UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`OTICON MEDICAL AB; OTICON MEDICAL LLC; WILLIAM
`DEMANT HOLDINGS A/S,
`Petitioner,
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`v.
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`COCHLEAR BONE ANCHORED SOLUTIONS AB,
`Patent Owner.
`__________
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`Case IPR2017-01018
`(Patent 7,043,040)
`__________
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`Record of Oral Hearing
`Held: July 11, 2018
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`Before JAMES B. ARPIN, BARBARA A. PARVIS, and AMANDA
`F. WIEKER, Administrative Patent Judges.
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`__________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`OTICON MEDICAL AB; OTICON MEDICAL LLC; WILLIAM
`DEMANT HOLDINGS A/S,
`Petitioner,
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`v.
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`COCHLEAR BONE ANCHORED SOLUTIONS AB,
`Patent Owner.
`__________
`
`Case IPR2017-01018
`(Patent 7,043,040)
`__________
`
`Record of Oral Hearing
`Held: July 11, 2018
`__________
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`Before JAMES B. ARPIN, BARBARA A. PARVIS, and AMANDA
`F. WIEKER, Administrative Patent Judges.
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`Case IPR2017-01018
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
`D. RICHARD ANDERSON, ESQ.
`Birch, Stewart, Kolash & Birch, LLP
`8110 Gatehouse Road, Suite 100E
`Falls Church, Virginia 22042
`703-205-8000
`dra@bskb.com
`
`ON BEHALF OF THE PATENT OWNER:
`
`LAURA M. BURSON, ESQ.
`Sheppard Mullin Richter & Hampton LLP
`333 South Hope Street, 43rd Floor
`Los Angeles, California 90071
`213-617-5527
`lburson@sheppardmullin.com
`
`
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`The above-entitled matter came on for hearing on Wednesday,
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`July 11, 2018, commencing at 1:30 p.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`P-R-O-C-E-E-D-I-N-G-S
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`1:28 p.m.
`JUDGE WIEKER: Good afternoon, everyone. This is an oral
`hearing for Case Number IPR2017-01018 to which IPR2017-01019
`has been consolidated, between Petitioner Oticon Medical AB, Oticon
`Medical LLC and William Demant Holding A/S, and Patent Owner
`Cochlear Bone Anchored Solutions AB.
`This proceeding concerns U.S. Patent Number 7,043,040.
`I am Judge Wieker. I am accompanied by Judge Parvis and
`Judge Arpin, with Judge Arpin appearing remotely.
`I would like to ask counsel for the parties to please introduce
`yourselves for the record, starting with Petitioner.
`MR. ANDERSON: Yes. Richard Anderson for the Petitioner
`Oticon Medical. I am joined by co-counsel Eugene Perez.
`JUDGE WIEKER: Thank you.
`And Patent Owner.
`JUDGE ARPIN: Counsel, Judge Wieker, I'd just like to ask
`counsel to step to the podium before you speak. If you speak away
`from the podium, I cannot hear you.
`MS. BURSON: Good afternoon, Your Honors, Laura Burson
`from Sheppard Mullin appearing on behalf of the Patent Owner
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`Cochlear. And also present with me today at counsel table is Bruce
`Chapman of Sheppard Mullin.
`JUDGE WIEKER: Thank you. And welcome to the Board.
`As we stated in our hearing order, each party will have a total
`of 45 minutes to present their argument. Petitioner will proceed first
`and may reserve rebuttal time.
`Patent Owner will then respond to Petitioner's case and may
`not reserve rebuttal time.
`Using any reserved time, Petitioner may respond to Patent
`Owner's case.
`I would like to remind the parties that this hearing is open to
`the public and a full transcript of the hearing will become part of the
`record. Also, we have received the parties Joint List of Objections to
`Demonstrative Exhibits, which was entered into the record as Paper
`47. We have taken these objections under advisement and do not plan
`on ruling on them during today's hearing.
`Moreover, the panel reminds the parties that demonstrative
`exhibits will be considered only to the extent they are helpful to the
`panel, articulate positions taken during today's hearing, and reflect
`arguments or evidence already made of record during the trial.
`Lastly, please bear in mind that Judge Arpin is attending the
`hearing by video. Please speak clearly and identify any demonstrative
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`exhibit by slide number to ensure clarity of the record and to ensure
`Judge Arpin can follow your presentation.
`With that, Mr. Anderson, would Petitioner like to reserve any
`rebuttal time?
`MR. ANDERSON: Yes. Petitioner would like to reserve 10
`minutes for rebuttal.
`JUDGE WIEKER: Okay. And, Mr. Anderson, when you're
`ready, you may begin.
`MR. ANDERSON: Thank you.
`Good afternoon, Your Honors, and may it please the Board,
`this consolidated proceeding involves six instituted grounds and nine
`dependent claims. The first four instituted grounds were reflected in
`the 1018 petition. These grounds rely on obviousness based on the
`Vaneecloo reference primarily.
`The second -- the last two instituted grounds were presented in
`the 1019 petition. These grounds assert anticipation of claims 1 and
`11 based on Hough, as well as obviousness of claim 12 as being
`applicable under Hough and Leysieffer. These grounds are
`summarized on Petitioner's demonstratives 2 and 3.
`After institution of trial, the Patent Owner did disclaim claims
`1 through 3 and 13. Claim 1 is a -- or was an independent apparatus
`claim. Independent claim 13 was an independent method claim. So,
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`as we stand here today there are no longer any method claims present
`in the ’040 patent. Instead, the only claims remaining are dependent
`claims 4 through 12, which depend either directly or indirectly from
`independent claim 1.
`So with that, I'd like to turn to the three embodiments of the
`’040 patent with reference to Figure 1 on Petitioner's demonstrative 5.
`Just as a, as a brief overview, the ’040 patent presents three
`figures directed to alternative embodiments. Figure 1 is the first
`embodiment, as you see here in demonstrative 5. And it illustrates an
`apparatus having five components:
`A fixture 3, which is implanted into the patient's skull bone;
`A spacer, a skin-penetrating spacer 4 -- or rather 11;
`A vibrator 1;
`Electronic circuitry 4;
`And a microphone 5.
`The apparatus is implanted on the patient's deaf side and
`vibrations are sent into the skull and, according to the ’040 patent,
`those vibrations end up at the patient's good ear on the right side. And
`we'll note that the ’040 patent provides no further illustration of the
`electronic circuitry 4. Obviously it's a very generally illustrated
`element and it is very generically described.
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`Because this embodiment relies on a spacer that penetrates the
`skin, we refer to this embodiment as being percutaneous.
`Turning to Petitioner's demonstrative 6, we can compare the
`basic elements of claim 1 to the configuration of Figure, of Figure 1.
`Claim 1 is directed to a bone-conducting bone-anchored hearing aid.
`And we have a circle here in demonstrative 6 showing the apparatus.
`Obviously, skull bone 2 is not part of the apparatus. That is merely
`what is intended to be acted upon by the apparatus.
`Turning to demonstrative 7, the claim recites two elements.
`The first element is a vibratory generating part. And we see that
`corresponds to generically illustrated element vibrator 1.
`Turning to demonstrative 8, the second component of claim 1
`is an implantable part, operative to mechanically anchor the vibratory
`part. And we can see here that the implantable part would correspond
`to the fixture 3, which is osseointegrated into the patient's skull,
`meaning there is some solid connection. We found that titanium is an
`appropriate material for achieving this osseointegration so that the
`device does not become dislodged during use.
`Turning to the second embodiment, Figure 2, this device is
`transcutaneous in the sense that the skin is not being pierced.
`We have this fixture 3 which is implanted into the patient's
`skull. We have the -- and that is part of the implanted part 8.
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`We also have external part 8 that includes a battery and a
`microphone 6.
`And, again, this embodiment, fixture 3, is being implanted on
`the patient's deaf side.
`And we can compare that to the third alternative, Figure 3.
`Here we have an external part 7 which is on the patient's deaf side.
`And it includes a microphone and a battery. And then we also have
`what's referred to as implanted part 8, which includes a rechargeable
`battery 10, and the fixture 3 for this osseointegration.
`Here the, the implanted part is on the patient's hearing side.
`So we're not relying on vibrations going from the deaf side to the
`hearing side. Instead, the signal from the microphone 6 after
`presumably some kind of processing is being sent by some
`unillustrated, undisclosed antenna as a radio signal to the implanted
`part 8.
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`So, I'd like to move into ground 1 at demonstrative 12. Again,
`claims 1 through 3 were canceled. We do have claims 4 through 5.
`Ground 1 relies on a combination of Vaneecloo and Carlsson.
`Claim 4 depends from claim 3, and simply states "wherein the
`hearing aid apparatus amplifies treble frequencies more than bass
`frequencies." It's a very general claim. In fact, the disclosure is very
`general. There is not a single disclosure of examples in terms of
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`specific frequencies, the actual amplification guidance, or even the
`relative amplification guidance. Again, it's a very general claim.
`Claim 5 merely adds that the treble frequencies have a
`frequency greater than 1 kilohertz.
`Demonstrative 13, Patent Owner asserts that claims 4 and, by
`extension, claim 5 should be construed as being limited to a bone-
`anchored hearing aid with frequency characteristics that have been
`specifically adapted to account for mechanics of the skull and, more
`specifically, to account for transcranial attenuation by amplifying
`treble frequencies more than base frequencies.
`Demonstrative 14. However, claims 4 and 5 do not even refer
`to transcranial attenuation, nor do they refer to mechanics of the skull.
`And I would also like to point out that we have embodiments 3 and
`embodiment 1. In 1, the implants, the implanted vibrator is on the
`deaf side. The other embodiment it's on the patient's hearing side.
`And there's no discussion at all in the ’040 patent of how the
`frequency characteristics of those two elements differ.
`I asked Dr. Rubinstein, Patent Owner's expert, about the
`element 8 in Figure 3, and he opined that even with this embodiment
`the treble frequencies are being amplified more than the bass
`frequencies. So, again, there's nothing specific that ties the language
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`of claims 4 and, by extension, of claim 5 to anything dealing with
`solving or addressing issues of transcranial attenuation.
`Moreover, with respect to demonstrative 15, Dr. Rubinstein
`has admitted that transcranial attenuation was a known phenomenon
`as of the critical date. And, moreover, transcranial attention was
`known to be frequency dependent. So the inventors of the ’040 patent
`certainly did not discover any issue of transcranial attenuation. Nor
`did they provide any solution to transcranial attenuation.
`And I asked Dr. Rubinstein about the lack of detail and
`disclosure in the ’040 patent, and I asked him, you know, what values
`would actually address transcranial attenuation. And he indicated that
`that will depend on the individual skull in question. So it's left
`entirely up to the person with ordinary skill in the art to determine the
`appropriate amplification characteristics of the bone-anchored hearing
`aid being used.
`With respect to demonstrative 16, the primary reference to
`Vaneecloo is a publication describing some clinical work involving
`two patients suffering from single-sided deafness, which is also
`referred to in the briefing as SSD. Vaneecloo recognizes the problem
`with single-sided deafness. The problem is that the higher-pitched
`sounds are being attenuated, resulting in loss of binaural hearing.
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`Vaneecloo also recognizes that this isn't the case for the low
`frequencies. In fact, the low frequencies are able to reach the patient's
`ear with virtually no attenuation. So we have in Vaneecloo, a
`recognition that attenuation of the high frequencies is the problem, or
`a problem with patients suffering from SSD. And Vaneecloo
`describes a solution for the problem using the Baha to transmit sound
`captured on the deaf side, through the patient's skull, to the functional
`ear.
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`A quote from Vaneecloo, Exhibit 1003, page 411, left column,
`"To remedy this major disability we have decided to implant on the
`anakusis side," meaning the deaf side, "a hearing aid anchored directly
`to the bone, designed to capture and transmit transcranially to the
`remaining functional ear the information perceived from the side of
`the anakusis."
`So I'm just going to move over to demonstrative 18, which is a
`quote. "We found that," a quote from Vaneecloo, "We found that
`amplification of the high-pitched sounds captured on the anakusis
`side, and perceived by transcranial route by the contralateral ear,"
`meaning the functioning ear, "allowed for a significant rise in sound
`perception thresholds of frequencies between 1,000 hertz and 4,000
`hertz."
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`Vaneecloo concludes, and I'm quoting from page 415 of
`Vaneecloo, "We believe that this first approach of this new device
`placement is very interesting. It must continue."
`So, the relevant teachings of Vaneecloo are not limited merely
`to the two patients involved in the study, but in fact they extend to
`other patients suffering from this same disability. And, in fact, the
`product literature from the Baha, which is also referred to as the Baha
`Classic or the Baha Classic 300, indicates the product literature, as
`evidenced by Exhibit 1123, describes the suitability of -- I'm sorry.
`JUDGE WIEKER: Sorry. Does Vaneecloo say which model
`of the Baha? Do they do that anywhere?
`MR. ANDERSON: Your Honor, Vaneecloo does not.
`JUDGE WIEKER: Okay.
`MR. ANDERSON: It refers to the Baha. And we have relied
`on Carlsson.
`JUDGE WIEKER: Right.
`MR. ANDERSON: Because of that issue with Vaneecloo.
`Now, in terms of the labels there is discussion of different models.
`Carlsson refers to the HC-200. There's testimony regarding that this
`device is later, to differentiate from later devices it was called the
`Baha Classic.
`JUDGE WIEKER: Okay.
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`MR. ANDERSON: Or the Baha Classic 300. But we're
`essentially talking about the same device.
`JUDGE WIEKER: Okay, thank you.
`MR. ANDERSON: Sure.
`So, again, Exhibit 1123, which is the Baha Classic data sheet,
`is then talking about the same device that was available to Vaneecloo,
`touts the applicability of this device for treating SSD.
`With respect to demonstrative 20. A little bit ahead. This is
`an illustration, Your Honor, of the Baha from Carlsson. This is a
`secondary reference. And, again, Vaneecloo was a clinical study, it
`did not illustrate the device. You can see that the device in, the Baha
`device here showing the HC-200, has the same basic configuration of
`the device in Figure 1 of the ’040 patent.
`You have a titanium fixture 3 which is implanted in the
`patient's skull. And in the case of Vaneecloo we're describing
`implanting that on a patient's deaf side.
`We also have an abutment which corresponds to this spacer
`element. And that's coupled to the processor 8, which again is labeled
`here the HC-200, but also referred to as the Baha Classic or the Baha
`Classic 300.
`Demonstrative 21, we have an exploded view that shows kind
`of the internal parts of this device, including volume control, tone
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`control, batteries, amplifier, the transducer. Transducer 4 corresponds
`to what's generating the vibration. But the amplification
`characteristics of this device are not just based on the transducer, it's
`also based on the electronics that is driving the transducer.
`To further illustrate characteristics of this device I'd like to
`skip slightly ahead to demonstrative 25, which is from Exhibit 1125,
`which is titled "Baha Classic Instructions for Audiology Assistants."
`So this, this document explains protocols for fitting patients with this
`device.
`You can see at the top of the device you have the gain control
`which controls the overall gain or output level of the device.
`You can see 6, element 6 where this device would attach
`indirectly or directly to the abutment.
`We also have this tone control 9, and it's labeled H, and you
`see that there's a min setting and a max setting. It's a potentiometer
`where you can vary the bass characteristics of the Baha Classic. If
`you set H to max, you're maximizing the high frequencies. If you're
`setting it to min, then you're emphasizing more the bass.
`But these instructions describe to try different settings. See
`which setting provides the best result for this particular patient. And
`this is nothing new with hearing aids. Hearing aids fundamentally are
`an interactive -- fitting a hearing aid is an interactive process for
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`finding the best solution to the patient. There is no “one size fits all.”
`Each patient is different.
`Dr. Rubinstein said the skull bone of the patient varies from
`patient to patient. So we need to adapt the device to find the best
`solution.
`I'm just going to backtrack one slide to demonstrative 24. And
`here's some output characteristics of the Baha Classic 300. And I
`know this is maybe a bit confusing but it shows the output
`characteristics at different settings based on adjustments to this tone
`control, this potentiometer. And, in particular, we can look at OFL 60
`N, H max, where here you want more treble relative to the bass.
`If we look to the right side of the chart we see the frequencies
`for the characteristics above 1 kilohertz, which is the, we're looking at
`more the treble.
`The left side we're looking more at what happens for the bass
`frequencies. And the bass frequencies are still being amplified to
`some degree, but we do see a substantial drop-off in the bass
`frequencies, particularly when we get down to under 500 hertz. We
`can compare that to the treble frequencies where we see even at the
`2,000 kilohertz to 4,000 kilohertz range the output level is still
`maintained at a high level, certainly rather, certainly as compared to
`the bass.
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`JUDGE WIEKER: And you're saying there is a relative
`amplification difference between treble and bass because of the level
`of H min or H max that's identified in that legend?
`MR. ANDERSON: We can. We can, Your Honor, we can
`see the effect of change in the potentiometer. Now, it doesn't show
`the in-betweens, it's just showing some, some basic levels.
`And it's also showing the top line where you set a different
`input, a different input level. And also, the lower line it drops off
`quickly. There you're monitoring distortion. I don't know if that's
`clear. You have that, the line that pretty much drops down past 500
`hertz. That is THD, that's total harmonic distortion. So that's a
`measure of distortion, it's not a measure of the output force level of
`the Baha device.
`JUDGE WIEKER: Okay. And I can ask a similar question
`going back to Carlsson Table 2. You cited this table in your briefing.
`And I'd just like you to explain a little to me how I can tell the
`difference in relative amplification in Table 2. It's on page 13 of the
`Carlsson exhibit, Exhibit 1007.
`MR. ANDERSON: Yeah, this is similar. The labels are
`different here. But the third line down, that's the, it's a treble setting.
`So you're looking at the treble setting at the, at 500 hertz, which is a
`bass frequency, that there is a relative attenuation of 6 dB.
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`And at the higher, at the higher frequencies you're not
`attenuating. So you're emphasizing the treble over the bass.
`Now, Patent Owner argues that, well, attenuation isn't
`amplification. But, again, we're talking about filtering. There's
`nothing in the ’040 patent that describes the electronic circuitry as not
`providing any kind of filtering. That's the way frequencies are
`adjusted traditionally. The device is still amplifying the frequency;
`it's just doing it less so.
`JUDGE WIEKER: So, in the Baha product literature,the tone
`control is referred to as a “bass cut.” For example, I'm looking at
`Exhibit 1124. And when you're referring to bass cut do you believe
`there's a way to know how the treble is being amplified relative to the
`bass, or do we just know that bass is being reduced?
`MR. ANDERSON: Well, the H cuts specifically, I mean you
`can compare the line and see specifically what's happening to the bass.
`And there is some also effect on the treble because we see to the right
`that the treble levels actually are leveling off. So I can't say that based
`on this that there's no effect on the treble frequencies. In fact, it
`appears from the graph that there is an effect.
`But what we do know for certain is, based on H max; you're
`dialing back the bass.
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`And you're correct, Your Honor, that Exhibit 1124 is relevant
`because it tells you exactly this is how you do it when you're
`providing, when you're trying to provide the best solution for the
`individual patients.
`I'd like to move really just briefly to the second grounds
`dealing with claim 6, 7, 9. Here we brought in an additional
`reference, Leysieffer, which is Exhibit 1009, which has an
`implantable—I'm referring to the demonstrative 31—where we have
`an implantable type hearing device 1, that includes the A-to-D
`converter, it includes digital signal processing, describes various
`things that you can do with the digital signal processing, including
`feedback suppression, feedback reduction. We can update the
`parameters of the device based on the needs of patients. We can
`suppress noise.
`So in claims 6, 7, and 9. 6 and 7 -- 6 just requires an A-to-D
`converter; 7 refers to digital signal processing means which Patent
`Owner has asserted is just a digital signal processor.
`These claims don't specify at all what's being done with those
`devices. Moreover, there is rationale for applying digital signal
`processing in a Baha type device. We believe that the Board picked
`up on this in their institution decision with respect to claim 6,
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`acknowledging the benefits of digital signal processing. We think the
`record fully supports that view.
`Claim 9 refers to adaptive feedback cancellation. There's no
`details in the ’040 patent regarding adaptive feedback cancellation.
`The ’040 patent relies entirely on technology that was in the public
`domain.
`We know from Leysieffer this technology existed. We have
`rationale to apply it in the Baha to achieve greater gain margin.
`There's nothing unexpected about applying active feedback
`suppression to a Baha type device.
`JUDGE ARPIN: Counselor, with regard to claim 7, do you
`agree that we have to construe that term "digital signal processing
`means" before we can apply any art to that claim?
`MR. ANDERSON: Your Honor, it's a, it's a bit of loaded
`question because I don't want to get into § 112(f)/(6) indefiniteness
`arguments. I think that we made our position clear in the petition
`saying that, well, it sounds like means-plus-function language, but for
`purposes of prior art analysis it's appropriate to recognize that all is
`disclosed to be some kind of digital signal processor.
`In other words it's our position that the Patent Owner should
`not be shielded from invalidity analysis by lack of disclosure. We
`believe that it is entirely appropriate for the Board to consider the
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`103issues, obviousness of claim 7, by adopting the claim construction
`that's been advanced by Patent Owner.
`JUDGE ARPIN: Counselor, they may not be shielded from §
`112 analysis everywhere. They just may be shielded from it here
`because we have no authority to consider § 112. You agree with that,
`don't you?
`MR. ANDERSON: I do agree, Your Honor, yes.
`JUDGE ARPIN: Does the phrase "digital signal processor"
`appear anywhere in the patent? I haven't been able to find it.
`MR. ANDERSON: Your Honor, I'm going to give a qualified
`answer in that I don't believe so. The Patent Owner has presented
`testimony that that's how it would be understood by a person. I think
`that's the best we have.
`And maybe, maybe counsel, if you pose the same question
`maybe counsel for Patent Owner will have a different answer.
`JUDGE ARPIN: Are you aware of whether or not a digital
`signal processor was referred to in the prosecution history?
`MR. ANDERSON: Standing here today, Your Honor, I'm not
`-- I don't know. I can't answer that question. I don't recall that it was.
`JUDGE ARPIN: Thank you, counsel. Please continue.
`MR. ANDERSON: But, again, I want to make clear that my
`answer is qualified in the sense that the examiner may have applied --
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`you know, these were not the basis for patentability. The basis for
`patentability were the independent claims that had been disclaimed
`perhaps the examiner applied something that said, okay, this has a
`digital signal processor. I just, I don't recall specifically.
`JUDGE ARPIN: Thank you. Please continue.
`MR. ANDERSON: I would like, in view of time, I'd like to
`skip forward a bit to the grounds of the 1019 petition because there we
`are talking about some different technology. And I think you get the
`sense for the issues relying on Vaneecloo. So I'd like to skip ahead to
`demonstrative 45.
`And, again, the Board picked up on this in their institution
`decision is that Figure 2 is relevant for considering how claim 11
`should be construed. Claim 11 refers to "wherein power to the
`internal part is transmitted from the external part from induction."
`This language of claim 11 shows up in the description, albeit a very
`limited description, of Figure 2.
`We have the Hough device which is referred to as the ABC, or
`Audiant Bone Conductor. Exhibit 1012, which was originally
`presented in the 1019 petition as Exhibit 1112, so the second digit is
`different but it's the same exhibit, from page 1 of that exhibit Hough
`states that "the Xomed Audiant Bone Conductor utilizes
`transcutaneous inductive electromagnetic energy from an external
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`processor to cause vibrations of an implanted osseointegrated rare
`earth magnet screwed into the temporal bone."
`Moreover, Hough did mention using this device in patients
`with SSD.
`Patent Owner's argument is one of claim construction. And
`more specifically, Patent Owner's argument of power requires that it
`be electric power and that induction required electromagnet induction
`for inducing a current, electrical current in the internal part.
`But if we look at Figure 2, demonstrative 46, and again this,
`this power language and induction language is used to describe Figure
`2, the part, implanted part 8 has no battery, it has no coil for charging
`the battery, it has no electronic circuitry that would be using this
`power. So we believe that the Patent Owner's position is entirely
`inconsistent with the intrinsic record. And the intrinsic record should
`control.
`Moreover, in the original Swedish language filing of the, both
`the Swedish priority documents, we submitted a partial translation as
`Exhibit 1122, as well as a partial translation of the PCT International
`application, which was filed in the Swedish language. And that is
`considered a U.S. filing. This is a, the ’040 patent is a national phase
`of that Swedish language international application.
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`The Swedish documents actually use the word "energi" or
`"energin," which is more accurately translated to “energy.” So this,
`this attempt to distinguish energy from power we think is highly
`misleading, particularly in the context of Patent Owner's own
`disclosure.
`And once you get past these claim construction issues, we
`believe the reading of the claim on what's described in Hough, the
`ABC device, is rather clear. In fact, there's not a lot of argument
`about how the device operates. It really comes down to these claim
`construction issues.
`And, finally, I'd like to refer to demonstrative 50, which is the
`last grounds where we've pulled in Leysieffer for teaching using a
`rechargeable battery in an implanted type hearing aid. And it's the
`same Leysieffer reference that we've applied to claims 6, 7, and 9.
`Leysieffer has a rechargeable battery 60, and it describes the things
`you can do once you power the internal components.
`The claim 12 most relates, or it does relate to this alternative
`embodiment in Figure 3. This is the only embodiment that mentions a
`rechargeable battery 10.
`I should note that there is some kind of disconnect between the
`dependency of claim 12 to claim 1, because claim 1 talks about
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`sending the vibrations from the deaf side to the hearing side. Here,
`Figure 3 is not doing that. But that's, that's the way it was claimed.
`JUDGE WIEKER: Is it -- I'm sorry, before you move on -- is
`it your position that claim 12 covers the embodiment in Figure 3?
`MR. ANDERSON: It's the only one that could arguably cover
`it. Let me put it that way.
`JUDGE WIEKER: Okay.
`MR. ANDERSON: And, again, we have Leysieffer that
`teaches rechargeable batteries, obviously, in 2000 were well known.
`We cite a reference. Dr. Popelka at length provides his analysis of
`why it would have been beneficial to include a rechargeable battery in
`an Audiant-type ABC device, powering electronics in that --
`providing electronics that can be powered by that internal battery.
`And for that I can refer you to Dr. Popelka's declaration, the
`declaration that was submitted in the 1019 petition. So it would have
`been Exhibit 1102, paragraphs 103 through 113.
`Patent Owner, their analysis essentially disregards the reliance
`on Leysieffer and asserts, well, the ABC didn't have, didn't need a
`battery because it has no electronics. But a combination is based on,
`is based on the teachings of not only the ABC, but also Leysieffer.
`We believe this is an improper attack on the references
`individually. Proper obviousness analysis requires that we look at the
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`combination, in particular the combination as discussed in the petition
`and as discussed in Dr. Popelka's declaration that I referred to.
`And with that, Your Honors, I'd like to reserve what's left of
`my time for rebuttal.
`JUDGE WIEKER: Thank you.
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