“Notably the UMTS measurement information being reported is different from the typical GSM measurement information being reported.”
“For example, a typical GSM MS continuously measures and reports (on the [uplink]) signal strength (dBm) and quality (Bit Error Rate or BER) of its own cell, and signal strength of the Broadcast Control Channel (BCCH) carriers of the neighboring cells. On the other hand, instead of measuring signal strength in a UMTS cell, a UMTS MS measures and reports (on the [uplink]) the Code Energy-to-Interference Ratio (Ec/I 0) or Received Signal Code Power (RSCP in dBm) of the UMTS cell.”
“At step 106, the MS 22 compares the converted UMTS signal strength values (derived from step 104) with the set of stored GSM signal strength values (derived from step 102b). The MS 22 then retrieves a predetermined number (e.g., 6, or the maximum number of neighboring cells included in a GSM measurement report) of the "best" measurement values from step 106 to be reported in a measurement report to the GSM BSC 14. At step 108, for this exemplary embodiment, the MS 22 sends a GSM-type measurement report for receipt at the BSC 14 (via BTS 16) on the GSM SACCH over the radio air interface 23. The GSM-type measurement report can include signal strength information about UMTS neighboring cells.”
“Alternatively, at step 106, instead of comparing the converted UMTS measurement values with GSM measurement values, the MS can convert each stored UMTS measurement value to an appropriate GSM signal strength value, and select each converted UMTS measurement value that exceeds a predetermined signal strength threshold value, for reporting to the GSM BSC 14.”
“[…] the UMTS measurement information from the MS 22 can be converted to a GSM measurement format and sent to the GSM BSC 14 on the SACCH for use in making handover decisions. Consequently, since the SACCH does not operate in a stealing mode, the quality of the speech and on-line data being conveyed between the MS 22 and the GSM network 10 will not be diminished due to the use of speech frames for measurement signalling.”
“using normal measurement reporting, measurement values for a maximum of 6 neighbouring cells can be reported. With enhanced measurement reporting, a maximum of 18 neighbouring cells can be reported, based on a 21 octet measurement report. As a result of the indexing, however, unless all these 18 neighbouring cells are amongst the first cells in the indexed list, the additional bits used for each non-reported cell (as for the 1st and 3rd neighbours in the example above) will reduce the number of bits available for measurement values. It is more usual, therefore, for the enhanced measurement report to include measurements for between 12 and 15 neighbouring cells.”
“46. The following points (at least) need to be borne in mind here: (a) The so-called ‘offset’ is of course simply an artefact of two different mapping processes. We have seen how the decision on the UMTS mapping process, and in particular on the matters which give rise to the ‘offset’ (i.e. the value reported as 0 and the resolution) were arrived at independently for technical reasons in UMTS reporting, in particular the decision as to which values might be detectable and useful for the network to know. [Townend 1 196-8, not disputed by Dr Thomas and which he accepted in XX T/1/p112-116]. They had nothing to do with the GSM mapping or values. We do not know how or why the decision on the GSM values was taken – it seems to be lost in the mists of time [T/1/p109-110] – but obviously it had nothing to do with UMTS either. On the face of it, it would be astonishing if this process, arrived at for completely different reasons (which could easily have given rise to a different ‘offset’), had thrown up, serendipitously, the mystery ‘equation’ of the Patent [p3 line 55]. Dr Thomas would only say it was ‘not entirely astonishing’ [XX T/1/p122] but his reasons made little sense. (b) Mr Townend’s evidence was very clear in his first report (para 211): ‘the encoding of UMTS measurement values described by the Standard…constitutes an independent encoding of RSCP values to a 0-63 range of positive integers which bear no relationship of functional equivalence to any GSM measurement values…the fact that the same integer value may represent (in each separate scheme) signal strength values in dBm which are, in some circumstances, ‘offset’ by 5dBm is coincidental and not the result of a conversion’. He did not resile from any of that in XX. (c) Neither Unwired nor Dr Thomas ever attempted to establish by technical evidence, experiment, published or unpublished data, articles or reports, that the mapped values in RXLEV had any functional equivalence to the mapped values in RSCP. This despite the fact that Dr Thomas had claimed that a ‘statistical model’ could be created which would establish how RSCP and RXLEV measurements could be usefully related such that a comparison could be made in terms of connection quality of rival cells [¶35 Reply Report]. In XX Dr Thomas claimed that he chose not to look for the kind of information which might have been used to test his proposition because he was not directed to do so [XX T/1/p93 line 13]. He accepted that some modelling could have been carried out by Universities and other organisations to seek to prove the case [XX T/1/p94 lines 2-8], but that had apparently not been done either. (d) Neither did Unwired or Dr Thomas ever seek to establish that any comparability that might exist in any part of the range of measured values was caused or created by the process of mapping which is said to be the act of ‘conversion’ (as opposed to being inherent in the measured numbers themselves). This would have required some form of test indicating that the ‘offset’ of 5dB made the measured values comparable, or at least more comparable than they were in the first place. It was plain from Dr Thomas’ evidence in XX that he did not believe for a moment that this was the case: at no point in the XX on this subject did he suggest that he believed that 5dB made the numbers any more comparable than they were in the first place. See XX T/1/p124 lines 18-24, T/1/p126 lines 16-24, T/1/p127 line 17 – 128 line 2. (e) It would have been utterly inconsistent for Dr Thomas to claim any significance for the 5dB offset, given his evidence about the effect of the SCALE parameter which was that mapped values of RXLEV 10dB apart were still ‘good enough’ to be treated as comparable with the same mapped value of RSCP – Reply Report para 81. (f) The point in (d) and (e) above is all the more damaging to Unwired’s case because they aver that the ‘raw’ numbers were entirely non-comparable before the mapping process. See XX T2/234 lines 5-8. Apparently, just by adding 5dBm to one number, they become comparable. Adding another 10dBm (see below on SCALE) however does not make them non-comparable again, rather the comparison is ‘simply thrown a bit off’ [Thomas Reply Report para 81]. (g) At some points it seemed to be part of Unwired’s case that by fixing lowest detectable measurement as zero in each mapping process, it may be assumed that at least your very lowest mapped values are in some way comparable. This does not work either, whether as a matter of logic or on the evidence in this case: (i) As a matter of logic, even if 0 did in each case represent the lowest detectable signal, that does not mean that there is any comparability between connection quality of signals at the lower end of the scale. Even assuming that the 0s were in some way ‘comparable’ in that both represented essentially no detectable signal, we have completely different technologies here. There is no basis in the evidence for assuming that a very low level signal in GSM (say), reported 1, 2 or 3 would represent the same connection quality as a very low signal reported as the same numbers in UMTS (where it could be overwhelmed by noise). (ii) In fact, 0 does not represent the lowest measurable RSCP in UMTS. It will be recalled that the lowest value of RSCP being reported to the UMTS network is in fact -120 (mapped for reporting to UMTS as -5). (iii) There is of course no evidence as to how the lowest reported number in GSM was arrived at. We therefore cannot assume that it actually represents the lowest detectable measurement anyway.”
“47. … They [Unwired Planet] say, in effect, simply ‘there is a form of comparison here, therefore the mapped values must be comparable in the sense of the Patent.’ No other point was put to Mr Townend at all on this topic, and his technical evidence on the actual non-comparability of the values was essentially unchallenged. 48. The case based on Priority Level 4 (which is not part of the standard said to infringe, but only to be evidence that a conversion has taken place) is entirely flawed: (a) We have no idea, let alone any evidence, of what thought process the setters of the Standards actually went through when agreeing Priority Level 4. (b) The ranking between RXLEV and RSCP in Priority Level 4 is not in fact a straight comparison, because the values are treated differently. You do not pick simply on the basis of the higher measured value. RSCP can only be reported ahead of RXLEV if the Ec/Io value in the cell is above a threshold set by the network. No such second threshold is applied to the RXLEV value. This is clearly inconsistent with the idea that the Standards setters considered a comparison to be inherently indicative of relative connection quality. (c) Some predictable form of arbitration between neighbouring cells in different RATs plainly had to be used at this stage in the process [Thomas XX T/1/151/lines 5-10] [Townend XX T/3/p394-401]. This particular method would appear to be easy to implement, and has the benefit that it will always pick the best remaining cells from within at least one and probably both RATs. See Thomas XX 151-153. Since the best cells will be expected to have been reported already at Priority Levels 1, 2 and 3, it may well be that the setters of the Standards are unlikely to have been too bothered about the potential remaining slots. (d) As Mr Townend made clear on a number of occasions, the purpose of reporting the lower level cells in the remaining slots is not to provide a genuine ‘contender’ for handover, but rather to provide further information and ‘context’ to the BSC which will inform its strategy both for the MS in question and other mobiles. It is therefore false to assume that the ranking process must be driven by a belief that one cell has a ‘better’ connection quality than another. See e.g. T/3/388-390. (e) Very importantly, the scheme in Priority Level 4 cannot tell us anything about element (b) of the definition of ‘conversion’ discussed above – i.e. the causative element. We know that the ‘raw’ data prior to mapping already happened to comprise a similar range of numbers in RXLEV and RSCP. The ‘mapping’ process was also very similar. Even on Unwired’s best case, all that Priority Level 4 could be said to indicate is that the mapped numbers can for some purposes be treated as comparable ‘on a rough and ready basis’ for taking decisions as to reportability. But it cannot indicate that this comparability has been brought about or even improved by the process of mapping. The original numbers may have been just as comparable, or even more comparable. (f) The system at Priority Level 4 involves the use of ‘XXX_REPORTING OFFSET’ (see our opening skeleton at 145). If one looks at the mechanism as a whole, it is providing for the network to set up its own bespoke algorithm for favouring UMTS or GSM cells. See Townend XX 3/398. It is not depending on or assuming any kind of fundamental comparability. Unwired seem to be contending that the existence of the offset somehow depends on or proves an underlying ‘comparability’ between the numbers, but this is plainly not so, either as a matter of logic or reality. See Thomas XX T/1/p144-145. See also Townend XX T/3/p395 to 411. (g) Priority Level 4 does not strip out the effect of SCALE which would be necessary if it was intending a proper comparison. (h) There is no evidence in any T-doc or anywhere else that Priority Level 4 was based on an assumption that the numbers were comparable. It is notable that in Priority Level 4, the words ‘best’ and ‘strongest’ which appear in relation to the comparisons taking place at Priority Levels 1, 2 and 3 (where the values are genuinely comparable as within a RAT) are not used. See Townend XX T/3/p398 lines 14-22. (i) In the Later Standard any idea of a direct mathematic comparison of the reported values was dropped altogether, which suggests that it was never thought to be useful. Instead the comparison was made between the extent to which the cells had beaten the individual threshold set for their own RAT. 49. We submit that there is no evidential basis for finding that the ‘mapping’ of RSCP in the Standards amounts to a conversion within the meaning of the claim.”
“Ambiguity is no longer a ground of invalidity. That being so, there is a heavy onus upon the relevant Patent Office to ensure that obscure claims are not allowed. Failure to carry out that duty results in an infringement of a fundamental right of the public – to know what they are prevented from doing by a monopoly granted by the State. I believe that Jacob J is right and that despite the fact that lack of clarity if no longer a matter that results in a patent being invalid, it can result in the patentee being unable to establish infringement. If you cannot define the invention claimed, you cannot conclude that it is being used.”
“The lack of clarity does not merely create a fuzzy boundary between that which will work and that which will not. It makes it impossible to work the invention at all until one has found out what ingredient is needed.”
“In the present case, however, the choice of uEPO has nothing to do with making the invention work. It is simply a criterion against which one tests whether the rEPO falls within the claims. The very concepts of ‘success’ or ‘failure’ seems irrelevant to the choice of uEPO. What counts as ‘success’? Ex hypothesi the skilled person does not know in advance whether any given uEPO will bring his rEPO within the claim or not. From the point of view of success or failure, one is as good as another. All the skilled man can do is try to guess which uEPO the patentee had in mind and if the specification does not tell him, then it is insufficient.”
“The specification does not contain sufficient directions as to the meaning of “conversion”
“The question of obviousness must be considered on the facts of each case. The court must consider the weight to be attached to any particular factor in the light of all the relevant circumstances. These may include such matters as the motive to find a solution to the problem the patent addresses, the number and extent of the possible avenues of research, the effort involved in pursuing them and the expectation of success.”