UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable Thomas B. Pender
`Administrative Law Judge
`
`
`)
`In the Matter of
`)
`
`CERTAIN AUDIO PROCESSING HARDWARE )
`AND SOFTWARE AND PRODUCTS
`)
`CONTAINING THE SAME
`)
`
`)
`
`
`Investigation No. 337-TA-949
`
`COMPLAINANT ANDREA ELECTRONICS CORP.’S
`REPLY CLAIM CONSTRUCTION BRIEF
`
`
`
`
`Petitioner Apple Inc.
`Ex. 1013, Cover
`
`

`

`Table of Contents
`
`Introduction ......................................................................................................................... 1
`
`Legal Standards ................................................................................................................... 3
`A.
`Standards for Claim Construction ........................................................................... 3
`B.
`Standards for Indefiniteness .................................................................................... 4
`
`I.
`
`II.
`
`III.
`
`b.
`
`c.
`
`2.
`
`3.
`
`Argument ............................................................................................................................ 5
`A.
`Level of Ordinary Skill in the Art ........................................................................... 5
`B.
`Complainants’ Proposed Constructions of Disputed Terms ................................... 5
`1.
`U.S. Patent No. 6,363,345........................................................................... 5
`Magnitude of the Frequency Bin / Magnitude of the
`a.
`Corresponding Frequency Bin (claims 1, 4, 5, 9, 10, 21, 22,
`38, 39, 40, 44) ................................................................................. 5
`Current Minimum Value (claims 4, 6, 8, 10, 11, 39) /
`Future Minimum Value (claims 4, 5, 6, 7, 9, 39, 40) ................... 16
`Subtractor for Subtracting said Noise Elements /
`Subtracting said Noise Elements (claims 13, 38) ......................... 20
`U.S. Patent No. 6,377,637......................................................................... 23
`a.
`Canceled (claims 1, 5)................................................................... 23
`U.S. Patent No. 6,049,607......................................................................... 28
`a.
`Interference Signal (claims 1, 2, 25, 26) ....................................... 28
`b.
`Main Signal (claims 5, 8, 12, 29, 32, 36) ...................................... 42
`c.
`Transform Function (9, 33) ........................................................... 47
`d.
`Beam Splitter for Beam-Splitting said Target into Band
`Limited Target Signals and Beam-Splitting said
`Interference Signal into Band-Limited Interference Signals
`(claim 1) ........................................................................................ 51
`Beam-Splitting said Target Signal into a Plurality of Band
`Limited Target Signals; Beam Splitting said Interference
`Signal into Band-Limited Interference Signals (claim 25) ........... 56
`Band-Limited . . . (Target, Interference) . . . Signals (claims
`1, 25) ............................................................................................. 57
`Adaptively Filtering . . . Each Band-Limited Interference
`Signal from Each Corresponding Band-Limited Target
`Signal (claim 25) ........................................................................... 58
`
`e.
`
`f.
`
`g.
`
`IV.
`
`Conclusion ........................................................................................................................ 59
`
`i
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. (cid:76)
`
`

`

`
`Abbreviation
`’345 Patent
`
`’607 Patent
`
`’637 Patent
`
`Asserted Patents
`
`Compl.’s Br.
`
`TABLE OF ABBREVIATIONS
`
`U.S. Patent No. 6,363,345
`
`U.S. Patent No. 6,049,607
`
`U.S. Patent No. 6,377,637
`
`’345, ’637, and ’607 Patents, collectively
`
`Complainant’s Initial Claim Construction Brief
`
`Resp’ts’ & Intervenors’ Br.
`
`Respondents’ and Intervenors’ Initial Claim Construction Brief
`
`Staff Br.
`
`Init. Douglas Decl.
`
`Douglas Decl.
`
`col. X:XX
`
`
`
`Staff’s Initial Claim Construction Br.
`
`Declaration of Scott C. Douglas, Ph.D. In Support of
`Complainant’s Initial Claim Construction Brief
`
`Declaration of Scott C. Douglas, Ph.D. In Support of
`Complainant’s Reply Claim Construction Brief
`
`Patent column and line citations
`
`ii
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. (cid:76)(cid:76)
`
`

`

`
`CASES
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Aventis Pharms. Inc. v. Amino Chems. Ltd., 715 F.3d 1363 (Fed. Cir. 2013) .................................4
`
`CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359 (Fed. Cir. 2002) ..........................................3
`
`Comcast Cable Communications, LLC v. Sprint Communications Co. LP, 38 F. Supp. 3d
`589 (E. D. Pa. 2014)...........................................................................................................43, 48
`
`Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322 (Fed. Cir. 2009) ....................................52
`
`Elcomerce.com, Inc. v. SAP AG, 745 F.3d 490 (Fed. Cir. 2014) .....................................................2
`
`Energizer Holdings, Inc. v. Int’l Trade Comm’n, 435 F.3d 1366 (Fed. Cir. 2006) .................43, 48
`
`Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325 (Fed. Cir. 2010) .........................................13
`
`Every Penny Counts, Inc. v. Wells Fargo Bank, N.A., 2014 U.S. Dist. LEXIS 28106, 2014
`WL 869092 (M.D. Fla. Mar. 5, 2014) .......................................................................................5
`
`Grober v. Maco Prods., Inc., 686 F.3d 1335 (Fed. Cir. 2012) ......................................................14
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111 (Fed. Cir.
`2004) ........................................................................................................................................50
`
`Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (2014) ...........................................................5
`
`Leibel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898 (Fed. Cir. 2004) ..........................................13
`
`Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) .......................................................3
`
`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) ........................................ passim
`
`Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314 (Fed. Cir. 2003) ...........................................53
`
`On-Line Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d 1133 (Fed. Cir.
`2004) ....................................................................................................................................3, 53
`
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) ....................................... passim
`
`Thorner v. Sony Computer Entm’t Arena LLC, 669 F.3d 1312 (Fed. Cir. 2012) ............................1
`
`TMI Products, Inc. v. Rosen Entertainment Sys., L.P., 610 Fed. Appx. 968 (Fed. Cir.
`2015) ........................................................................................................................................27
`
`iii
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. (cid:76)(cid:76)(cid:76)
`
`

`

`Trover Grp., Inc. v. Dedicated Micros USA, 2015 U.S. Dist. LEXIS 33876 at *28 (E.D.
`Tex. March 19, 2015).....................................................................................................5, 43, 48
`
`Varco, L.P. v. Pason Sys. USA Corp., 436 F.3d 1368, 1373 (Fed. Cir. 2006) ................................3
`
`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996) ............................7, 10
`
`
`
`iv
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. (cid:76)(cid:89)
`
`

`

`Pursuant to Ground Rule 8.4 and the Final Procedural Schedule (Order No. 16) set forth
`
`in this Investigation, Complainant Andrea Electronics Corporation (hereafter “Andrea” or
`
`“Complainant”) hereby submits its reply claim construction brief in support of its claim
`
`construction for the remaining disputed terms for U.S. Patent Nos. 6,363,345 (“the ’345 Patent”),
`
`6,377,637 (“the ’637 Patent”), and 6,049,607 (“the ’607 Patent”) (collectively “Asserted
`
`Patents”).
`
`I.
`
`INTRODUCTION
`
`The arguments set forth in Respondents’ and Intervenors’ initial claim construction brief
`
`confirm that their interpretations of the remaining disputed claim terms are inconsistent with the
`
`intrinsic record and the general understandings of a person of ordinary skill in the art. Such
`
`interpretations are incorrect, and should be rejected. Thorner v. Sony Computer Entm’t Arena
`
`LLC, 669 F.3d 1312 (Fed. Cir. 2012) (“The words of a claim are generally given their ordinary
`
`meaning as understood by a person of ordinary skill in the art when read in the context of the
`
`specification and prosecution history.”)
`
`With regards to each of the remaining disputed terms for the ’345 Patent, Respondents’
`
`and Intervenors’ proposed constructions read out the preferred embodiment in each instance. For
`
`example, with regards to the term “magnitude of a frequency bin,” Respondents’ and
`
`Intervenors’ proposed construction reads in the limitations of one embodiment described in the
`
`specification while excluding the preferred embodiment. To make matters worse, Respondents
`
`and Intervenors rely extensively upon extrinsic evidence (expert testimony) to justify their
`
`limited construction, when no evidence in the intrinsic record would support such a narrow
`
`construction. Likewise, with regards to the terms “current minimum value” and “future
`
`minimum value,” Respondents and Intervenors have read the terms “current” and “future” in a
`
`manner that completely divorces the claims from the specification. There is simply no way to
`1
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 1
`
`

`

`read Respondents’ and Intervenors’ proposed construction on the preferred embodiment.
`
`Finally, with regards to “subtracting said noise elements,” Respondents’ and Intervenors’
`
`proposed construction uses language that purports to cover the preferred embodiment, but when
`
`analyzed in the context of the specification, fails to do so. Respondents’ and Intervenors’
`
`proposed constructions as to the disputed ’345 Patent terms must be rejected. Indeed, Staff
`
`concurs with Complainants’ proposed constructions for the ’345 Patent.
`
`With regards to the ’607 Patent, Respondents and Intervenors have contrived arguments
`
`as to the terms “interference signal,” “reference signal,” and “transform function” to render those
`
`terms indefinite. Oddly, for each of these terms, Respondents and Intervenors have agreed with
`
`Complainant and Staff as to the constructions that should control should the terms not be found
`
`indefinite. As explained in the Declaration of Dr. Scott Douglas, when each of these terms is
`
`considered in the full context of the claims and specification, one of ordinary skill in the art
`
`would be able to ascertain the proper scope and meaning of these terms. The private parties have
`
`all provided extensive expert declarations on the understanding of the claims from the
`
`perspective of a person of ordinary skill in the art, including whether certain claim terms are
`
`indefinite. Such evidence should be considered in determining whether the claim terms are
`
`indefinite. Elcomerce.com, Inc. v. SAP AG, 745 F.3d 490, 501-503 (Fed. Cir. 2014) (noting that
`
`expert testimony should be considered in resolving indefiniteness, particularly in cases involving
`
`complex technology). As for the remainder of the disputed terms for the ’607 Patent, the record
`
`evidence establishes that Complainant’s proposed constructions are consistent with the intrinsic
`
`record and reflect the understanding of a person of ordinary skill in the art.
`
`Finally, for the ’637 Patent, the intrinsic record establishes that Respondents, Intervenors,
`
`and Staff have construed the term “canceled” in a manner that renders the claimed “subtraction
`
`2
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 2
`
`

`

`processing means” (a term that the parties have agreed upon) redundant and meaningless. True
`
`to the plain language of the claims, Complainant has afforded that term with its plain and
`
`ordinary meaning.
`
`For the reasons set forth in greater detail below, Complainants’ proposed constructions
`
`for the remaining disputed terms of the asserted patents should be adopted. Further,
`
`Respondents’ and Intervenors’ indefiniteness arguments as to the ’607 Patent should be rejected.
`
`II.
`
`LEGAL STANDARDS
`
`A.
`
`Standards for Claim Construction
`
`Claim construction begins with the words of the claim itself, which generally receive
`
`their ordinary and customary meaning as understood by a person of ordinary skill in the art at the
`
`time of the invention in the context of the specification and prosecution history. Phillips v. AWH
`
`Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc). To ascertain the ordinary and
`
`customary meaning of the claims, courts consider the intrinsic record, including the claims, the
`
`specification, and the prosecution history. Id. at 1314. Claim terms “can be defined only in a
`
`way that comports with the instrument as a whole[]” and must be read “in the context of the
`
`entire patent[.]” Markman v. Westview Instruments, Inc., 517 U.S. 370, 389 (1996). It is the
`
`claims that delimit a patentee’s right to exclude, and therefore it is not proper to import
`
`limitations from the specification into the claims. Varco, L.P. v. Pason Sys. USA Corp., 436
`
`F.3d 1368, 1373 (Fed. Cir. 2006). “A patentee need not describe in the specification every
`
`conceivable and possible future embodiment of his invention.” CCS Fitness, Inc. v. Brunswick
`
`Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (internal quotation marks and citation omitted). On
`
`the other hand, “a claim interpretation that excludes a preferred embodiment from the scope of
`
`the claim is rarely, if ever, correct.” On-Line Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH,
`
`386 F.3d 1133, 1138 (Fed. Cir. 2004).
`
`3
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 3
`
`

`

`In addition to the specification and claims, the court may also consider the prosecution
`
`history, which, “[l]ike the specification, . . . provides evidence of how the PTO and the inventor
`
`understood the patent.” Phillips, 415 F.3d at 1312 (citation omitted). In addition, “[a] court can
`
`look to the prosecution history of related patents for guidance in claim construction[.]” Aventis
`
`Pharms. Inc. v. Amino Chems. Ltd., 715 F.3d 1363, 1375 (Fed. Cir. 2013) (citation omitted).
`
`Courts may also consider extrinsic evidence, e.g., inventor testimony, dictionaries, and
`
`treatises, when intrinsic record alone is insufficient to support proper constructions. Phillips, at
`
`1317-18. Expert testimony is often helpful to illuminate complex technical issues and provide a
`
`foundation for the viewpoint of one of ordinary skill in the relevant art. Id. at 1318 (“We have
`
`also held that extrinsic evidence in the form of expert testimony can be useful to a court for a
`
`variety of purposes, such as to provide background on the technology at issue, to explain how an
`
`invention works, to ensure that the court’s understanding of the technical aspects of the patent is
`
`consistent with that of a person of skill in the art, or to establish that a particular term in the
`
`patent or the prior art has a particular meaning in the pertinent field.”). As the Federal Circuit
`
`explained, “[t]he construction that stays true to the claim language and most naturally aligns with
`
`the patent’s description of the invention will be, in the end, the correct construction.” Id. at 1316
`
`(internal quotation marks and citation omitted).
`
`B.
`
`Standards for Indefiniteness
`
`A patent must “conclude with one or more claims particularly pointing out and distinctly
`
`claiming the subject matter which the applicant regards as [the] invention.” 35 U.S.C. § 112, ¶ 2
`
`(2006). A claim fails to satisfy this statutory requirement and is thus invalid for indefiniteness
`
`only if its language, when read in light of the specification and the prosecution history, “fail[s] to
`
`inform, with reasonable certainty, those skilled in the art about the scope of the invention.”
`
`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2124 (2014). This standard allows for
`4
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 4
`
`

`

`some amount of uncertainty, as absolute precision in claim drafting is unattainable. Id. at 2128-
`
`29. Instead, indefiniteness problems arise where the claim language “might mean several
`
`different things and ‘no informed and confident choice is available among the contending
`
`definitions’.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (2014) (citing Nautilus,
`
`134 S. Ct. at 2130 & n. 8 (quoting Every Penny Counts, Inc. v. Wells Fargo Bank, N.A., 2014
`
`U.S. Dist. LEXIS 28106, 2014 WL 869092, at *4 (M.D. Fla. Mar. 5, 2014))). Claim drafting
`
`flaws, such as lack of antecedent basis, do not automatically render claims indefinite. See, e.g.,
`
`Trover Grp., Inc. v. Dedicated Micros USA, 2015 U.S. Dist. LEXIS 33876 at *28 (E.D. Tex.
`
`March 19, 2015) (citing Nautilus, 134 S. Ct. at 2124). A claim may be reasonably clear to a
`
`person of skill in the art even in the presence of drafting flaws. Id.
`
`III. ARGUMENT
`
`A.
`
`Level of Ordinary Skill in the Art
`
`There is no substantial difference between the levels of ordinary skill proposed by the
`
`parties. (Compare Complainant’s Br. at 18 with Resp’ts’ & Intervenors’ Br. at 18 and Staff’s Br.
`
`9-10.) Complainant maintains, however, that its definition of the level of ordinary skill in the art
`
`is the most accurate. Douglas Decl. at ¶ 9.
`
`B.
`
`Complainants’ Proposed Constructions of Disputed Terms
`
`1.
`
`U.S. Patent No. 6,363,345
`
`a.
`
`Magnitude of the Frequency Bin / Magnitude of the
`Corresponding Frequency Bin (claims 1, 4, 5, 9, 10, 21, 22, 38,
`39, 40, 44)
`
`Complainants’ Proposed
`Construction
`level of the signal present in the
`[corresponding] frequency bin,
`computed as a function of the
`square[s] of the frequency
`domain component[s] of the
`
`Respondents’/Intervenors’
`Proposed Construction
`level of the signal present in the
`[corresponding] frequency bin,
`computed as the square root of
`the sum of the squares of the
`frequency domain components
`
`Staff’s Proposed
`Construction
`level of the signal present in the
`[corresponding] frequency bin,
`computed as a function of the
`square[s] of the frequency
`domain component[s] of the
`
`5
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 5
`
`

`

`frequency bin or as a function
`of the absolute value[s] of the
`frequency domain
`component[s] of the frequency
`bin
`
`
`
`of the frequency bin
`
`
`frequency bin or as a function
`of the absolute value[s] of the
`frequency domain
`component[s] of the frequency
`bin
`
`
`As noted in Complainant’s and Staff’s initial claim construction briefs, the only dispute
`
`over the construction of “magnitude of a frequency bin” and “magnitude of the corresponding
`
`frequency bin” is over how the magnitude is calculated. (Complainant’s Br. at 21; Staff’s Br. at
`
`14.) Complainant’s and Staff’s proposed construction of “magnitude of a frequency bin” and
`
`“magnitude of the corresponding frequency bin” should be adopted over Respondents’ and
`
`Intervenors’ proposed construction because it is consistent with the intrinsic evidence and
`
`consistent with how a person of ordinary skill in the art would understand the term. (See
`
`Complainant’s Br. at 20-23; Staff’s Br. at 14-15.) Respondents’ and Intervenors’ proposed
`
`construction should be rejected because it suffers from the following fatal flaws:
`
`(cid:120) Respondents’ and Intervenors’ proposed construction reads out the preferred
`embodiment, which calculates the magnitude of the frequency bin as a function of the
`absolute value of the frequency domain components;
`
`(cid:120) Respondents and Intervenors improperly rely upon extrinsic evidence in an effort to
`limit the magnitude of the frequency bin to being calculated only using the square
`root of the sum of the squares of the frequency domain components;
`
`(cid:120) Respondents and Intervenors narrow interpretation of “magnitude” is inconsistent
`with the broad understanding of that term in the digital signal processing field; and
`
`(cid:120) Respondents’ and Intervenors’ propose a new and untimely interpretation of
`“magnitude” in a tacit recognition that their earlier proposed construction is incorrect.
`
`As explained in greater detail below, nothing in the intrinsic evidence (or extrinsic evidence)
`
`supports Respondents’ and Intervenors’ overly limited reading of the claimed “magnitude.”
`
`(1)
`
`Respondents’ and Intervenors’ proposed construction
`of “magnitude” reads out the preferred embodiment of
`the ’345 Patent
`
`6
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 6
`
`

`

`It is well established that a claim construction that reads out the preferred embodiment “is
`
`rarely, if ever, correct and would require highly persuasive evidentiary support.” Vitronics Corp.
`
`v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996). Despite this well-established
`
`principle, Respondents and Intervenors continue to seek a construction that excludes the
`
`preferred embodiment without any persuasive evidentiary support.
`
`The ’345 Patent specification describes several approaches to calculating the magnitude
`
`of the frequency bin. These approaches are as follows:
`
`1. Straight Forward Approach. Under this approach, the
`magnitude of the frequency bin is estimated using the following
`formula:
`
`
`’345 Patent at col. 5:35-39. Despite being a straight-forward
`approach, this calculation “involves square and square root
`calculations which are very expensive in terms of computation
`load.” ’345 Patent at col. 2:59-62; 5:40-42.
`
`2. Approximation Formula. This approach avoids the
`computational complexities of the straight forward approach and
`estimates the magnitude of the frequency bin using the following
`formula:
`
`
`’345 Patent at col. 5:40-44. In particular, this approach avoids the
`expensive square and square root calculations of the straight-
`forward approach.
`
`3. 2D Smoothing Process. This approach replaces the magnitude
`estimate of each bin (that was calculated, for example, using the
`straight forward approach or approximation formula above) by
`averaging across frequency bins and prior time frames. ’345
`Patent at col. 5:45-60. This approach reduces the “instability of
`the spectral estimation, which typically plagues the FFT Process.”
`’345 patent at col. 5:45-49.
`
`The preferred embodiment of the ’345 Patent uses the “approximation formula” and “2D
`
`smoothing process” approaches described above to estimate the magnitude of the frequency bin.
`
`7
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 7
`
`

`

`’345 Patent at col. 5:40-60; Fig. 2 (blocks 204, 206, and 208). As acknowledged in
`
`Respondents’ and Intervenors’ initial claim construction brief, their proposed construction is
`
`limited to the magnitude of the frequency bin calculated using the straight-forward approach.
`
`(See Resp’ts’ & Intervenors’ Br. at 23.)
`
`Respondents and Intervenors attempt to justify excluding the preferred embodiment from
`
`the claimed “magnitude” by distinguishing the magnitude calculated by the preferred
`
`embodiment as an “approximate magnitude” as opposed to a “magnitude.” (Resp’ts’ &
`
`Intervenors’ Br. at 26 (“Complainants’ construction appears to be an attempt to encompass both
`
`calculations of magnitude (“function of the square[s]”) and calculations that approximate
`
`magnitude (“function of the absolute value[s]”).) But this distinction is illusory. The ’345
`
`Patent never uses the term “approximate magnitude.” The ’345 Patent specification describes
`
`the “straight forward approach” and “approximation formula” both as calculating estimates
`
`(approximations) of magnitude:
`
`First, each frequency bin (n) 202 magnitude is estimated. The
`straight forward approach is to estimate the magnitude by
`calculating…
`
`In order to save processing time and complexity the signal
`magnitude (Y) is estimated by an estimator 204 using an
`approximation formula instead…
`
`’345 Patent at col. 5:35-42 (emphasis added). In other words, the specification itself does not
`
`support Respondents’ and Intervenors’ semantic distinctions between the “straight forward
`
`approach” and “approximation formula.” To the contrary, both approaches are described in the
`
`specification as “estimates,” and, thus, provide no support for Respondents’ and Intervenors’
`
`improper construction of “magnitude.”
`
`Apparently recognizing that their timely proposed construction reads out the preferred
`
`embodiment, Respondents and Intervenors propose a new (and untimely) construction. In
`
`8
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 8
`
`

`

`particular, Respondents’ and Intervenors’ new construction attempts to capture the preferred
`
`embodiment by allowing the claimed magnitude to be calculated using “a formula that
`
`approximates the resulting value” of the square root of the sum of the squares of the frequency
`
`domain components of the frequency bin. (Resp’ts’ & Intervenors’ Br. at 26 (proposing a
`
`construction of magnitude as “level of signal present in the [corresponding] frequency bin,
`
`computed as the square root of the sum of the squares of the frequency domain components of
`
`the frequency bin or a formula that approximates the resulting value”).) But, as described
`
`below, even this new construction fails to fully capture the preferred embodiment described in
`
`the ’345 Patent.
`
`As previously explained, the preferred embodiment of the ’345 Patent specification uses
`
`a 2D smoothing process as part of the process to calculate the magnitude of a frequency bin,
`
`which is subsequently used by the noise estimation and subtraction processes of the preferred
`
`embodiment. See, e.g., ’345 Patent at col. 5:55-58; Fig. 2 (items 206 and 208). This 2D
`
`smoothing process reduces the instability of the spectral estimation by replacing the previous
`
`estimate of the magnitude of the frequency bin (calculated, for example, using the straight
`
`forward approach or approximation formula) with one that has been averaged over neighboring
`
`frequency bins and over previous time frames to generate a smoothed magnitude value. ’345
`
`Patent at col. 5:45-55. Because the 2D smoothing process uses values of neighboring frequency
`
`bins and prior time frames, the smoothed magnitude value may be quite different from the
`
`resulting value calculated by taking the square root of the sum of the squares of the real and
`
`imaginary components of frequency bin. Douglas Decl. at ¶ 29. In other words, the magnitude
`
`value calculated by the 2D smoothing process does not necessarily “approximate[] the resulting
`
`value” of the square root of the sum of the squares of the frequency domain components of the
`
`9
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 9
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`

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`frequency bin as required by Respondents’ and Intervenors’ new construction. Because
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`Respondents’ and Intervenors’ new construction still fails to capture the preferred embodiment
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`of the ’345 Patent, it should be rejected.
`
`(2)
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`Respondents and Intervenors improperly rely upon
`extrinsic evidence to support their proposed
`construction of “magnitude”
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`It is improper to rely upon extrinsic evidence to contradict the meaning of a term that is
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`evidenced from the patent specification. Vitronics Corp. v. Conceptronics, Inc., 90 F.3d 1576,
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`1584 (Fed. Cir. 1996) (noting that it is improper to use extrinsic evidence to contradict the
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`specification). Despite this clear rule, Respondents and Intervenors rely extensively upon
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`extrinsic evidence – expert testimony – to read out the preferred embodiment of the ’345 Patent.
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`(See Resp’ts’ & Intervenors’ Br. at 23-25.) Respondents’ and Intervenors’ proffered extrinsic
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`evidence should be disregarded.
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`Respondents and Intervenors rely extensively on the declaration of their expert, David
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`Anderson, to support their erroneous interpretation of “magnitude.” In particular, Respondents
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`and Intervenors rely upon expert testimony to establish that “[c]opious references exist that
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`describe ‘magnitude’ as the square root of the sum of the squares of the real and imaginary
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`components of a complex number.” (Resp’ts’ & Intervenors Br. at 24.) But this expert
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`testimony is insufficient to overcome the explicit, broader teachings of the intrinsic record.
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`Vitronics Corp. v. Conceptronics, Inc., 90 F.3d 1576, 1584 (Fed. Cir. 1996) (“Indeed, where the
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`patent documents are unambiguous, expert testimony regarding the meaning of a claim is entitled
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`to no weight.”). As previously discussed, the ’345 Patent specification is abundantly clear that
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`the claimed “magnitude” is not limited to being calculated by the square root of the sum of the
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`squares of the real and imaginary components of a complex number. See Section III.B.1.a(1),
`
`supra. Because the sole purpose of Respondents’ and Intervenors’ expert declaration of David
`10
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 10
`
`

`

`Anderson is to contradict the intrinsic record and support a construction that excludes the
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`preferred embodiment, that expert testimony should be given no weight.
`
`(3)
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`Respondents’ and Intervenors’ proposed construction
`of “magnitude” is inconsistent with how a person of
`ordinary skill in the art would understand the term
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`Respondents and Intervenors contend that Complainant’s and Staff’s proposed
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`construction “renders the term ‘magnitude’ meaningless” because it is broad enough to
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`encompass “values of the signal, unrelated to magnitude.” (Resp’ts’ & Intervenors’ Br. at 25.)
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`However, Respondents and Intervenors never provide a credible explanation (or example) as to
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`how Complainant’s and Staff’s proposed construction extends to values unrelated to magnitude.
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`(Resp’ts’ & Intervenors’ Br. at 25.) This is not surprising: the claimed “magnitude” is well
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`understood by persons of ordinary skill in the digital signal processing field to refer to the level
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`of a signal present in a frequency bin, which can be calculated in ways other than the square root
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`of the sum of the squares of the real and imaginary components of a complex number as
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`suggested by Respondents and Intervenors. Douglas Decl. at ¶¶ 9-13.
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`All the parties’ constructions acknowledge that the proper definition of the claimed
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`“magnitude” includes the “level of signal present in the [corresponding] frequency bin.” This
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`general understanding of “magnitude” as referring to the level of signal present in a frequency
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`bin is supported by the specification, which describes using the magnitude to determine the level
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`of noise in a frequency bin:
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`Each bin's magnitude (Y(n)) is compared with four times the
`current minimum value of that bin by comparator 308—which
`serves as the adaptive threshold for that bin. If the magnitude is
`within the range (hence below the threshold), it is allowed as noise
`and used by an exponential averaging unit 310 that determines the
`level of the noise 312 of that frequency. If the magnitude is above
`the threshold it is rejected for the noise estimation.
`
`11
`
`
`Petitioner Apple Inc.
`Ex. 1013, p. 11
`
`

`

`’345 Patent at col. 6:46-53. In particular, the specification teaches that the magnitude of a
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`frequency bin is used to determine a level of noise in a frequency bin – which is consistent with
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`the general understanding of “magnitude” as referring to a level of signal in a frequency bin.
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`The understanding that “magnitude” is simply the level of signal is further confirmed in
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`the Understanding Digital Signal Processing textbook by Richard G. Lyons – a textbook relied
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`upon by Respondents’ expert, David Anderson. In particular, the Understanding Digital Signal
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`Processing textbook provides the following description of magnitude:
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`The magnitude of a variable...is the measure of how far, regardless
`of direction, its quantity differs from zero. So magnitudes are
`always positive values.
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`(Init. Anderson Decl. at Ex. 2 (RLTK_ITC_949_00029303).) As this passage shows, one of
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`ordinary skill in the art would understand magnitude to refer broadly to a measure of the level of
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`a signal, i.e. how far the signal component varies from zero. This broad understanding of
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`“magnitude” is further confirmed by the IEEE Standard Dictionary of Electrical and Electronics
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`Terms, 6th Ed.:
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`magnitude The quantitative attribute of size, intensity, extent, etc.,
`that allows a particular entity to be placed in o