers

selected by

the base

station for

use by the

subscriber.

Ritter discloses the subscriber [“mobile station”] receiving an

indication of subcarriers of the set of subcarriers [“station

information about the assigned segment” ] selected by the base

station for use by the subscriber [the “base station” “assigns each

mobile station a segment for the respective communication link ”].

“The base station, BS, evaluates all information received from the

mobile stations, MS, and assigns each mobile station a segment for

the respective communication link depending on the evaluation. The

base station sends the mobile 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.

Obvious to Combine Chuang’s Use of Pilot Symbols to Measure Channel

Quality into Ritter’s System of Adaptive Channel Allocation

Ritter is an adaptive channel allocation system with mobile units and a base

station. Chuang describes a way to use pilot symbols sent by the base station to

facilitate channel quality measurements by a mobile unit in the context of an

20

adaptive channel allocation system. See Overview discussions above. In light of

such disclosures, to the extent that Ritter is found not to disclose pilot symbols,

it would have been obvious to one of ordinary skill in the art to combine Ritter

with Chuang, and a person skilled in the art would have been motivated to do so,

for at least five reasons. Ex. 1011, Bambos Dec. ¶¶ 60.

First, the ‘748 patent on its face acknowledges that the use of pilot symbols

for determining channel quality was a well-known prior art technology. Ex. 1003,

‘748 patent at 9:6-9 (“The channel/interference estimation by processing block

301 is well-known in the art by monitoring the interference that is generated due to

full-bandwidth pilot symbols being simultaneously broadcast in multiple cells.”).

As such, by admission of the ‘748 patent itself, a person of ordinary skill in the art

would have understood that such pilot symbols would be an effective way to

implement the channel monitoring described in Ritter. Therefore, Ritter alone

would render obvious all claim elements involving measuring pilot symbols to

determine channel quality. Moreover, a person of ordinary skill in the art would

think to, and be motivated to, combine Ritter with the teachings of specific

references which have strong teachings of pilot symbols in the context of adaptive

channel allocation, such as Chuang.

Second, combining Ritter and Chuang would have been a use of a known

technique to improve a similar device in the same way that would have been

21

obvious to try. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 402

(2007). Specifically, it would have been obvious to one skilled in the art to

improve the teachings of Ritter with those of Chuang. Ritter discloses the mobile

unit measures channel quality to facilitate adaptive channel allocation, and Chuang

discloses that its pilot symbol approach is well suited for just such measurements

in the same context. Ex. 1011, Bambos Dec. ¶¶ 62.

Third, combining Ritter and Chuang merely unites old elements with no

change in their respective functions. KSR at 416. For example, applying Chuang’s

teachings of a pilot symbol-based technique for channel measurement would not

require changes to Ritter’s adaptive channel allocation functionality. Ex. 1011,

Bambos Dec. ¶¶ 63. Indeed, Chuang would facilitate that functionality by giving

the system of Ritter a reliable way to measure channel quality in order to report

that information to inform channel assignment by the base station. And Chuang’s

functionality would not need to be changed to be applied in that context, as its pilot

symbol-based approach was intended to facilitate adaptive channel allocation. Id.

The elements would be used exactly as taught in each patent.

Fourth, incorporating Chuang into Ritter would have been a predictable

variation of a work in the same field of endeavor. KSR at 417. As such, one

skilled in the art would have been able to readily implement the variation. Given

that both systems arise in the same adaptive channel allocation context, adding a

22

feature from Chuang that is specifically intended to facilitate channel allocation

would have been a predictable variation on Ritter. See also, e.g., Ex. 1011,

Bambos Dec. ¶¶ 64. Mere common sense would suggest that the application of

Chuang’s pilot symbols to Ritter’s system would be a good idea. See also, e.g., id.

And fifth, combining Ritter with Chuang would have been responsive to the

direction and pressures of the marketplace. KSR at 401-02. By December of 1999,

the wireless revolution was already well underway, and as such, the market would

have both incentivized and demanded a reliable way of measuring channel quality

for use in determining channel allocation in order to give the most flexible and

robust wireless platform. Ex. 1011, Bambos Dec. ¶¶ 65.

Obvious to Combine Van Nee’s Teaching of Sending an Indication of Coding

and Modulation Rates into Ritter’s System of Adaptive Channel Allocation

As discussed immediately above, it would have been obvious to a person of

ordinary skill in the art to combine Ritter with Chuang. Van Nee, like Ritter, is an

OFDM-based adaptive channel allocation system using mobile units and a base

station. In light of such disclosures, to the extent that Ritter is found not to

disclose the subscriber sending an indication of coding and modulation rates that

the subscriber desires to employ for each cluster, it would have been obvious to

one of ordinary skill in the art to combine Ritter with Van Nee, which clearly

discloses such functionality. Specifically, Van Nee teaches that each mobile unit

has an “OFDM transmitter 10,” which includes “dynamic control circuits 15,” such

23

as depicted in Figs 4 and 5 below:

“Dynamic control circuits 15” in turn “provide scalability of operating parameters

or characteristics between the base station 72 and the remote units 74.” Ex. 1005,

Van Nee at p. 7, ll. 17-19. These operating parameters that the mobile unit’s

dynamic control circuits 15 scale are parameters or characteristics including coding

rate and carrier modulation, which is a modulation rate that determines the number

of bits per symbol per carrier. Id. at p. 4, ll. 4-30 (“[T]he following operating

parameters or characteristics of the system can be dynamically scaled or adjusted.

1. Coding rate. . . 2. Carrier modulation scheme By doubling the number of bits

per symbol per carrier, the bandwidth and delay spread tolerance do not change.

However, the SN ratio (SNR, signal-to-noise ratio) decreases, thereby resulting in

a higher bit error rate.”); Ex. 1011, Bambos Dec. ¶¶ 67.

As explained below, a person skilled in the art would have been motivated to

combine Ritter and Van Nee, for at least four reasons. Id. at ¶¶ 68.

24

First, combining Ritter and Van Nee would have been a use of a known

technique to improve a similar device in the same way that would have been

obvious to try. KSR at 402. Specifically, it would have been obvious to one

skilled in the art to improve the teachings of Ritter with those of Van Nee, as both

are OFDM-based adaptive channel allocation systems. Ex. 1011, Bambos Dec. ¶¶

68.

Second, combining Ritter and Van Nee merely unites old elements with no

change in their respective functions. KSR at 416. For example, applying Van

Nee’s teachings regarding coding and modulation rate requests would not require

changes to the adaptive channel allocation functionality described in Ritter. Ex.

1011, Bambos Dec. ¶¶ 69.

Adding Van Nee’s functionality to Ritter’s would not interfere with Ritter’s

adaptive allocation scheme. And Van Nee’s functionality would not need to be

changed to be applied in that context, as its disclosures arose in the context of

adaptive channel allocation and were intended to add functionality to such a

system. Ex. 1011, Bambos Dec. ¶¶ 69.

Third, incorporating Van Nee into Ritter would have been a predictable



that both systems arise in the same adaptive channel allocation context, adding a

25

feature from Van Nee that is specifically intended to facilitate channel allocation

would have been a predictable variation on Ritter. See also, e.g., 1011, Bambos

Dec. ¶¶ 70. Mere common sense would suggest that the application of Van Nee’s

disclosure of coding and modulation rate requests to Ritter’s system would be a

good idea. See also, e.g., id.

And fourth, combining Ritter with Van Nee would have been responsive to

the direction and pressures of the marketplace. KSR at 401-02. By December of

1999, the wireless revolution was already well underway, and as such, the market

would have both incentivized and demanded the most flexible and robust wireless

platform possible, which would include flexibility regarding coding and

modulation rate requests. Ex. 1011, Bambos Dec. ¶¶ 71.


9. The

method

defined in

claim 8

wherein

the

indication

of coding

and

modulation

rates

comprises

an SINR

index

indicative

of a coding

Van Nee discloses the indication of coding and modulation rates

comprises an SINR index indicative of a coding and modulation rate

[“the received signal-to-noise plus interference ratio”] which the base

station in turn uses to scale operating parameters such as data rate and

modulation; see also element 8[d] above].

“(0049) FIG. 5 illustrates an improved OFDM system 70 consisting

of a base station 72 and a plurality of remote stations 74. The remote

stations 74 use dynamically scalable OFDM transmitters 10 (FIG. 1)

and receivers 30 (FIG. 4) in accordance with the principles of the

present invention in order to provide a dynamically scalable OFDM

system 70. The dynamic control circuits 15 (FIG. 1) and 47 (FIG. 4)

provide scalability of operating parameters or characteristics between the base station 72 and the remote units 74. When

dynamically scaling the data transfer rate, the improved OFDM

system starts at a low data transfer rate between the base station 72

26

and

modulation

rate.

and a remote unit 74.

(0050) Further, the dynamic control circuit 15 (FIG. 1) of the

transmitting station increases the data transfer rate to the extent that

the system design and signal quality permit. If the signal quality

deteriorates, the dynamic control circuit 15 (FIG. 1) decreases the data transfer rate. The signal quality can be evaluated by one of the

following factors. Specifically, the received signal strength, the

received signal-to-noise plus interference ratio, detected errors

(CRC), and the presence of notifications (the lack of notifications that

the link for communication signals is inappropriate). Further, other

operating characteristics or parameters can be similarly monitored

and scaled.

(0051) The OFDM receiver 30 (FIG. 4) of the receiving station 72 or

74 can execute these evaluations for received signals. The dynamic

control circuit 47 then determines what data transfer rate or other

operating characteristics or parameters should be used and further

determines what data transfer rate or other operating characteristics or

parameters should be used in the reverse direction. Accordingly, the

receiver 30 provides feedback (feedback [alternative spelling in

Japanese]) to the dynamic control circuit 15 of the transmitter 10 of

the receiving station 72 or 74 so as to dynamically scale the operating

characteristics or parameters such as the data transfer rate between the

two stations.

(0052) Alternatively, the receiver 30 (FIG. 4) of the receiving station

72 or 74 can execute the signal quality evaluations and send back

quality-related information or a request for particular operating

characteristics or parameters such as the data transfer rate via the

transmitter 10 to the receiver 30 of the transmitting station 72 or 74.

Therefore, the receiver 30 of the transmitting station 72 or 74 can

provide feedback (feedback [alternative spelling in Japanese]) to the

dynamic control circuit 15 at the transmitting station 72 or 74 so as to

dynamically scale the operating characteristics or parameters such as

the data transfer rate between the stations 72 and 74.” Van Nee at p.

7, l. 10- p. 8, l. 6.

Obvious to Combine Ritter’s Use of an SINR Index to Indicate the Coding

and Modulation Rates as Taught by Van Nee

27

To the extent that Van Nee is found to not disclose that the indication of

coding and modulation rates comprises an SINR index indicative of a coding and

modulation rate, that is rendered obvious by Ritter in view of Van Nee.

Ritter discloses “sub-carriers also categorized as suitable by the mobile

stations” and average value from the results of the check [on amplitude modulation

present in data symbols] for all subcarriers belonging to a selected segment which

results in a quality value for the entire segment.” Ex. 1004, Ritter at 15, 18-19. As

shown above in Ground 1, claim 8 limitation [a][1], this check of data symbol

amplitude acts as a measure of channel quality, and detects interference or noise if

present. Id. at 20-22.

In cellular system, a wireless communication link has a certain signal-to-

interference-plus-noise ratio (SINR), where the “signal” refers to the signal power

seen at the receiver. Bambos Decl. ¶¶ 75. The “noise” refers to the power of the

thermal noise at the receiver, which is typically constant as it primarily depends on

the electronic and thermal properties of the link receiver circuits. Id. The

“interference” refers to the cumulative power, received at the link’s receiver, of

signals transmitted by the transmitters of other communication links operating in

the same channel. Id. Because, the “noise” is fixed while the interference is

variable and often substantially larger than noise, the terms “signal-to-interference

ratio” (SIR or S/I, or C/I, where C stands for “carrier,” which is equivalent to

28

“signal”) and “signal-to-interference-plus-noise-ratio” (SINR) can be broadly used

interchangeably. Id. Even under the narrowest possible interpretation where noise

is excised from SIR and included in SINR, a high SIR implies and is correlated

with a high SINR and vice versa. Id. Accordingly, the BRI of “SINR” is “signal-

to-interference-plus-noise ratio and related measures such as signal-to-interference

ratio (SIR or S/I), carrier-to-interference-plus-noise ratio (C/(I+N)), and carrier-to-

interference ratio (C/I).” Id.

Ritter’s disclosure of a “quality value” based on a measure of “interference or

noise” is clearly at least a “related measure” to S/I, (C/I+N)), (C/I) and similar

measures. Id. ¶¶ 76. Therefore, the “quality value” contains SINR information.

Moreover, as both an “average” value and as a value that would correlate to the

underlying interference measurement, the “quality value” is an “SINR index”

within the context of the ‘748 patent. See, e.g., Ex. 1003,‘748 Patent at 10:65-68

(“Typically, an index to the SINR level, instead of the SINR itself is sufficient to

indicate the appropriate coding/modulation for the cluster.”).

A person of ordinary skill in the art would understand that the SINR index

disclosed in Ritter could be used in the Van Nee system. Van Nee, as shown

immediately above, discloses that “received signal-to-noise plus interference ratio”

(SINR) information is used for scaling parameters. Ex. 1005, Van Nee at p. 7, ll.

25-26. For example, if the reported signal quality degrades, the dynamic control

29

circuitry can adjust the data rate as is appropriate for that new signal quality. Id.

Accordingly, it would be understood that the SINR index reported by Ritter could

be used as an indication of the appropriate coding and modulation rates for the

cluster in view of the disclosures of Van Nee. Ex. 1011, Bambos Dec. ¶¶ 77.


21. An apparatus comprising:

[a] a plurality of

subscribers in a

first cell to

generate

feedback

information

indicating

clusters of

subcarriers

desired for use

by the plurality

of subscribers;

and

Ritter discloses a plurality of subscribers in a first cell [each a

“mobile station”] to generate feedback information [“suitability

for the communication link;” “average value”/”quality value

for the entire segment”] indicating clusters of subcarriers

desired for use by the plurality of subscribers [“determines at

least a suitable segment preferred for its own communication

link and transmits appropriate information to the base station,

BS”].

“According to the device of the invention every mobile station,

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 individual

sub-carrier and then determines the quality of the sub-carriers.

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 ocOO ... Oc40 as the best suitable segment for

it. In addition, it determines the segments, Sy, Sz as additional

suitable segments preferred for its own communication link.

Information about segments Sx, Sy, Sz is entered on a priority


communication link and sent to the base station, BS. In a

similar manner, the second mobile station determines a

segment, Sa, with sub-carriers oc41 ... oc60 as the suitable

segment best for it. In addition, it determines segments, Sb, Sc,

as additional suitable segments preferred for its own

30

communication link. Information about segments Sa, Sb, Sc is

entered on a priority list, PL2, numbered according to their

suitability for the communication link and likewise is sent to

the base station, BS.” Ritter at 12-13; see also Fig. 1 (showing

three mobile stations, MS).

“For each sub-carrier, oc, the mobile station checks as a second

step (2), whether an amplitude modulation is present in the data

symbols transmitted in the time slot, ts, and thus has a

measurement result about the quality of the respective sub-

carrier, oc. It forms an average value from the results of the

check for all subcarriers belonging to a selected segment

which results in a quality value for the entire segment.” Ritter

at 18-19.

“Figure 4 shows a schematic depiction of the amplitude

modulation of the transmitted data symbols on a OFDMA

subcarrier to measure the quality of the segments through each mobile station. 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.

For every transmitted data symbol in a time slot an FFT signal

processing is performed and the signal processing is continued

in a carrier-selective manner for the sub-carriers of the

segment. There thus arises a resulting signal, rs, from a wanted

signal, 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

interference 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

amplitudes of all data symbols manifest the same value.

Relative 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

31

communication link is determined.” Ritter at 20-22.

[b] a first base

station in the

first cell, the first

base station to

allocate OFDMA

subcarriers in

clusters to the

plurality of

subscribers;

Ritter discloses a first base station in the first cell [“base

station, BS”] , the first base station to allocate OFDMA

subcarriers in clusters to the plurality of subscribers [“assigns

each mobile station a segment for the respective

communication link”].

“The base station, BS, evaluates all information received from

the mobile stations, MS, and assigns each mobile station a

segment for the respective communication link depending on

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

[c][1] each of a

plurality of

subscribers to

measure channel

and interference

information for

the plurality of

subcarriers

Ritter discloses each of a plurality of subscribers [“every

mobile station, MS”] to measure channel and interference

information for the plurality of subcarriers [measures of

“interference or noise”].

“According to the device of the invention every mobile station,

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 individual

sub-carrier and then determines the quality of the sub-carriers.” Ritter at 12.

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

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 interference 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 amplitudes of all data

symbols manifest the same value. Relative 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 20-22.

32

[c][2] based on pilot symbols received from

the first base station and

See disclosure set forth at claim

element 8[a][2].

[c][3] at least

one of the

plurality of

subscribers to

select a set of

candidate

subcarriers from

the plurality of

subcarriers, and

Ritter discloses at least one of the plurality of subscribers

[“each mobile station”] to select a set of candidate subcarriers

from the plurality of subcarriers [“the first mobile station

determines a segment, Sx, with subcarriers oc00 ... oc40 as the

best suitable segment for ”].

“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 segment for it. In addition, it determines the segments, Sy, Sz as additional

suitable segments preferred for its own communication link.”

Ritter at 12-13; see also 15-16 (discussing “sub-carriers also

categorized as suitable by the mobile stations”).

[c][4] the one

subscriber to

provide feedback

information on

the set of

candidate

subcarriers to the

base station and

to

Ritter discloses the one subscriber to provide feedback

information on the set of candidate subcarriers to the base

station [segments “numbered according to their suitability for

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

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


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

13.

[c][5] receive an

indication of

subcarriers from

the set of

subcarriers

selected by the

first base station

for use by the

one subscriber,

Ritter discloses receiving an indication of subcarriers from the

set of subcarriers [“station information about the assigned

segment” ] selected by the first base station for use by the one

subscriber [the “base station” “assigns each mobile station a

segment for the respective communication link ”].

“The base station, BS, evaluates all information received from

the mobile stations, MS, and assigns each mobile station a

segment for the respective communication link depending on

the evaluation. The base station sends the mobile station

information about the assigned segment. It is assumed in this

33

example, that each mobile station, MS, can be assigned the best

suitable segment desired by it.” Ritter at 14.

[c][6] wherein the one subscriber sends an

indication of coding and modulation rates that

the one subscriber desires to employ.


element 8[d].


22. The apparatus defined in claim 21 wherein the indication

of coding and modulation rates comprises an SINR index

indicative of a coding and modulation rate.

See disclosure and

explanation set

forth at claim 9.

B. Ground 2: Claims 8, 9, 21 and 22 are obvious over Hashem I (Ex.

1007) in view of Hashem II (Ex. 1008)


Claim 8. A

method for

subcarrier

selection for a

system employing

orthogonal

frequency

division multiple

access (OFDMA)

comprising:

Hashem I discloses a method for subcarrier selection for a

system employing OFDMA [see explanation below chart].

“Referring to FIG. 1, a portion of a radio communication

system is shown. The radio communication system employs a

plurality of sub-carriers to transmit traffic from a base station

10 to a remote unit 16. For example, the radio communication

system may employ Orthogonal Frequency Division Multiplexing. A signal generator 36 within the base station 10

generates a signal 12. The signal is transmitted through a base

station transmitting antenna 14. Each sub-carrier carries data

encoded with a Link Mode. A Link Mode is a set of at least

one transmission parameter, such as a modulation level, a

coding rate, a symbol rate, a transmission power level, antenna

directional parameters, or space-time coding parameters.”

Hashem I at 4:3-15; see also, e.g., Hashem I Abstract; Hashem

I at 2:5-9; 2:25-27; 9:12-17.

[a][1] a

subscriber

measuring

Hashem I discloses a subscriber [“remote unit”] measuring

channel and interference information [“channel quality (such

as a signal to interference ratio or a reciprocal of an error rate)

34


channel and

interference

information for a

plurality of

subcarriers

”] for a plurality of subcarriers [“each group of sub-carrier

signals”].

“The present invention provides a method of selecting and

signalling the identity of acceptable groups of sub-carriers in a

radio communication system. A remote unit receives a signal

as more than one sub-carrier signal from a base station. The

remote unit determines a channel quality (such as a signal to

interference ratio or a reciprocal of an error rate) of each group of sub-carrier signals, and compares the channel

quality of each group of sub-carrier signals with a threshold.”

Hashem I at 2:25-33; See also Hashem I Abstract; Hashem I at

1:35-39; 2:8-9; 5:41-66; Fig. 3.

[a][2] based on

pilot symbols

received from a

base station;

Hashem II discloses pilot symbols received from a base station

[“pilot signals”]:

“The present invention also provides a method of determining

a signal to interference ratio of a signal sub-carrier in a

communication system. The communicating system includes

a base station which transmits a pilot signal to a remote unit over a pilot sub-carrier. The pilot signal may be either on or

off. The remote unit measures a signal strength of the pilot

sub-carrier when the pilot signal is on and measures a signal strength of the pilot sub-carrier when the pilot signal is off,

the latter being in effect a measurement of interference in the

pilot sub-carrier as there is no pilot signal. The remote unit

calculates a ratio of the signal strength when the pilot signal is on to the signal strength when the pilot signal is off.”

Hashem II at 2:65-3:10; See also Hashem II at Figs. 5-6.

[b] the subscriber

selecting a set of

candidate

subcarriers;

Hashem I discloses the subscriber [a “remote unit” which

contains “sub-carrier analysis processor 26”] selecting a set of

candidate subcarriers [“acceptable sub-carriers”].

“The sub-carrier analysis processor 26 compares the S/I of

each sub-carrier signal with a threshold to determine which

sub-carriers are acceptable sub-carriers. Acceptable sub-

carriers are sub-carriers for which the measured S/I of the

corresponding sub-carrier signal is higher than the threshold.”

35


Hashem I at 4:29-34; Hashem I Fig. 1, with emphasis added:

See also Hashem I Abstract; Hashem I at 2:25-40; 4:49-65;

5:41-6:3; 7:25¬67; Ex. 1008

[c] the subscriber

providing

feedback

information on

the set of

candidate

subcarriers to the

base station;

Hashem I discloses the subscriber [“remote unit”] providing

feedback information on the set of candidate subcarriers to the

base station [identification of average SI/I and identification of

acceptable sub-carriers”].

“Returning to FIG. 1, the remote unit 16 transmits a return

signal 30 along a reverse link to the base station 10 through a

remote unit transmitting antenna 28, which may or may not be

the same antenna as the remote unit receiving antenna 18. The

return signal 30 includes the average S/I of acceptable sub-

carriers and a sequence of numbers identifying the acceptable sub-carriers. If a value of “1” is used to identify

acceptable sub-carriers and a value of “0” is used to identify

unacceptable sub-carriers, or the reverse, then the sequence of

numbers can be a bitmask, using one bit to indicate the

acceptability of each sub-carrier. Of course other values can

36


be used to indicate which sub-carriers are acceptable and which sub-carriers are unacceptable, but then more bits are

required in the sequence of numbers for each sub-carrier. In

the example of FIG. 2, the remote unit 16 would transmit an

average S/I having a value of 9.1 dB and a bitmask having a

value of “111110000111”.” Hashem I at 4:49-65. See also

Hashem I Figs. 1 and 3.

[d] the subscriber

sending an

indication of

coding and

modulation rates

that the

subscriber desires

to employ for

each cluster; and

“Each cluster" is indefinite due to antecedent basis failure, but

Kyocera interprets it as referencing the "set of candidate

subcarriers" for purposes of this petition only. Hashem I

discloses the subscriber [“remote unit”] sending an indication

[“at least one value” by which the base station can determine

Link Mode] of coding and modulation rates that the subscriber

desires to employ for each cluster [“Link Mode,” including

transmission parameters such as modulation level and coding

rate].

“The remote unit generates at least one value by which the

base station can determine one or more Link Modes, a Link

Mode being a set of transmission parameters. The remote unit

transmits the sequence of numbers and the values by which

the base station can determine the Link Mode or Link Modes.” Hashem I at 2:43-49.

“A Link Mode is a set of at least one transmission parameter,

such as a modulation level, a coding rate, a symbol rate, a

transmission power level, antenna directional parameters, or

space-time coding parameters.” Hashem I at 4:11-15; See also,

e.g., Hashem I at 7:31-46; 1:12-31; 2:29-52; 4:26-65; 5:41-6:1;

7:13¬37; 7:47-67; 8:21-42; 8:45-49; Hashem I Figs. 3, 5, 6;

Hashem II Fig. 2.

[e] the subscriber

receiving an

indication of

subcarriers of the

set of subcarriers

selected by the

base station for

Hashem I discloses the subscriber receiving an indication of

subcarriers of the set of subcarriers selected by the base station

for use by the subscriber [“new optimum transmission

parameters”].

“The base station allocates for data transmission at one of

the Link Modes the sub-carriers which belong to the group

37


use by the

subscriber. of sub-carriers within the set of acceptable groups of sub-carriers.” Hashem I at 3:12-15.

Obvious to Combine Hashem II’s Use of Pilot Symbols to Measure Channel

Quality into Hashem I’s System of Adaptive Channel Allocation

Hashem I and Hashem II are both directed to an OFDM-based adaptive

channel allocation system. Indeed, the inventors of Hashem I and Hashem II

expressly considered both references to be part of an interlocking disclosure, with

Hashem II providing additional detail to Hashem I. Ex. 1007, Hashem I at 7:1-7.

In light of such disclosures, to the extent that Hashem I and Hashem II are not

treated as a single reference, it would have been obvious to one of ordinary skill in

the art to combine those references. Ex. 1011, Bambos Dec. ¶¶ 81. Moreover, a

person skilled in the art would have been motivated to do so, for at least five

reasons. Id.

First, as discussed above, Hashem I expressly calls on the reader to combine

its disclosures with those of Hashem II though incorporation by reference language.

Therefore, a person of ordinary skill in the art who read Hashem I would

necessarily understand that the references could be—and were intended to be—

readily combined. Id. at ¶¶ 82.

Second, as discussed above in Ground 1, the ‘748 patent on its face

acknowledges that the use of pilot symbols for determining channel quality was a

38

well-known prior art technology. Ex. 1003, ‘748 patent 9:7-9. As such, by

admission of the ‘748 patent itself, a person of ordinary skill in the art would have

understood that such pilot symbols would be an effective way to implement the

channel monitoring described in Hashem II. Therefore, Hashem I alone would

render obvious all claim elements involving measuring pilot symbols to determine

channel quality. Moreover, a person of ordinary skill in the art would think to, and

be motivated to, combine Hashem I with the teachings of specific references which

have strong teachings of pilot symbols in the context of adaptive channel

allocation, such as Hashem II.

Third, combining Hashem I with Hashem II would have been a use of a

known technique to improve a similar device in the same way that would have

been obvious to try. KSR at 402. Specifically, it would have been obvious to one

skilled in the art to improve the teachings of both Hashem references, as both are

OFDM-based adaptive channel allocation systems. Ex. 1011, Bambos Dec. ¶¶ 84.

Fourth, combining Hashem I and Hashem II merely unites old elements with

no change in their respective functions. KSR at 416. For example, applying

Hashem II’s teachings regarding the use of pilot symbols for purpose of measuring

channel quality would not interfere with the adaptive channel allocation

functionality of Hashem I. Ex. 1011, Bambos Dec. ¶¶ 85. Indeed, Hashem II’s

teachings are specifically intended to augment and facilitate—but not interfere

39

with—the functionality of Hashem I. Id.

Fifth, incorporating Hashem II into Hashem I would have been a predictable



that both systems arise in the same OFDM-based adaptive channel allocation

context, adding a feature from Hashem II that is specifically intended to facilitate

channel quality measurement would have been—and demonstrably was—a

predictable variation of Hashem I. See also, e.g., Bambos Dec. ¶¶ 86. Mere

common sense would suggest that the application of Hashem II’s pilot symbol

system to Hashem I would be a good idea. See also, e.g., id.

And sixth, combining Hashem I with Hashem II would have been responsive

to the direction and pressures of the marketplace. KSR at 401-02. By December of

1999, the wireless revolution was already well underway, and as such, the market

would have both incentivized and demanded the most flexible and robust wireless

platform possible, which would include a reliable method for measuring channel

quality, as described in Hashem II. Ex. 1011, Bambos Dec. ¶¶ 87.

Multiple Mobile Stations are Inherent in the System of Hashem I

An OFDM system adapted for multiple mobile stations in the manner taught

by Hashem I is an OFDMA system. See, e.g., Ex. 1003, ‘748 patent at 2:29-35

(“Orthogonal frequency division multiple access (OFDMA) is another method for

40

multiple access, using the basic format of OFDM. In OFDMA, multiple

subscribers simultaneously use different subcarriers, in a fashion similar to

frequency division multiple access. . .”). To the extent that Hashem I is found not

to expressly disclose multiple mobile stations, that is inherent in its disclosure. For

example, those other mobile stations would be a primary source of the interference

measured by the Hashem I system. Ex. 1011, Bambos Dec. ¶¶ 88.

Multiple Mobile Stations Would Have Been Obvious in the System of

Hashem I

Further, to the extent that Hashem I is found not to disclose multiple mobile

stations, it would have been obvious to a person having ordinary skill in the art to

apply Hashem I’s disclosures to such a system. Id. at ¶¶ 89. Given the problem of

interference from other mobile stations in such a system, it would have been

obvious to apply Hashem I’s system for adaptive allocation of channels to a

multiple mobile station system to optimize the allocation of channels for each

mobile station. Id. This is especially true as Hashem I expressly explains that its

invention can be used with other systems which employ multiple sub-carriers

simultaneously, which OFDMA under any interpretation clearly does. Id.; see also,

e.g., Ex 1007, Hashem I at 9:12-16 (“Although the invention has been developed

for use with systems which employ Orthogonal Frequency Division Multiplexing,

it is possible that the invention could be used with other systems which employ

multiple sub-carriers simultaneously, and the invention is therefore considered not

41

to be limited to OFDM systems.”).


Claim 9. The method

defined in claim 8

wherein the indication

of coding and

modulation rates

comprises an SINR

index indicative of a

coding and modulation

rate.

Hashem I discloses the indication of coding and

modulation rates comprises an SINR index indicative of

a coding and modulation rate [see explanation below;

see also the disclosure set forth at claim element 8[d].]

“Returning to FIG. 1, the remote unit 16 transmits a

return signal 30 along a reverse link to the base station 10 through a remote unit transmitting antenna 28, which

may or may not be the same antenna as the remote unit

receiving antenna 18. The return signal 30 includes the

average S/I of acceptable sub-carriers and a sequence of numbers identifying the acceptable sub-carriers. If a

value of “1” is used to identify acceptable sub-carriers

and a value of “0” is used to identify unacceptable sub-

carriers, or the reverse, then the sequence of numbers

can be a bitmask, using one bit to indicate the

acceptability of each sub-carrier. Of course other values

can be used to indicate which sub-carriers are acceptable and which sub-carriers are unacceptable,

but then more bits are required in the sequence of

numbers for each sub-carrier. In the example of FIG. 2,

the remote unit 16 would transmit an average S/I having

a value of 9.1 dB and a bitmask having a value of

“111110000111”.” Hashem I at 4:49-65. See also


“If in the example of FIG. 2 a S/I of 10 dB or higher

(for example) allows use of a seventh Link Mode

within the set of allowed Link Modes, a S/I of 7 dB or

higher allows use of a sixth Link Mode within the set

of allowed Link Modes, and a S/I of 4 dB or higher

allows use of a fifth Link Mode within the set of allowed Link Modes (a higher ordinal rank of Link

Mode having a higher transmission rate), then the

remote unit transmits a sequence of numbers having a

value of “777660000567” to the base station along the

42


reverse link. A number having a value of “0” indicates

that the corresponding sub-carrier is unacceptable,

and a number having a value other than zero indicates

both that the corresponding sub-carrier is acceptable

and the Link Mode to be used when encoding data for transmission over that sub-carrier. The method carried

out by the remote unit is shown in FIG. 5.” Hashem I at

7:37-53; see also Figs. 2 and 5.

“The remote unit generates at least one value by which

the base station can determine one or more Link Modes, a Link Mode being a set of transmission

parameters. The remote unit transmits the sequence of

numbers and the values by which the base station can determine the Link Mode or Link Modes.” Hashem I at

2:43-49.

“A Link Mode is a set of at least one transmission

parameter, such as a modulation level, a coding rate, a symbol rate, a transmission power level, antenna

directional parameters, or space-time coding

parameters.” Hashem I at 4:11-15; See also, e.g.,

Hashem I at 7:31-46; 1:12-31; 2:29-52; 4:26-65; 5:41-

6:1; 7:13¬37; 7:47-67; 8:21-42; 8:45-49; Hashem I Figs.

3, 5, 6; Hashem II Fig. 2.

Hashem I Teaches an SINR Index

Signal to interference ratio “S/I” information is SINR information within the

BRI, as explained in the Claim Construction section above. Specifically, in

cellular system, a wireless communication link has a certain signal-to-interference-

plus-noise ratio (SINR), where the “signal” refers to the signal power seen at the

receiver. Bambos Decl. ¶¶ 53. The “noise” refers to the power of the thermal

43

noise at the receiver, which is typically constant as it primarily depends on the

electronic and thermal properties of the link receiver circuits. Id. ¶¶ 54. The

“interference” refers to the cumulative power, received at the link’s receiver, of

signals transmitted by the transmitters of other communication links operating in

the same channel. Id. ¶¶ 55. Because, the “noise” is fixed while the interference is

variable and often substantially larger than noise, the terms “signal-to-interference

ratio” (SIR or S/I, or C/I, where C stands for “carrier,” which is equivalent to

“signal”) and “signal-to-interference-plus-noise-ratio” (SINR) can be broadly used

interchangeably. Id. ¶¶ 56. Even under the narrowest possible interpretation

where noise is excised from SIR and included in SINR, a high SIR implies and is

correlated with a high SINR and vice versa. Id. For all of these reasons, the BRI

of “SINR” is “signal-to-interference-plus-noise ratio and related measures such as

signal-to-interference ratio (SIR or S/I), carrier-to-interference-plus-noise ratio

(C/(I+N)), and carrier-to-interference ratio (C/I).” Id.

Hashem I’s disclosure of the remote unit sending “return signal 30 includes the

average S/I of acceptable sub-carriers and a sequence of numbers identifying the

acceptable sub-carriers” is an “SINR index” within the context of the ‘748 patent.

See, e.g., Ex. 1007, Hashem I at 4:49-65; Ex. 1003, ‘748 Patent at 10:65-68

(“Typically, an index to the SINR level, instead of the SINR itself is sufficient to

indicate the appropriate coding/modulation for the cluster.”). See also, Ex. 1011,

44

Bambos Dec. ¶¶ 91. Hashem I discloses that this reported S/I level in turn

determines which Link Modes are appropriate for that sub-carrier. Ex. 1007,

Hashem I at 7:37-53. This Link Mode determines modulation and coding rate,

among other parameters. Id. at 4:11-15 (“A Link Mode is a set of at least one

transmission parameter, such as a modulation level, a coding rate, a symbol rate, a

transmission power level, antenna directional parameters, or space-time coding

parameters.”). Therefore, when the system of Hashem I provides its SINR index

information, that information is an indication of coding and modulation rates

within the context of the system. Ex. 1011, Bambos Dec. ¶¶ 92. A person of

ordinary skill in the art would readily understand this, as it allows the system to

provide appropriate coding and modulation rate in view of the measured and

reported conditions of the subcarriers. Id.


Claim 21. An apparatus comprising:

[a] a plurality of

subscribers in a

first cell to generate

feedback

information

indicating clusters

of subcarriers

desired for use by

the plurality of

subscribers; and

Hashem I discloses a plurality of subscribers in a first cell to

generate feedback [“average S/I of acceptable sub-carriers”]

information indicating clusters of subcarriers desired for use

by the plurality of subscribers [“acceptable subcarriers,” “a

sequence of numbers identifying the acceptable sub-

carriers”].

“This invention relates to digital radio communication systems employing multiple sub-carriers, and more

particularly to dynamic use of sub-carriers within such

systems.” Hashem I at 1:4-6.


45


signal 30 along a reverse link to the base station 10 through a remote unit transmitting antenna 28, which may or may

not be the same antenna as the remote unit receiving antenna

18. The return signal 30 includes the average S/I of

acceptable sub-carriers and a sequence of numbers identifying the acceptable sub-carriers. If a value of "1" is

used to identify acceptable sub-carriers and a value of "0" is

used to identify unacceptable sub-carriers, or the reverse,

then the sequence of numbers can be a bitmask, using one bit

to indicate the acceptability of each sub-carrier. Of course

other values can be used to indicate which sub-carriers are acceptable and which sub-carriers are unacceptable, but

then more bits are required in the sequence of numbers for

each sub-carrier. In the example of FIG. 2, the remote unit 16

would transmit an average S/I having a value of 9.1 dB and a

bitmask having a value of ‘111110000111’.” Hashem I at

4:49-65. See also Hashem I at 1:35-40; 1:55-60; 1:67-2:4;

2:29-48; 2:49-60; 2:66-3:3; 5:41¬64; 7:25-67; 8:21-42; Figs

1, 3, 5.

[b] a first base

station in the first

cell, the first base

station to allocate

OFDMA

subcarriers in

clusters to the

plurality of

subscribers;

Hashem I discloses a first base station in the first cell, the

first base station to allocate OFDMA subcarriers in clusters

to the plurality of subscribers [defining a set of acceptable

groups of subcarriers].

“Referring to FIG. 1, a portion of a radio communication

system is shown. The radio communication system employs

a plurality of sub-carriers to transmit traffic from a base

station 10 to a remote unit 16. For example, the radio

communication system may employ Orthogonal Frequency Division Multiplexing. ” Hashem I at 4:3-8; see also, e.g.,

Hashem I at 2:5-9; 9:12-17.

“A base station receives a return signal, and extracts from the

return signal a sequence of numbers, each number

corresponding to one group of subcarriers, and at least one

value by which the base station can determine at least one

Link Mode. The base station determines at least one Link

Mode based on the at least one value. The base station

46


defines a set of acceptable groups of sub-carriers as all

groups of sub-carriers for which the corresponding number has a value belonging to a first set of values, and defines a

set of unacceptable groups of subcarriers as all groups of

sub-carriers for which the corresponding number has a value

belonging to a second set of values, the two sets of values

having no values in common. The base station allocates for

data transmission at one of the Link Modes the sub-carriers

which belong to the groups of sub-carriers within the set of

acceptable groups of subcarriers.” Hashem I at 2:66-3:32.

See also Hashem I at Abstract; Hashem I at 1:33-51; 4:66-

5:40; 6:4-48; 6:49-67; 8:1-20; 8:31-42; Hashem I Figs. 1, 4,

6.

[c][1] each of a

plurality of

subscribers to

measure channel

and interference

information for the

plurality of

subcarriers

Hashem I discloses each of a plurality of subscribers

[“remote unit”] to measure channel and interference

information [“channel quality (such as a signal to

interference ratio or a reciprocal of an error rate) ”] for a

plurality of subcarriers [“each group of sub-carrier signals”].

“The present invention provides a method of selecting and

signalling the identity of acceptable groups of sub-carriers in

a radio communication system. A remote unit receives a

signal as more than one sub-carrier signal from a base station. The remote unit determines a channel quality (such

as a signal to interference ratio or a reciprocal of an error rate) of each group of sub-carrier signals, and compares the

channel quality of each group of sub-carrier signals with a

threshold.” Hashem I at 2:25-33; See also Hashem I

Abstract; Hashem I at 1:35-39; 2:8-9; 5:41-66; Fig. 3.

[c][2] based on

pilot symbols

received from the

first base station

and

Hashem II discloses pilot symbols received from a base

station [“pilot signals”]:

“The present invention also provides a method of

determining a signal to interference ratio of a signal sub-

carrier in a communication system. The communicating

system includes a base station which transmits a pilot signal to a remote unit over a pilot sub-carrier. The pilot

signal may be either on or off. The remote unit measures a

47


signal strength of the pilot sub-carrier when the pilot signal

is on and measures a signal strength of the pilot sub-carrier when the pilot signal is off, the latter being in effect a

measurement of interference in the pilot sub-carrier as there

is no pilot signal. The remote unit calculates a ratio of the

signal strength when the pilot signal is on to the signal strength when the pilot signal is off.” Hashem II at 2:65-

3:10; See also Hashem II at Figs. 5-6.

[c][3] at least one

of the plurality of

subscribers to

select a set of

candidate

subcarriers from

the plurality of

subcarriers, and

Hashem I discloses at least one of the plurality of subscribers

to select a set of candidate subcarriers from the plurality of

subcarriers [“acceptable subcarriers”].

“The sub-carrier analysis processor 26 compares the S/I of

each sub-carrier signal with a threshold to determine which

sub-carriers are acceptable sub-carriers. Acceptable sub-

carriers are sub-carriers for which the measured S/I of the

corresponding sub-carrier signal is higher than the threshold.” Hashem I at 4:29-36. See also Hashem I

Abstract; Hashem I at 2:25-40; 4:49-65; 5:41-6:3; 7:25¬67;

Hashem I Fig. 1 (emphasis added):

[c][4] the one Hashem I discloses the one subscriber [“remote unit”]

48


subscriber to

provide feedback

information on the

set of candidate

subcarriers to the

base station and to

providing feedback information on the set of candidate

subcarriers to the base station [identification of average SI/I

and identification of acceptable sub-carriers”].


signal 30 along a reverse link to the base station 10 through

a remote unit transmitting antenna 28, which may or may not

be the same antenna as the remote unit receiving antenna 18.

The return signal 30 includes the average S/I of acceptable

sub-carriers and a sequence of numbers identifying the acceptable sub-carriers. If a value of “1” is used to identify

acceptable sub-carriers and a value of “0” is used to identify

unacceptable sub-carriers, or the reverse, then the sequence

of numbers can be a bitmask, using one bit to indicate the

acceptability of each sub-carrier. Of course other values can

be used to indicate which sub-carriers are acceptable and which sub-carriers are unacceptable, but then more bits are

required in the sequence of numbers for each sub-carrier. In

the example of FIG. 2, the remote unit 16 would transmit an

average S/I having a value of 9.1 dB and a bitmask having a

value of “111110000111”.” Hashem I at 4:49-65. See also


[c][5] receive an

indication of

subcarriers from

the set of

subcarriers selected

by the first base

station for use by

the one subscriber,

Hashem I discloses receiving an indication of subcarriers of

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

by the one subscriber [“new optimum transmission

parameters”].

“The base station allocates for data transmission at one of

the Link Modes the sub-carriers which belong to the group

of sub-carriers within the set of acceptable groups of sub-carriers.” Hashem I at 3:12-15.

[c][6] wherein the one subscriber sends an

indication of coding and modulation rates

that the one subscriber desires to employ.


element 8[d].

If Hashem I is found not to expressly disclose a plurality of subscribers, that

is inherently disclosed in the reference. Specifically, a person of ordinary skill in

49

the art would understand that such other subscribers are the major source of the

interference reported via the reported S/I information. Ex. 1011, Bambos Dec. ¶¶

93. Even if Hashem I is not found to inherently disclose a plurality of

subscribers—which it does—the express disclosures of Hashem I render obvious

application to a multiple subscriber system. Id. ¶¶ 94. A person of ordinary skill

in the art would understand that multiple subscribers in a wireless system are a

major source of interference in such a system, and therefore Hashem I’s

disclosures regarding dynamic allocation of sub-carriers based on interference

information would be of ready application to such a system. Id.


Claim 22. The apparatus defined in claim 21 wherein the

indication of coding and modulation rates comprises an

SINR index indicative of a coding and modulation rate.

See the disclosure

and explanation set

forth at claim

element 9.

50

IX. CONCLUSION

For the foregoing reasons, Petitioner asks that inter partes review of the ‘748

patent be instituted and that claims 8, 9, 21 and 22 be rejected.

Respectfully Submitted,

Kyocera Corporation and Kyocera Communications Inc.,

Petitioner

By: /Marc K. Weinstein/

Marc K. Weinstein

Registration No. 43,250

QUINN, EMANUEL, URQUHART & SULLIVAN, LLP

Tel: +813-5510-1711

Fax: +813-5510-1712

51

EXHIBIT APPENDIX

Exhibit 1001 – Joint Motion For Dismissal in N.D. Cal. Case Nos. 5:14-cv-01380-

PSG, 5:14-cv-01386-PSG, 5:14-01387-PSG (“Joint Motion For Dismissal”)

Exhibit 1002 – Order Granting Joint Motion in N.D. Cal. Case Nos. 5:14-cv-

01380-PSG, 5:14-cv-01386-PSG, 5:14-01387-PSG (“Order Granting Joint

Motion”)

Exhibit 1003 – U.S. Patent No. 6,947,748 (for inter partes review)

Exhibit 1004 – Translation of German Patent No. DE 198 00 953 C1 (“Ritter”).

Exhibit 1005 – Certified Translation of Japanese Unexamined Patent Application

Publication H10-303849 (“Van Nee”)

Exhibit 1006 – “A pilot based dynamic channel assignment scheme for wireless

access TDMA/FDMA systems,” Chuang, J.C.-I.; Sollenberger,

N.R.; Cox, D.C., Universal Personal Communications, 1993.

Personal Communications: Gateway to the 21st Century.

Conference Record., 2nd International Conference on , vol.2, no.,

pp. 706,712 vol.2, 12-15 (“Chuang”)

Exhibit 1007 – U.S. Patent No. 6,721,569 (“Hashem I”)

Exhibit 1008 – U.S. Patent No. 6,701,129 (“Hashem II”)

Exhibit 1009 – Memorandum Opinion and Order on Claim Construction in E.D.

Tex. Case Nos. 6:13CV438, 6:13CV439, 6:13CV440, 6:13CV441, 6:13CV443,

6:13CV444, 6:13CV445 and 6:13CV446 (“E.D. Tex. CCO II”)

Exhibit 1010 – Memorandum Opinion and Order on Claim Construction in E.D.

Tex. Case Nos. 6:12CV17, 6:12CV20 and 6:12CV120 (“E.D. Tex. CCO I”)

Exhibit 1011 – Declaration of Dr. Nicholas Bambos (“Bambos Dec”)

Exhibit 1012 – File History of U.S. Patent No. 7,454,212 (excerpts)

Exhibit 1013 – Curriculum Vitae for Dr. Nicholas Bambos

52

Exhibit 1014 – Original Japanese Language Version of Japanese Unexamined

Patent Application Publication H10-303849

CERTIFICATE OF SERVICE

I hereby certify that, on November 26, 2014, I caused a true and correct copy

of the foregoing Petition for Inter Partes Review of U.S. Patent No. 6,947,748 with

Exhibits 1001-1014 to be served via FedEx 2Day delivery on the following:

MARTIN & FERRARO, LLP

1557 Lake O’Pines Street, NE

Hartville OH, 44632

Amedeo Ferraro

MARTIN & FERRARO, LLP

17383 Sunset Boulevard, Suite 250

Los Angeles, CA 90272

Telephone: (310) 286-9800

Facsimile: (310) 286-2795

Courtesy Copies to:

Paul J. Hayes

HAYES MESSINA GILMAN & HAYES LLC

200 State Street, 6th Floor

Boston, MA 02109

Telephone: (617) 345-6900

Facsimile: (617) 443-1999

By: /Marc K. Weinstein/ Marc K. Weinstein

Registration No. 43,250

IN THE UNITED STATES PATENT AND TRADEMARK...

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Transcript of IN THE UNITED STATES PATENT AND TRADEMARK...