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.
`
`III HOLDINGS4, LLC
`Patent Owner.
`
`Case IPR2017-00782
`Patent 8,654,999 B2
`
`Before SALLY C. MEDLEY, DAVID C. McKONE,and
`KIMBERLY McGRAW,Administrative Patent Judges.
`
`MCKONE,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. § 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.
`
`III HOLDINGS4, LLC
`Patent Owner.
`
`Case IPR2017-00782
`Patent 8,654,999 B2
`
`Before SALLY C. MEDLEY, DAVID C. McKONE,and
`KIMBERLY McGRAW,Administrative Patent Judges.
`
`MCKONE,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. § 42.108
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`I.
`
`INTRODUCTION
`
`A. Background
`
`K/S HIMPP(“Petitioner”) filed a Petition (Paper3, “Pet.’’) to institute
`
`an inter partes review of claims 10—15 and 20 of U.S. Patent No. 8,654,999
`
`B2 (Ex. 1101, “the ’999 patent”). Petitioner indicates that GN Hearing A/S
`
`(formerly GN Resound A/S), GN Store Nord A/S, IntriCon Corporation,
`Sivantos GmbH,SivantosInc., Sonova Holding 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. I 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 reasonablelikelihood that it would prevail
`
`with respect to claims 10, 11, 13-15 and 20,but not claim 12. Accordingly,
`
`weinstitute an inter partes review of claims 10, 11, 13-15 and 20 ofthe
`
`”999 patent.
`
`B. Related Matter
`
`Petitioner challenges claims 1—9 and 16-19 of the ’999 patent in K/S
`
`HIMPP vy. III Holdings 4, LLC, Case IPR2017-00781 (PTAB). Pet. 2.
`
`C. Evidence Relied Upon
`
`Petitionerrelies on the following priorart:
`
`Ex. 1103 (“Fichtl”)
`
`US 8,787,603 B2
`
`July 22, 2014
`(filed June 19, 2012)
`
`
`
`Ex. 1104 (“Sacha”) US 2003/0215105 Al=Nov. 20, 2003
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`Nov. 20, 1990
`Ex. 1107 (“Mangold”) US 4,972,487
`Petitioneralso relies on the Declaration of Les Atlas, Ph.D. (Ex. 1108,
`“Atlas Decl.”).!
`
`D. The Asserted Grounds
`
`Petitioner asserts the following grounds of unpatentability (Pet. 5):
`
`References
`
`Claims Challenged
`
`Fichtl and Mangold
`
`§ 103(a)
`
`10, 13, 14, and 20 Fichtl, Mangold, and Sacha
`
`§ 103(a)
`
`11,12, and 15
`
`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 and that an audiologist typically measures the
`
`individual’s hearing capacities in various environments and tunes or
`
`calibrates a hearing aid for the individual to compensate for that individual’s
`
`particular hearing loss. Ex. 1101, 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
`
`| Patent Ownerargues that we should give Dr. Atlas’s declaration no weight
`becauseit merely repeats the argumentsin the Petition. Prelim. Resp. 15—
`17. 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
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`correction for the user immediately, the hearing aid progressively applies
`
`incremental adjustments to progressively or gradually adjust the user’s
`
`experience from an uncompensated hearinglevel to a fully compensated
`
`hearing level.” Jd. at 2:30-34.
`
`Figure 2, reproducedbelow,illustrates an example:
`200 vt
`
`252
`
`——
`
`HearingAid Profiles
`=
`———
`
`
`Hearing Correction Filters
`incremental Adjustment
`Module
`
`
`Computing Device
`
`254
`
`
`
`;
`Incremental Hearing
`Corrections
`
`270
`
`272
`014
`
`276
`
`260
`
`
`
`Hearing Aid
`
`
`
`
`Hearing Aid Profiles
`
`Hearing Correction Fillers
`ncremental Adjustment
`Module
`Incremental Hearing
`Corrections
`
`
`
`
`
`216
`
`
`Processor
`
`Microphone
`
`Speaker
`
`Transceiver
`
`214
`
`224
`
`210
`
`212
`
`
`
`
`a]
`
`
`
`cessor
`
`Pro
`
`Input Interface
`.
`Display
`Interface
`
`256
`
`258
`
`\
`
`Transceiver
`
`Network
`interface
`
`
`
` 264
`
`FIG. 2
`
`Figure 2 is a block diagram of a hearing aid system.
`
`/d. at 2:10-12. Hearing
`
`aid 202 and computing device 252 (e.g., a personal digital assistant (PDA) or
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`smart phone), communicate using transceivers 216 and 264, through a wired
`
`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 and processor 210 to
`
`store and processhearing aid profiles 218 and hearing correctionfilters 220.
`
`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 sequence increases the 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 receives a trigger from computing
`
`
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`IPR2017-00782
`Patent 8,654,999 B2
`
`device 252 through the communication channelandselects a filter from
`
`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.
`
`Claim 10, the only independentclaim atissue,is illustrative of the
`
`invention and reproduced below:
`
`10.
`
`A computing device comprising:
`
`a transceiver configurable to communicate with a hearing
`aid through a communication channel;
`
`a processor coupled to the transceiver; and
`
`a memory coupledto the processor and configuredto store
`instructions that, when executed by the processor,
`cause the processorto:
`
`incremental hearing
`sequence of
`a
`generate
`correction filters based at least in part on a
`magnitude of a difference between a hearing
`aid profile and a hearing loss level associated
`with a user of the hearing aid, the sequence of
`incremental
`hearing
`correction
`filters
`including at least a first hearing correction
`filter and a second hearingcorrectionfilter;
`
`provide a first signal related to the first hearing
`correction
`filter
`of
`the
`sequence
`of
`incremental hearing correction filters to the
`hearing aid through the communication
`channel; and
`
`provide a second signal related to a second hearing
`correction
`filter
`of
`the
`sequence
`of
`incremental hearing correction filters to the
`hearing aid in response to receiving a
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`selection of the second hearing correction
`filter from a user of the hearing aid.
`
`Ii. ANALYSIS
`
`A,
`
`Claim Construction
`
`Weinterpret claims of an unexpired patent using the broadest
`
`reasonable construction in 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 one of ordinary skill in the art in the
`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`
`1249, 1257 (Fed. Cir. 2007).
`
`1. “hearing correction filter”
`
`The ’999 patent describes “hearing correction filter” as follows:
`
`As used herein, the term “hearing correction filter” refers to-a
`collection of filters for hearing aid 202, which are applied by
`processor 210 within hearing aid 202 to a hearing aid profile to
`reduce the level of correction providedto the user by application
`of the hearing aid profile. The collection of hearing correction
`filters may include a series of hearing correction adjustments
`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. 1101, 2:65—3:7. Both parties advance that this description provides an
`
`express definition of “hearing correction filter,” yet both parties reach
`
`different conclusions as to what that definition is. Pet. 13-15; Prelim.
`
`Resp. 11-13.
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`Petitioner argues that, according to this description, a “hearing
`
`correction filter” is applied by a processorto a hearing aid 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, contendsthat an
`
`individual “hearing correction filter”is itself a “collection of filters” that are
`
`applied to a hearing aid profile. Prelim. Resp. 12-13.
`
`Werecognize, as Patent Ownerpoints out, that the ’999 patentstates
`
`that “the term ‘hearing correctionfilter’ refers to a collection offilters,”
`
`suggesting that a single hearing correction filter actually is a collection of
`
`filters. Ex. 1101, 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 expands on this explanation of a
`
`collection offilters:
`
`In such aninstance,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
`provided by (decreases the attenuation applied to) the hearing aid
`profile to some degree, until the sequence is complete and the
`hearingaid profile is fully applied to provide the desired hearing
`correction for the user.
`
`Ex. 1101, 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. 12—13) arguesthat additional description
`
`in the specification supports its construction, namely:
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`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 thatis
`
`composed of multiple coefficients or parameters. Nevertheless, Patent
`
`Ownerarguesthat an individual hearing correction filter must include a
`
`collection of filters because it adjusts a plurality of coefficients, parameters,
`
`and settings to alter various characteristics of sound. Prelim. Resp. 12-13.
`
`Patent Owner does 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.
`
`Onthis record, based on the definition in the specification when
`
`viewed in 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 contendsthat a hearing correction filter should not
`
`be construed to covera filter that is applied to modulate an audio signalthat
`
`already has been modulated by the hearing aid profile, arguing that such a
`
`construction would be contradicted by the embodiments and definition
`
`provided by the specification. Pet. 14-15. In its proposed construction of a
`
`related term, “incremental hearing correctionfilter,” Patent Owner appears
`
`to agree. Prelim. Resp. 15 (“The Board must adopt a construction for
`
`9
`
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`IPR2017-00782
`Patent 8,654,999 B2
`
`‘incremental hearing correctionfilter’ consistent with the specification—
`
`specifically, the incremental hearing correction filter is applied to the
`
`hearing aid profile.”’).
`
`Nevertheless, we decline to place sucharestriction on “hearing
`
`correction filter,” 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
`
`profile. Compare with claim 6 (“apply a first hearing correction filter to the
`
`selected hearing aid profile”).
`
`2. “incremental hearing correctionfilter”
`Petitioner contendsthat “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 outputlevel.”
`
`Pet. 16. Petitioner bases its proposal on description in the Specification that
`
`is contendsis definitional. Jd. at 15—18 (citing Ex. 1001, 3:24—32).
`
`“Incremental hearing correctionfilter” is related to two terms defined
`
`in the specification. As explained above,the specification defines “hearing
`
`correction filter.” Ex. 1101, 2:65-3:15. The specification also provides a
`
`definition of “incremental hearing correction”:
`
`10
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`Asused 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 hearingaid profile
`to produce the intermediate hearingaid profiles.
`
`Id. at 3:24-36. Taking these definitions together, we construe incremental
`
`hearing correction filter to be a hearing correction filter (as construed above)
`
`that 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.
`
`Patent Ownerrespondsthat Petitioner’s proposal “eliminates the
`
`requirementthatthe filter is applied to the hearing aid profile, seeking to
`
`divorce the term from its context.” Prelim. Resp. 15. 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 correctionfilter,” 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
`
`11
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`IPR2017-00782
`Patent 8,654,999 B2
`
`hearing correction filter” for the same reasons wereject Petitioner’s
`
`argumentas to “hearing correction filter.”
`
`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 the prior art are “such that the
`
`subject matter as a whole would have been obviousat the time the invention
`
`was madeto 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
`prior art; (3) the level of skill in the art; and (4) objective evidence of
`nonobviousness,i.e., secondary considerations.’ See Graham v. John Deere
`
`Co. ofKansas City, 383 U.S. 1, 17-18 (1966).
`
`1. Level ofSkill in the Art
`
`Petitioner contends that a person ofordinary skill in the art “would
`
`have been someone with 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. 1108 §§ 22—28) (emphasis added). Petitioner relies on the Atlas
`
`* The record does not includeallegations or evidence of objective indicia of
`nonobviousness.
`
`12
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`
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`IPR2017-00782
`Patent 8,654,999 B2
`
`Declaration, whichstates that a skilled artisan ‘““would have had a B.S.
`
`degree in electrical or computer engineering, or the equivalent, andatleast
`
`two years of experience in hearing aid systems.” Ex. 1108 | 28 (emphasis
`added).
`|
`Patent Ownerpoints out 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. 17-18.
`
`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
`
`1350, 1355 (Fed. Cir. 2001) (the priorart itself can reflect the appropriate
`
`level of skill in theart).
`
`2. Alleged Obviousness over Fichtl and Mangold
`
`Petitioner contendsthat claims 10, 13, 14, and 20 would have been
`
`obvious over Fichtl and Mangold. Pet. 18-38. 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. 1103, Abstract. Acclimatization is the process by which,
`
`over the course of several weeksto half a year, the intensity of a hearing
`
`13
`
`
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`IPR2017-00782
`Patent 8,654,999 B2
`
`device gradually is increased from aninitially low intensity to a target
`
`intensity. Id. at 1:19-26.
`
`Fichtl’s hearing device is depicted in Figure 1, reproduced below:
`2
`2
`
`3
`
`Fig. 1
`
`Figure | is a schematic diagram of hearing 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 volumecontrol 4. Id. at 3:25—
`
`26. Controller 6 sets hearing device parameters when hearing device 1 is
`
`switched on or when volume control4 is actuated. Jd. at 3:28-30. Non-
`
`volatile memory 7 stores parameters when hearing device | is off. Jd. at
`
`3:30-32. Controller 6 executes an acclimatization algorithm.
`
`/d. at 3:32-34.
`
`14
`
`
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`IPR2017-00782
`Patent 8,654,999 B2
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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 over time in a hearing aid. Jd. at 3:3-5. Examples of APP
`
`include volume,treble, and noise cancelling. Jd. 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
`
`B, user 10 switches the hearing aid on and the APPis set toiPOV. 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
`
`15
`
`
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`IPR2017-00782
`Patent 8,654,999 B2
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`3:58-61. At time E, the user selects the APP to be one step lower than
`
`APPyer, and X is increased more slowly. Jd. at 3:62—65.
`
`The user switches the hearing aid off at time F and intermediate value
`X is stored in memory7 asthefirst 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. Id. at 4:5—7. At
`
`time H, intermediate value X reaches tPOV andis not changed anymore,at
`whichtimethe acclimatization phase ends. Jd. at 4:8-11. When the user
`switches the hearing aid off, as at time I, the value stored in memory 7,
`
`second replacementvalue rPOV2, is tPOV. Id. at 4:12-15.
`
`b. Overview ofMangold
`
`Mangold describes an auditory prosthesis (hearing aid) with
`datalogging capability. Ex. 1107, Abstract. Figures 2 and 3, reproduced
`
`below,illustrate an example:
`
`22
`
`20
`
`ig
`
`RECEIVER
`
`PROGRAMMABLE
`
`MANUAL
`
`
`
`
`
`
`
`
`PROGRAM
`PROGRAMMABLE
`MEMORY WITH LOGIC
`
`
`
`
`DECODER
`AND DATALOGGING
`CONTROL
`
`
`
`
`
`
` MICROPHONE
`
`SLAVE MEMORY
`
`
`
`SIGNAL PROCESSOR
`
`SPEAKER
`
`FIG—e
`
`16
`
`
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`IPR2017-00782
`Patent 8,654,999 B2
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`24
`26
`32
`
`
`
`
`PROGRAMMABLE
`MANUAL
`
`
`MICROPHONE
`APS
`PROGRAM
`
`
`WITH LOGIC
`CONTROL
`
`
`
`
`TRANSMITTER
`
`
`PROGRAMMABLE
`CODER
`
`FIG——3
`
`Figure 2 is a functional block diagram of remote-controlled programmable
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`hearing aid 4 and Figure 3 is a functional block diagram of remote control
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`unit 6 for use with hearing aid 4. Jd. at 2:42-48.
`Hearing aid 4 includes microphone 10, 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
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`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 more of: 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
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`17
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`IPR2017-00782
`Patent 8,654,999 B2
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`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
`
`dispenserof the hearing aid can connectto the hearing aid, read out the data
`
`stored in memory20, and determine a newset of operating parameters for
`
`the hearing aid based on the degree to which the userhas 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 APS with logic unit 26 in remote control unit 9 of Figure 5.
`
`Id. at 4:11-21.
`
`ec. Claims 10, 13, 14, and 20
`
`Claim 10 recites a “computing device” that communicates with “a
`
`hearing aid.” As noted above, Fichtl describes a hearing device, states that
`
`additional devices such as a remote control can be considereda part of the
`
`hearing device, Ex. 1103, 1:14-18, and depicts device 12 interfacing with
`hearing device 1, id. at Fig. 1. Petitioner identifies Fichtl’s remote control as
`
`a “computing device,” as recited in claim 10, but acknowledgesthat Fichtl
`
`does not describe details of its remote control. Pet. 18. Petitioner argues
`
`that the details of a remote control for a hearing aid can be found in
`
`Mangold. Jd. at 18-19. Accordingto Petitioner, “it would have been
`
`obvious to implement Fichtl’s hearing device such that Fichtl’s user
`
`controls, controller to determine audio processing parameters (APPs), and
`
`18
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`IPR2017-00782
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`memoryto store the APPs are implementedin Fichtl’s remote control, as
`
`Mangold discloses implementing similar or analogous components, used for
`
`a similar purpose, in a remote control.” Jd. at 19. As noted above, Mangold
`
`describes its remote control as including programmable block 26 with an
`
`automatic program selector to automatically select a program in responseto
`
`the detected ambient noise level and memory to store programs. Ex. 1107,
`
`3:49-52, 4:11-21. Petitioner arguesthat a skilled artisan “would have been
`motivated to incorporate Fichtl’s user controls, controller, and memory in
`
`Fichtl’s remote control, as taught by Mangold”to provide the benefit of
`
`acclimatization, as taught in Fichtl, but keeping the processor and memory
`
`components in the remote control to make the hearing aid “smaller, lighter in
`
`weight, andless visible,” as taught in Mangold. Pet. 20-21 (quoting
`
`Ex. 1107, 1:67—2:2). Petitioner further notes that U.S. Patent No.
`
`6,741,712 B2 (“Bisgaard’’) describes using the hearing aid of Mangold with
`
`a “habituation system” that provides acclimatization. Jd. (citing Ex. 1106,
`
`1:5-15, 2:48-56).
`
`Regarding “a transceiver configurable to communicate with a hearing
`
`aid through a communication channel,” Petitioner cites to Figure 1 and the
`
`claims of Fichtl to show audiologist 11 inputting parameters to hearing
`
`device 1 via fitting interface 8. Jd. at 22-23. Accordingto Petitioner, a
`
`transceiver is a well-known mechanism for communicating between
`
`electronic devices and would have been employedin Fichtl’s remote
`
`controller. Jd. at 24. Moreover, Petitioner argues, Mangold describesits
`
`remote control as including a transmitter for sending informationtoits
`
`hearing aid, confirming that Fichtl’s remote control would include such a
`
`transmitter. Jd. at 24—25.
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`Regarding “a processor coupledto the transceiver” and “a memory
`
`coupled to the processor and configured to store instructions,” as recited in
`
`claim 10, Petitioner points to Fichtl’s controller 6 and memory 7, and argues
`
`that Fichtl would be modified, per Mangold’s teachings, to include these
`
`components in Fichtl’s remote control 12. Jd. at 25-26.
`
`Patent Owner does not dispute these aspects of claim 10. On this
`
`record, Petitioner’s evidenceis sufficient to support a finding that Fichtl and
`
`Mangold teach these limitations and Petitioner’s reasons to combineFichtl
`
`and Mangold haverational underpinning.
`
`The parties dispute whether Fichtl and Mangold teach the instructions
`
`recited in claim 10. Specifically, the parties dispute whether the references
`
`teach:
`
`instructions that, when executed by the processor, cause the
`processor to:
`generate a sequence of incremental hearing
`correction filters based at least in part on a magnitude of a
`difference between a hearing aid profile and a hearing loss level
`associated with a user of the hearing aid,
`the sequence of
`incremental hearing correction filters including at least a first
`hearing correction filter and a second hearing correction filter
`
`as recited in claim 10.
`
`Petitioner cites Fichtl for this aspect of claim 10. As explained above,
`
`Fichtl describes an algorithm for changing over time an APP corresponding
`
`to auser’s hearing loss. Ex. 1103, 3:35-4:15. Petitioner contendsthat
`
`Fichtl’s algorithm would be applied to multiple APPsin a collection that
`
`would correspond to a “hearing aid profile,” as recited in claim 1. Pet. 28—
`
`29. 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 | is switched on or when
`
`20
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`IPR2017-00782
`Patent 8,654,999 B2
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`the volume control4 is actuated,” Ex. 1103, 3:23-30, suggesting that
`
`Fichtl’s system processes multiple APPsas part of a collection.
`
`Petitioner contends that, because “Fichtl’s acclimatization algorithm
`
`corresponds to adjustments applied by controller 6 to the collection of APPs
`
`of processor 9 to reduce the level of correction provided to the hearing
`
`device user by application of the hearing aid profile,” the algorithm
`
`comprises a sequence ofhearing correctionfilters. Pet. 29. Petitioner
`
`further contends that, because the algorithm outputs intermediate APP
`
`values with reduced amplitudesrelative to tPOV,the algorithm providesa
`
`modulated output signal having a level that is within a range between an
`
`uncompensated outputlevel and the desired outputlevel, and, thus, includes
`“incremental hearing correction filters.” Pet. 29-30.
`
`Relying on its proposed construction of “hearing correctionfilter,”
`
`Patent Ownerrespondsthat Petitioner does not show a hearing correction
`
`filter that comprises a collection offilters. Prelim. Resp. 18-19. 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
`
`in the APP are producedby a collection offilters.” Jd. at 19. Patent Owner
`arguesthat “[t]he increase in the APP in Fichtl is not due to the application
`of a collection offilters as in the °999 Patent, but rather due to the
`
`application of a single, simple algorithm that increases the APP.” Jd. at 20.
`
`Patent Ownerdistinguishes Fichtl’s algorithm from that of the ’999 patent,
`
`which, Patent Ownerargues, “describes that the hearing correctionfilter
`
`alters various characteristics of the sounds,” such as gradually changing the
`
`decibel levels for different frequencies at different times. Jd. at 20-22.
`
`21
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`IPR2017-00782
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`Asexplained in Section II.A.1 above, an individual “hearing
`
`correction filter” is “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,” and need not be a collection
`
`of such filters. Each stage of Fichtl’s algorithm (e.g., iPOV, rPOV)is
`
`applied to an APP to reducethe level of correction providedto the user.
`
`Each of these stages 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 and,
`
`thus, is an “incremental hearing correctionfilter.”
`
`Moreover, as explained above, Petitioner has shown evidencethat the
`
`APPofFichtl’s example is one of several audio parametervalues, rather
`
`than a single audio parameter value. Ex. 1103, 3:27-32.
`
`In Petitioner’s
`
`combination, Fichtl’s algorithm operates on multiple parameters. Thus,
`
`even under Patent Owner’s construction of “hearing correctionfilter,”
`
`Petitioner’s evidence suggests that Fichtl and Mangold teach suchafilter, as
`it would operate on multiple coefficients and parameters.
`As to “generate a sequence of incremental hearing correction filters
`
`based at least in part on a magn
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