Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 8
`Entered: October 3, 2017
`
`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 JAMESON LEE, BRIAN J. McNAMARA, and
`JOHN F. HORVATH, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`
`
`I.
`
`INTRODUCTION
`
`
`A. Background and Summary
`
`On March 15, 2017, Petitioner1 filed a Petition (Paper 1, “Pet.”) to
`
`institute inter partes review of claims 1–21 of U.S. Patent No. 8,925,674 B2
`
`
`1 1964 Ears, LLC.
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`

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`IPR2017-01091
`Patent 8,925,674 B2
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`(Ex. 1001, “the ’674 patent”). On July 6, 2017, Patent Owner2 filed a
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`Preliminary Response (Paper 7, “Prelim. Resp.”). To institute an inter
`
`partes review, we must determine that the information presented in the
`
`Petition 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.”
`
`35 U.S.C. § 314(a). Having considered the arguments and evidence
`
`presented in the Petition and in the Preliminary Response, we determine that
`
`Petitioner has demonstrated a reasonable likelihood that it would prevail in
`
`establishing the unpatentability of each of claims 1–11, 13–18, and 20 of the
`
`’674 patent, but not claims 12, 19, and 21 of the ’674 patent.
`
`B.
`
`Related Matters
`
`Petitioner and Patent Owner identify as a related matter involving
`
`both parties and the ’674 patent: Jerry Harvey Audio Holding, LLC et al. v.
`
`1964 Ears, LLC (WA) et al., 6:16-cv-00409-CEM-KRS (M.D. Fla.). Pet. 2,
`
`Paper 5. Patent Owner identifies the following inter partes review
`
`proceedings as related matters: Case IPR2017-01084 involving Patent No.
`
`8,567,555 B2; Case IPR2017-01092 involving Patent No. 9,197,960 B2.
`
`Paper 5.
`
`Petitioner identifies the following civil action involving both parties
`
`and Patent No. 8.897,463 B2 as a related matter: Jerry Harvey Audio
`
`Holding, LLC et al. v. 1964 Ears, LLC et al., 6:14-cv-02083-CEM-KRS
`
`(M.D. Fla.). Pet. 3. Petitioner also identifies as a related matter the
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`following inter partes review proceeding: Case IPR2016-00494 involving
`
`Patent No. 8,897,463 B2. Id.
`
`
`2 Jerry Harvey Audio Holding, LLC.
`
`2
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`

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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.” Ex. 1001 (54). The ’674 patent describes that there are many
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`different types of personal listening devices such as headphones, earbuds,
`
`and canalphones, and that canalphones are substantially smaller than a
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`person’s outer ear and differ from earbuds in that they are “placed directly in
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`one end of the ear canal.” Id. at 1:22–31. According to the ’674 patent, both
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`earbuds and canalphones are held in position by friction between the ear and
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`the device rather than by the support system found in most headphones. Id.
`
`at 1:31–34. The ’674 patent states that canalphones also may be held in
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`place by retainers that engage a portion of a listener’s head. Id. at 1:34–35.
`
`In an embodiment including what is referred to as sound bores, the
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`’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
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`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. Id. at 2:9–25.
`
`In an embodiment including what is referred to as sound tubes, the
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`’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
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`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
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`outside of the canalphone housing.” Id. at 2:49–57 (emphasis added). The
`
`’674 patent describes:
`
`3
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`IPR2017-01091
`Patent 8,925,674 B2
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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 to 3:8. The ’674 patent also describes an electronic
`
`implementation for the “acoustical-timer.” The ’674 patent states:
`
`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 ’674 patent describes that “[t]he acoustical-timer may
`
`use a time response for the low audio signal to pass through the canalphone
`
`4
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`IPR2017-01091
`Patent 8,925,674 B2
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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,
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`(2) providing a low audio driver carried by the canalphone housing adjacent
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`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. Id. at 3:36–44. For the phase correction
`
`in such a method, the ’674 patent describes two implementations, one using
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`a longer sound-tube for the high audio driver than the low audio driver, and
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`the other using digital signal processing. 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 3:63–67. For the electronic implementation, the ’674 patent states:
`
`“The 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.
`
`5
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`IPR2017-01091
`Patent 8,925,674 B2
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`
`
`The ’674 patent also refers to computer readable program codes to
`
`provide canalphone phase correction. Id. at 4:25–27. In that regard, the
`
`’674 patent describes:
`
`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:
`
`
`
`6
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`

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`IPR2017-01091
`Patent 8,925,674 B2
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`Figure 6 is referred to in the ’674 patent as a schematic block diagram of a
`
`system in accordance with various embodiments. Id. at 4:54–55.
`
`
`
`The ’674 patent describes that acoustical-timer 17a “and/or” 17b are
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`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. 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
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`signal from low audio driver 22 to the outside of canalphone housing 12, and
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`high audio sound-tube 14 which carries a high audio signal from high audio
`
`driver 20 to outside of canalphone housing 12. Id. at 7:21–27. The ’674
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`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. Id. at 7:27–29. The ’674 patent 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. Id. at 7:33–37.
`
`Of all the challenged claims, claims 1, 9, and 21 are independent.
`
`Claim 1 is drawn to an apparatus. Claim 9 is drawn to a method. Claim 21
`
`is drawn to a computer program product embodied in a tangible media. All
`
`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
`
`7
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`IPR2017-01091
`Patent 8,925,674 B2
`
`
`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.
`
`
`
`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
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`
`D.
`
`Evidence Relied Upon by Petitioner
`
`Petitioner relies on the following references:3
`
`
`
`Saggio
`
`Reference
`U.S. Pub. App. 2011/0058702
`A1
`U.S. Pat. No. 7,317,806 B2
`
`Harvey
`’806
`U.S. Pat. No. 6,405,227 B1
`Prakash
`Dahlquist U.S. Pat. No. 3,824,343
`
`Petitioner also relies on the Declaration of Bob Young. (Ex. 1003).
`
`Date
`Mar. 10, 2011
`
`Exhibit
`Ex. 1004
`
`Jan. 8, 2008
`
`Ex. 1005
`
`June 11, 2002
`July 16, 1974
`
`Ex. 1006
`Ex. 1007
`
`E.
`
`The Asserted Grounds
`
`Petitioner asserts the following grounds of unpatentability (Pet. 5):
`
`Claim(s) Challenged
`
`Basis
`
`References
`
`1, 2, 4, 9, 10, and 13
`
`§ 102
`
`Saggio
`
`3, 5, 11, 12, 14, and 17–20
`
`§ 103
`
`Saggio
`
`6, 7, 8, 15, 16, and 21
`
`§ 103
`
`Saggio and Prakash
`
`1, 2, 4, 5, 9, 10, 13, and 14
`
`§ 102
`
`Harvey ’806
`
`3, 11, 12, and 17–20
`
`§ 103
`
`Harvey ’806
`
`6, 7, 8, 15, 16, and 21
`
`§ 103
`
`Harvey ’806 and Prakash
`
`1–5, 9–14, and 17–20
`
`§ 103
`
`Saggio and Dahlquist
`
`6, 7, 8, 15, 16, and 21
`
`§ 103
`
`Saggio, Dahlquist, and Prakash
`
`
`3 The earliest effective filing date of the ’674 patent that possibly may be
`established by Patent Owner is Dec. 9, 2011. Ex. 1001 (63), 1:7–10.
`Without any additional showing by Patent Owner, the effective filing date is
`the actual filing date of August 14, 2013.
`
`9
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`IPR2017-01091
`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.” In re
`
`Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009); In re Bond, 910 F.2d 831,
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`832–33 (Fed. Cir. 1990)). Identity of terminology between the anticipatory
`
`prior art reference and the claim is not required. “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). 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).
`
`
`
`Also, “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). As the Court of Appeals for the Federal Circuit recently
`
`explained, for anticipation, the dispositive question is whether one skilled in
`
`the art would reasonably understand or infer from a prior art 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;
`
`10
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`IPR2017-01091
`Patent 8,925,674 B2
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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
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`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
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`must articulate sufficient reasoning with rational underpinning to combine
`
`teachings. 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
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`no express finding is necessary, on this record, because the level of ordinary
`
`skill in the art, in this case, is reflected by the prior art applied by Petitioner.
`
`See 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).
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142–46 (2016).
`
`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
`
`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).
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`11
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`IPR2017-01091
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`
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`If an inventor acts 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.
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`1993); E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d
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`1430, 1433 (Fed. Cir. 1988).
`
`Only terms which are in controversy need to be construed, and only to
`
`the extent necessary to resolve the controversy. See Wellman, Inc. v.
`
`Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011); Vivid Techs.,
`
`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`acoustical-timer
`
`
`
`Independent claim 1 recites the term “acoustical-timer.” The
`
`Specification contains no definition for this term and none of the applied
`
`prior art uses this term. Petitioner’s expert, Bob Young, does not testify that
`
`this term is well known in the art, and Petitioner provides no construction,
`
`except to assert that the Specification of the ’674 patent discloses acoustical-
`
`timer 17a and acoustical timer 17b, either of which constitutes an acoustical-
`
`timer. Pet. 16:7–11. Given Petitioner’s approach in the Petition, i.e.,
`
`accounting for the claimed acoustical-timer by showing how the applied
`
`prior art meets acoustical timer 17a or acoustical-timer 17b as disclosed in
`
`the Specification of the ’674 patent, we need not determine the outer bounds
`
`of the term “acoustical-timer.” On this record, we agree with Petitioner that
`
`the term “acoustical-timer” covers acoustical-timer 17a and acoustical-timer
`
`17b disclosed in the Specification of the ’674 patent.
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`12
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`IPR2017-01091
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`
`
`According to the Specification, acoustical-timer 17a includes low
`
`audio sound-tube 16 to carry a low audio signal from low audio driver 22 to
`
`outside of canalphone housing 12, and high audio sound-tube 14 to carry a
`
`high audio signal from high audio driver 20 to outside of canalphone
`
`housing 12. Ex. 1001, 7:21–27. Also, in acoustical-timer 17a, high audio
`
`sound tube 14 is longer than the low audio sound-tube 16. Id. at 7:27–29.
`
`phase correct / 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
`
`
`
`Both claims 1 and 21 recite “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.” Ex. 1001, 12:34–38; 14:37–40. Claim
`
`9 recites: “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.” Id. at 13:12–15.
`
`
`
`Neither Petitioner nor Patent Owner has offered a construction for the
`
`subject phrase, whether it begins with “phase correct” or “phase correcting.”
`
`With regard to phase correction, the ’674 patent states: “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.” Id. at 3:1–5. Also with regard to phase correction, the ’674 patent
`
`states: “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
`
`13
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`IPR2017-01091
`Patent 8,925,674 B2
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`time to the low audio signal from the low audio [signal’s] arrival to the
`
`outside of the canalphone housing.” Id. at 3:20–24. The 674 patent further
`
`describes “[t]he acoustical-timer may use a time response for the low audio
`
`signal to pass through the canalphone housing as a control point to set all
`
`other audio signals’ phase in the system.” Id. at 3:28–31.
`
`
`
`We read the Specification as conveying that the high audio signal and
`
`the low audio signal have a certain phase relationship with respect to each
`
`other when they are first generated by their respective drivers. We also read
`
`the Specification as conveying that without correction, by the time the low
`
`and high audio signals reach the outside of the canalphone housing, their
`
`phase relationship is no longer the same as that which existed at the time the
`
`signals were first generated by their respective drivers. We also read the
`
`Specification as conveying that it is desirable, from the perspective of
`
`fidelity of generated sound, to maintain the phase relationship between the
`
`high audio signal and the low audio signal such that, at the time the signals
`
`exit the canalphone housing, the phase relationship is the same as it was
`
`when the signals were generated by the drivers or as close to that as possible.
`
`
`
`The Specification of the ’674 patent, in several instances, describes
`
`achieving phase correcting of the high audio signal by sizing the high audio
`
`sound-tube to be longer than the low audio sound-tube. Id. at 2:58–64;
`
`3:45–51; 7:21–29. That does not mean, however, that whenever the high
`
`audio sound-tube is longer than the low audio sound-tube, phase correcting
`
`has been performed or that the phase relationship between the high audio
`
`signal and the low audio signal at the point of exit of the canalphone housing
`
`has been made closer to the phase relationship between the high and low
`
`audio signals at the time of their generation by their respective drivers.
`
`14
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`IPR2017-01091
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`Nothing in the ’674 patent indicates that, with equal-length sound
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`tubes, the deviation in the phase relationship between the two signals
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`necessarily would be such that the high frequency signal would have a phase
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`lead over the low frequency signal upon exiting the canalphone housing and
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`would need to be delayed. Petitioner’s expert also has not provided
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`testimony to that effect. The phase relationship all depends on the physical
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`configuration and make-up of all the components and the characteristics of
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`the signals. When the high frequency signal does have a phase lead upon
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`exiting the canalphone housing, phase correction would be achieved by
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`making the high audio sound-tube longer. We note that one with ordinary
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`skill in the art would have known that sometimes extending the length of the
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`low audio sound-tube can result in phase correction. For instance, that is
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`what is disclosed in Harvey ’806. Ex. 1005, 6:47–65, 7:38–47.
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`
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`The record does not support that whenever the high audio sound tube
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`is longer than the low audio sound tube, phase correcting necessarily has
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`been performed. We observe that if the high audio sound-tube is made
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`much longer than the low audio sound-tube, that may delay the exit time of
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`the high audio signal so much that it would start to lag the exit time of the
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`low audio signal, perhaps by an amount even greater than any lead it would
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`have had without a longer high audio sound tube. Thus, simply having a
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`longer high audio sound-tube than a low audio sound-tube does not indicate
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`whether the high audio signal has been phase corrected.
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`
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`Also, the phrase at issue includes the sub-phrase “with delivery of a
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`low audio signal from the low audio driver directed to the outside of the
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`canalphone housing,” which provides the baseline for the recited phase
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`correction of the high audio signal. Something characteristic of the delivery
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`of the low audio signal to the canalphone housing must serve as a part of that
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`baseline for comparison, namely, the timing. That runs counter to any
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`notion that simply making the high audio sound-tube longer than the low
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`audio sound-tube is sufficient to meet the limitation.
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`Patent Owner argues that in order for phase correction to have taken
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`place on the high audio signal, there must be a result “like” that shown in
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`Figure 7 of the ’674 patent. Prelim. Resp. 8. We are unpersuaded. Patent
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`Owner is unclear what it means by “like,” and what specific requirements
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`must be included. Also, Figure 7 is merely an example of a phase corrected
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`response. Ex. 1001, 4:56–57. It is not necessary that every phase corrected
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`signal response reflect that which is shown in Figure 7. In short, Figure 7 is
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`not a part of any claim or referenced in any claim.
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`
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`In summary, in light of the ’674 patent disclosure, we determine that
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`the entire phrase at issue, whether it begins with “phase correct” or “phase
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`correcting,” means “correcting the phase of the high audio signal so that the
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`phase relationship between the high audio signal and the low audio signal at
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`the outside of the canalphone housing is closer to their original phase
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`relationship at the time of their generation by their respective drivers.”
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`B. Alleged Anticipation of
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`Claims 1, 2, 4, 9, 10, and 13 by Saggio
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`1.
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`Saggio
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`
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`Saggio is directed to “[in]-ear monitors,” which are “also referred to
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`as canal phone and stereo earphones.” Ex. 1004 ¶ 3. Saggio explicitly states
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`that in its disclosure, the terms “in-ear monitor,” “IEM,” “canal phone,”
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`“earbud,” and “earphone,” may be used interchangeably Id. ¶ 35. Saggio
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`further states that it relates in particular “to an in-ear monitor with multiple
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`sound bores optimized for a multi-driver configuration.” Id. ¶ 2. Saggio
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`discloses a multi-driver in-ear monitor that is coupled to an external audio
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`source. Id. ¶ 9. Saggio describes that a circuit receives the electrical signal
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`from the external audio source and provides separate input signals to the
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`drivers contained within the in-ear monitor. Id. Saggio further describes
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`that a plurality of sound delivery tubes acoustically couple the audio output
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`from each of the drivers to the acoustic output surface of the in-ear monitor.
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`Id.
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`
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`A prior art configuration for an in-ear monitor or canalphone is
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`illustrated in Figure 1 of Saggio, reproduced below:
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`Figure 1 illustrates the primary elements of a custom fit in-ear monitor
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`according to what Saggio refers to as prior art. Id. ¶ 13. Saggio describes
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`driver 107 as a low-frequency driver and driver 109 as a high-frequency
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`driver, and circuit 111 as receiving input from audio source 113 and
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`providing outputs to drivers 107 and 109. Id. ¶ 36. Saggio further describes
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`“[t]he output from drivers 107 and 109 is delivered to the end surface 119 of
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`the IEM via a pair of delivery tubes 121 and 123, respectively.” Id. ¶ 37.
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`
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`Figure 4 of Saggio is reproduced below:
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`
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`Figure 4 illustrates the primary elements of a preferred embodiment of
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`Saggio’s in-ear monitor, including a pair of concentric sound delivery tubes.
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`Id. ¶ 16. Saggio describes that inner sound delivery tube 401 is held in place
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`and apart from sound delivery tube 403 with one or more support members
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`405. Id. ¶ 44. Driver 407 is acoustically coupled to inner sound delivery
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`tube 401, and driver 409 is acoustically coupled to outer sound delivery tube
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`403. Id. In one embodiment, driver 407 is a high frequency driver and
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`driver 409 is a low frequency driver. Id.
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`
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`Figure 14 of Saggio is reproduced below:
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`
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`Figure 14 illustrates the primary elements of a preferred embodiment of
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`Saggio’s in-ear monitor, including three concentric sound delivery tubes. Id.
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`¶ 26. Saggio describes that, preferably, driver 1409 is a high frequency
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`driver, driver 1411 is a mid-frequency driver, and driver 1413 is a low
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`frequency driver. Id. ¶ 53. Inner sound delivery tube 1401 is coupled to the
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`output of high frequency driver 1409 and is spaced apart from middle sound
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`delivery tube 1402, and outer sound delivery tube 1403 is coupled to the
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`output of low frequency driver 1413 and is spaced apart from middle sound
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`delivery tube 1402. Id.
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`
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`Figure 17 of Saggio is reproduced below:
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`Figure 17 illustrates the primary elements of a preferred embodiment of
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`Saggio’s in-ear monitor, including three independent sound delivery tubes.
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`Id. ¶ 29. As shown in Figure 17, in-ear monitor 1700 includes three distinct
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`sound delivery tubes 1701, 1702, and 1703 connected to separate drivers
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`1103, 1104, and 1105. Id. ¶ 54. Driver 1104 is a high frequency driver;
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`driver 1103 is a low frequency driver; and driver 1105 is a mid-frequency
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`driver. Id. ¶ 51.
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`2.
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`Discussion
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`a.
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`Claims 1 and 9
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`
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`Claim 1 recites “a high audio driver carried by a canalphone housing,”
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`and “a low audio driver carried by the canalphone housing adjacent to the
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`high audio driver.” Claim 9 recites a step of “providing a high audio driver
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`carried by a canalphone housing, and a low audio driver carried by the
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`canalphone housing adjacent to the high audio driver.” Ex. 1001, 12:31–33;
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`13:9–11. We are persuaded by Petitioner’s assertion, supported by the
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`testimony of Mr. Young (Ex. 1003 ¶ 26) and not disputed by Patent Owner,
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`that a person of ordinary skill in the art would understand a “high audio
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`driver” to be synonymous with an HFD (high frequency driver), and a “low
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`audio driver” to be synonymous with an LFD (low frequency driver). Pet.
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`15. To satisfy the above-noted limitations, Petitioner relies on the
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`embodiments of Saggio as illustrated in Saggio’s Figures 1, 4, 6, 14, 15, and
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`17. Id. at 15–16. For instance, Figure 1 of Saggio illustrates low frequency
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`driver 107 adjacent high frequency driver 109, and both drivers are carried
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`within IEM 100. Figure 4 of Saggio illustrates low frequency driver 409
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`adjacent high frequency driver 407, and both drivers are carried within IEM
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`400. Figure 14 of Saggio illustrates low frequency driver 1413 adjacent high
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`frequency driver 1409, and both drivers are carried within IEM 1400.
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`Similarly, the embodiments of Figures 6, 15, and 17 satisfy these same
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`limitations.
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`
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`Claim 1 further recites: “an acoustical-timer to phase correct a high
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`audio signal from the high audio driver directed to the outside of the
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`canalphone housing with delivery of a low audio signal from the low audio
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`driver directed to the outside of the canalphone housing.” Ex. 1001, 12:34–
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`38. Clai