Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 23
`Entered: July 12, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`ANDREA ELECTRONICS CORP.,
`Patent Owner.
`_______________
`
`Case IPR2017-00627
`Patent 6,363,345 B1
`_______________
`
`
`
`Before STEPHEN C. SIU, MICHAEL R. ZECHER, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PLENZLER, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318 and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper 23
`Entered: July 12, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`ANDREA ELECTRONICS CORP.,
`Patent Owner.
`_______________
`
`Case IPR2017-00627
`Patent 6,363,345 B1
`_______________
`
`
`
`Before STEPHEN C. SIU, MICHAEL R. ZECHER, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PLENZLER, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318 and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`IPR2017-00627
`Patent 6,363,345 B1
`
`
`I. INTRODUCTION
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`§ 6 and this Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons that follow, we determine that Apple
`Inc. (“Petitioner”) has shown by a preponderance of the evidence that claims
`1–5, 10–16, 21–23, 25, and 38–46 of U.S. Patent No. 6,363,345 B1
`(Ex. 1001, “the ’345 patent”) are unpatentable, but has failed to establish
`that claims 6–9, 17–20, 24, and 47 of the ’345 patent are unpatentable.
`A. Background
`Petitioner filed a Petition to institute an inter partes review of claims
`1–25 and 38–47 of the ’345 patent. Paper 1 (“Pet.”). Andrea Electronics
`Corp. (“Patent Owner”) filed a Preliminary Response. Paper 6 (“Prelim.
`Resp.”).
`Pursuant to 35 U.S.C. § 314, we instituted trial on all challenged
`claims, and on all challenges raised in the Petition. See Paper 7 (“Dec. to
`Inst.”), 12. After institution of trial, Patent Owner filed a Patent Owner
`Response (Paper 11, “PO Resp.”), to which Petitioner filed a Reply (Paper
`18, “Pet. Reply”).
`An oral argument was held on April 25, 2018. A transcript of the oral
`argument is included in the record. Paper 22 (“Tr.”).
`B. Related Matters
`Petitioner and Patent Owner identify a number of proceedings, both in
`district court and before the Patent Trial and Appeal Board, involving
`patents related to the ’345 patent, including a district court proceeding
`specifically directed to the ’345 patent with Petitioner as a party and Case
`IPR2017-00626, which is directed to the ’345 patent and involves the same
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`parties as this proceeding. Pet. viii–x; Paper 4, 1. Our final decision in Case
`IPR2017-00626 issues concurrently herewith.
`C. Asserted Grounds of Unpatentability and Evidence of Record
`Petitioner contends that the challenged claims are unpatentable under
`35 U.S.C. §§ 102 and 103 as set forth in the table below (Pet. 2–3, 20–67).
`Reference(s)
`Basis Claims Challenged
`Helf1
`§ 102 1–7, 9–11, 13, 14, 21, 23, 38–
`41, and 43
`§ 103 1–7, 9–11, 13, 14, 21, 23, 38–
`41, and 43
`§ 103 6, 8, 9, 12, 25, 42, and 46
`
`Helf and the Knowledge of a
`Person of Ordinary Skill in the Art
`Helf and Martin2
`
`Helf and Boll3
`
`Helf and Arslan4
`
`Helf, Boll, and Arslan
`
`Helf and Uesugi5
`
`§ 103 17–20 and 47
`
`§ 103 15 and 16
`
`§ 103 24
`
`§ 103 22
`
`Helf, Martin, and Uesugi
`
`§ 103 44 and 45
`
`Petitioner provides testimony from Bertrand Hochwald, Ph.D.
`Ex. 1004. Patent Owner provides testimony from Scott C. Douglas, Ph.D.
`Ex. 2002. Petitioner also provides deposition testimony from Dr. Douglas
`
`
`1 U.S. Patent No. 5,550,924, iss. Aug. 27, 1996 (Ex. 1010, “Helf”).
`2 Rainer Martin, “An Efficient Algorithm to Estimate the Instantaneous SNR
`of Speech Signals,” Eurospeech 1993 (Ex. 1006, “Martin”).
`3 Steven F. Boll, “Suppression of Acoustic Noise in Speech Using
`Spectral Subtraction,” IEEE 1979 (Ex. 1009, “Boll”).
`4 U.S. Patent No. 5,706,395, iss. Jan. 6, 1998 (Ex. 1011, “Arslan”).
`5 U.S. Patent No. 5,459,683, iss. Oct. 17, 1995 (Ex. 1015, “Uesugi”).
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`(Ex. 1026) and Patent Owner provides deposition testimony from
`Dr. Hochwald (Ex. 2005).
`
`D. The ’345 Patent
`The ’345 patent “relates to noise cancellation and noise reduction and,
`more specifically, to noise cancellation and reduction using spectral
`subtraction.” Ex. 1001, 1:19–21. The ’345 patent explains that its system
`receives a noise signal and converts that signal to the frequency domain
`through a Fast Fourier Transform (FFT). Id. at 4:50–5:14. Separate
`thresholds are set for each frequency bin to determine the location of noise
`elements for each frequency bin separately. Id. at 6:10–13. The ’345 patent
`determines the thresholds by setting two minimum values, which are
`described as a future minimum and a current minimum. Id. at 6:23–41.
`At predetermined time intervals (e.g., every 5 seconds), the future
`minimum value is initialized as the value of the current magnitude of the
`signal. Id. at 6:24–28. Over that time interval, and before the next
`initialization, the future minimum value of each bin is compared with the
`current magnitude value of the signal. Id. If the current magnitude is
`smaller than the future minimum, the value of the future minimum is
`replaced with that current magnitude. Id. at 6:28–32.
`At the start of each time interval, the current minimum is set as the
`value of the future minimum that was determined over the previous time
`interval. Id. at 6:34–38. The current minimum then follows the minimum
`value of the signal for the next time interval by comparing its value with the
`current magnitude value. Id. The current minimum value is used by the
`spectral subtraction process to remove noise from the signal. Id. at 6:38–41.
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`
`E. Illustrative Claims
`As noted above, Petitioner challenges claims 1–25 and 38–47 of the
`’345 patent. Claims 1 and 38 are independent, with claims 2–25 and 39–47
`depending from either claim 1 or 38. Claim 1 is illustrative, and is
`reproduced below:
`1. An apparatus for canceling noise, comprising:
`an input for inputting an audio signal which includes a noise
`signal;
`a frequency spectrum generator for generating the frequency
`spectrum of said audio signal thereby generating frequency
`bins of said audio signal; and
`a threshold detector for setting a threshold for each frequency bin
`using a noise estimation process and for detecting for each
`frequency bin whether the magnitude of the frequency bin is
`less than the corresponding threshold, thereby detecting the
`position of noise elements for each frequency bin.
`Ex. 1001, 9:35–46.
`
`
`II. ANALYSIS
`A. Claim Construction
`“[W]e need only construe terms ‘that are in controversy, and only to
`the extent necessary to resolve the controversy.’” Nidec Motor Corp. v.
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
`(quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803
`(Fed. Cir. 1999)). We construe the claims using the broadest reasonable
`construction in light of the ’345 patent Specification. See 37 C.F.R.
`§ 42.100(b). Applying that standard, we interpret the claim terms of the
`’345 patent according to their ordinary and customary meaning in the
`context of the patent’s written description. See In re Translogic Tech., Inc.,
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`504 F.3d 1249, 1257 (Fed. Cir. 2007). An inventor is entitled to be his or
`her own lexicographer of patent claim terms by providing a definition of the
`term in the specification with reasonable clarity, deliberateness, and
`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the
`absence of such a definition, however, limitations are not to be read from the
`specification into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
`Cir. 1993).
`Petitioner proposes constructions for several terms. Pet. 12–18. In its
`Response, Patent Owner “applies [Petitioner]’s proposed constructions” set
`forth in the Petition, and additionally proposes a construction for
`“periodically.” PO Resp. 6–9. In its Reply, Petitioner contends that “[t]he
`Board need not adopt specific constructions for most terms because[,] under
`any reasonable construction, Helf either anticipates or renders the claims
`obvious.” Pet. Reply 2. For purposes of this decision, we determine that
`only the term “periodically” requires express construction, and only to the
`extent set forth in the discussion below, to resolve the controversies between
`the parties identified below.
`
`“periodically”
`Claim 6 recites that “said current minimum value is set to said future
`minimum value periodically,” and claim 9 recites that “said future minimum
`value is set to a current magnitude value periodically.”
`In the portion of the Petition discussing its challenges, Petitioner
`provides dictionary definitions of “periodically,” which define that term as
`“from time to time” or “at regular intervals of time.” Pet. 35–36 (citing
`Ex. 1013). Patent Owner contends that “periodically,” as used in the ’345
`patent, requires “occurring at regular intervals of time.” PO Resp. 7. Patent
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`6
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`Owner notes that its proposed construction is consistent with one of the
`dictionary definitions provided by Petitioner, and contends that is how one
`skilled in the art would have understood the term “periodically” in view of
`the ’345 patent Specification. Id. at 8–9 (citing Ex. 1001, 6:23–41, 8:36–40;
`Ex. 2002 ¶ 48; Ex. 2005, 99:9–100:7). In its Petition, Petitioner does not
`advocate for either of the two dictionary definitions over the other. In its
`Reply, however, Petitioner responds that, “[i]f the Board determines that it
`needs to construe ‘periodically,’ that term’s broadest reasonable construction
`also includes the second dictionary definition, meaning ‘from time to time.’”
`Pet. Reply 2 (citing Ex. 1013). Petitioner acknowledges that “[t]he ’345
`specification states that the minimum values are ‘calculated continuously
`and updated periodically, for example, every 5 seconds,’” but contends that
`“[t]he specification expressly states that period is exemplary, and nothing
`indicates that the update period must always be the same or that it cannot
`change as the noise reduction process runs.” Id. at 3 (citing Ex. 1001, 3:32–
`45, 8:36–40, 8:64–67).
`Although the dictionary defines “periodically” as “from time to time”
`or “at regular intervals of time,” based on the record before us, we agree
`with Patent Owner that its proposed construction is how one skilled in the art
`would have understood that term in the context of the ’345 patent
`Specification. Turning first to the intrinsic evidence, the Specification
`explains that “[t]he future and current minimum values are calculated
`continuously and initiated periodically, for example, every 5 seconds.”
`Ex. 1001, 8:37–39. Although the Specification later notes that “[i]t will be
`appreciated that, while specific values are used as in the several equations
`and calculations employed in the present invention, these values may be
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`different than those shown” (id. at 8:64–67), this passage does not mean that
`the Specification contemplates arrangements where “periodically” is simply
`“from time to time.” Rather, we determine that statement from the
`Specification indicates that the specific amount of time (i.e., every 5
`seconds) may vary.
`Turning now to the extrinsic evidence, the testimony of Dr. Douglas
`supports our conclusion, explaining that “at regular intervals of time” is the
`“only . . . definition . . . consistent with the understanding of a person skilled
`in the art in light of the specification of the ’345 Patent and its use in the
`particular field of audio signal processing” because
`[l]ike the “period” of an audio signal itself, which is the amount
`of time it takes for a signal to repeat itself, “periodically” as
`recited in claims 6 and 9 and throughout the remainder of the
`specification of the ’345 Patent refers to actions that occur at
`regular intervals (e.g., every 5 seconds rather than merely “from
`time to time”).
`Ex. 2002 ¶ 48. Moreover, Petitioner’s declarant, Dr. Hochwald testifies that
`outside of the context of the ’345 patent Specification, “periodically” means
`“at regular time intervals” (Ex. 2005, 99:13–15), and when asked about that
`term’s meaning in the context of the ’345 patent Specification,
`Dr. Hochwald simply noted that “all I can do is read what it says,” which is
`that “[i]t’s doing something periodically, for example, every five seconds”
`(id. at 100:4–6). Accordingly, the testimony from Dr. Douglas, as well as
`that from Dr. Hochwald, supports Patent Owner’s construction.
`In summary, we adopt Patent Owner’s construction of “periodically,”
`requiring “at regular intervals of time,” because (1) this is consistent with
`how this term is used in the context of the ’345 Patent Specification; and
`(2) this is supported by the testimony of both experts.
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`
`B. Challenges
` Helf
`Petitioner challenges claims 1–7, 9–11, 13, 14, 21, 23, 38–41, and 43
`as anticipated by, or obvious over, Helf. Pet. 20–41. In its Response, Patent
`Owner does not dispute Petitioner’s contentions regarding claims 1–3, 13,
`14, 21, 23, and 38 and, instead, only addresses specifically Petitioner’s
`contentions regarding claims 4–7, 9–11, 39–41, and 43. Based on our
`review of the record before us, we are persuaded that Petitioner has
`established by a preponderance of the evidence that claims 1–5, 10, 11, 13,
`14, 21, 23, 38–41, and 43 are unpatentable over Helf, as Helf discloses each
`and every limitation of those claims. With respect to claims 6, 7, and 9,
`however, we determine that Petitioner failed to establish by a preponderance
`of the evidence that those claims are unpatentable over Helf.
`a. Anticipation – Claims 1–3, 13, 14, 21, 23, and 38
`Claim 1, for example, is directed to “[a]n apparatus for canceling
`noise.” Claim 1 requires an apparatus that receives an audio signal (“an
`input for inputting an audio signal”), converts that audio signal to the
`frequency domain to provide frequency bins (“a frequency spectrum
`generator for generating the frequency spectrum of said audio signal”), and
`determines that the various frequency bins of that signal are noise if their
`magnitudes are below corresponding thresholds (“a threshold detector for
`setting a threshold for each frequency bin . . . and for detecting . . . whether
`the magnitude of the frequency bin is less than the corresponding threshold,
`thereby detecting the position of noise elements for each frequency bin”).
`Claim 38 is similar to claim 1, but is directed to a “method” rather than an
`“apparatus,” and additionally recites “subtracting said noise elements . . .
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`from said audio signal.” We adopt Petitioner’s unrebutted arguments and
`evidence related to how Helf properly accounts for each and every element
`of claims 1 and 38. See Pet. 20–29.
`Helf “relates to a device for reducing the background noise of an input
`audio signal.” Ex. 1010, 1:39–40. Helf determines the frequency
`components (i.e., frequency bins) of the audio signal using “[a] fast Fourier
`Transform (FFT) . . . producing a . . . frequency spectrum” of the audio
`signal. Id. at 4:13–15. Petitioner cites this disclosure from Helf as
`corresponding to the “inputting an audio signal” and “generating the
`frequency spectrum of said audio signal thereby generating frequency bins
`of said audio signal” recited in claims 1 and 38. Pet. 24–25, 28.
`With respect to the operations of the “threshold detector” recited in
`claim 1 and the corresponding steps recited in the method of claim 38,
`Petitioner cites Helf’s discussion of its “global speech detector” and “local
`speech detector.” Pet. 23–29. Helf’s global speech detector and local
`speech detector are both used in its noise reduction scheme. Ex. 1010, 9:5–
`67. Petitioner cites the operations of Helf’s global speech detector alone, for
`example, as meeting the “setting a threshold for each frequency bin” and
`“detecting . . . whether the magnitude of the frequency bin is less than the
`corresponding threshold, thereby detecting the position of noise elements for
`each frequency bin” recited in claims 1 and 38. Pet. 26, 28–29 (citing
`Ex. 1010, 9:16–32).
`There is no real dispute that the “detecting” limitation simply requires
`“determining[] which frequency bins contain noise elements at a given
`time.” See, e.g., Ex. 1019, 64–65. This understanding is consistent with the
`’345 patent Specification, which explains, for example, that “[e]ach bin’s
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`magnitude . . . is compared with . . . the adaptive threshold for that bin,” and
`“[i]f the magnitude is . . . below the threshold[], it is allowed as noise” (i.e.,
`the position of noise is detected). Ex. 1001, 6:46–52. Helf explicitly states
`that “[t]he global speech versus noise detector . . . makes a . . . decision as to
`whether or not each frequency component is noise.” Ex. 1010, 9:30–32
`(emphasis added). Helf does this by “compar[ing] the magnitude of the kth
`frequency component of the current frame, designated Sk, and the magnitude
`of the kth frequency component of the background noise estimate,
`designated Ck.” Id. at 9:16–21. “[I]f Sk>TxC, for more than 7 values of k
`(for one frame), where T is a threshold constant . . . the frame is declared a
`speech frame.” Id. at 9:21–24. We agree with Petitioner that “TxC”
`corresponds to “setting a threshold for each frequency bin” and determining
`whether “Sk>TxC” corresponds to “detecting for each frequency bin whether
`the magnitude of the frequency bin is less than the corresponding threshold,”
`as required by claims 1 and 38. Based on the further statement in Helf,
`noted above (id. at 9:30–32), we also are persuaded that, when “Sk<TxC,”
`the kth frequency component is determined to be noise, which corresponds
`to the “detecting the position of noise elements for each frequency bin” (i.e.,
`determining which frequency bins contain noise elements at a given time)
`required by claims 1 and 38.
`As for the additional requirement of claim 38 directed to “subtracting
`said noise elements . . . from said audio signal,” Petitioner cites Helf’s
`discussion of “gain multiplicative factors” for each frequency component.
`Pet. 26–27 (citing Ex. 1010, 1:58–63, 9:59–67, 11:25–28). Petitioner
`contends that “Helf attenuates (‘subtract[s]’) the noise elements by
`multiplying the frequency components by a filter function to produce the
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`noise-reduced signal” (id. at 27 (underlining omitted) (citing Ex. 1004
`¶¶ 122–24)), and “[t]he ’345 patent uses the same technique” (id. (citing
`Ex. 1001, 7:2–9, 10:30–32, 12:46–48)). We agree that Helf discloses
`sufficiently the “subtracting” step because Helf uses inputs from both the
`global and local speech detectors for its subtraction process (see Ex. 1010,
`9:59–67).
`Claims 2, 3, 13, 14, 21, and 23 depend from claim 1, and Petitioner
`cites to relevant portions of Helf as disclosing the additional limitations of
`those claims. See Pet. 29–32. We are persuaded by Petitioner’s unrebutted
`arguments and evidence related to how Helf properly accounts for each and
`every element of these dependent claims, which we adopt for purposes of
`this decision. Specifically, we find that Helf discloses the additional
`limitations recited in those claims based on the citations to Helf therein and
`the supporting expert testimony. See id.
`b. Anticipation – Claims 4, 5, 10, 11, 39–41, and 43
`Claim 4 depends from claim 1, and claim 39 depends from claim 38.
`Claims 4 and 39 each further recite that “the threshold for each frequency
`bin [is set] in accordance with a current minimum value of the magnitude of
`the corresponding frequency bin” with “said current minimum value being
`derived in accordance with a future minimum value of the magnitude of the
`corresponding frequency bin.” Petitioner cites Helf’s discussion related to
`its “Running Minimum Estimator” as disclosing the features of claims 4 and
`39. Pet. 32–34 (citing Ex. 1010, 7:39–41, 8:11–16, 8:19–31, 8:54–59, 9:19–
`21, 9:46–65; Ex. 1004 ¶¶ 127–131).
`Helf describes a “first approach [that] uses a stationary estimator 24 to
`look for long sequences of frames where the spectral shape in each frame is
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`very similar to that of the other frames” where, for example, “the room is
`silent and the constant background noise . . . is the primary source of the
`signal . . . but requires that the background noise is relatively constant and
`that the humans in the room are not talking for a certain period of time.”
`Ex. 1010, 6:44–60. The discussion of the “running minimum estimator”
`from Helf, cited by Petitioner, describes an alternate approach for situations
`where the stationary estimator cannot be used. Helf explains that its
`“running minimum estimator” determines a value (Mk) that is a minimum
`value of an average of eight consecutive frames over a 10 second interval for
`each frequency component (k) and, in certain circumstances, uses that value
`as the new background noise estimate. Ex. 1010, 8:19–59. Petitioner cites
`that value (Mk) as corresponding to the “future minimum value” recited in
`the claims, with the background noise estimate being set to that value under
`certain circumstances. Pet. 33–34. Based on these aforementioned
`disclosures, we are persuaded that Helf discloses the features of claims 4 and
`39.
`
`Patent Owner responds that, because Helf uses average values (i.e.,
`the average of eight consecutive values), it does not disclose using a
`minimum value. PO Resp. 17–23. Patent Owner acknowledges that the
`’345 patent, itself, uses a “smoothing process [that] produces frequency bins
`with multiple smoothed magnitude values, ultimately finding the minimum
`of all of the values,” but contends that “Helf’s averaging process produces a
`single output representing one average of the original samples.” Id. at 20–21
`(underlining omitted) (citing Ex. 1001, 8:14–28; Ex. 2002 ¶¶ 52, 63–72).
`We disagree with Patent Owner’s characterization of the differences
`between Helf and the ’345 patent. While Helf may ultimately produce a
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`single minimum value, as discussed above, that value is based on a
`minimum value of the averages calculated over the given time period. At
`oral hearing, Patent Owner acknowledged that Helf determines many
`averages values (i.e., the averages of the eight consecutive frames) and
`determines a minimum of those values. See, e.g., Tr. 22:2–6. The claim
`simply requires a “future minimum value,” and does not preclude that value
`from being a minimum value taken from a set of average values. Indeed,
`such an interpretation of the claim would be inconsistent with the ’345
`patent’s use of smoothed values noted by Patent Owner. Ex. 1001, 8:14–28.
`The testimony of Dr. Douglas cited by Patent Owner does not convince us
`otherwise. See Ex. 2002 ¶¶ 52, 63–72 (effectively repeating Patent Owner’s
`contentions, which are unpersuasive for the reasons set forth above).
`Accordingly, we are persuaded that Helf’s minimum value (Mk) corresponds
`to the “future minimum value” recited in claims 4 and 39.
`Patent Owner additionally responds that Helf does not disclose the
`“‘current minimum’ [value being] derived in accordance with” Helf’s
`minimum value (Mk). PO Resp. 23–24. Patent Owner argues that,
`“[i]nstead, Helf calculates a single value – ‘D’ – for the entire signal across
`all frequency bands” and “[b]ased on the comparison of D to 3,000, Helf
`updates either all the frequency bands (if D > 3,000) or none of the
`frequency bands (if D < 3,000).” Id. at 24 (underlining omitted). As
`Petitioner explains, however, Patent Owner’s response is not tied to the
`actual language of the claims. Pet. Reply 8–9. As noted above, the claims
`require that the “current minimum value [is] derived in accordance with a
`future minimum value of the magnitude of the corresponding frequency
`bin.” Nothing in the claim prevents that determination from being
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`conditioned on additional calculations or comparisons. As Patent Owner
`acknowledges, Helf discloses that, “[i]f D is greater than some threshold . . .
`and the preceding condition (a) is satisfied, then Mk is used as the new
`background spectral estimate.” Ex. 1010, 8:54–57. Simply put, the “current
`minimum value [is] derived in accordance with a future minimum value” in
`Helf when the conditions noted above are met.
`Claims 5, 10, and 11 depend from claim 4. Claim 40 depends from
`claim 39, and claims 41 and 43 depend from claim 40. Petitioner cites
`relevant portions of Helf as disclosing the additional features recited in those
`claims, which we find persuasive, and adopt for purposes of this decision.
`See Pet. 34, 36–38. Patent Owner does not dispute Petitioner’s contentions
`with respect to those claims, other than addressing claims 4 and 39, from
`which those claims depend.
`For the reasons set forth above, after reviewing all of the argument
`and evidence presented during trial, Petitioner has established by a
`preponderance of the evidence that Helf discloses the features recited in
`claims 4, 5, 10, 11, 39–41, and 43.
`c. Anticipation – Claims 6, 7, and 9
`Claims 6 and 9 each depend from claim 5, which ultimately depends
`from claim 1. Claim 7 depends from claim 6. Claim 6 recites that “said
`current minimum value is set to said future minimum value periodically,”
`and claim 9 recites that “said future minimum value is set to a current
`magnitude value periodically.”
`With respect to claim 6, Petitioner contends that, under its
`construction of “periodically” (i.e., “from time to time”), Helf discloses that
`“[t]he background noise estimate (‘current minimum’) is set to the minimum
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`estimate Mk (‘future minimum’) whenever the difference between them
`exceeds a threshold, and thus, it is replaced ‘periodically.’” Pet. 34–35.
`Those contentions are unpersuasive because, as explained above, we do not
`adopt Petitioner’s construction. Petitioner additionally contends, however,
`that even under Patent Owner’s construction (i.e., “at regular intervals of
`time”), which we adopt as explained above, Helf discloses this limitation.
`Id. at 35. Specifically, Petitioner contends that “Helf also shows that where
`the audio signal continuously contains speech without any pauses (Ex. 1010,
`8:11–15), the current background noise estimate will be set to the minimum
`estimate Mk 10 seconds after the system starts, (id., 8:33–43).” Id.
`(underlining omitted).
`Patent Owner responds that Helf’s background noise estimate is not
`set to the minimum estimate (Mk) because “Mk will not be used to update Nk
`[(the background noise estimate)] unless the signal conditions prevent the
`computation of Bk,” and “Mk will not be used to update Nk unless the
`aforementioned parameter ‘D’ is greater than an arbitrary constant.” PO
`Resp. 25 (citing Ex. 1010, 8:11–17). Patent Owner, therefore, correctly
`concludes that “the setting of Nk to Mk . . . does not happen periodically.”
`Id. Petitioner agrees, as it does not dispute Patent Owner’s rebuttal in its
`Reply, noting, instead, that “if ‘periodically’ is interpreted more narrowly,
`claim 6 would have been obvious as explained below.”6 Pet. Reply 10 n.4.
`Indeed, Petitioner admitted as much at oral hearing. See Tr. 19:12 (counsel
`
`
`6 Petitioner’s reference to the “more narrow[]” construction is that which we
`adopt, as explained above, and the reference to the obviousness challenge is
`to that based on the combination of Helf and Martin.
`
`16
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`IPR2017-00627
`Patent 6,363,345 B1
`
`for Petitioner admitted that “Helf would not anticipate that” when asked
`about a construction of “periodically” requiring regular intervals).
`As for claim 9, Petitioner again bases its contentions on a construction
`of “periodically” that we do not adopt. See Pet. 36 (contentions based on
`Helf disclosing a future minimum being replaced “from time to time”).
`Patent Owner again correctly identifies this shortcoming in the challenge.
`See PO Resp. 27–28. Similar to its response with respect to claim 6,
`Petitioner agrees with Patent Owner’s assessment of its challenge, as it does
`not dispute Patent Owner’s rebuttal in its Reply, noting, instead, that “[i]f
`‘periodically’ is [interpreted more narrowly], claim 9 would have been
`obvious as explained below.” Pet. Reply 11 n.5.
`For at least these reasons, Petitioner has failed to establish by a
`preponderance of the evidence that either claim 6 or 9 is anticipated by Helf.
`Petitioner’s challenge to claim 7, which depends from claim 6, fails for the
`same reasons.
`
`d. Obviousness
`Petitioner’s obviousness challenges based on Helf, alone, are
`predicated on potential arguments from Patent Owner where Petitioner
`contemplates that “Patent Owner may contend that Helf does not show
`comparing the ‘magnitude’ of each frequency bin to a threshold value as
`specified in claims 1 and 38, or other operations based on ‘magnitude’ . . .
`because in certain instances Helf shows operations performed on signal
`power.” Pet. 38–39 (underlining omitted). Petitioner notes that, “[o]n this
`basis, Patent Owner may contend Helf does not anticipate the claims.” Id. at
`39 (underlining omitted). Petitioner addresses this potential argument
`proactively, reasoning that, “[t]o the extent Helf could be interpreted as
`
`17
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`IPR2017-00627
`Patent 6,363,345 B1
`
`disclosing only operating on signal power, a skilled person would have
`found it obvious to modify Helf to perform its operations on signal
`magnitude.” Id. at 40 (underlining omitted) (citing Ex. 1004 ¶ 114). There
`is no dispute that “a skilled person would have found it obvious to modify
`Helf to perform its operations on signal magnitude,” as Petitioner contends.
`See, e.g., PO Resp. 10 n.1 (“[Patent Owner] does not address [Petitioner’s]
`assertion with respect to the magnitude/power issue.”).
`Accordingly, for the reasons set forth above, as well as those
`discussed in connection with the challenge based on anticipation by Helf,
`Petitioner has established by a preponderance of the evidence that claims 1–
`5, 10, 11, 13, 14, 21, 23, 38–41, and 43 would have been obvious over the
`teachings of Helf, but has failed to establish by a preponderance of the
`evidence that claims 6, 7, and 9 would have been obvious over the teachings
`of Helf.
`
` Helf and Martin
`Petitioner challenges claims 6, 8, 9, 12, 25, 42, and 46 as unpatentable
`over the combined teachings of Helf and Martin under 35 U.S.C. § 103. Pet.
`41–52. Patent Owner responds that Petitioner “fails to demonstrate by a
`preponderance of the evidence that claims 6, 8, 9, 12, 25, 42, and 46 are
`obvious as alleged,” but only addresses claims 6, 8, and 9 with any
`specificity. PO Resp. 30, 39–51. We adopt Petitioner’s unrebutted
`arguments and evidence with respect to claims 12, 25, 42, and 46. See
`Pet. 49–52. Based on our review of the record before us, Petitioner has
`established by a preponderance of the evidence that claims 12, 25, 42, and
`46 are unpatentable over the combined teachings of Helf and Martin.
`Petitioner, however, has failed to establish by a preponderance of the
`
`18
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`IPR2017-00627
`Patent 6,363,345 B1
`
`evidence that claims 6, 8, and 9 are unpatentable over the combined
`teachings of Helf and Martin.
`a. Claims 6 and 8
`Claim 6 ultimately depends from claim 1, and recites that “said
`current minimum value is set to said future minimum value periodically.”
`Claim 8 depends from claim 6. Petitioner contends that “a skilled person
`would have found it obvious to modify Helf to update the background noise
`estimate [based on its “running minimum estimator”] after every 10 second
`interval (instead of only after the first 10 second interval) based on Martin.”
`Pet. 46 (underlining omitted) (citing Ex. 1004 ¶¶ 157–159). Petitioner
`reasons that “the skilled person would have recognized from Martin that it is
`beneficial to periodically update the minimum noise value to ensure it
`accurately reflected the current noise level,” and
`[c]onfiguring Helf in this manner would have been a routine
`and predi
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