Paper No. 24
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`
`APPLE INC.
`Petitioner,
`
`v.
`
`ANDREA ELECTRONICS INC.,
`Patent Owner.
`
`Patent No. 6,363,345
`____________________
`
`Inter Partes Review No. IPR2017-00626
`__________________________________________________________________
`
`Petitioner’s Response to Patent Owner’s
`Observations on Cross Examination
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`
`APPLE INC.
`Petitioner,
`
`v.
`
`ANDREA ELECTRONICS INC.,
`Patent Owner.
`
`Patent No. 6,363,345
`____________________
`
`Inter Partes Review No. IPR2017-00626
`__________________________________________________________________
`
`Petitioner’s Response to Patent Owner’s
`Observations on Cross Examination
`
`
`
`
`
`
`
`
`IPR2017-00626
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`
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`Petitioner’s Resp. to Obs. Cross
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`Table of Contents
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`Introduction ................................................................................................ 1
`I.
`II. Response to Andrea’s Observations .......................................................... 2
`A. Response to Observation #1 ............................................................. 2
`B.
`Response to Observation #2 ............................................................. 2
`C. Response to Observation #3 ............................................................. 2
`D. Response to Observation #4 ............................................................. 3
`E.
`Response to Observation #5 ............................................................. 3
`F.
`Response to Observation #6 ............................................................. 4
`G. Response to Observation #7 ............................................................. 5
`H. Response to Observation #8 ............................................................. 5
`I.
`Response to Observation #9 ............................................................. 6
`J.
`Response to Observation #10 ........................................................... 7
`K. Response to Observation #11 ........................................................... 7
`L.
`Response to Observation #12 ........................................................... 8
`M. Response to Observation #13 ........................................................... 8
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`ii
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`I.
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`Introduction
`In its Motion for Observations on Cross-Examination (“Observations”),
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`Patent Owner Andrea repeats the incorrect argument from its Patent Owner’s
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`Response that the critical feature of Martin’s noise floor algorithm is the use of
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`sub-windows to determine whether noise power is monotonically increasing over a
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`time window. In Reply, Petitioner Apple Inc. and its expert Dr. Hochwald
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`explained that Andrea’s interpretation of Martin was incorrect because Martin
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`discloses that (i) the key feature of his algorithm is the tracking of the noise floor
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`itself and (ii) the number of sub-windows is a configurable parameter that can be
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`set to a value that removes sub-windows and obviates any distinction between a
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`signal is monotonically increasing or not.
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`In its Observations, Andrea attempts to challenge those opinions by
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`identifying deposition testimony where Dr. Hochwald stated that Martin discloses
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`using sub-windows and that using sub-windows can provide benefits in some
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`scenarios. But Dr. Hochwald already addressed that issue in his Reply declaration,
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`where he explained that there are tradeoffs involved in choosing the parameters
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`used in Martin’s algorithm and that it was reasonable to set the sub-window size
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`equal to the window size. Nothing in Andrea’s Observations casts any doubt on
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`Dr. Hochwald’s opinions.
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`1
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`II. Response to Andrea’s Observations
`A. Response to Observation #1
`Andrea states that the value of W in Martin corresponds to the number of
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`sub-windows used in Martin’s algorithm. This point is undisputed.
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`B. Response to Observation #2
`Andrea states that Martin determines whether a signal is monotonically
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`increasing by determining whether the PMmin values stored in min_vec are
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`increasing over the window length (e.g., if there are 4 sub-windows, Martin
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`determines whether the past 4 PMmin values stored in min_vec are increasing). This
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`point is undisputed.
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`C. Response to Observation #3
`Andrea incorrectly states that Dr. Hochwald agreed that when W=1, there is
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`only one PMmin value in min_vec and “in such a case the algorithm cannot
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`determine whether the min_vec values are monotonically increasing.” Obs. at 2.
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`Dr. Hochwald did not state that the algorithm could not determine whether
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`the signal was monotonically increasing. Instead, he repeatedly explained that
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`determination did not matter because, no matter what the determination was,
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`Martin would set Pn(i) equal to PMmin. Ex.2007 at 25:7-15 (explaining that whether
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`the answer was yes or no “the same results hold, that Pn(i) is equal to PMmin.”); see
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`id. at 22:18-23:8 (it “becomes a trivial case when you have a vector of just one
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`value…. if there's just one element, the issue of monotonically increasing is
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`2
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`trivially answered either yes or no, and it doesn't matter.”), 26:3-28:9, 29:19-30:21,
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`34:16-23, 37:2-38:22, 45:15-46:2; id. at 24:20-17. Ex.2005 at 84:21-85:1 (“Q
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`When W is equal to 1, the comparison in this monotonically increasing power
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`block is comparing the same value to the same value.· Is that correct? A Again,
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`it's one of those cases that you encounter all the time if you're taking the minimum
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`of a list of values and that list happens to have only one value, it's that value itself.
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`There's nothing unusual about that.”).
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`D. Response to Observation #4
`Andrea correctly observes that Dr. Hochwald explained that where the
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`skilled person set W equal to 1, that person had determined the distinction between
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`a signal that is monotonically increasing or not was immaterial. Dr. Hochwald’s
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`testimony is consistent with his declaration, where he explained that “Martin says
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`the overall window length L must be large enough to bridge any peak of speech
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`activity, but short enough to follow non-stationary noise variations. He does not
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`make similar comments about the number of sub-windows W…. [Martin] specifies
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`these values as configurable parameters which one in the art would understand
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`how to set.” Ex.1023, ¶5.
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`E. Response to Observation #5
`Andrea incorrectly suggests that Dr. Hochwald agreed Martin discloses that
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`the algorithm decides on “rapid noise power variation” only where the signal
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`3
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`Petitioner’s Resp. to Obs. Cross
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`power is monotonically increasing. Dr. Hochwald explained that a monotonically
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`increasing signal meant there was a rapid noise power increase. Ex.2007 at 52:12-
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`15. Dr. Hochwald explained that the algorithm can identify rapid noise power
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`decrease when the signal drops below the noise floor. Ex.1023, ¶9 (“the noise
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`floor Pn(i) adjusts to rapid noise power decreases, because the noise floor is
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`immediately updated if the current smoothed power is less than the floor.”).
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`Response to Observation #6
`F.
`Andrea incorrectly asserts that Dr. Hochwald agreed that the use of the
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`plural word “windows” in Martin to describe W meant that Martin intended there
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`to be more than one sub-window within each window L. In the cited testimony,
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`however, Dr. Hochwald simply explained that Martin’s textual description of “W
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`windows” corresponded to elements of the flowchart in Figure 2 of Martin. As Dr.
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`Hochwald stated:
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`Q· · And, again, the reference is referring to W windows plural.· Do
`you see that?
`A· · Yes.
`Q· · And that's consistent with the step of his algorithm where a
`determination is made whether or not the signal power is
`monotonically increasing within a given window W, correct?
`A· · Yes…. That paragraph seems to coincide with the flowchart.· Is
`that what you're asking, the flowchart?
`Q· · Yes.
`A· · Okay.· Yes.
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`4
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`Ex.2007 at 44:24-45:14. Dr. Hochwald thus did not testify that Martin requires
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`more than one sub-window within a window, as Andrea contends.
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`G. Response to Observation #7
`Andrea correctly states that Dr. Hochwald stated that one way Martin can
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`distinguish between slowly and rapidly varying noise power is by determining
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`whether the signal is monotonically increasing or not.
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`However, Dr. Hochwald went on to explain that the distinction between a
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`signal that is monotonically increasing or not would not always have been
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`beneficial the Martin’s algorithm. Ex.2007 at 47:15-48:12. Dr. Hochwald
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`explained that depending on the values chosen for the other variables (e.g., M and
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`L), configuring W to be greater than 1 may not provide advantages. Ex.2007 at
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`53:17-54:17, 55:17-56:21, 57:5-15, 62:14-63:14, 65:11-16 (noting that there are
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`always trade-offs), 67:4-15 (“I wouldn’t choose W equals to one in a bubble
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`without also considering what M and L are”).
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`H. Response to Observation #8
`Andrea incorrectly contends that Dr. Hochwald admitted that without sub-
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`windows, Martin cannot distinguish between slowly varying and rapidly varying
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`noise power. But Dr. Hochwald explained that when W=1, the algorithm still can
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`identify rapid noise power decrease when the signal drops below the noise floor.
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`Ex.1023, ¶9 (“the noise floor Pn(i) adjusts to rapid noise power decreases, because
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`5
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`the noise floor is immediately updated if the current smoothed power is less than
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`the floor.”). Moreover, Dr. Hochwald explained Martin’s algorithm uses many
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`parameters and the engineering decision to set the number of sub-windows W
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`equal to 1 would not necessarily affect the algorithm’s performance. Ex.2007 at
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`55:17-24, 56:13-21 (“[Martin] offers the explanation that you should experiment
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`with W because it has some – here’s what its effect is, but he doesn’t exclude W
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`equal to one or any other value”), 57:5-15, 59:2-9 (“[Martin’s] not specific on what
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`situations you would use what values of W… [A]s an engineer who wants to use
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`the algorithm…, you would not exclude W equals one”), 62:14-63:14, 65:11-16,
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`67:4-15.
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`Response to Observation #9
`I.
`Andrea incorrectly states that Dr. Hochwald admitted that the use of sub-
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`windows always improves the noise tracking capability for rapidly increasing noise
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`power. Dr. Hochwald testified that in some scenarios it can improve the noise
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`tracking capability for rapidly increasing noise power. Ex.2007, 55:17-24
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`(“[Martin] doesn’t state that this feature is actually required or mandatory. He just
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`provides it as an example of what the effect of W is”), 63:12-14 (“[Martin] doesn’t
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`say that one is bad and four is good” for a value of W), 67:4-15 (“I wouldn’t
`
`choose W equals to one in a bubble without also considering what M and L are”).
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`See also Responses to Observation #7 and #8.
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`6
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`Response to Observation #10
`J.
`Andrea incorrectly states that Dr. Hochwald admitted that the use of sub-
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`windows always improves the noise tracking capability for rapidly increasing noise
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`power and that without sub-windows, Martin does not have that capability. Obs. at
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`5 (citing Ex.2007 at 62:14-63:5). What Dr. Hochwald stated was:
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`Q· Okay.· That's Martin's disclosure, that sub-windows provide an
`improvement that you wouldn't get if you don't utilize sub-windows,
`correct?
`A· Again, he doesn't choose W for you.· He doesn't say that one is
`bad and four is good or vice-versa.
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`Ex.2007 at 63:7-14 (emphasis added); see Responses to Observation #7, #8, #9.
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`K. Response to Observation #11
`Andrea incorrectly asserts that Dr. Hochwald testified that Martin’s use of
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`sub-windows reduces delay and that less delay is always an advantage. Dr.
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`Hochwald explained that reducing delay was not necessarily advantageous:
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`Q· And would you want to have more delay in general or less delay in
`a noise tracking algorithm?
`A Again, there's always a trade-off.· On surface no delay is good, but
`there's always a compromise between accuracy and delay.
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`Ex.2007 at 65:11-17. Dr. Hochwald further explained that:
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`[T]here are a lot of factors in delay. If I were to choose -- I wouldn't
`choose W equals to one in a bubble without also considering what M
`and L are.· So it's not a question of keeping everything in the
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`7
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`algorithm constant and just affecting and playing around with one
`variable W.· It's all the parameters of the algorithm of which W is one
`of them, and it's not chosen in isolation from the rest.· So it's not easy
`to just say I'm going to compare W equals to one to W equals to two
`and say that two is better than one because it has less delay.· That's
`not a fair comparison.
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`Ex.2007 at 67:4-15 (emphases added).
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`L. Response to Observation #12
`Andrea correctly states that Dr. Hochwald testified that Martin 94 discloses
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`sub-windows. Dr. Hochwald also testified that Martin 94 does not distinguish
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`between a signal that monotonically increasing or not. Ex. 1023, ¶13.
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`M. Response to Observation #13
`Andrea correctly states that Dr. Hochwald testified that Martin 94 does not
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`explicitly explain why Prof. Martin decided not to distinguish between a signal that
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`monotonically increasing or not.
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`Dated: April 2, 2018
`
`
`Steven S. Baik
`Reg. No. 42,281
`Sidley Austin LLP
`1001 Page Mill Road (Bldg 1)
`Palo Alto, CA 94304
`sbaik@sidley.com
`(650) 565-7016
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`Respectfully submitted,
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`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Registration No. 43,401
`Sidley Austin LLP
`1501 K Street NW
`Washington, DC 20005
`jkushan@sidley.com
`(202) 736-8914
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`8
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`
`Thomas A. Broughan III
`Reg. No. 66,001
`Sidley Austin LLP
`1501 K Street NW
`Washington, DC 20005
`tbroughan@sidley.com
`(202) 736-8314.
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`Backup Lead Counsel for Petitioner
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`Lead Counsel for Petitioner
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`9
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`IPR2017-00626
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`Petitioner’s Resp. to Obs. Cross
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 2nd day of April, 2018, copies of this
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`Petitioner’s Response to Patent Owner’s Motion for Observations on Cross-
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`Examination has been served in its entirety by email on the following counsel of
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`record for Patent Owner:
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`
`William D. Belanger, belangerw@pepperlaw.com
`Andrew Schultz, schultza@pepperlaw.com
`Griffin Mesmer, mesmerg@pepperlaw.com
`Sean Gloth, gloths@pepperlaw.com
`Bradley T. Lennie, lennieb@pepperlaw.com
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`Respectfully submitted,
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`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Reg. No. 43,401
`Attorney for Petitioner
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`Dated:
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`April 2, 2018
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