Ericsson Incv.Intellectual Ventures I LLC

Patent Trial and Appeal Board

Dec 9, 2015

08857021 (P.T.A.B. Dec. 9, 2015)

Trials@uspto.gov Paper 43
571-272-7822 Date: December 9, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

ERICSSON INC. and
TELEFONAKTIEBOLAGET LM ERICSSON,
Petitioner,

v.

INTELLECTUAL VENTURES I LLC,
Patent Owner.
____________

Case IPR2014-00921
Patent 6,023,783
____________

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

COCKS, Administrative Patent Judge.

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

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I. INTRODUCTION
Ericsson Inc. and Telefonaktiebolaget LM Ericsson ( “Ericsson”),
filed a Petition (Paper 1, “Pet.”) requesting inter partes review of claims 1–
5, 23, 24, 38–42, 60, and 61 of U.S. Patent No. 6,023,783 (“the ’783
patent”). We issued a Decision to institute an inter partes review of claims
23, 24, 60, and 61 of the ’783 patent on the following grounds: (1) claims
23, 24, 60, and 61 as unpatentable under 35 U.S.C. § 103 as unpatentable
over Robertson1 and Ungerboeck2; (2) claims 23 and 60 as anticipated under
35 U.S.C . § 102 by Palicot3; (3) claims 23 and 60 as unpatentable under 35
U.S.C . § 103 over Palicot; and (4) claims 24 and 61 as unpatentable under
35 U.S.C . § 103 over Palicot and Ungerboeck. Paper 8 (“Inst. Dec.”).4
After institution of trial, Intellectual Ventures I LLC (“Intellectual
Ventures”) filed a Patent Owner’s Response (Paper 26, “PO Resp.”), to
which Ericsson replied (Paper 28, “Pet. Reply”). Ericsson also filed a
Motion to Exclude portions of Exhibit 2006 (Paper 34), to which Intellectual
Ventures filed an Opposition (Paper 36).

1 Patrick Robertson et al., A Comparison of Optimal and Sub-Optimal MAP
Decoding Algorithms Operating in the Log Domain, PROCEEDINGS of IEEE
INTERNATIONAL CONFERENCE ON COMMUNICATIONS 1009–13 (June 1995).
(“Robertson”) (Ex. 1012).
2 Gottfried Ungerboeck, Trellis-Coded Modulation with Redundant Signal
Sets Part 1: Introduction, 25 IEEE COMMUNICATIONS MAGAZINE NO. 2 5–11
(Feb. 1987). (“Ungerboeck”) (Ex. 1007).
3 J. Palicot & J. Veillard, Possible Coding and Modulation Approaches to
Improve Service Availability for Digital HDTV Satellite Broadcasting at 22
GHz, 39 IEEE TRANSACTIONS ON CONSUMER ELECTRONICS NO. 3 660–67
(Aug. 1993). (“Palicot”) (Ex. 1008).
4 We did not institute trial on any grounds directed to claims 1–5 and 38–42.
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Oral argument was conducted on August 26, 2015. A transcript of
that argument has been made of record. Paper 42.
We have jurisdiction under 35 U.S.C. § 318(a). After considering the
evidence and arguments of both parties, and for the reasons set forth below,
we determine that Ericsson has met its burden of showing, by a
preponderance of the evidence, that claims 23, 24, 60, and 61 of the ’783
patent are unpatentable.
A. Related Matters
Intellectual Ventures has asserted the ’783 patent against various
companies in the following lawsuits filed in the United States District Court
for the District of Delaware:
Intellectual Ventures I LLC et al. v. AT & T Mobility LLC et al.,
No. 1:13-cv-01668-LPS (D. Del.), filed October 7, 2013;
Intellectual Ventures I LLC et at. v. Leap Wireless International Inc.
et al., No. 1:13-cv-01669-LPS (D. Del.), filed October 7, 2013;
Intellectual Ventures I LLC etal. v. Nextel Operations Inc. et al.,
No. 1:13-cv-01670-LPS (D. Del.), filed October 7, 2013;
Intellectual Ventures I LLC et al. v. T-Mobile USA Inc. et al.,
No. 1:13-cv- 01671-LPS (D. Del.), filed October 7, 2013; and
Intellectual Ventures I LL et al. v. United States Cellular Corp.,
No. 1:13- cv-01672-LPS (D. Del.), filed October 7, 2013.
Pet. 1; Paper 5, 1.
B. The ’783 Patent (Ex. 1001)
The ’783 patent is titled “Hybrid Concatenated Codes and Iterative
Decoding,” and is expressed as relating to “error correcting codes.”
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Ex. 1001, 1:12. In that respect, the “Related Art” is described as being
concerned with “[t]urbo codes,” which are “binary error-correcting codes
built from the parallel concatenation of two recursive systematic
convolutional codes and using a feedback decoder.” Id. at 1:14–17. The
patent characterizes its disclosed invention as “encompass[ing] several
improved turbo code apparatuses and methods.” Id. at 1:66–67.
By way of explanation, the ’783 patent presents the following figure,
which is represented as “Prior Art”:

Figure 1 is a block diagram of a prior art turbo code encoder. Id. at 2:48.
As shown in the above-noted figure:
Each source data element d to be coded is coupled to a first
systematic coding module 11 and, through a temporal
interleaving module 12, to a second systematic coding module
13. The coding modules 11 and 13 may be of any known
systematic type, such as convolutional coders, that take into
account at least one of the preceding source data elements in
order to code the source data element d.
Id. at 1:27–34.
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The ’783 patent further explains that “an important aspect of prior art
turbo code encoders is that they transmit a data element X equal to input
source data element d.” Id. at 1:53–55.
Figure 5 of the ’783 patent is reproduced below and depicts an
embodiment according to the invention of that patent:

The figure above illustrates a diagram of a turbo encoder that includes
similar features to those of the prior art. The ’783 patent describes that
“encoded parity elements Xn,” i.e., encoded data, are transmitted from
coding modules C, with at least one interleaver πn. Id. at 13:59–66.
According to the ’783 patent, the invention disclosed therein is distinguished
from the prior art because the turbo encoder structure of the patent “outputs
only encoded parity elements Xn from the coding modules C—the original
data source elements d are not transmitted or stored.” Id. (emphasis added).
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C. Illustrative Claims
Claims 23 and 60 are independent claims. Those claims are
illustrative of the subject matter at issue, and are reproduced below:
23. A system for error-correction coding of a source of
original digital data elements, comprising:

(a) a first systematic convolutional encoder, coupled to the
source of original digital data elements, for generating a first
series of coded output elements derived from the original digital
data elements;

(b) at least one interleaver, each coupled to the source of
original digital data elements, for modifying the order of the
original digital data elements to generate respective interleaved
elements;

(c) at least one next systematic convolutional encoder, each
coupled to respective interleaved elements, each for generating
a corresponding next series of coded output elements derived
from the respective interleaved elements, each next series of
coded output elements being in parallel with the first series of
coded output elements; and

(d) a multilevel modulator, directly coupled to the original
digital data elements and to the coded output elements of each
systematic convolutional encoder, for generating an output
modulated signal representative of at least some of such
original digital data elements and coded output elements.
***
60. A method for error-correction coding of a source of
original digital data elements, comprising the steps of:

(a) generating a first series of systematic convolutional
encoded output elements derived from a source of original
digital data elements;

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(b) modifying the order of the original digital data elements to
generate at least one set of interleaved elements;

(c) generating at least one next series of systematic
convolutional encoded output elements derived from at least
one set of interleaved elements, each next series of systematic
convolutional encoded output elements being in parallel with
the first series of systematic convolutional encoded output
elements; and

(d) generating an output multilevel modulated signal directly
from and representative of at least some of such original digital
data elements and systematic convolutional encoded output
elements.
Ex. 1001, 26:3–26; 31:21–38.
II. ANALYSIS
A. Claim Construction
The Board construes claims of an unexpired patent by applying the
broadest reasonable interpretation in light of the Specification. See 37
C.F.R. § 42.100(b); see also In re Cuozzo Speed Techs., LLC, 793 F.3d
1268, 1278 (Fed. Cir. 2015) (“We conclude that Congress implicitly
approved the broadest reasonable interpretation standard in enacting the
AIA.”). Claim terms also are given their ordinary and customary meaning
as would be understood by one of ordinary skill in the art in the context of
the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
(Fed. Cir. 2007). Nevertheless, a “claim term will not receive its ordinary
meaning if the patentee acted as his own lexicographer and clearly set forth a
definition of the disputed claim term in either the specification or
prosecution history.” CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359,
1366 (Fed. Cir. 2002).
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In our Decision instituting trial, we determined that no terms of the
claims of the ’783 patent should be given any special meaning, and, thus,
concluded that all terms should take on their broadest reasonable meaning as
would be understood by one of ordinary skill in the art in light of the
Specification. Inst. Dec. 9. We made explicit that meaning for the
terms/phrases: (1) “systematic convolutional encoder,” (2) “coded output
elements”; and (3) “directly coupled”/“signal directly from.” Id. at 9–13.
Neither party contests our preliminary constructions for “systematic
convolutional encoder” or “coded output elements,” and we do not discern a
reason to revisit those constructions. For general reference, the
constructions of those terms set forth in the Decision instituting trial are
reproduced below:
Claim Term Construction

“systematic convolutional encoder”

“an encoder that may output both
encoded data and also original data
(or its equivalent).” Inst. Dec. 11.

“coded output elements”

“any data that is derived from data
received and processed by a coder or
encoder.” Id. at 12.

In connection with this Final Written Decision, we discern that there
is disagreement between the parties as to the proper construction of the term
“directly coupled”/“signal directly from.” In our preliminary assessment of
the meaning of the term, we concluded that components that are “directly”
coupled to one another, or which receive signals “directly” from one
another, excludes the presence of an interleaver between those components,
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but does not prohibit any and all intervening structures, such as a switch.
Id. at 13. In reaching that conclusion, we took into account disclosure in the
’783 patent including that components were understood directly connected
to one another despite being separated by a structure recognizable as a
switch. Id. at 12–13.
Intellectual Ventures proposes a meaning for “directly
coupled”/“signal directly from” of “coupled in a manner such that the order
and content of the elements are unmodified.” PO Resp. 10. To that end,
Intellectual Ventures urges the following:
The well-established ordinary meaning of the term
“coupled” allows indirect attachment of components.[footnote
omitted] Adding the modifier “direct” to “coupling” means the
phrase cannot be construed to allow functionally indirect
attachments where the elements would be modified or
reordered. To be a direct coupling, the intervening structure,
which may include a switch, must pass the elements
unmodified and in the order they were received. Otherwise, the
coupling is indirect.
Id. at 11–12.
Ericsson disagrees with Intellectual Ventures’s construction as being
too “narrow.” Pet. Reply 2. Instead, Ericsson contends that “the Board’s
initial construction is correct.” Id.
We observe that Intellectual Ventures points to little content of the
record supporting its proposed construction of the relevant terms. In that
regard, Intellectual Ventures’s proposed support for the meaning of “directly
coupled”/“signal directly from,” as precluding reorganization of data
elements, appears to arise mainly from statements made by the Examiner
during prosecution of the underlying patent application that became the ’783
patent. More specifically, Intellectual Ventures states the following:
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During prosecution, the Examiner stated that the “order
rearranging” functionality of Le Goff does not “diminish its
coupling function.” (Ex. 1021, p. 3) Claims 23 and 60 were
subsequently amended to include the terms “directly coupled”
and “directly from,” respectively, to overcome the rejection
(Ex. 1023, p. 2). This supports Patent Owner’s position that
“order rearranging” is precluded from a direct coupling. Thus,
the functionality of the intervening structure, not the complexity
asserted by Petitioners, is the key issue.
PO Resp. 15.
Intellectual Ventures does not explain adequately why a generic
reference by the Examiner to “order rearranging” as not “diminish[ing]” a
“coupling function” serves to impart a meaning to “directly coupled” or
“directly from” that excludes any type of reordering of data between
components so coupled. Moreover, we observe that the unabbreviated
statement made by the Examiner is: “The process of order rearranging
performed by Le Goff’s interleaver is not considered to diminish its
coupling function.” Ex. 1021, 3 (emphasis added). Thus, the Examiner’s
statement was made with respect to a particular “interleaver” component,
and was not offered in a general context in connection with all components
that may be viewed as reordering data in some respect. Simply put, the
Examiner’s statement does not provide a suitable underlying basis for the
construction of “directly coupled”/“signal directly from” that is now offered
by Intellectual Ventures. Neither does the statement support Intellectual
Ventures’s view that it is a modification of data through any reordering that
somehow establishes the dichotomy between coupling understood as direct
versus indirect.
Intellectual Ventures also generally points to paragraph 42 of the
Declaration testimony of its declarant Dr. Leonard Cimini, urging that the
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testimony provides support for the following statement: “Since multiplexing
rearranges elements from a parallel format to a serial format, and puncturing
actively deletes elements, neither of these functions can be part of a direct
coupling.” PO Resp. 15. That noted testimony, however, does not provide
elucidation as to why a skilled artisan would consider only whether data
content is reordered in assessing whether one component is directly coupled,
or receives a signal directly from, another component.
It is clear from the record evidence before us that, in the context of the
’783 patent, a connection between two components is not one that is
considered properly as “direct” if there is an interleaver between those
components. We understand that an “interleaver” is a structure that provides
extensive reordering of data. For instance, record evidence characterizes a
particular interleaver as a “pseudorandom block scrambler” that reads out
data “in a specified permuted order.” Ex. 1009, 29. Indeed, the ’783 patent
itself characterizes an interleaver as a “pseudo-random block scrambler” that
operates to output data “in a specified (fixed) random order.” Ex. 1001,
5:57–61. In that respect, it is further understood from the ’783 patent that
there are extensive considerations that go into the design of interleavers and
the effect that a given interleaver has on the configuration, order, and
characteristics of data. See id. at 9:53–13:54. Thus, the operations of an
interleaver appear to constitute complex data reordering schemes where the
“pseudorandom” scrambling of data is, at least in some cases, the desired
goal.
As noted above, in the context of an inter partes review, the Board
construes claim terms based on their broadest reasonable construction that is
consistent with the underlying specification. Here, with that guidance in
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mind, we do not discern that Intellectual Ventures’s position that the claim
terms in question should be construed narrowly to prohibit any intervening
structure that performs any type of operation that may be regarded as
manipulating data or changing the order of data in some aspect, regardless of
the nature or extent of the data reordering. To that end, while the reordering
operations provided by an interleaver are not encompassed by “directly”
connecting elements, we are not satisfied that Intellectual Ventures has
provided a suitable evidentiary basis for its position that any intervening data
reordering, of any kind, is the benchmark for evaluating whether structures
are directly connected to one another. It also is clear from the Specification
of the ’783 patent, and as we observed in our Decision instituting trial (Inst.
Dec. 12–13), that a direct connection does not prohibit some intervening
structures, such as the intervening presence of a switch.
In considering the totality of the record before us, we do not discern
that there is cause to deviate from the construction we initially adopted for
“directly coupled”/“signal directly from” as a part of the Decision to institute
trial. Accordingly, for purposes of this Final Written Decision, we maintain
the understanding that components that are “directly” coupled to one
another, or which receive signals “directly” from one another, excludes the
presence of an interleaver between those components, but does not prohibit
any and all intervening structures, such as a switch.
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B. Obviousness over Robertson and Ungerboeck
1. Overview of Robertson (Ex. 1012)
Robertson is an article titled “A Comparison of Optimal and Sub-
Optimal MAP Decoding Algorithms Operating in the Log Domain.”
Ex. 1012, 1009. Robertson contemplates studying of “the behaviour of the
(Max-)Log-MAP algorithm applied to the decoding of convolutional codes
(and in particular recursive systematic convolutional (RSC) codes).” Id.
Robertson’s Figure 1 is reproduced below:

As shown in the Figure above, data sequence may be directed to
recursive systematic convolutional encoders (unnumbered) whose output
may be punctured by a “Puncturing” component before being modulated and
then transmitted over a channel. Id. at 1009–10.
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2. Overview of Ungerboeck (Ex. 1007)
Ungerboeck is a series of two articles titled “Trellis-Coded
Modulation with Redundant Signal Sets” including “Part I: Introduction”
(Ex. 1007, 5), and “Part II: State of the Art” (id. at 12). The first
“Introduction” portion describes its content as follows:
Simple four-state trellis-coded modulation (TCM) schemes
improve the robustness of digital transmission against additive
noise by 3 dB without reducing data rate or requiring more
bandwidth than conventional uncoded modulation schemes.
With more complex schemes, coding gains up to 6 dB can be
achieved. This article describes how TCM works
Id. at 5.
The second “State of the Art” portion sets forth the following:
This article is intended to bring the reader up to the state of the
art in trellis-coded modulation. The general principles that have
proven useful in code design are explained. The important
effects of carrier-phase offset and phase invariance are
discussed. Finally, recent work in trellis-coded modulation
with multi-dimensional signal sets is described
Id. at 12.
Ungerboeck characterizes “multilevel (amplitude and/or phase)
modulation systems” as “conventional” (id. at 6), and describes the use of a
particular “8-PSK” modulation system (id.).
3. Level of Ordinary Skill in the Art
Factors that may be considered in determining level of ordinary
skill in the art include: (1) the educational level of the inventor;
(2) type of problems encountered in the art; (3) prior art
solutions to those problems; (4) rapidity with which innovations
are made; (5) sophistication of the technology; and (6)
educational level of active workers in the field.
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Environmental Designs, Ltd. v. Union Oil Co. of California, 713 F.2d 693,
696 (Fed. Cir. 1983). There is evidence in the record before us that reflects
the knowledge level of a person with ordinary skill in the art. In particular,
each of Ericsson’s declarants, Mr. Mark Lanning (Ex. 1003) and
Dr. Zixiqang Xiong (Ex. 1032), as well as Intellectual Ventures’s declarant,
Dr. Leonard Cimini (Ex. 2006), provides testimony in that respect.
Mr. Lanning testifies the following:
38. It is my opinion that a person of ordinary skill in the
field of the ’783 Patent would have at least a Bachelors or
Masters level college degree in Electrical Engineering,
Computer Science, Computer Engineering or equivalent
training and experience. This person would also have at least
three to five years of academic or industrial experience in the·
field of communication systems, such as wireless cellular
communication systems and networks. Such a person would be
familiar with turbo codes and the functionality provided by
turbo encoders, decoders, interleavers, multiplexers and
demultiplexers, and modulators.
Ex. 1003 ¶ 38.
Similarly, Dr. Xiong testifies the following:
22. Based on the disclosure of the ’783 patent, one of
ordinary skill in the art would have at least a Bachelors or
Masters level college degree in Electrical Engineering,
Computer Science, Computer Engineering or equivalent
training and experience. This person would also have at least
three to five years of academic or industrial experience in the
field of communication systems, such as wireless cellular
communication systems and networks. Such a person would be
familiar with turbo codes and the functionality provided by
turbo encoders, decoders, interleavers, multiplexers and
demultiplexers, and modulators.
Ex. 1032 ¶ 22.
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Dr. Cimini testifies the following:
24. Based on the disclosure of the ’783 patent, one of
ordinary skill in the art would have a Master’s degree in
Electrical Engineering, Computer Science, or an equivalent field
as well as at least 3–5 years of academic or industry experience
in communications systems, or comparable industry experience.

25. My definition of level of ordinary skill in the art is
higher than Mr. Lanning’s definition in that Mr. Lanning only
requires a Bachelor’s Degree or equivalent. (Lanning Decl.,
¶ 38.) However, in my experience working with undergraduate
and graduate students, someone with only a Bachelor’s Degree
would not have the mathematical foundation to evaluate design
choices for error correction algorithms. This opinion is
supported by the fact that Divsalar, Robertson, Ungerboeck,
Palicot, and Pollara all have Ph.D.’s (See Exs. 2001, 2009, 2010,
2011, and 2012) and all of the references applied in this inter
partes review proceeding are research papers. In my option, an
individual with only a Bachelor’s Degree would generally not be
able to parse the mathematics underlying Robertson or
Ungerboeck, for example.
Ex. 2006 ¶¶ 24, 25.
Thus, the declarants are largely in agreement as to the level of
ordinary skill in the art, but for a slight difference of opinion as to the extent
of education. While Mr. Lanning and Dr. Xiong take the view that a person
of ordinary skill “would have at least a Bachelors or Masters level college
degree in Electrical Engineering, Computer Science, Computer Engineering
or equivalent training and experience,” Dr. Cimini opines that only a
Bachelor’s degree would be insufficient. Dr. Cimini advanced that opinion
on the theory that one with only a Bachelor’s degree would lack an
appropriate “mathematical foundation.”
On the record before us, it is not apparent that the possession of a
Master’s degree as compared with possession of a Bachelor’s degree
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establishes a dividing line between a person who is of ordinary skill in the
art, and a person who is not. Dr. Cimini does not explain persuasively why a
person with a Bachelor’s degree in the noted areas, coupled for instance,
with the noted “academic or industry experience” would lack the requisite
“mathematical foundation.” To that end, we are cognizant of the level of
ordinary skill to which all declarants have testified, but do not understand
the record as establishing that a Master’s degree, to the exclusion of other
equivalent experience, is a strict requirement of a skilled artisan in the
pertinent field.
4. Discussion – Robertson and Ungerboeck
Ericsson contends that each of claims 23, 24, 60, and 61 are
unpatentable as obvious over Robertson and Ungerboeck. Obviousness is a
question of law based on underlying factual findings: (1) the scope and
content of the prior art; (2) the differences between the claims and the prior
art; (3) the level of ordinary skill in the art; and (4) objective indicia, or
secondary considerations, of non-obviousness. See Graham v. John Deere
Co. of Kansas City, 383 U.S. 1, 17–18 (1966). Here, however, neither party
introduced evidence on secondary considerations of non-obviousness.
Accordingly, we focus our attention on the first three Graham factors.
Intellectual Ventures argues the claims in two groupings: (1) claims 23 and
60; and (2) claims 24 and 61.
a. Claims 23 and 60
As noted above, claim 23 is directed to a “system for error-correction
coding of a source of original digital data elements,” and claim 60
constitutes a corresponding method. As set forth in its Petition, Ericsson
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contends that Robertson discloses all the features of claims 23 and 60
(Pet. 49–54) with the exception of those features directed to “multilevel
modulation” (id. at 53). In that regard, Ericsson contends that Robertson is
directed to “binary modulation” rather than “multilevel modulation,” but
points to Ungerboeck as disclosing multilevel modulation. Id. Referencing
the declaration testimony of Mr. Mark Lanning (Ex. 1003), Ericsson
contends the following:
As noted by Mr. Lanning, it would have been obvious to
one of ordinary skill in the art to combine Robertson and
Ungerboeck to replace the binary modulation in Roberton’s
coding system with multilevel modulation taught by
Ungerboeck because it would yield the predictable result–that
more data bits correspond to a modulated symbol, thereby
enhancing bandwidth efficiency.
Id. at 53–54.
To that end, we understand that Ericsson proposes, and Mr. Lanning
testifies (Ex. 1003 ¶ 230), that one of ordinary skill in the art would have
had reason to substitute Ungerboeck’s multilevel 8-PSK modulator for
Robertson’s binary modulator so as to enhance bandwidth efficiency.
With regard to the claim requirement that the multilevel modulator is
“directly coupled . . . to the coded output elements of each systematic
convolutional encoder” (claim 23) and the modulated signal is generated
“directly from” the systematic convolutional encoded output elements (claim
60), Ericsson relies on disclosure in Robertson. In particular, Ericsson notes
that although Robertson discloses a puncturing component associated with
its encoders, the broadest reasonable interpretation does not exclude the
presence of a puncturing component in forming a “directly” connected
relationship. Pet. 53. Ericsson also reasons that, as attested to by
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Mr. Lanning, a person of ordinary skill in the art would have understood that
“puncturing is optional and could be omitted.” Id. at 52–53 (citing Ex. 1003
¶ 222). Ericsson reasons that the absence of a puncturing component also
establishes that the coder and modulator are directly connected. Id.
Intellectual Ventures contends that the substitution of a multilevel
modulator for the binary modulator of Robertson would necessitate the
inclusion of a multiplexer between Robertson’s turbo coder and the
multilevel modulator. PO Resp. 20–25. As such, and based on its proposed
interpretation of the “directly coupled”/“signal directly from” features of
claims 23 and 60, Intellectual Ventures contends that the presence of a
multiplexer precludes a conclusion that those claims would have been
obvious over Robertson and Ungerboeck. Id.
In response, Ericsson disputes that a multiplexer would be necessary
in the manner offered by Intellectual Ventures. Pet. Reply 1–2.
Alternatively, Ericsson maintains that even if such a multiplexer was
present, the “directly coupled”/“signal directly from” requirements of the
claims would, nevertheless, be satisfied. Id. at 2–3.
Thus, at its core, there are two main bases of disagreement between
the parties. First, whether a multiplexer would be required as a part of the
Robertson and Ungerboeck combination. Second, even if a multiplexer is
present between a coder component and a modulator component, whether
such circumstance would preclude a determination that those components
are directly coupled to one another.
With respect to the first point of disagreement noted above,
Intellectual Ventures relies on its declarant, Dr. Leonard Cimini, (PO Resp.
23–25) who testifies that in Robertson, a multiplexer is “necessary” (Ex.
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2006 ¶ 50), and that a multiplexer would also be a part of the Robertson and
Ungerboeck combination (id. at ¶ 51). On cross-examination, Ericsson’s
own declarant, Mr. Lanning, when queried by Intellectual Ventures’s
counsel, testified that a multiplexer would be present. Specifically, the
following exchange appears in the record in connection with questions as to
the Robertson and Ungerboeck combination:
Q. So would there be circuitry, then, necessarily
between the memory and the modulator to alternate between
memory locations? . . .
A. Again, we’re working on just a hypothetical
question. It could be as simple as hardware circuitry and a
memory function that just selects in a cyclic fashion each input
to the memory. It would -- which I would look at or view as a
logical multiplexing function.
Ex. 2008, 123:5–16.
Thus, Mr. Lanning also takes the view that a component performing a
“multiplexing function” would be present upon combining the noted
references. Although Ericsson disputes that a multiplexer would be required
as a part of the Robertson and Ungerboeck combination, Ericsson simply
offers statements of counsel without recourse to record evidence. Pet. Reply
2–3. Argument of counsel, however, cannot take the place of evidence
lacking in the record. See Estee Lauder Inc. v. L'Oreal, S.A., 129 F.3d 588,
595 (Fed. Cir. 1997).
On the record before, us we do not discern that there is a suitable
evidentiary basis for concluding that the proposed combination of Robertson
and Ungerboeck would provide for the omission of a multiplexer disposed
between a turbo coder and a multilevel modulator. Accordingly, we find
that such a multiplexer would be present.
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The inquiry now before us is whether the presence of a multiplexer, in
the manner discussed above, provokes a determination that the turbo coder
and multilevel modulator are not directly coupled to one another.
Intellectual Ventures takes the view that the multiplexer reorders or modifies
data content, and, thus, the presence of the multiplexer means the turbo
coder and multilevel modulator arising from the combination of Robertson
and Ungerboeck would not be directly coupled to one another. Intellectual
Ventures bases that view on its interpretation of “directly coupled”/“signal
directly from” as excluding an intervening component that modifies or
changes the order of data. See, e.g., PO Resp. 23. Pointing to the testimony
of Dr. Cimini (Ex. 1003 ¶ 42), Intellectual Ventures contends that a
multiplexer reorders data content such that its presence between a coder and
modulator means those components are not directly coupled. PO Resp. 12–
16.
As discussed above, we do not adopt the construction of “directly
coupled”/“signal directly from” proposed by Intellectual Ventures. As is
now undisputed, the construction of those terms does not prohibit the
intervening presence of a switch between components so coupled. In our
Decision instituting trial, we postulated that a multiplexer “is essentially
analogous to a switch.” Inst. Dec. 19. During the course of the trial, the
record has developed further as to the operation and functioning of a
multiplexer. As discussed above, a multiplexer is a component that
transitions multiple parallel inputs of data into a single output recognized as
serial. In that respect, the following is a description from an on-line source
designated “Electronics Tutorials” describing Multiplexers:
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The multiplexer, shortened to “MUX” or “MPX”, is a
combinational logic circuit designated to switch one of several
input lines through to a single common output line by the
application of a control signal. Multiplexers operate like very
fast acting multiple position rotary switches connecting or
controlling multiple input lines called “channels” one at a time
to the output.[5]
The “Electronics Tutorials” reference further summarizes its
description of multiplexers stating that they “are switching circuits that just
switch or route signals through themselves.” Id. Thus, one of ordinary skill
in the art would understand that multiplexers are a type of switch, e.g., a
“rotary switch[],” that simply operates to relay multiple input lines into a
single output line. To the extent that such operation amounts to some
reordering of the data from the parallel lines to the single serial line, we do
not discern why a multiplexer would not be understood generally as a
structure analogous to a switch that simply functions to handle multiple
parallel inputs. In that respect, the presence of a multiplexer between a
coder and modulator is not distinct from the presence of a switch between
those components, so as to establish an indirect coupling rather than a direct
coupling. As such, Intellectual Ventures’s assertion to that effect is
incorrect.
Furthermore, even were we to adopt the construction of “directly
coupled”/“signal directly from” offered by Intellectual Ventures, we are
cognizant of the testimony of Ericsson’s declarant, Dr. Zixiqang Xiong,
offered in reply to Intellectual Ventures’s Patent Owner’s Response.
Dr. Xiong provides detailed testimony explaining why “‘parallel-to-serial”

5 Description of “The Multiplexer” from
http://www.electronics-tutorials.ws/combination/comb_2.html (last accessed
November 24, 2015).
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conversion multiplexing does not change the content or the order of the
encoder output elements.” Ex. 1032 ¶¶ 24–26 (quotation from ¶ 24).
Although Intellectual Ventures’s declarant, Dr. Cimini, generally states that
multiplexers, in the context of “bits” of data, “modify the order of the bits,
changing the bits from a parallel to a serial format,” (Ex. 2006 ¶ 50),
Dr. Cimini does not offer adequate explanation for that testimony. On the
record before us, we credit Dr. Xiong’s detailed countervailing testimony.
With the foregoing discussion in mind, and in considering the totality
of the record now before us, we are persuaded that Ericsson has shown, by a
preponderance of the evidence, that claims 23 and 60 are unpatentable over
Robertson and Ungerboeck.
b. Claims 24 and 61
Claim 24 depends from claim 23, and claim 61 depends from
claim 60. Claim 24 adds: “wherein the multilevel modulator generates a
trellis code modulation.” Similarly, claim 61 adds: “wherein the multilevel
modulation is trellis code modulation.” In its Petition, Ericsson relies on
Ungerboeck as disclosing the use of trellis code modulation. Pet. 53–54.
Citing to Mr. Lanning’s testimony, Ericsson also reasons that it would have
been obvious for a skilled artisan “to use the known trellis code modulation
taught by Ungerboeck as an implementation of multilevel modulation
because trellis code modulation as well-known to be an improved
modulation scheme.” Id. at 54 (citing Ex. 1003 ¶ 236).
Intellectual Ventures takes the position that there would have been no
reason to combine Ungerboeck’s teachings concerning trellis code
modulation with Robertson’s system. In that respect, Intellectual Ventures
contends that “[s]imply substituting a multilevel modulator with
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Ungerboeck’s TCM produces an absurd result of re-coding the output of the
turbo encoder with an inferior code.” PO Resp. 27 (citing Ex. 2006 ¶ 58).
There is no dispute that trellis code modulation was known in the art
prior to the ’783 patent. Indeed, the record is replete with references to such
modulation. Although Intellectual Ventures contends, and Dr. Cimini
testifies, that such modulation is associated with “inferior code,” neither
Intellectual Ventures nor Dr. Cimini adequately explain how they reach the
conclusion that trellis code modulation is recognized as something inferior.
Indeed, contrary to those views, Ericsson’s expert, Mr. Lanning, testifies that
“trellis code modulation was well known to be an effective modulation
scheme for ‘achievement of significant coding gains over conventional
uncoded multilevel modulation without compromising bandwidth
efficiency.” Ex. 1003 ¶ 236 (quoting Ex. 1007 (Ungerboeck), 5, ¶ 1).
Intellectual Ventures does not address those noted benefits attributed to
trellis code modulation in Ungerboeck.
Furthermore, even if trellis code modulation is a modulation scheme
that is inferior in some respect to other modulation schemes, the inquiry here
is one grounded in obviousness. In considering obviousness, there is no
requirement that the product of a combination of teachings must be optimal
or better than other known structures or techniques. See In re Fulton, 391
F.3d 1195, 1200 (Fed. Cir. 2004) (“[C]ase law does not require that a
particular combination must be the preferred, or the most desirable,
combination described in the prior art in order to provide the motivation for
the current invention.”) Here, it is not apparent why a person of ordinary
skill in the art, who is also a person of ordinary creativity, see KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 421 (2007), would have failed to appreciate
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that trellis code modulation is a viable modulation scheme, even if its
application in some systems or settings would be regarded as “inferior.”
We are cognizant that Intellectual Ventures also contends that there is
a dichotomy between turbo coding, such as that disclosed in Robertson, and
trellis code modulation, such as that disclosed in Ungerboeck. See PO Resp.
27–30. In particular, Intellectual Ventures urges that combining the
teachings of Robertson and Ungerboeck results in “double-coding” that is
“nonsensical” and “renders Robertson unsatisfactory for its intended
purpose—turbo coding.” Id. at 28–30. Ericsson, on the other hand,
responds that its proposed combination involves the combination of
Robertson’s turbo coder and Ungerboeck’s modulator, and does not require
the addition of Ungerboeck’s coder so as to arrive at the result characterized
by Intellectual Ventures as “absurd.” Pet. Reply 15–16.
We have considered the record before us, and conclude that there is a
sufficient basis justifying the argument that Ericsson makes. To that end, it
is not apparent that a skilled artisan would view a particular coder, i.e., a
turbo coder, as unavailable for combination in connection with a particular
modulation scheme, i.e., trellis code modulation. Although we have
considered Intellectual Ventures’ arguments to the contrary, we find that, to
the extent that some modification would be necessary in combining such
component or features, such modification would be within the skill of a
person of ordinary skill and creativity in the art. We also observe that
Ericsson’s declarant, Dr. Xiong, describes how one of ordinary skill in the
art would implement teachings directed to a turbo coder with those directed
to a trellis code modulation. Ex. 1032 ¶¶ 30–35. We credit that testimony.
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We have considered Intellectual Ventures’s arguments, but are not
persuaded that they patentably distinguish claims 24 and 61 from the content
of the prior art. In light of the record at hand, we are persuaded that
Ericsson has shown by a preponderance of the evidence that claims 24 and
61 would have been obvious in view of the teachings of Robertson and
Ungerboeck.
C. Grounds of Unpatentability Based on Palicot
Ericsson also contends that (1) claims 23 and 60 as anticipated by
Palicot; (2) claims 23 and 60 as obvious over Palicot; and (3) Claims 24 and
61 as obvious over Palicot and Ungerboeck.
1. Overview of Palicot (Ex. 1008)
Palicot is an article describing coding and modulation approaches in
connection with HDTV satellite broadcasting. Ex. 1008, 660. A portion of
Palicot’s Figure 4 is reproduced below:

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The segment of Figure 4 reproduced above depicts a conceptual block
diagram showing a portion of a coding scheme set forth in Palicot. In
particular, Palicot explains the following:
At the transmission side, the HDTV signal is down sampled and
a compatible 625 lines picture is obtained which is applied to
encoder 2. The residual component (difference between HDTV
input and locally decoded output of encoder 2) is coded by
encoder 1. This scheme allows to reduce the transmitted data
rate or to increase the portion of data rate allocated to the
picture component in the multiplex.
Ex. 1008, 662.
The above-noted paragraph describes two encoders as a part of the
transmission side of a coding scheme, “encoder 1” and “encoder 2.”6 HDTV
signal is applied to encoder 2, which, as shown in Figure 4, passes through a
multiplexer (component “MUX” in the figure) before being passed to a
modulator. The “residual component” of the HDTV signal is coded by
encoder 1 and then passed to the modulator.
2. Anticipation By Palicot
Ericsson contends that claims 23 and 60 are unpatentable under 35
U.S.C. § 102 as anticipated by Palicot. Anticipation requires that every
element in a claim must be found in a single prior art reference, and arranged
as recited in the claims. See Karsten Mfg. Corp. v. Cleveland Golf Co., 242
F.3d 1376, 1383 (Fed. Cir. 2001).
Ericsson initially laid out in its Petition where it understood all the
features required by claims 23 and 60 may be found in Palicot. See Pet. 54–
58. In that regard, the crux of the panel’s determination whether to institute

6 We understand that, as depicted in Figure 4, the encoders are identified as
“Coder 1” and “Coder 2.”
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trial was premised on the interpretation of “directly coupled”/“signal directly
from” as not precluding the presence of a multiplexer arranged between
Palicot’s encoder 2 and its modulator. As it did in its Preliminary Response,
Intellectual Ventures again takes the view that, in light of the meaning for
the above-noted terms that it now advocates in its Patent Owner Response,
that Palicot does not anticipate either of claims 23 or 60. In particular,
Intellectual Ventures argues that the intervening presence of a multiplexer
between encoder 2 and the modulator precludes a determination that the
modulator directly receives coded output elements from that encoder.
See PO Resp. 30–31. Intellectual Ventures, thus, contends that Palicot does
not disclose the “directly coupled” and “signal directly from” aspects of
claims 23 and 60.
In our Decision instituting trial in this proceeding, we concluded, in
light of the record that was before us including the Specification of the ’783
patent, that components directly connected to one another do not preclude
the presence of some intervening structure, such as a switch. Inst. Dec. 12–
13. Neither party disagrees with that conclusion. See PO Resp. 11–12 (“[t]o
be a direct coupling, the intervening structure . . . may include a switch.”);
see also Pet. Reply 11–12 (urging confirmation of “the Board’s initial
construction provided in the Institution Decision.”)
As is conveyed in the evidentiary record before us, a multiplexer is
understood as a component that converts the format of data from one that is
recognized as parallel to one that is recognized as serial. See Ex. 2006 ¶ 50;
Ex. 1032 ¶ 23. Indeed, there was and is no dispute in that respect. Where
dispute emerged as a part of the parties’ briefings to the Board was in the
question of whether the multiplexer’s function is one that modifies the order
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and content of the data. According to Intellectual Ventures, “Palicot’s
multiplexer modifies the order of the elements output from coder 2,” and
removes Palicot as an anticipatory reference of claims 23 and 60 in view of
the meaning of “directly” coupling or “directly” receiving signals advocated
by Intellectual Ventures. PO Resp. 30–31.
As noted above, we do not agree with the construction of “directly
coupled”/“signal directly from” that is advocated by Intellectual Ventures.
We, however, observe that in reply to Intellectual Ventures’s Patent Owner
Response, Ericsson now presents two alternative theories of how Palicot
anticipates claims 23 and 60. First, Ericsson contends that the Board should
simply “confirm[]” its initial construction of “directly coupled”/“signal
directly from” and conclude that Palicot anticipates claims 23 and 60 for the
reasons that were presented in the Decision instituting trial. Pet. Reply 20.
Alternatively, Ericsson urges that the reference to “coder 2” in its Petition as
constituting one of the systematic convolutional coders required by claims
23 and 60 was in error. In that respect, Ericsson now contends the
following:
Petitioners correctly pointed to the turbo coder in Table 1,
which for the Example 2 (System B), described in the right-side
column of the table, confirms that it is referring to the turbo
coder and modulator represented by the “Modulator” box14 in
the Figure 4 block diagram on the prior page. But Petitioners
mistakenly referred to the turbo coder as being represented by
“Coder 2” in the Figure 4 block diagram, which incorrectly
places the turbo coder outside the “Modulator” box. Patent
Owner pounced on this error because it also mistakenly
assumes that there is a multiplexer between the turbo coder and
the multilevel (QPSK) modulator, as shown in Figure 4 as the
“MUX” box located between the source “Coder 2” and the
“Modulator” box.
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14 The information in Table 1 for the turbo coder
confirms that it is inside the Figure 4 “Modulator”
box by specifying that the bit rate before the turbo
code channel coding is 9 Mbit/s, which matches
the 9 Mbit/s input to the “Modulator” box in
Figure 4 for the low bit rate component after the
MUX. And further confirmed by the 36 Mbit/s bit
rate before channel coding for the high bit rate
component that matches the 36 Mbit/s input to the
“Modulator” box in Figure 4. Coder 1 and Coder
2 are source coders, not channel coders. The turbo
coder is a channel coder, not a source coder. Patent
Owner highlights the distinction between source
coders (data compression) and channel coders
(e.g., turbo coders) at page 4 of its Response. The
Error Control Coding textbook submitted by Patent
Owner (Ex. 2013, Lin at 1-2), provides further
explanation of the distinctions.
Pet. Reply 21–22.
Thus, Ericsson now contends that it “mistakenly” referenced Palicot’s
“Coder 2” as a part of its Petition, and characterizes that Coder 2 as a
“source coder[]” rather than a “channel coder[].” Evidently, Ericsson
represents that claims 23 and 60 of the ’783 patent require a coder or
encoder that is a channel encoder, and that Palicot’s Coder 2 is not such an
encoder. Instead, now according to Ericsson, the coder required by the
claims is satisfied by a turbo coder that is present “inside the ‘Modulator’
box in the Figure 4 block diagram,” and that the turbo coder is directly
coupled to a multilevel modulator also within that Modulator box.
Pet. Reply 22–23.
Ericsson does not explain how its first theory as to the anticipation of
claims 23 and 60 can be reconciled with its second, alternative theory now
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advanced in its Reply. To that end, if the Petition’s reliance on “Coder 2”
was in error, Ericsson does not articulate how or why it is appropriate for
this panel to conclude that a proposed ground relying on that coder as a
component accounting for the encoder of claims 23 and 60 can be correct.
Indeed, if Ericsson’s reference to “Coder 2” is in error, it would not be
appropriate to conclude that its anticipation ground relying on that Coder 2
and its relationship to the Modulator is justified.
Moreover, with respect to Ericsson’s alternative ground, as noted
above, anticipation requires that every element in a claim must be found in a
single prior art reference, and arranged as recited in the claims. As shown in
the portion of Palicot’s Figure 4 reproduce supra, the Modulator is depicted
simply as a rectangular box with no illustrated detail of the contents, or the
arrangement therein, of the box. That the Modulator may include a turbo
coder does not, itself, present a suitable basis for ascertaining how Palicot
contemplates the relationship of a turbo coder and a multilevel modulator
within the Modulator “box.” On the record before, Ericsson has not shown
an adequate evidentiary basis for concluding that any turbo coder and
multilevel modulator present in Palicot are necessarily arranged in the
manner that is required by claims 23 and 60. Yet, such a conclusion would
be necessary in order to determine that claims 23 and 60 are anticipated by
Palicot.
For the foregoing reasons, and on the record presented here, Ericsson
has not shown a sufficient basis for concluding, by a preponderance of the
evidence, that claims 23 and 60 are anticipated by Palicot.
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3. Obviousness Based on Palicot
Ericsson contends that claims 23 and 60 are unpatentable as obvious,
over Palicot. Ericsson also proposes that claims 24 and 61 are unpatentable
over Palicot and Ungerboeck.
a. Claims 23 and 60
The fundamental question of the patentability of claims 23 and 60
under 35 U.S.C. § 103 based on Palicot is whether a skilled artisan would
have appreciated that a turbo coder and a multilevel modulator may be
connected in a manner recognizable as establishing a “direct” connection
between those components. To that end, there is no dispute that Palicot
discloses a turbo coder and a multilevel modulator. Intellectual Ventures
stakes its case for the patentability of claims 23 and 60 over Palicot on the
theory that the connection between any turbo code and multilevel modulator
in Palicot requires the intervening presence of a multiplexer, which
precludes a determination that those components are directly coupled. PO
Resp. 31–34.
As discussed above in connection with the ground of unpatentability
based on Robertson and Ungerboeck, we determine that the presence of a
multiplexer between a coder and a modulator does not preclude those
components from being viewed as directly connected to one another. Thus,
we conclude that one of ordinary skill in the art would have appreciated that
Palicot’s turbo coder and multilevel modulator may be configured in the
“directly coupled”/ “signal directly from” manner required by claims 23 and
60 despite the presence of a multiplexer between them. To that end, while
we are not satisfied Ericsson has presented a suitable basis for establishing
anticipation of claims 23 and 60 by Palicot, we, nevertheless, conclude that
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under the more expansive obviousness inquiry, claims 23 and 60 are not
patentable over the teachings of Palicot, as they would be understood by a
person of ordinary skill in the art.
Accordingly, in considering the record now before us, including
Ericsson’s Petition and Reply, and Intellectual Ventures’s Patent Owner
Response we are persuaded that Ericsson has shown by a preponderance of
the evidence that claims 23 and 60 are unpatentable under 35 U.S.C. § 103
in light of the teachings of Palicot.
b. Claims 24 and 61
As noted above, claims 24 and 61 add to claims 23 and 60 features
directed to a trellis code modulation. As it did with respect to the grounds
based on Robertson, Ericsson relies on the teachings of Ungerboeck to
account for that added feature. Intellectual Ventures presents essentially the
same argument vis-à-vis the Palicot and Ungerboeck combination as it did
for the Robertson and Ungerboeck combination. For the same reasons
discussed above, we find Ericsson’s evidence persuasive and are not
persuaded by Intellectual Ventures’s arguments.
Accordingly, on the present record, we conclude that Ericsson has
shown, by a preponderance of the evidence that claims 24 and 61 are
unpatentable over Palicot and Ungerboeck.
D. Ericsson’s Motion to Exclude
Ericsson has filed a Motion to Exclude paragraphs 51, 53, 55, 57–60,
66, 67, and 70–73 from the Declaration of Intellectual Ventures’s declarant,
Dr. Cimini (Ex. 2006). Paper 34, 1. The underlying controversy centers on
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Dr. Cimini’s Declaration and deposition testimony concerning a printed
publication referred to as Robertson CMS (Ex. 1025).7
Here, we do not discern that it is necessary to consider the substantive
merit of Ericsson’s Motion to Exclude. In that regard, to the extent that we
have considered or relied upon the pertinent paragraphs of Dr. Cimini’s
Declaration, we have resolved the underlying issue in Ericsson’s favor.
Accordingly, Ericsson’s Motion to Exclude is dismissed as moot.
III. CONCLUSION
We determine that Ericsson has shown by a preponderance of the
evidence that: (1) claims 23, 24, 60, and 61 are unpatentable under 35 U.S.C.
§ 103 over Robertson and Ungerboeck; (2) claims 23 and 60 are
unpatentable under 35 U.S.C. § 103 over Palicot; and (3) claims 24 and 61
are unpatentable under 35 U.S.C. § 103 over Palicot and Ungerboeck. We
determine that Ericsson has not shown that claims 23 and 60 are anticipated
under 35 U.S.C. § 102 by Palicot.
IV. ORDERS
After due consideration of the record before us, it is
ORDERED that claims 23, 24, 60, and 61 are held
unpatentable;
FURTHER ORDERED that Ericsson’s Motion to Exclude
(Paper 34) is dismissed as moot; and

7 P. Robertson and T. Wörz, Coded Modulation Scheme Employing Turbo
Codes, 31 ELECTRONICS LETTERS, No. 18, at 1546–47, Aug. 31, 1995.
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FURTHER ORDERED that this is a Final Written Decision. Parties
to the proceeding seeking judicial review of the decision must comply with
the notice and service requirements of 37 C.F.R. § 90.2.

For PETITIONERS:

J. Robert Brown, Jr. (Reg. no. 45,438)
Conley Rose, P.C.
Granite Park Three
5601 Granite Parkway, Suite 500
Plano, TX 75024
rbrown@dfw.conleyrose.com

Charles J. Rogers (Reg. no. 38,286)
Conley Rose, P.C.
1001 McKinney Street, Suite 1800
Houston, TX 77002
crogers@conleyrose.com

For PATENT OWNER:

Lori A. Gordon (Reg. no. 50,633)
Sterne, Kessler, Goldstein & Fox P.L.L.C.
1100 New York Avenue, N.W.
Washington, D.C. 20005-3934
lgordon-PTAB@skgf.com

Michael D. Specht
Sterne, Kessler, Goldstein & Fox P.L.L.C.
1100 New York Avenue, N.W.
Washington, D.C. 20005-3934
MSpecht-PTAB@skgf.com

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Donald J. Coulman
Intellectual Ventures
3150 139th Avenue S.E.
Bellevue, WA 98005
DCoulman@intven.com

James Hietala
Intellectual Ventures
3150 139th Avenue S.E.
Bellevue, WA 98005
jhietala@intven.com

Tim Seeley
Intellectual Ventures
3150 139th Avenue S.E.
Bellevue, WA 98005
tim@intven.com