`
`Filed on behalf of:
`Andrea Electronics Corporation
`By: William D. Belanger (Lead Counsel)
`
`belangerw@pepperlaw.com
`
`Frank D. Liu (Back-up Counsel)
`
`liuf@pepperlaw.com
`
`Andrew P. Zappia (Back-up Counsel)
`
`zappiaa@pepperlaw.com
`
`
`
`Paper No. ____
`Date: June 9, 2020
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`ANDREA ELECTRONICS CORPORATION,
`Patent Owner.
`
`_________________
`
`Case IPR2017-00626
`Patent 6,363,345
`_________________
`
`
`
`PATENT OWNER’S SUPPLEMENTAL RESPONSE REMAND
`BRIEF
`
`58327150
`
`
`
`IPR2017-00626 (Patent 6,363,345)
`Patent Owner’s Supplemental Response Remand Brief
`
`I.
`
`INTRODUCTION
`
`
`
`The Board’s Order on supplemental briefing limited Apple’s arguments to
`
`“further explanation of the original challenge to claim 9” and precluded
`
`introduction of “any new theory of unpatentability based on other disclosures from
`
`Martin.” (Paper 45 at 3.) Despite this directive, Apple’s supplemental brief
`
`introduces a previously unraised theory, premised on a reset condition in Martin
`
`setting PMmin to PMax that allegedly controls the timing of setting PMmin to 𝑃̅x(i).
`
`Since Apple violated the Board’s Order by raising a new argument, the Board
`
`should disregard Apple’s new argument and confirm the patentability of claim 9.
`
`Even if the substance of Apple’s new argument is considered, it still fails to
`
`disclose the “periodically” limitation of claim 9. The reset condition in Martin
`
`does not negate the fact that the alleged setting of the future minimum to the
`
`current magnitude in Martin is conditioned on a particular signal condition
`
`(𝑃̅x(i)<PMmin) being met. Because the alleged setting of the future minimum to the
`
`current magnitude in Martin is conditional, it cannot occur at “regular intervals of
`
`time” and meet the “periodically” limitation in claim 9.
`
`II. ARGUMENT
`
`In its Petition, Apple alleged that Martin taught claim 9 because it sets an
`
`alleged future minimum, PMmin, to an alleged current magnitude, 𝑃̅x(i), whenever
`
`the condition 𝑃̅x(i)< PMmin occurs, attempting to satisfy its rejected interpretation of
`
`58327150
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`1
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`IPR2017-00626 (Patent 6,363,345)
`Patent Owner’s Supplemental Response Remand Brief
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`“periodically,” which it interpreted as “from time-to-time.” (Petition at 46.) In its
`
`
`
`analysis of claim 9, Apple’s Petition did not make any arguments on the actual
`
`timing of when this condition would occur, because that was unnecessary under
`
`Apple’s rejected construction. Apple now attempts to conjure a new theory relying
`
`on other portions of its Petition, to try to
`
`meet the affirmed claim construction of
`
`“periodically” which requires “regular
`
`intervals of time.” (Apple Supp. Br. at 2-
`
`3.) Apple’s new theory relies on the
`
`reset of PMmin to PMax (annotated in blue), to argue that the condition 𝑃̅x(i)<PMmin
`
`“occur[s] at the beginning of every sub-window of M samples,” and therefore
`
`meets claim 9. (Id. at 1-3.)
`
`Apple relies on: (1) its analysis of claim 5, which makes a passing reference
`
`to the reset of PMmin with PMax, and (2) a hypothetical discussion proffered by its
`
`expert under Apple’s rejected single subwindow (W=1) scenario. (See Apple
`
`Supp. Br. at 2-3 (citing Pet. at 411, 43; Ex. 1003, ¶¶138-140); Final Decision at 10-
`
`15 (rejecting single subwindow argument).) Neither of these portions of Apple’s
`
`
`1 Apple did not cite to page 41 of its Petition in its responsive Remand Brief
`
`for its arguments regarding claim 9. (See Apple Resp. Remand Br. at 5.)
`
`58327150
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`2
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`
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`IPR2017-00626 (Patent 6,363,345)
`Patent Owner’s Supplemental Response Remand Brief
`
`Petition articulates how Martin discloses the “periodically” limitation of claim 9
`
`
`
`under a multiple subwindow teaching. Apple’s attempts to piece together this new
`
`theory of invalidity after the rejection of its proposed construction of “periodically”
`
`should be rejected because this argument was not made in Apple’s original
`
`challenge to claim 9. (Petition at 46.)
`
`Substantively, Apple’s contention that Martin sets the alleged future
`
`minimum (PMmin) to the alleged current magnitude (𝑃̅x(i)) at the beginning of each
`
`subwindow is also incorrect. Apple’s entire theory rests on the assumption that
`
`𝑃̅x(i) is always less than PMmin at the beginning of each subwindow. This argument
`
`is not supported by the evidence and is incorrect. The incoming signal magnitude,
`
`𝑃̅x(i), at the beginning of a subwindow has a variable value that may be equal to or
`
`greater than PMmin, which would prevent the alleged future minimum from being
`
`set to the alleged current magnitude at “regular intervals of time,” as required by
`
`the construction of “periodically.” Unlike in Martin, where the setting of PMmin to
`
`𝑃̅x(i) has inconsistent timing that is controlled by a particular signal condition
`
`being met, in the ’345 Patent the setting of the future minimum with the current
`
`magnitude value occurs periodically (e.g., every five seconds). (Compare Ex.
`
`1001, Fig. 3 (“Init with Y(n)) Every 5 Seconds”), 6:24-28 with Apple Supp. Br. at
`
`3 (Martin’s conditional operation annotated in red).)
`
`The Board should confirm the patentability of claim 9 of the ’345 Patent.
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`58327150
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`3
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`IPR2017-00626 (Patent 6,363,345)
`Patent Owner’s Supplemental Response Remand Brief
`
`
`
`
`Respectfully submitted,
`
`
`
`
`/Frank D. Liu/
`Frank D. Liu (Back-up Counsel)
`Registration No. 64,682
`
`Date: June 9, 2020
`
`Pepper Hamilton LLP
`125 High Street, 19th Floor
`Boston, MA 02110
`Tel: (617) 204-5117
`Fax: (617) 204-5150
`E-mail: liuf@pepperlaw.com
`
`
`58327150
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`4
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`IPR2017-00626 (Patent 6,363,345)
`Patent Owner’s Supplemental Response Remand Brief
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), this is to certify that on this 9th day of June,
`
`
`
`2020, I caused to be served a true and correct copy of the foregoing PATENT
`
`OWNER’S SUPPLEMENTAL RESPONSE REMAND BRIEF by e-mail on
`
`the following counsel of record (as agreed in the Service Information section of the
`
`Petition):
`
`Jeffrey P. Kushan (Lead Counsel)
`E-mail: jkushan@sidley.com
`Service e-mail: iprnotices@sidley.com
`
`Steven S. Baik (Back-up Counsel)
`E-mail: sbaik@sidley.com
`Service e-mail: iprnotices@sidley.com
`
`Thomas A. Broughan III (Back-up Counsel)
`E-mail: tbroughan@sidley.com
`Service e-mail: iprnotices@sidley.com
`
`Counsel for Petitioner
`
`
`
`
`
`
`
`
`
`
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`58327150
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`
`
`/Frank D. Lui/
`Frank D. Liu (Back-up Counsel)
`Registration No. 64,682
`
`
`
`
`
`
`
`
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