TQ Delta LLC v. ADTRAN Inc.
Filing
1110
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 6/9/2020. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TQ DELTA, LLC,
Plaintiff;
v.
Civil Action No. 14-954-RGA
ADTRAN, INC.,
Defendant.
MEMORANDUM OPINION
Brian E. Farnan and Michael J. Farnan, FARNAN LLP, Wilmington, DE; Peter J. McAndrews,
Rajendra A. Chiplunkar, and Ashley M. Ratycz, MCANDREWS, HELD & MALLOY, LTD,
Chicago, IL, attorneys for Plaintiff TQ Delta.
Kenneth L. Dorsney, MORRIS JAMES LLP, Wilmington, DE; Paul M. Sykes, Scott Burnett
Smith, David W. Holt, Benn C. Wilson, and Jake M. Gipson BRADLEY ARANT BOULT
CUMMINGS LLP, Birmingham, AL, attorneys for Defendant Adtran.
June 9, 2020
/s/ Richard G. Andrews
ANDREWS, U.S. DISTRICT JUDGE:
Before me is Defendant Adtran, Inc.’s Motion for Summary Judgment of Invalidity (D.I.
966) and Plaintiff TQ Delta, LLC’s Motion for Summary Judgment of No Invalidity (D.I. 960). I
have considered the briefing. (D.I. 967, 989, 1003; D.I. 961, 984, 1006). Because genuine
disputes of material fact remain, both motions are denied.
I.
BACKGROUND
The asserted patents relate to Digital Subscriber Line (DSL) technology, which is a way
to connect to the Internet using copper telephone lines. (D.I. 963, Ex. A, “Zimmerman Report,” ¶
65). I bifurcated the case into separate trials for each patent family. (D.I. 369). The present
motions are about the Family 4 patents: U.S. Patent Nos. 7,292,627 (’627 patent), 8,090,008
(’008 patent), and 8,073,041 (’041 patent). Plaintiff is asserting claim 26 of the ’627 patent,
claim 14 of the ’008 patent, and claim 14 of the ’041 patent.
The purpose of the Family 4 patents is to lower the peak-to-average power ratio (PAR) of
transmitted signals. (’627 patent at 1:18-22). The PAR of a signal is the ratio of the maximum
power that the signal reaches to the average power of the signal over a period of time. (Id. at
1:60-64). Reducing PAR is desirable because a high PAR can cause signal “clipping” (which
degrades the signal), or it requires a system that consumes high amounts of power. (D.I. 959, Ex.
B, “Madisetti Infringement Report,” ¶ 60).
The patents address PAR in “multicarrier communications systems,” such as DSL. (’627
patent at 3:24-37). These systems transmit signals simultaneously across multiple frequency
channels, which are also called “carriers.” (Id. at 1:26-32). The systems convey information by
modulating the phases and amplitudes of the carrier signals. (Madisetti Infringement Report ¶
1
46). Some phases and amplitudes represent “0,” while others represent “1.” (Id.). DSL uses a
technique called “Discrete MultiTone” (DMT) to modulate the carrier signals. (Zimmerman
Report ¶ 66). With a technique known as Quadrature Amplitude Modulation (QAM), a single
carrier signal can represent multiple bits at once (such as “000” or “001”). (Madisetti
Infringement Report ¶ 47). Thus, a DMT symbol is made up of a set of QAM symbols. (Id. ¶
49). A DSL system may transmit 4000 DMT symbols per second. (Id.). This process allows
users to send and receive information over the Internet.
If the data is insufficiently random though, the amplitudes of multiple carriers can align,
which results in a high peak power (and thus a high PAR). (Zimmerman Report ¶ 76). The
Family 4 patents address this problem by “substantially scramb[ling] the phase characteristics of
the carrier signals.” (’627 patent at 2:38-40).
II.
LEGAL STANDARDS
A. Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317,
330 (1986). Material facts are those “that could affect the outcome” of the proceeding, and “a
dispute about a material fact is ‘genuine’ if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The burden on the
moving party may be discharged by pointing out to the district court that there is an absence of
evidence supporting the non-moving party’s case. Celotex, 477 U.S. at 323.
2
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986);
Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460–61 (3d Cir. 1989). A non-moving
party asserting that a fact is genuinely disputed must support such an assertion by: “(A) citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials; or (B) showing that the materials cited [by the opposing party] do not establish
the absence . . . of a genuine dispute . . . .” FED. R. CIV. P. 56(c)(1).
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476
F.3d 180, 184 (3d Cir. 2007). A dispute is “genuine” only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247–49.
If the non-moving party fails to make a sufficient showing on an essential element of its case
with respect to which it has the burden of proof, the moving party is entitled to judgment as a
matter of law. See Celotex Corp., 477 U.S. at 322.
B. Anticipation
A patent is invalid as anticipated under 35 U.S.C. § 102 if “the four corners of a single,
prior art document describe every element of the claimed invention, either expressly or
inherently, such that a person of ordinary skill in the art could practice the invention without
undue experimentation.” Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1282
(Fed. Cir. 2000). “[A]nticipation by inherent disclosure is appropriate only when the reference
discloses prior art that must necessarily include the unstated limitation.” Transclean Corp. v.
3
Bridgewood Servs., Inc., 290 F.3d 1364, 1373 (Fed. Cir. 2002). “[A]nticipation is a question of
fact, including whether an element is inherent in the prior art.” In re Gleave, 560 F.3d 1331,
1334-35 (Fed. Cir. 2009).
C. Obviousness
A patent is invalid as obvious under 35 U.S.C. § 103 if “the claimed invention as a whole
would have been obvious to a person of ordinary skill in the art at the time the invention was
made.” Kahn v. Gen. Motors Corp., 135 F.3d 1472, 1479 (Fed. Cir. 1998). “Obviousness is a
question of law based on underlying factual findings: (1) the scope and content of the prior art;
(2) the differences between the claims and the prior art; (3) the level of ordinary skill in the art;
and (4) objective considerations of nonobviousness.” In re Morsa, 713 F.3d 104, 109 (Fed. Cir.
2013) (citing Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966)).
To show a patent is obvious, a party “must demonstrate by clear and convincing evidence
that a skilled artisan would have been motivated to combine the teachings of the prior art
references to achieve the claimed invention, and that the skilled artisan would have had a
reasonable expectation of success in doing so.” InTouch Techs., Inc. v. VGO Commc’ns, Inc.,
751 F.3d 1327, 1347 (Fed. Cir. 2014) (cleaned up). The overall inquiry into obviousness though
must be “expansive and flexible.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 415 (2007).
III.
DISCUSSION
A. Does Stopler Anticipate Claim 26 of the ’627 Patent?
Defendant argues that claim 26 of the ’627 patent is anticipated by an older patent, U.S.
Patent No. 6,625,219, called “Stopler.” (D.I. 968, Ex. 16, “Stopler”). Claim 26, a dependent
claim, recites: “The transceiver of claim 20 wherein the value varies with each DMT symbol.”
Claim 20, in turn, discloses:
4
A multicarrier modulation transceiver that uses a transmission signal having a
plurality of carrier signals for modulating an input bit stream, each carrier signal
having a phase characteristic associated with the input bit stream, wherein the
multicarrier modulation transceiver is capable of associating each carrier signal
with a value determined independently of any input bit value carried by that
carrier signal, computing a phase shift for each carrier signal based on the value
associated with that carrier signal and combining the phase shift computed for
each carrier signal with the phase characteristic of that carrier signal so as to
substantially scramble the phase characteristics of the plurality of carrier signals.
(’627 patent, claim 20). Plaintiff counters that Stopler is missing the following element:
“substantially scramble the phase characteristics of the plurality of carrier signals.” I construed
this phrase to mean: “adjust the phase characteristics of the carrier signals by varying amounts to
produce a transmission signal with a reduced peak-to-average power ratio (PAR).” (D.I. 333).
Defendant seeks summary judgment of invalidity, while Plaintiff seeks summary judgment of no
invalidity.
Like the Family 4 patents, Stopler is directed to data communications. (Stopler at
Abstract). Stopler, however, addresses a different problem. Instead of trying to lower PAR,
Stopler seeks to mitigate interference. (Id.). Specifically, Stopler uses a “diagonalization
scheme” in which data packets are spread over the various carriers over time, reducing the effect
that a burst of noise would have on an individual user’s packets. (Id. at 5:64-67).
Stopler does not discuss PAR, but it does briefly suggest phase scrambling: “In order to
randomize the overhead channel symbols, a phase scrambling sequence is applied to the output
symbols. However, to simplify implementation, the phase scrambler is applied to all symbols,
not just the overhead symbols.” (Id. at 12:24-28). Stopler suggests using a “pseudo-random
generator,” which produces numbers that correspond with phase rotations of the symbols. (Id. at
12:28-45).
5
Does this technique “adjust the phase characteristics of the carrier signals by varying
amounts?” Dr. George Zimmerman, Defendant’s expert, points to a table in Stopler showing that
the phase rotation could be 0, π/2, π, or –π/2 radians. (Zimmerman Report ¶ 211). Thus, Dr.
Zimmerman concludes, the phase characteristics in Stopler are adjusted by “varying” amounts.
(Id.). Dr. Vijay Madisetti, Plaintiff’s expert, however, concludes that Stopler “adjust[s] the phase
characteristics of all the carrier signals by the same amount of rotation, not by varying amounts
as required by the claims.” (D.I. 963, Ex. B, “Madisetti Report,” ¶ 63). According to Dr.
Madisetti, a person of ordinary skill in the art would understand that Stopler’s pseudo-random
generator produces a single number at a time, and it uses that number to rotate all the carriers
within a DMT symbol by a single amount, not “varying” amounts. (Id.). The prior art, on its
face, does not provide a clear answer. Therefore, it appears there is a genuine dispute of material
fact on this question, and summary judgment for either party would be inappropriate.
The experts also disagree on whether Stopler’s phase scrambling would reduce the PAR
of the transmission signal. According to Dr. Zimmerman, “randomizing the phase characteristics
of the carrier signals in Stopler would tend to result in a transmission signal with increased
randomness.” (Zimmerman Report ¶ 216). “[T]hat increased randomness,” Dr. Zimmerman
concludes, “more frequently results in a decreased PAR from the unadjusted transmission
signal.” (Id.). Dr. Madisetti, on the other hand, argues that Stopler’s phase scrambling “does not
result in a transmission signal with a reduced PAR.” (Madisetti Report ¶ 57). He explains that
“[a]djusting the phase characteristics of each of the carrier signals by the same amount within a
DMT symbol but altering that amount over time does not result in reduced PAR of a
transmission signal.” (Id. ¶ 71). Dr. Zimmerman disagrees that this is how Stopler functions.
Instead, he concludes, “Stopler describes a phase scrambling sequence applied to all QAM
6
symbols that make up a single DMT symbol” and that “[o]ne of ordinary skill in the art would
understand that the phase adjustments vary from carrier to carrier within a single DMT symbol in
Stopler.” (D.I. 969, Ex. D, “Zimmerman Invalidity Reply Report” ¶¶ 63-64).
Reducing PAR is clearly not the intended function of Stopler. The patent makes no
mention at all of PAR. In TQ Delta, LLC v. Cisco Sys., Inc., the Federal Circuit held that
“Stopler provides no express discussion of, nor any connection to, the PAR of a multicarrier
transmitter.” 942 F.3d 1352, 1362 (Fed. Cir. 2019). In that case, the court found that a patent,
which is related to the one asserted here, was not obvious over Stopler and another prior art
reference. Anticipation requires a different inquiry than obviousness though. In Cisco, the
Federal Circuit found there was no credible evidence that a person of ordinary skill would have
been motivated to use the phase scrambler in Stopler as a solution to reduce PAR. Id. at 1377.
While it might be surprising if Stopler inherently reduces PAR without it being an obvious
solution to one of skill in the art, the Federal Circuit did not address that question.
The fact that Stopler “provides no express discussion of, nor any connection to” PAR
does not settle the matter. “[A] prior art reference may anticipate without disclosing a feature of
the claimed invention if that missing characteristic is necessarily present, or inherent, in the
single anticipating reference . . . [I]nherent anticipation [does not] require[] recognition in the
prior art.” Schering Corp. v. Geneva Pharm., 339 F.3d 1373, 1377 (Fed. Cir. 2003). Therefore,
given the conflicting expert opinions on how a person of ordinary skill would read Stopler, I find
there is a genuine dispute of material fact and deny both motions for summary judgment on this
issue.
7
B. Does Jones Anticipate Claim 14 of the ’008 Patent or Claim 14 of the ’041
Patent?
Defendant argues that U.S. Patent No. 6,657,949, called “Jones,” anticipates claim 14 of
the ’008 patent and claim 14 of the ’041 patent. Claim 14 of the ’008 patent discloses:
A multicarrier system including a first transceiver that uses a plurality of carrier
signals for modulating a bit stream, wherein each carrier signal has a phase
characteristic associated with the bit stream, the transceiver capable of:
associating each carrier signal with a value determined independently of
any bit value of the bit stream carried by that respective carrier signal, the
value associated with each carrier signal determined using a pseudo
random number generator;
computing a phase shift for each carrier signal based on the value
associated with that carrier signal; and
combining the phase shift computed for each respective carrier signal with
the phase characteristic of that carrier signal to substantially scramble the
phase characteristics of the plurality of carrier signals, wherein multiple
carrier signals corresponding to the scrambled carrier signals are used by
the first transceiver to modulate the same bit value.
(’008 patent, claim 14).
Claim 14 of the ’041 patent discloses:
A multicarrier system including a first transceiver that uses a plurality of carrier
signals for receiving a bit stream, wherein each carrier signal has a phase
characteristic associated with the bit stream, the transceiver capable of receiving
the bit stream, wherein:
each carrier signal is associated with a value determined independently of
any bit value of the bit stream carried by that respective carrier signal, the
value associated with each carrier signal determined by a pseudo-random
number generator, a phase shift for each carrier signal is based on:
the value associated with that respective carrier signal, and
the combining of a phase shift for each carrier signal with the phase
characteristic of that respective carrier signal so as to substantially
scramble the phase characteristics of the plurality of carrier signals,
multiple carrier signals corresponding to the plurality of phase shifted and
scrambled carrier signals are used by the first multicarrier transceiver to
demodulate a same input bit value of the received bit stream.
(’041 patent, claim 14).
8
First, Plaintiff responds that, in Jones, values are not determined by a “pseudo-random
number generator”—an element of both asserted claims. Second, Plaintiff argues that Jones does
not produce a “transmission signal” with reduced PAR, as I construed the claims to require. Both
parties have moved for summary judgment.
Jones is directed to digital communications systems that use “orthogonal frequency
division multiplexing” (OFDM), which “divides the available spectrum within a channel into
narrow subchannels.” (D.I. 963, Ex. G, “Jones,” at 2:2-4). In a “burst,” each subchannel in an
OFDM system transmits one data symbol. (Id. at 2:4-5). Jones claims “[s]ystems and methods
for efficient multiplexing of multiple access requests from disparate sources within a single
OFDM burst.” (Id. at 2:51-53).
Does Jones disclose a “pseudo-random number generator?” Jones describes a phase
scrambling technique in at least one embodiment. (Id. at 5:30-6:24). According to Defendant’s
Dr. Zimmerman, this phase scrambling technique uses pseudo-random numbers. (Zimmerman
Report ¶ 1216). According to Plaintiff’s Dr. Madisetti, the numbers are generated sequentially,
and are therefore not random or pseudo-random. (Madisetti Report ¶ 138).
Jones teaches:
The phase scrambling pattern consists of a series of values ranging from 0 to 3. A
phase scrambling storage block generates the values of the pattern in succession.
A complex exponential block represents the translation of the values ranging from
0 through 3 into four possible phase rotation values: 0, π/2, π, 3π/2.
(Jones at 6:1-6).
Dr. Madisetti focuses on the fact that Jones describes the pattern as being “in
succession.” According to Dr. Madisetti, a person of ordinary skill would understand that
to mean “that the pattern of values is 0, 1, 2, 3, 0, 1, 2, 3, etc., and the pattern of
9
corresponding phases shifts would be: for carrier 1, 0 phase shift; for carrier 2, π/2 phase
shift; for carrier 3, π phase shift; for carrier 4, 3π/2; for carrier 5, 0 phase shift; etc. Thus,
there is nothing random or pseudo-random about Jones’s ‘phase scrambling.’” (Madisetti
Report ¶ 138).
Defendant responds that Jones is using “in succession” to mean merely “one after
the other,” not that the numbers must be in order. (D.I. 967 at 8). Dr. Zimmerman points
to a passage of Jones which states that selecting a different tone set would result in a shift
to a “different section” of the phase scrambling pattern. (Zimmerman Report ¶ 1216;
Jones at 5:59-62). According to Dr. Zimmerman, this shift would occur if the phase
scrambling sequence were random, but not necessarily if it were periodic or constant.
Therefore, Dr. Zimmerman concludes that a person of ordinary skill would infer that the
number generator in Jones is pseudo-random. (Zimmerman Report ¶ 1216). Given these
conflicting expert opinions, I am unable to grant summary judgment for either side.
Plaintiff’s second argument against anticipation by Jones is that Jones does not
produce a “transmission” signal with reduced PAR. The asserted claims of the ’008 and
’014 patents (like the asserted claim of the ’627 patent) disclose “substantially scramble
the phase characteristics of the plurality of carrier signals.” As with the ’627 patent, I
construed this term to mean: “adjust the phase characteristics of the carrier signals by
varying amounts to produce a transmission signal with a reduced peak-to-average power
ratio (PAR).” (D.I. 333).
There is no dispute that Jones contemplates reducing PAR. Plaintiff’s argument is
that Jones reduces the PAR in the “received” signal at a central access point receiver,
instead of the “transmission” signal. Plaintiff points to the following sentence in Jones:
10
“The reason for the phase scrambling is that certain combinations of request access data
symbols will result in an excessive peak to mean power ratio (PMPR) for the burst as
received.” (Jones at 5:49-52). I understand PMPR in Jones to refer to the same thing as
PAR in the asserted patents. According to Plaintiff, the words “as received” indicate that
Jones is directed to reducing PAR only in received signals. (D.I. 961 at 10). Plaintiff also
argues that, during his deposition, Dr. Zimmerman admitted that he had not analyzed if
Jones’s phase scrambling would result in a transmission signal with reduced PAR:
Q. Okay. So you didn’t do any analysis at all of any reduction in PAR at the
transmitter of Jones, correct?
A. I did not.
(D.I. 963, Ex. I, “Zimmerman Dep. Tr.,” at 259:15-18).
Defendant responds that the question was vague, and Plaintiff’s counsel had confusingly
switched to asking about the transmitter after repeatedly asking about the receiver. (D.I. 984 at
10). Defendant instead relies on Dr. Zimmerman’s report, in which he concluded, “One of skill
in the art would understand that randomizing the phase characteristics of the carrier signals in
Jones would tend to result in a transmission signal with increased randomness,” and that such
“increased randomness more frequently will tend to result in a decreased PAR from the
unadjusted transmission signal.” (Zimmerman Report ¶ 1231).
Plaintiff does not identify analysis by its own expert, Dr. Madisetti, on whether Jones
reduces PAR of the transmission signal. Dr. Zimmerman’s brief answer during a lengthy and
complex deposition is not enough to entirely nullify the analysis in his prepared report. It is
enough, however, to create a genuine dispute of material fact. Thus, I cannot grant summary
judgment that Jones anticipates claim 14 of the ’008 patent or claim 14 of the ’041 patent.
11
C. Are the Asserted Claims Obvious?
1. Jones
Defendant argues that even if Jones does not disclose a pseudo-random number
generator, that element would have been obvious to one of ordinary skill in the art. (D.I. 966 at
8-9). According to Dr. Zimmerman, “[a] person of ordinary skill in the art would connect
scrambling with randomization, and would have been well aware that a pseudo-random number
generator was a useful way to introduce such randomization.” (Zimmerman Report ¶ 824). Dr.
Zimmerman, however, does not explain why a person of ordinary skill would have been
motivated to apply a pseudo-random number generator to Jones. See InTouch Techs., 751 F.3d at
1347 (“A party seeking to invalidate a patent on obviousness grounds must demonstrate by clear
and convincing evidence that a skilled artisan would have been motivated to combine the
teachings of the prior art references to achieve the claimed invention.”) If Jones can reduce PAR
without a pseudo-random number generator, then it is unclear why one of ordinary skill would
want to introduce one.
2. Combinations Involving Shively
Defendant argues that all three asserted claims are obvious over U.S. Patent No.
6,144,696, called “Shively,” and U.S. Patent No. 5,682,376, called “Hayashino.” Plaintiff
responds that a person of ordinary skill in the art would not have been motivated to combine
Shively and Hayashino to create the claimed inventions. (D.I. 989 at 3).
Shively discloses a bit allocation technique in DSL modems that use DMT transmission.
(Shively at 1:5-8, 2:37-40). Specifically, Shively suggests transmitting the same data on multiple
subchannels to compensate for noisy environments. (Shively at 15:47-52). Hayashino teaches
that high PAR can occur when transmission signals are in phase with each other, and it describes
12
a process for scrambling the phase characteristics of carrier signals. (Hayashino at 2:65-3:3,
12:27-48; Zimmerman Report ¶¶ 142-143).
According to Dr. Zimmerman, a person of ordinary skill in the art would have recognized
that replicating data on multiple carriers (as described in Shively) would have led to high PAR.
(Zimmerman Report ¶ 342). A person of ordinary skill would have wanted to reduce the PAR of
Shively, Dr. Zimmerman argues, because high PAR can lead to high power consumption or
signal clipping. (Zimmerman Report ¶ 344). Finally, Dr. Zimmerman argues a person of ordinary
skill would have recognized the phase scrambling technique in Hayashino as a solution to the
high PAR of Shively and would have been motivated to combine the two techniques.
(Zimmerman Report ¶ 345).
Dr. Madisetti responds that a person of ordinary skill would not have been motivated to
combine the two references because Shively has no PAR problem. In Dr. Madisetti’s view,
Shively is only directed to “long loop” systems, where there are at least 18,000 feet of cable
between DSL modems. (Madisetti Report ¶ 78). In that kind of system, according to Dr.
Madisetti, PAR is low enough that there are no problems with signal clipping or high-power
consumption. (Id. ¶¶ 96-101). With no PAR problem, there would be no reason to use
Hayashino’s PAR reduction technique on Shively’s system.
Defendant counters that a person of ordinary skill “would have readily understood that
Shively’s technique would be useful on loops shorter than 18,000 feet.” (D.I. 1003). That,
however, is a genuine dispute of material fact. The claims of Shively are not (at least on their
face) limited to long loop systems. The issue here though is not the scope of Shively’s claims.
The issue is whether a person of ordinary skill would have been motivated to combine Shively
13
and Hayashino. Because there is a genuine dispute over whether Shively has a PAR problem that
needs solving, I cannot grant summary judgment for either party.
Dr. Zimmerman also concludes the asserted claims are obvious combinations of Shively
and Stopler. (Zimmerman Report ¶ 228). There are two genuine disputes of material fact here.
The first is whether Stopler’s technique reduces PAR, and the second is, if Stopler does reduce
PAR, whether Shively has a PAR problem that would motivate a person of ordinary skill to
combine the two techniques. Given these genuine disputes, summary judgment is unwarranted.
3. Combinations Involving Hwang
U.S. Patent No. 6,590,893, called “Hwang,” describes a multicarrier communication
system using DMT modulation. (Zimmerman Report ¶ 148; Hwang at 5:12-6:21). Defendant
argues it would have been obvious to combine Hwang with either Stopler or Hayashino to form
the claimed inventions.
According to Dr. Zimmerman, Hwang discloses a redundant transmission technique that
would have high PAR. (Zimmerman Report ¶ 427). Plaintiff responds that, unlike other DMT
systems, Hwang teaches a “differential encoding scheme,” which means that Hwang would not
increase PAR. (D.I. 989 at 16-17). With no PAR problem to solve, there would be no motivation
to combine Hwang with either Hayashino or Stopler. This is a genuine dispute of material fact
that cannot be resolved at summary judgment. Additionally, as discussed, whether Stopler
reduces PAR is in dispute.
4. Combinations Involving T1.413-1998
T1.413-1998 is a technical standard for DSL technology published by the American
National Standards Institute in 1998. (Zimmerman Report ¶¶ 130-31). Defendant argues the
asserted claims are obvious combinations of T1.413-1998 and either Stopler or Hayashino.
14
Dr. Zimmerman explains that T1.413-1998 describes devices which employ redundant
transmission of the same bits during initialization. (Zimmerman Report ¶ 137). This process
would create high PAR, Dr. Zimmerman argues, and a person of ordinary skill would have been
motivated to lower that PAR using the phase scrambling of either Stopler or Hayashino. Dr.
Madisetti responds that simulations show devices described in T1.413-1998 do not have high
PAR. (Madisetti Report ¶ 103). Thus, there is a genuine dispute of material fact over whether
there would be a motivation to combine T1.413-1998 with Stopler or Hayashino. And again,
there is a dispute over whether Stopler reduces PAR.
IV.
CONCLUSION
For these reasons, Defendant’s Motion for Summary Judgment of Invalidity (D.I. 966)
and Plaintiff’s Motion for Summary Judgment of No Invalidity (D.I. 960) are denied. I will enter
an Order consistent with this Opinion.
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?