Apple Inc.v.Cellular Communications Equipment LLC

Patent Trial and Appeal Board

Jun 12, 2015

11667595 (P.T.A.B. Jun. 12, 2015)

Trials@uspto.gov Paper 7
571–272–7822 Entered: June 12, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________

APPLE INC.,
Petitioner,

v.

CELLULAR COMMUNICATIONS EQUIPMENT, LLC,
Patent Owner.
_______________

Case IPR2015-00576
Patent 7,941,174 B2
_______________

Before JENNIFER S. BISK, GREGG I. ANDERSON, and
ROBERT J. WEINSCHENK, Administrative Patent Judges.

WEINSCHENK, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108

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I. INTRODUCTION
Apple Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting
inter partes review of claims 1–19 of U.S. Patent No. 7,941,174 B2
(Ex. 1001, “the ’174 patent”). Cellular Communications Equipment, LLC
(“Patent Owner”) filed a Preliminary Response to the Petition. Paper 6
(“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314, which
provides that an inter partes review may not be instituted “unless . . . there is
a reasonable likelihood that the petitioner would prevail with respect to at
least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a).
For the reasons set forth below, Petitioner does not demonstrate a
reasonable likelihood of prevailing in showing the unpatentability of
claims 1–19 of the ’174 patent. Accordingly, the Petition is denied, and no
trial is instituted.
A. Related Proceedings
The parties indicate that the ’174 patent is the subject of several co-
pending district court cases, as well as an inter partes review proceeding in
IPR2014-01134. Pet. 1–3; Paper 5, 2–3.
B. The ’174 Patent
The ’174 patent relates to a radio communication system in which a
subscriber station is assigned a plurality of codes for transmitting messages.
Ex. 1001, col. 1, ll. 14–17. According to the ’174 patent, when radio
transmission conditions deteriorate while a subscriber station is transmitting
a message, a base station may request that the subscriber station increase the
transmit power. Id. at col. 4, ll. 47–50. However, a subscriber station can
only increase the transmit power up to a maximum value for that subscriber
station. Id. at col. 4, ll. 50–52. As a result, if a subscriber station reaches the
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maximum transmit power during transmission of a message and
subsequently receives a request from the base station to increase the transmit
power, the subscriber station may have to abort transmission of the message
before completion. Id. at col. 5, ll. 54–61.
To address this problem, the ’174 patent describes a system in which
the subscriber station maintains a transmit power difference or “power
headroom.” Id. at col. 6, ll. 40–44. The transmit power difference is a
difference between the total transmit power at the start of a message
transmission and the total maximum transmit power for the plurality of
codes assigned to the subscriber station. Id. at col. 6, ll. 42–47. For
example, if the maximum transmit power for a subscriber station is 18 dBm
and a transmit power difference of 8 dBm is maintained by the subscriber
station, the subscriber station has 10 dBm of transmit power at the start of a
message transmission. Id. at col. 6, l. 55–col. 7, l. 3. As a result, if the base
station requests an increase in transmit power for one of the codes during
transmission, the subscriber station has 8 dBm of headroom to increase the
transmit power without having to abort the transmission. Id. at col. 6, ll. 40–
44. The amount of the transmit power difference maintained by a subscriber
station can be determined based on a variety of factors, including current
interference, type of service, network strategy, and subscriber class. Id. at
col. 7, ll. 29–30, col. 7, ll. 54–55, col. 8, ll. 8–9, col. 8, l. 13.
C. Illustrative Claim
Claims 1, 9, 17, and 18 are independent. Claim 1 is illustrative and is
reproduced below.
1. A method for operating a radio communication
system in which a subscriber station is assigned a plurality of
codes for transmitting messages, comprising:
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determining a transmit power difference which is to be
maintained by the subscriber station between on one hand a
total maximum transmit power of the subscriber station for the
codes and on another hand a total transmit power of the
subscriber station for the codes at a start of a message
transmission using a first one of the codes.
Ex. 1001, col. 9, ll. 56–64.
D. Evidence of Record
Petitioner relies on the following references and declaration (see
Pet. 4–5):
Reference or Declaration Exhibit No.
Declaration of Thomas La Porta, Ph.D. Ex. 1003
U.S. Patent No. 5,991,618 (“Hall”) Ex. 1005
U.S. Patent No. 7,689,239 B2 (“Reed”) Ex. 1006
E. Asserted Grounds of Unpatentability
Petitioner asserts that the challenged claims are unpatentable on the
following grounds (see Pet. 4, 17):
Claims Challenged Basis References(s)
1, 6, 9, 14, and 18 35 U.S.C. § 102(a), (b), (e) Hall
1–19 35 U.S.C. § 103(a) Hall
1–19 35 U.S.C. § 103(a) Hall and Reed
II. ANALYSIS
A. Claim Construction
The claims of an unexpired patent are interpreted using the broadest
reasonable interpretation in light of the specification of the patent in which
they appear. See 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC,
778 F.3d 1271, 1281–82 (Fed. Cir. 2015). On this record and for purposes
of this decision, we determine that only the claim terms addressed below
require express construction.
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1. at a start of a message transmission using a first one of
the codes
Petitioner argues that the scope of the challenged claims is not
reasonably certain because the phrase “at a start of a message transmission
using a first one of the codes” can be interpreted to modify (1) “determining
a transmit power difference”; (2) “a total transmit power of the subscriber
station for the codes”; or (3) “a transmit power difference which is to be
maintained.” Pet. 14–16. Patent Owner, on the other hand, argues that the
phrase “at a start of a message transmission using a first one of the codes” in
the challenged claims only modifies “a total transmit power of the subscriber
station for the codes.” Prelim. Resp. 6–9. On this record and for purposes
of this decision, we determine that Patent Owner’s proposed interpretation is
the broadest reasonable interpretation.
Patent Owner’s proposed interpretation is supported by the claim
language and the Specification. In the challenged claims, the disputed
phrase “at a start of a message transmission using a first one of the codes”
immediately follows the phrase “a total transmit power of the subscriber
station for the codes.” See, e.g., Ex. 1001, col. 9, ll. 62–64. Further, the
Specification explains that a “transmit power difference” is a difference
between “a first and a second transmit power.” Id. at col. 2, ll. 41–43.
According to the Specification, the first transmit power is “the total
maximum transmit power of the subscriber station for the plurality of codes”
(id. at col. 2, ll. 45–47), and “[t]he second of the two transmit powers is the
total transmit power of the subscriber station for the plurality of codes at the
start of a message transmission using a first of the codes” (id. at col. 2,
ll. 59–61 (emphasis added)). Thus, the Specification indicates that the
disputed phrase “at a start of a message transmission using a first one of the
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codes” modifies the “total transmit power.” Other portions of the
Specification also support Patent Owner’s interpretation. See, e.g., id. at col.
6, ll. 42–47 (“The transmit power difference . . . is required to exist between
the total transmit power for the two codes DCH and EDCH at the start of
the transmission of an EDCH message and the maximum transmit power for
the two codes DCH and EDCH.” (emphasis added)), col. 8, ll. 51–63.
Therefore, on this record and for purposes of this decision, we
determine that the phrase “at a start of a message transmission using a first
one of the codes” in the challenged claims modifies the phrase “a total
transmit power of the subscriber station for the codes.”
B. Asserted Grounds of Unpatentability
1. Anticipation of Claims 1, 6, 9, 14, and 18 by Hall
Petitioner argues that claims 1, 6, 9, 14, and 18 are anticipated by
Hall. Pet. 22. Hall relates to estimating a communication mode quality in a
wireless communications system. Ex. 1005, col. 1, ll. 7–10. We have
reviewed Petitioner’s assertions and supporting evidence, and, for the
reasons discussed below, Petitioner does not demonstrate a reasonable
likelihood of prevailing in showing that claims 1, 6, 9, 14, and 18 are
anticipated by Hall.
Independent claim 1 recites “determining a transmit power difference
which is to be maintained by the subscriber station between on one hand a
total maximum transmit power of the subscriber station for the codes and on
another hand a total transmit power of the subscriber station for the codes at
a start of a message transmission using a first one of the codes.” Ex. 1001,
col. 9, ll. 56–64. Independent claims 9, 17, and 18 recite similar limitations,
with independent claims 17 and 18 further reciting at least one processor that
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is programmed to determine the transmit power difference. Id. at col. 10,
ll. 35–40, col. 11, ll. 7–13, col. 12, ll. 4–10.
Petitioner argues that Hall discloses determining a power margin by
determining the difference between the current transmit power of a
subscriber unit and the maximum subscriber unit transmit power. Pet. 17.
According to Petitioner, the maximum subscriber unit transmit power in Hall
corresponds to the “total maximum power of the subscriber station for the
codes” in the challenged claims (id. at 25), and the current transmit power in
Hall corresponds to the “total transmit power of the subscriber station for the
codes at a start of a message transmission using a first one of the codes” in
the challenged claims (id. at 26, 28–29). Petitioner also argues that, in Hall,
the power margin in the subscriber unit must be greater than or equal to a
power margin requirement. Id. at 24. According to Petitioner, the power
margin requirement in Hall corresponds to the “transmit power difference
which is to be maintained by the subscriber station” in the challenged
claims. Id. at 23–24.
Patent Owner argues that Hall does not determine the current transmit
power at the start of a message transmission, and thus Hall does not disclose
the “total transmit power of the subscriber station for the codes at a start of a
message transmission using a first one of the codes,” as recited in the
challenged claims. Prelim. Resp. 13–17. We agree with Patent Owner. The
portion of Hall cited by Petitioner indicates that “the transmit power
determination may be made indirectly by reading a control register in a
power controller that sets or limits the output power of the subscriber unit’s
power amplifier.” Pet. 26 (citing Ex. 1005, col. 2, ll. 26–30). Petitioner,
however, does not specifically identify any portion of Hall that discloses
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when the current transmit power is determined vis-à-vis the start of a
message transmission. Pet. 26, 28–29.
Petitioner argues that, in Hall, the transmit power established by the
codes in the control register is “used to transmit all messages, including at
their start, until those codes are altered.” Pet. 28–29. Petitioner’s argument
is not persuasive. Petitioner admits that the value in the control register may
be “altered” and thus the transmit power at the start of a message
transmission may differ from the transmit power at a later point in time.
1
Id.
Petitioner, however, does not provide a specific explanation or identify
specific evidence indicating when the control register in Hall is read in order
to determine the current transmit power. Id. In particular, Petitioner does
not identify specific evidence indicating that the control register in Hall is
read at the start of a message transmission using a first one of the codes. Id.
Therefore, on this record, we are not persuaded that Hall’s discussion of
reading the control register discloses “a total transmit power of the
subscriber station for the codes at a start of a message transmission using a
first one of the codes.”
Petitioner also argues that Figures 3 and 4 in Hall disclose “using the
same power margin in both the old and new modes” and thus one of
ordinary skill in the art would understand that, “in the particular example of
Figures 3 and 4 of Hall, the same total transmit power is used throughout the
modes, including at the start of any message sent in those modes.” Pet. 29.
Petitioner’s argument is not persuasive. Figure 3 of Hall depicts a current

1
This is further supported by the portion of Hall that discloses determining
the transmit power by taking an average of the transmit power over time.
Ex. 1005, col. 2, ll. 19–22.
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communication mode, and Figure 4 of Hall depicts the next communication
mode. Ex. 1005, col. 7, ll. 30–35. As Patent Owner explains, the power
margin is the same in Figures 3 and 4 in Hall because the current transmit
power is only measured once (during the current communication mode), not
because the current transmit power is the actually same throughout both
modes. Prelim. Resp. 16. Specifically, Figure 1 of Hall indicates that the
current transmit power is only determined once in step 22, and is then used
to determine the power margin for the current communication mode and the
next communication mode. Ex. 1005, Fig. 1. Therefore, on this record, we
are not persuaded that Figures 3 and 4 in Hall disclose “a total transmit
power of the subscriber station for the codes at a start of a message
transmission using a first one of the codes.”
For at least the foregoing reasons, Petitioner does not demonstrate a
reasonable likelihood of prevailing in showing that claims 1, 6, 9, 14, and 18
are anticipated by Hall.
2. Obviousness of Claims 1–19 over Hall
Petitioner argues that claims 1–19 would have been obvious over
Hall. Pet. 33. We have reviewed Petitioner’s assertions and supporting
evidence, and, for the reasons discussed below, Petitioner does not
demonstrate a reasonable likelihood of prevailing in showing that claims 1–
19 would have been obvious over Hall.
As discussed above, we are not persuaded that Hall discloses “a total
transmit power of the subscriber station for the codes at a start of a message
transmission using a first one of the codes,” as required by the challenged
claims. See supra Section II.B.1. Petitioner argues that this limitation
would have been obvious to one of ordinary skill in the art. Pet. 36–37. In
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particular, Petitioner argues that “[o]ne of ordinary skill in the art would
understand that a subscriber station may be required to change its
transmission parameters from time to time, so it would be prudent and
common sense to perform power headroom calculation using the total
transmit power existing at the start of a message, when current transmission
power is known, and which may represent the transmission power for the
duration of the message.” Id. Petitioner’s argument is not persuasive.
Petitioner does not provide a specific explanation or identify credible
evidence to support its conclusion that the transmit power at the start of a
message “is known” or may represent the transmit power “for the duration
of the message.” Id. Petitioner cites to a paragraph from Dr. Thomas La
Porta’s declaration, but Dr. La Porta simply repeats Petitioner’s argument
without providing any additional explanation or evidence. Ex. 1003 ¶ 148.
Moreover, Hall teaches that the current transmit power can be an
average of the transmit power over a period of time or the peak power
during a period of time. Ex. 1005, col. 2, ll. 19–25. Petitioner does not
provide a specific explanation or identify credible evidence indicating why it
would have been obvious to one of ordinary skill in the art to determine the
current transmit power at the start of a message transmission instead of the
options expressly taught by Hall. Pet. 36–37. Therefore, on this record, we
are not persuaded that the limitation “a total transmit power of the subscriber
station for the codes at a start of a message transmission using a first one of
the codes” in the challenged claims would have been obvious to one of
ordinary skill in the art.
For at least the foregoing reasons, Petitioner does not demonstrate a
reasonable likelihood of prevailing in showing that claims 1–19 would have
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been obvious over Hall.
3. Obviousness of Claims 1–19 over Hall and Reed
Petitioner argues that claims 1–19 would have been obvious over Hall
and Reed. Pet. 49. Reed relates to establishing headroom for a mobile
station operating in a wireless communication system. Ex. 1006, Abstract.
We have reviewed Petitioner’s assertions and supporting evidence, and, for
the reasons discussed below, Petitioner does not demonstrate a reasonable
likelihood of prevailing in showing that claims 1–19 would have been
obvious over Hall and Reed.
Petitioner argues that Reed teaches all the limitations of the
challenged independent claims (Pet. 49–50, 55–56), and that it would have
been obvious to one of ordinary skill in the art to modify the “scheme” in
Hall to instead use the “scheme” in Reed (id. at 50–52). In other words,
Petitioner proposes completely replacing the cited teachings in Hall with
teachings from Reed. Patent Owner argues that Petitioner does not provide a
sufficient rationale for modifying Hall in the proposed manner. Prelim.
Resp. 18–19. We agree with Patent Owner.
Petitioner does not provide an articulated reason why it would have
been obvious to one of ordinary skill in the art to modify wholesale the
“scheme” taught in Hall so that it would have been replaced by the “scheme”
taught in Reed. See Pet. 50–52; In re Ratti, 270 F.2d 810, 813 (CCPA 1959)
(holding that a proposed combination of references was not proper because it
would change the “basic principles” of operation). We are not persuaded by
Petitioner’s conclusory assertions that replacing Hall with Reed would have
addressed a known problem, would have been an obvious design choice, or
would have united well-known elements to yield a predictable result. Pet.
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50–51; Ex. 1003 ¶¶ 141–143. Also, Petitioner argues that the scheme in
Reed ensures a minimum power margin is maintained and avoids excessive
or inadequate headroom, but fails to provide a specific explanation why Hall
did not already accomplish that by itself. Pet. 51–52; Ex. 1003 ¶¶ 141–143.
Therefore, on this record, we are not persuaded that it would have been
obvious to combine Hall and Reed in the manner proposed by Petitioner.
For at least the foregoing reasons, Petitioner does not demonstrate a
reasonable likelihood of prevailing in showing that claims 1–19 would have
been obvious over Hall and Reed.
III. CONCLUSION
Petitioner does not demonstrate a reasonable likelihood of prevailing
on its challenge to the patentability of claims 1–19 of the ’174 patent as
unpatentable under 35 U.S.C. §§ 102 or 103.
IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that the Petition is denied, and no trial is instituted.

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PETITIONER:

Joseph A. Micallef
Jeffrey P. Kushan
SIDLEY AUSTIN LLP
iprnotices@sidley.com

PATENT OWNER:

Barry J. Bumgardner
Steven B. Latimer
NELSON BUMGARDNER, P.C.
barry@nelbum.com
brannon@nelbum.com

Amedeo F. Ferraro
MARTIN & FERRARO, LLP
CCE-IPR@martinferraro.com