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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________________
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`APPLE INC.
`Petitioner,
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`v.
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`ANDREA ELECTRONICS INC.,
`Patent Owner.
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`Patent No. 6,363,345
`____________________
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`IPR2017-00626
`__________________________________________________________________
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`Petitioner’s Responsive Remand Brief
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`IPR2017-00626
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`Table of Contents
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`Introduction .................................................................................................... 1
`I.
`II. A Skilled Person Had Reason to Combine Hirsch and Martin................. 1
`III. Martin Discloses the Claimed “Future Minimum” Value ......................... 4
`IV. Martin Discloses Periodically Updating the Minimums ............................ 5
`V. Conclusion ...................................................................................................... 5
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`IPR2017-00626
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`I.
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`Introduction
`Andrea’s main argument—that a skilled person would not have considered
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`Hirsch and Martin together—was already rejected by the Board in its obviousness
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`finding on claim 25. Andrea is barred from contesting that finding because it did
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`not appeal it. Andrea is also wrong. The skilled person would have combined the
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`references. For example, Hirsch teaches it can be combined with known technique
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`and cites to Martin as one such known approach. Martin also provides unique
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`benefits not found in Hirsch. Andrea has no persuasive response to these facts.
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`Andrea also challenges whether Martin teaches the “future minimum” and
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`“periodically” elements of the claims, but its arguments are based on
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`mischaracterizations of Martin’s teachings and the ’345 patent’s specification.
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`Martin teaches those elements, and the Board should find claims 6-9 unpatentable.
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`II. A Skilled Person Had Reason to Combine Hirsch and Martin
`Apple explained why the skilled person would have had reason to
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`incorporate Martin’s noise floor algorithm into Hirsch. Pet., 34-38. Hirsch states
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`it performed well in stationary noise environments but is silent about non-
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`stationary noise, indicating it did not perform well. Pet., 35-36; Ex. 1003, ¶¶128-
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`32. Hirsch also states it can be combined with known techniques and cites to
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`Martin. Ex. 1003, ¶125. Martin teaches its algorithm performed well in non-
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`stationary environments and is well-suited for identifying noise. Pet., 35-37; Ex.
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`1006, abstract, 1095-96. These teachings would have motivated a skilled person to
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`look for ways to incorporate Martin’s algorithm into Hirsch to provide the same
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`benefit—better performance in non-stationary noise environments. Pet., 35-36;
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`Ex. 1003, ¶¶126-32. Apple also explained how the skilled person would have
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`combined them: by using Martin’s noise floor algorithm to set Hirsch’s adaptive
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`threshold for identifying noise. Pet., 35-36, 41-42. This is a simple substitution:
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`instead of calculating the adaptive threshold as a multiple of the noise estimate, it
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`would be calculated as a multiple of the noise floor. Pet., 36-37, 47; Reply, 19-20.
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`Other parts of Hirsch would remain unchanged. Id.
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`Andrea argues that Hirsch teaches away from Martin, (Andrea Br., 3), but
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`the Board rejected that argument when it found that Hirsch and Martin render
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`claim 25 obvious. Final Written Decision (FWD), 13, 15-16. Andrea did not
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`appeal that finding and cannot now contest it, as that finding that was necessary to
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`the finding of obviousness. Pivoting, Andrea asserts that even if it does not teach
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`away, Hirsch’s description of Martin’s “disadvantages” would have discouraged a
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`skilled artisan from combining them. Andrea Br., 3-4. The Board specifically
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`rejected that proposition when it found that Hirsch’s reference to Martin would
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`have led the skilled person to consider these references together, FWD, 13, and
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`that person “would have recognized that techniques such as those shown in both
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`Hirsch and Martin are routinely combined.” FWD, 16 (quoting Pet., 34-35).
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`Next, Andrea asserts that the skilled person would not have combined the
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`references because Hirsch intended his algorithm to work fast and including
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`Martin, which is slower, would add delay. Andrea Br., 3. Andrea’s assertion does
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`not withstand scrutiny. First, Andrea ignores how the references are combined:
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`using Martin’s noise floor algorithm to calculate Hirsch’s adaptive threshold. In
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`that configuration, Hirsch would continue to calculate its noise estimate as the
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`average of the noise values (i.e., the values less than the adaptive threshold; values
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`above the threshold are considered to be speech). Pet., 37; Reply, 18-19. Thus, the
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`only possible “delay” is in updating the adaptive threshold—there is no delay in
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`calculating noise estimates. Second, as Apple explained, the difference between
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`Hirsch and Martin is 225 milliseconds, and a skilled person would have been
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`motivated to try combining them, recognizing the tradeoff between running time
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`and performance. Pet., 35-36; see Reply, 18-19.
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`Andrea also mischaracterizes Hirsch, again arguing Hirsch stops working
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`after speech starts. Andrea Br., 2. But the Board rejected that argument when it
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`found Hirsch anticipates claim 3, agreeing that Hirsch operates during continuous
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`speech. FWD, 8; Pet., 29. Andrea did not appeal that decision, and it is final.
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`Andrea also asserts that Martin does not perform well in non-stationary
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`environments because Martin says its algorithm is “capable of” estimating noise in
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`those environments as opposed to performing well. Andrea Br., 5. But as Apple
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`explained in its Reply, Martin published his algorithm to report positive results not
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`to suggest that it did not work well. Reply, 19-20. In sum, the Board should find
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`that a skilled person would have combined Hirsh and Martin.
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`III. Martin Discloses the Claimed “Future Minimum” Value
`Andrea argues Martin’s PMmin cannot be the “future minimum” of claims 6-9
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`based on its mistaken belief that PMmin is not a minimum of a frequency bin. Br., 6.
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`For the monotonically increasing scenario, Andrea incorrectly asserts that
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`PMmin cannot be the “future minimum” because the “future minimum” is a “noise
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`floor tracker” that “continuously adjust[s]… downward” and PMmin can increase
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`across sub-windows. Br., 7. But PMmin is a noise floor tracker—Martin’s algorithm
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`“estimate[s] the noise floor… [as] the minimum of a smoothed power estimate
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`within a window of finite length.” Ex. 1006, 1093. Martin’s PMmin also is used to
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`set the estimate Pn(i)—i.e., the
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`noise floor—and thus, it is a noise
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`floor tracker. Andrea is also
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`wrong that the “future minimum”
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`is only adjusted down. Its expert,
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`Dr. Douglas, illustrated how the
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`’345 algorithm works (reproduced) and admitted the “future minimum” (red) can
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`increase across periods. Ex. 1026, 52:21-53:13, 59:20-60:5 (discussing Ex. 1027).
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`In the non-monotonically increasing case, Andrea asserts that PMmin cannot
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`be the “future minimum” because the noise estimate Pn is set using min_vec and
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`not PMmin. But as Apple has explained, min_vec is used to store PMmin values, and
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`even Dr. Douglas admitted that use of min_vec results in setting Pn(i) to the
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`smallest PMmin value in a window. Apple Remand Br., 6-7; Reply, 10-11.
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`IV. Martin Discloses Periodically Updating the Minimums
`Andrea asserts that Martin does not show “periodically” setting (i) a “current
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`minimum” to the “future minimum” as required in claims 6-8, or (ii) a “future
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`minimum” to the “current magnitude” as required in claim 9. For claims 6-8,
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`Andrea’s argument rests on its flawed position that Martin’s use of min_vec to find
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`the smallest PMmin value means that Pn(i) is not set to a PMmin value—a position
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`contradicted by Dr. Douglas, as explained above. Martin uses PMmin to update Pn(i)
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`at a fixed interval—at the end of every sub-window of M samples. Ex. 1026,
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`77:16-80:19; Apple Remand Br., 8-9; Ex. 1023, ¶20. Andrea’s argument on claim
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`9 is new and improper, Paper 36 (limiting briefing to arguments previously raised),
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`and in any event, is wrong. As explained in the Petition, Martin sets PMmin equal to
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`the current value of the signal at the start of every sub-window of M samples. Pet.,
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`43-44, 46. That is at regular intervals of time and satisfies claim 9.
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`V. Conclusion
`Apple respectfully submits that the Board should cancel claims 6-9.
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`IPR2017-00626
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`Dated: May 6, 2020
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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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`Lead Counsel for Petitioner
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`IPR2017-00626
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 6th day of May, 2020, copies of this Petitioner’s
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`Responsive Remand Brief, and Exhibits have been served in its entirety by email
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`on the following counsel of record for Patent Owner:
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`William D. Belanger, belangerw@pepperlaw.com
`Frank D. Liu, liuf@pepperlaw.com
`Andrew P. Zappia, zappiaa@pepperlaw.com
`BN_IPR-Andrea@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: May 6, 2020
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