Exhibit A 

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Trials@uspto.gov Paper 13 

571-272-7822 Entered: September 10, 2024 

UNITED STATES PATENT AND TRADEMARK OFFICE 

BEFORE THE PATENT TRIAL AND APPEAL BOARD 

SAMSUNG ELECTRONICS AMERICA, INC., and 

SAMSUNG ELECTRONICS CO., LTD., 

Petitioner, 

v. 

COBBLESTONE WIRELESS, LLC, 

Patent Owner. 

IPR2024-00606 

Patent 7,924,802 B2 

Before KARL D. EASTHOLM, NORMAN H. BEAMER, and 

RUSSELL E. CASS, Administrative Patent Judges. 

CASS, Administrative Patent Judge. 

DECISION 

Granting Institution of Inter Partes Review 

35 U.S.C. § 314

 

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I. INTRODUCTION 

A. Background 

Samsung Electronics America, Inc., and Samsung Electronics Co., 

Ltd. (“Petitioner”) filed a Petition requesting an inter partes review of 

claims 1–4, 6–10, 13–14, 17, and 21–25 (the “challenged claims”) of U.S. 

Patent No. 7,924,802 B2 (Ex. 1001, “the ’802 patent”). Paper 3 (“Pet.”). 

Cobblestone Wireless, LLC (“Patent Owner”) filed a Preliminary Response. 

Paper 8 (“Prelim. Resp.”). With our permission, Petitioner filed a 

Preliminary Reply (Paper 9, “Pet. Prelim. Reply”), and Patent Owner filed a 

Preliminary Sur-reply (Paper 10, “PO Prelim. Sur-reply”). 

We have authority to determine whether to institute an inter partes

review, under 35 U.S.C. § 314 and 37 C.F.R. § 42.4. An inter partes review 

may not be instituted unless it is determined that “the information presented 

in the petition filed under section 311 and any response filed under section 

313 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 (2018); see also 37 C.F.R § 42.4(a) (2020) (“The Board 

institutes the trial on behalf of the Director.”). The reasonable likelihood 

standard is “a higher standard than mere notice pleading,” but “lower than 

the ‘preponderance’ standard to prevail in a final written decision.” Hulu, 

LLC v. Sound View Innovations, LLC, IPR2018-01039, Paper 29 at 13 

(PTAB Dec. 20, 2019) (precedential). 

For the reasons provided below and based on the record before us, we 

determine that Petitioner has demonstrated a reasonable likelihood that it 

would prevail in showing the unpatentability of at least one of the 

challenged claims. Accordingly, we institute an inter partes review on all 

grounds set forth in the Petition. 

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B. Real Parties in Interest 

Petitioner states that “[t]he real parties-in-interest for Petitioner[] are 

Samsung Electronics America, Inc. and Samsung Electronics Co., Ltd.” 

Pet. 102. Petitioner also identifies, “[o]ut of an abundance of caution and to 

avoid additional issues associated with real parties-in-interest, . . . T-Mobile 

USA, Inc., AT&T Services Inc., AT&T Corp., AT&T Mobility LLC, and 

Cellco Partnership d/b/a Verizon Wireless because Petitioner’s products are 

accused of infringement in their respective patent infringement actions.” Id. 

Patent Owner identifies Cobblestone Wireless, LLC as the real party 

in interest.” Paper 7, 2. 

C. Related Proceedings 

The parties identify the following proceedings involving the ’802 

patent: Cobblestone Wireless, LLC v. Samsung Electronics Co., Ltd., No. 

2:23-cv-00285 (E.D. Tex.) (the “parallel district court proceeding”); 

Cobblestone Wireless, LLC v. T-Mobile USA, Inc., No. 2:23-cv-00381 (E.D. 

Tex.); Cobblestone Wireless, LLC v. Cellco Partnership d/b/a Verizon 

Wireless, Case No. 2:23-cv-00382 (E.D. Tex.); Cobblestone Wireless, LLC 

v. AT&T Services Inc. No. 2:23-cv-00380 (E.D. Tex.); Cobblestone 

Wireless, LLC v. Hewlett Packard Enterprise Company, et al., Case No. 

2:23-cv-00457 (E.D. Tex.); Cobblestone Wireless, LLC v. CommScope 

Holding Company, Inc., No. 2:23-cv-00455 (E.D. Tex.); Cobblestone 

Wireless, LLC v. Cisco Systems, Inc., No. 2:23-cv-00454 (E.D. Tex.); 

Hewlett Packard Enterprise Company and Cisco Systems, Inc. v. 

Cobblestone Wireless, LLC, IPR2024-00707; and Wireless Communication 

Systems and Methods, Re-Examination Appl. No. 90/019,458. Pet. 102–

103; Paper 7, 2–3. 

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D. The ’802 Patent (Ex. 1001) 

The ’802 patent is directed to a wireless communication system and 

method that transmits signals simultaneously over a communication channel 

at different RF center frequencies. Ex. 1001, code (54), code (57). The 

Background of the ’802 patent explains that “[c]ommunication systems 

generally contain one or more transmission channels to transmit data from 

the transmitter to the receiver.” Id. at 1:12–14. The Background describes a 

transmitter in such a system that “is limited to up-converting a signal to one 

center frequency (or modulation frequency), which is the LO [(local 

oscillator)] frequency.” Id. at 1:29–32. “Typically,” the Background 

explains, “the amount of information transmitted around the center 

frequency is limited by the bandwidth of the transmitter around the center 

frequency,” which “limits the amount of data that can be transmitted.” Id. at 

1:32–35. Thus, “[t]ypical prior art approaches to improving the information 

capacity in a wireless communication system involve maximizing the 

bandwidth around the center frequency to increase the amount of 

information that may be modulated onto the carrier frequency.” Id. at 1:35–

40. 

To overcome this issue, the’802 patent proposes “a method of 

transmitting information in a wireless communication channel” that includes 

“transmitting first information across a first frequency range having a first 

center frequency, a first highest frequency, and a first lowest frequency, and 

simultaneously transmitting second information across a second frequency 

range using the same wireless transmitter,” where the second frequency 

range has “a second center frequency greater than the first center frequency, 

a second highest frequency, and a second lowest frequency.” Ex. 1001, 

1:60–2:5. 

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Figure 2 of the ’802 patent, reproduced below, “illustrates a wireless 

communication system according to one embodiment of the present 

invention.” Ex. 1001, 5:53–54. 

Figure 2 of the ’802 patent illustrates a wireless communication system 

according to an embodiment of the invention. Ex. 1001, 5:53–54, Fig. 2. 

As shown in Figure 2, baseband digital system 250 provides a first digital 

signal comprising first digital data 251 which is provided as IN1 and a 

second digital signal comprising second digital data 252 provided as IN2. 

Id. at 5:62–66. The first digital data 251 and second digital data 252 may be 

unrelated data streams or data from the same data stream. Id. at 6:7–9. Each 

of the first and second digital signals is transmitted to a digital to analog 

converter (DAC 201 and 202), a filter (203 and 204), and an up-converter 

(205 and 206). Id. at 6:10–26. The up-converters 205 and 206 each receive 

a first modulation signal having an RF center frequency (f1 and f2, 

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respectively) from synthesizer 207 and generate first and second upconverted signals that are combined at the input to amplifier 208. Id. at 

6:22–44, 6:57–60, 7:4–7. Amplifier 208 outputs an amplified up-converted 

signal comprising the first and second up-converted analog signals, and 

transmits this signal over antenna 209. Id. at 7:7–11. 

Figure 3 of the ’802 patent, reproduced below, illustrates an example 

of the frequency content of the signal transmitted from the system disclosed 

in Figure 2. 

Figure 3 of the ’802 patent illustrates an example of the frequency content of 

the signal transmitted by the stem of Figure 2. Ex. 1001, 5:58–60, Fig. 3. 

Figure 3 shows first up-converted analog signal 301 generated by upconverter 205, which has center frequency f1 and frequency range 305, and 

second up-converted analog signal 302 generated by up-converter 206, 

which has center frequency f2 and frequency range 306. Id. at 6:26–44. The 

frequency difference between f1 and f2 is greater than the sum of one-half of 

the first frequency range and one-half of the second frequency range, so that 

the up-converted signals do not overlap and cause distortion. Id. at 6:48–53. 

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The first and second up-converted analog signals 301 and 302 may be 

transmitted by the antenna over bandwidth BWPA 309. Id. at 7:9–14. 

E. Illustrative Claims 

Of the challenged claims, claims 1, 10, 17, and 24 are independent. 

Claim 1 is illustrative and is reproduced below. 

1. [pre] A method of transmitting information in a wireless 

communication channel comprising: 

[1a] transmitting first information across a first frequency 

range using a wireless transmitter, the first frequency 

range having a first center frequency, a first highest 

frequency, and a first lowest frequency; and 

[1b] simultaneously transmitting second information across a 

second frequency range using the same wireless 

transmitter, the second frequency range having a second 

center frequency, a second highest frequency, and a 

second lowest frequency. 

Ex. 1001, 13:59–14:3 (bracketed paragraph identifiers added). 

F. Applied References 

Petitioner relies upon the following references: 

Rick et al., U.S. Patent No. 8,693,525 B2, issued Apr. 8, 

2014 (Ex. 1021, “Rick”); 

Suzuki et al., US 2006/0276146 A1, published Dec. 7, 

2006 (Ex. 1004, “Suzuki”); 

Fernandez, US 2009/0052556 A1, published Feb. 26, 

2009 (Ex. 1005, “Fernandez”); 

Montojo et al., US 2005/0135312 A1, published June 23, 

2005 (Ex. 1006, “Montojo”); 

Jalali et al., U.S. Patent No. 6,952,454, published Oct. 4, 

2005 (Ex. 1008, “Jalai”); 

Chen et al., U.S. Patent No. 6,359,868, issued Mar. 19, 

2002 (Ex. 1009, “Chen”); 

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Etemad, U.S. Patent No. 8,036,702 B2, issued Oct. 11, 

2011 (Ex. 1014, “Etemad”). 

Pet. 3–4. 

 Petitioner submits the Declaration of Dr. Kevin C. Almeroth 

(Ex. 1003). 

G. Asserted Grounds of Unpatentability 

Petitioner challenges the patentability of claims 11–17 of the 

’028 patent based on the following grounds: 

Claims Challenged 35 U.S.C. § Reference(s)/Basis 

1 103(a)1 Rick 

1–4, 6–8, 10, 13, 17, 

21–22 103(a) Suzuki 

7–9, 22, 23 103(a) Suzuki, Jalai 

14, 24, 25 103(a) Suzuki, Chen 

6, 13, 21 103(a) Suzuki, Etemad

1–4, 6–8, 10, 13, 17, 

21, 22 103(a) Fernandez, Montojo 

7–9, 22, 23 103(a) Fernandez, Montojo, Jalai 

14, 24, 25 103(a) Fernandez, Montojo, Chen 

6, 13, 21 103(a) Fernandez, Montojo, Etemad 

Pet. 4. 

II. DISCUSSION 

A. Claim Construction 

A claim “shall be construed using the same claim construction 

standard that would be used to construe the claim in a civil action under 

35 U.S.C. § 282(b).” 37 C.F.R. § 42.100(b) (2020). The parties’ arguments 

1

 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 

(2011) (“AIA”), included revisions to 35 U.S.C. § 103 that became effective 

after the filing of the application that led to the ’802 patent. Therefore, we 

apply the pre-AIA version of 35 U.S.C. § 103. 

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at this stage raise three claim construction issues: (1) whether the phrase “in 

a wireless communication channel” in the preamble of claims 1 and 10 is 

limiting; (2) whether the word “a” in “a wireless communication channel” 

requires the claimed method to be performed in one wireless communication 

channel; and (3) the proper construction of the term “wireless 

communication channel.” Prelim. Resp. 1–8; Pet. Prelim. Reply; PO Prelim. 

Sur-reply. These issues will be discussed in more detail below. 

1. Whether the Phrase “in a Wireless Communication Channel” in 

the Preamble Is Limiting 

Patent Owner argues that the phrase “in a wireless communication 

channel” in the preamble of claims 1 and 10 is limiting. Pet. 2. Patent 

Owner asserts that “claim 1 does not define a structurally complete invention 

in the claim body,” and therefore the preamble “is necessary to give life and 

meaning to the claim.” Id. According to Patent Owner, “[t]he ’802’s 

specification repeatedly explains that the invention is regarding a specific 

method within ‘a [wireless] communication channel.’” Id. at 2–3 (citing 

Ex. 1001, code (56), 1:61–63, 2:45–47, 6:60–62, 10:63–66, 12:14–15). “In 

fact,” Patent Owner contends, “the ’802 provides specific formulas to 

recover information based on the response of the different frequency ranges 

within a single communication channel.” Id. at 3 (citing Ex. 1001, 13:21–

23). 

Patent Owner also asserts that the Federal Circuit has explained that 

“statements of intended purpose in methods of using apparatuses,” such as 

the preamble here, “ha[ve] tended to result in a conclusion that such 

preamble language is limiting.” Prelim. Resp. 3 (quoting Eli Lilly & Co. v. 

Teva Pharms. Int’l GmbH, 8 F.4th 1331, 1341 (Fed. Cir. 2021)). “Without 

the preamble’s limitation that the specific method of transmission is ‘in a 

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wireless communication channel,’” Patent Owner argues, “the claim does 

not recite a complete structure, and would indiscriminately cover all 

transmission of information across two frequency ranges as claimed.” Id. 

See also PO Prelim. Sur-reply 1–2. 

Petitioner disagrees that the phrase “a wireless communication 

channel” in the preamble is limiting.” Pet. Prelim. Reply 1–2. Petitioner 

argues that Patent Owner’s argument to the contrary “is belied by the fact 

that claim 17, which is an apparatus claim with nearly identical scope as 

claim 10’s method claim, does not recite ‘a wireless communication 

channel.’” Id. Thus, Petitioner asserts, because “‘a wireless communication 

channel’ is not structurally necessary for claim 17’s apparatus, it is not 

necessary for claim 10’s method, either.” Id. at 2. “Similarly,” according to 

Petitioner, “Claim 1’s recitation of simultaneously transmitting information 

across two frequency ranges is also found in claim 17, where again, there is 

no limitation that the transmission be ‘in a wireless communication 

channel.” Id. “In addition,” Petitioner contends, Patent Owner “does not 

show that ‘a wireless communication channel’ is ‘necessary to provide 

antecedent basis or that the applicant placed clear reliance on the preamble 

during prosecution.’” Id. (citing Summit 6, LLC v. Samsung Elecs. Co., 802, 

F3d 1283, 1292 (Fed. Cir. 2015). 

Petitioner further argues that the ’802 patent Specification “makes 

clear that ‘a wireless communication channel’ is not a structurally necessary 

limitation for method claims 1 and 10.” Pet. 2. “For example,” Petitioner 

contends, “Figures 6, 7A and 7B are the only figures that depict methods 

(and map to claims 1 and 10), yet their corresponding descriptions in the 

specification do not mention ‘a wireless communication channel,’” which 

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“indicates that the claim bodies of claims 1 and 10 are structurally 

complete.” Id. (citing Ex. 1001, 5:27–31, 9:9–10:61). 

Based on the present record, we preliminarily determine that 

Petitioner has made a sufficient showing for purposes of institution that the 

phrase “a wireless communication channel” in the preamble of claims 1 and 

10 is not limiting. As the Federal Circuit has noted, “[g]enerally, a preamble 

is not limiting.” Summit 6, 802 F.3d at 1298. However, “a preamble limits 

the invention if it recites essential structure or steps, or if it is ‘necessary to 

give life, meaning, and vitality’ to the claim.” Catalina Mktg. Int’l v. 

Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002) (quoting Pitney 

Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)). 

“Conversely, a preamble is not limiting ‘where a patentee defines a 

structurally complete invention in the claim body and uses the preamble only 

to state a purpose or intended use for the invention.’” Id. (quoting Rowe v. 

Dror, 112 F.3d 473, 478 (Fed. Cir. 1997)). 

Based on the present record, we preliminarily agree with Petitioner 

that the body of claims 1 and 10 recite a structurally complete invention. 

Limitations [1a] and [1b] recite, inter alia, transmitting first information 

across a first frequency range using a wireless transmitter (which is a 

structure for transmitting the information), and simultaneously transmitting 

second information across a second frequency range using the same wireless 

transmitter. Patent Owner has not sufficiently explained why these 

limitations further require that the information be transmitted “in a wireless 

communication channel” to be structurally complete. Moreover, as 

Petitioner points out, claim 17 includes similar limitations (as well as 

limitations similar to those in claim 10) without requiring that the 

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information be transmitted “in a wireless communication channel,” 

suggesting that this language is not needed to recite a structurally compete 

invention, and is not “essential structure or steps” that are “necessary to give 

life, meaning, and vitality” to the claims. Compare Ex. 1001, 16:19–23 and 

16:27–36 (claim 17), with id. at 13:61–14:3 (claim 1) and 14:58–62 and 

14:66–15:7 (claim 10). 

Based on the present record, it also does not appear to us that the ’802 

patent Specification describes that sending the first and second information 

“in a wireless communication channel” is an essential (or even important) 

element of the invention. Patent Owner points to the statement in the ’802 

patent’s Abstract that “[e]mbodiments of the present invention transmit 

signals simultaneously over a communication channel at different RF center 

frequencies,” and the statement in column 1 that “[i]n one embodiment, the 

present invention includes a method of transmitting information in a wireless 

communication channel.” Prelim. Resp. 2–3 (citing Ex. 1001, code (57), 

1:61–63). These sentences, however, refer to certain “embodiments” of the 

invention, and do not indicate that communication “in a wireless 

communication channel” is a necessary part of all embodiments of the 

invention. Additionally, Patent Owner does not point to any portions of the 

’802 patent Specification that clearly state that communication “in a wireless 

communication channel” is important to the invention, that explain why 

communication “in a wireless communication channel” is necessary or 

beneficial, or even explain what it means for communication to occur “in a 

wireless communication channel” (as opposed to multiple wireless 

communication channels). Id. Moreover, as Petitioner points out, Figures 6, 

7A, and 7B and the accompanying text describe embodiments of the method 

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of the ’802 patent, without ever requiring that the communications take 

place “in a wireless communication channel.” Ex. 1001, Figs. 6, 7A, 7B, 

5:27–31, 9:9–10:61. And, while Patent Owner relies on the disclosure at 

column 13, lines 21–23 discussing recovering information from a received 

signal, this portion of the Specification does not explain why communication 

“in a wireless communication channel” is essential, and does not even use 

the term “wireless communication channel.” See Prelim. Resp. 3; Ex. 1001, 

13:21–23. 

Finally, we do not find that Eli Lilly, relied on by Patent Owner, 

compels a contrary result. In Eli Lilly, the preambles recited “[a] method for 

treating headache in an individual, comprising” administering an effective 

amount of a particular monoclonal antibody. Eli Lilly, 8 F.4th at 1335. The 

Federal Circuit found that these preambles were “not merely statements of 

effect but rather statements of intentional purpose for which the methods 

must be performed” because “the treatment of vasomotor symptoms such as 

migraine is central to the invention of the challenged patents” as “reflected 

in the extensive discussions of such treatment in every section of the patents’ 

written description.” Id. at 1342. The Federal Circuit also explained that the 

claims only reference such treatments in the preambles, and thus “the 

preambles are the portions of the claims that embody the essence of the 

claimed invention—methods for treating vasomotor symptoms.” Id. 

Additionally, the court noted, “[t]he preambles provide the only metric by 

which one practicing the claim could determine whether the amount 

administered is an ‘effective amount,’” as the body of the claims require. Id. 

Here, by contrast, the specification does not make clear that communication 

“in a wireless communication channel” is central to the invention, and the 

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preamble is not necessary to provide a benchmark for practicing limitations 

set forth in the body of the claim. 

Consequently, based on the present record, we preliminarily 

determine that the term “in a wireless communication channel” in the 

preambles of claims 1 and 10 is not limiting. 

2. Whether the Word “a” in “a Wireless Communication Channel” 

Requires the Method to Be Performed in One Wireless 

Communication Channel” 

Patent Owner argues that the phrase “in a wireless communication 

channel” also “requires that the claimed method be performed in a single 

‘wireless communication channel.’” Prelim. Res. 5. Patent Owner 

acknowledges that “the indefinite article ‘a’ generally means ‘one or more’” 

in open-ended claims containing the transitional phrase “comprising,” but 

argues that this principle “does not apply where the article ‘a’ appears before 

‘comprising,’” relying on Convolve, Inc. v. Compaq Computer Corp., 812 

F.3d 1313, 1321 (Fed. Cir. 2016). Id. Because the article “a” in the 

preamble appears before the term “comprising,” Patent Owner argues that 

“the claimed method must be performed within ‘a wireless communication 

channel,’ not multiple wireless communication channels.” Id. at 6. 

Patent Owner also relies on In re Varma v. International Business 

Machines Corp., 816 F.3d 1352 (Fed. Cir. 2016) to support its argument, 

arguing that the Federal Circuit in Varma construed “a statistical analysis 

request corresponding to two or more selected investments” to require a 

single request that corresponds to at least two investments. Prelim. Resp. 6–

7 (citing Varma at 1362–1363). Patent Owner also points to Varma’s 

example that “a dog that rolls over and fetches sticks” cannot correspond to 

“two dogs, each able to perform just one of the tasks.” Id. at 7. According 

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to Patent Owner, “[l]ike the hypothetical dog in V[a]rma, it would not 

suffice to have a portion of the claimed method performed in one ‘wireless 

communication channel’ and another portion of the claimed method 

performed in a different ‘wireless communication channel.’” Id. See PO 

Prelim. Sur-reply 3–4. 

Finally, Patent Owner argues that “the specification repeatedly 

explains that the invention is directed at performing the claimed method in a 

single wireless channel.” Prelim. Resp. 8 (citing Ex. 1001, 1:61–63, 2:45–

47, 6:60–62, 10:63–66. 12:14–15). Patent Owner further asserts that “the 

specification recites specific mathematical methods to recover information 

based on the responses of the different frequency ranges within a single 

communication channel.” Id. (citing Ex. 1001, 13:21–23). 

Petitioner responds by arguing that the exceptions to the general rule 

that “a” or “an” in a patent claim means “one or more,” “are extremely 

limited: a patentee must evince a clear intent to limit ‘a’ or ‘an’ to ‘one.’” 

Prelim. Resp. 3 (citing Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 

1338, 1342 (Fed. Cir. 2008). Petitioner also argues that Patent Owner 

“misunderstands the holding in Convolve,” because, in that case, the court 

based its decision on the fact that the term “a processor” in the preamble 

provided antecedent basis for the term “the processor” in the body of the 

claim, not on the fact that the term “a processor” appeared before the word 

“comprising.” Id. In contrast, Petitioner asserts, the court in Convolve held 

that “a processor” in claim 9 meant “one or more processors” because it did 

not provide antecedent basis for terms in the remainder of the claim. Id.

Petitioner further argues that Patent Owner’s argument is not consistent with 

the ’802 patent Specification’s statement that the received signal “may be 

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processed in separate analog receiver channels and combined digitally.” Id.

at 4 (citing Ex. 1001, 10:51–53). 

As noted above, we preliminarily determine that the preamble of 

claims 1 and 10 is not limiting. See § II.A.1, supra. Therefore, for purposes 

of institution, we need not determine whether the article “a” in “a wireless 

communication channel” in the preamble means “one or more” or “only 

one.” However, to the extent Patent Owner continues to advance this 

argument, we believe the record on this issue would benefit from further 

development during the trial, including, for example, further discussion as 

to: (1) the extent to which Federal Circuit caselaw interprets the term “a” 

differently when it appears before the term “comprising” in the preamble as 

opposed to being used in the body of the claim; (2) the significance of any 

differences between the relevant language in claims 1 and 10 and the claim 

language at issue in Varma requiring “a statistical analysis request 

corresponding to two or more selected investments”; and (3) other Federal 

Circuit cases concerning the issue of whether “a” means “one or more” that 

use language similar or analogous to that used in claims 1 and 10. 

3. The Proper Construction of “Wireless Communication Channel” 

Although Patent Owner argues that the prior art fails to teach 

performing the claimed method in a “wireless communication channel,” 

Patent Owner does not offer a construction of the term “wireless 

communication channel.” Prelim. Resp. 8–10; PO Prelim. Sur-reply 5. 

Petitioner also does not construe “wireless communication channel” in the 

Petition. Pet. 9. In its Preliminary Reply, Petitioner states that “[t]he ’802 

patent discloses that, to the extent it is comprehendible, ‘a communication 

channel’ refers to a single transmission signal, and that it carries multiple 

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‘carrier frequenc[ies],’” but does not provide a full claim construction 

analysis for this term. Pet. Prelim. Reply 5 (citing Ex. 1001, 10:63–66). 

As noted above, we preliminarily determine that the preamble of 

claims 1 and 10 is not limiting, and therefore we need not construe the term 

“wireless communication channel” for purposes of this Decision. However, 

to the extent Patent Owner continues to assert that the preamble is limiting, 

the parties should propose constructions of “wireless communication 

channel” during the trial, along with a full claim construction analysis 

supporting their proposed constructions. 

4. Other Terms 

We determine that it is not necessary to provide an express 

interpretation of any other claim terms. See Nidec Motor Corp. v. 

Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017); 

Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 

1999) (“[O]nly those terms need be construed that are in controversy, and 

only to the extent necessary to resolve the controversy.”). 

B. Principles of Law 

A claim is unpatentable under 35 U.S.C. § 103 if “the differences 

between the subject matter sought to be patented and the prior art are such 

that the subject matter as a whole would have been obvious at the time the 

invention was made to a person having ordinary skill in the art to which said 

subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 

(2007). The question of obviousness is resolved on the basis of underlying 

factual determinations, including (1) the scope and content of the prior art; 

(2) any differences between the claimed subject matter and the prior art; 

(3) the level of skill in the art; and (4) where in evidence, objective evidence 

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of non-obviousness.2

 Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). 

When evaluating a combination of teachings, we must also “determine 

whether there was an apparent reason to combine the known elements in the 

fashion claimed by the patent at issue.” KSR, 550 U.S. at 418 (citing In re 

Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Whether a combination of prior 

art elements would have produced a predictable result has weight in the 

ultimate determination of obviousness. Id. at 416–417. 

In an inter partes review, the petitioner must show with particularity 

why each challenged claim is unpatentable. Harmonic Inc. v. Avid Tech., 

Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016); 37 C.F.R. § 42.104(b) (2020). 

The burden of persuasion never shifts to Patent Owner. Dynamic 

Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. 

Cir. 2015). 

We analyze the challenges presented in the Petition in accordance 

with the above-stated principles. 

C. Level of Ordinary Skill in the Art 

Petitioner contends that a person of ordinary skill in the art at the time 

of the alleged invention would have had “at least a bachelor’s in EE/CE/CS, 

physics, or equivalent, and two years of experience with cellular 

telecommunications, radio-access network architectures, protocols and 

signal propagation in wireless networks.” Pet. 4 (citing Ex. 1003 ¶¶ 50–51). 

Petitioner further states that “[m]ore education can supplement practical 

experience and vice versa.” Id. Patent Owner does not offer a proposed 

level of ordinary skill at this stage of the proceeding. See Prelim. Resp. 

2

 At this stage of the proceeding, Patent Owner has not presented objective 

evidence of non-obviousness. 

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At this stage of the proceeding, we adopt Petitioner’s assessment of 

the level of skill in the art, which is consistent with the ’802 patent and the 

asserted prior art of record. 

D. Ground 1: Obviousness of Claim 1 Based on Rick 

Petitioner contends that claim 1 would have been obvious over Rick. 

Pet. 4, 12–16. Patent Owner disagrees, arguing that Rick does not perform 

the claimed method in “a wireless communication channel.” Prelim. Resp. 

8–10. 

1. Overview of Rick (Ex. 1021) 

Rick discloses a “multi-carrier transmitter capable of transmitting on 

one or multiple frequency channels simultaneously.” Ex. 1021, code (57). 

The multi-carrier transmitter includes “at least one processor and a single 

radio frequency (RF) transmit chain.” Id. The processor(s) “may generate 

output chips for each of multiple frequency channels, digitally filter and 

upsample the output chips for each frequency channel to obtain filtered 

samples, and digitally upconvert the filtered samples for each frequency 

channel to a different frequency to obtain upconverted samples.” Id. The 

processor(s) “may then combine the upconverted samples for the multiple 

frequency channels to obtain composite samples, perform pre-distortion on 

the composite samples for I/Q [(in-phase and quadrature signal)] mismatch 

compensation, and upsample the pre-distorted samples to obtain output 

samples,” which “may be converted to an analog signal with a wideband 

DAC [(digital to analog converter)].” Id. The RF transmit chain may then 

“process the analog signal to generate an RF output signal.” Id. 

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2. Analysis of Independent Claim 1 

a) 1[pre]: “[a] method of transmitting information in a wireless 

communication channel comprising:” 

As discussed previously, Petitioner argues that the preamble of 

claim 1 is not limiting. Pet. Prelim. Reply 1–2. Petitioner further asserts 

that “Rick discloses ‘[a] multi-carrier transmitter capable of transmitting on 

one or multiple frequency channels simultaneously’ and that the transmitter 

‘may be used for various wireless communication systems.’” Id. at 12 

(citing Ex. 1021, 1:48–50, 2:38–39; Ex. 1003 ¶ 82). 

As discussed above, Patent Owner argues that the preamble of claim 1 

is limiting. Prelim. Resp. 2–5. Patent Owner also argues that Rick does not 

disclose the preamble because it does not disclose that both frequency ranges 

are transmitted via a single communication channel. Id. at 8–10. 

As discussed above, we preliminarily determine that the preamble of 

claim 1 is not limiting. See § II.A.1, supra. Thus, Rick need not disclose 

the preamble in order to satisfy claim 1.3

 

3

 We also note that, even if the preamble is limiting, under the interpretation 

that Petitioner advances (as discussed above), “a wireless communication 

channel” can include one or more wireless channels. See § II.A.2, supra. 

Under this interpretation, Petitioner sufficiently shows that Rick discloses 

the preamble for purposes of institution by describing “[a] multi-carrier 

transmitter capable of transmitting on one or more frequency channels 

simultaneously” and “transmission of N CDMA signals,” each of which 

“may carry any type of data for any service.” See Pet. 12–13 (citing 

Ex. 1021, 1:48–50, 2:38–39, 3:19, 3:35–36; Ex. 1003 ¶ 82). 

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b) [1a]: “transmitting first information across a first frequency 

range using a wireless transmitter, the first frequency range 

having a first center frequency, a first highest frequency, and a 

first lowest frequency; and” 

Petitioner argues that “Rick discloses ‘transmission of N CDMA 

signals,’ each of which ‘may carry any type of data for any service.’” 

Pet. 12–13 (citing Ex. 1021, 3:19, 3:35–36). “The data for one of the 

CDMA signals,” Petitioner asserts, “is a first information.” Id. at 13 (citing 

Ex. 1003 ¶¶ 83–84). These CDMA signals, according to Petitioner, include 

a first frequency range and a second frequency range, as shown in 

Petitioner’s annotated version of Rick’s Figure 1, reproduced below. 

Petitioner’s annotated version of Rick’s Figure 1 shows the “first frequency 

range” and the “second frequency range.” Pet. 13. 

Petitioner argues that, as shown in its annotated version of Figure 1, 

Rick’s CDMA Channel 1 is the claimed “first frequency range” having a 

“first center frequency” of fch1, and that one of ordinary skill would 

understand that the term “carrier frequency” refers to the center frequency of 

the carrier channel. Pet. 13 (citing 1021, 3:21–22; Ex. 1023, 86; Ex. 1003 

¶ 85). Petitioner also asserts that Rick teaches that the CDMA signal is upconverted to the carrier frequency, and one of ordinary skill would 

understand that such up-conversion raises the frequency center of a signal to 

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a higher frequency center. Id. at 13–14 (citing Ex. 1021, 4:11–16; Ex. 1003 

¶ 85). Petitioner further contends that the CDMA signal is transmitted via 

an antenna, i.e., a wireless transmitter. Id. at 13 (citing Ex. 1021, 4:50–51). 

Petitioner also argues that Rick discloses that the first frequency range 

includes a first center frequency, a first lowest frequency, and a first highest 

frequency, as illustrated in its annotated version of Rick’s Figure 1, 

reproduced below. 

Petitioner’s annotated version of Rick’s Figure 1 shows the “first center 

frequency,” “first lowest frequency,” and “first highest frequency” of the 

first frequency range. Pet. 14 (citing Ex. 1021, 3:16–17, Fig. 1; Ex. 1003 

¶ 86). 

Patent Owner does not present arguments regarding this limitation. 

See Prelim. Resp. 1–10. 

We determine that, on the record before us, Petitioner’s cited evidence 

sufficiently supports its contentions regarding this limitation. 

c) [1b]: “simultaneously transmitting second information across 

a second frequency range using the same wireless transmitter, 

the second frequency range having a second center frequency 

greater than the first center frequency, a second highest 

frequency, and a second lowest frequency.” 

Petitioner argues that the claimed “second information” is either the 

CDMA data on channel 2 or the CDMA data on channel N. Pet. 15 (citing 

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Ex. 1003 ¶¶ 88–89). Petitioner provides an annotated version of Rick’s 

Figure 1, reproduced below, showing the first and second frequency ranges. 

Petitioner’s annotated version of Rick’s Figure 1 shows the “first frequency 

range” and the “second frequency range.” Pet. 15. 

Petitioner argues that Rick discloses transmitting these multiple 

CDMA signals simultaneously because they are sent in the frequency 

domain. Pet. 15. Petitioner further asserts that the signal carrying the first 

and second information is transmitted via an antenna, i.e., the same wireless 

transmitter. Id. (citing Ex. 1021, 4:50–51). Petitioner also argues that Rick 

discloses that the second frequency range includes a second center 

frequency, a second lowest frequency, and a second highest frequency, as 

illustrated in its annotated version of Rick’s Figure 1, reproduced below. 

Petitioner’s annotated version of Rick’s Figure 1 shows the “second center 

frequency,” “second lowest frequency,” and “second highest frequency” of 

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the second frequency range. Pet. 16 (citing Ex. 1021, 3:16–17, Fig. 1; 

Ex. 1003 ¶ 91). 

Petitioner also argues that Figure 1 depicts fchN (the second center 

frequency” as greater than fch1 (the first center frequency). Id. at 16 (citing 

Ex. 1021, 3:16–17). 

Patent Owner does not present arguments regarding this limitation. 

See Prelim. Resp. 1–10. 

We determine that, on the record before us, Petitioner’s cited evidence 

sufficiently supports its contentions regarding this limitation. 

d) Summary for Claim 1 

For the foregoing reasons, we are persuaded that Petitioner’s cited 

evidence and reasoning demonstrates a reasonable likelihood that Petitioner 

would prevail in its contentions regarding claim 1. 

E. Remaining Grounds 

Because Petitioner has demonstrated a reasonable likelihood that it 

would prevail with respect to claim 1, we grant institution of trial on all 

challenged claims and grounds raised in the Petition. See 35 U.S.C. § 314 

(2018); PGS Geophysical AS v. Iancu, 891 F.3d 1354, 1360 (Fed. Cir. 2018) 

(indicating that a decision whether to institute an inter partes review 

“require[s] a simple yes-or-no institution choice respecting a petition, 

embracing all challenges included in the petition”). However, to provide 

guidance to the parties, we will address Patent Owner’s remaining 

arguments below. 

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1. Grounds 2–5 

a) Whether Suzuki Discloses the Preamble of Claims 1 and 10 

Patent Owner argues that Petitioner fails to show that Suzuki discloses 

or renders obvious the claimed method being performed “in a wireless 

communication channel,” as the preambles of claims 1 and 10 recite. 

Prelim. Resp. 12–13. As discussed above, we preliminarily determine that 

the preambles of claims 1 and 10 are non-limiting. See § II.A.1, supra. 

Therefore, we do not agree with Patent Owner that Petitioner’s showing as 

to claims 1 and 10 is deficient on this basis. 

b) Whether Figure 6 of Suzuki Discloses First/Second Digital 

Signals Comprising First/Second Data “To Be Transmitted” in 

Claims 10 and 17 

Patent Owner argues that Suzuki’s Figure 6 does not disclose or 

render obvious either claim 10 or 17 because it fails to disclose first/second 

digital signals comprising first/second data “to be transmitted.” Prelim. 

Resp. 14. 

Claim 10 recites “receiving a first digital signal comprising first data 

to be transmitted” and “receiving a second digital signal comprising second 

data to be transmitted,” and claim 17 includes similar limitations. Ex. 1001, 

14:44–47; 16:2–5 (emphasis added). Petitioner argues that these signals are 

disclosed in Suzuki’s Figure 6, and provides an annotated version of that 

figure, reproduced below, to illustrate its argument. 

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Petitioner’s annotated version of Suzuki’s Figure 6 shows the “first digital 

signal” in red and the “second digital signal” in blue. Pet. 31, Fig. 6. 

Petitioner argues that “input signal ST including dual frequency bands of 

transmitting signals is divided into two input side variable band signal 

extractors 11-1 and 11-2 at the divider 10 and transmitting signals in dual 

frequency bands are extracted.” Id. at 30–31 (citing Ex. 1004 ¶ 45). Then, 

Petitioner asserts, “[t]he difference between the extracted symbols and 

monitor signals from SM is calculated, and used to receive predistortion 

compensation data from lookup tables 17–1 and 17-2, which are the first and 

second digital signal, respectively.” Id. at 31 (citing Ex. 1004 ¶ 46). 

According to Petitioner, “Suzuki discloses these are digital signals because 

‘tables 17-1 and 17-2 are implemented through digital signal processing.’” 

Id. (citing Ex. 1004 ¶ 63). “The predistortion compensation data,” Petitioner 

contends, “will be transmitted with their respective frequency band as a 

predistorted signal.” Id. (citing Ex. 1003 ¶ 131). 

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Patent Owner responds that Petitioner’s argument fails because the 

predistortion signals identified by Petitioner as the first and second digital 

signals “are not transmitted and do not contain data ‘to be transmitted.’” 

Prelim. Resp. 14. “Rather,” Patent Owner asserts, “Suzuki is clear that the 

signals from lookup tables 17-1 and 17-2 are merely pre-distortion signals 

that are cancelled in amplifier 28 prior to any transmission.” Id. at 15 (citing 

Ex. 1004 ¶¶ 1, 3). Specifically, according to Patent Owner, the output of 

lookup tables 17-1 and 17-2 are pre-distortion components D1 and D2 that 

are intended to compensate for the distortion caused by the power amplifier 

28. Id. at 15–16 (citing Ex. 1004 ¶ 63). “[A]dders 13-1 and 13-2,” Patent 

Owner contends, add the distortion compensation data D1 and D2 to the 

underlying signal that is first predistorted and then amplified (cancelling the 

predistortion) prior to transmission.” Id. (citing Ex. 1004 ¶¶ 46, 47). Thus, 

Patent Owner argues: (1) distortion compensation data D1 and D2 are not 

transmitted by the transmitter because they are cancelled by the distortion 

caused by the power amplifier when the signal is amplified before 

transmission, and (2) distortion compensation data D1 and D2 also do not 

contain data to be transmitted but instead merely contain distortion 

compensation components that are cancelled out before transmission. Id. at 

16–17. 

Based on the present record, Patent Owner’s arguments that distortion 

compensation data D1 and D2 (which Petitioner points to as the first and 

second digital signals) do not contain data to be transmitted, and are not 

actually transmitted as required by the claims, appear reasonable and 

consistent with Suzuki’s disclosure. During the trial, Petitioner may further 

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address why D1 and D2, which Petitioner identifies as the claimed first and 

second digital signals, include “data to be transmitted” as the claims require. 

c) Whether Figure 8 of Suzuki Discloses the Up-Converted 

Analog Signals and Frequency Ranges as Claimed in Claims 

10 and 17 

Patent Owner argues that Petitioner fails to show that Suzuki’s 

Figure 8 discloses or renders obvious claims 10 and 17 because: (1) it does 

not disclose two distinct up-converted analog signals as claimed, and 

(2) Suzuki’s up-converted analog signals do not contain two distinct 

frequency ranges with the claimed properties. Prelim. Resp. 17. 

With respect to the first argument, claim 10 recites up-converting the 

first and second analog signals to first and second RF center frequencies to 

produce first and second up-converted analog signals, and claim 17 recites 

similar limitations. Ex. 1001, 14:56–15:7; 16:16–36. Petitioner argues that 

these signals are disclosed in Suzuki’s Figure 8, and provides an annotated 

version of that figure, reproduced below, to illustrate its argument. 

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Petitioner’s annotated version of Suzuki’s Figure 8 shows the “first digital 

signal” in red and the “second digital signal” in blue. Pet. 32, Fig. 8. 

Petitioner argues that Figure 8 shows first and second digital signals in the 

form of SD1 and SD2, respectively. Pet. 32 (citing Ex. 1003 ¶ 132). 

Specifically, Petitioner contends that each of the extracted signals from the 

input signal are added at adders 13-1 and 13-2 to predistortion data from 

lookup tables 17-1 and 17-2, and are combined at combiner 14 to generate 

signals SD1 and SD2, which are received by DACs 24-1 and 24-2 and will be 

transmitted by an antenna. Id. (citing Ex. 1003 ¶¶ 48, 58). 

Patent Owner responds that the outputs of DAC 24-1 and DAC 24-2 

are not separately up-converted to produce a “first” and “second” upconverted signal, as the claims require, but instead are combined in Vector 

Modulator 25 to produce a single combined signal, which is then transmitted 

to up-converter 26 to produce a single up-converted signal. Prelim. Resp. 19 

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(citing Ex. 1004 ¶ 58). Patent Owner further argues that Petitioner relies on 

Suzuki’s Figure 13A to show the two distinct up-converted frequency ranges 

of claims 10 and 17, but Suzuki never discloses that its Figure 13A 

frequency profile applies to the output signal of Figure 8’s predistorter. Id. 

at 21–24. 

Based on the present record, Patent Owner’s argument that the circuit 

of Suzuki’s Figure 8 does not separately up-convert the signals Petitioner 

identifies as the first and second analog signals (the outputs of DAC 24-1 

and DAC 24-2) appears reasonable and consistent with the disclosure of 

Suzuki. Petitioner may address this argument during the trial, as well as 

Patent Owner’s argument that the frequency ranges of Figure 13 do not 

apply to the circuit of Figure 8. 

d) Whether the Combination of Suzuki and Chen Teaches 

Claim 24 

Claim 24 requires a “first down-converter” that outputs a “first downconverted signal” and a “second down-converter” that outputs a “second 

down-converted signal,” as well as a filter that “receives the first and second 

down converted signals.” Ex. 1001, 17:4–18:8. 

Petitioner argues that Chen teaches first and second down-converters 

that provide their output to a filter, and provides an annotated version of 

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Chen’s Figure 6, reproduced below, to illustrate this argument.

Petitioner’s annotated version of Chen’s Figure 6 shows a first downconverter (green), a second down converter (yellow), and a filter (blue). 

Pet. 71; Ex. 1009, Fig. 6. 

More specifically, Petitioner argues that Chen’s mixer 306 connected to 

local oscillator circuit LO1 is a “first down-converter circuit,” and mixer 310 

connected to local oscillator circuit LO2 is a “second down converter 

circuit.” Pet. 67–69. According to Petitioner, the outputs of these circuits 

“are, after downconversion, ‘already at baseband’ and ‘provided directly to 

filter 328c.’” Id. at 70 (citing Ex. 1009, 14:13–15; Ex. 1003 ¶ 220). 

Patent Owner responds that the analog outputs of Chen’s downconverters 306 and 310 are not received by Chen’s filter 328, because they 

first converted to digital signals in the A/D converter 322, and those digital 

signals are provided to the filter. Prelim. Resp. 25–31. 

Resolution of this issue would benefit from further development 

during the trial. During the trial, the parties may address what it means for 

the filter to “receive[] the first and second down-converted signals,” as 

claim 24 requires, and whether an A/D conversion of the down-converted 

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signals before they are provided to the filter takes Figure 6 outside of the 

claim. 

2. Grounds 6–9 

a) Whether Fernandez Discloses the Preamble of Claims 1 and 

10 

Patent Owner argues that Petitioner fails to show that Fernandez 

discloses or renders obvious the claimed method being performed “in a 

wireless communication channel,” as the preambles of claims 1 and 10 

recite. Prelim. Resp. 33–34. As discussed above, we preliminarily 

determine that the preambles of claims 1 and 10 are non-limiting. See 

§ II.A.1, supra. Therefore, we do not agree with Patent Owner that 

Petitioner’s showing as to claims 1 and 10 is deficient on this basis. 

b) Whether Fernandez Discloses “a Baseband Digital System” 

That Provides a First and Second Baseband Signal (Claim 17) 

Patent Owner argues that Fernandez does not disclose “a baseband 

digital system” that provides a first and second baseband signal as required 

by claim 17. Prelim. Resp. 34–37. 

Claim 17 recites “a baseband digital system for providing a first 

digital signal comprising first data to be transmitted and a second digital 

signal comprising second data to be transmitted.” Ex. 1001, 16:2–5. 

Petitioner argues that Fernandez discloses a “baseband digital system,” 

citing in support the statement in Fernandez’s paragraph 6 that the system 

can “upconvert[] baseband signal[s]” and the statement in paragraph 11 that 

“a general method is provided to increase a digitally synthesized signal’s 

bandwidth by frequency interleaving multiple (i.e., at least 2) digitally 

synthesized signal sources of narrower bandwidth.” Pet. 96–97. 

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Patent Owner responds that the portion of Fernandez cited by 

Petitioner “only discloses the ‘[s]tandard notation for complex baseband and 

passband signals’” or, in other words, “the mathematical formula for 

representing a baseband signal.” Prelim. Resp. 35 (citing Ex. 1005 ¶ 6). 

However, Patent Owner asserts, Fernandez “says nothing whatsoever about 

‘a baseband digital system,’ much less one that provides the claimed first 

and second digital signals.” Id. Patent Owner acknowledges that the 

Petition identifies in Fernandez’s Figure 2A first and second data signals 

each being fed to a “Baseband and Upconversion DSP, DAC, I/Q 

modulation, filtering, amplification” signal generator. Id. at 36. However, 

according to Patent Owner, this figure does not disclose where these first 

and second data signals originate from, and Petitioner does not identify 

disclosure in Fernandez indicating that they are sent from a “baseband 

digital system.” Id. Patent Owner also argues that Fernandez’s paragraph 

11, cited in the Petition, is describing the “present invention,” while Figure 

2A is part of the discussion of the admitted prior art, and Petitioner does not 

demonstrate why or how these disclosures would be combined. Id. at 37 

(citing Ex. 1005 ¶¶ 5, 6, 8, 9, Figs. 1, 2A–2B). 

This issue would benefit from further development during the trial. In 

particular, Petitioner may point out with greater specificity what disclosure it 

is relying on to teach or suggest the “baseband digital system,” and flesh out 

any inherency or obviousness arguments it is relying on. The parties may 

also consider proposing a construction for the term “baseband digital 

system.” 

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c) Whether One of Ordinary Skill Would Have Been Motivated to 

Combine Fernandez and Montojo as Proposed (Claims 10, 17) 

Claim 10 recites “combining the first up-converted analog signal and 

the second up-converted analog signal to produce a combined up-converted 

signal” and then “amplifying the combined up-converted signal in a power 

amplifier resulting in an amplified combined up-converted signal,” and 

claim 17 includes similar limitations. Ex. 1001, 15:8–13, 16:37–42. 

Petitioner argues that, in Fernandez, “each input signal is amplified using its 

own amplifier, rather than a single amplifier after the signals are combined,” 

but it would have been obvious to combine Fernandez with Montojo, which 

“expressly discloses combining multiple signals into a single signal 

amplified using a single amplifier.” Pet. 74. Relying on Dr. Almeroth, 

Petitioner argues that one of ordinary skill would have been motivated to use 

a single amplifier based on Fernandez’s disclosure alone as a matter of 

design preference because a single amplifier has the advantage of lower 

complexity, provides only a single potential point of failure, and has a lower 

cost. Id. at 74–75 (citing Ex. 1003 ¶ 235). 

Petitioner also argues that “[t]hese well-known benefits” of using a 

single amplifier “are further underscored by Montojo, which teaches 

generating a multi-carrier signal and explains that while ‘multiple power 

amplification circuits, each dedicated to one carrier and each including a 

power amplifier’ is an option, this runs against ‘limitations on space, 

manufacturing cost, power consumption and other factors,’ which ‘dictate 

the need to share resources among the carriers, including power 

amplification circuitry.’” Pet. 76 (citation omitted) (citing Ex. 1006 ¶ 5; 

Ex. 1003 ¶ 236). In light of these issues, Petitioner asserts, “Montojo 

teaches ‘it would be advantageous to utilize a single power amplifier for 

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transmission of a plurality of carriers transmitted by a multi-carrier 

terminal.’” Id. (citing Ex. 1006 ¶ 5). Relying on Dr. Almeroth, Petitioner 

contends that one of ordinary skill “would have known that using a single 

amplifier would achieve these benefits, including lower complexity, single 

(as opposed to multiple) potential points of failure, and lower cost,” as well 

as “reduction in space usage and power consumption.” Id. (citing Ex. 1003 

¶ 236). Petitioner further argues that one of ordinary skill “would have 

reasonably expected success in modifying Fernandez to use a single 

amplifier and antenna based either on Fernandez’s disclosure alone or in 

combination with Montojo,” and that “[u]sing a single amplifier was wellknown, as shown by Montojo, which teaches how to implement a single 

amplifier for multi-carrier transmissions.” Id. at 77 (citing Ex. 1006 ¶¶ 21, 

42, Fig. 5; Ex. 1003 ¶ 237). 

Patent Owner responds that Petitioner has failed to show why and 

how one of ordinary skill would have modified Fernandez in view of 

Montojo. Prelim. Resp. 39. According to Patent Owner, “Montojo explains 

that even though it may be desirable to share an amplifier among different 

carriers, it is not practical to do so if all carriers are to be amplified based on 

their needs.” Id. (citing Ex. 1006 ¶ 7). For example, Patent Owner cites 

Montojo’s disclosure that, “[i]f a multi-carrier terminal has a single power 

amplifier for simultaneous transmission of different types of carrier signals, 

the power amplifier may be subject to power constraints imposed by spectral 

emission requirements, by on-board battery capacity, and also by any 

priority among the carriers.” Id. (quoting Ex. 1006 ¶ 7). “To address this 

problem,” Patent Owner contends, “Montojo discloses an apportionment 

system where the power amplifier amplifies the highest priority carrier 

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according to its needs and will amplify the next priority carrier(s) only to the 

extent any amplification power is left over.” Id. (citing Ex. 1006 ¶¶ 9, 10, 

45). According to Patent Owner, “Petitioner has not shown if Montojo’s 

priority-based power amplifier would be desirable or even functional in a 

system such as Fernandez, which is why Fernandez discloses that each 

signal generator has its own power amplifier to begin with.” Id. at 40. 

Indeed, Patent Owner argues that Fernandez discloses a wideband signal 

generated by summing together narrow band signals which are “substantially 

equally amplified,” and there is no showing how such a system would work 

with Montojo’s approach of amplifying based on priority. Id. at 40–41 

(citing Ex. 1005, Figs. 2A, 2B). 

Based on the present record, we find that Petitioner and Dr. Almeroth 

have provided a sufficient motivation for purposes of institution to replace 

Fernandez’s multiple amplifiers for each input signal with a single amplifier 

for the multiple summed signals in order to provide the advantage of lower 

complexity, a single potential point of failure, and lower cost. However, 

Patent Owner’s argument that Petitioner does not explain in detail how 

Montojo’s system of assigning priority of amplification to a particular 

carrier would be applied to Fernandez’s system, which substantially equally 

amplifies all signals, appears worthy of further consideration. Petitioner and 

Dr. Almeroth may wish to further address this point during the trial. 

d) Whether the Combination of Fernandez and Chen Teaches 

Claim 24 

Patent Owner argues that the combination of Fernandez and Chen 

fails to disclose a filter that receives the up-converted signals output from 

the first and second claimed up-converters for the same reasons set forth 

with respect to the Suzuki-Chen combination. Prelim. Resp. 44. Our 

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comments regarding the application of the Suzuki-Chen combination to 

claim 24 apply equally to the application of the Fernandez-Chen 

combination to that same claim in this ground. See § II.E.1(d), supra. 

F. Discretionary Denial Under 314(a)/Fintiv 

Patent Owner argues we should exercise our discretion under 

35 U.S.C. § 314(a) to deny institution of inter partes review in view of the 

parallel district court proceeding. Prelim. Resp. 44–58. Petitioner disagrees. 

Pet. 101–102. We address the parties’ arguments regarding discretionary 

denial below. 

Under Section 314(a), the Director has discretion to deny institution. 

See 35 U.S.C. § 314(a) (stating “[t]he Director may not authorize an inter 

partes review to be instituted unless the Director determines that the 

information presented in the petition . . . 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”) (emphasis added); SAS Inst. Inc. v. Iancu, 

138 S. Ct. 1348, 1356 (2018) (“[Section] 314(a) invests the Director with 

discretion on the question whether to institute review.” (emphasis omitted)); 

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.”); Harmonic Inc. v. Avid Tech, Inc., 815 F.3d 1356, 

1367 (Fed. Cir. 2016) (“[T]he PTO is permitted, but never compelled, to 

institute an IPR proceeding.”). 

 In determining whether to exercise this discretion based on a related 

litigation, the Board assesses all relevant circumstances, including the 

merits, to balance considerations such as system efficiency, fairness, and 

patent quality. See Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11 

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(PTAB Mar. 20, 2020) (precedential) (“Fintiv”); NHK Spring Co. v. IntriPlex Techs., Inc., IPR2018-00752, Paper 8 at 19–20 (PTAB Sept. 12, 2018) 

(precedential). We consider six factors as part of this balanced assessment 

when determining whether to use our 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. 

Fintiv, Paper 11 at 5–6. In evaluating these factors, we “take[] a holistic 

view of whether efficiency and integrity of the system are best served by 

denying or instituting review.” Id. at 6. 

On June 21, 2022, the Director issued an Interim Procedure for 

Discretionary Denials in AIA Post-Grant Proceedings with Parallel District 

Court Litigation (“Interim Fintiv Guidance”).4

 The Interim Fintiv Guidance 

provides “several clarifications” to “the PTAB’s current application of Fintiv 

to discretionary denial where there is parallel litigation” in response to 

4

 The Interim Fintiv Guidance is available at 

https://www.uspto.gov/sites/default/files/documents/interim_proc_ 

discretionary_denials_aia_parallel_district_court_litigation_memo_ 

20220621_.pdf. 

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comments received from stakeholders in response to a Request for 

Comments. Interim Fintiv Guidance 2. 

We now apply the six factors to the facts and circumstances present 

here. 

1. Fintiv Factor 1: Stay in the Parallel Proceeding 

Under the first Fintiv factor, we consider “whether the court granted a 

stay or evidence exists that one may be granted if a proceeding is instituted.” 

Fintiv, Paper 11 at 6. Patent Owner contends that this factor weighs in favor 

of denial because “a stay has not been sought or granted, and Petitioner has 

not presented any evidence that a stay would be granted if this proceeding is 

instituted.” Prelim. Resp. 47. Patent Owner also asserts that the district 

judge would be unlikely to sever and stay the allegations concerning the 

’802 patent when there are other patents involved in the litigation. Id. at 46–

47. Petitioner argues that the district court has not indicated it will grant or 

deny a stay, and this factor should be considered neutral. Pet. 101. 

We will not attempt to predict how the district court in the parallel 

district court proceeding would proceed if a stay is requested because the 

court may determine whether or not to stay any individual case, including 

the related one, based on a variety of circumstances and facts beyond our 

control and to which the Board is not privy. Sand Revolution II, LLC v. 

Cont’l Intermodal Grp. - Trucking LLC, IPR2019-01393, Paper 24 at 7 

(PTAB June 16, 2020) (informative) (“Sand Revolution”). Accordingly, we 

find that factor 1 is neutral. 

2. Fintiv Factor 2: Trial Date in the Parallel Proceeding 

Under the second Fintiv factor, we consider the “proximity of the 

court’s trial date to the Board’s projected statutory deadline for a final 

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written decision.” Fintiv, Paper 11 at 6. Petitioner states that “[j]ury 

selection is scheduled for May 5, 2025, approximately three months before 

the Board’s FWD deadline.” Pet. 101–102. Patent Owner argues that “the 

deadline for a final written decision in this IPR is September 14, 2025,” and 

“[t]he trial date is set for May 5, more than four months5

 before the FWD 

deadline here.” Prelim. Resp. 47. Patent Owner also asserts that the district 

court’s trial date “is consistent with the Federal Court Management Statistics 

for the Eastern District of Texas,” which “indicate that the average time to 

trial for the Eastern District of Texas for the 12-month period ending 

December 31, 2023 is listed as 21.4 months, which is even less than the 

approximately 23-month period from filing to the trial date set by the district 

court.” Id. at 47–48 (citing Ex. 2002 (trial statistics); Ex. 2003 (docket 

indicating the complaint was filed on June 6, 2023); Ex. 2001 (docket 

control order indicating the trial is scheduled for May 5, 2025)). 

Because the current trial date in the parallel district court proceeding 

is approximately four months before the deadline for our final written 

decision, we find that factor 2 weighs in favor of exercising discretion to 

deny institution. 

3. Fintiv Factor 3: Investment by the Court and the Parties in the 

Parallel Proceeding 

Under the third Fintiv factor, we consider the “investment in the 

parallel proceeding by the court and the parties.” Fintiv, Paper 11 at 6. 

5

 The discrepancy between the different time frames offered by Petitioner 

and Patent Owner for the final written decision in this IPR appears to be due 

to the fact that the Petition was filed on February 26, 2024, but the Board did 

not issue a Notice of Filing Date Accorded to Petition and Time for Filing 

Patent Owner Preliminary Response until March 14, 2024. Papers 3, 4. 

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According to the docket control order from the district court submitted by 

Patent Owner, claim construction briefing is to commence on October 2, 

2024, the claim construction hearing is set for November 13, 2024, fact 

discovery is set to close on November 22, 2024, and expert discovery is set 

to close on January 21, 2025. Ex. 2001 (docket control order). Thus, claim 

construction briefing, the claim construction hearing, the close of fact 

discovery, and expert discovery will all occur after our institution date in this 

case, and there is no indication that the district court will have spent 

significant resources on unpatentability issues in the case by the time of 

institution. Because of the significant investment that remains in the parallel 

district court proceeding, we find that factor 3 weighs against exercising 

discretion to deny institution. 

4. Fintiv Factor 4: Overlap Between Issues Raised in the Petition 

and Parallel Proceeding 

Under the fourth Fintiv factor, we consider the “overlap between 

issues raised in the petition and in the parallel proceeding.” Fintiv, Paper 11 

at 6. Under this factor, Petitioner argues that it “challenges more claims than 

are being asserted.” Pet. 102. Patent Owner responds that only one claim 

(claim 25) is challenged in the IPR but not asserted in the district court. 

Prelim. Resp. 53–54. Patent Owner also acknowledges that the Rick 

reference is not asserted in the district court, but argues that Petitioner only 

relies on that reference for one claim in the IPR. Id. at 54. We also note that 

the invalidity contentions in the district court assert many more references 

and combinations than are asserted in the Petition, including sixteen 

references that are alleged to anticipate one or more claims of the ’802 

patent but are not relied on in the Petition, and at least three obviousness 

combinations (Suzuki and Brown, various combinations based on Montojo 

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as primary reference, and various combinations based on Brown as the 

primary reference) that are not relied on in the Petition. Ex. 2005, 33, 35, 

39–40. 

Because the Petition and the district court litigation include a number 

of common issues, as well as significant issues and arguments that differ 

among the proceedings, we find that this factor is neutral. 

5. Fintiv Factor 5: Whether Petitioner is the Defendant in the 

Parallel Proceeding 

Under the fifth Fintiv factor, we consider “whether the petitioner and 

the defendant in the parallel proceeding are the same party.” Fintiv, 

Paper 11 at 6. Here, Petitioner is also the defendant in the parallel district 

court case. Therefore, we find that factor 5 weighs in favor of exercising 

discretion to deny institution. 

6. Fintiv Factor 6: Other Considerations, Including the Merits 

Under the sixth Fintiv factor, we consider “other circumstances that 

impact the Board’s exercise of discretion, including the merits.” Fintiv, 

Paper 11 at 6. As discussed below, we determine that Petitioner has shown a 

reasonable likelihood of unpatentability at least as to Ground 1. We also 

determine that, for Ground 1, Petitioner has made a strong showing of 

unpatentability that rises well above the minimum sufficiency to meet the 

statutory institution threshold6

 because: (1) Petitioner presents a strong case 

that the preamble of claim 1 is not limiting; (2) Petitioner presents a strong 

case that Rick discloses the limitations in the body of claim 1; and (3) Patent 

6

 In this case, we need not decide whether Petitioner’s showing rises to the 

level of “compelling” under the Interim Fintiv Guidance because, in light of 

Petitioner’s strong showing as to claim 1, the factors overall weigh in favor 

of institution. 

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Owner does not challenge Petitioner’s showing that Rick discloses the body 

of claim 1. Therefore, we find that this factor weighs in favor of institution. 

7. Conclusion 

As noted above, we take “a holistic view of whether efficiency and 

integrity of the system are best served by denying or instituting review.” 

Fintiv, Paper 11 at 6. Weighing all of the factors, we are not persuaded that 

the interests of efficiency and integrity of the system would be best served 

by invoking 35 U.S.C. § 314(a) to deny institution of a potentially 

meritorious petition, particularly because the parallel district court case is at 

a relatively early stage and the merits of Ground 1 are strong. Thus, based 

on the record before us, we determine that the facts of this case do not 

warrant discretionary denial. 

III. CONCLUSION 

After considering the evidence and arguments presented in the current 

record, we determine that Petitioner has demonstrated a reasonable 

likelihood of success in proving that at least one of the challenged claims of 

the ’802 patent is unpatentable. We therefore institute trial on all challenged 

claims and grounds raised in the Petition. See PGS, 891 F.3d 1354 at 1360 

(a decision whether to institute an inter partes review “require[s] a simple 

yes-or-no institution choice respecting a petition, embracing all challenges 

included in the petition”). 

At this stage of the proceeding, we have not made a final 

determination as to the patentability of any challenged claim or as to the 

construction of any claim term. 

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IV. ORDER 

In consideration of the foregoing, it is hereby: 

ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes

review of claims 1–4, 6–10, 13–14, 17, and 21–25 of the ’802 patent is 

instituted with respect to all grounds set forth in the Petition; and 

FURTHER ORDERED that, pursuant to 35 U.S.C. § 314(c) and 

37 C.F.R. § 42.4(b), inter partes review of the ’802 patent shall commence 

on the entry date of this Order, and notice is hereby given of the institution 

of a trial. 

 

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PETITIONER: 

James Glass 

Quincy Lu 

QUINN EMANUEL URQUHART & SULLIVAN, LLP 

jimglass@quinnemanuel.com 

quincylu@quinnemanuel.com 

PATENT OWNER: 

Kenneth J. Weatherwax 

Parham Hendifar 

Lowenstein & Weatherwax LLP 

weatherwax@lowensteinweatherwax.com 

hendifar@lowensteinweatherwax.com 

Reza Mirzaie 

Amy E. Hayden 

Neil A. Rubin 

Peter Tong 

RUSS AUGUST & KABAT 

rmirzaie@raklaw.com 

ahayden@raklaw.com 

nrubin@raklaw.com 

ptong@raklaw.com 

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