UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`K/S HIMPP
`
`Petitioner,
`
`V.
`
`UI Holdings 4, LLC
`
`Patent Owner.
`
`Case IPR2017-00782
`Patent No. 8,654,999
`
`PATENT OWNER’S NOTICE OF APPEAL
`
`IS9192
`GVuy
`YViy3JSpiv
`CeclINy42
`FD440y
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`K/S HIMPP
`
`Petitioner,
`
`V.
`
`UI Holdings 4, LLC
`
`Patent Owner.
`
`Case IPR2017-00782
`Patent No. 8,654,999
`
`PATENT OWNER’S NOTICE OF APPEAL
`
`IS9192
`GVuy
`YViy3JSpiv
`CeclINy42
`FD440y
`
`
`
`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 [JI 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 29) in IPR2017-00782 (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 10, 13, 14, and 20 are
`
`unpatentable as obvious over Fichtl and Mangold, the Board’s determination that
`claims 11 and 15 are unpatentable as obvious over Fichtl, Mangold, and Sacha, any
`
`finding or determination supporting or relating to those issues, as well as all other
`
`issues decided adversely to Patent Owner in 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 Appeal is 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 andall
`
`accompanying documents, were filed by Express Mail on September 21, 2018,
`
`with the Director of the United States Patent and Trademark Office, at
`
`the
`
`following address:
`
`Director of 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/ECFfiling 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. 29
`Entered: July 23, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`K/S HIMPP,
`Petitioner,
`
`Vv.
`
`II HOLDINGS 4, 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.
`
`FINAL WRITTEN DECISION
`35 USC. § 318(a) and 37 CFR. § 42.73
`
`
`
`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 7999 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 alsoreal
`
`parties in interest. Pet. 1. HI Holdings 4, LLC (“Patent Owner”), filed a
`Preliminary Response (Paper7, “Prelim. Resp.”).
`
`Pursuant to 35 U.S.C. § 314,in ourInstitution Decision (Paper8,
`
`‘Dec.””), we instituted this proceeding as to claims 10, 11, 13-15, and 20, but
`
`not claim 12.
`
`Patent Ownerfiled a Patent Owner’s Response (Paper 12, “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”).
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`Petitioner relies on the Declaration of Les Atlas, Ph.D. (Ex. 1108,
`“Atlas Decl.”). 1 Patent Ownerrelies on the Declaration of Clyde Brown
`(Ex. 2103, “Brown Decl.”).
`
`An oral argument washeld on May1, 2018 (Paper 28, “Tr.”).
`On April 24, 2018, the Supreme Court held that a decision to institute
`under 35 U.S.C. § 314 maynotinstitute on less than all claims challenged in
`the petition. SAS Inst. Inc. v. Iancu, 138 S. Ct. 1348, 1369-60 (2018).
`Following the Supreme Court’s decision, the parties filed a Joint Motion to
`Limit the Petition to remove claim 12 from the proceeding, Paper 26, which
`
`we granted, Paper 27.
`Wehavejurisdiction 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
`
`10, 11, 13-15, and 20. Based onthe record before us, Petitioner has proved,
`
`by a preponderanceofthe evidence, that claims 10, 11, 13-15, and 20are
`
`unpatentable.
`
`B. Related Matters
`
`Petitioner challenges claims 1-9 and 16-19 of the ’999 patent in K/S
`
`HIMPPy.Ill Holdings 4, LLC, Case IPR2017-00781 (PTAB). Pet. 2.
`
`1 Patent Owner argues that we should give Dr. Atlas’s Declaration no weight
`becauseit merely repeats the argumentsin the Petition. PO Resp. 32-35. In
`the cases of both Dr. Atlas’s testimony and that ofMr. 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 factorin
`determining the weightto give that testimony. See 37 C.F.R. § 42.65(a).
`Weare not persuaded to discounteither expert’s testimony entirely.
`
`3
`
`
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`IPR2017-00782
`Patent 8,654,999 B2
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`C. Asserted Prior Art References
`
`Petitionerrelies on the following prior art:
`
`Ex. 1103 (“Fichtl”)
`
`US8,787,603 B2
`
`July 22, 2014
`(filed June 19, 2012)
`
`Ex. 1104 (“Sacha”) US 2003/0215105 Al=Nov. 20, 2003
`
`Ex. 1107 (“Mangold”) US 4,972,487
`Nov. 20, 1990
`
` /
`
`
`
`
`
`
`
`§ 103(a)
`
`10, 13,
`
`14, and 20
`
`D. The Asserted Grounds
`Weinstituted on the following grounds of unpatentability (Dec. 33):
`
`
`Claims'C
`
`
`
`
`
`Fichtl and Mangold
`
`Fichtl, Mangold, and Sacha
`
`§ 103(a)
`
`11 and 15
`
`E. The 7999 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 frequenciesandthat 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. Thepatent further notes that the
`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 systemin which,“ratherthan abruptly implementing the hearing
`correction for the user immediately, the hearing aid progressively applies
`
`incremental adjustments to progressively or gradually adjustthe user’s
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`experience from an uncompensated hearing level to a fully compensated
`
`hearing level.” Jd. at 2:30-34.
`Figure 2, reproduced below,illustrates an embodimentof the hearing
`
`aid system of the 999 patent:
`200 a}
`
`Hearing Ald 7
`
`Hearing Aid Profiles
`Hearing Correction Filters
`
`Module
`
`Corrections
`
`210
`
`212
`
`
`
`
`
`
`
`
`
`
`Processor
`
`
`Microphone
`
`
`
`270
`
`_ 272
`
`274
`
`260
`
`264
`
`na
`
`Inpul Interface
`
`Display
`Interface
`
`We neee
`
`Transceiver
`Speaker
`——————I
`
`214
`
`216
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`Figure 2 is a block diagram ofa 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
`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 process hearingaid 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. 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. Id. 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 sequenceovera periodoftime to provide
`incremental corrections for the user’s hearing loss.” Jd. at 3:2-7. For
`example, “a first hearing correctionfilter attenuates the hearing aid profile
`by a pre-determined amount”and “[eJach .
`.
`. subsequenthearing correction
`filter in the sequence increases the correction provided by (decreases the
`attenuation applied to) the hearing aid profile to some degree, until the
`sequenceis complete andthe hearing aid profile is fully applied to provide
`the desired hearing correction for the user.” Jd. 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. Id. at 10:55-59. For example,“the
`alert may be an audible alert reproduced through a speaker of hearing aid”or
`
`6
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`
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`IPR2017-00782
`Patent 8,654,999 B2
`
`“may be sent to the computing device for display on the display interface.”
`
`Id, at 10:59-€2.
`
`In one embodiment, processor 210 of hearing aid 202selectively
`applies a hearing correction filter 220 to selected hearingaid profile 218 to
`provide hearing correction for a period of time before advancing to a next
`incremental hearing correction filter 220 in a sequence. Id. at 6:42—52. In
`another embodiment, hearing aid 202 receives a trigger from computing
`device 252 through the communication channel andselectsa filter from
`hearing correction filters 222 for application to a selected hearing aid profile
`218. Id. at 7:9-16. In some instances, hearing aid 202 can signal computing
`
`device 252 to retrieve an incrementalhearing correctionfilter 276 from
`
`memory 254. Id. at 9:62-65.
`Claim 10, the only independentclaim at issue,is illustrative of the
`
`invention and reproduced below:
`
`10. Acomputing device comprising:
`a transceiver configurable to communicate with a hearing aid
`through a communication channel,
`a processor coupled to the transceiver; and
`a memory coupled to the processor and configured to store
`instructions that, when executed by the processor, cause
`the processorto:
`generate a sequenceofincremental 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 atleast a first hearing
`correction filter and a second hearing correction
`filter;
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`provideafirst 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 secondsignalrelated to a second hearing
`correction filter of the sequence of incremental
`hearing correction filters to the hearing aid in
`responseto receiving a selection of the second
`hearing correction filter from a user of the hearing
`aid.
`
`IJ. 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 ofordinary skill in the art in the
`contextofthe entire disclosure. See In re Tiranslogic Tech., Inc., 504 F.3d
`
`1249, 1257 (Fed. Cir. 2007).
`
`1. “hearing correction filter”
`In the Decision on Institution, we preliminarily construed “hearing
`
`correctionfilter” to mean “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 hearing aid profile.” Dec. 9. The parties’
`primary dispute was whether an individual hearing correctionfilter itself
`must include a collection offilters, as Patent Owner advocates. Jd. at 7-9.
`
`8
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`Werejected Patent Owner’s argument based onthe preliminary record.
`Id. at 9. Inits Response, Patent Ownerasks usto revisit our construction
`and rule that a hearing correctionfilter requires a collection of filters. PO
`
`Resp.14.
`The °999 patent describes “hearing correctionfilter” as follows:
`
`Asused herein, the term “hearing correction filter” 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
`reducethe level of correction provided to the user by
`application ofthe hearing aid profile. The collection ofhearing
`correction filters may include a series of hearing correction
`adjustments designed to be applied in a sequence overa period
`of time to provide incrementalcorrectionsfor the user’s hearing
`loss to ease the user’s transition from uncompensated to
`corrected hearing.
`Ex. 1101, 2:65-3:7. Patent Ownerargues thatthe first sentence in this
`passageprovidesa clear definition that “hearing correctionfilter,” singular
`meansa collection offilters, 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
`embodimentor use a word in the same mannerin all embodiments, the
`
`patentee must ‘clearly express an intent” to redefine the term.” Thorner v.
`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
`(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 emphasizedthat an indefinite article ‘a’ or ‘an’ in
`patent parlance carries the meaning of ‘one or more’ in open-ended claims
`
`9
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`93%
`
`Convolve, Inc. v. Compaq
`
`containing the transitional phrase ‘comprising.
`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, we look for a clear intent to limit
`“a” or “an” to more than one. Thus, westart with the premise that the
`
`language “a first hearing correction filter” and “a second hearing correction
`filter,” as recited in claim 10, identify one or more filters, and determine
`whetherthe specification evinces a clear intent to redefine these phrasesto
`
`mean more than onefilter.
`
`The claim language supports our preliminary construction byreciting
`
`a hearing correction filter as a memberofa collection offilters rather than
`itself including a collection offilters. For example, claim 10 recites “a
`sequence of incremental hearing correction filters” and “the sequence of
`incremental hearing correction filters includingat least a first hearing
`correctionfilter and a second hearing correction filter.” In this recitation, a
`collection of incremental hearing correction filters is recited as a set of
`individualfilters (“‘first,” “second”) that are applied in a sequence.
`The specification also supports our preliminary construction. In the
`Decision on Institution, we recognized that the °999 patent’s statementthat
`
`“the term ‘hearing correctionfilter’ refers to a collection offilters” suggests
`that a single hearing correctionfilter actually is a collection of filters. Dec. 8
`(quoting Ex. 1101, 2:65-66). Nevertheless, consistent with the claim
`language discussed above, we explained that the patent’s use of the term in
`
`10
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`context indicates that a hearing correction filter can be a singlefilter 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 designedto be applied in a sequence over a period of
`time.” Jd. at 3:2-5. This informs how the ’999 patent intends “collection of
`
`filters” to be understood. Here, the collection of hearing correctionfilters is
`a “series” of adjustments applied “in a sequence over a period of time,” not
`all at once. 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
`adjustmentprovided 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 hearing aid 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 Ownercontends that 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 impactthe definition of hearing correction filter. Ex. 2103
`{ 32. Patent Owneralso cites to Dr. Atlas’s cross-examination testimony
`that it would not be unusualto refer to a filter that includes multiple filters.
`PO Resp. 16 (citing Ex. 2105, 134:10-14 (“Q.In the world of audio devices
`in general, there would be nothing unusualaboutsaying a filter comprises
`multiple otherfilters, is there? A. No, there wouldn’t be.”)). We disagree
`
`1]
`
`
`
`TIPR2017-00782
`Patent 8,654,999 B2
`
`with Patent Owner’s reading of these passages and do not give substantial
`weight to Mr. Brown’s testimony. As explained above, the specification
`describes a collection of individual filters that are applied in a sequence, not
`
`a collection of collections offilters applied in a sequence. As to Dr. Atlas’s
`
`cross-examination testimony, evenif it is acceptable to say that a filter
`contains multiple filters, the specification does not suggest that it must be
`
`understood this way. Ex. 1101, 3:2-15.
`Patent Owner next argues (PO Resp. 16-17) that additional
`description in the specification supports its construction, namely:
`Further, it should be understoodthat the filter or correction used
`to achieve the correction lines and ultimately the hearing aid
`profile is composedof a 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.
`Ex. 1101, 5:42-48. As wenoted in the Decision on Institution, this
`description on its face describes a singlefilter that is composed of multiple
`coefficients or parameters. Dec. 9. It does notstate that a filter is comprised
`of multiple filters, each such filter correspondingto one of the coefficients or
`parameters. Patent Owner appears to disagree, arguing that “[t]o the extent
`that passage provides any context to how ‘hearingcorrectionfilter’ 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 correctionline is achieved.” Ex. 2103 { 33.
`Patent Owner attemptedto 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
`
`12
`
`
`
`IPR2017-00782
`Patent 8,654,999 B2
`
`would be able to achieve the correction for multiple frequencies.”
`
`Tr. 29:16-19.2 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,
`or a single filter with multiple coefficients for adjusting multiple
`
`characteristics.
`
`In a similar argument, Patent Ownercontendsthat a hearing
`correction filter “impacts different frequenciesofthe signalin different
`ways.” PO Resp. 25. According to Mr. Brown,“applying a hearing
`correction filter to a hearing aid profile for adjusting a signal provides a
`varying effect on different frequencies ofthe signal.” Ex. 2103 949. 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 enhancement to other frequencies.”
`Ex. 1101, 4:35-39. According to Mr. Brown,a skilled artisan “would
`recognize that this means a collection of frequency adjustments nota single
`setting.” Ex. 2103 49. However, the specification describesthis as an
`““Jlustrated example,” not a limitation on the invention. Ex. 1101, 4:35.
`Indeed,as Petitioner points out (Reply 7-8), directly below this
`passage, the specification makesclearthat“it should be understood that
`other incremental hearing corrections could be used. For example, in one
`
`2 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 implementingit with
`a single filter with multiple coefficients or parameters. Tr. 12:21—14:12.
`
`13
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`IPR2017-00782
`Patent 8,654,999 B2
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`particular instance, the incremental hearing correction could dampen or
`otherwise apply filters to the selected hearing aid profile to incrementally
`adjust the hearing correction across the entire range of frequencies
`substantially evenly.” Ex. 1101, 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 Owner argued “the 7999 patent discloses
`
`that the hearingcorrection 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
`
`a distinction between onefilter adjusting all frequencies perfectly evenly and
`
`a collection of filters adjusting all frequencies substantially evenly.
`On the complete record, based on the language ofthe claims, the
`
`definition in the specification when viewedin its proper context, and the
`remaining consistent description in the specification, we maintain our
`construction of “hearing correction filter,” namely,“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.”
`In the Petition, Petitioner argued 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 hearingaid profile, arguing that such
`a construction would be contradicted by the embodiments and definition
`provided by the specification. Pet. 14-15. Claim 10, the independent claim
`
`14
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`at issue in this proceeding, doesnot recite applying the first and second
`hearing correction filters. Nevertheless, we declined to place such a
`
`restriction on “hearing correction filter,” as the claims themselves, where
`applicable, recite the signals to which the hearing correctionfilter is applied.
`Dec. 9-10; see also claim 1 (“the selected hearing aid profile configured to
`
`modulate the electrical signals to a level to compensate for a hearing
`impairmentofa user”and “apply a first one of a sequence of incremental
`hearing correction filters to the modulatedelectrical signals to produce a
`modulated output signal”), claim 6 (“apply a first hearing correction filter to
`the selected hearing aid profile”). Patent Owner appears to dispute this
`aspect of our construction, at least with respect to claims 1 and 6, neither of
`whichis at issue in this proceeding. PO Resp. 17-18. Nevertheless, neither
`party arguesthat 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 correction filter,” above, and
`
`additional description in the specification of “incremental hearing
`
`correction” (Ex. 1101, 3:24-36), we construed “incremental hearing
`correction filter” 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. 10-12. The parties do not
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`15
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`raise additional disputes for this term beyond those raised for “hearing
`correction filter.” Accordingly, we maintain our construction of
`
`“incremental hearing correction filter” on the complete record.
`
` Asserted Grounds of Unpatentability
`B.
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`betweenthe claimed subject matter and the priorart are “such that the
`subject matter as a whole would have been obvious at 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 onthe 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
`nonobviousness,i.e., secondary considerations. See Grahamv. 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 someone with a bachelor’s degree in electrical or computer
`engineering, or the equivalent, and at least two years of experience in audio
`signal processing for audiological products” and that “[g]raduate education
`could substitute for work experience, and additional work
`experience/training could substitute for formal education.” Pet. 1] (citing
`
`3 The complete record does notinclude allegations or evidence of objective
`indicia of nonobviousness.
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`16
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`Ex. 1108 §§ 22~28). 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. 1108 428. Patent Owner does not propose an
`alternative. We adopt Petitioner’s proposed level of skill and find thatit is
`consistent with the level of ordinary skill reflected by the prior art of record.
`
`Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (the prior art
`itself can reflect the appropriate level of skill in the art).
`
`2. Alleged Obviousness over Fichtl and Mangold
`Petitioner contends that claims 10, 13, 14, and 20 would have been
`
`obvious over Fichtl and Mangold. Pet. 18-38. For the reasons given below,
`
`weagree.
`
`a. Scope and Contentofthe Prior Art
`
`(1) Overview ofFichtl
`Fichtl describes a hearing device that implements an acclimatization
`algorithm. Ex. 1103, Abstract. Acclimatization is the process by which,
`overthe course of several weeks to half a year, the intensity of a hearing
`
`device gradually is increased from an initially low intensity to a target
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`intensity. Jd. at 1:19-26.
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`Fichtl’s hearing device is depicted in Figure 1, reproduced below:
`9
`3
`
` 9
`
`Fig. 1
`
`/d. at 3:1-2. Sounds
`Figure 1 is a schematic diagram of hearing device 1.
`are picked up by microphone 2, processed by signal processor 9, and
`presentedto hearing device user 10 by receiver 3. Jd. at 3:23-25. User 10
`controls the magnitude of amplification using volumecontrol 4. Jd. at 3:25—
`
`26. Controller 6 sets hearing device parameters when hearing device1 is
`
`switched on or when volumecontrol 4 is actuated. Jd. at 3:28-30. Non-
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`volatile memory 7 stores parameters when hearing device | is off. Jd. at
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`3:30-32. Controller 6 executes an acclimatization algorithm. Jd. at 3:32-34.
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`Ficht!’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 ofAPP
`include volume,treble, and noise cancelling. Id. at 3:42-47.
`In the algorithm of Figure2, at time A, an audiologist (11 in Figure 1)
`programs into memory 7 initial power-on value iPOV and target power-on
`value tPOV for the APP, for example tPOV being 10 dB higher than iPOV.
`
`Id. at 3:42-48. At time B, user 10 switches the hearing aid on and the APP
`
`is set to iPOV. Jd. at 3:49-53. An intermediate value of APP, X,is
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`increased slowly during time C. Id. at 3:54-57. During time D,the user
`selects the APP to be twosteps higher than the original audio processing
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`parameter, APP,s, and X is increased faster. Jd. at 3:58-61. During 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
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`X is stored in memory 7 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
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`APPis set to rPOV} and intermediate value X is increased. Jd. at 4:5—7. At
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`time H, int
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