Trials@uspto.gov
`571-272-7822
`
`Paper No. 8
`Entered: July 27, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`K/S HIMPP,
`Petitioner,
`
`V.
`
`Ili HOLDINGS4, LLC
`Patent Owner.
`
`Case IPR2017-00781
`Patent 8,654,999 B2
`
`Before SALLY C. MEDLEY, DAVID C. McKONE,and
`KIMBERLY McGRAW,Administrative Patent Judges.
`
`MCcKONE,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`Paper No. 8
`Entered: July 27, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`K/S HIMPP,
`Petitioner,
`
`V.
`
`Ili HOLDINGS4, LLC
`Patent Owner.
`
`Case IPR2017-00781
`Patent 8,654,999 B2
`
`Before SALLY C. MEDLEY, DAVID C. McKONE,and
`KIMBERLY McGRAW,Administrative Patent Judges.
`
`MCcKONE,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`I.
`
`INTRODUCTION
`
`A. Background
`
`K/S HIMPP(“Petitioner”) filed a Petition (Paper 3, “Pet.”’) to institute
`
`an inter partes review of claims 1—9 and 16-19 of U.S. Patent No. 8,654,999
`
`B2 (Ex. 1001, “the °999 patent’’). Petitioner indicates that GN Hearing A/S
`
`(formerly GN Resound A/S), GN Store Nord A/S, IntriCon Corporation,
`Sivantos GmbH,Sivantos Inc., SonovaHolding AG, Sonova AG (formerly
`
`Phonak AG), Starkey Laboratories, Inc. (aka Starkey Hearing
`
`Technologies), Widex A/S, and William Demant Holding A/S are real
`
`parties in interest. Pet. 1. II Holdings 4, LLC (“Patent Owner’’), filed a
`
`Preliminary Response (Paper7, “Prelim. Resp.”). Upon consideration of the
`
`Petition and Preliminary Response, we conclude, under 35 U.S.C. § 314(a),
`
`that Petitioner has established a reasonable likelihood that it would prevail
`
`with respect to claims 1-9 and 16-19. Accordingly, weinstitute an inter
`
`partes review of claims 1—9 and 16-19 of the 999 patent.
`
`B. Related Matters
`
`Petitioner challenges claims 10—15 and 20 ofthe ’999 patent in K/S
`
`HIMPPv. III Holdings 4, LLC, Case IPR2017-00782 (PTAB). Pet. 2.
`
`C. Evidence Relied Upon
`
`Petitioner relies on the followingpriorart:
`
`Ex, 1003 (“‘Fichtl’’)
`
`US 8,787,603 B2
`
`July 22, 2014
`(filed June 19, 2012)
`
`
`
`Ex. 1004 (“Sacha”) US 2003/0215105 Al=Nov. 20, 2003
`
`Ex. 1006 (“Bisgaard”) US 6,741,712 B2
`
`May 25, 2004
`
`
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`IPR2017-00781
`Patent 8,654,999 B2
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`-
`
`Ex. 1007 (“Mangold”) US 4,972,487
`Ex. 1009 (“DE961”)
`. DE 19542961 C1
`
`Nov. 20, 1990
`May 15, 1997!
`
`Petitioner also relies on the Declaration of Les Atlas, Ph.D. (Ex. 1008,
`
`“Atlas Decl.”).?
`
`D. The Asserted Grounds
`
`Petitioner asserts the following grounds of unpatentability (Pet. 5):
`
`
`
`Fichtl, Mangold, and Bisgaard
`
`§ 103(a)
`
`1-5 and 16
`
`Fichtl, Mangold, Bisgaard, and
`
`
`
`
`
`Fichtl, Sacha, Mangold, and DE961_|§ 103(a) 6—9 and 17 ‘
`
`
`
`
`
`
`
`
`
`
`
`Fichtl, Mangold, Bisgaard, Sacha,
`ond DES
`Me
`
`|g o300
`
`
`
`
`
`E. The 999 Patent
`
`The °999 patent describes a hearing aid system. By way of
`
`background, the ’999 patent explains that an individual’s hearing loss can
`
`vary across audio frequencies andthat an audiologist typically measures the
`
`individual’s hearing capacities in various environments and tunes or
`
`' Petitioner relies on a verified English translation of a German publication.
`Wecite to the English translation.
`* Patent Ownerargues that we should give Dr. Atlas’s declaration no weight
`because it merely repeats the arguments in the Petition. Prelim. Resp. 16—
`18. Although we evaluate the extent to which expert testimony discloses the
`underlying facts or data on whichit is based to determine the weight to give
`that testimony, see 37 C.F.R. § 42.65(a), Patent Owner does not persuade us
`at this stage that any of Dr. Atlas’s testimony should be discountedentirely.
`
`3
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`IPR2017-00781
`Patent 8,654,999 B2
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`calibrates a hearing aid for the individual to compensate for that individual’s
`
`particular hearing loss. Ex. 1001, 1:46-55. The patent further notes that the
`
`abrupt transition to a hearing aid can be traumatic or distressful for the
`
`individual. Jd. at 1:58-67. To addressthis, the ’999 patent describes a
`
`hearing aid system in which,“rather than abruptly implementing the hearing
`
`correction for the user immediately, the hearing aid progressively applies
`
`incremental adjustments to progressively or gradually adjust the user’s
`
`experience from an uncompensated hearing level to a fully compensated
`
`hearing level.” Jd. at 2:30—34.
`
`
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`IPR2017-00781
`Patent 8,654,999 B2
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`Figure 2, reproduced below,illustrates an embodimentof the hearing
`
`aid system of the ’999 patent:
`200 “Na
`
`202
`
`204
`
`218
`
`Hearing Aid
`
`Incremental Hearing
`Corrections
`
`220
`
`222
`
`224
`
`210
`
`212
`
`270
`
`272
`
`276
`
`260
`
`
`
`\
`
`252
`
` Computing Device
`254
`
`274
`
`
`
`
`
`Hearing Aid Profiles
`
`Hearing Correction Filters
`Incremental Adjustment
`Module
`
`Incremental Hearing
`Corrections
`
`Interface
`
`
`
`
`
`
`
`at
`
` 264
`
`Processor
`
`Input Interface
`-
`Display
`Interface
`
`256
`
`258
`
`.
`Transceiver
`
`Network
`
`FIG. 2
`
`Figure 2 is a block diagram of a hearing aid system. Jd. at 2:10-12. Hearing
`
`aid 202 and computing device 252 (e.g., a personal digital assistant (PDA) or
`
`smart phone), communicate using transceivers 216 and 264,through a wired
`
`
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`IPR2017-00781
`Patent 8,654,999 B2
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`or wireless channel(e.g., a Bluetooth channel or network 230). Jd. at 5:49-
`
`61, 6:3-16. Hearing aid 202 includes memory 204 andprocessor 210 to
`
`store and process hearing aid profiles 218 and hearing correction filters 220.
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`Id. at 5:61-6:2. Computing device 252 includes memory 254 and processor
`
`260 for storing and processing hearing aid profiles 270 and hearing
`
`correction filters 272. Id. at 6:29-35.
`
`Processor 210 of hearing aid 202 shapes acoustic signals according to
`
`a “hearing aid profile,” which the patent explainsis “a collection of acoustic
`
`configuration settings,” and provides the shaped acoustic signals to a speaker
`
`or bone conduction elementto correct a user’s hearing loss. Jd. at 2:40—-46.
`
`In one embodiment, processor 210 applies “a collection of hearing
`
`correction filters” that “include a series of hearing correction adjustments
`
`designed to be applied in a sequence overa period of time to provide
`
`incremental corrections for the user’s hearing loss.” Jd. at 3:2—7. For
`
`example, ‘“‘a first hearing correction filter attenuates the hearing aid profile
`
`by a pre-determined amount”and “[e]ach of subsequent hearing correction
`
`filter in the sequenceincreasesthe correction provided by (decreases the
`
`attenuation applied to) the hearing aid profile to some degree, until the
`
`sequence is complete and the hearing aid profile is fully applied to provide
`
`the desired hearing correction for the user.” Jd. at 3:7-15.
`
`In one embodiment, processor 210 of hearing aid 202 selectively
`
`applies a hearing correction filter 220 to selected hearing aid profile 218 to
`
`provide hearing correction for a period of time before advancing to a next
`
`incremental hearing correction filter 220 in a sequence. Jd. at 6:42—52. In
`
`another embodiment, hearing aid 202 receivesa trigger from computing
`
`device 252 through the communication channel andselectsa filter from
`
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`IPR2017-00781
`Patent 8,654,999 B2
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`hearing correction filters 222 for application to a selected hearing aid profile
`
`218. Id. at 7:9-16. In someinstances, hearing aid 202 can signal computing
`
`device 252 to retrieve an incremental hearing correction filter 276 from
`
`memory 254. Id. at 9:62-65.
`
`Claims | and 6 are the only independentclaimsat issue in this
`
`proceeding. Claim 1, reproducedbelow,is illustrative of the invention:
`
`1.
`
`A hearing aid comprising:
`
`a microphoneto convert soundinto electrical signals;
`a speakerto output audible sound;
`a processor; and
`
`a memoryto store instructions, which when executed by
`the processor, cause the processorto:
`
`receive a selection of a hearing aid profile from a
`plurality of hearing aid profiles, the selected
`hearing aid profile configured to modulate
`the electrical signals to a level to compensate
`for a hearing impairmentofa user;
`
`apply a first one of a sequence of incremental
`hearing correction filters to the modulated
`electrical signals to produce a modulated
`output signal to reduce the amplitude of the
`modulated electrical signals produced by the
`selected hearing aid profile to a first level that
`is less than a level to compensate for the
`hearing impairmentofthe user;
`
`select a second one of the sequence of incremental
`hearing correction filters
`in response to
`receiving a trigger,
`the second one being
`designated to follow the first one in the
`sequence of incremental hearing correction
`filters and to reduce the amplitude of the
`modulated electrical signals produced by the
`
`
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`IPR2017-00781
`Patent 8,654,999 B2
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`selected hearing aid profile to a second level
`that is greater than the first level and less than
`the level
`to compensate for
`the hearing
`impairment of the user; and
`
`cause the speakerto output an alert whena final one
`of the sequence of incremental hearing
`correction filters is being applied, the final
`one being the last hearing correctionfilter of
`the
`sequence
`of
`incremental
`hearing
`correction filters.
`
`II. ANALYSIS
`
`A.
`
`Claim Construction
`
`Weinterpret claims of an unexpired patent using the broadest
`
`reasonable constructionin light of the specification of the patent in which
`
`they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee,
`
`136 S. Ct. 2131, 2144-45 (2016). In applying a broadest reasonable
`
`construction, claim terms generally are given their ordinary and customary
`
`meaning, as would be understood by oneof ordinary skill in the art in the
`
`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`
`1249, 1257 (Fed. Cir. 2007).
`
`1. “hearing correctionfilter”
`
`The °999 patent describes “hearing correction filter” as follows:
`
`As used herein, the term “hearing correction filter” refers to a
`collection offilters for hearing aid 202, which are applicd by
`processor 210 within hearing aid 202 to a hearing aid profile to
`reduce the level of correction provided to the user by application
`of the hearing aid profile. The collection of hearing correction
`filters may include a series of hearing correction adjustments
`
`
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`IPR2017-00781
`Patent 8,654,999 B2
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`designed to be applied in a sequence over a period of time to
`provide incremental corrections for the user’s hearing loss to
`ease the user’s transition from uncompensated to corrected
`hearing.
`
`Ex. 1001, 2:65—3:7. Both parties advance that this description provides an
`
`express definition of “hearing correctionfilter,” yet both parties reach
`
`different conclusions as to what that definition is. Pet. 13-15; Prelim.
`
`Resp. 13-14.
`
`Petitioner argues that, according to this description, a “hearing
`
`correctionfilter” is applied by a processorto a hearingaid profile to reduce
`
`the level of correction provided to a user by application of the hearing aid
`
`profile. Pet. 13-14. Patent Owner, on the other hand, contends that an
`
`individual “hearing correction filter” is itself a “collection offilters” that are
`
`applied to a hearing aid profile. Prelim. Resp. 13-14.
`
`Werecognize, as Patent Ownerpoints out, that the °999 patent states
`
`that “the term ‘hearing correctionfilter’ refers to a collection of filters,”
`
`suggesting that a single hearing correction filter actually is a collection of
`
`filters. Ex. 1001, 2:65-66. Nevertheless, the patent’s use of the term in
`
`context indicates that a hearing correction filter actually is a single filter that
`
`is amemberof a collection. Specifically, the patent explains that “[t]he
`
`collection of hearing correction filters may includea series of hearing
`
`correction adjustments designed to be applied in a sequenceovera period of
`
`time.” Jd. at 3:2-5. The patent then expandson this explanation of a
`
`collection of filters:
`
`In such an instance,a first hearing correction filter attenuates the
`hearing aid profile by a pre-determined amount,
`limiting the
`adjustment provided by hearing aid 202. Each of subsequent
`hearing correction filter in the sequence increases the correction
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`IPR2017-00781
`Patent 8,654,999 B2
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`provided by (decreasesthe attenuation applied to) the hearing aid
`profile to some degree, until the sequence is complete and the
`hearing aid profile is fully applied to provide the desired hearing
`correction for the user.
`
`Ex. 1001, 3:7-15. Here, the patent describes individual hearing correction
`
`filters that are part of a collection and are individually applied in sequence.
`
`Patent Owner(Prelim. Resp. 14) argues that additional description in
`
`the specification supports its construction, namely:
`
`Further, it should be understood that the filter or correction used
`to achieve the correction lines and ultimately the hearing aid
`profile is composedofa plurality of coefficients, parameters, or
`other settings that are applied by a processor of the hearing aid
`to alter various characteristics of the sounds to modulate them to
`compensate for the user’s hearing impairment.
`
`Id. at 5:42-48. This description on its face describes a single filter that is
`
`composed of multiple coefficients or parameters. Nevertheless, Patent
`
`Ownerarguesthat an individual hearing correction filter must include a
`
`collection offilters because it adjusts a plurality of coefficients, parameters,
`
`and settings to alter various characteristics of sound. Prelim. Resp. 14.
`
`Patent Ownerdoes not advance any persuasive evidence or argumentthat an
`
`individual filter must be limited to adjusting a single coefficient or parameter
`
`such that an individual hearing correction filter cannot adjust multiple
`
`coefficients or parameters. Thus, on the current record, this passageis
`
`equally consistent with Petitioner’s proposed construction.
`
`Moreover, we note that claim 2, for example, recites “wherein each of
`
`the incremental hearing correction filters comprises a collection of acoustic
`
`configuration settings configured to modulate the electrical signal... .”
`
`This suggests that a hearing correction filter, in claim 1, need only include a
`
`10
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`single acoustic configuration setting, contradicting Patent Owner’s argument
`
`that it must includea plurality.
`
`On this record, based on the definition in the specification when
`
`viewedin its proper context, we construe “hearing correction filter” to mean
`
`“a filter that is applied by a processor within a hearing aid to a hearing aid
`
`profile to reduce the level of correction provided to the user by application
`
`of the hearing aid profile.”
`
`Petitioner further contends that a hearing correction filter should not
`
`be construed to covera filter that is applied to modulate an audio signal that
`already has been modulated by the hearing aid profile, arguing that such a
`construction would be contradicted by the embodiments and definition
`
`provided bythe specification. Pet. 14-15. In its proposed construction of a
`
`related term, “incremental hearing correctionfilter,” Patent Owner appears
`
`to agree. Prelim. Resp. 16 (“The Board must adopt a construction for
`
`‘incremental hearing correction filter’ consistent with the specification—
`
`specifically, the incremental hearing correctionfilter is applied to the
`
`hearing aid profile.”).
`
`Nevertheless, we decline to place such a restriction on “hearing
`
`correctionfilter,” as it is inconsistent with the claim languageitself, at least
`
`in some instances. For example, claim | recites “the selected hearing aid
`
`profile configured to modulate the electrical signals to a level to compensate
`
`for a hearing impairment of a user” and “apply a first one of a sequence of
`
`incremental hearing correction filters to the modulated electrical signals to
`
`produce a modulated output signal.” In this instance, the hearing correction
`
`filter is applied to the electrical signals already modulated by the hearing aid
`
`11
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`profile. Compare with claim 6 (“apply a first hearing correction filter to the
`selected hearing aid profile’).
`
`2. “incremental hearing correctionfilter”
`
`Petitioner contends that “incremental hearing correctionfilter,” as
`
`recited in claim 1, should be construed as “a hearing correction filter applied
`
`to provide a modulated output signal having a level that is within a range
`
`between an uncompensated output level and the desired output level.”
`
`Pet. 16. Petitioner bases its proposal on description in the specification that
`
`it contendsis definitional.
`
`/d. at 15—18 (citing Ex. 1001, 3:24—32).
`
`“Incremental hearing correction filter’ is related to two terms defined
`
`in the specification. As explained above, the specification defines “hearing
`
`correction filter.” Ex. 1001, 2:65-3:15. The specification also provides a
`
`definition of “incremental hearing correction”:
`
`As used herein, the term “incremental hearing correction”refers
`to a collection of acoustic configuration settings for hearing aid
`202 (such as a hearing aid profile described above), which are
`used by processor 210 within hearing aid 202 to shape acoustic
`signals to correct
`for a user’s hearing loss.
`Each of the
`incremental hearing corrections
`represents an intermediate
`hearing adjustment to provide a modulated output signal having
`a level that is within a range between an uncompensated output
`level and the desired output level.
`In one embodiment, the
`incremental hearing corrections can be formed by applying one
`or more hearing correctionfilters to a selected hearing aid profile
`to produce the intermediate hearingaid profiles.
`
`Id. at 3:24-36. Taking these definitions together, we construe incremental
`
`hearing correctionfilter to be a hearing correctionfilter (as construed above)
`
`that represents an intermediate hearing adjustmentto provide a modulated
`
`12
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`IPR2017-00781
`Patent 8,654,999 B2
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`output signal having a level that is within a range between an
`
`uncompensated output level and the desired outputlevel.
`
`Patent Ownerrespondsthat Petitioner’s proposal “eliminates the
`
`requirementthat thefilter is applied to the hearing aid profile, seeking to
`
`divorce the term from its context.” Prelim. Resp. 16. Patent Owner
`
`proposesan alternative construction, namely, “a hearing correction filter
`
`applied to the selected hearing aid profile to provide a modulated output
`
`signal having a level that is within a range between an uncompensated
`
`.
`output level and the desired output level.” Jd. As explained in our
`construction of “hearing correction filter,” above, Petitioner proposes that
`
`hearing correction filters apply to hearing aid profiles rather than modulated
`
`signals output from such profiles. See Pet. 14-15. As we note above,
`
`however, the claims themselves expressly recite what the hearing correction
`
`filters apply to. Thus, we reject Patent Owner’s argumentas to “incremental
`
`hearing correction filter” for the same reasons wereject Petitioner’s
`
`argumentas to “hearing correctionfilter.”
`
`B.
`
` Asserted Grounds of Unpatentability
`
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`
`between the claimed subject matter and thepriorart are “such that the
`
`subject matter as a whole would have been obviousat the time the invention
`
`was made to a person havingordinary skill in the art to which said subject
`matter pertains.” We resolve the question of obviousness on the basis of
`
`underlying factual determinations, including: (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`
`priorart; (3) the level of skill in the art; and (4) objective evidence of
`
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`nonobviousness,i.e., secondary considerations.? See Graham v. John Deere
`
`Co. ofKansas City, 383 U.S. 1, 17-18 (1966).
`
`I. Level ofSkill in the Art
`
`Petitioner contends that a person ofordinary skill in the art “would
`
`have been someonewith a bachelor’s degree in electrical or computer
`
`engineering, or the equivalent, and at least two years of experience in audio
`
`signal processingfor audiological products” and that “[g]raduate education
`could substitute for work experience, and additional work
`experience/training could substitute for formal education.” Pet. 11 (citing
`
`Ex. 1008 {J 22—28) (emphasis added). Petitioner relies on the Atlas
`
`Declaration, whichstates that a skilled artisan “would have had a B.S.
`
`degree in electrical or computer engineering, or the equivalent, and at least
`two years of experience in hearing aid systems.” Ex. 1008 { 28 (emphasis
`
`added).
`Patent Ownerpointsout that the statements of relevant work
`
`experience by Petitioner (signal processing for audiological products) and
`
`Dr. Atlas’s (hearing aid systems) are “slightly different” and concludesthat
`
`there is no evidence supporting Petitioner’s proposedlevel of skill. Prelim.
`
`Resp. 18-19.
`
`It is not necessary to resolve the apparent dispute to reach a
`
`determination on the merits, since we find that the level of ordinary skill in
`
`the art is reflected by the prior art of record. Okajima v. Bourdeau, 261 F.3d
`
`3 The record does not include allegations or evidence of objective indicia of
`nonobviousness.
`
`14
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`1350, 1355 (Fed. Cir. 2001) (the priorart itself can reflect the appropriate
`
`level of skill in the art).
`
`2. Alleged Obviousness over Fichtl, Mangold, and Bisgaard
`
`Petitioner contends that claims 1—5 and 16 would have been obvious
`
`over Fichtl, Mangold, and Bisgaard. Pet. 18-45. For the reasons given
`
`below, Petitioner has demonstrated a reasonable likelihood that it would
`
`prevail with respect to this challenge.
`
`a. Overview ofFichtl
`
`Fichtl describes a hearing device that implements an acclimatization
`
`algorithm. Ex. 1003, Abstract. Acclimatization is the process by which,
`
`over the course of several weeks to half a year, the intensity of a hearing
`
`device gradually is increased from aninitially low intensity to a target
`
`intensity. Jd. at 1:19-26.
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`Fichtl’s hearing device is depicted in Figure 1, reproduced below:
`2
`9
`
`3
`
`12
`
`y~
`
`Fig. 1
`
`Figure 1 is a schematic diagram ofhearing device 1.
`
`/d. at 3:1—2. Sounds
`
`are picked up by microphone2, processed by signal processor 9, and
`
`presented to hearing device user 10 by receiver 3. Jd. at 3:23-25. User 10
`
`controls the magnitude of amplification using volume control 4. Jd. at 3:25—
`
`26. Controller 6 sets hearing device parameters whenhearing device 1 is
`
`switched on or when volume control 4 is actuated. Jd. at 3:28-30. Non-
`
`volatile memory 7 stores parameters when hearing device 1 is off. Id. at
`
`3:30-32. Controller 6 executes an acclimatization algorithm. Jd. at 3:32-34.
`
`16
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`Fichtl’s acclimatization algorithm is described with respect to
`
`Figure 2, reproduced below:
`
`AP
`
`Fig. 2
`
`Figure 2 is a graph that depicts how an audio processing parameter (“APP”)
`
`is changed overtime in a hearing aid. Jd. at 3:3-5. Examples of APP
`
`include volume, treble, and noise cancelling.
`
`/d. at 3:42-47.
`
`At time A, an audiologist (11 in Figure 1) programs into memory 7
`
`initial power-on value iPOV andtarget power-on value tPOV for the APP,
`
`for example tPOV being 10 dB higher than iPOV. Jd. at 3:42-48. At time
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`B, user 10 switches the hearing aid on and the APPis set to iPOV. Jd. at
`
`3:49-53. An intermediate value of APP, X, is increased at time C. Jd. at
`
`3:54-57. At time D,the user selects the APP to be two steps higher than the
`
`original audio processing parameter, APPyer, and X is increased faster. Jd. at
`
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`3:58-61. At time E, the user selects the APP to be one step lower than
`
`APP,es, and X is increased more slowly. Jd. at 3:62 65.
`
`The user switchesthe hearing aid off at time F and intermediate value
`
`X is stored in memory7 asthe first replacement power-on value rPOV.
`
`Id. at 3:66-4:4. The user switches the hearing aid back on at time G and the
`
`APPis set to rPOV andintermediate value X is increased. Jd. at 4:5—7. At
`
`time H, intermediate value X reaches tPOV andis not changed anymore,at
`
`whichtime the acclimatization phase ends. /d. at 4:8-11. Whenthe user
`
`switches the hearing aid off, as at time I, the value stored in memory7,
`
`second replacement value rPOV»2, is tPOV. Jd. at 4:12—-15.
`
`b. Overview ofMangold
`
`Mangold describes an auditory prosthesis (hearing aid) with
`
`datalogging capability. Ex. 1007, Abstract. Figures 2 and 3, reproduced
`
`below,illustrate an example:
`
`RECEIVER
`
`PROGRAMMABLE
`
`22
`20
`18
`
`
`
`
`
`MANUAL.
`
`
`
`PROGRAM
`PROGRAMMABLE
`MEMORY WITH LOGIC
`
`
`
`
`CONTROL
`AND DATALOGGING
`DECODER
`
`
`
`
`
`MICROPHONE
`
`SLAVE MEMORY
`
`
`
`SIGNAL PROCESSOR
`
`SPEAKER
`
`FIG——2
`
`18
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`24
`26
`32
`
`
`
`
`MANUAL
`PROGRAMMABLE
` MICROPHONE
`
`PROGRAM
`APS
`
`
`CONTROL
`WITH LOGIC
`
`
`
`
`
`
`
`TRANSMITTER
`
`PROGRAMMABLE
`CODER
`
`FIG——3
`
`Figure 2 is a functional block diagram of remote-controlled programmable
`
`hearing aid 4 and Figure 3 is a functional block diagram of remote control
`
`unit 6 for use with hearing aid 4. Id. at 2:42-48.
`
`Hearing aid 4 includes microphone10, signal processor 12 with slave
`
`memory, speaker 14, and programmable memory with logic 20, which
`
`includes logic for datalogging capability. Jd. at 3:22-29. Remote control 6
`
`is worn on a user’s wrist or placed in a pocket. Jd. at 3:38-40. Remote
`
`control 6 includes programmable block 26 with an automatic program
`
`selector (“APS”) to automatically select a program in responseto the
`
`ambient noise level as detected by microphone 32. Jd. at 3:49-52.
`
`“Programs,” as used in Mangold,are “one or moreof: specific settings of a
`
`limited numberof parameters; selection of a processing configuration of
`
`strategy; modification of a prosthesis control program;orsetting of
`
`coefficients in a prosthesis program.” Jd. at 2:28-33. The selected program
`
`19
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`is transmitted to the hearing aid where the program is entered. Jd. at 3:57—
`
`59.
`
`In its datalogging capability, memory 20 of hearing aid 4 records
`
`environmentally selected events, such as selection of programs based on a
`
`current sound environment. Jd. at 1:40-49. After a period of time, the
`
`dispenser of the hearing aid can connectto the hearing aid, read out the data
`
`stored in memory 20, and determine a newset of operating parameters for
`
`the hearing aid based on the degree to which the user has used the original
`
`programs.
`
`/d. at 2:3-11.
`
`In an alternative embodiment(depicted in Figures 4 and 5), the
`functions of datalogging unit 20 of the hearing aid of Figure 2 are placed in
`
`programmable APSwith logic unit 26 in remote control unit 9 of Figure 5.
`
`Td. at 4:11-21.
`
`c. Overview ofBisgaard
`
`Bisgaard describes ahearing aid intended to be used in a subscription
`
`arrangement. Ex. 1006, 1:32—38. The hearing aid is programmedby an
`
`audiologist with programsand data necessary for operation and also a time
`
`limit value that can be set for a subscription period. Jd. at 2:1—-5, 6:33-41.
`
`The subscription period can correspond to a “habituation” period, during
`
`which the hearing aid undergoes a gradualtransition from no compensation
`
`to full compensation for the user’s hearing loss. Jd. at 2:48-56, 6:41-44.
`
`After the subscription period expires, the useris notified by analarm (e.g., a
`series of audio signals) and the hearing aid can be deactivated. Jd. at 2:15—
`
`22, 6:45-57.
`
`20
`
`
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`IPR2017-00781
`Patent 8,654,999 B2
`
`d. Claims I and 2
`
`Petitioner cites Fichtl for the structural aspects of claim 1, including
`
`“a microphoneto convert soundinto electrical signals” (Fichtl’s
`
`microphone 2), “a speaker to output audible sound”(Fichtl’s output
`
`transducer3), “a processor” (Fichtl’s controller 6), and “a memoryto store
`
`instructions” (Fichtl’s non-volatile memory 7). Pet. 18-20.
`Asto instructions, executed by the processor, causing the processorto
`“receive a selection of a hearing aid profile from a plurality of hearing aid
`profiles, the selected hearing aid profile configured to modulate the electrical
`
`signals to a level to compensate for a hearing impairmentof a user,”
`
`Petitioner cites a combination of Fichtl and Mangold. As explained above,
`
`Fichtl describes an algorithm for changing over time an APP corresponding
`to a user’s hearingloss. Ex. 1003, 3:35-4:15. Petitioner contends that
`Fichtl’s algorithm would be applied to multiple APPsin a collection that
`
`would correspondto a “hearing aid profile,” as recited in claim 1. Pet. 22.
`
`AsPetitioner notes (id.), Fichtl describes processing a signal “based on
`
`audio processing parameters,” and that the controller is “adapted to set such
`
`parameters, for example, when the hearing device 1 is switched on or when
`
`the volumecontrol 4 is actuated,” Ex, 1003, 3:23-30, suggesting that
`
`Fichtl’s system processes multiple APPsas part of a collection...
`
`Petitioner further contends that Mangold describes programming
`
`multiple hearing aid profiles, such as those described in Fichtl, and receiving
`
`a selection of a profile from among those stored to compensate for a user’s
`
`hearing impairment. Pet. 22—23 (citing Ex. 1007, 1:9-29, 2:28-33, 4:47-
`
`58). As noted above, Mangold’s stored programs includespecific settings of
`
`parameters, processing configuration or strategy, and coefficients for a
`
`21
`
`
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`IPR2017-00781
`Patent 8,654,999 B2
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`prosthesis program, Ex. 1007, 2:28-33, which we agree correspond to
`
`Fichtl’s APPs and claim 1’s “hearing aid profiles.” Pctitioner further argues
`
`that Mangold describes storing multiple programs corresponding to multiple
`
`possible sound environments the user might encounter,and that the hearing
`
`aid receives a selection from among those programs. Pet. 22-23 (citing
`
`Ex. 1007, 1:40-49, 3:13-15). According to Petitioner, it would have been
`
`obviousto store collections of APP values in Fichtl’s memory 7 and for
`
`Fichtl’s controller to receive a selection from amongthose collections or
`
`profiles in order to better compensate for the user’s hearing loss in a
`
`particular sound environment. Jd. Petitioner points to disclosure in Fichtl
`
`identifying benefits of its acclimatization algorithm, including greater
`
`comfort and reduction in the numberofvisits to an audiologist. Jd. at 32-33
`
`(citing Ex. 1003, 1:19-34). We agree that these benefits would be
`
`applicable to the hearing aid system of Mangold.
`
`Petitioner cites Fichtl for instructions that cause the processorto:
`
`apply a first one of a sequence of incremental hearing correction
`filters to the modulated electrical signals to produce a modulated
`output signal to reduce the amplitude of the modulated electrical
`signals producedbythe selected hearingaid profile to a first level
`that is less than a level to compensate for the hearing impairment
`of the user,
`
`and
`
`select a second one of the sequence of incremental hearing
`correction filters in response to receiving a trigger, the second
`one being designated to follow the first one in the sequence of
`incremental hearing correctionfilters and to reduce the amplitude
`of the modulated electrical signals produced by the selected
`hearing aid profile to a second level that is greater than the first
`level and less than the level
`to compensate for the hearing
`impairmentofthe user,
`
`22
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`as recited in claim 1. Petitioner contends that, because “Fichtl’s
`
`acclimatization algorithm corresponds to adjustments applied by controller 6
`
`to the collection of APPs of processor9 to reducethe level of correction
`
`provided to the hearing device user by application of the hearing aid
`
`profile,” the algorithm comprises a sequence of hearing correctionfilters.
`
`Pet. 26. Petitioner further contends that, because the algorithm outputs
`
`intermediate APP values with reduced amplitudesrelative to tPOV,the
`
`algorithm reduces the “amplitude of the modulated electrical signals
`
`produced bythe selected hearingaid profile to a first level that is less than a
`
`level to compensate for the hearing impairmentofthe user,” as recited in
`
`claim 1. Jd. at 27-28. According to Petitioner and Dr. Atlas, applying .
`
`Fichtl’s acclimatization algorithm to modulated electrical signals output by a
`
`hearing aid profile or to the hearing aid profile itself would have been
`
`mathematically equivalent. Jd. at 28-29; Ex. 1008 ff 123-124.
`
`Petitioner further argues that a subsequent APP value,e.g., the second
`
`APP value rPOV shownin Ficthl’s Figure 2, is the next in a sequence of
`
`incremental hearing correction filters, and is designated to follow the initial
`
`APP value iPOV. Pet. 30. Accordingto Petitioner, iPOVis “a first one of a
`
`sequence of incremental hearing correction filters” and rPOVis “a second
`
`one of the sequence of incremental hearing correctionfilters,” as recited in
`
`claim 1. Id.
`
`Relying on its proposed construction of “hearing correction filter,”
`
`Patent Owner respondsthat Petitioner does not show a hearing correction
`
`filter that comprisesa collection offilters. Prelim. Resp. 20-21. According
`
`to Patent Owner,“[w]hile Fichtl may describe that the APP increases over
`
`time until it reaches tPOV,Fichtl fails to describe that the gradual increases
`
`23
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`in the APP are produced by a collection offilters.” Jd. at 21. Patent Owner
`argues that “[t]he
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