UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LECTROSONICS, INC.,
`Petitioner,
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`v.
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`ZAXCOM, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00972
`Patent 9,336,307 B2
`____________
`
`Record of Oral Hearing
`Held: August 5, 2019
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`
`
`Before SCOTT R. BOALICK, Chief Administrative Patent Judge,
`KALYAN K. DESHPANDE, and LYNNE E. PETTIGREW,
`Administrative Patent Judges.
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`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LECTROSONICS, INC.,
`Petitioner,
`
`v.
`
`ZAXCOM, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00972
`Patent 9,336,307 B2
`____________
`
`Record of Oral Hearing
`Held: August 5, 2019
`____________
`
`
`
`Before SCOTT R. BOALICK, Chief Administrative Patent Judge,
`KALYAN K. DESHPANDE, and LYNNE E. PETTIGREW,
`Administrative Patent Judges.
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`Case IPR2018-00972
`Patent 9,336,307 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`C. BRANDON RASH, ESQUIRE
`CORY C. BELL, ESQUIRE
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`901 New York Avenue, N.W.
`Washington, D.C. 20001-4413
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`DR. GREGORY J. GONSALVES, ESQUIRE
`Gonsalves Law
`2216 Beacon Lane
`Falls Church, Virginia 22043-1713
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`RITA C. CHIPPERSON, ESQUIRE
`Chipperson Law Group, P.C.
`163 Madison Avenue, Suite 220-40
`Morristown, New Jersey 07960
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`ON BEHALF OF THE PATENT OWNER:
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`The above-entitled matter came on for hearing on Monday, August 5,
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`2019, commencing at 2:01 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Case IPR2018-00972
`Patent 9,336,307 B2
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`P R O C E E D I N G S
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`JUDGE DESHPANDE: Thank you. Please be seated. Okay, we are
`here for IPR2018-00972. Could we have our appearances first. Who do we
`have for Petitioner?
`
`MR. RASH: Brandon Rash from Finnegan, Henderson, on behalf of
`the Petitioner, and also with me is Cory Bell, also from Finnegan.
`JUDGE DESHPANDE: Okay, thank you.
`DR. GONSALVES: My name is Gregory Gonsalves representing the
`Patent Owner, Zaxcom, and with me is Rita Chipperson.
`JUDGE DESHPANDE: Great. Before we get started, there was a
`little bit of housekeeping I wanted to take care of. We received in an email
`by request from Patent Owner to file the application 12/772,471. That’s
`Exhibit 2111, and which it is my understanding is that it was unopposed.
`We didn’t get a chance to respond to the emails. We’re going to go ahead
`and authorize just uploading that application as Exhibit 2111.
`DR. GONSALVES: Thank you, Your Honor.
`JUDGE DESHPANDE: And then our order for today's hearing
`spelled out the order we are going to go in. We have an hour for each side.
`Petitioner bears the ultimate burden. Petitioner will present arguments first.
`You may save up to 20 minutes for your rebuttal time.
`Patent Owner you will proceed to present your argument, you may
`save some time for sur-rebuttal. If there aren’t any questions, Petitioner, you
`may argue first. Just in case there's any confusion, let me introduce my
`panel. To my right is Chief Judge Boalick, to my left is Judge Pettigrew.
`MR. RASH: Can I reserve 20 minutes, please Your Honor.
`JUDGE DESHPANDE: Yes.
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`Case IPR2018-00972
`Patent 9,336,307 B2
`MR. RASH: Thank you. May it please the Board. I do have spiral
`bound copies of the demonstratives, if that would be helpful for any of Your
`Honors.
`JUDGE DESHPANDE: Sure. Thank you.
`MR. RASH: And also, Your Honor, I believe there was one other
`housekeeping matter with respect to Exhibit 2105, that’s the Dear
`Declaration.
`The Patent Owner had sent an email to the Board asking that that
`exhibit be expunged because the witness was not available for cross
`examination. Petitioner also filed a motion to expunge that document. I just
`wanted to bring that to your attention.
`JUDGE DESHPANDE: Yeah, we’ll take that under advisement, but
`we’ll deal with that in our final decision.
`MR. RASH: Great. Thank you, Your Honor. The Petition has 8
`Grounds, Grounds 1, 3, and 5 are the Strub Grounds. Grounds 2, 4, and 6
`add the Wood Reference, those are the Strub-Wood Grounds. And then
`Ground 7 and 8 are the Lee Grounds.
`I'd like to start with Grounds 1 through 6, the Strub and the Strub-
`Wood Grounds. Slide 2 shows the two independent claims of the 307
`Patent. On the left is Claim 1, on the right is Claim 12.
`There are two elements of the claims that the Patent Owner has
`directed its arguments to with respect to whether the prior art discloses them.
`The first is the wearable element in each of the claims. And the second is
`the combined-with element in each of the claims. And I'd like to start with
`the combined-with element.
`If we could turn to Slide 3. Slide 3 shows Claim 1 on the left, and
`Figure 3 from Strub on the right. Where I'd like to start is the claim
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`Patent 9,336,307 B2
`language itself, as well as the Petition’s position because I think there's been
`quite a bit of briefing that strays from what the claims actually say, and what
`the Petition’s position actually puts forward.
`Claim 1 is an apparatus claim. It recites an apparatus or system
`comprising at least one local audio device. And that local audio device
`includes four components: a local audio device receiver, an audio input
`port, a memory, and a control unit that is electrically coupled to those first
`three components. Except for the wearable element, the Patent Owner does
`not dispute that Strub discloses a local audio device with these four
`components.
`There are also elements surrounding those components that go to the
`intended purpose or use of the apparatus, whether or not those elements are
`limiting, the Patent Owner also does not dispute that those elements are
`present in Strub.
`What we’re left with is the last element, the wherein clause and this
`wherein element says that, “said local audio data may be retrieved after said
`locally recording and combined with said remotely recorded audio data.”
`Really, there is no dispute that Strub has local audio data, and that
`local audio data may be retrieved from the device and combined with said
`remotely recorded audio data. And that is all that Claim 1 requires.
`Now, instead of addressing this language in the claim, the Patent
`Owner started in the preliminary response arguing that the combined-with
`limitation requires replacing. And, if Your Honors recall in the Institution
`Decision, Your Honors rejected that argument and said that combined-with
`is not limited to replacing, and in the POR, the Patent Owner has dropped
`that argument. That is now an issue for a Motion to Amend.
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`In the POR, the Patent Owner emphasized that what this actually
`means is that the same local audio data has to be stored on the local audio
`device. The same local audio data must then be transmitted to a remote
`recorder and then that same audio data that is locally stored, and remotely
`transmitted must be combined.
`Now, in our reply, we pointed out that that argument is not consistent
`with the claims. And the reason is because the term that I just used was
`“local audio data”, and what we see is that the claims do not recite
`transmitting local audio data.
`And, in fact, the body of the claims don’t recite transmitting anything
`but in the preamble it at least recites, “wirelessly transmitting the locally
`generated audio,” and we pointed out in our reply that there's a difference
`between the audio that’s generated by a creator, or performer, and audio data
`that is stored in memory.
`And faced with that argument, the Patent Owner shifted its argument
`again in the sur-reply and said, “Well, what we meant was not the same
`audio data is what is stored and transmitted, it’s that the same local audio is
`what is stored, transmitted, and later combined.”
`So, the issue with that is that Claim 1 doesn’t recite those steps of
`storing, transmitting, and then later combining the two. For example, Claim
`1, the first place where it actually refers to local audio data is in the control
`unit element, and you can see there it just says the memory is for creating
`local audio data, and storing said local audio data in memory.
`And so, really, Claim 1 just says that the local audio data may be
`retrieved and combined. It’s almost as if that’s a hypothetical limitation on
`the data, as long as you can retrieve it and combine it, then that’s enough.
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`Patent 9,336,307 B2
`And we agree that Strub allows for that because Strub teaches sharing the
`data from the different devices and combining it with other data.
`JUDGE PETTIGREW: So, is your position that Claim 1 does not
`require the local audio data to be created from the locally generated audio
`that’s recited earlier in the claim.
`MR. RASH: That’s correct, Your Honor. Claim 1 does not recite
`that. Now, because --
`JUDGE BOALICK: What if we disagree with you, then what?
`MR. RASH: Yes, Your Honor. That’s going to be my next point is
`let's assume that the claims do require storing, transmitting, and combining
`the same local audio.
`And one point I wanted to make before showing why Strub still
`discloses that is, because local audio appears to now be the crux of the
`dispute as of the sur-reply, it is important to know where that local audio
`comes from.
`And in Claim 1 we can see in the local audio device, where it says, “a
`creator of said locally generated audio.” So, the local audio is what is being
`created by the creator or the performer. We’ll see in Claim 12 that that
`similarly recites, “local audio generated by at least one performer.”
`So, when we talk about whether the same local audio is being stored,
`transmitted, and combined, we want to think about it from the perspective of
`it’s the audio generated by a creator or performer.
`And so, now to answer your question directly, Your Honor. We could
`go to Slide 4, Strub discloses both Claim 1 and Patent Owner’s version of
`Claim 1. We know that, -- I guess, two things about Strub does that: one is
`that Strub discloses multiple devices, they're locally recording the same local
`audio, it’s the same event, it’s the same whoever is speaking; they're
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`Patent 9,336,307 B2
`wirelessly transmitting that same local audio to other devices that remotely
`record that local audio -- making it then remotely recorded audio and then
`Strub talks about the possibility of deficiencies in those recordings, and it
`discloses retrieving and combining those recordings of the same local audio
`that’s being recorded by each of the devices from the different devices.
`And one way Strub does that is through the use of time stamps for
`post-event synchronization. This disclosure satisfies Claim 1 because it
`shows that the local audio data may be retrieved and combined with
`remotely recorded audio data, which is what Claim 1 says. But it also
`satisfies the Patent Owner’s argument because all of the devices are
`recording the same local audio that is generated by any performer.
`So, it would not really make sense for Strub to do the post-event
`synchronization in combination if it’s not the same audio that’s being
`recorded, transmitted, and later combined. And so, recording the same --
`JUDGE DESHPANDE: When we say it’s the exact same audio, I’m
`assuming the way Strub describes it is that there's a bunch of different
`devices that are recording from a different time and space almost, and that’s
`what the synchronization in the audio recording is, so, is your position that it
`is the exact same audio from each of the devices that is being synchronized.
`MR. RASH: My position, Your Honor, is that it is the same audio
`that is being generated by a creator or performer as the claims require. It’s
`not necessarily the same local audio data because each device is recording
`different data.
`But that’s still consistent with the claims because the claims talk about
`replacing the remotely recorded audio data with the local audio data,
`expecting that those are going to be two different data.
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`So, there's nothing wrong with their being different data. At least
`under the Patent Owner’s interpretation, it’s still the same local audio. And
`recording the same local audio is ultimately what allows Strub to correct for
`the deficiencies that it contemplated in local audio data being stored on any
`particular device.
`If we could turn to Slide 5. Now this slide addresses Claim 12 which
`is different from Claim 1. Claim 12 is a method claim, and it recites four
`steps:
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`The first is locally receiving said local audio. Again, it’s generated by
`the performer, that’s the local audio we’re talking about. Transmitting said
`local audio. Locally recording said local audio as local audio data. And
`then finally, remotely recording said transmitted local audio.
`So, I think that there's perhaps a better argument here that we’re
`dealing with receiving, transmitting, storing the same local audio. Again, as
`long as we have the correct understanding of what local audio we’re talking
`about. And that’s the local audio that’s being generated by a performer.
`So, again, except for the wearable limitation that we’ll get to, the
`Patent Owner does not dispute that Strub discloses these four steps. Similar
`to Claim 1, however, we are left with the wherein clause and this is where
`the dispute arises. The clause states that, “said local audio data is retrieved,
`and is combined with said remotely recorded audio data.”
`Now, Strub discloses receiving and locally recording audio, as local
`audio data. I don’t think there's a dispute there. It discloses transmitting and
`remotely recording the same local audio as remotely recording audio data. I
`don’t think there's a dispute there. Strub also discloses later combining
`those two locally recorded and remotely recorded copies of the same local
`audio. So again, Claim 12 here, is satisfied.
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`Now, if we do get into this same local audio, same local audio being
`stored, transmitted, combined, again, that’s satisfied here for Claim 12 for
`the same reasons we discussed for Claim 1.
`If I could turn now to the Strub-Wood combination, Slide 6, even if
`Strub does not disclose the combined-with element, the Strub-Wood
`combination would render it obvious. Essentially, what the Patent Owner is
`trying to claim here is a decades old process of repairing drop-outs.
`It’s admitted that we have a prior art device that stores local audio,
`and wirelessly transmits that local audio to other devices, and Patent Owner
`essentially claims to have invented being able to repair that transmitted
`audio with a backup local copy. And that’s not novel.
`As we can see walking through the evidence, Strub recognizes the
`possibility of deficient recordings, and it even acknowledges in the 307
`Patent that wireless transmission errors such as drop-outs were known in the
`art, and, in fact, actually techniques of replacing the drop-outs were well-
`known.
`Petitioner’s expert, Mr. Tinsman, he cited actually a 1993 paper
`talking about a technique of replacing a drop-out with backup data. He
`showed that it was well-known in the art by the time of this patent.
`And, importantly, even the Patent Owner’s expert, Mr. DeFillippis,
`we cited an excerpt of his transcript here, on the bottom right of Slide 6,
`when he was asked whether a person of ordinary skill in the art had ways to
`fix drop-out problems due to loss of audio using the backup copy, he said,
`“Yes, a person skilled in the art would have been aware of those
`techniques.”
`So, the Patent Owner has never really tried to argue or dispute that
`retrieving a backup of a local recording to replace a corrupted portion of
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`previously transmitted audio, was known and entirely conventional by the
`time of the 307 Patent. And their own expert admits that.
`If we could go to Slide 7, we could have cited other examples from
`the prior art, but Wood is an example of just that: teaching a solution for
`drop-outs. Again, these are the undisputed points in the record.
`There's no dispute that Wood sends a request when a drop-out is
`detected so that the content can be resent and combined with the previously
`received audio. That’s exactly what that wherein step of Claims 1 and 12
`cover. And they even admit that Wood teaches combining replacement
`portions with the previously received broadcast signal.
`The preliminary response actually quoted the excerpt of Wood here on
`the right of Slide 7, where it discusses a method of repairing a broadcast
`signal -- it’s a wireless broadcast signal -- when there's a corruption in the
`signal in the signal there's a request for a replacement portion and it is
`combined, that replacement portion is combined with the received broadcast
`signal. Again, that’s exactly what the wherein clause of Claims 1 and 12
`require.
`We can go to Slide 8. The Petition set forth a motivation for
`combining Wood and Strub, and specifically combining Wood’s technique
`of fixing drop-outs into Strub’s system. It’s to produce the quality and to
`produce a program free of drop-outs from each of the recording units.
`And the Petition also showed a reasonable expectation of success
`because this drop-out repair was entirely conventional. Again, that has not
`been disputed.
`Strub’s system is already capable of storing, and transmitting local
`audio, receiving requests for replacement portions, retransmitting those
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`replacement portions, and combining the replacement portions with the
`previous transmitted audio.
`So, at most, to implement this technique into Strub, it would involve
`conventional, predictable software modification to allow a user to do it, the
`hardware is there.
`In the 307 Patent, in fact, it further confirms the conventionality of
`this functionality because the device in the 307 Patent that performs this
`functionality is a recorder. And, we can see from this excerpt that the Patent
`says it, “virtually any commercially available receiver and recorder” could
`be used. The Patent does not explain any special technique for repairing
`drop-outs, nor does it purport to invent that.
`Now, this is a position that was laid out in the Petition, and this is not
`the position, however, that the Patent Owner addresses in its briefing.
`Primarily, the Patent Owner, in its Patent Owner response, repeats what it
`did in its preliminary response, and which Your Honors have addressed.
`First, they raise straw man arguments that were not raised in the
`Petition. For example, they argue that Wood does not disclose other
`limitations in the claims. That the Petition did not rely on Wood to disclose,
`for example, a local audio device, that’s disclosed by Strub.
`And another thing the Patent Owner does is that it argues that certain
`embodiments in Wood that, again, are not relied on in the Petition, cannot be
`bodily incorporated in the Strub system. So, again, the Petition didn’t argue
`that, and obviousness doesn’t require that.
`So, for all of these reasons, the Strub and Strub-Wood combinations
`disclosed and render obvious the combined-with limitation.
`If Your Honors have no questions on the combined-with, I'd like to
`turn briefly to wearable. We could go to Slide 9.
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`The Patent Owner argues that wearable means small, lightweight,
`unobtrusive, easily hidden, not visible, and designed to be worn on the body
`of a creator of audio, i.e. performer.
`It’s Petitioner’s position that that is too narrow because there is no
`disclaimer or other support in the intrinsic record for that construction. The
`construction is also incomprehensible. It’s not clear when a device fits all of
`those things and when it doesn’t.
`And we pointed out in our briefing that when we asked their expert to
`try to help us understand when is a device wearable, and when is it not
`wearable, the expert basically could not do it and said it would depend on
`who’s wearing it.
`Now, in the POR, the Patent Owner argued that Strub’s device -- they
`conceded that Strub’s device is wearable by a person recording audio, but
`they said that’s not the same thing as being wearable by a creator, or a
`performer of the audio. And the reason for that is because a creator or a
`performer must move.
`Now, our Petition, and in our reply, and in cross examination of their
`expert, we showed that Strub repeatedly emphasizes the wearability of its
`device, and shows participants wearing it who are moving.
`And, in fact, Strub refers to them as being engaged in athletic activity
`and says that it’s particularly for situations where the recorder needs
`freedom of movement and not to distract or encumber.
`So, facing this evidence, the Patent Owner shifted a bit in its sur-
`reply, and now it focuses on the easily hidden element of its construction.
`First of all, wearable does not require easily hidden. There's, again, no
`disclaimer in the record that would limit it to that.
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`JUDGE PETTIGREW: Doesn’t that part of Patent Owner’s
`construction come directly from the testimony from Petitioner’s expert?
`MR. RASH: In part it does come from the testimony of Petitioner’s
`expert. Their expert just said, I agree. Our expert was actually being asked -
`- if we look at the context of the testimony that they cite to there, they're
`asking our expert different situations about what would be wearable and
`what would be not. And I think our expert had a similar problem as their
`expert in terms of deciding how you draw that line.
`And there were situations where the testimony was talking about, for
`example, an actor in a television or film situation where you may want it to
`be easily hidden. But our expert never argued that wearable in Claims 1 and
`12 require easily hidden. That was talking about particular situations where
`you may want it to be that way.
`But, let's assume that the claims do require easily hidden. The Strub
`device nonetheless discloses it. We can see in the figures, in Figure 1 for
`example, the device where the claimed components are located is actually
`hidden in the lower back of the vest there, in that component 108.
`So, all of the components that we identify as satisfying the claim
`limitations are not the entire vest that you see there. There are also remote
`controls involved, and video acquisition devices. Those are all separate and
`apart from what's actually claimed.
`The portion that’s actually claimed is hidden in the lower back of the
`vest there. And we also pointed to an excerpt of Strub, which you can see in
`the bottom right of Slide 9, where it talks about adapting its device to be
`relatively inconspicuous so that it could be hidden out of sight, as shown in
`the figures. Accordingly, Strub alone and in combination teaches the
`wearable element.
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`Case IPR2018-00972
`Patent 9,336,307 B2
`If I could go to Slide 10, and just hit on one more element that is at
`issue in Grounds 1 through 6, and that’s with respect to body pack. Claim 3
`is the only claim that recites a body pack. The Patent Owner does not define
`this term or formally address it, but it did state at one point in its Patent
`Owner response that Strub does not disclose a body pack. So, I just want to
`briefly address it here.
`The only guidance from the 307 Patent as to what a body pack is, is
`the device that’s shown here on Slide 10 in Figure 3B, it just says that’s a
`body pack. And so, the question is whether Strub discloses something
`consistent with that.
`Petitioner’s position is that it does. It’s a small, lightweight, wearable,
`recording unit, it’s integrated, it’s packaged more compactly, as these
`excerpts show. And if we actually look at Element 852, for example, in
`Figure 8B shown on this slide, this is the element that we called out in a
`parenthetical, in our Petition, when arguing the body pack limitation, you
`can see that the 852 housing is, essentially, a similar shape. It’s a thin, box
`shape, either square or rectangular. This is the piece that’s hidden in the
`back, lower part of the vest.
`And so, Strub does disclose a body pack, but even if Strub didn’t, we
`did show that Nagai discloses a body pack and that it would have been
`obvious to use that form factor in view of Nagai and Strub.
`There's nothing that is novel about a body pack. The patent doesn’t
`describe anything special about a body pack or claim its novelty. And the
`Patent Owner ultimately never even addressed our Nagai obviousness
`combination.
`I'd like to now turn to Lee Grounds. There's no dispute that if Lee is
`prior art, the Lee Grounds anticipate or render obvious the claims. It is
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`Case IPR2018-00972
`Patent 9,336,307 B2
`undisputed that Lee predates the earliest filing date, and so the burden of
`production shifts to Patent Owner to show two things with corroborating
`evidence: one, conception before May 31, and two, reasonable diligence in
`constructively reducing the invention practice until July 14, 2005.
`Starting first with conception, the conception is shown primarily by a
`claim chart that has plain language on the left and quotes from a draft
`application on the right. There's no explanation or analysis that accompanies
`that claim chart.
`And we believe this case is similar to the Valeo case where the Board
`said that merely putting claim language next to block quotes is not sufficient
`because it doesn’t explain why they provide support for the various
`limitations.
`If we could go to the next slide. Even if we do look at the substance
`of the claim chart, we pointed out several limitations that are facially
`deficient. When you look at the claim language on the left, the excerpts on
`the right do not disclose these limitations.
`The Patent Owner argued there's sufficient analysis but what they
`primarily did was to just requote the quotes from their claim chart. They just
`repeated those quotes. And again, mere quotes don’t explain the detail why
`the quotes support these limitations.
`The record also does not show reasonable diligence. First, there is a
`lack of explanation just like with the conception. We have two sentences in
`the POR that address diligence, and it alleged work on 17 days of the 45-day
`critical period.
`In the sur-reply, the Patent Owner argued those 17 days were just
`examples. But those were the 17 days that they listed, and the reason they
`listed them is because the documentary evidence, to the extent it exists,
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`Case IPR2018-00972
`Patent 9,336,307 B2
`would only indicate that a file was either opened on one of those days, or
`last modified on one of those days. In other words, there's no documentary
`evidence to show there was work beyond those 17 days.
`Now, the Patent Owner did attach declarations. Again, it’s an
`improper incorporation by reference if they attempt to include argument
`from those declarations that’s not in the POR. But even when we go to
`those declarations, they still do not explain what was done and when they
`did it.
`Next we have exhibits that are cited in the declarations. Now, those
`exhibits are not cited or discussed in the POR. So again, we have a problem
`with the incorporation by reference. But even if we do go in and look at
`those exhibits, we explained in our reply that they indicate little or no
`activity for four weeks out of the 6-week critical period. Our reply walks
`through each of those weeks to show that.
`Now, ultimately the Patent Owner here is attempting to rely on the
`work of its patent attorney, and the patent attorney admits to working on
`matters for other clients during the critical period. The case law is clear
`what is required when you're relying on the work of the patent attorney.
`And from the Bey case, the Federal Circuit case, they say, “Patent
`attorney must show that unrelated cases are taken up in chronological order.
`The attorney has the burden of keeping good records of when the cases are
`docketed, as well as days when specific work is done on the applications.”
`There's no evidence here of when cases were docketed or what specific work
`was done when.
`Now, the sur-reply on Pages 10 and 11, they do attempt to add some
`additional attorney argument to what was done during that time trying to
`emphasize that work was done nearly every day. But the two points I would
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`Case IPR2018-00972
`Patent 9,336,307 B2
`make unto that is, one, those arguments were not in the POR, and they are
`late to the extent that they are new.
`And then secondly, attorney argument is not evidence. So, even if the
`attorneys want to add to the record and try to explain further why there
`might have been work done every day, there's not evidence to support that.
`If I could turn next to spend a brief amount of time on the Motion to
`Amend. On Slide 13, this slide shows the two independent substitute claims
`that are intended to substitute for Claim 1 and Claim 12. Claim 15 is
`complete except I will note that the wherein clause that we talked about
`before was deleted. So it’s not shown here and the last clause that’s
`underlined was intended to replace that wherein clause.
`Ultimately, the only limitation that the Patent Owner argued, at least
`in the Patent Owner Motion, was the replacing element. This is where the
`original claim required that the local audio data was combined-with the
`remotely recorded audio data. Now, the amended claims take out
`“combined-with” and put in “replacing” so that local audio data replaces the
`remote audio data.
`Claim 15 does recite a wireless transmitter as well. That’s not
`disputed because Strub discloses a wireless transmitter.
`So, if we could turn to the next slide to address this replacing element.
`Strub and Wood renders this obvious really for the same reasons that we
`talked about with the combined-with.
`Our Petition actually said that Strub was more directed to the
`multitrack embodiments, and the Strub-Wood combination was specifically
`directed to the drop-out replacement embodiment. And so, really, this
`change to replacing doesn’t affect anything with respect to patentability.
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`It was already admitted in the preliminary response, I repeated here
`this excerpt from Wood in the top right of Slide 14, which was quoted in the
`preliminary response that “Wood discloses a method of repairing a broadcast
`signal -- that’s a wireless broadcast signal -- and when that signal is
`corrupted it requests a replacement portion, and combining the replacement
`portion with the received broadcast signal.”
`As the name suggests, or implies, replacement portions replace lost or
`corrupt portions of the previously transmitted audio.
`JUDGE DESHPANDE: Counsel, so it’s not your position that Strub
`alone would -- when reviewi
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