Trials@uspto.gov
`571-272-7822
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`Paper 74
`Entered: April 2, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
` 1964 EARS, LLC,
`Petitioner
`
`v.
`
`JERRY HARVEY AUDIO HOLDING, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01091
`Patent 8,925,674 B2
`____________
`
`
`
`
`Before BRIAN J. McNAMARA, JOHN F. HORVATH,
`and AARON W. MOORE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`ORDER ON MOTION TO AMEND
`35 U.S.C. § 316(d) and 37 C.F.R § 42.121
`
`

`

`IPR2017-01091
`Patent 8,925,674 B2
`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`INTRODUCTION ................................................................................ 1
`A.
`Background ................................................................................ 1
`B.
`Related Matters .......................................................................... 2
`C.
`The ’674 Patent .......................................................................... 3
`D.
`Illustrative Claims ...................................................................... 7
`E.
`Evidence Relied Upon ................................................................ 9
`F.
`Grounds of Unpatentability Instituted for Trial ......................... 9
`ANALYSIS ........................................................................................ 10
`A.
`Claim Construction .................................................................. 11
`B.
`Cited Art ................................................................................... 13
`1.
`Harvey ’806 ................................................................... 13
`2.
`Prakash ........................................................................... 15
`3.
`Saggio ............................................................................ 16
`4.
`Dahlquist ........................................................................ 17
`Anticipation by Saggio ............................................................. 19
`C.
`D. Obviousness Based On Saggio Alone ...................................... 19
`1.
`Claims 1 and 9 ............................................................... 20
`a. High and Low Audio Drivers .............................. 20
`b. Acoustical Timer and Phase Correction .............. 21
`Claim 2 ........................................................................... 25
`Claims 3 and 11 ............................................................. 26
`Claim 4 ........................................................................... 27
`Claims 5 and 14 ............................................................. 27
`Claim 10 ......................................................................... 29
`Claim 17 ......................................................................... 29
`Claim 18 ......................................................................... 30
`Claim 20 ......................................................................... 31
`
`2.
`3.
`4.
`5.
`6.
`7.
`8.
`9.
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`Patent 8,925,674 B2
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`
`E.
`
`Obviousness of Claims 6–8, 15, and 16 in
`View of Saggio and Prakash .................................................... 31
`1.
`Claims 6, 7, and 15 ........................................................ 31
`2.
`Claim 8 ........................................................................... 34
`3.
`Claim 16 ......................................................................... 34
`Obviousness of Claims 1–5, 9–11, 13, 14, 17,
`18, and 20 in View of Saggio and Dahlquist ........................... 34
`G. Obviousness of Claims 6–8, 15, and 16 in
`View of Saggio, Dahlquist, and Prakash.................................. 36
`H. Anticipation by Harvey ’806 .................................................... 37
`1.
`Claims 1 and 9 ............................................................... 37
`a. High and Low Audio Drivers .............................. 37
`b. Acoustical Timer and Phase Correction .............. 38
`Claims 2 and 10 ............................................................. 41
`2.
`Claims 4 and 13 ............................................................. 41
`3.
`Claims 5 and 14 ............................................................. 42
`4.
`Obviousness in View of Harvey ’806 Alone ........................... 43
`1.
`Claims 3 and 11 ............................................................. 44
`2.
`Claim 17 ......................................................................... 45
`3.
`Claim 18 ......................................................................... 45
`4.
`Claim 20 ......................................................................... 46
`Obviousness in View of Harvey ’806 and Prakash ................. 46
`1.
`Claims 6, 7, and 15 ........................................................ 46
`2.
`Claim 8 ........................................................................... 48
`3.
`Claim 16 ......................................................................... 49
`Claims Added After SAS ......................................................... 49
`1.
`Claim 12 ......................................................................... 50
`2.
`Claim 19 ......................................................................... 52
`3.
`Claim 21 ......................................................................... 53
`
`K.
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`F.
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`I.
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`J.
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`IPR2017-01091
`Patent 8,925,674 B2
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`
`2.
`
`L. Motion to Amend ..................................................................... 54
`1.
`Obviousness of Proposed Claims 22
`and 30 in View of Harvey ’806 ..................................... 57
`Obviousness of Proposed Claims 22
`and 30 in View of Saggio .............................................. 57
`Patent Owner Arguments ............................................... 58
`3.
`Conclusion Regarding the Proposed Claims ................. 61
`4.
`Petitioner’s Motion to Exclude ................................................ 61
`M.
`Patent Owner’s Motion to Exclude .......................................... 63
`N.
`Constitutionality ....................................................................... 63
`O.
`III. CONCLUSION .................................................................................. 64
`IV. ORDER ............................................................................................... 64
`
`
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`iii
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`IPR2017-01091
`Patent 8,925,674 B2
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`
`I.
`
`INTRODUCTION
`
`A.
`
`Background
`1964 Ears, LLC (“Petitioner”) filed a Petition requesting an inter
`partes review of claims 1–21 of U.S. Patent No. 8,925,674 B2 (Ex. 1001,
`“the ’674 patent”). Paper 1 (“Pet.”). Jerry Harvey Audio Holding, LLC
`(“Patent Owner”) filed a Preliminary Response. Paper 7 (“Prelim. Resp.”).
`
`On October 3, 2017, we instituted an inter partes review of claims 1–
`11, 13–18, and 20 on several grounds of unpatentability. Paper 8 (“Inst.
`Dec.”), 62–63. Patent Owner then filed a Patent Owner Response (Paper 20,
`“PO Resp.”) and Petitioner filed a Reply (Paper 22, “Pet. Reply”).
`Following the Supreme Court’s decision in SAS Inst., Inc. v. Iancu,
`138 S. Ct. 1348 (2018), we modified the Institution Decision to include
`review of all claims on all grounds presented in the Petition. See Paper 43.
`Petitioner then requested, and was granted, adverse judgment with respect to
`the anticipation ground based on Saggio. See Paper 52. Patent Owner filed
`a Supplemental Response regarding the added claims (Paper 57, “Supp.
`Resp.”), Petitioner filed a Supplemental Reply (Paper 58, “Supp. Reply”),
`and Patent Owner filed a Supplemental Sur-Reply (Paper 64, “Supp Sur-
`Reply”).
`Patent Owner has also filed a Contingent Motion to Amend (Paper 21,
`“Mot. to Amend”), Petitioner filed an Opposition (Paper 23, “Mot. to
`Amend Opp.”), Patent Owner filed a Reply (Paper 31, “Mot. to Amend
`Reply”), and Petitioner filed a Sur-Reply (Paper 33, “Mot. to Amend Sur-
`Reply”).
`Patent Owner also filed a Motion for Observations (Paper 35), and
`Petitioner filed a Response (Paper 41).
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`1
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`Patent 8,925,674 B2
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`
`Petitioner filed a Motion to Exclude (Paper 37), Patent Owner filed a
`Motion to Exclude (Paper 65), and each party filed an Opposition and a
`Reply (Papers 40, 42, 67, 69).
`An oral hearing was held on December 17, 2018, and a transcript of
`the hearing is included in the record. Paper 73 (“Tr.”).
`
`The Board has jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has shown by
`a preponderance of the evidence that claims 1–11 and 13–20 of the ’674
`patent are unpatentable. We further determine that claims 12 and 21 of the
`’674 patent have not been shown to be unpatentable.
`
`B.
`
`Related Matters
`Petitioner and Patent Owner identify Jerry Harvey Audio Holding,
`LLC et al. v. 1964 Ears, LLC (WA) et al., 6:16-cv-00409-CEM-KRS (M.D.
`Fla.) as a related matter involving both parties and the ’674 patent. Pet. 2,
`Paper 5.
`Patent Owner identifies IPR2017-01084, involving Patent No.
`8,567,555 B2, and IPR2017-01092, involving Patent No. 9,197,960 B2 as
`related matters. Paper 5.
`Petitioner identifies Jerry Harvey Audio Holding, LLC et al. v. 1964
`Ears, LLC et al., 6:14-cv-02083-CEM-KRS (M.D. Fla.), involving both
`parties and Patent No. 8,897,463 B2, as a related matter. Pet. 3. Petitioner
`also identifies as a related matter IPR2016-00494, involving Patent No.
`8,897,463 B2. Id.
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`IPR2017-01091
`Patent 8,925,674 B2
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`C.
`
`The ’674 Patent
`The ’674 patent is titled “Phase Correcting Canalphone System and
`Method.” It describes how there are many different types of personal
`listening devices, such as headphones, earbuds, and canalphones, and that
`canalphones are substantially smaller than a person’s outer ear and differ
`from earbuds in that they are “placed directly in one end of the ear canal.”
`Id. at 1:22–31. According to the patent, both earbuds and canalphones are
`held in position by friction between the ear and the device rather than by the
`support system found in most headphones. See id. at 1:31–34. The patent
`states that canalphones also may be held in place by retainers that engage a
`portion of a listener’s head. See id. at 1:34–35.
`In an embodiment including what is referred to as “sound bores,” the
`’674 patent discloses a canalphone system having a high frequency sound
`bore, a low frequency sound bore next to the high frequency sound bore, a
`high frequency acoustic driver delivering sound through the high frequency
`sound bore, and a low frequency acoustic driver delivering sound through
`the low frequency sound bore. See id. at 2:9–25.
`In an embodiment including what is referred to as “sound tubes,” the
`’674 patent discloses a canalphone system having a high frequency audio
`driver, a low frequency audio driver adjacent to the high frequency audio
`driver, and an acoustical-timer “to phase correct a high audio signal from the
`high audio driver directed to the outside of the canalphone housing with
`delivery of a low audio signal from the low audio driver directed to the
`outside of the canalphone housing.” Id. at 2:49–57. As the ’674 patent
`explains:
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`
`The acoustical-timer further includes a low audio sound-tube to
`carry a low audio signal from the low audio driver to outside of
`the canalphone housing, and a high audio sound-tube to carry a
`high audio signal from the high audio driver to the outside of the
`canalphone housing, the high audio sound-tube phase corrected
`with respect to the low audio sound-tube by sizing it to be longer
`than the low audio sound-tube. The low audio sound-tube may
`be sized based upon its time response for the low audio signal to
`pass through the low audio sound-tube.
`The high audio sound-tube may be longer to slow down the high
`audio signal’s arrival to the outside of the canalphone housing so
`that it is closer in time to the low audio signal from the low audio
`driver arrival to the outside of the canalphone housing. The
`arrival of the high audio [signal] to the outside of the canalphone
`housing is less than 0.05 milliseconds difference than the low
`audio signal from the low audio driver arrival to the outside of
`the canalphone housing.
`Id. at 2:58–3:8. The ’674 patent also describes an electronic implementation
`for the “acoustical-timer”:
`The acoustical-timer may include a processor to phase correct a
`high audio signal from the high audio driver to the outside of the
`canalphone housing with delivery of a low audio signal from the
`low audio driver to the outside of the canalphone housing.
`The processor may use digital signal processing to control the
`high audio signal’s arrival at the outside of the canalphone
`housing to be closer in time to the low audio signal from the low
`audio driver’s arrival to the outside of the canalphone housing.
`The arrival of the high audio [signal] to the outside of the
`canalphone housing is less than 0.05 milliseconds difference than
`the low audio signal from the low audio driver arrival to the
`outside of the canalphone housing.
`Id. at 3:15–27. The patent further explains that “[t]he acoustical-timer may
`use a time response for the low audio signal to pass through the canalphone
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`housing as a control point to set all other audio signals’ phase in the system.”
`Id. at 3:28–31.
`
`Alternatively, in characterizing its system as a method, the ’674 patent
`describes (1) providing a high audio driver carried by a canalphone housing,
`(2) providing a low audio driver carried by the canalphone housing adjacent
`to the high audio driver, and (3) phase correcting a high audio signal from
`the high audio driver directed to the outside of the canalphone housing with
`delivery of a low audio signal from the low audio driver directed to the
`outside of the canalphone housing. See id. at 3:36–44. For the phase
`correction in such a method, the ’674 patent describes two implementations,
`one using a longer sound-tube for the high audio driver than the low audio
`driver, and the other using digital signal processing. See id. at 3:55–4:5. For
`the mechanical implementation, the ’674 patent states:
`The method may further include slowing down the high audio
`signal’s arrival to the outside of the canalphone housing so that
`it is closer in time to the low audio signal from the low audio
`[signal’s] arrival to the outside of the canalphone housing by
`making the high audio sound-tube longer.
`The method may additionally include timing the arrival of the
`high audio signal to the outside of the canalphone housing
`compared to the low audio signal from the low audio [signal’s]
`arrival to the outside of the canalphone housing is within 0.05
`milliseconds of each other.
`Id. at 3:57–67. For the electronic implementation, the ’674 patent states that
`“[t]he method may also include using digital signal processing to phase
`correct a high audio signal from the high audio driver directed to the outside
`of the canal-phone housing with delivery of a low audio signal from the low
`audio driver directed to the outside of the canalphone housing.” Id. at 3:67–
`4:5.
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`Patent 8,925,674 B2
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`The ’674 patent also refers to computer readable program codes to
`
`provide canalphone phase correction:
`The computer readable program codes may be configured to
`cause the program to provide a high audio driver carried by a
`canalphone housing, and a low audio driver carried by the
`canalphone housing adjacent to the high audio driver. The
`computer readable program codes may also be configured to
`cause the program to phase correct a high audio signal from the
`high audio driver to the outside of the canalphone housing with
`delivery of a low audio signal from the low audio driver to the
`outside of the canalphone housing.
`Id. at 4:27–35.
`
`Figure 6 of the ’674 patent is reproduced below:
`
`
`“Figure 6 is a schematic block diagram of a system in
`accordance with various embodiments.” Ex. 1001, 4:54–55.
`
`6
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`IPR2017-01091
`Patent 8,925,674 B2
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`The ’674 patent describes that acoustical-timer 17a “and/or” 17b are
`
`provided to phase correct a high audio signal from high audio driver 20
`directed to the outside of canalphone housing 12 with delivery of a low
`audio signal from low audio driver 22 directed to the outside of the
`canalphone housing. See id. at 7:15–20. With respect to acoustical-timer
`17a, the ’674 patent refers to low audio sound-tube 16, which carries a low
`audio signal from low audio driver 22 to the outside of canalphone housing
`12, and high audio sound-tube 14, which carries a high audio signal from
`high audio driver 20 to the outside of canalphone housing 12. See id. at
`7:21–27. The ’674 patent states that phase correction of the high audio with
`respect to the low audio is achieved by sizing high audio sound-tube 14 so
`that it is longer than low audio sound-tube 16. See id. at 7:27–29. The
`patent also states that high audio sound-tube 14 is made longer to slow down
`the high audio signal’s arrival to the outside of the canalphone housing so
`that it is closer in time to the arrival of the low audio signal from the low
`audio driver to the outside of the canalphone housing. See id. at 7:33–37.
`
`D.
`
`Illustrative Claims
`Of the challenged claims, claims 1, 9, and 21 are independent. Claim
`1 is drawn to an apparatus, claim 9 is drawn to a method, and claim 21 is
`drawn to a computer program product embodied in a tangible media. These
`three claims are reproduced below.
`1. A system comprising:
`a high audio driver carried by a canalphone housing;
`a low audio driver carried by the canalphone housing
`adjacent the high audio driver; and
`an acoustical-timer to phase correct a high audio signal
`from the high audio driver directed to the outside of the
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`IPR2017-01091
`Patent 8,925,674 B2
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`
`canalphone housing with delivery of a low audio signal
`from the low audio driver directed to the outside of the
`canalphone housing.
`9. A method comprising:
`providing a high audio driver carried by a canalphone
`housing, and a low audio driver carried by the
`canalphone housing adjacent to the high audio driver;
`and
`phase correcting a high audio signal from the high audio
`driver directed to the outside of the canalphone housing
`with delivery of a low audio signal from the low audio
`driver directed to the outside of the canalphone housing.
`21. A computer program product embodied in a tangible
`media comprising:
`computer readable program codes coupled to the tangible
`media to provide canalphone phase correction, the
`computer readable program codes configured to cause
`the program to:
`provide a high audio driver carried by the canalphone
`housing, and a low audio driver carried by the
`canalphone housing adjacent to the high audio driver;
`and
`phase correct a high audio signal from the high audio driver
`to the outside of the canalphone housing with delivery of
`a low audio signal from the low audio driver to the
`outside of the canalphone housing.
`Ex. 1001, 12:30–38; 13:8–15; 14:28–40.
`
`
`
`
`
`
`
`8
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`IPR2017-01091
`Patent 8,925,674 B2
`
`E.
`
`
`
`Evidence Relied Upon
`Petitioner relies on the following references:
`
`Reference
`US App. 2011/0058702 A1
`Saggio
`Harvey ’806 US Pat. No. 7,317,806 B2
`Prakash
`US Pat. No. 6,405,227 B1
`Dahlquist
`US Pat. No. 3,824,343
`
`Exhibit
`Date
`Mar. 10, 2011 Ex. 1004
`Jan. 8, 2008
`Ex. 1005
`June 11, 2002 Ex. 1006
`July 16, 1974 Ex. 1007
`
`Petitioner also relies on declarations of Bob Young, which are
`Exhibits 1003, 1030, and 1041.
`
`F. Grounds of Unpatentability Instituted for Trial
`The following grounds of unpatentability remained at trial:1
`
`Basis Claims Challenged
`References(s)
`§ 103
`1–5, 9–12, 14, 17–20
`Saggio
`§ 103
`6–8, 15, 16, and 21
`Saggio and Prakash
`§ 103
`1–5, 9–14, and 17–20
`Saggio and Dahlquist
`Saggio, Dahlquist, and Prakash § 103
`6–8, 15, 16, and 21
`Harvey ’806
`§ 102
`1, 2, 4, 5, 9, 10, 13, and 14
`Harvey ’806
`§ 103
`3, 11, 12, and 17–20
`Harvey ’806 and Prakash
`§ 103
`6–8, 15, 16, and 21
`
`
`1 We instituted on all grounds and claims in the Petition except claims 12,
`19, and 21, and we added claims 1, 2, 4, 9, and 10 as obvious over Saggio.
`See Inst. Dec. 62–63. After SAS, we added claims 12, 19, and 21 to the
`proceeding. See Paper 43. We then granted Petitioner’s motion for adverse
`judgment on Ground 1, which was anticipation by Saggio. See Paper 52.
`
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`Patent 8,925,674 B2
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`
`II. ANALYSIS
`
`To establish anticipation, each and every element in a claim, arranged
`as recited in the claim, must be found in a single prior art reference. Net
`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008);
`Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir.
`2001). While the elements must be arranged in the same way as is recited in
`the claim, “the reference need not satisfy an ipsissimis verbis test,” i.e., there
`is no requirement that the terminology in the anticipatory prior art reference
`and the claim be exactly the same. In re Gleave, 560 F.3d 1331, 1334 (Fed.
`Cir. 2009); In re Bond, 910 F.2d 831, 832–33 (Fed. Cir. 1990)). “A
`reference anticipates a claim if it discloses the claimed invention ‘such that a
`skilled artisan could take its teachings in combination with his own
`knowledge of the particular art and be in possession of the invention.’” In
`re Graves, 69 F.3d 1147, 1152 (Fed. Cir. 1995) (quoting In re LeGrice, 301
`F.2d 929, 936 (CCPA 1962)). Prior art references must be considered
`together with the knowledge of one of ordinary skill in the pertinent art. In
`re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`
`It “is proper to take into account not only specific teachings of the
`reference but also the inferences which one skilled in the art would
`reasonably be expected to draw therefrom.” In re Preda, 401 F.2d 825, 826
`(CCPA 1968). For anticipation, the dispositive question is whether one
`skilled in the art would reasonably understand or infer from a reference that
`every claim element is disclosed in that reference. Eli Lilly v. Los Angeles
`Biomedical Research Institute, 849 F.3d 1073, 1074–1075 (Fed. Cir. 2017).
`The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
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`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`One seeking to establish obviousness based on more than one reference also
`must articulate sufficient reasoning with rational underpinning to combine
`the teachings from the references. See KSR Int’l Co. v. Teleflex, Inc., 550
`U.S. 398, 418 (2007).
`With regard to the level of ordinary skill in the art, we determine that
`no express finding is necessary because the level of ordinary skill in the art
`in this case is reflected by the prior art applied by Petitioner. See Inst. Dec.
`11; Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re
`GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich, 579 F.2d 86,
`91 (CCPA 1978). Neither party disputes that finding.
`
`A.
`
`Claim Construction
`In inter partes reviews filed before November 13, 2018, the Board
`construes claims in an unexpired patent according to their broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b) (2016); Cuozzo Speed Techs., LLC
`v. Lee, 136 S. Ct. 2131, 2142–46 (2016); 83 Fed. Reg. 51,340. Consistent
`with that standard, claim terms are generally given their ordinary and
`customary meaning, as would have been understood by one of ordinary skill
`in the art in the context of the entire disclosure. See In re Translogic Tech.,
`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). There are, however, two
`exceptions to that rule: “1) when a patentee sets out a definition and acts as
`his own lexicographer,” and “2) when the patentee disavows the full scope
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`of a claim term either in the specification or during prosecution.” Thorner v.
`Sony Comp. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).
`
`For it to be said that an inventor has acted as his or her own
`lexicographer, the definition must be set forth in the specification with
`reasonable clarity, deliberateness, and precision. Renishaw PLC v. Marposs
`Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998). It is improper to
`add into a claim an extraneous limitation, i.e., one that is added wholly apart
`from any need for the addition. See, e.g., Hoganas AB v. Dresser Indus.,
`Inc., 9 F.3d 948, 950 (Fed. Cir. 1993); E.I. du Pont de Nemours & Co. v.
`Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988).
`Only terms that are in controversy need to be construed, and only to
`the extent necessary to resolve the controversy. See Nidec Motor Corp. v.
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017);
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`1999).
`In the Institution Decision, we construed “acoustical-timer” to cover
`“acoustical-timer 17a and acoustical-timer 17b as disclosed in the
`Specification of the ’674 patent.” Inst. Dec. 12. As neither party disputes
`that construction, we maintain it here.
`In the Institution Decision, we also construed the phrases beginning
`with “phase correct” or “phase correcting” to mean “correcting the phase of
`the high audio signal so that the phase relationship between the high audio
`signal and the low audio signal at the outside of the canalphone housing is
`closer to their original phase relationship at the time of their generation by
`their respective drivers.” Inst. Dec. 16.
`
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`
`Patent Owner does not address the construction of the phase
`correction terms. Petitioner asserts that “[t]echnologically speaking this
`construction is incorrect” because “to a POSA at the time of the alleged
`invention, ‘phase correct’ and ‘phase correcting’ meant bringing two signals
`‘in phase’ at the crossover frequency, at the point at which they reach the
`listener’s ear,” but that “the inaccuracy did not affect the Board’s overall
`analysis.” Reply 1–2 (citing Ex. 1030 ¶ 6–22).
`Having reviewed Petitioner’s argument and evidence, we retain the
`construction of the phase correction terms in the Institution Decision. The
`fundamental difference appears to be that Petitioner wants to “focus[] on . . .
`what [the] phase relationship is at the point where it reaches the listener”
`(Tr. 62:7–8), but the original construction already includes the very similar
`concept “at the outside of the canalphone housing.” For that reason, and
`because Petitioner does not argue that the change would make a difference
`in the outcome (see Tr. 59:1–7), we maintain the construction the parties
`used in preparation for the trial.
`
`B.
`
`Cited Art
`Harvey ’806
`1.
`Harvey ’806 names Jerry J. Harvey, the sole named inventor on the
`’674 patent, as a co-inventor. Harvey ’806 was issued on January 8, 2008,
`more than one year prior to the earliest possible effective filing date that can
`be established by Patent Owner for any challenged claim in the ’674 patent.
`Accordingly, Harvey ’806 is available as § 102(b) art.
`Harvey ’806 discloses an earpiece, also known as an in-ear-monitor or
`canalphone, that employs two or more balanced armature drivers that are
`optimized for a particular (e.g., low, medium, or high) frequency range. See
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`id. at 1:24–26, 1:59–2:5, 6:5–8. A crossover network or filter divides the
`frequency spectrum of an input signal into multiple regions, i.e., low and
`high components, or low, medium, and high components, and respectively
`provides these components to corresponding armature drivers that are
`optimized for each region. See id. at 2:1–5, 3:48–50. Figure 3 of Harvey
`’806 is reproduced below:
`
`
`Harvey ’806’s “FIG. 3 is a cross-sectional view of a generic
`earpiece that includes a pair of sound delivery tubes and a
`predetermined driver offset.” Ex. 1005, 3:1–3.
`Cross-over network 111 provides respective low and high frequency
`components of an input signal on line 113 to low frequency armature driver
`107 and high frequency armature driver 109. See id. at 1:66–2:5, 3:46–50.
`The frequency response of low and high frequency armature drivers 107 and
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`109 can be respectively tuned by dampers 317 and 319. See id. at 5:29–40,
`5:61–65. The sounds produced by armature drivers 107 and 109 are
`respectively delivered to the ear canal via sound tubes 303 and 305. See id.
`at 5:6–9. When canalphone 300 includes more than two armature drivers,
`the outputs from the two lower frequency drivers are merged into a first
`sound tube, while the output from the third higher frequency driver is
`maintained in a second sound tube. See id. at 2:35–40.
`Harvey ’806 explains that the filtering effects of cross-over network
`111, and the relative displacement of armature drivers 107 and 109 within
`housing 213, can introduce an unwanted phase shift between the sounds
`produced by the armature drivers. See id. at 6:12–16, 6:30–36. Harvey ’806
`identifies and refers to the phase shift introduced by frequency dividing
`network, driver roll-off rates, driver bandwidth, and exit plane sound tube
`displacement as “inherent” to an earpiece design. See id. at 6:49–52.
`Harvey ’806 describes that that inherent phase shift can be minimized by
`varying the lengths of sound tubes 303 and 305, e.g., extending sound tube
`303 by an additional sound tube 321. See id. at 6:37–65. The lengths of
`sound tubes 303 and 305 are thus chosen to tune canalphone 300. See id. at
`5:58–6:2.
`
`Prakash
`2.
`In pertinent part, Prakash teaches a microchip for use in a speaker
`system, where the chip includes a DSP (digital signal processor) that can
`“programmably delay audio signals for over 30 ms to synchronize the times
`of their arrival from speakers 312 at different distances to a listener
`position.” Ex. 1006, 4:17–22, 5:12–67, Figs. 3–5.
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`Saggio
`3.
`Saggio is directed to “[in]-ear monitors,” which are “also referred to
`as canal phones and stereo earphones.” Ex. 1004 ¶ 3. Saggio explicitly
`states that in its disclosure, the terms “in-ear monitor,” “IEM,” “canal
`phone,” “earbud,” and “earphone” may be used interchangeably. Id. ¶ 35.
`Saggio further states that it relates in particular “to an in-ear monitor with
`multiple sound bores optimized for a multi-driver configuration.” Id. ¶ 2.
`Saggio discloses a multi-driver in-ear monitor that is coupled to an external
`audio source. See id. ¶ 9. Saggio describes how a circuit receives the
`electrical signal from the external audio source and provides separate input
`signals to the drivers contained within the in-ear monitor. See id. Saggio
`further describes how a plurality of sound delivery tubes acoustically couple
`the audio output from each of the drivers to the acoustic output surface of
`the in-ear monitor. See id.
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`A “prior art” configuration for an in-ear monitor or canalphone is
`
`illustrated in Figure 1 of Saggio, reproduced below:
`
`
`Saggio’s “FIG. 1 illustrates the primary elements of a custom fit
`in-ear monitor according to the prior art.” Ex. 1004 ¶ 13.
`
`Saggio describes driver 107 as a low-frequency driver and driver 109
`
`as a high-frequency driver, and circuit 111 as receiving input from audio
`source 113 and providing outputs to drivers 107 and 109. See id. ¶ 36.
`Saggio states that “[t]he output from drivers 107 and 109 is delivered to the
`end surface 119 of the IEM via a pair of delivery tubes 121 and 123,
`respectively.” Id. ¶ 37.
`
`Dahlquist
`4.
`Dahlquist is directed to a loud speaker assembly incorporating
`multiple transducers for outputting sound