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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_____________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_____________________
`
`
`APPLE INC.
`Petitioner
`
`v.
`
`VALENCELL, INC.
`Patent Owner
`
`_____________________
`
`Case IPR2017-01704
`U.S. Patent No. 8,888,701
`_____________________
`
`PETITIONER’S REQUEST FOR
`REHEARING OF INSTITUTION DECISION
`
`
`
`
`
`
`Mail Stop “Patent Board”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`TABLE OF CONTENTS
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`
`
`Introduction ...................................................................................................... 1
`
`Relief Requested .............................................................................................. 2
`
`I.
`
`II.
`
`III. Argument ......................................................................................................... 3
`
`A.
`
`The Board erred in construing “configured to be positioned
`within an ear.” ....................................................................................... 3
`
`1.
`
`The Board appears to have misapprehended or
`overlooked teachings in the ’701 Patent that run contrary
`to its construction. ...................................................................... 4
`
`2. Misled by Patent Owner, the Board overlooked the
`patent’s own embodiments described as both positioned
`“within the ear” and extending beyond the pinna. .................... 8
`
`3.
`
`The Board’s reliance on Varma was misplaced......................... 9
`
`B.
`
`C.
`
`The Board erred in its obviousness analysis of the proposed
`combination of Ahmed and Kimura. ...................................................10
`
`The Board misapprehended Petitioner’s argument regarding the
`term “optical filter.” ............................................................................14
`
`IV. Conclusion .....................................................................................................15
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`
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`IPR2017-01704
`U.S. Patent No. 8,888,701
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`I.
`
`Introduction
`
`In its institution decision, the Board declined to grant review of US Patent
`
`No. 8,888,701 (the ’701 Patent), finding that the prior art’s earbuds adapted to fit
`
`in a person’s ear did not meet the broadest reasonable interpretation of the phrase
`
`configured to be positioned within an ear. The Board also found that the
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`combination of familiar elements according to known methods was not likely to be
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`obvious even though it does no more than yield predictable results. These findings
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`largely appear to be the result of reliance on mischaracterizations and flawed
`
`analysis espoused by Patent Owner, Valencell, in its Preliminary Response.
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`Emblematic of Patent Owner’s biased approach is its willingness to disclaim
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`its own disclosed embodiments in an effort to avoid the prior art. The ’701 Patent
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`describes an audio headset (below left) indistinguishable from an audio headset of
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`the prior art (below right). Yet Patent Owner persuaded the Board to overlook this
`
`Excerpt from FIG. 3 of ’701 Patent
`illustrating audio headset H with
`Valencell’s Healthset® technology
`
`
`
`
`
`Excerpt from p. 19 of the Petition
`illustrating a prior art audio set
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`
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`and other evidence unfavorable to its position. In accepting Patent Owner’s
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`approach, the Board has unduly narrowed claim 1 by limiting its scope to exclude
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`all disclosed embodiments. Despite the lack of express language, explicit
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`definition, manifest disavowal, or even support in the disclosure, Patent Owner
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`asked the Board to ignore “embodiments of the present invention” described in the
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`specification and hold that the broadest reasonable interpretation of “within an ear”
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`requires substantial enclosure by the pinna, which does not appear in the
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`specification, and which is contrary to explicit disclosure in the specification that
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`an earbud on a headset is still considered as “configured to be positioned within an
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`ear of a subject.” (Ex. 1001, 3:31-33.) No tenet of claim construction or principle
`
`of law condones this approach proposed by the Patent Owner.
`
`Patent Owner’s arguments with respect to the obviousness of the combined
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`teachings of the prior art is similarly flawed. Patent Owner mischaracterizes
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`Petitioner’s express position and legal precedent to try to avoid the uncontroversial
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`conclusion that it would have been obvious to mount electronic components on a
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`circuit board. At a minimum, the Board appears to have been misled by Patent
`
`Owner and misapprehended the required analysis set by binding precedent.
`
`II. Relief Requested
`Petitioner Apple Inc. (“Apple”) requests reconsideration under 37 C.F.R. §
`
`42.71(d)(2) of the Board’s Institution Decision (Paper 7) of U.S. Patent No.
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`8,888,701 (“the ’701 Patent”), entered on January 24, 2018. Specifically, Petitioner
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`requests reconsideration of the construction of “configured to be positioned within
`
`an ear,” its application of that construction to the proposed combination, and its
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`assessment of the rationale to modify Ahmed in light of the discussion herein.
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`III. Argument
`A. The Board erred in construing “configured to be positioned within an
`ear.”
`
`In its institution decision, the Board adopted Patent Owner’s proposed
`
`construction as the broadest reasonable interpretation of “configured to be
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`positioned within an ear.” Inst. Dec. at 17, see also 11 (noting Patent Owner’s
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`proposed construction of “an enclosure that fits substantially inside the pinna.”).
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`The Board relied on this interpretation in its determination. See Inst. Dec. at 26-27
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`(Petitioner argues that the housing recited in claim 1 need not be entirely “within
`
`an ear” … We disagree.). So even though Ahmed teaches earbuds “adapted to fit in
`
`a person’s ear” (Petition at 26), the Board held that this does not meet the claim
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`language, “configured to be positioned within the ear,” because Ahmed’s earbuds
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`are coupled to a harness that is not—in its view—positioned inside the pinna. See
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`Inst. Dec. 16-17, 26-27.1
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`1 The Board’s decision also discusses extra-record evidence (Inst. Dec. at 3-4),
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`which is inconsistent with the Petitioner’s position. Reliance of an institution
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`But this construction does not comport with the intrinsic evidence of the
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`’701 Patent or the principles of claim construction. As set forth below, the Board
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`appears to have overlooked or misapprehended notable teachings from the ’701
`
`Patent that run contrary to the assertions of Patent Owner and the analysis of the
`
`Board. The Board also appears to have been misled by the mischaracterizations
`
`and faulty analysis advanced by the Patent Owner.
`
`1.
`
`The Board appears to have misapprehended or overlooked teachings in
`the ’701 Patent that run contrary to its construction.
`
`When Board applied Patent Owner’s construction in comparing the
`
`teachings of the Ahmed reference, it considered whether the relevant housing
`
`limitation restricted the size of the housing in some manner. The Board ultimately
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`determined that Ahmed’s housing in a headset embodiment (shown in FIG. 10)
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`extends outside the pinna and therefore fails to meet the “configured to be
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`positioned within an ear” limitation. Inst. Dec. at 26-27. But this ignores an explicit
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`disclosure in the specification that “an earbud for a headset includes a housing that
`
`is configured to be positioned within an ear of a subject.” (Ex. 1001, 3:31-33
`
`(emphasis added).)
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`Further, neither the explicit claim language nor the adopted construction
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`decision on any evidence outside the record raises due process concerns, as neither
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`party has been given advance notice of such evidence.
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`literally preclude a housing from extending outside the pinna. See In re Papst
`
`Licensing Digital Camera Patent Litig., 778 F.3d 1255, 1270 (Fed. Cir. 2015). For
`
`example, a straw may be positioned within a cup while still extending beyond the
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`confines of the cup. Thus, the plain language does not strictly limit the claims to
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`housings entirely within a “boundary” of the ear.2 See Papst, 778 F.3d at 1265.
`
`Looking to the ’701 Patent specification, the written description only
`
`mentions the term “pinna” once and not in relation to any housing configuration.
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`Ex. 1001, 10:65. Indeed, the only disclosure that indicates any relationship
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`between the housing and the pinna is found in FIG. 3 (illustrating a headset
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`embodiment similar to that of Ahmed), FIGs. 4A and 4B (illustrating an earbud
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`monitor inserted in the ear), and FIG. 5 (illustrating a schematic of how light can
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`reach a detector through the ear). Each and every figure depicts a housing that in
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`some respect extends “outside” the pinna. Such counterfactuals were identified by
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`Petitioner (see Petition at 14 citing Ex. 1003, ¶60 (specifically discussing FIGs. 4
`
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`2 The Board did not explain how the pinna of the ear defines such a boundary. The
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`pinna as a whole does not enclose a space. And the extent to which the pinna
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`protrudes from one’s head (as well as size and shape) varies by the person such
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`that a housing might protrude beyond the pinna of one person but not another.
`
`Surely, a claim construction that renders a claim indefinite should be avoided.
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`and 5 in this regard)) and yet appear to have been overlooked by the Board.
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`Further, the Board and Patent Owner overlook an explicit statement in the
`
`specification that an earbud can be located on a headset and still be considered as
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`“positioned within an ear” – not simply “attached” to an ear. (Ex. 1001, 3:31-33.)
`
`The Board’s construction effectively rules out these disclosed embodiments
`
`from the scope of the claims. That was erroneous. A claim construction is too
`
`narrow when it does not include any of the embodiments described in the
`
`specification. See Vitronics, 90 F.3d at 1583. Because the specification does not
`
`describe any of the other disclosed embodiments as completely “within” the pinna,
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`none of the embodiments in the specification would fall inside the scope of claim 1
`
`as construed. “Such an interpretation is rarely, if ever, correct and would require
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`highly persuasive evidentiary support.” Vitronics, 90 F.3d at 1583.
`
`Neither the Board nor Patent Owner identified any support in the
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`Specification for a housing that meets the claims as construed.3 Patent Owner and
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`the Board discussed FIG. 11 of the ’701 Patent (Inst. Dec. at 14; Prelim. Resp. at
`
`24), but neither the figure nor the corresponding description informs the question
`
`of a boundary of the pinna or whether the housing may extend beyond it.
`
`
`3 Not only does this run afoul of claim construction principles, it also violates 35
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`U.S.C. § 112 (a), which acts as a prohibition against introducing new matter.
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`Assertions to the contrary appear entirely circular. A description of earbud housing
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`901 as “within the ear” cannot alone resolve what “within the ear” means in regard
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`to relation of the housing and the pinna.
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`In fact, the embodiment of FIG. 11 is wholly at odds with the Board’s
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`application of its construction to Ahmed. As the Board identified (Inst. Dec. at 14),
`
`the Specification states that:
`
`At least one supporting arm 902 may be connected to the earbud
`housing 901 to support a wire, electrical connections, and/or provide
`additional support around the ear. For example, a supporting arm 902
`may be used to house wires or wrapped around the ear to further
`support the earbud housing 901 within the ear.
`Ex. 1001, 17:66-18:4 (emphasis added). Thus, supporting arm 902 (which may be
`
`wrapped around the ear) is physically coupled to earbud housing 901 and houses
`
`electrical connections. Yet the ’701 Patent still describes earbud housing 901 as
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`“within the ear.” The Board appears to have misapprehended the significance of
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`this passage. The existence of supporting arm 902 (i.e., an additional housing
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`structure for wires or other electrical connection) coupled to the earbud, does not
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`preclude earbud housing 901 from being considered “within an ear.” The structure
`
`of Ahmed is no different in this respect. Like supporting arm 902 of FIG. 11,
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`harness 1014 of Ahmed performs an additional housing function and does not
`
`preclude earbuds 1002 or 1004 “adapted to fit in a person’s ear” from being
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`IPR2017-01704
`U.S. Patent No. 8,888,701
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`considered “configured to be positioned within an ear.”
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`2. Misled by Patent Owner, the Board overlooked the patent’s own
`embodiments described as both positioned “within the ear” and
`extending beyond the pinna.
`
`Apple specifically identified FIGs. 4A and 4B as relevant to the argument
`
`that the claimed housing need not be entirely within the ear. See Petition at 14 and
`
`Ex. 1003, ¶60. The Specification described FIGs. 4A and 4B as front and side
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`view, respectively, “of a human ear with an earbud monitor, according to some
`
`embodiments of the present invention, inserted therein.” Ex 1001, 7:26-31
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`(emphasis added). This description is strong evidence that “positioned within the
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`ear” should not be construed to exclude housing structures that extend beyond the
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`pinna from the scope of claim 1. See SciMed Life Sys., Inc. v. Advanced
`
`Cardiovascular Sys., Inc., 242 F.3d 1337, 1343 (Fed. Cir. 2001). Yet it appears
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`that FIGs. 4A and 4B were overlooked.
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`Patent Owner conceded that Fig. 4B shows a housing extending beyond the
`
`pinna. Prelim. Resp. at 23. Obviously, this embodiment completely undercuts
`
`Patent Owner’s proposed construction. Patent Owner suggests dismissal of this
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`evidence as not covered by the claims (Prelim. Resp. at 23), despite it being highly
`
`relevant to claim construction (Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed.
`
`Cir. 2005) (en banc)). But just because Patent Owner wishes to avoid the identified
`
`prior does not mean that it is proper to interpret the claims to do so. See Senmed,
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`Inc. v. Richard–Allan Med. Indus., Inc., 888 F.2d 815, 819 n. 8, (Fed. Cir. 1989).
`
`Patent Owner erroneously argued that the specification does not describe the
`
`housing shown in FIGs. 4A and 4B as “within the ear.” Prelim. Resp. at 23. That
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`statement may have misled the Board. For FIGs. 4A and 4B, the specification says:
`
`A specific example of a supportive earpiece fitting, a concha
`support that loops around the concha-helix area of the ear, is shown in
`the earbud 404 of FIG. 4. … [T]he earpiece fitting supports the
`earbud within the ear while also placing pressure against the earbud
`to keep the sensor module in place, away from outside light
`interference.
`Ex. 1001, 19:30-43. Thus, the Specification explicitly describes the housing 404 as
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`“within the ear,” contrary to Patent Owner’s vehement denial regarding FIG. 4
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`being encompassed by claim 1. This evidence appears to have been overlooked by
`
`the Board and is inexorably fatal to the adopted construction.
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`3.
`
`The Board’s reliance on Varma was misplaced.
`The Patent Owner appears to have led the Board astray in asserting that
`
`“configured to be positioned within” an ear should have the same meaning as
`
`“disposed within” the housing. See Prelim. Resp. at 22. The principle of internal
`
`consistency has no proper application to different phrases in a single claim. See
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`CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317
`
`(Fed. Cir. 2000); Chicago Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC, 677
`
`F.3d 1361, 1369 (Fed. Cir. 2012). Petitioner agrees that Varma supports the
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`general claim construction principle “that the same phrase in different claims of
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`the same patent should have the same meaning.” In re Varma, 816 F.3d 1352, 1363
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`(Fed. Cir. 2016) (emphasis added). But the two phrases in question, “a housing
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`configured to be positioned within an ear” and “a sensor module disposed within
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`the housing,” do not use the same language. In such a case, a contrary principle
`
`operates—different claim
`
`language connotes different meanings. CAE
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`Screenplates, Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317.
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`Further, there is no reason to assume that the term “disposed within”
`
`requires a complete and total enclosure. See, e.g., Ex. 1001, FIG. 16B. Even if
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`every embodiment of the ’701 Patent showed total enclosure, there is no general
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`principle of broadest reasonable construction standard that permits limiting the
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`claims to the disclosed embodiments. See Trading Techs. Int’l, Inc. v. eSpeed, Inc.,
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`595 F.3d 1340, 1352 (Fed. Cir. 2010).
`
`To the contrary, the ’701 Patent is replete with language that insists that the
`
`claims should not be narrowly limited to the disclosed embodiments. See, e.g., Ex.
`
`1001, 8:55-58, 20:13-15 (“[E]mbodiments of the present invention are not limited
`
`to any particular set of dimensions or to any shape or configuration.”), 28:5-6.
`
`B.
`
`its obviousness analysis of the proposed
`in
`The Board erred
`combination of Ahmed and Kimura.
`
`Regarding the combination of Ahmed and Kimura, the Board appears to
`
`have misapprehended Petitioner’s position regarding the proposed modification to
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`IPR2017-01704
`U.S. Patent No. 8,888,701
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`Ahmed’s headset embodiment.
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`The Board may have—at least in part—been misled by Valencell’s
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`contention that “Petitioner improperly relies on the circuit board configuration
`
`from Ahmed’s ear cuff embodiment as though it was part of the headset
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`embodiment…Petitioner provides no such analysis in either the Petition or its
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`expert declaration.” Prelim. Resp. at 34-35. None of these contentions are correct:
`
`1. Petitioner never asserted that the Board should treat one embodiment of
`
`Ahmed “as though it was part of” another. See Petition at 36 (stating that
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`Ahmed’s ear cuff embodiment is evidence of a well-known and
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`conventional mounting technique);
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`2. Boston Scientific does not stand for the proposition that “combining two
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`embodiments from the same reference requires an obviousness analysis.”
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`To the contrary, the Boston Scientific court was unpersuaded by Boston
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`Scientific’s argument that combining embodiments required recognition
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`of an additional benefit. See Boston Sci., 554 F.3d at 991 (“Combining
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`two embodiments disclosed adjacent to each other in a prior art patent
`
`does not require a leap of inventiveness.”) (emphasis added); and
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`3. Petitioner clearly articulated its obviousness analysis specifically for
`
`the proposed modification of Ahmed’s headset embodiment to have
`
`Ahmed’s LED light source 1008 and light sensor 1010 mounted on the
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`same side of a PCB. See Petition at 27-31, 36; Ex. 1003, ¶¶79-86.
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`Still, the Board appears to have relied on Valencell’s gross mischaracterizations in
`
`reaching its decision. See Inst. Dec. at 31 (“The import of Patent Owner’s
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`contention is that Petitioner relies on far too general reasons to combine the
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`teachings of the separate embodiments of Ahmed and of Ahmed and Kimura.”).
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`To be clear, the Petition did not propose combining some amalgam of
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`Ahmed’s headset embodiment with Ahmed’s ear cuff embodiment to form an ear
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`cuff/headset hybrid device. The Petitioner acknowledged that while Ahmed’s LED
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`light source 1008 is adjacent to light sensor 1010, Ahmed is silent as to LED light
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`source 1008 and light sensor 1010 being mounted on the same side of a PCB.
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`Petition at 25, 28-30. Petitioner discussed, however, that utilizing a circuit board
`
`would provide a measure of physical support for the optical components and their
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`circuitry. Petition at 30-31. But the Board appears to have overlooked or ignored
`
`this reasoning. “Under the correct analysis, any need or problem known in the field
`
`of endeavor at the time of invention and addressed by the patent can provide a
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`reason for combining the elements in the manner claimed.” KSR Int'l Co. v.
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`Teleflex Inc., 550 U.S. 398, 420 (2007).
`
`Further, as the Petition pointed out, such an arrangement (that is, an emitter
`
`and detector mounted on one side of a PCB) is illustrated in one of Ahmed’s
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`alternative embodiments (the ear cuff embodiment of FIG. 1) and provides that
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`natural suggestion that light source 1008 and light sensor 1010 would have been
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`mounted on the same side of a PCB. Petition at 27-30, 36. The ear cuff attachment
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`does not need to be bodily incorporated into the combination merely because the
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`PCB teachings are incorporated. Again, the Board seems to have overlooked or
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`misapprehended this reasoning as a legitimate rationale. As noted above and
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`contrary to the Board’s reasoning, the Boston Scientific court not only found that
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`the combination of two embodiments from the same reference was obvious, the
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`court deemed the combination a “strong prima facie showing” that could not be
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`overcome by the proffered indicia of nonobviousness. Boston Sci., 554 F.3d at 991.
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`Further still, the Petition showed that (1) the prior art included each element
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`claimed, although not necessarily in a single embodiment, with the only difference
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`between the claimed invention and the prior art being the lack of actual
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`combination of the elements in a single embodiment; (2) that one of ordinary skill
`
`in the art could have combined the elements as claimed by conventional methods,
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`and that in combination, each element merely performs the same function as it
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`does separately; and (3) that one of ordinary skill in the art would have recognized
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`that the results of the combination were predictable. See Petition at 17-37. Other
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`than the “positioned within the ear” limitation discussed above, the Board did not
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`make any findings contrary to these showings.
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`Yet the Board concludes that Petitioner’s reliance on conventional
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`techniques as a rationale for obviousness is insufficient. That is clear legal error.
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`“A person of ordinary skill is ... a person of ordinary creativity, not an automaton.”
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`KSR, 550 U.S. at 421. “[I]f a technique has been used to improve one device, and a
`
`person of ordinary skill in the art would recognize that it would improve similar
`
`devices in the same way, using the technique is obvious unless its actual
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`application is beyond his or her skill. KSR, 550 U.S. at 417.
`
`Notably, neither Valencell nor the ’701 Patent give the slightest indication
`
`that mounting an emitter and detector on the same side of a PCB was remotely
`
`inventive. Nor do they dispute Petitioner’s factual assertion that such an
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`arrangement for a reflection-type sensor was a conventional one. Petitioner
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`specifically identified support for that uncontested assertion. See Petition at 30
`
`(citing Ex. 1006, 15:1-7 (“The detecting part 504 is an ordinary reflection-type
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`sensor…”)); see also Ex. 1003, ¶33 (citing Ex. 1017, pp. 86-89).
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`It is difficult to fathom a more straightforward and rudimentary modification
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`to an electronic sensor than mounting electronic components of the sensor on a
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`circuit board. The Board’s request for a more profound rationale or advantage than
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`that provided exceeds the standards of the law. KSR, 550 U.S. at 421; Great Atl. &
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`Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 153 (1950).
`
`C. The Board misapprehended Petitioner’s argument regarding the term
`“optical filter.”
`
`Though the institution was not predicated on construction for the “optical
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`filter,” construction of the term may be relevant should the Board decide to
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`institute trial. The Board misapprehended Petitioner’s argument regarding the
`
`construction of this term. Petitioner did not argue that claim 15’s recitation of “an
`
`optical filter” was typographical error having to do with improper antecedent basis.
`
`It simply pointed out that the patent’s use of the term “optical filter” in claim 1 and
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`again in claim 15 is not consistent. While the claim does not require that the two
`
`optical filters be the same optical filter, Petitioner’s argument was that the
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`construction of the term “optical filter” should not change for different claims of
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`the same patent. The claims as stated need not have the same optical filter or even
`
`the same type of optical filter, but no ordinary meaning of the term “optical filter”
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`would encompass a signal processor (as seemingly referred to in claim 15).
`
`IV. Conclusion
`In light of the foregoing, Petitioner requests that the Board amend its
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`construction of the phrase “configured to be positioned within an ear” and its
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`obviousness analysis to find that the Petitioner demonstrated a likelihood of
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`success with respect to at least one claim.
`
`Respectfully submitted,
`
`/Michelle K. Holoubek, Reg. # 54,179/
`
`
`
` Michelle K. Holoubek (Reg. No. 54,179)
`Attorney for Petitioner
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`
`
`Date: February 23, 2018
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`IPR2017-01704
`U.S. Patent No. 8,888,701
`CERTIFICATE OF SERVICE
`
`
`
`The undersigned certifies that a true and correct copy of the foregoing
`
`PETITIONER’S REQUEST FOR REHEARING OF INSTITUTION
`
`DECISION was served on February 23, 2018 in its entirety on the following
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`counsel of record for Patent Owner:
`
`Justin B. Kimble (Lead Counsel)
`Jeffrey R. Bragalone (Back-up Counsel)
`Nick Kliewer (Back-up Counsel)
`T. William Kennedy (Back-up Counsel)
`Jonathan H. Rastegar (Back-up Counsel)
`BRAGALONE CONROY PC
`JKimble-IPR@bcpc-law.com
`jbragalone@bcpc-law.com
`nkliewer@bcpc-law.com
`bkennedy@bcpc-law.com
`jrastegar@bcpc-law.com
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`Respectfully submitted,
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`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`Date: February 23, 2018
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`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600
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`/Michelle K. Holoubek, Reg. # 54,179/
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` Michelle K. Holoubek (Reg. No. 54,179)
`Attorney for Petitioner
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