UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________________________________
`
`K/S HIMPP
`Petitioner
`
`v.
`
`III Holdings 4 LLC
`Patent Owner.
`
`Case No. TBD
`
`DECLARATION OF LES ATLAS, PH.D.
`REGARDING U.S. PATENT NO. 8,654,999
`
`HIMPP 1008
`
`

`

`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`
`
`TABLE OF CONTENTS
`
`Page
`Introduction ...................................................................................................... 1 
`I. 
`Qualifications ................................................................................................... 2 
`II. 
`III.  Basis of Opinions ............................................................................................. 3 
`IV.  Understanding of Legal Principles .................................................................. 4 
`V.  Description of the Relevant Field and Relevant Timeframe ........................... 8 
`VI.  The Person of Ordinary Skill in the Relevant Field in the Relevant
`Timeframe ........................................................................................................ 8 
`VII.  Technology Background for the ’999 Patent ................................................. 10 
`VIII.  The ’999 Patent (Ex. 1001) ............................................................................ 13 
`IX.  Claim Construction ........................................................................................ 19 
`A. 
`“hearing aid profile” (claims 1, 6, 9, 10, 16, 17, 20) .......................... 20 
`B. 
`“hearing correction filter” (claims 1-6, 8-17) ..................................... 21 
`C. 
`“incremental hearing correction” (claims 1-5, 10-13, 15-17) ............. 23 
`D. 
`“incremental hearing correction filter” (claims 1-5, 10-13, 15-
`17) ........................................................................................................ 25 
`X.  Discussion of Relevant Prior Art Patents and Publications .......................... 28 
`A. 
`Fichtl .................................................................................................... 28 
`B. 
`Sacha .................................................................................................... 30 
`C. 
`Janssen ................................................................................................. 31 
`D. 
`Bisgaard ............................................................................................... 32 
`E.  Mangold ............................................................................................... 36 
`F. 
`DE961 .................................................................................................. 38 
`G. 
`Roeck ................................................................................................... 40 
`XI.  Claims 1-5 AND 16 are obvious over Fichtl (Ex. 1003) in view of Mangold
`(Ex. 1007) and Bisgaard (Ex. 1006) .............................................................. 42 
`A. 
`[Claim 1. Preamble] ............................................................................ 43 
`B. 
`[Claim 1.1] - “a microphone to convert sound into electrical
`signals” ................................................................................................ 43 
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`E. 
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`F. 
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`A. 
`B. 
`C. 
`D. 
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`
`[Claim 1.2] - “a speaker to output audible sound” .............................. 44 
`[Claim 1.3] - “a processor” ................................................................. 44 
`[Claim 1.4] - “a memory to store instructions” ................................... 44 
`[Claim 1.5.1] – “…instructions, which when executed by the
`processor, cause the processor to: receive a selection of a
`hearing aid profile from a plurality of hearing aid profiles, the
`selected hearing aid profile configured to modulate the
`electrical signals to a level to compensate for a hearing
`impairment of a user” .......................................................................... 46 
`[Claim 1.5.2] “apply a first one of a sequence of incremental
`hearing correction filters to the modulated electrical signals to
`produce a modulated output signal to reduce the amplitude of
`the modulated electrical signals produced by the selected
`hearing aid profile to a first level that is less than a level to
`compensate for the hearing impairment of the user” .......................... 48 
`[Claim 1.5.3] “select a second one of the sequence of
`incremental hearing correction filters in response to receiving a
`trigger, the second one being designated to follow the first one
`in the sequence of incremental hearing correction filters and to
`reduce the amplitude of the modulated electrical signals
`produced by the selected hearing aid profile to a second level
`that is greater than the first level and less than the level to
`compensate for the hearing impairment of the user” .......................... 54 
`[Claim 1.6] “cause the speaker to output an alert when a final
`one of the sequence of incremental hearing correction filters is
`being applied, the final one being the last hearing correction
`filter of the sequence of incremental hearing correction filters” ........ 56 
`H.  A POSA Would Have Combined Fichtl, Mangold, and
`Bisgaard ............................................................................................... 57 
`[Claim 2] “each of the incremental hearing correction filters
`comprises a collection of acoustic configuration settings
`configured to modulate the electrical signal to a level that is
`within a range between an uncompensated hearing level of the
`user and the level to compensate for the hearing impairment of
`the user” ............................................................................................... 61 
`
`G. 
`
`I. 
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
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`
`J. 
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`K. 
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`L. 
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`M. 
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`[Claim 3.1] “a transceiver coupled to the processor and
`configurable to communicate with a computing device through
`a communication channel during operation, the transceiver to
`receive a signal from the computing device and to provide the
`signal to the processor” ....................................................................... 62 
`[Claim 3.2] “wherein the processor applies the selected one of
`the sequence of incremental hearing correction filters in
`response to receiving the signal” ......................................................... 66 
`[Claim 4] “hearing aid of claim 3, wherein the signal includes
`the selected one of the sequence of incremental hearing
`correction filters” ................................................................................. 67 
`[Claim 5.1] “hearing aid of claim 3, further comprising a
`memory to store the sequence of incremental hearing correction
`filters” .................................................................................................. 68 
`[Claim 5.2] “wherein the signal includes an indicator
`identifying the selected one of the incremental hearing
`correction filters within the sequence” ................................................ 68 
`[Claim 5.3] “wherein, in response to receiving the signal, the
`processor retrieves the selected one of the incremental hearing
`correction filters from the memory and applies the selected one
`to the modulated electrical signals” .................................................... 69 
`[Claim 16] “hearing aid of claim 1, further comprising
`instructions that, when executed by the processor, cause the
`processor to generate the sequence of incremental hearing
`correction filters based at least in part on a magnitude of a
`difference between a hearing aid profile and a hearing loss level
`associated with the user of the hearing aid, the sequence of
`incremental hearing correction filters including at least the first
`hearing correction filter and the second hearing correction
`filter” .................................................................................................... 69 
`XII.  Claim 18 is obvious over Fichtl (Ex. 1003) in view of Mangold (Ex. 1007),
`Bisgaard (Ex. 1006), and Sacha (Ex. 1004). ................................................. 70 
`A. 
`[Claim 18.1] “hearing aid of claim 1, further comprising
`instructions that, when executed by the processor, cause the
`processor to: determine an amount of time during which the
`first hearing correction filter is applied” ............................................. 70 
`
`N. 
`
`O. 
`
`P. 
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`
`
`B. 
`
`C. 
`
`D. 
`
`[Claim 18.2] “apply the second hearing correction filter when
`the amount of time exceeds a pre-determined threshold” ................... 73 
`XIII.  Claims 6-9 and 17 are obvious over Fichtl (Ex 1003) in view of Sacha (Ex
`1004), Mangold (Ex. 1007), and DE19542961 (Ex. 1009) ........................... 73 
`A. 
`[Claim 6.1] “A non-transitory computer-readable device
`comprising instructions that, when executed by a processor,
`cause the processor to…” .................................................................... 73 
`[Claim 6.2] “select a hearing aid profile from a plurality of
`hearing aid profiles, the selected hearing aid profile configured
`to modulate an audio signal to a level to compensate for a
`hearing impairment of a user” ............................................................. 74 
`[Claim 6.3] “apply a first hearing correction filter to the
`selected hearing aid profile to reduce the amplitude of the
`modulated audio signal produced by the selected hearing aid
`profile to a first level that is less than the level to compensate
`for the hearing impairment of the user” .............................................. 74 
`[Claim 6.4] “determine an amount of time during which the
`first hearing correction filter is applied” ............................................. 74 
`[Claim 6.5.1] “selectively apply a second hearing correction
`filter to the selected hearing aid profile to reduce the amplitude
`of the modulated audio signal produced by the selected hearing
`aid profile to a second level that is greater than the first level
`and less than the level to compensate for the hearing
`impairment of the user when the amount of time exceeds a pre-
`determined threshold” ......................................................................... 75 
`[Claim 6.5.2] “the pre-determined threshold is programmable
`by the user” .......................................................................................... 75 
`H.  A POSA Would Have Combined Fichtl, Sacha, and DE961 ............. 76 
`I. 
`[Claim 7] “computer-readable device of claim 6, wherein the
`pre-determined threshold is configurable by the user” ....................... 78 
`[Claim 8] “computer-readable device of claim 6, further
`comprising instructions that, when executed by the processor,
`cause the processor to receive the first hearing correction filter
`and the second hearing correction filter from a transceiver
`
`G. 
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`E. 
`
`F. 
`
`J. 
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`
`
`K. 
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`L. 
`
`configured to communicatively couple to a computing device
`during operation” ................................................................................. 78 
`[Claim 9] “non-transitory computer-readable device of claim 6,
`further comprising instructions that, when executed by the
`processor, cause the processor to dynamically generate the first
`hearing correction filter and the second hearing correction filter
`based on at least one of the hearing impairment of the user and
`a hearing aid profile including a collection of acoustic
`configuration settings for producing the modulated output
`signal at the corrected hearing level” .................................................. 79 
`[Claim 17] “non-transitory computer-readable device of claim
`6, further comprising instructions that, when executed by the
`processor, cause the processor to generate the sequence of
`incremental hearing correction filters based at least in part on a
`magnitude of a difference between a hearing aid profile and a
`hearing loss level associated with the user of the hearing aid,
`the sequence of incremental hearing correction filters including
`at least the first hearing correction filter and the second hearing
`correction filter” .................................................................................. 80 
`XIV.  Claim 19 is obvious over Fichtl (Ex. 1003) in view of Sacha (Ex. 1004),
`Mangold (Ex. 1007), Bisgaard (EX. 1006), and DE19542961 (Ex. 1009) ... 81 
`M. 
`[Claim 19] “hearing aid of claim 18, wherein the pre-
`determined threshold is adjustable by the user” .................................. 81 
`XV.  Claims 10, 13, 14 and 20 are obvious over Fichtl (Ex. 1003) in view of
`Mangold (Ex. 1007) ....................................................................................... 82 
`A. 
`[Claim 10 - preamble] “A computing device comprising” ................ 82 
`B. 
`[Claim 10.1] “a transceiver configurable to communicate with
`a hearing aid through a communication channel” ............................... 85 
`[Claim 10.2] “a processor coupled to the transceiver” ...................... 89 
`[Claim 10.3] “a memory coupled to the processor and
`configured to store instructions…” ..................................................... 89 
`[Claim 10.4.1] “…instructions that, when executed by the
`processor, cause the processor to: generate a sequence of
`incremental hearing correction filters based at least in part on a
`magnitude of a difference between a hearing aid profile and a
`
`C. 
`D. 
`
`E. 
`
`v
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`
`
`F. 
`
`J. 
`
`K. 
`
`G. 
`
`hearing loss level associated with a user of the hearing aid, the
`sequence of incremental hearing correction filters including at
`least a first hearing correction filter and a second hearing
`correction filter” .................................................................................. 90 
`[Claim 10.4.2] “provide a first signal related to the first hearing
`correction filter of the sequence of incremental hearing
`correction filters to the hearing aid through the communication
`channel” ............................................................................................... 94 
`[Claim 10.4.3] “provide a second signal related to a second
`hearing correction filter of the sequence of incremental hearing
`correction filters to the hearing aid in response to receiving a
`selection of the second hearing correction filter from a user of
`the hearing aid” ................................................................................... 95 
`H.  A POSA Would Have Combined Fichtl and Mangold ....................... 96 
`I. 
`[Claim 13] “computing device of claim 10, wherein the first
`signal and the second signal comprise triggers to initiate an
`adjustment to a currently selected incremental hearing
`correction filter executing on the hearing aid” .................................... 97 
`[Claim 14] “computing device of claim 10, wherein the first
`signal and the second signal include the first hearing correction
`filter and the second hearing correction filter” ................................... 97 
`[Claim 20] “computer-readable device of claim 10, further
`comprising instructions that, when executed by the processor,
`cause the processor to receive: a selection of a hearing aid
`profile; and provide the hearing aid profile to the hearing aid” .......... 98 
`XVI.  Claims 11-12 and 15 are obvious over Fichtl (Ex. 1003) in view of Mangold
`(Ex. 1007) and Sacha (Ex. 1004) ................................................................. 101 
`A. 
`[Claim 11.1] “computing device of claim 10, wherein the
`memory stores further instructions that, when executed by the
`processor, cause the processor to: initiate a timer to determine
`the [sic, a] period of time” ................................................................. 101 
`[Claim 11.2] “iteratively select and provide selection signals
`related to subsequent ones of the incremental hearing correction
`filters from the sequence to the hearing aid when the period of
`time exceeds the [sic, a] threshold time increment” ......................... 104 
`
`L. 
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`M. 
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`
`
`[Claim 11.3] “reset and restart the timer when each of the
`subsequent ones of the incremental hearing correction filters is
`provided to the hearing aid” .............................................................. 104 
`[Claim 12] “computing device of claim 10, wherein the
`threshold time increment varies with each of the incremental
`hearing correction filters” .................................................................. 105 
`[Claim 15] “computing device of claim 10, wherein the
`memory further comprises instructions that, when executed by
`the processor, cause the processor to progressively advance
`through the sequence of the incremental hearing correction
`filters by providing each of the incremental hearing correction
`filter to the hearing aid, one at a time, over a sequence of time
`increments to provide a progressive hearing aid adjustment
`from an uncompensated hearing level to a corrected hearing
`level to aid in the user in acclimating to the hearing aid” ................. 105 
`A POSA Would Have Combined Fichtl, Mangold, and Sacha ........ 106 
`P. 
`XVII. Conclusion ................................................................................................... 107 
`
`
`N. 
`
`O. 
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`
`
`
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`

`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`
`I.
`
`I, Les Atlas, Ph.D., declare as follows:
`INTRODUCTION
`1. My name is Les Atlas, Ph.D. I have been asked to opine on the
`
`patentability of U.S. Patent 8,654,999 by Mindlin et al. (“the ’999 patent”), entitled
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`“System and Method of Progressive Hearing Device Adjustment.” My opinions
`
`are set forth herein. I make this declaration based on personal knowledge and I am
`
`competent to testify about the matters set forth herein. I submit this declaration in
`
`support of K/S HIMPP’s Petition for Inter Partes Review, which I have read and
`
`fully support as if my own.
`
`2.
`
`I have been retained by counsel for K/S HIMPP (“Petitioner”) to serve
`
`as a technical expert in this Inter Partes Review proceeding. I have been asked to
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`provide expert testimony in this declaration regarding the patentability of the
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`claims of the ’999 patent and the grounds of unpatentability upon which the Inter
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`Partes Review petition are based.
`
`3.
`
`I am being compensated for my time at my normal hourly rate of $270
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`and for reasonable expenses incurred in preparing this declaration.
`
`4. My compensation is not dependent on and in no way affects the
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`substance of my statements in this Declaration.
`
`5.
`
`I have no financial interest in the Petitioner. I similarly have no
`
`financial interest in the ’999 patent.
`
`
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`1
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`
`II. QUALIFICATIONS
`6. My academic credentials include a B.S. in Electrical Engineering
`
`from the University of Wisconsin and a M.S. and a Ph.D. in Electrical Engineering
`
`from Stanford University. I am a Fellow of the Institute of Electrical and
`
`Electronics Engineers (IEEE) and have been and remain active as an electrical
`
`engineering, hearing, and speech science university faculty educator and
`
`researcher. My work and impact in hearing research goes back to 35 years ago
`
`when I designed the world’s first portable speech processor for cochlear implants.
`
`This then-new technology was like a hearing aid, except that it used electrical
`
`stimulation of the inner ear to treat patients who were profoundly deaf, that is
`
`could not hear at all, even with a sound amplification hearing aid. This cochlear
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`implant technology has since become a common form of treatment, and is used by
`
`over 190,000 users worldwide. Cochlear implant technology and regular hearing
`
`aids share challenges such as sound shaping, frequency filtering, and range of
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`amplification, along with portability. That is, both have small external processors
`
`where sounds are conditioned, often with parameters which are customized for
`
`each patient. More recently, since about 2004, I have addressed the lack of rich
`
`music perception and challenges for speech perception with noisy background by
`
`both hearing aid and cochlear implant users. My innovations resulted in several
`
`key publications, such as the May 2008 issue of Hearing Research, where our
`
`
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`2
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`paper “Improving performance in noise for hearing aids and cochlear implants
`
`using coherent modulation filtering,” was featured on the cover of this issue. The
`
`work described in this paper resulted in my 2012 Bloedel Scholar Award, given
`
`out by the Bloedel Speech and Hearing Research Institute. It also resulted in 2014-
`
`16 research grants from the Coulter Foundation. The approach described in the
`
`paper came from my decades of more theoretical work in time-frequency analysis.
`
`That work resulted in my election to the high level of Fellow of the IEEE “[f]or
`
`contributions to time-varying spectral analysis and acoustical signal processing.”
`
`This approach was also used to modernize music coding for all listeners
`
`worldwide. Our coherent modulation approach resulted in my 2003 Fulbright
`
`Award, where I spent 6 months at the Fraunhofer Institute in Germany and then 3
`
`months in Cambridge England. Since then (2003) my commitment to solving
`
`challenges facing perception of music and speech in noise in cochlear implant
`
`patients has resulted in more publications and progress in those needed research
`
`directions.
`
`7. My latest curriculum vitae (CV) is attached to this declaration as an
`
`Appendix A.
`
`III. BASIS OF OPINIONS
`8.
`I have reviewed the specification and claims of the ’999 patent. ’999
`
`patent, Ex. 1001.
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`3
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`I have also reviewed the following references, all of which I
`
`9.
`
`understand to be prior art to the ’999 patent:
`
`(cid:120) U.S. Patent No. 8,787,603 to Fichtl, et al. (“Fichtl,” Ex. 1003);
`
`(cid:120) U.S. Patent Application Publication 2003/0215105 to Sacha (“Sacha,”
`Ex. 1004);
`
`(cid:120) U.S. Patent Application Publication 2005/0036637 to Janssen
`(“Janssen,” Ex. 1005);
`
`(cid:120) U.S. Patent No. 6,741,712 to Bisgaard (“Bisgaard,” Ex. 1006);
`
`(cid:120) U.S. Patent No. 4,972,487 to Mangold (“Mangold,” Ex. 1007);
`
`(cid:120) German patent publication DE19542961, with certified translation
`(“DE ‘961,” Ex. 1009);
`
`(cid:120) U.S. Patent No. 7,933,419 to Roeck (“Roeck,” Ex. 1010).
`10.
`In addition to the documents listed above, I have also reviewed parts
`
`of the file history of the ’999 patent, the accompanying petition, all of the
`
`documents listed in Petitioner’s List of Exhibits in the accompanying petition, and
`
`all of the documents cited in this Declaration.
`
`IV. UNDERSTANDING OF LEGAL PRINCIPLES
`11.
`I am not an attorney. For the purposes of this declaration, I have been
`
`informed about certain aspects of the law that are relevant to my opinions. My
`
`understanding of the law was provided to me by Petitioner’s attorneys.
`
`12.
`
`I understand that prior art to the ’999 patent includes patents and
`
`printed publications in the relevant art that predate the priority date of the alleged
`
`
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`4
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`invention recited in the ’999 patent. I have applied the date of April 13, 2010, the
`
`earliest possible filing date of the earliest provisional patent application to which
`
`the ’999 patent claims priority, as the priority date, although the ’999 patent may
`
`actually not be entitled to such an early priority date. My opinions regarding the
`
`’999 patent and the unpatentability of its claims are the same regardless of whether
`
`the earliest priority date of the ’999 patent is April 13, 2010 (filing date of the
`
`provisional application no. 61/323,841), June 2, 2010 (filing date of provisional
`
`application no. 61/305,759), or April 12, 2011 (filing date of application no.
`
`13/085,016).
`
`13.
`
`I understand that a claim is unpatentable if it would have been obvious
`
`to a person of ordinary skill in the art (“POSA”) at the time the alleged invention
`
`was made. I understand that a claim could have been obvious from a single prior
`
`art reference or from a combination of two or more prior art references.
`
`14.
`
`I understand that an obviousness analysis requires an understanding of
`
`the scope and content of the prior art, any differences between the alleged
`
`invention and the prior art, and the level of ordinary skill in evaluating the
`
`pertinent art.
`
`15.
`
`I further understand that certain factors may support or rebut the
`
`obviousness of a claim. I understand that such secondary considerations include,
`
`among other things, commercial success of the patented invention, skepticism of
`
`
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`those having ordinary skill in the art at the time of invention, unexpected results of
`
`the invention, any long-felt but unsolved need in the art that was satisfied by the
`
`alleged invention, the failure of others to make the alleged invention, praise of the
`
`alleged invention by those having ordinary skill in the art, and copying of the
`
`alleged invention by others in the field. I understand that there must be a nexus,
`
`that is, a connection, between any such secondary considerations and the alleged
`
`invention. I also understand that contemporaneous and independent invention by
`
`others is a secondary consideration tending to show obviousness.
`
`16.
`
`I further understand that a claim would have been obvious if it unites
`
`old elements with no change to their respective functions, or alters prior art by
`
`mere substitution of one element for another known in the field, and that
`
`combination yields predictable results. Also, I understand that obviousness does
`
`not require physical combination/bodily incorporation, but rather consideration of
`
`what the combined teachings would have suggested to persons of ordinary skill in
`
`the art at the time of the alleged invention.
`
`17. While it may be helpful to identify a reason for this combination, I
`
`understand that there is no rigid requirement of finding an express teaching,
`
`suggestion, or motivation to combine within the references. When a product is
`
`available, design incentives and other market forces can prompt variations of it,
`
`either in the same field or a different one. If a POSA can implement a predictable
`
`
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`6
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`variation, obviousness likely bars its patentability. For the same reason, if a
`
`technique has been used to improve one device and a POSA would recognize that
`
`it would improve similar devices in the same way, using the technique would have
`
`been obvious. I understand that a claim would have been obvious if a POSA
`
`would have had reason to combine multiple prior art references or add missing
`
`features to reproduce the alleged invention recited in the claims.
`
`18.
`
`I am not aware of any allegations by the named inventors of the ’999
`
`patent or any assignee of the ’999 patent that any secondary considerations tend to
`
`rebut the obviousness of any claim of the ’999 patent discussed in this declaration.
`
`19.
`
`I understand that in considering obviousness, it is important not to
`
`determine obviousness using the benefit of hindsight derived from the patent being
`
`considered.
`
`20.
`
`I understand that other challenges to the validity of a patent, including
`
`patent ineligibility, enablement, written description, and definiteness, cannot be
`
`raised in IPR proceedings before the Board to challenge the validity of the ’999
`
`patent. Accordingly, I did not consider those other challenges.
`
`21. The analysis in this declaration is in accordance with the above-stated
`
`legal principles.
`
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`V. DESCRIPTION OF THE RELEVANT FIELD AND RELEVANT
`TIMEFRAME
`22. The ’999 patent was issued to Harold S. Mindlin, II, et al. on February
`
`18, 2014. I have been informed that the ’999 patent claims priority to Provisional
`
`Application No. 61/323,841 filed on April 13, 2010 and Provisional Application
`
`No. 61/305,759 filed on June 2, 2010.
`
`23.
`
`I have carefully reviewed the ’999 patent and portions of its file
`
`history.
`
`24. Based on my review of this material, I believe that the relevant field
`
`for the purposes of the ’999 patent is hearing aid systems. I have been informed
`
`that the relevant time frame is before April 13, 2010, which is the filing date of
`
`U.S. Provisional Application No. 61/323,841, although the ’999 patent may
`
`actually not be entitled to April 13, 2010 as such an early priority date.
`
`25. As described above and as shown in my CV, I have extensive
`
`experience in the relevant field. Based on my experience, I have a good
`
`understanding of the relevant field in the relevant timeframe and the skills
`
`possessed by those of ordinary skill at the time.
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`VI. THE PERSON OF ORDINARY SKILL IN THE RELEVANT FIELD
`IN THE RELEVANT TIMEFRAME
`26.
`I understand that the level of ordinary skill may be reflected by the
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`prior art of record, and that a POSA to which the claimed subject matter pertains
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`would have the capability of understanding the scientific and engineering
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`principles applicable to the pertinent art. I understand that one of ordinary skill in
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`the art has ordinary creativity, and is not a robot.
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`27.
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`I understand there are multiple factors relevant to determining the
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`level of ordinary skill in the art, including (1) the levels of education and
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`experience of persons working in the field at the time of the invention, (2) the
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`sophistication of the technology, (3) the types of problems encountered in the field;
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`and (4) the prior art solutions to those problems. There are likely a wide range of
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`educational backgrounds in the technology fields pertinent to the ’999 patent.
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`28. The ’999 patent relates to the technical field of hearing aid systems.
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`More specifically, the field includes hearing aids that contain a processor, memory,
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`and instructions for carrying out an acclimatization program as well as
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`computer/software-based tools used by hearing care professionals, e.g.,
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`audiologists, to fit hearing aids to users who have experienced partial or complete
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`hearing loss. A POSA at the time of the alleged invention of the ’999 patent would
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`have had a B.S. degree in electrical or computer engineering, or the equivalent, and
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`at least two years of experience in hearing aid systems. Graduate education could
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`substitute for work experience, and additional work experience/training could
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`substitute for formal education. As described in more detail above in ¶ 6, I would
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`U.S. Patent 8,654,999
`Declaration of Les Atlas, Ph.D.
`have been a person with at least ordinary skill in the art of the ’999 patent as of the
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`time of its alleged invention.
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`VII. TECHNOLOGY BACKGROUND FOR THE ’999 PATENT
`29. The ’999 patent claims priority to Provisional Application No.
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`61/323,841 filed on April 13, 2010 and Provisional Application No. 61/305,759
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`filed on June 2, 2010, and I have been informed that the relevant time frame is
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`before April 13, 2010, even though the ’999 patent may not be entitled to that
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`30. Before April 13, 2010, hearing aid technology was typically slightly
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`less advanced when compared to today’s technology. The lowest cost hearing
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`assistance devices would simply be a microphone wired to an analog amplifier
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`which was then connected, by wire, to a small speaker in the ear canal. However,
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`more sophisticated hearing aids which were readily available at the time of this
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`April 13, 2010 relevant timeframe date would have had digital processing, via a
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`processor or processors in the device, along with analog-to-digital and digital-to-
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`analog converters, where the digital processing entailed extensive sound
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`conditioning to reduce perceived noise to, ideally, make speech more intelligible.
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`31. These hearing aids would also allow extensive customized fitting by
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`an audiologist to adjust parameters such as the amount of amplification as a
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`function of frequency and the am