U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS
`AT&T MOBILITY LLC
`Petitioners
`
`v.
`
`SOLOCRON MEDIA, LLC
`Patent Owner
`
`Case IPR2015-- - -
`Patent No. 7,319,866
`
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 7,319,866
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.P.R.§ 42.100 ET SEQ.
`
`DECLARATION OF JOHN M. STRAWN, PH.D.
`
`Verizon Wireless
`Exhibit 1079-0001
`
`
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS
`AT&T MOBILITY LLC
`Petitioners
`
`v.
`
`SOLOCRON MEDIA, LLC
`Patent Owner
`
`Case IPR2015-- - -
`Patent No. 7,319,866
`
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 7,319,866
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.P.R.§ 42.100 ET SEQ.
`
`DECLARATION OF JOHN M. STRAWN, PH.D.
`
`Verizon Wireless
`Exhibit 1079-0001
`
`
`
`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`I, John M. Strawn, declare:
`
`1.
`
`I have been retained by Wiley Rein LLP to provide my opinions
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`concerning the background of the art as related to U.S. Patent Nos. 7,319,866 ("the
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`'866 Patent"); 7,257,395 ("the '395 Patent"); and 7,295,864 ("the '864 Patent")
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`("the Subject Patents"). In this Declaration I provide my opinions regarding the
`
`state of that art as of December 1999 and/or March 2000 for certain terminology
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`used in the claims of the Subject Patents and patents related to the Subject Patents.
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`In particular, I have been asked to evaluate the parent applications to which the
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`Subject Patents claim priority. One was filed on December 6, 1999, which I
`
`reference as the "Provisional Application." Another (the "Parent Application")
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`was filed on March 3, 2000, has a disclosure substantively identical to the
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`specifications of the Subject Patents, and resulted in issuance of US Patent No.
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`6,492,692 ("the '692 patent"). I will collectively reference both as the "Priority
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`Applications." I have been further asked to provide my opinion on whether the
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`Priority Applications provide sufficient written description to support "polyphony"
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`or "polyphonic audio file" in the claims of the Subject Patents by reasonably
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`conveying to one of skill in the art that the inventor had possession of those
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`concepts and disclosed such possession in either of the Priority Applications. As
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`detailed below, I conclude that the inventor did not have possession of the concepts
`
`1
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`Verizon Wireless
`Exhibit 1 079-0002
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`of "polyphony" or "polyphonic audio file" and that the inventor did not reasonably
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`convey such possession in the Priority Applications.
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`2.
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`I am being compensated for my work in preparing this Declaration at
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`the rate of $450 per hour, plus reimbursement of reasonable direct expenses. My
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`compensation is not contingent on the outcome of this matter or the specifics of my
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`testimony. I have no other interest in this matter or the parties involved in this
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`matter.
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`I. QUALIFICATIONS
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`3. My qualifications for forming the opinions set forth in this
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`Declaration are summarized in the following paragraphs and explained in more
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`detail in my curriculum vitae which is attached as Attachment A to this report.
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`Attachment A also includes a list of my publications and a listing of my testimony
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`during the past four years.
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`4.
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`I have been working in the field of software, digital signal processing,
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`and processor architecture since 1976. I earned a Bachelor's degree from Oberlin
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`College in 1973 and a Ph.D. degree from Stanford in 1985, with my doctoral
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`dissertation focusing on signal processing for analyzing digital audio.
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`5.
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`I have over 30 years involvement in software, digital audio, digital
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`music, digital signal processing, and processor architecture. Working in those
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`areas, I have been an employee, a manager of a team of other Ph.D.s, and an
`
`2
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`Verizon Wireless
`Exhibit 1 079-0003
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`independent software consultant in signal processing specializing in high-level
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`languages and assembly language.
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`6.
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`I have implemented and taught theory and practice of recording and
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`playing back sound involving PCM, WA V, MP3, and related compression
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`techniques. The experience with PCM goes to generating sound on the mainframe
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`at Oberlin, spring 1973. I used, recorded, and wrote software involving PCM and
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`W A V -style files as part of my doctoral work at Stanford. I have written software
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`for playback ofPCM and WAY-style files in industry, for example as an employee
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`at LucasFilm in the 1980's, and for many years since then as a software consultant.
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`For compression such as MP3, I have implemented MP3 and related techniques for
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`various consulting clients.
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`7.
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`In litigation as shown on my attached CV, I testified as an expert in
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`litigation in which MP3 files were disputed. For that litigation I reviewed
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`extensive historical and theoretical literature, including PhD dissertations in
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`German. I have taught MP3 and related compression techniques at various
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`industry fora and, for several years, in a special course at the University of
`
`Colorado.
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`8.
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`As for the musical aspects of this matter, I became familiar with
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`monophony and polyphony in high school, through my work as a church organist
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`and choir member. At Oberlin, there was course work on the origins of polyphony,
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`3
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`Verizon Wireless
`Exhibit 1 079-0004
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`including an assignment transcribing a polyphonic work from the 1200s AD from
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`the original manuscript. At Stanford, coursework included doctoral-level work in
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`the history of music theory, specifically focusing on the development of
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`polyphony in Europe in the time frame 800-1200 AD.
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`9.
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`I have read and am familiar with the Subject Patents and the file
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`histories of those patents. The Subject Patents are members of a family of patents,
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`each of which is a continuation of the Parent Application 09/518,712 (Exhibit
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`1004), as outlined in the following table. Because the specification of each of the
`
`applications in the table is the same as that of the Parent Application, as I have
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`verified, for convenience I provide citations from the specification of the '692
`
`patent (Exhibit 1051) in Table 1.
`
`US Patent No.
`
`6,496,692
`
`7,257,395
`7,295,864
`7,319,866
`
`8,249,572
`
`Filed
`
`Issued
`
`Application
`Number
`09/518,712 3/3/2000
`("Parent Application")
`10/223,200 8/16/2002 8/14/2007
`10/603,271 6/23/2003 11/13/2007
`10/915,866 8/11/2004 1/15/2008
`
`Exhibit
`
`12/17/2002 1004 (prosecution history)
`1051 (patent)
`1006 (application)
`
`1005 (application)
`1 00 1 (patent)
`
`11/633,135 12/2/2006 8/21/2012
`
`Table 1. Patent Family Including Subject Patents
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`10. As part of my preparation for forming the opinions set forth in this
`
`Declaration, I have reviewed and relied upon the following:
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`4
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`Verizon Wireless
`Exhibit 1 079-0005
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`• The Subject Patents;
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`• The prosecution histories of the Subject Patents;
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`• us 6,496,692; us 7,742,759; us 8,249,572; us 8,594,651;
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`• The prosecution history of the '692 patent;
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`• US application 60/169,158 (Exhibit 1003), 09/581,846; 10/600,975;
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`10/915,862;
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`• WO application 0141403 A2 (Exhibit 1030) and WO 0141403 A3;
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`• All of the documents included as Attachments and Exhibits.
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`In addition I have reviewed every document discussed in this Declaration.
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`II.
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`LEGAL STANDARDS
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`11.
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`For purposes of this Declaration, I have been informed that I should
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`consider the following legal standards.
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`12.
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`The test for sufficiency of written description is whether the
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`disclosure of the application relied upon reasonably conveys, with reasonable
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`clarity, to those skilled in the art that the inventor had possession of the claimed
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`subject matter as of the filing date.
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`13.
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`It is the specification itself that must demonstrate possession and show
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`that the inventor actually invented the invention claimed. The hallmark of written
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`5
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`Verizon Wireless
`Exhibit 1 079-0006
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`description is disclosure within the specification. The support for the invention
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`must be found in the specification as filed, and later added or amended claims
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`cannot be used to provide that support.
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`14. While the description requirement does not demand any particular
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`form of disclosure, or that the specification recite the claimed invention in haec
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`verba, a description that merely renders the invention obvious does not satisfy the
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`requirement.
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`It is not a question of whether one skilled in the art might be able to
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`construct the patentee's claimed invention from the teachings of the disclosure but
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`rather, it is a question whether the application necessarily discloses that particular
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`claimed invention.
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`15.
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`The written description can actually or inherently disclose a claim
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`element. In order for a disclosure to be inherent, the missing descriptive matter
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`must necessarily be present in the original application's specification such that one
`
`skilled in the art would recognize such a disclosure. I understand that one cannot
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`disclose a forest in the original application, and then later pick a tree out of the
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`forest and say "here is my invention." In order to satisfy the written description
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`requirement, the blaze marks directing the skilled artisan to that tree must be in the
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`originally filed disclosure.
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`16.
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`The very essence of inherency is that one of ordinary skill in the art
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`would recognize that a reference unavoidably teaches the property in question.
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`6
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`Verizon Wireless
`Exhibit 1 079-0007
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`Inherency, however, may not be established by probabilities or possibilities. The
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`mere fact that a certain thing may result from a given set of circumstances is not
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`sufficient.
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`17.
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`It is not sufficient for purposes of the written description requirement
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`that the disclosure, when combined with the knowledge in the art, would lead one
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`to speculate as to modifications that the inventor might have envisioned, but failed
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`to disclose.
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`III. LEVEL OF ORDINARY SKILL IN THE ART
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`18.
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`To the extent that it is relevant and helpful to these proceedings, based
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`on my review of the Subject Patents, as well as my industrial and academic
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`knowledge and experience regarding the level of education and experience of
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`persons actively working in the technical field of those patents at the time the
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`subject matter at issue was developed; the types of problems encountered in the art
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`at the time the subject matter was developed; and the sophistication of the
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`technology at issue in this case, it is my opinion that a person of ordinary skill in
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`the art of the Subject Patents would have had, as of the March 2000 timeframe, a
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`minimum of an accredited bachelor's degree in Electrical Engineering or
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`Computer Engineering or equivalent professional experience, and at least two
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`years of experience with the design of computer systems. In addition such a person
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`7
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`Verizon Wireless
`Exhibit 1 079-0008
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`would have knowledge of the concept of polyphony, such as would be taught in an
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`upper-division undergraduate course on music. My opinion remains the same for
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`the December 1999 timeframe.
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`IV. BACKGROUND OF THE ART
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`A. Polyphony and Monophony
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`19. Broadly speaking, looking over the history of human civilization
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`around the world, one distinguishes music as being monophonic or polyphonic. In
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`monophonic music, there is essentially one voice. Examples of monophonic music
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`would include a single trumpet playing "taps" or "reveille;" a recording of clock
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`bells playing Westminster chimes; any solo singer; or Gregorian chant.
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`20.
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`In polyphony, there are two or more voices moving more or less
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`independently at the same time. Polyphony is considered a crowning achievement
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`of European culture, with roots going at least as far back as the mid-800's AD. In
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`order to achieve polyphony, one needs at least two sound sources to produce two
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`notes simultaneously at least some of the time: two singers; two strings; two brass
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`instruments, and so on. Examples of polyphony include the Hallelujah Chorus;
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`Pachelbel's "Canon;" most songs by rock, blues, or country artists; "chopsticks" as
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`played with two fingers on the piano; or "Row Row Row Your Boat" when sung as
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`a round.
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`8
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`Verizon Wireless
`Exhibit 1 079-0009
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`B.
`
`Elements of Music
`
`21.
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`In fact, "polyphony" and "monophony" are covered by the collective
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`term "texture," which includes also homophony and heterophony. Texture in turn
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`is one of the elements of music; other elements include e.g., pitch; the organization
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`of pitch according to scales, modes, and harmonies; dynamics; rhythm; meter;
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`tempo; duration; harmony; chord progression; register (e.g., high/low); vocal
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`versus instrumental; instrumentation; timbre (e.g., tone color); form (e.g., song,
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`hymn, symphony, waltz, two-step, fugue, canon, ... ); articulation (e.g., violin bow
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`change I no bow change); performance practice; interpretation; performance
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`setting; and style (e.g., jazz, pop, rock, classical, ... ).
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`22.
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`The elements of music are largely unchanged since long before
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`December 1999 or March 2000. For example I covered such elements when as a
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`graduate student I taught an introductory music class at Stanford in the early
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`1980's. A number of source references may be used to understand these elements.
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`One presentation is included as Exhibit 1039. 1 This presentation is consistent with
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`my knowledge of how one of skill in the art would have understood the concepts of
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`the elements of music as of 1999 or 2000.
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`1 This reference was downloaded from http://www.slideshare.net/JesseTeWeehi/elements-of-music-start.
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`9
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`Verizon Wireless
`Exhibit 1079-0010
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`C.
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`Channels
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`23.
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`The multiple voices of polyphony should not be confused with the
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`number of reproduction channels. When I was a child I heard monophonic and
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`polyphonic music over the monaural (single-channel) radios and TVs of the time.
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`When stereo was introduced into television, there were two channels of sound
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`carrying monophonic or polyphonic music for reproduction through two
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`loudspeakers. In the past decades cinema sound has involved 5 discrete channels
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`with an additional bass channel, known as 5 .1. These channels are capable of
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`carrying monophonic or polyphonic sound. The term "stereophonic," meaning
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`two- channel reproduction, is often contrasted with the term "monophonic,"
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`meaning single-channel reproduction. "Monophonic" is not used in that sense in
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`this Declaration.
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`D.
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`PCM and PAM; PCM File Format
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`24.
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`There are various methods for digitally recording sound. The
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`Subject Patents' specifications refer to at least two of them. One is pulse code
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`modulation (PCM) ['692 patent,2 4:21] in which sound is recorded as a string of
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`numbers, called samples. For the PCM file format, the sample rate specifies how
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`many numbers are recorded per unit of time, typically per second. For example, in
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`the compact disc, PCM audio is recorded as a series of 44,100 samples per second
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`2 The relationship between the '866 patent and the '692 patent is given above.
`
`10
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`Verizon Wireless
`Exhibit 1079-0011
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`per channel; each sample is represented with an accuracy or resolution of 16 digital
`
`bits. The sample rate and the resolution are specified according to the intended
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`use; in general, a higher sample rate and more bits per sample produce higher
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`quality. The name pulse code modulation comes from the fact that the "code," or
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`stored numerical value, for each sample ("pulse") is changed ("modulated") as the
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`sound waveform changes. PCM is contrasted to various other recording
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`techniques, such as PAM, or pulse amplitude modulation, also mentioned in the
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`'692 specification [ 4:21].
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`25.
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`The numbers created by PCM carry no information about the content
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`of the audio. PCM can thus record silence; nature sounds; noise; speech; and every
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`variety of musical sound known to humanity. With respect to the present issue, a
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`file formatted to contain PCM audio might contain monophonic content (e.g., a
`
`single note resulting from depressing a single piano key) or polyphonic content
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`(e.g., two notes resulting from depressing two separate piano keys simultaneously).
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`Simply put, merely mentioning the file format (PCM) does not reasonably convey
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`any possession of the concept of polyphonic or any other element of music.
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`E. W A V File Format
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`26. A WAV file typically contains uncompressed audio in PCM format.
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`The W A V file format accommodates one or more channels of audio at a variety of
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`sample rates and resolutions. The numbers in a W A V file contain no information
`
`11
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`Verizon Wireless
`Exhibit 1079-0012
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`about the content of the audio. A W A V file can thus contain a recording of
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`silence; nature sounds; noise; speech; and every variety of musical sound known to
`
`humanity. With respect to the present issue, a W A V file might contain
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`monophonic content (e.g., a single note resulting from depressing a single piano
`
`key) or polyphonic content (e.g., two notes resulting from depressing two separate
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`piano keys simultaneously). Simply put, merely mentioning the file format
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`(W A V) does not reasonably convey any possession of the concept of polyphonic
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`or any other element of music.
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`27. As an example, I understand that SOUND.WAV and
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`BTL W ALZ. W A V are ringtones in the W A V file format and were provided with
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`the compact disc (CD) that was provided with the Nokia 911 0. The date on both
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`files was November 6, 1998. SOUND.WAV lasts about 2.2 sec and sounds like a
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`recording of a single electric guitar line. A listening test confirms that
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`SOUND.WAV is monophonic. That is, there is only one guitar note at any one
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`point in time. BTLW ALZ.WAV is a recording of a calliope-like instrument
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`playing a melody line with accompaniment, lasting about 10 sec. A listening test
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`confirms that BTLW ALZ.WA Vis polyphonic. That is, the overall texture is that
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`of at least two notes sounding simultaneously.
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`28.
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`There is empirical support for the conclusions drawn from listening
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`tests. Attachment 1055 Figure 1 shows SOUND.WAVas displayed in the WAV
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`12
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`Verizon Wireless
`Exhibit 1079-0013
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`file editor Adobe Audition. The display is akin to a storage oscilloscope. Time
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`runs from left to right. The vertical dimension is amplitude. The breaks between
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`some notes can be discerned as a "valley." Adobe Audition finds that
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`SOUND. W A V is stored at the sample rate of 11,025 samples per second (one-
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`quarter that of the audio CD), at 8-bit resolution (one-half that of the audio CD),
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`and is a monaural file. I have used Adobe Audition for years, and used programs
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`similar to it since 1976. I have also programmed such software for example as part
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`of my Ph.D. dissertation at Stanford.
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`29.
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`Exhibit 1055 Figure 2 shows a spectrographic representation of
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`SOUND.WAV, created by Adobe Audition, akin to a "voiceprint." I have
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`analyzed, and programmed, such spectrographic plots, for example as part of my
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`Ph.D. dissertation at Stanford. Again time runs from left to right. The vertical
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`axis is frequency. The spectral components of the sound are represented in
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`particular as horizontal lines each running a short distance from left to right. The
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`intensity of the color of the horizontal lines relates to the relative amplitude of each
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`spectral component. Each "column" or "tower" corresponds roughly to one note.
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`There are a few quick notes visible at the left of the figure, followed by 9 notes
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`each lasting approximately 0.15 sec., with a final long note on the right side of the
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`figure. The pitch of each note can be roughly determined by tracing the bottom
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`horizontal line for each note. The fact that the horizontal lines for each note appear
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`13
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`Verizon Wireless
`Exhibit 1079-0014
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`evenly stacked in each "tower", like the stories in a monotonous skyscraper,
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`implies that each note occurs by itself, that is, only one note is sounding at one
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`time. This provides empirical support for the assertion that SOUND.WAV is a
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`monophonic W A V file.
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`30.
`
`Exhibit 1055 Figure 3 shows one representation of the spectrum3 of
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`SOUND.WAV at approximately 0.6 sec, centered within the third of the more or
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`less equally spaced notes. The position inside the overall recording is indicated by
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`the left-hand arrow in Figure 1 and Figure 2. In the spectrum of Figure 3,
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`frequency is the X axis, and again amplitude is the Y axis (decibels). Again, the
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`predominant peaks appear evenly spaced, indicating one note, as is well
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`understood from the acoustics of musical instruments. Adobe Audition reports that
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`the note is played at D#4 and lies at a frequency of 311 Hz 4
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`, both of which match
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`D-sharp orE-flat above middle C (the second black key above middle Con the
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`piano). Adobe Audition provides a coarse reading of the frequency of each peak
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`when one uses a mouse in the spectral plot. Reading from the left, some major
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`spectral peaks appear to fall at approximately 311 Hz, 624Hz, 936Hz, 1248Hz,
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`3 Adobe Audition defaults, 1024-point Blackman-Harris windowed discrete Fourier
`transform ("FFT"), corresponding to approximately 92 msec., well within the
`duration of the note.
`4 Frequency is measured in cycles per second with the unit Hertz, abbreviated Hz.
`The normal range of human hearing is commonly said to extend from
`approximately 20Hz to 20,000 Hz.
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`14
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`Verizon Wireless
`Exhibit 1079-0015
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`
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`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
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`1561 Hz, 1873Hz, 2185Hz, and 2497Hz, which are more or less integer
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`multiples of 311 Hz, as one would expect (the exact values would be 311 Hz, 622
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`Hz, 933Hz, 1244Hz, 1555Hz, 1866Hz, 2177Hz, and 2488Hz, respectively). It
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`is well understood that in a real-world musical instrument the locations of such
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`peaks vary slightly from exact integer multiples of a lowest frequency, and it is
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`also well understood that such measurements read from Adobe Audition are not
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`exact, and not intended to be exact. However, these numbers quantitatively and
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`qualitatively support the conclusion that SOUND. W A V is monophonic, and the
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`overall impression in the figure is close enough to provide empirical support for
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`the assertion that SOUND.WAV is monophonic.
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`31.
`
`Exhibit 1055 Figure 4 shows another representation of the
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`spectrum of SOUND.WA V, at approximately 1.42 sec. The position inside the
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`overall recording is indicated by the right-hand arrow in Figure 1 and Figure 2, in
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`the middle of the eighth equally-spaced note. Once again, the predominant peaks
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`appear evenly spaced, indicating one note. Adobe Audition reports A#4 and 466
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`Hz, both of which match B-flat above middle C on the piano. The fact that the
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`pitch of the note of Figure 4 is higher than that of the note of Figure 3 matches the
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`locations of the bottom horizontal line for each note in Figure 2. Reading from the
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`left, the spectral peaks in Figure 4 appear to fall at approximately 466Hz, 936Hz,
`
`1399Hz, 1873Hz, 2336Hz, 2810Hz, 2185Hz, and 3273Hz, which are more or
`
`15
`
`Verizon Wireless
`Exhibit 1079-0016
`
`
`
`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`less integer multiples of 466Hz, as one would expect (the exact values would be
`
`466Hz, 932Hz, 1398Hz, 1864Hz, 2330Hz, 2796Hz, and 3262Hz,
`
`respectively). This again provides empirical support for the assertion that
`
`SOUND.WAV is monophonic.
`
`32.
`
`I have examined the spectra for all of the more or less equally spaced
`
`notes in Figure 2, and the final note, and determined that each represents a single
`
`note with spectral behavior matching that shown in Figure 3 and Figure 4. That is,
`
`the predominant spectral peaks appear evenly spaced, indicating one note. This
`
`again provides empirical support for the assertion that SOUND. W A V is
`
`monophonic.
`
`33. Not only do these individual figures provide empirical support for the
`
`assertion that SOUND.WAV is monophonic; taken together they provide
`
`empirical support for the assertion that SOUND.WAV is monophonic.
`
`34.
`
`In contrast, analysis ofBTLWALZ.WAV with the same tools shows
`
`more than one note at a time and provides empirical support for the conclusions
`
`derived from listening tests. Exhibit 1055 Figure 5 is a time-domain representation
`
`ofBTLWALZ.WAV. Adobe Audition again finds that BTLWALZ.WAV is
`
`stored at the sample rate of 11,025 samples per second, at 8-bit resolution, and is a
`
`monaural file. Many of the rhythmic beats can be clearly distinguished, which is
`
`not a surprise, given the highly detached performance style.
`
`16
`
`Verizon Wireless
`Exhibit 1079-0017
`
`
`
`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`35. Exhibit 1055 Figure 6 is a corresponding spectrographic
`
`representation. The bottom part looks to the trained eye like a player-piano score.
`
`Each "tower" in the figure matches one of the staccato-like rhythmic beats in the
`
`performance. Here, the "left hand" notes of the "accompaniment" jump up and
`
`down in a regular pattern toward the bottom of the screen and anchor the beat. The
`
`"right-hand" "melody" notes ascend and descend several times above the
`
`accompaniment notes. Listening shows that there are three phrases of 8 rhythmic
`
`beats each; one phrase of four beats; and a cadence consisting of a held beat, for a
`
`total of 29 beats, each lasting approximately 0.31 sec. The listening test analysis
`
`can be verified in the figure. There are sometimes two melody notes per
`
`accompaniment beat.
`
`36.
`
`It is first of all clear throughout Figure 6 that a melody note often
`
`sounds at the same time as an accompaniment note. Furthermore, as listening tests
`
`show, the accompaniment by itself on many occasions plays two notes, as shown
`
`by two parallel horizontal lines at the bottom of the figure, for example at the
`
`arrow in Figure 6. The spectral components of the combined melody and
`
`accompaniment notes dance together "in the clouds" toward the vertical middle of
`
`the figure. The outlines of spectral components of the melody follow its ups and
`
`downs. The spectral components of the accompaniment can also often be
`
`discerned, for example about halfway through the recording, again at the arrow in
`
`17
`
`Verizon Wireless
`Exhibit 1079-0018
`
`
`
`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`the figure. To the extent that they are discernable in Figure 6, the spectral
`
`components of a melody note sounding at the same time as accompaniment, or two
`
`accompaniment notes sounding at the same time, represent a mish mash and do not
`
`appear to be stacked evenly in the vertical direction, contrary to the impression in
`
`Figure 2. This indicates that more than one note is playing at a time and provides
`
`empirical support for the assertion that BTLW ALZ.WA Vis polyphonic.
`
`37.
`
`Exhibit 1055 Figure 7 shows one spectral representation of
`
`BTLW ALZ.WAV at approximately 4.8 sec, as shown by the arrow in Figure 5 and
`
`Figure 6, where two notes in the accompaniment are playing simultaneously
`
`without a melody note present. Here the spectral peaks appear to be arranged
`
`irregularly from left to right, contrary to the impression in Figure 3 or Figure 4.
`
`The left most peaks occur at approximately 208 Hz and 344 Hz respectively, and
`
`match the pitches for the notes perceived in a listening test: A-flat below middle
`
`C, and F -natural above middle C, representing the perceived interval of a major
`
`sixth. The peaks labeled in Figure 7 at 409Hz, 613Hz, 839Hz, 1055Hz, and
`
`1248Hz are associated with the lower A-flat note at 208Hz, because they fall at
`
`whole-number multiples of 208 Hz, more or less (the exact numbers would be 208
`
`Hz, 416Hz, 624Hz, 832Hz, 1040Hz, and 1248Hz). The remaining peaks
`
`18
`
`Verizon Wireless
`Exhibit 1079-0019
`
`
`
`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`labeled in Figure 8, 699Hz, 1055 Hz, 5 1399Hz, and 1754Hz, are associated with
`
`the F -natural upper note at 344 Hz, because they again fall at more or less whole-
`
`number multiples of344 Hz (the exact numbers would be 344Hz, 688Hz, 1032
`
`Hz, 1376Hz, and 1720Hz). The observed numbers are quantitatively close
`
`enough to the theoretically exact numbers to support the conclusion that
`
`BTL W AZ. W A V is polyphonic, and the overall impression in the figure provides
`
`empirical support for the assertion that BTLW ALZ.WA Vis polyphonic.
`
`38.
`
`Table 2 summarizes the distribution of Figure 7. The left
`
`column lists the approximate peaks shown in Figure 7. The middle column shows
`
`the ratio of those peaks assigned to the lower note. The right column shows the
`
`ratio of those peaks assigned to the upper note. The cells missing an entry in the
`
`two right-hand columns would for the most part contain a ratio which is far
`
`removed from more or less a whole number. For example, if one were to assume
`
`that all of the peaks in Figure 7 belonged to just one lower note at 208 Hz, then this
`
`would lead to the conclusion that the peak at 344Hz would have a ratio near 1.65
`
`relative to the peak at 208 Hz; and the peak near 699 Hz would have a ratio of 3.36
`
`relative to the peak at 208Hz. Both 1.65 and 3.36 are not considered to be close to
`
`5 Absent further analysis, Figure 7 reasonably appears to show one peak near 1055
`Hz covering both the spectral peak that one would expect near 1 040 Hz for the
`lower note and the spectral peak that one would expect near 1032Hz for the upper
`note. Such overlaps often occurs in analysis of polyphonic sound involving real(cid:173)
`world musical instruments.
`
`19
`
`Verizon Wireless
`Exhibit 1 079-0020
`
`
`
`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`an integer multiple. Such unevenly distributed peaks would not match the even
`
`spacing of spectral peaks that one would expect from the calliope-style instrument
`
`in BTL W ALZ. W A V if that instrument were playing just one note, given the
`
`common understanding of the acoustics of such a musical instrument. These
`
`ratios, and the distribution of the ratios, support the conclusion that
`
`BTL W ALZ. W A V is polyphonic, and the overall impression in these ratios
`
`provides empirical support for the assertion that BTLW ALZ.WA Vis polyphonic.
`
`Approximate
`Peak (Hz)
`
`Ratio Ratio
`to 208 to 344
`Hz
`Hz
`
`208
`344
`409
`613
`699
`839
`1055
`1248
`4.07
`1399
`5.10
`1754
`Table 2. Distribution of spectral peaks in Exhibit 1055 Figure 7.
`
`1
`
`1.97
`2.95
`
`4.03
`5.07
`6.00
`
`1
`
`2.03
`
`3.07
`
`39. Not only do these individual figures provide empirical support for the
`
`assertion that BTLW ALZ.WA Vis polyphonic; taken together they provide
`
`empirical support for the assertion that BTLW ALZ.WA Vis polyphonic.
`
`20
`
`Verizon Wireless
`Exhibit 1079-0021
`
`
`
`U.S. Patent No. 7,319,866
`Petition for Inter Partes Review, Declaration of John M. Strawn, Ph. D
`
`40. Even a cursory listening test, or a cursory examination of the figures
`
`in Exhibit 1055, shows that a WAV file might contain content with widely varying
`
`elements of music beyond texture (e.g., monophony and polyphony). For example,
`
`consider voice-leading. The fact that sound is stored in a WAV file does not
`
`indicate that SOUND. W A V has a "left hand" and a "right hand" part, which many
`
`listeners would find in BTLW ALZ.WAV. For another example, consider timbre.
`
`The fact that sound is stored in a W A V file
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