UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`K/S HIMPP
`
`Petitioner,
`
`V.
`
`WWHoldi
`oldings 4, LLC
`
`Patent Owner.
`
`Case IPR2017-00781
`Patent No. 8,654,999
`
`o2{1HY2d3SB12 =
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`PATENT OWNER’S NOTICE OF APPEAL
`
`
`
`
`
`ABSHNOWYENEDFHL3090235
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`K/S HIMPP
`
`Petitioner,
`
`V.
`
`WWHoldi
`oldings 4, LLC
`
`Patent Owner.
`
`Case IPR2017-00781
`Patent No. 8,654,999
`
`o2{1HY2d3SB12 =
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`
`PATENT OWNER’S NOTICE OF APPEAL
`
`
`
`
`
`ABSHNOWYENEDFHL3090235
`
`
`
`Notice is hereby given, pursuant to 35 U.S.C. §§ 141(c), 142, and 319, and
`
`37 C.F.R. §§ 90.2(a) and 90.3(a), that Patent Owner III Holdings 4, LLC hereby
`
`appeals to the United States Court of Appeals for the Federal Circuit from the Final
`
`Written Decision entered on July 23, 2018 (Paper 26) in IPR2017-00781 (Exhibit
`
`A), and from all underlying orders, decisions, rulings and opinions that are adverse
`
`to Patent Owner,
`
`including, without limitation, those within the Decision on
`
`Institution of Inter Partes Review, entered on July 27, 2017 (Paper8).
`
`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), Patent Owner further indicates
`
`that the issues on appeal
`
`include, but are not
`
`limited to,
`
`the Board’s claim
`
`constructions, the Board’s determination that claims 1-5 and 16 are unpatentable as
`
`obvious over Fichtl, Mangold, and Bisgaard, the Board’s determination that claim
`
`18 is unpatentable as obvious over Fichtl, Mangold, Bisgaard, and Sacha,
`
`the
`
`Board’s determination that claims 6-9 and 17 are unpatentable as obvious over
`
`Fichtl, Sacha, Mangold, and DE961, the Board’s determination that claim 19 is
`
`unpatentable as obvious over Fichtl, Sacha, Mangold, Bisgaard, and DE961, the
`
`Board’s overruling of Patent Owner’s objections to Exhibit 1009 and denial of
`
`Patent Owner’s motion to exclude Exhibit 1009, any finding or determination
`
`supporting orrelating to those issues, as well as all other issues decided adversely
`
`to Patent Ownerin any orders, decisions, rulings, and opinions.
`
`
`
`This Notice of Appeal is timely pursuant to 37 C.F.R. § 90.3, having been
`
`duly filed within 63 days after the Final Written Decision.
`
`Simultaneous with this submission, a copy of the Notice of Appealis being
`
`filed with the Patent Trial and Appeal Board. In addition, a copy of this Notice of
`
`Appeal, along with the required docketing fees, is being filed with the Clerk’s
`
`Office for the United States Court of Appeals for the Federal Circuit. In addition,
`pursuant to Fed. Cir. R. 15(a)(1), one paper copy ofthe notice is also being sent to
`
`the Clerk of the Federal Circuit.
`
`If there is any fee due in connection with the filing of this Notice of Appeal,
`
`please charge the fee to Deposit Account No. 50-1662.
`
`Date: September 21, 2018
`
`Respectfully submitted,
`
`/s/ Henry A.Petri, Jr.
`Henry A.Petri, Jr. (Reg. No. 33,063)
`Polsinelli PC
`1401 Eye Street, N.W.
`Eighth Floor
`Washington, D.C. 20005
`Telephone: 202.783.3300
`Fax: 202.783.3535
`Email: hpetri@polsinelli.com
`Counselfor Patent Owner
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that in addition to being filed electronically
`
`with the U.S. Patent and Trademark Office, pursuant to 37 C.F.R. §§ 42.6(e)(4)
`and 90.2,
`the foregoing PATENT OWNER’S NOTICE OF APPEAL and all
`
`accompanying documents, were filed by Express Mail on September 21, 2018,
`
`with the Director of the United States Patent and Trademark Office, at
`following address:
`|
`
`the
`
`. Directorof the U.S. Patent and Trademark Office
`c/o Office of the General Counsel
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`The undersignedcertifies that a copy of the foregoing Patent Owner’s Notice
`
`of Appeal and accompanying documents, along with the required docket fee, was
`
`filed on September 21, 2018, with the United States Court of Appeals for the
`
`Federal Circuit through the Court’s CM/ECF filing system and the filing fee is
`
`being paid electronically using pay.gov, and that a copy of the foregoing Patent
`
`Owner’s Notice of Appeal and accompanying documents were filed with the
`
`Patent Trial and Appeal Board electronically on September 21, 2018, pursuant to
`
`37 C.F.R. 42.6(b), and that the foregoing Notice of Appeal and accompanying
`
`documents were served upon the Petitioner pursuant to 37 C.F.R. 42.6(e)(1) via
`
`
`
`electronic mail on September 21, 2018, by serving the following attorneys of
`
`record as follows:
`
`Donald R. Steinberg
`Don.Steinberg@wilmerhale.com
`Yung-Hoon Ha
`Yung-Hoon.Ha@wilmerhale.com
`Haixia Lin
`Haixia.Lin@wilmerhale.com
`Christopher R. O’Brien
`Christopher.O’Brien@wilmerhale.com
`
`/s/ Henry A.Petri, Jr.
`Henry A.Petri, Jr.
`Reg. No. 33,063
`
`
`
`EXHIBIT A
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`Paper No. 26
`Entered: July 23, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`K/S HIMPP,
`Petitioner,
`
`Vv.
`
`It} 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.
`
`McKONE,Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 CER. § 42.73
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`I.
`
`INTRODUCTION
`
`A. Background
`K/S HIMPP(“Petitioner”) filed a Petition (Paper3, ‘Pet.””) to institute
`
`an interpartes review of claims 1~9 and 16-19 of US. 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., Sonova Holding AG, Sonova AG (formerly
`
`Phonak AG), Starkey Laboratories, Inc. (aka Starkey Hearing
`
`Technologies), Widex A/S, and William Demant Holding A/Sare also real
`
`parties in interest. Pet. 1. III Holdings 4, LLC (“Patent Owner”),filed a
`
`Preliminary Response (Paper7, “Prelim. Resp.”).
`
`Pursuant to 35 U.S.C. § 314, in our Institution Decision (Paper 8,
`
`“Dec,”), we instituted this proceeding as to claims 1-9 and 16-19.
`
`Patent Ownerfiled a Patent Owner’s Response (Paper12, “PO
`
`Resp.”), and Petitioner filed a Reply to the Patent Owner’s Response
`
`(Paper 15, “Reply”).
`
`Patent Owneralso filed a Motion to Exclude Evidence (Paper 17,
`“Mot. to Exclude”), Petitioner filed an Opposition to the Motion to Exclude
`(Paper 21, “Opp. to Mot. to Exclude”), and Patent Ownerfiled a Reply to
`
`the Opposition to the Motion to Exclude (Paper 22, “Reply Mot. to
`
`Exclude”).
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`Petitioner relies on the Declaration of Les Atlas, Ph.D. (Ex. 1008,
`
`“Atlas Decl.’””).! Patent Ownerrelies on the Declaration of Clyde Brown
`
`(Ex. 2003, “Brown Decl.”’).
`
`An oral argument was held on May 1, 2018 (Paper 25, “Tr.”’).
`
`Wehave jurisdiction under 35 U.S.C. § 6. This Decisionis a final
`
`written decision under 35 U.S.C. § 318(a) as to the patentability of claims 1—
`
`9 and 16-19. Based onthe record before us, Petitioner has proved, by a
`preponderanceofthe evidence, that claims 1-9 and 16~19 are unpatentable.
`
`B. Related Matters
`
`Petitioner challenges claims 10—15 and 20 ofthe ’999 patent in K/S
`
`HIMPPy. II Holdings 4, LLC, Case IPR2017-00782 (PTAB). Pet. 2.
`
`C. Asserted Prior Art References
`
`Petitioner relies on the following priorart:
`
`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
`
`Ex. 1007 (“Mangold”) US 4,972,487
`
`May 25, 2004
`
`Nov.20, 1990
`
`' Patent Ownerargues that we should give Dr. Atlas’s Declaration no weight
`because it merely repeats the arguments in the Petition. PO Resp. 37-39. In
`the cases of both Dr. Atlas’s testimony and that of Mr. Brown (whose
`Declaration suffers from essentially the same defect Patent Ownerascribes
`to Dr. Atlas’s testimony) we evaluate the extent to which expert testimony
`discloses the underlying facts or data on which it is based as a factor in
`determining the weight to give that testimony. See 37 C.F.R. § 42.65(a).
`Weare not persuadedto discount either expert’s testimonyentirely.
`
`3
`
`
`
`1PR2017-00781
`Patent 8,654,999 B2
`
`Ex. 1009 (“DE961”)
`
`DE 195 42 961 Cl
`
`May 15, 1997?
`
`D. The Asserted Grounds
`
`Fichtl, Mangold, and Bisgaard
`
`Fichtl, Mangold, Bisgaard, and
`
`§ 103(a)
`
`1-5 and 16
`
`Weinstituted on the¢
`following groundsoff unpatentability (Dec. 38):
`
`
`
`
`
`gio) fe
`
`
`
`
`
`Ficht], Sacha, Mangold, and DE961_|§ 103(a) 6—9 and 17
`
`Fichtl, Mangold, Bisgaard, Sacha,
`
`and DE961
`
`sux fo
`
`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 andtunes or
`
`calibrates a hearing aid for the individual to compensate for that individual’s
`particular hearing loss. Ex. 1001, 1:46-55. Thepatent further notes that the .
`
`2 Petitioner relies on a verified English translation of a German publication.
`Wecite to the English translation. Exhibit 1009 is a subject ofPatent
`Owner’s Motion to Exclude. Paper 17, 1-4. In particular, Patent Owner
`argues that the translator’s verification is not compliant with 37 C.F.R.
`§ 42.63. In response, Petitioner submitted Exhibit 1015, the same translation
`with a new verification compliant with Rule 42.63. We discuss the Motion
`to Exclude in detail below. To be consistent with the citations in the parties’
`papers, wecite to Exhibit 1009 whenreferring to DE961, althoughcites to
`Exhibit 1015 would be the same.
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`abrupttransition 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 hearinglevelto a fully compensated
`
`hearing level.” Jd. at 2:30-34.
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`Figure 2, reproduced below,illustrates an embodimentof the hearing
`
`aid system of the 7999 patent:
`200
`
`202
`
`204
`
`et
`220.
`22
`
`210
`
`212
`
`Incremental Hearing
`Corrections
`
`270
`272
`
`276
`
`260
`
`Input Interface
`p+ Display
`Interface
`
`|
`
`214
`
`274
`
`
`264
`
`Transceiver
`
`Fr oe oe oe,
`
`
`
` Speaker
`
`
`
`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
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`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 andprocesshearing aid profiles 218 and hearing correction filters 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. Jd. at 6:29-35.
`
`Processor 210 of hearing aid 202 shapes acoustic signals according to
`
`a “hearing aid profile,” which the patent explains is “a collection of acoustic
`configuration settings,” and provides the shaped acoustic signals to a speaker
`or bone conduction element to 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 “[eJach .
`.
`. 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.” /d. at 3:7-15. The processor
`can provide an alert to the user when the user’s hearing is at the desired level
`and the adjustmentprocess is complete. /d. at 10:55-59. For example,“the
`alert may be an audiblealert reproduced through a speakerof hearing aid” or
`“may be sent to the computing device for display on the display interface.”
`
`Id. at 10:59-62.
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`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
`
`device 252 through the communication channel andselects a filter from
`
`hearing correctionfilters 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. Jd. at 9:62-65.
`
`Claims 1 and 6 are the only independentclaimsat issue in this
`
`proceeding. Claim 1, reproduced below,is illustrative of the invention:
`
`1.
`
`A hearing aid comprising:
`
`a microphoneto convert soundinto electrical signals;
`
`a speaker to output audible sound;
`
`a processor; and
`a memory to 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;
`
`8
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`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 ofthe
`modulated electrical signals produced by the
`selected hearing aid profile to a second levelthatis
`greater than thefirst level and less than the level to
`compensate for the hearing impairmentofthe user;
`and
`
`cause the speakerto output an alert whenafinal one of
`the sequence of incremental hearing correction
`filters is being applied, the final one beingthe last
`hearing correction filter of the sequence of
`incremental hearing correction filters.
`
`A.—Claim Construction
`
`II. ANALYSIS
`
`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 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”
`
`In the Decision on Institution, we preliminarily construed “hearing
`
`correctionfilter” to mean “‘a filter that is applied by a processor within a
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`hearing aid to a hearing aid profile to reduce the level of correction provided
`to the user by application ofthe hearing aid profile.” Dec. 11. The parties’
`primary dispute was whether anindividual hearing correction filter itself
`
`must include a collection offilters, as Patent Owner advocates. Jd. at 9-10.
`
`Werejected Patent Owner’s argument based on the preliminary record.
`
`Id. at 10-11. In its Response, Patent Ownerasksusto revisit our
`construction and rule that a hearing correction filter requires a collection of
`
`filters. PO Resp. 14.
`
`The 7999 patent describes “hearing correction filter” as follows:
`
`As used herein, the term “hearing correctionfilter” refers to a
`collection offilters 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 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 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. Patent Owner arguesthat the first sentence in this
`
`passage providesaclear definition that “hearing correctionfilter,” singular
`
`means a collection of filters, plural. PO Resp. 14.
`
`“To act as its own lexicographer, a patentee must ‘clearly set forth a
`
`definition of the disputed claim term’ other than its plain and ordinary
`
`meaning. It is not enough for a patentee to simply disclose a single
`
`embodiment or use a word in the same mannerin all embodiments, the
`
`patentee must‘clearly express an intent’ to redefine the term.” Thornerv.
`
`Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)
`(quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366
`
`10
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`(Fed. Cir. 2002) and Helmsderfer v. Bobrick Washroom Equip., Inc.,
`
`527 F.3d 1379, 1381 (Fed. Cir. 2008)). As a starting point, the Federal
`
`Circuit has “repeatedly emphasized that an indefinite article ‘a’ or ‘an’ in
`
`patent parlance carries the meaning of ‘one or more’ in open-ended claims
`399
`
`containing the transitional phrase ‘comprising.’”
`
`Convolve, Inc. v. Compaq
`
`Computer Corp., 812 F.3d 1313, 1321 (Fed. Cir. 2016) (quoting KCJ Corp.
`v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000)). According
`
`to the Federal Circuit, “[t]he exceptionsto this rule are ‘extremely limited: a
`
`patentee must ‘evince[ ] a clear intent’ to limit ‘a’ or ‘an’ to ‘one.’’”
`
`Id. (quoting Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342
`(Fed. Cir. 2008)). By the same reasoning, welookfor a clear intentto limit
`“a” or “an” to more than one. Thus, westart with the premisethat the
`
`language “a first one of a sequence of incremental hearing correction
`
`filters,” as recited in claim 1 and “a first hearing correction filter,” as recited
`
`in claim 6, identify one or morefilters, and determine whether the
`
`specification evinces a clear intent to redefine these phrases to mean more
`
`than onefilter.
`
`The claim language supports our preliminary construction by reciting
`
`a hearing correction filter as a memberof a collection offilters rather than
`
`itself including a collection of filters. For example, claim 1 recites “apply a
`
`first one of a sequence of incremental hearing correction filters” and “‘select
`
`a second one of the sequence of incremental hearing correction filters.” In
`
`theserecitations, a collection of incremental hearing correctionfilters is
`27 66
`
`recited as a set of individualfilters (‘first one,”
`
`“second one”) that are
`
`applied in a sequence. In contrast, claim 2, which depends from and limits
`
`claim 1, recites “wherein each of the incremental hearing correction filters
`
`11
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`comprises a collection of acoustic configuration settings configured to
`
`modulate the electrical signal ....” To the extent that multiple acoustic
`
`configuration settings are modulated by multiple separate filters, claim 2’s
`
`expressrecitation of a hearing correction filter comprising multiple acoustic
`
`configuration settings suggests that a hearing correctionfilter, in claim 1,
`
`could include only one acoustic configuration setting, and, therefore, could
`
`
`
`be a singlefilter. Similar to claim 1, claim6recites “‘a first hearing
`
`correction filter” and “a second hearing correction filter,” implying
`
`individual members of a collection, rather than an individual filter that
`
`includes a collection offilters.
`
`Thespecification also supports our preliminary construction. In the
`
`Decision onInstitution, we recognized that the ’999 patent’s statement that
`
`“the term ‘hearing correctionfilter’ refers to a collection offilters” suggests
`
`that a single hearing correction filter actually is a collection of filters. Dec. 9
`
`(quoting Ex. 1001, 2:65-66). Nevertheless, consistent with the claim
`
`language discussed above, we explained that the patent’s use of the term in
`
`context indicates that a hearing correction filter can be a single filter that is a
`
`memberof a collection. Jd. 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 sequence over a period of
`
`time.” Jd. at 3:2-5. This informs how the 7999 patent intends “collection of
`
`filters” to be understood. Here, the collection of hearing correctionfilters is
`
`a “series” of adjustments applied “in a sequence overa period of time,” not
`
`all at once. The patent then expands onthis explanation of a collection of
`
`filters:
`
`12
`
`
`
`1PR2017-00781
`Patent 8,654,999 B2
`
`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
`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. 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 Ownercontendsthat these passages “merely describe[] how a
`
`larger collection contains smaller collections.” PO Resp. 16. Mr. Brown
`
`repeats this argumentin his testimony without further elaboration, and states
`
`that they do not impact the definition of hearing correction filter. Ex. 2003
`
`{ 31. Patent Owneralso cites to Dr. Atlas’s cross-examination testimony
`
`that it would not be unusual to referto a filter that includes multiple filters.
`
`PO Resp.16 (citing Ex. 2005, 134:10-14 (“Q. In the world of audio devices
`
`in general, there would be nothing unusual about saying a filter comprises
`
`multiple other filters, is there? A. No, there wouldn’t be.”)). We disagree
`
`with Patent Owner’s reading of these passages and do notgive substantial
`
`weight to Mr. Brown’s testimony. As explained above,the specification
`
`describes a collection of individualfilters that are applied in a sequence, not
`
`a collection of collections offilters applied in a sequence. As to Dr. Atlas’s
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`cross-examination testimony, even if it is acceptable to say that a filter
`
`contains multiple filters, the specification does not suggest that it must be
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`understood this way. Ex. 1001, 3:2-15.
`
`Patent Owner next argues (PO Resp. 16~17) that additional
`
`description in the specification supports its construction, namely:
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`Further, it should be understoodthat the filter or correction used
`to achieve the correction lines and ultimately the hearing aid
`profile is composed of a plurality of coefficients, parameters, or
`other settings that are applied by a processorof the hearing aid
`to alter various characteristics of the sounds to modulate them
`to compensate for the user’s hearing impairment.
`Ex. 1001, 5:42~48. As wenoted in the Decision on Institution, this
`
`description on its face describes a single filter that is composed of multiple
`
`coefficients or parameters. Dec. 10. It does not state that a filter is
`
`comprised of multiple filters, each such filter corresponding to one of the
`
`coefficients or parameters. Patent Owner appearsto disagree, arguing that
`
`“(t]o the extent that passage provides any context to how ‘hearing correction
`
`filter’ is used in the specification, it supports the express definition in the
`specification,” and otherwise provides no additional context. PO Resp. 16—
`17. In support, Patent Ownercites to Mr. Brown, whotestifies that “[t]his
`
`passage merely explains how a correction line is achieved.” Ex. 2003 { 32.
`
`Patent Ownerattemptedto clarify its position at the oral argument,
`
`contendingthat “a single filter would only be able to achieve a correction of
`
`a single frequency band” while “a collection of hearing correction filters
`
`would be able to achieve the correction for multiple frequencies.”
`Tr. 29:16-19.3 Patent Owner, however, does not cite to persuasive evidence
`to support this argument. Wefind that this passage (Ex. 1001, 5:42—48) is
`
`consistent with either multiple filters, each adjusting a single characteristic,
`
`3 Petitioner contendedat the oral argumentthat adjustments to multiple
`coefficients or parameters could be implemented with a filter comprising
`multiple filters, but that the specification also describes implementing it with
`a single filter with multiple coefficients or parameters. Tr. 12:21—14:12.
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`or a single filter with multiple coefficients for adjusting multiple
`
`characteristics.
`
`Patent Owneralso disagrees that claim 2 supports our preliminary
`
`construction. As noted above, claim 2 depends from claim 1 and adds
`
`“wherein each of the incremental hearing correction filters comprises a
`
`collection of acoustic configuration settings configured to modulate the
`
`electronic signal to a level that is within range between an uncompensated
`
`hearing level of the user and the level to compensate for the hearing
`
`impairmentof the user.” Patent Owner argues that claim 2 supports its
`
`proposed construction because it showsthat eachfilter includes a collection,
`
`not a single filter. PO Resp. 17. Mr. Brown repeats this argument in his
`
`testimony. Ex. 2003 433. At the oral argument, Patent Ownerclarified its
`
`argument, contendingthat all claim 2 adds is a lower boundary
`
`(“uncompensated hearing level of the user’) for the modulated electronic
`
`signal and otherwise confirmsthat a hearing correction filter comprises
`
`multiple filters. Tr. 35:12-36:4.
`
`Claim 2 does notrecite that each filter comprises a collection of
`filters; rather, it recites that each filter comprises a collection of acoustic
`configuration settings. Patent Owner does not explain persuasively whythis
`
`requires multiple filters for each acoustic configuration setting rather than a
`
`single filter with multiple acoustic configuration settings. PO Resp. 17. As
`
`with the passage from the specification discussed above (Ex. 1001, 5:42—
`
`48), claim 2’s language is consistent with either view.
`
`In a similar argument, Patent Owner contendsthat a hearing
`
`correction filter “impacts different frequencies of the signalin different
`
`ways.” PO Resp. 27. According to Mr. Brown,“applying a hearing
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`correction filter to a hearing aid profile for adjusting a signal provides a
`
`varying effect on different frequencies of the signal.” Ex. 2003 49. The
`
`specification explains,“in the illustrated example {of Figure 1], the hearing
`
`sensitivity lines 110, 112, 114, 116, and 118 appear to indicate that the
`
`incremental hearing corrections adjust selected frequencies to the desired
`
`hearing level while providing less of an enhancementto other frequencies.”
`
`Ex. 1001, 4:35-39. According to Mr. Brown,a skilled artisan “would
`
`recognize that this means a collection of frequency adjustments not a single
`
`setting.” Ex. 2003 449. However, the specification describes this as an
`
`“illustrated example,”not a limitation on the invention. Ex. 1001, 4:35.
`
`Indeed, as Petitioner points out (Reply 7), directly below this passage,
`
`the specification makesclear that “it should be understood that other
`
`incremental hearing corrections could be used. For example, in one
`
`particular instance, the incremental hearing correction could dampen or
`
`otherwise applyfilters to the selected hearing aid profile to incrementally
`
`adjust the hearing correction across the entire range of frequencies
`
`substantially evenly.” Ex. 1001, 4:39-44. The specification continues: “In
`
`another instance, the incremental hearing correction could adjust selected
`
`frequencies by different amounts, providing a non-uniform hearing
`
`correction.” Jd. at 4:44-47. Here, the specification clearly distinguishes
`
`between uniform and non-uniform hearing corrections.
`
`At the oral argument, Patent Ownerargued “the ’999 patent discloses
`
`that the hearing correction filters can dampen an entire range of frequencies
`
`substantially evenly. Not entirely evenly. And dampening substantially
`
`evenly is done with a collection offilters.” Tr. 39:5-8. Patent Ownerpoints
`
`to no evidencethat the language “substantially evenly” was intended to draw
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`a distinction between onefilter adjusting all frequencies perfectly evenly and
`a collection offilters adjusting all frequencies substantially evenly. Rather,
`
`the two passages together (Ex. 1001, 4:35-47) are consistent with the
`
`claims, for example claim 1 reciting one or morefilters (e.g., one filter
`
`adjusting all frequencies substantially evenly) and claim 2 reciting a filter or
`collection offilters that adjust selected frequencies non-uniformly. These
`examples from the specification also support our preliminary construction
`
`and counsel against Patent Owner’s proposedalternative.
`
`On the complete record, based on the languageofthe claims, the
`
`definition in the specification when viewed in its proper context, and the
`
`remaining consistent description in the specification, we maintain our
`
`construction of “hearing correctionfilter,” namely, “a filter that is applied by
`
`a processor within a hearingaid to a hearing aid profile to reduce the level of
`correction provided to the user by application of the hearingaid profile.”
`In the Petition, Petitioner argued that a hearing correction filter should
`
`not be construed to coverafilter 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 by the specification. Pet. 14-15. We declined to place such a
`
`restriction on “hearing correctionfilter,” as the claims themselves recite the
`
`signals to which the hearing correction filter is applied. Dec. 11-12; see
`
`also claim 1 (“the selected hearing aid profile configured to modulate the
`electrical signals to a level to compensate for a hearing impairmentof 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”), claim 6 (“applyafirst hearing correctionfilter to the selected
`
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`hearing aid profile”). Patent Owner appears to dispute this aspect of our
`
`construction. PO Resp. 17-18. Nevertheless, neither party argues that any
`
`factual dispute turns on this aspect of our construction. Thus, we need not
`
`addressit further. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
`
`795, 803 (Fed. Cir. 1999) (“{O]nly those terms need be construed that are in
`
`controversy, and only to the extent necessary to resolve the controversy.”’).
`
`2. “incremental hearing correctionfilter”
`
`In light of our construction of “hearing correctionfilter,” above, and
`
`additional description in the specification of “incremental hearing
`
`correction” (Ex. 1001, 3:24-36), we construed “incremental hearing
`
`correctionfilter” to mean 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. Dec. 12-13. The parties do not
`
`raise additional disputes for this term beyondthoseraised for “hearing
`
`correction filter.” Accordingly, we maintain our construction of
`
`“incremental hearing correction filter” on the complete record.
`
`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 priorart are “such that the
`
`subject matter as a whole would have been obviousat the time the invention
`
`was madeto a person having ordinary skill in the art to which said subject
`matter pertains.” Weresolve the question of obviousness on the basis of
`underlying factual determinations, including:
`(1) the scope and content of
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`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of skill i
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