Trials@uspto.gov Paper 8 571-272-7822 Entered: July 29, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD RESEARCH IN MOTION CORPORATION Petitioner, v. WI-LAN USA INC. Patent Owner. Case IPR2013-00125 Before JAMESON LEE, GLENN J. PERRY, and THOMAS L. GIANNETTI, Administrative Patent Judges. PERRY, Administrative Patent Judge. DECISION Denying Institution of Inter Partes Review 37 C.F.R. 42.108
I. INTRODUCTION Research in Motion Corporation ( RIM ) filed a petition (Paper 1, Pet. ) requesting inter partes review of claims 5-7 and 9 of (Ex. 1001, the 369 patent ). Patent Owner, Wi-LAN, Inc. ( Wi-LAN ), filed a preliminary response (Paper 6, Prelim. Resp. ) on April 30, 2013. We have jurisdiction under 35 U.S.C. 314. The standard for instituting an inter partes review is set forth in 35 U.S.C. 314(a), which provides as follows: THRESHOLD -- The Director may not authorize an inter partes review to be instituted unless the Director determines 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. Upon consideration of the petition and Wi-LAN s preliminary response, we determine that the Petition does not establish a reasonable likelihood that RIM would prevail on at least one alleged ground of unpatentability with respect to claims 5-7 and 9 of the 369 patent. Accordingly, pursuant to 35 U.S.C. 314, we do not authorize an inter partes review to be instituted on any of claims 5-7 and 9. Therefore, the petition for instituting inter partes review is not granted. A. Related Proceedings RIM indicates that the following litigation would affect or be affected by a decision in this proceeding: Wi-LAN USA Inc. et al. v. Research In Motion Ltd., et al., Case No. 12-cv-20232 (S.D. Fla.). 2
B. The 369 Patent (Ex. 1001) The 369 Patent relates to wireless communication among plural nodes of a network, e.g., a mesh network. It describes a technique for establishing a multichannel hopping band plan for a node of a communication network. Ex. 1001 at 1:6-12. Each node has a receiver and a transmitter. Ex. 1001 at Abstract. A target (receiving) node develops its own unique channel hopping band plan ( band plan ) and communicates that band plan to a source (transmitting) node which then stores the band plan in a link list table and uses it to send messages to the target node. Id., Abstract. The band plan is communicated by the target node to the source node by sending data (node-specific seed value and channel punchout mask) to the source node that enables the source node to re-create the target node s band plan. Ex. 1001 at 4:14-16. Development of a unique band plan for a node is explained with reference to Fig. 2 of the 369 Patent, which is reproduced below. 3
Fig. 2 of the 369 patent A list of network channels 10 is organizedd in a natural order of frequencies. These network channels are monitored by a nodee developing a band plan. 369 Patent 4:19-21. Undesirable e channels (e.g., determined by the target node to have unacceptable interference) are excluded from thee plan being developed. See Fig. 2, X d out channels in a list 30. Channels excluded (X d out) are indicated by a punchout mask 20. Ex. 1001 at 4:26-28. Channels remaining after exclusions are represented by a list 40 of available channels for the node. Ex. 1001 at 4: :29-31. The order of channels in list 40 is randomized to form a list of channels 50 constituting the band plan. Ex. 1001 at 4:32-36. Randomization is carried out using random numbers generated by seeding a pseudo-random number generator 4
with a unique seed value associated with the node developing the band plan. Ex. 1001 at 4:37-53. To communicate its band plan to other nodes, a node, having developed a plan, need only communicate its unique seed value and its punchout mask indicating which channels are to be eliminated before re-ordering the list 40 of channels. For example, using the unique seed value and channel punchout mask associated with node A, node B can reconstruct node A s band plan and use it whenever node B wants to send a message to node A. Claim 5, the only independent claim at issue, is reproduced below, with emphasis on disputed terms. It explains how a node develops its unique channel hopping band plan. 5. In a node operable on a communications network having a plurality of shared-medium channels and having a plurality of channel-agile nodes each node capable of transmitting and receiving data over a plurality of said channels, a method for establishing a unique channelhopping band plan for that node and communicating that band plan to other nodes in the network comprising the steps of: a) assigning to that node a unique seed value; b) determining a channel punchout mask, said mask indicating those channels on which the node experiences interference or is otherwise unable to receive data; c) applying said mask to a list of network channels to eliminate undesirable channels and therefore to obtain a list of available node channels; d) randomizing said list of available node channels by 5
using a deterministic pseudorandom number generator seeded with said seed value thereby obtaining a unique channel-hopping band plan; and e) communicating said unique channel-hopping band plan to other nodes in the network by transmitting data from which said other nodes may derive said unique channel-hopping band plan. C. Prior Art Relied Upon by Petitioner 1 RIM relies upon the following prior art references: Munday Patent 5,377,221 Filed 5/10/1985 (Ex. 1002) Jackson Advanced HF Anti-Jam Network Architecture 1990 (Ex. 1003) Flammer Patent 5,079,768 Filed 9/11/1990 (Ex. 1004) D. Asserted Grounds of Unpatentability RIM alleges that claims 5-7 and 9 are unpatentable based on the following grounds: 1. Claim 5 is anticipated by Munday under 35 U.S.C. 102(e); 1 The petition relies on the testimony of Michael Pursley, Ph.D. (Exhibit 1005). 6
2. Claims 5 and 7 2 are unpatentable under 35 U.S.C. 103(a) for obviousness over Munday; 3. Claims 5 and 9 are anticipated by Jackson under 35 U.S.C. 102(b); 4. Claim 7 is unpatentable under 35 U.S.C. 103(a) for obviousness over Jackson; 5. Claim 6 is unpatentable under 35 U.S.C. 103(a) for obviousness over Jackson and Flammer. II. CLAIM CONSTRUCTION Consistent with the statute and the legislative history of the AIA, the Board interprets claim terms by applying the broadest reasonable construction in the context of the specification in which the claims reside. 37 C.F.R. 42.100(b); see Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48766 (Aug. 14, 2012). 2 Although Petitioner does not style an argument directed to the obviousness of claim 5, argument nonetheless is presented in the discussion of claim 5 over Munday, urging that a channel punchout mask would have been obvious. We regard that argument as an obviousness assertion of claim 5 over Munday. 7
channel punchout mask Petitioner correctly points out that the 369 patent does not define channel punchout mask specifically. Petitioner argues for a construction of channel punchout mask that does not require any particular structure. Petition at 5. Petitioner points to a portion of the prosecution history for the 369 patent. During prosecution, Patent Owner distinguished the claimed channel punchout mask from Pirillo s 3 dynamic table by saying that the channel punchout mask was determined at the receiving end [of a transmission] and then communicated to potential transmitting nodes. Patent Owner argues in its Preliminary Response that Petitioner s construction of channel punchout mask is too broad and is inconsistent with Petitioner s argument made in the parallel litigation. Patent owner presents the following chart contrasting the two constructions. Prelim. Resp. at 6. 3 U.S. 5,361,401, a reference applied during original prosecution. 8
Our broadest reasonable construction in light of the specification is that a channel punchout mask includes any coded information that communicates that certain members of a set of channels are available and certain members of the set of channels are not available. The claims impose limitations as to the manner in which the channel punchout mask is used, but we do not read those limitations into the term channel punchout mask. Our construction of channel punchout mask does not require any particular format as long as it conveys information indicating which channels are available and which are not available. The term channel punchout mask itself does not require the use of 1s and 0s to indicate which channels are available and which channels are not available. unique seed value Neither Petitioner nor Patent Owner suggests any specific construction for the term unique seed value. However, we construe this claim term in order to apply the cited prior art. Petitioner makes at least two statements with regard to unique seed value. Petitioner states that for a pseudo-random number generator to generate a unique pseudo-random sequence, the generator must be supplied with a unique seed value. Petition at 6, citing to the Pursley Declaration (Ex. 1005) 18. Petitioner further states that the application of different seed values to a pseudo-random number generator results in different pseudo-random sequences. Petition at 5-6, citing to Pursley Declaration 19. We have no reason to disagree with these statements. Our broadest reasonable construction in light of the specification is that a unique seed value is a seed value different from all other seed values as used in 9
context. Claim 5 requires certain action occurring in a node. Limitation (a) requires assigning to that node a unique seed value. We interpret that as requiring that the seed value assigned to that node must be different from the seed value assigned to any other node of the plurality of nodes in the communications network. III. PROPOSED GROUNDS OF UNPATENTABILITY A. Claim 5 anticipated by Munday (Ex. 1002) Munday describes a frequency hopping radio communication system having a plurality of radios. Ex. 1002, Abstract. When a radio is not transmitting or receiving, it monitors the signal strength of signals being transmitted on each of the available hop channels to assess a level of interference. Id. It selects a subset of available hop channels having the lowest interference levels and stores a list of channels so identified. Id. When the radio is ready to transmit a message, it first transmits its list of channels. After the channel list has been sent, the transmitting radio then transmits its message in accordance with a band plan including only those frequencies on the list. Id. The intended receiver receives the message by listening on the frequencies called for by the band plan. Synchronization is provided between transmitter and receiver. Ex. 1002, 2:7-14. Munday s Fig. 1, reproduced below, shows the architecture of a radio of the communication system: 10
Ex. 1002, Fig. 1 shows an embodiment off a radio. A keystream generator 26 (lower left of Fig. 1) generates a sequence of data words identifying a 64 channel subset of the 2566 channels to be used during a sequence. Ex. 1002 at 3:61-68. The keystream generator identifies the channels in a pseudo-random sequence. Ex. 1002 at 4:1-2. It is controlled by two inputs: (1) a key of the day through input 30 at lower left off Fig. 1, and (2) a timing signal from timing unit 34. Ex. 1002 at 4:2-10. The key of the day is common to all radios. Ex. 1002 at 4:7-9. The timing signal is used for synchroni[z]ation purposes to ensuree that all radios have their key stream generators operating in synchronism. Ex. 1002 at 4:9-15. Operation off the Munday system is explained further with respect to Munday s Figs. 2A-2D, reproduced below. 11
Ex. 1002, Figs. 2A-2D illustrate operation of a Munday radio. Munday describes radio operation with respect to Fig. 2. Ex. 1002 at 5:28 to 7:15. As shown on line 2A, when a radio is neither transmitting nor receiving, it is assessing signal strength (note label on five left-most blocks of line 2A) and looking for a sync signal (note label at sixth from the left block of line 2A). When it is ready to transmit, it transmits a sync signal, followed by a list of transmit channels on whichh a following message will be transmitted. It then uses the transmitt channels to transmit the message. See transmit channels and transmit message labels in 2A. Once the message has been transmitted, it resumes assessing signal strength of the complete channel set to prepare for a future transmission. A receiving radio (line 2C), when it is ready to receivee a transmission, receives a list of channels (ninth block from the left) on which a 12
message will follow. It then receives the message on those channels (10 th block from the left). Keystream generator 26 of Radio 2 is synchronized with the keystream generator of Radio 1. See Ex. 1002 at 7:13-15. Petitioner argues that each limitation of claim 5 is disclosed by Munday. We are unpersuaded. In particular, Munday does not disclose assigning a unique seed value to a node as required by claim 5 s limitation (a). Nor does it disclose randomizing a list of available node channels using a deterministic pseudo-random number generator seeded with said seed value (referring to the unique seed value) as required by claim 5 s limitation (d). In addition, Munday does not disclose the channel punchout mask as required by claim 5 s limitations (b) and (c). Claim 5 requires a node to generate its hopping plan based on a unique seed value associated with that node. Petitioner argues that the sync data applied to a Munday radio constitutes the claimed unique seed value. Petition at 17. In the alternative, Petitioner argues that the key of the day constitutes the unique seed value. Petition at 17. Patent Owner points out that neither Munday s key of the day nor Munday s timing signal, both used to generate a sequence of data words to randomize a subset of channels, is unique to a node. Prelim. Resp. at 15. Our review of Munday confirms Patent Owner s position. Munday states: The keystream generator is itself controlled by two inputs. First, there is an input on a line 30 which represents the "key of the day". This is a multibit data signal which is fed in manually by the operator and determines the basic pseudo-random sequence. Obviously, the same "key of the day" must be fed into all radios in the system. Secondly, the keystream generator is controlled by a timing signal on a line 32 from a timing unit 34. The signal on 13
line 32 determines the current operating position, within its pseudo-random sequence, of the keystream generator 26 and is used for synchronization purposes to ensure that all radios have their key stream generators operating in synchronism. Munday 4: 2-15 (emphasis added). We understand the above-quoted portion of Munday as meaning that the key of the day is used as a seed to determine a pseudo-random sequence in all radios of the Munday system. The timing signal allows the radios to synchronize with one another so that they can communicate by operating at the same point in the pseudo-random sequence when transmitting and receiving. The key of the day is common to all radios so that all radios will generate the same pseudorandom sequence. Therefore, Munday does not assign a unique seed value to a node and utilize it as required by claim 5 s limitations (a) and (d). Petitioner argues that Munday discloses a channel punchout mask as required by claim 5 s limitation (b) and uses that channel punchout mask as required by claim 5 s limitation (c). Petition at 17-19. Petitioner s argument is essentially that the term channel punchout mask should not be limited to any particular structure. Petition at 18. According to Petitioner, eliminating unused channel frequencies in the predetermined set of frequency channels to form the subset consisting of the channel frequencies having the lowest interference corresponds to applying said mask to a list of network channels to eliminate undesireable channels and therefore to obtain a list of available node channels, as recited in claim 5. Petition at 18-19. 14
Petitioner has not pointed to any specific data or information that meets our claim construction above. Our claim construction requires some kind of data that indicates which channels are to be used and which channels are not to be used. That information would be applied to a channel list in order to produce the list of channels to be randomized and used for transmission. Therefore, we are unpersuaded that Munday discloses and uses a channel punchout mask as required by claim 5. Even assuming that Munday discloses a channel punchout mask, claim 5 nevertheless is not anticipated by Munday because it does not disclose the assignment of a unique seed value to a node as required by claim 5 s limitation (a) and the use of such unique seed values to randomize as required by claim 5 s limitation (d). For the foregoing reasons, Petitioner has not demonstrated that there is a reasonable likelihood that the Petitioner would prevail in establishing that claim 5 is anticipated by Munday. B. Claims 5 and 7 obvious in view of Munday Nor do we find a reasonably likelihood that the Petitioner would prevail in establishing that claims 5 and 7 would have been obvious in view of Munday. Claim 7, reproduced below, depends from claim 5 and further requires the use of 0s and 1s for the channel punchout mask. 7. The method according to claim 5 wherein said mask is a sequence of bits, each bit having a value of either 0 or 1, where bits of one value correspond to channels in the channel list that are used by the node and bits of the other 15
value correspond to channels in the channel list that are not used by the node and are therefore to be eliminated from the node's channel-hopping band plan. A patent claim is unpatentable under 35 U.S.C. 103(a) if the differences between the claimed subject matter 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, socalled secondary considerations. Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966). Petitioner argued that claim 7 would have been obvious in view of Munday. Petition at 22-23. This argument is supported by the testimony of Dr. Michael Pursley. See Pursley Declaration, Ex. 1005 at 6-10. Petitioner s arguments are summarized as follows: a. Each Munday radios monitors all channels and has knowledge of them. b. It was well-known to use a mask of 0s and 1s to distinguish between channels with excessive interference and those with a tolerable level of interference. c. One of ordinary skill in the art would have recognized that there is no need to transmit full binary representations of the channel frequencies because 16
communicating a mask reduces overhead and complexity of conveying information. d. One of ordinary skill in the art was aware that transmitting the entire pseudo-random sequence of frequencies in a band plan would require excessive transmission time and that transmitting only information for obtaining a pseudorandom sequence would require less transmission time. Even if we were persuaded that it would have been obvious to utilize a channel punchout mask as required by claim 5 and, in particular, a punchout mask using 1s and 0s as required by claim 7, claims 5 and 7 nevertheless require the use of a unique seed value assigned to each node as required by claim 5. No persuasive evidence is presented with regard to how the unique seed value limitations of these claims are met. Therefore, we conclude that the Petition does not establish that there is a reasonable likelihood that the petitioner would prevail with respect to establishing that claims 5 and 7 would have been obvious in view of Munday. Claims 5 and 9 anticipated by Jackson (Ex. 1003) Petitioner argues that claims 5 and 9 are anticipated by Jackson (Ex. 1003). Petition at 24-33. 17
Jackson describes a network architecture shown in Jackson Fig. 2, reproduced below, for communicating among HF 2000 AJ MODE radios using frequency hopping. Fig. 2 of Jackson showing network architecture. Network users of HF 2000 AJ MODE radios (lower right box of Jackson Fig. 2) communic ate with each other using frequency hopping plans that are unique to each HF 2000 AJ MODE radio. Each radio communicates with a network control station (NCS) using orderwire links thatt allow the NCS to 18
broadcast general and network control messages to users and allow network users to send messages to the NCS related to network control, multiple access control, routing, priority settings, frequency hop set assignments, etc. Ex. 1003 at 208, 2. Each network user communicates with other network users by using its own unique frequency hopping plan so thatt network users can share common channels withoutt colliding with one another as shown in Jackson Fig. 4, reproduced below. Jackson Fig. 4 showing orthogonal hopping patterns. The unique frequency hopping plans are developed centrally at the NCS from a common sub-set of frequencies ( hop set ). Thee hop set is selected based on information (e.g., viability of various channels) gathered by network users and communicated to the NCS. The NCS assigns to each user a unique hopping pattern that is orthogonal to the hopping patternss assigned to others. Ex. 1003 at 19
209, col. 1, 1. Multiple orthogonal waveforms can occupy the same hopping bandwidth as illustrated by hop sets #1 and #2 in the same time frames, as shown in Ex. 1003 Fig. 4, above. Petitioner argues that Jackson anticipates claims 5 and 9. Petition at 24-33. We are unpersuaded. Petitioner argues that Jackson assigns a unique seed value to a node as required by claim 5 s limitation (a). Petition at 26-27. Petitioner further argues that available channels are randomized using the unique seed value as required by claim 5 s limitation (d). Petition at 29-30. Jackson describes that the hop set of available channels is developed centrally at the NCS, rather than in a node as is required by claim 5, based on reports from HF 2000 radios of channel conditions. Jackson then produces the individual hopping patterns at the NCS and communicates them to respective network users using the orderwire links from the NCS to the individual radios. Ex. 1003 at 209, col. 2, 2. Petitioner correctly notes that in Jackson each user is assigned a unique hopping pattern. Petition at 26; Ex. 1003 at 209, col. 1 1; and 211, col. 1 1. However, Jackson does not explain how the individualized hopping patterns are created, other than to indicate that symbols are pseudo-randomly selected from the hop set. Ex. 1003 at 210, col. 2 1. The Pursley Declaration states that the unique hopping pattern is developed by applying a pseudo-random sequence to the frequencies of the hop set. Ex. 1005 at 13. In an embodiment described in the Jackson specification each hopping pattern contains a 64 frequency hop set which is selected from 512 frequencies. 20
Ex. 1003 at 210, col. 1, 3. The 64/512 hop set is used for all radios on the network. As channel conditions change, the NCS may change the hop set used by all radios and the hopping patterns unique to each network user. Jackson s NCS-developed hopping patterns are non-overlapping and timespaced to provide signal orthogonality among radios. Ex. 1003 at 211, col. 1. However, there is no evidence to suggest that in Jackson producing a set of orthogonal hopping patterns from a single hop set requires the use of a unique seed value assigned to a radio. Jackson does not explain how the hopping patterns are created other than to say that symbols are pseudo-randomly selected. Ex. 1003 at 210, col 2, 1. Petitioner infers that Jackson must have developed its orthogonal hopping patterns using a unique seed and pseudo-random number generator because a) it was well-known to use a pseudo-random sequence to generate a unique hopping pattern and b) it is mandatory to provide a pseudo-random number generator with a unique seed value. Petition at 26-27 and Pursley Declaration 14-21. That inference is not supported by the evidence. Even assuming that the NCS uses a pseudo-random number generator and a seed value, there is insufficient evidence to establish that the NCS uses a seed value that is unique to a radio to generate the hopping pattern for that radio. Thus, the limitations of claim 5 related to the assigning of a unique seed value to a node and the use of that unique seed value to generate the hopping pattern for that node are not met. Another limitation of claim 5 also is not disclosed. Claim 5 is directed to steps carried out in a node. Jackson, in contrast, describes that the hopping patterns are developed centrally by the NCS and are distributed to the radios 21
(nodes). According to claims 5 and 9 of the 369 patent, a node makes its own determination of which channels to use for its band plan. Thus, according to claim 5, before randomization, the sub-set of channels used by nodes A and B may be quite different, each reflecting channel conditions as determined by the respective nodes developing their band plans. In contrast, the Jackson hop set is determined centrally by the NCS and is common to all network users before an individual hop plan is developed for a network user from that hop set. Thus, the limitation of claim 5 requiring the steps set forth in the body of the claim to be carried out in a node is not met. Petitioner argues that Jackson discloses a channel punchout mask. Petition at 27. We do not agree. Petitioner argues that Jackson monitors and estimates channel quality and strength so that frequency assignments can be adjusted. Petition at 27, citing Ex. 1003 at 209 col. 2, 2. Monitoring results are reported to the NCS for overall link quality analysis. Petition at 27, citing to Ex. 1003 at 210, col. 1 1. Petitioner further argues that the channel monitoring results in the selection of a subset of channels to create a hop set (e.g., a 64-frequency hop). Petition at 27 citing to Ex. 1003 at 209, col. 2, par 2; and 210 col. 1, 1,3; and Ex. 1005 at 20. According to Petitioner, this hop set constitutes a channel punchout mask. Our construction of channel punchout mask requires some data that indicates which channels are available and which channels are not available. This data would be applied to a list of available channels to produce the hop set. The Jackson hop set does not satisfy the requirements of a channel punchout mask as we have construed the term. Petitioner has not pointed to any particular piece of 22
data or information that is applied to the available channels to specify which are and which are not available for producing hopping patterns. Thus, there is insufficient persuasive evidence to establish that the channel punchout mask limitations of claim 5 are disclosed by Jackson. We find that Jackson does not meet certain limitations of claim 5. Petitioner s argument of anticipation of dependent claim 9 based on Jackson fails for the same reasons articulated above. Therefore, we conclude that the Petition does not establish a reasonable likelihood that Petitioner would prevail in showing that claims 5 and 9 are anticipated by Jackson. Claim 7 obvious over Jackson Claim 7, depends from claim 5 and further requires the punchout mask rely on the use of 0s and 1s. We note Petitioner s argument, relying on the Pursley Declaration, that it would have been obvious to use a channel punchout mask of 1s and 0s to indicate which channels are available to form a hop set. Even assuming that to be true, Jackson does not disclose the use of a seed value that is unique to a radio (node) to generate a band plan for that radio as required by claim 5. For the reasons discussed supra, we are not persuaded by the arguments pertaining to the unique seed value presented by Petitioner in connection with claim 7. Therefore, we conclude that the Petition does not present sufficient evidence to establish that it is reasonably likely that Petitioner would prevail in establishing that claim 7 would have been obvious in view of Jackson. 23
C. Claim 6 obvious over Jackson in view of Flammer Claim 6 depends from claim 5 and recites, in part, wherein said seed value is derived from an address of the node. Flammer teaches a frequency hopping packet communication system based on use of a receiver's frequency hopping timing and identification to control communication. Ex. 1004, Abstract. A frequency hopping band plan, involving the number of channels and the pseudo-random pattern of frequency change and nominal timing of changes, is universally known to each node in the network. Id. Frequency hopping is implemented by the division of communication slots and the accumulation of slots into epochs, wherein each epoch equals the total number of available slots (number of channels times the number of time frames per channel). Id. A transmitting node tracks the pre-established frequency hopping pattern for its target receiver based on previously-acquired information. The transmission node identifies a receiver node and a current frequency channel of such receiver node. The transmission node then checks the frequency channel to determine if it is available, e.g., not in use and within an acceptable noise margin. If unavailable, the transmission node delays transmission to the identified node to a later slot. During the delay, the transmission node identifies another receiver node and a corresponding current frequency channel. The steps of identifying a receiver node and checking the corresponding current frequency channel are repeated until a node having an available frequency channel is identified. Id. 24
According to Petitioner, Flammer describes a random offset seed value that is derived from a node address. Ex. 1004 at 7:58-59. We agree that Flammer teaches that it was known to develop a seed from a node address. However, the address-derived seed value is not used to generate a pseudo-random sequence band plan for each node. Rather, it is used to provide a random offset at startup of each node for its use of time slots through which nodes cycle their packets. Ex. 1004 at 7:55-60. Thus, the address-derived seed is used for a different purpose than that for which the unique seed value of claim 6 is used. Accepting the notion that Flammer teaches that it was known to develop a seed value from a node address does not help to render the subject matter of claim 6 as a whole obvious from the teachings of Jackson and Flammer. The teachings of Flammer do not suggest that Jackson would have used a seed value unique to a radio to develop a hopping plan for that radio. Therefore, we conclude that the Petition does not present persuasive evidence that it is reasonably likely that Petitioner would prevail in establishing that claim 6 would have been obvious in view of Jackson and Flammer. 25
IV. CONCLUSION For the forgoing reasons, we determine that the information presented in the petition does not establish that there is a reasonable likelihood that Petitioner would prevail on at least one alleged ground of unpatentability with respect to claims 5-7 and 9 of the 369 patent. IV. ORDER It is ORDERED that the petition for instituting inter partes review is not granted. 26
For PETITIONER: Robert C. Mattson, Esq. W. Todd Baker Monica S. Ullagaddi, Esq. Oblon, Spivak, McClelland, Maier & Neustadt, LLP CPdocketMattson@oblon.com CPDocketBaker@oblon.com For PATENT OWNER: Anthony S. Volpe, Esq. Ryan W. O Donnell Robert D. Leonard Volpe & Koenig, P.C. avolpe@vklaw.com rleonard@vklaw.com lb 27