Optis Wireless Technology, LLC

Patent Trials and Appeals Board

Sep 15, 2020

IPR2020-00466 (P.T.A.B. Sep. 15, 2020)

Trials@uspto.gov Paper 13
571-272-7822 Date: September 15, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

APPLE INC.,
Petitioner,
v.
OPTIS WIRELESS TECHNOLOGY, LLC,
Patent Owner.

IPR2020-00466
Patent 8,411,557 B2

Before LYNNE E. PETTIGREW, BARBARA A. PARVIS, and
JOHN P. PINKERTON, Administrative Patent Judges.
PARVIS, Administrative Patent Judge.
DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314
I. INTRODUCTION
Petitioner, Apple Inc., filed a Petition for inter partes review of
claims 1–10 of U.S. Patent No. 8,411,557 B2 (Ex. 1001, “the ’557 patent”).
Paper 3 (“Pet.”). Patent Owner, Optis Wireless Technology, LLC, filed a
Preliminary Response. Paper 7 (“Prelim. Resp.”). Pursuant to our
authorization for supplemental briefing, Petitioner filed a Reply to Patent
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Owner’s Preliminary Response, and Patent Owner filed a Sur-reply. Paper 8
(“Pet. Reply”); Paper 9 (“PO Sur-reply”).
Under 35 U.S.C. § 314 and 37 C.F.R. § 42.4(a), we have authority to
institute an inter partes review if “the information presented in the
petition . . . and any response . . . shows that 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). The Board, however, has
discretion to deny a petition even when a petitioner meets that threshold.
Id.; see, e.g., Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016)
(“[T]he agency’s decision to deny a petition is a matter committed to the
Patent Office’s discretion.”); NHK Spring Co. v. Intri-Plex Techs., Inc.,
IPR2018-00752, Paper 8 (PTAB Sept. 12, 2018) (precedential, designated
May 7, 2019) (“NHK”).
Having considered the parties’ submissions, and for the reasons
explained below, we exercise our discretion under 35 U.S.C. § 314(a) to
deny institution of inter partes review.
II. BACKGROUND
A. Real Parties-in-Interest
Petitioner identifies itself as a real party-in-interest. Pet. 1. Patent
Owner identifies itself as a real party-in-interest and states that “PanOptis
Patent Management, LLC has the right to license and assert the ’557 patent.”
Paper 6, 1 (Patent Owner’s Mandatory Notices).
B. Related Matters
The parties identify the following pending district court proceeding
related to the ’557 patent: Optis Wireless Technology, LLC et al. v. Apple
Inc., No. 2:19-cv-00066 (E.D. Tex.). Pet. 1; Paper 6, 1.
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C. Overview of the ’557 Patent
The ’557 patent describes a mobile station and radio communication
method for efficiently reporting control information in the RACH (Random
Access Channel). Ex. 1001, 1:60–62. The method of the present invention
includes selecting one of a plurality of unique code sequences as a signature,
according to inputted control information. Id. at 2:62–65. The signature
(code sequence) is then modulated to generate a RACH signal that is
multiplexed and transmitted. Id. at 3:1–12.
D. Illustrative Claim
Challenged claims 1 and 10 are independent, and each of challenged
claims 2–9 depends directly from claim 1. Claim 1 is illustrative of the
claimed subject matter:
1. A mobile station apparatus comprising:
a receiving unit configured to receive control information;
a selecting unit configured to randomly select a sequence from
a plurality of sequences contained in one group of a plurality of
groups, into which a predetermined number of sequences that
are generated from a plurality of base sequences are grouped
and which are respectively associated with different amounts of
data or reception qualities, wherein the predetermined number
of sequences are grouped by partitioning the predetermined
number of sequences, in which sequences generated from the
same base sequence and having different cyclic shifts are
arranged in an increasing order of the cyclic shifts; and
a transmitting unit configured to transmit the selected sequence;
wherein a position at which the predetermined number of
sequences are partitioned is determined based on the control
information, and a number of sequences contained in each of
the plurality of groups varies in accordance with the control
information.
Ex. 1001, 10:59–11:14.
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E. Asserted Grounds of Unpatentability
Petitioner asserts that the challenged claims are unpatentable based on
the following grounds (Pet. 4):
Claims Challenged 35 U.S.C. § References
1–10 103(a)1 Harris2, Tan3
1–10 103(a) Sutivong4, Tan

III. ANALYSIS
Patent Owner contends we should exercise our discretion under
35 U.S.C. § 314(a) to deny institution of inter partes review due to the
advanced stage of the parallel litigation in the United States District Court
for the Eastern District of Texas. Prelim. Resp. 1–11 (citing Apple Inc. v.
Fintiv, Inc., IPR2020-00019, Paper 11 (PTAB Mar. 20, 2020) (precedential,
designated May 5, 2020) (“Fintiv”)). According to Patent Owner, we should
exercise our discretion “to avoid duplicative efforts that waste the judicial,
administrative and the parties’ resources and to avoid [a] potentially
inconsistent outcome.” Id. at 1.
Patent Owner also contends we should exercise our discretion under
35 U.S.C. § 325(d) to deny institution of inter partes review because the
combination of Sutivong and Tan already was considered during prosecution

1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
Stat. 284, 285–88 (2011), revised 35 U.S.C. § 103 effective March 16, 2013.
Because the ’557 patent has an effective filing date prior to the effective date
of the applicable AIA amendment, we refer to the pre-AIA version of § 103.
2 U.S. Patent No. 8,009,637 B2, issued August 30, 2011 (Ex. 1004,
“Harris”).
3 U.S. Patent Application Publication No. US 2007/0165567 A1, published
July 19, 2007 (Ex. 1005, “Tan”).
4 International Patent Application Publication No. WO 2006/019710 A1,
published February 23, 2006 (Ex. 1003, “Sutivong”).
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of the parent of the application that issued as the ’557 patent. Id. at 11–13.
Petitioner acknowledges that during prosecution of the parent, the Examiner
rejected all pending claims as anticipated by Tan, and later the Examiner
finally rejected all pending claims of the parent as obvious over Tan and
Sutivong. Pet. 14–16.5 Petitioner asserts that applicants “avoided any
substantive rejections” in the application that issued as the ’557 Patent
because applicants’ request to participate in the Patent Prosecution Highway
(PPH) Program between the U.S. Patent and Trademark Office and the Japan
Patent Office (JPO) was granted and the JPO had not considered Tan and
Sutivong. Pet. 18 (citing Ex.1006, 62–63, 95–108). Patent Owner responds
that “applicants noticed those references in an IDS and specifically pointed
out ‘[t]he references listed on the attached Information Disclosure Statement
were submitted to and/or cited by the Patent and Trademark Office in its
prior application . . . .’” Prelim. Resp. 12 (citing Ex. 1006, 113–116).
We begin by considering the parties’ contentions regarding whether
we should exercise our discretion under 35 U.S.C. § 314(a) to deny
institution of inter partes review.
A. 35 U.S.C. § 314(a)
In determining whether to exercise our discretion under § 314(a), we
are guided by the Board’s precedential decisions in NHK and Fintiv. In
NHK, the Board found that the “advanced state of the district court
proceeding” was a “factor that weighs in favor of denying” the petition
under § 314(a). NHK, Paper 8 at 20. The Board determined that institution
of an inter partes review under the circumstances present in that case

5 The ’557 patent issued from U.S. Patent Application No. 13/333,805,
which claims priority to U.S. Patent Application No. 12/293,530 (“parent”).
Pet. 14.
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“would not be consistent with ‘an objective of the AIA . . . to provide an
effective and efficient alternative to district court litigation.’” Id. (citing
Gen. Plastic Indus. Co. v. Canon Kabushiki Kaisha, IPR2016-01357,
Paper 19 at 16–17 (PTAB Sept. 6, 2017) (precedential in relevant part)).
The Board’s cases considering the advanced state of a parallel proceeding
“as a basis for denial under NHK have sought to balance considerations such
as system efficiency, fairness, and patent quality.” Fintiv, Paper 11 at 5
(collecting cases). Fintiv sets forth the following factors the Board balances
when determining whether to exercise its discretion to deny institution:
1. whether the court granted a stay or evidence exists that one
may be granted if a proceeding is instituted;
2. proximity of the court’s trial date to the Board’s projected
statutory deadline for a final written decision;
3. investment in the parallel proceeding by the court and the
parties;
4. overlap between issues raised in the petition and in the
parallel proceeding;
5. whether the petitioner and the defendant in the parallel
proceeding are the same party; and
6. other circumstances that impact the Board’s exercise of
discretion, including the merits.
Id. at 5–6. “[I]n evaluating the factors, the Board takes a holistic view of
whether efficiency and integrity of the system are best served by denying or
instituting review.” Id. at 6.
We now consider the Fintiv factors to determine whether we should
exercise discretion to deny institution under 35 U.S.C. § 314(a) in this case.
Because Fintiv issued and was designated precedential after the Petition was
filed, we authorized the parties to file supplemental briefing to address the
Fintiv factors. See Pet. Reply 1–8; PO Sur-reply 1–8. After the parties filed
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their supplemental briefing, the district court held a jury trial, which we
address in more detail below. See Paper 11, 1 (Patent Owner’s Updated
Mandatory Notice, Aug. 19, 2020). As a result, some of the parties’
arguments presented in the supplemental briefing, especially those related to
uncertainty of the trial date, are no longer particularly relevant to an analysis
of the Fintiv factors.
1. Fintiv Factor 1: Stay in the Parallel Proceeding
As noted, the Texas district court trial already has taken place. See
Paper 11, 1. Petitioner did not move for a stay in the district court
proceeding prior to trial. See Pet. Reply 1. The parties have provided no
evidence regarding whether a stay of any post-trial proceedings may be
requested or granted. Under these circumstances, this factor is neutral and
does not affect our analysis.
2. Fintiv Factor 2: Trial Date in the Parallel Proceeding
A jury trial involving the ’557 patent and four other patents began in
the Texas district court proceeding on August 3, 2020 and concluded with a
jury verdict on August 11, 2020. See Paper 11, 1; see also Paper 10, 1
(Petitioner’s Notice of Claims and Grounds of Invalidity Presented at
District Court Trial); Ex. 2021, 5 (jury verdict form indicating Petitioner did
not prove by clear and convincing evidence that claims 1 and 10 of the
’557 patent are invalid). Thus, the trial ended about one month before the
statutory deadline for a decision whether to institute an inter partes review
and about thirteen months before a final written decision would be due if we
did institute an inter partes review.
If a court’s trial date is earlier than the projected statutory deadline of
a final written decision, “the Board generally has weighed this fact in favor
of exercising authority to deny institution under NHK.” Fintiv, Paper 11 at
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9. In this case, in view of the thirteen-month gap between the date of the
district court jury verdict and the projected due date for a final written
decision, this Fintiv factor strongly favors the exercise of discretionary
denial.
3. Fintiv Factor 3: Investment by the Court and the Parties in the
Parallel Proceeding
With respect to the third Fintiv factor, Petitioner argues that its
diligence in filing the Petition favors institution. Pet. Reply 1. Petitioner
asserts, for example, that after identifying nearly 140 prior art references
across seven asserted patents in its initial invalidity contentions in district
court, it diligently evaluated the unique strengths of each prior art reference
and combination, searched for additional prior art, and filed petitions
challenging only three patents. Id. Petitioner also argues it obtained no
tactical advantage based on the time the Petition was filed. Id. at 2.
Patent Owner argues that this factor weighs heavily in favor of
discretionary denial due to the “tremendous” investment in the parallel
proceeding by the parties and the court. Prelim. Resp. 6. At the time of the
Preliminary Response, the district court had held a Markman hearing and
issued a claim construction order, fact discovery had closed, and the parties
had exchanged expert reports and conducted expert discovery. Id. at 5–6.
By the time Patent Owner filed its Sur-reply, the parties had filed dispositive
and Daubert motions and oppositions. PO Sur-reply 2. Responding to
Petitioner’s argument, Patent Owner contends that diligence and tactical
advantage are not relevant under Fintiv but instead are addressed under
General Plastic when the Board considers whether to exercise its discretion
to deny a petition challenging a patent that was the subject of another
petition. Id.
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Contrary to Patent Owner’s argument, Fintiv does provide that a
petitioner’s diligence or delay in filing a petition may be relevant under the
third Fintiv factor. Fintiv, Paper 11 at 11–12. Nevertheless, under the
circumstances present here, the timing of the Petition does not impact our
analysis. As discussed above, the district court held a jury trial that ended
with a verdict on August 11, 2020. See supra § III.A.2. Thus, the parties
and the district court have invested substantial time and effort addressing
patent validity in preparing for and conducting a trial in the parallel
proceeding. Accordingly, this factor strongly favors the exercise of
discretionary denial to prevent the inefficient use of Board resources, as well
as duplicative costs to the parties.
4. Fintiv Factor 4: Overlap Between Issues Raised in the Petition
and Parallel Proceeding
Patent Owner argues that “[t]he exact same combinations of
references at issue in the Petition are also at issue in the district court.”
Prelim. Resp. 6 (citing Ex. 2007, 1). Patent Owner also argues “the fact that
there are more claims at issue in the Petition than the ones elected for trial
does not weigh in favor of discretionary institution” because the analysis in
the Petition “for the dependent claims relies on essentially the same evidence
and argument as for claim 1; and Petitioner devotes the bulk of the analysis
to the elected claims.” Id. at 7–8.
Petitioner states that at Patent Owner’s request, “and to eliminate the
chance of inconsistent findings, Petitioner agreed on July 2, 2020 to drop the
Harris grounds” in the district court proceeding and Petitioner “further
stipulates that it will not pursue Ground 2 (Sutivong and Tan) in this IPR.”
Pet. Reply 2 (citing Ex. 1045). Petitioner also asserts that “significant
differences” in the proceedings favor institution including that in only the
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instant proceeding, Petitioner asserts the ground of obviousness over Harris
and Tan and in only the instant proceeding all claims of the ’557 patent, i.e.,
claims 1–10 are challenged. Id. Petitioner also describes as “unique” the
reasoning to combine in the Petition (id.), which includes the following: “[a]
POSITA would have been motivated to use Tan’s sequences, which are
generated from a plurality of base sequences, as the codes in Harris, at least
because Harris incorporates the Tan Provisional by reference for the express
purpose of using Tan’s sequences as the codes in Harris.” Pet. 28 (citing Ex.
1004, 4:1–11). Petitioner responds to Patent Owner’s arguments regarding
the dependent claims (Prelim. Resp. 8) by asserting that “Petitioner’s
analysis of non-overlapping claims is proportionate to their length.” Pet.
Reply 3.
Patent Owner responds that Petitioner “cannot avoid complete overlap
between the two proceedings.” PO Sur-reply 3. Patent Owner points to
investment by both parties in the district court proceeding. Id. Patent
Owner also argues that Petitioner cannot alter its Petition because the
statutory deadline for filing has passed. Id. at 3–4.
Consistent with Petitioner’s agreement “to drop the Harris grounds” in
the district court proceeding (Pet. Reply 2), Petitioner’s invalidity
presentation to the jury included obviousness over Sutivong and Tan, but not
obviousness over Harris and Tan. See Paper 10, 1; Paper 11, 1–2. The
Petition, however, relies on Tan, not Harris, for certain recitations in the
claims. See, e.g., Pet. 27, 34. Even considering just the combination of
Harris and Tan, Petitioner has not explained how its arguments relying on
Tan in this proceeding differ from arguments presented to the jury regarding
that same reference. See generally Pet. Reply. Accordingly, we do not
agree that the issues in the Petition relating to obviousness over Harris and
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Tan are “significantly” different from those presented in the district court
proceeding.
Furthermore, we agree with Patent Owner that Petitioner cannot alter
its Petition. If we institute an inter partes review based on obviousness over
Harris and Tan, therefore, we also must institute as to all other claims and all
grounds, including the ground based on Sutivong and Tan. See SAS Inst.
Inc. v. Iancu, 138 S. Ct. 1348, 1369–70 (2018) (holding that a decision to
institute under 35 U.S.C. § 314 may not institute on fewer than all claims
challenged in the petition); PGS Geophysical AS v. Iancu, 891 F.3d 1354,
1360 (Fed. Cir. 2018); Patent Trial and Appeal Board Consolidated Trial
Practice Guide (Nov. 2019) (“TPG”), at 5 (“In instituting a trial, the Board
will either (1) institute as to all claims challenged in the petition and on all
grounds in the petition, or (2) institute on no claims and deny institution.”)
(available at https://www.uspto.gov/TrialPracticeGuideConsolidated).
As for the challenged claims, the Petition challenges independent
claims 1 and 10 (Pet. 1), the same independent claims at issue in the district
court proceeding. Paper 10, 1; Paper 11, 1–2; Ex. 2021, 5. Dependent
claims 2–9 are challenged in the Petition (Pet. 1), but were not at issue in the
district court proceeding. Paper 10, 1; Paper 11, 1–2; Ex. 2021, 5. We agree
with Patent Owner, however, that the Petition’s analysis of dependent
claims 2–9, which do not add materially different limitations, relies on many
of the same arguments and evidence as its analysis of claim 1. See Pet. 37–
45 (repeatedly referring back to analysis of claim 1 limitations). We,
therefore, find substantial overlap in the claimed subject matter challenged
in the Petition and the parallel proceeding.
This fourth Fintiv factor involves consideration of inefficiency
concerns and the possibility of conflicting decisions. Fintiv, Paper 11 at 12.
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Therefore, “if the petition includes the same or substantially the same
claims, grounds, arguments, and evidence as presented in the parallel
proceeding, this fact has favored denial.” Id. “Conversely, if the petition
includes materially different grounds, arguments, and/or evidence than those
presented in the district court, this fact has tended to weigh against
exercising discretion to deny institution.” Id. at 12–13.
As discussed, the Petition challenges the same independent claims that
were considered in the district court proceeding. The dependent claims
challenged in the Petition raise similar issues as the independent claims. The
Petition presents an obviousness ground based on a different combination
that involves a different reasoning to combine, but the Petition also includes
a ground that is the same as the ground presented to the jury and Petitioner
cannot alter the Petition. Under these circumstances, we view this factor as
weighing slightly in favor of denial.
5. Fintiv Factor 5: Whether Petitioner is the Defendant in the
Parallel Proceeding
Petitioner here is the defendant in the district court litigation. See
Pet. 1; Paper 6, 1. Also, the jury already has rendered a verdict in Patent
Owner’s favor with respect to independent claims 1 and 10. See supra
§ III.A.2. Under these circumstances, we view this factor as weighing in
favor of denial.
6. Fintiv Factor 6: Other Considerations
Under the sixth Fintiv factor, which takes into account any other
relevant circumstances, Patent Owner argues that Petitioner unreasonably
delayed in filing the Petition. Prelim. Resp. 9. Petitioner responds that it
was diligent in evaluating the unique strengths of the seven patents
originally asserted in the parallel proceeding, searching for additional prior
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art, and ultimately filing only three petitions with the Board. Pet. Reply 1.
Having considered the particular factual circumstances of this case, we do
not consider Petitioner’s filing untimely.
Petitioner presents extensive policy arguments against the Board’s
application of Fintiv and NHK in determining whether to exercise discretion
to deny institution under 35 U.S.C. § 314(a). Pet. Reply 6–8. We do not
address these arguments because we are bound by Fintiv and NHK, which
the Under Secretary of Commerce for Intellectual Property and Director of
the U.S. Patent and Trademark Office has designated as precedential
decisions of the Board.
Petitioner argues that the strength of its Petition weighs against
discretionary denial. Pet. Reply 3–4. Petitioner uses its Reply to respond on
the merits to some of the arguments raised by Patent Owner in the
Preliminary Response. Id. (citing Prelim. Resp. 26–37). Petitioner’s
arguments pertain to whether the asserted art teaches the claim limitations,
not whether the arguments regarding Tan are the same as those presented to
the jury. Id. Patent Owner then offers its own response in its Sur-reply. PO
Sur-reply 4–6. As we reminded the parties when we authorized
supplemental briefing, we will not consider any arguments regarding the
merits that were not raised in the Petition or Preliminary Response. See
Ex. 2016 (emails authorizing Reply and Sur-reply). In any event, the parties
have not identified particular strengths or weaknesses (e.g., in comparison to
the obviousness grounds already considered by the jury in the parallel
proceeding) that in our view would tip the balance either for or against
discretionary denial when considered as part of a balanced assessment of the
Fintiv factors in this case. See Fintiv, Paper 11 at 14–15.
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With respect to Petitioner’s argument that the strength of its Petition
weighs against discretionary denial (Pet. Reply 3–4), we further consider the
arguments and evidence presented in the Petition and the Preliminary
Response. In particular, Patent Owner asserts “[o]n the merit[s], Petitioner
acknowledges that neither reference discloses ‘sequences generated from the
same base sequence and having different cyclic shifts are arranged in an
increasing order of the cyclic shifts.’” Prelim. Resp. 1 (citing Pet. 34).
Consistent with Patent Owner’s contention, Petitioner acknowledges that
Harris lacks express teachings in that regard, and Petitioner asserts that it
would have been obvious for a person having ordinary skill in the art “to
arrange Tan’s sequences such that the cyclically shifted sequences were in
increasing order of the cyclic shifts.” Pet. 34; see also id. at 27 (stating that
Harris “does not expressly teach that the codes are generated from a
‘plurality of base sequences’” and relying on Tan), 34 (referring back to
page 27 of the Petition and arguing that making Petitioner’s proposed
modification of Tan “is the most obvious choice for a POSITA”). Upon
consideration of Petitioner’s arguments and evidence, we are not persuaded
that the Petition’s showing on the merits here supports Petitioner’s argument
that the strength of its Petition weighs against discretionary denial.
Petitioner also raises additional considerations under this factor that it
contends favor institution. Pet. Reply 4–6. Petitioner argues that the public
interest would be served if the Board addresses the patentability of the
’557 patent, which Patent Owner alleges is essential to 3GPP LTE (3rd
Generation Partnership Project Long Term Evolution) telecommunications
standards. Pet. Reply 4 (citing Ex. 1048, 8; Ex. 1049, Ex. 1050). Petitioner
also argues that “the Board is well suited to address the complex technical
subject matter” of the ’557 patent and contends that a detailed analysis by
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the Board would enhance the integrity of the patent system. Id. at 5–6. We
do not take Petitioner’s concerns lightly, but Patent Owner correctly asserts
that ample procedural safeguards exist for Petitioner to challenge that
’557 patent in federal court, including the availability of an appeal to the
U.S. Court of Appeals for the Federal Circuit once post-trial proceedings
have been completed.
7. Conclusion
Based on the particular circumstances of this case, we determine that
instituting an inter partes review would be an inefficient use of Board
resources. As discussed above, the trial in the parallel proceeding recently
concluded more than one year before we would reach a final decision in this
proceeding if we instituted an inter partes review. Moreover, the district
court and the parties expended considerable effort in preparing for and
conducting the trial. These considerations strongly favor the exercise of
discretionary denial, other considerations favor denial, and no considerations
weigh against the exercise of discretionary denial in this case.
On balance, after a holistic consideration of the relevant facts and the
particular circumstances of this case, we conclude that efficiency and
integrity of the system are best served by denying institution. Thus, we
exercise our discretion under § 314(a) to deny institution of inter partes
review.
B. 35 U.S.C. § 325(d)
In view our determination to exercise our discretion under § 314(a) to
deny institution of inter partes review, we need not consider the parties’
arguments regarding exercising our discretion under § 325(d) to deny
institution of inter partes review.
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IV. ORDER
Accordingly, it is
ORDERED that the Petition is denied; and
FURTHER ORDERED that no inter partes review is instituted.
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PETITIONER:

Jason Kipnis
Mary V. Sooter
David Cavanaugh
Ravi Deol
WILMER CUTLER PICKERING HALE and DORR LLP
Jason.Kipnis@wilmerhale.com,
Mindy.Sooter@wilmerhale.com.
David.Cavanaugh@wilmerhale.com
Ravi.Deol@wilmerhale.com

PATENT OWNER:

Hong Annita Zhong
Jason Sheasby
IRELL & MANELLA LLP
hzhong@irell.com
jsheasby@irell.com