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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 IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
`
`__________
`
`Record of Oral Hearing
`Held: December 17, 2018
`__________
`
`
`
`Before BRIAN J. McNAMARA, JOHN F. HORVATH, and
`AARON W. MOORE, Administrative Patent Judges.
`
`
`
`
`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`HILLARY A. BROOKS, ESQ.
`DELFINA HOMEN, ESQ.
`Brooks Quinn, LLC
`6513 132nd Ave NE #378
`Kirkland, Washington 98033
`(503) 629-1559 (Homen)
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`DANIEL RAVICHER, ESQ.
`DAVID GARROD, ESQ.
`Ravicher Law Firm PLLC
`2000 Ponce De Leon Boulevard #600
`Coral Gables, Florida 33134
`(786) 505-1205 (Ravicher)
`
`
`
`
`The above-entitled matters came on for hearing on Monday,
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`December 17, 2018, commencing at 1:00 p.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`
`P R O C E E D I N G S
`- - - - -
`JUDGE MOORE: Good afternoon. We will hear argument now in
`our case number IPR2017-01084, IPR2017-01091, and IPR2017-01092.
`The petitioner in the three cases is 1964 Ears, LLC. Patent owner is Jerry
`Harvey Audio Holding, LLC. The patents at issue in the respective
`proceedings are 8,567,555, 8,925,674, and 9,197,960.
`I'm Judge Moore. To my right is Judge McNamara. On the video
`screen is Judge Horvath. Would the counsel for the parties please identify
`yourselves, starting with petitioner?
`MS. HOMEN: Thank you, Your Honor. My name is Delfina
`Homen, and I am backup counsel for petitioner 1964 Ears, LLC. I'm here
`with my co-counsel and the lead counsel in this proceeding, Ms. Hillary
`Brooks. She has lost her voice, so she will not be speaking today. Thank
`you.
`
`MR. RAVICHER: Good afternoon, your Honors. This is Dan
`Ravicher for patent owner Jerry Harvey Audio Holding, LLC. With me is
`co-counsel David Garrod.
`JUDGE MOORE: Thank you and welcome to the Board. Pursuant
`to our December 7th order, we will hear the 1084 case first with 35 minutes
`of argument time per side. We'll take a break and then hear the 1091 and
`1092 cases together with each side allocated 70 minutes of time.
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`Petitioner here bears the burden of proving any proposition of
`unpatentability by a preponderance of the evidence, and I'll remind everyone
`that this hearing is open to the public and the transcripts of the hearing will be
`published, and will become part of the public record.
`So with that, I'll invite petitioner to begin.
`MS. HOMEN: May I please approach with demonstrative exhibits?
`JUDGE MOORE: I'm sorry?
`MS. HOMEN: May I please approach with the demonstrative
`exhibits?
`JUDGE MOORE: Yes. Counsel, these are identical to the ones
`that were submitted?
`MS. HOMEN: Correct.
`JUDGE MOORE: Do you wish to reserve any time for rebuttal?
`MS. HOMEN: Yes, please. I would like to reserve ten minutes.
`Thank you very much for granting petitioner's request for oral argument in
`this proceeding. My presentation today will focus on, with respect to the 555
`patent, will focus on the unpatentability of the original claims, as well as the
`unpatentability of the proposed new claims.
`Petitioner has on file in this proceeding a pending motion to exclude.
`Petitioner rests on the briefing with respect to that motion.
`Before discussing the unpatentability of the original claims, it's
`helpful to briefly discuss the state of the art at the time of the alleged invention.
`The '555 patent is directed to a system, a canalphone, that has a high-
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`frequency driver, a low-frequency driver, and two sound bores, one for each
`driver. Claim one is representative of the subject matter claimed in the '555
`patent.
`
`The basic structure of the claim's canalphone was already known in
`the art. Both Saggio which is reproduced on this slide to the left and Harvey
`'806 reproduced to the right include figures showing a canalphone with one
`high-frequency driver, one low-frequency driver, and sound bores for each
`driver as prior art.
`Canal phones are more commonly referred to as in-ear monitors or
`IEMs. I may use those terms interchangeably today. Drivers are also
`referred to as receivers or transducers, all of which are terms that I might use
`interchangeably. They convert electrical energy (an audio signal) to
`acoustical energy (sound). They can be referred to by the frequency of the
`sound they reproduce, like a low-frequency driver, sometimes abbreviated
`LFD, or a high-frequency driver abbreviated HFD.
`Sound bores are also commonly referred to as sound tubes or audio
`tubes and, again, these are terms that might be used interchangeably today.
`They direct sound from the driver to an outlet at the ear tip of the IEM.
`Turning to the unpatentability challenge, I will first address the
`unpatentability of the limitations directed to the basic structure, a housing with
`two drivers and two sound bores. Patent owner has not contested that these
`limitations are taught by the prior art. In this proceeding, that piece of prior
`art is LoPresti.
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`
`So, again, claim one is directed to a system that includes one high-
`frequency driver and one low-frequency driver. Those are circled on figure
`1 from the patent here.
`The instituted challenge to claim one is obviousness over LoPresti and
`Dombrowski. LoPresti teaches a system which can be an earphone or an
`insert earphone that includes one high-frequency driver and one low-
`frequency driver, just as recited in the claim.
`JUDGE MCNAMARA: Excuse me. Let me interrupt you for a
`second, counsel. Just as a point of procedure, could you identify a slide by
`slide number when you're referring to it, please?
`MS. HOMEN: Certainly.
`JUDGE MCNAMARA: So we'll have it for the record and so that
`Judge Horvath who is remote can see it.
`MS. HOMEN: Certainly. I apologize for that.
`JUDGE MCNAMARA: It's hard to remember. I've been there.
`MS. HOMEN: So I am on slide eight right now. Patent owner has
`not argued in this proceeding that there is anything novel about this basic
`system of a canalphone with one low-frequency driver and one high-
`frequency driver.
`Turning to slide nine, the system of claim one also includes a one-
`piece sound bore for the high-frequency driver and a one-piece sound bore for
`the low-frequency driver. Those are circled on figure 1 from the patent here.
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`
`Slide ten. LoPresti teaches a system that includes transducer 16 and
`18, which can be one high-frequency driver and one low-frequency driver and
`includes sound port 76A and 76B. Those are highlighted from figure 4.
`Sound tubes may be connected to the sound ports by known techniques,
`according to LoPresti.
`Now, at the time of the alleged invention, one-piece sound bores
`were well known in the art. For instance, the one-piece sound bores labeled
`as prior art in Harvey '806 reproduced to the right. Patent owner has not
`argued in this proceeding that there is anything novel about a system with a
`claimed one-piece sound bore.
`Next, I will address the unpatentability of the single unit limitation,
`which is the only limitation in contention in this proceeding. In the system
`of claim one, the two sound bores are joined to form a single unit. That's
`circled in red from figure 1 of the patent.
`Slide 13. The '555 patent states that, because the single unit is one
`piece, it aids in assembly of the canalphone because installation of the single
`unit into the canalphone is easier than trying to install the sound bores as
`separate components. According to petitioner's expert, Mr. Young, who is
`the only expert that has come forth in this proceeding, there's nothing novel
`in this statement because, clearly, if two things are joined together to form a
`single unit, it will be easier to install them than if they were installed
`separately.
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`
`Slide 14. Dombrowski, which is a reference from 2006, teaches a
`hearing instrument with two receivers, one high frequency and one low
`frequency. It further teaches that in an outside-the-canal hearing instrument
`with two receivers, both receivers can be in the concha portion of the housing,
`like in a canalphone. Dombrowski teaches that, in such a device, the two
`sound channels or sound bores may be mechanically coupled to each other, in
`one example formed as two bores in a single sound conduction tube. It also
`teaches that the two sound conduction tubes, 51, 52, may be two tubes that are
`mechanically coupled to each other as in figure 8. It would have been
`obvious to a person of skill in the art at the time of the alleged invention to
`mechanically couple LoPresti’s sound tubes as taught by Dombrowski
`because doing so would make IEM assembly easier, which a person of skill
`in the art would recognize. We have testimony from Mr. Young to that
`effect. The motivation to do so would have been for ease of IEM assembly.
`Further, according to Mr. Young's uncontroverted testimony in
`support of the petition, even without Dombrowski's teachings, a person of skill
`in the art would find adjoining the sound tubes to form a single unit to be an
`obvious engineering choice. Patent owner never submitted any testimony or
`other evidence to the contrary.
`JUDGE MOORE: So is mechanically coupled the same as being a
`single unit?
`MS. HOMEN: Yes, so I actually, I can address that with this slide.
`Patent owner has argued in this proceeding that Dombrowski's teaching of
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`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`mechanically coupled does not read on the claim because, supposedly, it
`doesn't teach that mechanical coupling adjoins the two sound bores to form a
`single unit. But if you actually look at what we're talking about here, it's
`obviousness. Obviousness is not an ipsissimis verbis test. Dombrowski
`does not have to use the same words of the claim to read on the claim.
`So there are dictionary definitions that are in the record reproduced on
`this slide, slide 15. Adjoining means touching or bounding at a point or a
`line, which is what is shown in figure 1 from the patent. The claim states the
`tubes are adjoining to form a single unit, meaning the sound bores are brought
`together to form a single unit. Dombrowski uses the words mechanically
`coupled. Couple, reproduced on this slide, means to join for combined effect
`and join means to put or bring together so as to form a unit. Therefore,
`Dombrowski teaches the tubes are brought together to form a single unit, just
`as claimed. It just uses different words.
`JUDGE MOORE: So are you saying Dombrowski teaches a single
`unit or, because Dombrowski teaches mechanical coupling, it would be
`obvious to make a single unit?
`MS. HOMEN: I believe that Dombrowski teaches the single unit.
`It teaches two sound tubes mechanically coupled to each other. And at the
`very least, it would be obvious to do so because it teaches mechanically
`coupling two tubes together in one of these devices.
`Turning to slide 16, the only other point of contention patent owner
`has raised with respect to claim one was an argument that Dombrowski does
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`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`not explicitly teach mechanically coupling the tubes prior to putting them into
`the housing, which is part of the claim. But this argument ignores what
`Dombrowski, as a whole, would have taught or suggested to a person of skill
`in the art. It also ignores that obviousness does not have to seek out precise
`teachings directed to the specific subject matter, for the Court can take account
`of the inferences and creative steps a person of skill in the art would employ,
`which, of course, comes from KSR.
`Dombrowski teaches a hearing instrument with two receivers and two
`mechanically-coupled sound tubes, all of which can be in the same housing
`that fits in the ear canal and concha. The state of the art at the time of the
`alleged invention included IEMs with two receivers and two sound tubes in
`the same housing that fits in the ear canal and concha, like Saggio reproduced
`at left on slide 16 and Harvey '806 reproduced at right. Dombrowski's
`hearing instrument included canal phones.
`Turning to slide 17. Therefore, to a person of skill in the art with the
`general knowledge he would possess, Dombrowski as a whole teaches using
`the mechanically-coupled sound tubes in a housing. A person of skill in the
`art would infer that the tubes could be mechanically coupled before
`introducing them to the housing. Dombrowski does not have to explicitly
`state the tubes are coupled prior to introducing them because a person of skill
`in the art is not an automaton and there is no need for Dombrowski to explain
`every detail because it's speaking to people skilled in the art.
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`Patent owner argued under a case called Arendi that finding
`obviousness would require the Board to rely on common sense to supply a
`missing limitation, but there is no missing limitation here. Dombrowski
`teaches the single unit. If prior to is the only point of novelty, there's only
`two ways to do it, either prior to or once they're inside. And choosing one
`of two known finite and predictable options epitomizes obviousness. But
`even if there were a missing limitation, Arendi holds that common sense can
`be used to supply that missing limitation. It just has to be supported by
`evidence and reasoned explanation, which is here.
`JUDGE MOORE: So the reference doesn't teach prior to. Is that
`
`right?
`
`MS. HOMEN: It doesn't explicitly teach prior to, but to a person of
`skill in the art it would, they could reasonably infer from that that you either
`have to adjoin the tubes prior to putting them in the housing or after they're
`put in the housing. And this is an obviousness challenge.
`JUDGE MOORE: So the last slide, 13, what is that from?
`MS. HOMEN: Paragraph 13 is testimony of petitioner's expert, Mr.
`Young.
`JUDGE MOORE: Okay.
`MS. HOMEN: So turning to slide 18, the final point of contention
`with respect to the unpatentability of the original claims is patent owner's
`contention that the petition must fail because petitioner did not explicitly
`recite reasonable expectation of success in the petition. But there is no
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`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`requirement for such a mechanical recitation, as the Board recognized in the
`institution decision. Not even the case patent owner relies on for this
`argument, which is Broadcom, requires a mechanical recitation. All it
`requires is that there be a plausible rationale as to why the prior art references
`would have worked together. That plausible rationale exists here.
` It
`comes from the prior art itself. LoPresti’s sound tubes transmit sound.
`Dombrowski's sound tubes transmit sound with mechanically-coupled sound
`tubes, and they can be used in a two-receiver hearing system just like the one
`taught by LoPresti. In light of these teachings, a person of skill in the art
`would have perceived a reasonable expectation of success in making the
`claimed invention, which is all that is necessary.
`That is the end of my presentation with respect to unpatentability of
`the original claims.
` If there are no questions, I can move on to
`unpatentability of the proposed claims.
`JUDGE MOORE: Please proceed.
`MS. HOMEN: So if the Board determines, as it should, that the
`original patent claims are unpatentable, it must decide whether patent owner's
`proposed amended claims from its contingent motion to amend are patentable.
`Before the Board determines whether the proposed amended claims are
`patentable, it must examine the motion to amend for procedural sufficiency
`and determine whether to enter the motion. Here the motion to amend is
`procedurally insufficient and, for that reason alone, can and should be denied.
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`Case IPR2017-01091 (Patent 8,925,674 B2)
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`Reproduced on slide 21 is the entirety of patent owner's chart from its
`contingent motion to amend that was supposed to be support for the written
`description support from the original disclosures. This chart simply contains
`unexplained string citations and doesn't have any argument or explanation as
`to why the cited portions of the original disclosure supposedly provide written
`description support.
`While Aqua Products placed the burden of proving unpatentability of
`proposed claims on petitioners, it did not change the burden of production in
`accordance with 35 U.S.C. § 316(d), nor did it remove the requirement that
`patent owner satisfy the statutory criteria, as well as any procedural
`obligations. Indeed, post Aqua Products guidance from the PTAB explicitly
`states that a patent owner still must meet the requirements for a motion to
`amend under 37 C.F.R. § 42.121, which includes the motion must set forth
`written description support.
`Patent owner failed to meet its burden on the motion to amend.
`However, the discussion of how the cited portions or, excuse me, the motion
`does not include a discussion of how these cited portions of the disclosure
`supposedly provide written description support. String cites in a chart
`without any further explanation do not show in the motion to amend written
`description support. There's many, many cases --
`JUDGE MOORE: I mean, wouldn't it be enough that you could just
`read those paragraphs and find what they're trying to add?
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`Case IPR2017-01091 (Patent 8,925,674 B2)
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`MS. HOMEN: No, it wouldn't be, your Honor, and that's because
`there are many, many cases from the PTAB that have said, procedurally, a
`patent owner must actually explain how somebody would have looked at the
`original disclosure and determined that the inventor was actually in possession
`of what is claimed. And in your motion to amend, it's still patent owner's
`burden to explain how there's written description support for this new
`limitation. When you just have a string cite in a chart, you're basically
`asking both the petitioner and the Board to go figure out your argument for
`you, which is not --
`JUDGE MOORE: But if that language was verbatim in those
`paragraphs, wouldn't that be enough?
`MS. HOMEN: I don't know that it necessarily would be enough, and
`here it's not verbatim in those paragraphs.
`JUDGE MOORE: But I'm just trying to figure out if it's a procedural
`problem or a substantive problem. And so we can look at those two
`paragraphs and we can find it or not, but I'm not sure that it's a procedural
`problem. Proceed.
`MS. HOMEN: Well, that takes me to my next slide, actually, where
`if you actually look at the paragraphs, the citations that were in the chart, you'll
`see that there's no highlighting on this slide and that's because the language
`that the patent owner is proposing to add—wherein the sound bores are not
`adjoined by mechanical coupling—is found nowhere in the original
`disclosure. The whole, the mechanical coupling and that the sound bores are
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`not adjoined by mechanical coupling, those are words that are nowhere in the
`original disclosure.
`JUDGE MOORE: So that's the language from the prior art?
`MS. HOMEN: Yes. And patent owner even said in the contingent
`motion to amend that the language was being added to try and argue around
`Dombrowski. Now, the added issue here is that this is a negative limitation,
`and a patentee cannot claim the absence of something unless there is an
`indication that the inventor actually invented a device that didn't have that
`something. The main cases on that are Santerus and Inphi, which are both
`federal circuit cases. So there's nothing in the original disclosure, much less
`these portions that were cited, that describes a reason to exclude mechanical
`coupling as a way to adjoin sound bores, like describing the disadvantages.
`That comes from the Santerus case, and that was an example of when a
`negative limitation is permissible. But there's nothing like that here.
`There's also no positive recitation of alternative ways to adjoin the
`sound bores of which mechanical coupling is one. That's from the Inphi case
`as an example of when a negative limitation is permissible. So, basically,
`you have a negative limitation that's been added to just try and argue around
`the prior art by saying we're not going to use the prior art's words, we're
`adjoining but we're not mechanically coupling, and you can't do that unless
`there's something to indicate that the inventor actually invented this system
`wherein the sound bores are not adjoined by mechanical coupling. There's
`no such indication in this disclosure.
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`JUDGE MOORE: Does the '555 patent talk about how you make the
`single unit?
`MS. HOMEN: It does not. Not explicitly, no. It just says, it
`basically repeats the claim language over and over again that the high-
`frequency sound bore and the low-frequency sound bore are adjoined to form
`a single unit and doesn't give any explicit direction as to how.
`So turning to slide 23, the unpatentability. So even if the motion to
`amend was procedurally proper, which it is not, even if there was written
`description support, which there is not, the proposed amended claims are
`obvious over the prior art of record in further view of Carlson '901.
`Slide 24. Patent owner has never explained in this proceeding what
`mechanical coupling means in the context of the original disclosure, possibly
`because it's not in the original disclosure. Instead, in the motion to amend,
`patent owner treated mechanical coupling as mere words in Dombrowski it
`was trying to avoid by claiming the bores are not adjoined by mechanical
`coupling. If all that matters here is the words, then, as Mr. Young originally
`testified in support of petitioner's opposition to the motion to amend, Carlson
`'901 states that other arrangements than mechanical coupling may be used to
`join these two sound bores shown in figure 4 from Carlson '901 on the slide.
`As he testified in support of the opposition to the motion to amend, it
`would have been obvious to a person of skill in the art to adjoin Dombrowski's
`sound tubes other than by mechanical coupling, as taught by Carlson '901,
`because, as Carlson '901 teaches, mechanical coupling is merely exemplary
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`and other arrangements may be utilized. A person of skill in the art would
`have been motivated to do so because it enables the person of skill in the art
`to achieve the benefit of easier IEM assembly while providing greater
`flexibility for how to achieve that benefit.
`JUDGE MOORE: Well, is that saying that mechanical coupling is
`exemplary or is it saying that that particular mechanical coupling --
`MS. HOMEN: I believe that that is stating that what is shown in
`figure 4 is a mechanical coupling but it's also stating that it will be recognized
`that this is exemplary only and other arrangements may be utilized. So it's
`teaching joining two tubes as a single unit but saying you can do it by ways
`other than mechanical coupling.
`Turning to slide 25, in its reply on the motion to amend, patent owner
`claimed that Mr. Young's cross-examination contradicted his original
`testimony with regard to this point about Carlson '901 and what it teaches, but
`it didn't. As you can see on this slide and the testimony that's reproduced
`here, his cross-examination testimony was in reference to what mechanical
`coupling means to him, not what it means in the prior art. And, actually,
`patent owner relies on this testimony because he says mechanical coupling
`means to me that if they are joined, essentially in a fashion that would be
`permanent or semi-permanent, he goes on to say that if they are coupled they
`are mechanical coupled. And patent owner relied on this testimony in its
`reply to the MTA. I believe this actually shows how nonsensical the new
`limitation is because, if all coupling is mechanical, then the proposed claim is
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`to a system with bores that are coupled but not coupled. Such a claim makes
`no sense, and it doesn't have any written description support. If there is a
`way to couple but not couple the sound bores, it was incumbent upon the
`inventor to describe that in the original disclosure, but the inventor did not do
`so. And so, accordingly, the motion to amend should be denied.
`And that is my final substantive slide. If you have any questions, I'd
`be happy to take them.
`JUDGE MOORE: Well, is it coupled and not coupled or is it a single
`unit and not mechanically coupled?
`MS. HOMEN: That's a good question, and I think it would have
`been very helpful if patent owner had described in its motion what it was
`supposed to be. There's nothing in the original disclosure to help us
`determine that because mechanical coupling is not in the original disclosure.
`Adjoining the sound tubes but not by mechanical coupling is not in the
`original disclosure, so we're all left here trying to decide what this is supposed
`to mean.
`JUDGE MOORE: Okay.
`MS. HOMEN: I will reserve the remainder of my time. Thank
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`you.
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`MR. RAVICHER: Good afternoon, Your Honors. So we're
`content with our briefs and we'll rest on those. Just a few issues which I
`think the Board has already highlighted today to discuss. Is joined to form a
`single unit synonymous with coupling? We don't think mechanical adds
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`Case IPR2017-01091 (Patent 8,925,674 B2)
`Case IPR2017-01092 (Patent 9,197,960 B2)
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`anything. We agree with Mr. Young. Mechanical coupling and coupling
`are the same. They're synonymous. But is the limitation forming a single
`unit and coupling synonymous? Do they mean the same thing? We don't
`believe so, as we've argued in our papers.
`If I take my laptop and plug it into its charger, they're now coupled
`together, but have I formed a single unit? My shoes are coupled to my feet.
`Am I now a single unit? So there is a difference in definition between
`coupling two things together that are separate and independent and joining
`them as a single unit.
`So because Dombrowski, which is the only reference they could
`find, all the background references they showed, they showed you two
`separate sound bores or tubes that were never even touching, much less joined
`as a single unit. They found one reference out of everywhere that found two
`tubes that actually touch at a point and says, well, we couple them together,
`but that's not what our patent is all about.
`Let me just say generally this is a very, candidly, between us, a very
`narrow manufacturing patent. This is not anything that makes the IEMs or
`the canalphones work better. It's a manufacturing patent. And plenty of
`canalphones had been built previously without forming the two sound bores
`as a single unit and plenty of canalphones can be made today without forming
`them as a single unit. So this is a pretty narrow patent we're talking about.
`So the only prior art they could find to teach forming a single unit was
`this mechanical coupling, which, as we've discussed in the papers, we don't
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,925,674 B2)
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`agree with. So that's the element that's missing from the prior art, the single
`unit. The limitation on that element that's missing is the prior to installation.
`Nothing teaches prior to. Everything that Ms. Homen just relied on here
`today, everything petitioner has relied on in their papers, is Mr. Young's
`testimony. But Mr. Young, on deposition, on cross-examination, he
`admitted he does not have an opinion regarding whether it would be better to
`adjoin two sound tubes together in a manufacturing IEM. He has no
`experience manufacturing IEMs. He’s never even really seen one, or
`dissected an IEM or a canalphone. He continued to say he did not have an
`opinion whether it would have been easier to combine two tubes into a single
`unit before or after they are installed in an IEM.
` He doesn't do
`manufacturing canalphones or IEMs. That's not what he does.
`JUDGE MOORE: Is it fair to say that it has to be either before or
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`after?
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`MR. RAVICHER: No, not necessarily. Many of these canalphones
`and IEMs are formed with part of the shell first and then you can put the tubes
`in, like the ear tip for example. There's a million ways to skin a cat. So you
`can form the ear tip first, which sometimes is customized, you know, to the
`user's ear or maybe the concha portion may be customized, so you may do
`that last. You may use the base that's in the ear tip first, then put the tubes
`into it, then put the shell around it, or you could form a large concha shell and
`then try to put the unit in and then put the tip on last. There's lots of different
`ways to do the manufacturing.
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`Case IPR2017-01084 (Patent 8,567,555 B2)
`Case IPR2017-01091 (Patent 8,
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