Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 8
`Entered: July 27, 2017
`
`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 IPR2017-00781
`Patent 8,654,999 B2
`____________
`
`
`Before SALLY C. MEDLEY, DAVID C. MCKONE, and
`KIMBERLY MCGRAW, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`Paper No. 8
`Entered: July 27, 2017
`
`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 IPR2017-00781
`Patent 8,654,999 B2
`____________
`
`
`Before SALLY C. MEDLEY, DAVID C. MCKONE, and
`KIMBERLY MCGRAW, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
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`
`I. INTRODUCTION
`
`A. Background
`K/S HIMPP (“Petitioner”) filed a Petition (Paper 3, “Pet.”) to institute
`an inter partes review of claims 1–9 and 16–19 of U.S. Patent No. 8,654,999
`B2 (Ex. 1001, “the ’999 patent”). Petitioner indicates that GN Hearing A/S
`(formerly GN Resound A/S), GN Store Nord A/S, IntriCon Corporation,
`Sivantos GmbH, Sivantos Inc., Sonova Holding AG, Sonova AG (formerly
`Phonak AG), Starkey Laboratories, Inc. (aka Starkey Hearing
`Technologies), Widex A/S, and William Demant Holding A/S are real
`parties in interest. Pet. 1. III Holdings 4, LLC (“Patent Owner”), filed a
`Preliminary Response (Paper 7, “Prelim. Resp.”). Upon consideration of the
`Petition and Preliminary Response, we conclude, under 35 U.S.C. § 314(a),
`that Petitioner has established a reasonable likelihood that it would prevail
`with respect to claims 1–9 and 16–19. Accordingly, we institute an inter
`partes review of claims 1–9 and 16–19 of the ’999 patent.
`
`B. Related Matters
`Petitioner challenges claims 10–15 and 20 of the ’999 patent in K/S
`HIMPP v. III Holdings 4, LLC, Case IPR2017-00782 (PTAB). Pet. 2.
`
`
`C. Evidence Relied Upon
`Petitioner relies on the following prior art:
`July 22, 2014
`
`Ex. 1003 (“Fichtl”)
`US 8,787,603 B2
`(filed June 19, 2012)
`
`
`
`
`
`
`
`Ex. 1004 (“Sacha”)
`US 2003/0215105 A1 Nov. 20, 2003
`Ex. 1006 (“Bisgaard”) US 6,741,712 B2
`
`May 25, 2004
`
`
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`2
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`Nov. 20, 1990
`
`Ex. 1007 (“Mangold”) US 4,972,487
`May 15, 19971
`Ex. 1009 (“DE961”)
`DE 195 42 961 C1
`Petitioner also relies on the Declaration of Les Atlas, Ph.D. (Ex. 1008,
`“Atlas Decl.”).2
`
`
`D. The Asserted Grounds
`Petitioner asserts the following grounds of unpatentability (Pet. 5):
`References
`Basis
`Claim(s) Challenged
`Fichtl, Mangold, and Bisgaard
`§ 103(a)
`1–5 and 16
`Fichtl, Mangold, Bisgaard, and
`Sacha
`Fichtl, Sacha, Mangold, and DE961
`Fichtl, Mangold, Bisgaard, Sacha,
`and DE961
`
`E. The ’999 Patent
`The ’999 patent describes a hearing aid system. By way of
`background, the ’999 patent explains that an individual’s hearing loss can
`vary across audio frequencies and that an audiologist typically measures the
`individual’s hearing capacities in various environments and tunes or
`
`§ 103(a)
`
`18
`
`§ 103(a)
`
`6–9 and 17
`
`§ 103(a)
`
`19
`
`
`1 Petitioner relies on a verified English translation of a German publication.
`We cite to the English translation.
`2 Patent Owner argues that we should give Dr. Atlas’s declaration no weight
`because it merely repeats the arguments in the Petition. Prelim. Resp. 16–
`18. Although we evaluate the extent to which expert testimony discloses the
`underlying facts or data on which it is based to determine the weight to give
`that testimony, see 37 C.F.R. § 42.65(a), Patent Owner does not persuade us
`at this stage that any of Dr. Atlas’s testimony should be discounted entirely.
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`calibrates a hearing aid for the individual to compensate for that individual’s
`particular hearing loss. Ex. 1001, 1:46–55. The patent further notes that the
`abrupt transition to a hearing aid can be traumatic or distressful for the
`individual. Id. at 1:58–67. To address this, the ’999 patent describes a
`hearing aid system in which, “rather than abruptly implementing the hearing
`correction for the user immediately, the hearing aid progressively applies
`incremental adjustments to progressively or gradually adjust the user’s
`experience from an uncompensated hearing level to a fully compensated
`hearing level.” Id. at 2:30–34.
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`Figure 2, reproduced below, illustrates an embodiment of the hearing
`aid system of the ’999 patent:
`
`
`Figure 2 is a block diagram of a hearing aid system. Id. at 2:10–12. Hearing
`aid 202 and computing device 252 (e.g., a personal digital assistant (PDA) or
`smart phone), communicate using transceivers 216 and 264, through a wired
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`or wireless channel (e.g., a Bluetooth channel or network 230). Id. at 5:49–
`61, 6:3–16. Hearing aid 202 includes memory 204 and processor 210 to
`store and process hearing aid profiles 218 and hearing correction filters 220.
`Id. at 5:61–6:2. Computing device 252 includes memory 254 and processor
`260 for storing and processing hearing aid profiles 270 and hearing
`correction filters 272. Id. at 6:29–35.
`Processor 210 of hearing aid 202 shapes acoustic signals according to
`a “hearing aid profile,” which the patent explains is “a collection of acoustic
`configuration settings,” and provides the shaped acoustic signals to a speaker
`or bone conduction element to correct a user’s hearing loss. Id. at 2:40–46.
`In one embodiment, processor 210 applies “a collection of hearing
`correction filters” that “include a series of hearing correction adjustments
`designed to be applied in a sequence over a period of time to provide
`incremental corrections for the user’s hearing loss.” Id. at 3:2–7. For
`example, “a first hearing correction filter attenuates the hearing aid profile
`by a pre-determined amount” and “[e]ach of subsequent hearing correction
`filter in the sequence increases the correction provided by (decreases the
`attenuation applied to) the hearing aid profile to some degree, until the
`sequence is complete and the hearing aid profile is fully applied to provide
`the desired hearing correction for the user.” Id. at 3:7–15.
`In one embodiment, processor 210 of hearing aid 202 selectively
`applies a hearing correction filter 220 to selected hearing aid profile 218 to
`provide hearing correction for a period of time before advancing to a next
`incremental hearing correction filter 220 in a sequence. Id. at 6:42–52. In
`another embodiment, hearing aid 202 receives a trigger from computing
`device 252 through the communication channel and selects a filter from
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`hearing correction filters 222 for application to a selected hearing aid profile
`218. Id. at 7:9–16. In some instances, hearing aid 202 can signal computing
`device 252 to retrieve an incremental hearing correction filter 276 from
`memory 254. Id. at 9:62–65.
`Claims 1 and 6 are the only independent claims at issue in this
`proceeding. Claim 1, reproduced below, is illustrative of the invention:
`1.
`A hearing aid comprising:
`a microphone to convert sound into electrical signals;
`a speaker to output audible sound;
`a processor; and
`a memory to store 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;
`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;
`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
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`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; and
`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.
`
`
`
`II. ANALYSIS
`Claim Construction
`A.
`We interpret claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee,
`136 S. Ct. 2131, 2144–45 (2016). In applying a broadest reasonable
`construction, claim terms generally are given their ordinary and customary
`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007).
`
`
`1. “hearing correction filter”
`The ’999 patent describes “hearing correction filter” as follows:
`As used herein, the term “hearing correction filter” refers to a
`collection of filters for hearing aid 202, which are applied by
`processor 210 within hearing aid 202 to a hearing aid profile to
`reduce the level of correction provided to the user by application
`of the hearing aid profile. The collection of hearing correction
`filters may include a series of hearing correction adjustments
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`designed to be applied in a sequence over a period of time to
`provide incremental corrections for the user’s hearing loss to
`ease the user’s transition from uncompensated to corrected
`hearing.
`Ex. 1001, 2:65–3:7. Both parties advance that this description provides an
`express definition of “hearing correction filter,” yet both parties reach
`different conclusions as to what that definition is. Pet. 13–15; Prelim.
`Resp. 13–14.
`Petitioner argues that, according to this description, a “hearing
`correction filter” is applied by a processor to a hearing aid profile to reduce
`the level of correction provided to a user by application of the hearing aid
`profile. Pet. 13–14. Patent Owner, on the other hand, contends that an
`individual “hearing correction filter” is itself a “collection of filters” that are
`applied to a hearing aid profile. Prelim. Resp. 13–14.
`We recognize, as Patent Owner points out, that the ’999 patent states
`that “the term ‘hearing correction filter’ refers to a collection of filters,”
`suggesting that a single hearing correction filter actually is a collection of
`filters. Ex. 1001, 2:65–66. Nevertheless, the patent’s use of the term in
`context indicates that a hearing correction filter actually is a single filter that
`is a member of a collection. Specifically, the patent explains that “[t]he
`collection of hearing correction filters may include a series of hearing
`correction adjustments designed to be applied in a sequence over a period of
`time.” Id. at 3:2–5. The patent then expands on this explanation of a
`collection of filters:
`In such an instance, a first hearing correction filter attenuates the
`hearing aid profile by a pre-determined amount, limiting the
`adjustment provided by hearing aid 202. Each of subsequent
`hearing correction filter in the sequence increases the correction
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`provided by (decreases the attenuation applied to) the hearing aid
`profile to some degree, until the sequence is complete and the
`hearing aid profile is fully applied to provide the desired hearing
`correction for the user.
`Ex. 1001, 3:7–15. Here, the patent describes individual hearing correction
`filters that are part of a collection and are individually applied in sequence.
`Patent Owner (Prelim. Resp. 14) argues that additional description in
`the specification supports its construction, namely:
`Further, it should be understood that the filter or correction used
`to achieve the correction lines and ultimately the hearing aid
`profile is composed of a plurality of coefficients, parameters, or
`other settings that are applied by a processor of the hearing aid
`to alter various characteristics of the sounds to modulate them to
`compensate for the user’s hearing impairment.
`Id. at 5:42–48. This description on its face describes a single filter that is
`composed of multiple coefficients or parameters. Nevertheless, Patent
`Owner argues that an individual hearing correction filter must include a
`collection of filters because it adjusts a plurality of coefficients, parameters,
`and settings to alter various characteristics of sound. Prelim. Resp. 14.
`Patent Owner does not advance any persuasive evidence or argument that an
`individual filter must be limited to adjusting a single coefficient or parameter
`such that an individual hearing correction filter cannot adjust multiple
`coefficients or parameters. Thus, on the current record, this passage is
`equally consistent with Petitioner’s proposed construction.
`Moreover, we note that claim 2, for example, recites “wherein each of
`the incremental hearing correction filters comprises a collection of acoustic
`configuration settings configured to modulate the electrical signal . . . .”
`This suggests that a hearing correction filter, in claim 1, need only include a
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`single acoustic configuration setting, contradicting Patent Owner’s argument
`that it must include a plurality.
`On this record, based on the definition in the specification when
`viewed in its proper context, we construe “hearing correction filter” to mean
`“a filter that is applied by a processor within a hearing aid to a hearing aid
`profile to reduce the level of correction provided to the user by application
`of the hearing aid profile.”
`Petitioner further contends that a hearing correction filter should not
`be construed to cover a filter that is applied to modulate an audio signal that
`already has been modulated by the hearing aid profile, arguing that such a
`construction would be contradicted by the embodiments and definition
`provided by the specification. Pet. 14–15. In its proposed construction of a
`related term, “incremental hearing correction filter,” Patent Owner appears
`to agree. Prelim. Resp. 16 (“The Board must adopt a construction for
`‘incremental hearing correction filter’ consistent with the specification—
`specifically, the incremental hearing correction filter is applied to the
`hearing aid profile.”).
`Nevertheless, we decline to place such a restriction on “hearing
`correction filter,” as it is inconsistent with the claim language itself, at least
`in some instances. For example, claim 1 recites “the selected hearing aid
`profile configured to modulate the electrical signals to a level to compensate
`for a hearing impairment of a user” and “apply a first one of a sequence of
`incremental hearing correction filters to the modulated electrical signals to
`produce a modulated output signal.” In this instance, the hearing correction
`filter is applied to the electrical signals already modulated by the hearing aid
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`profile. Compare with claim 6 (“apply a first hearing correction filter to the
`selected hearing aid profile”).
`
`
`2. “incremental hearing correction filter”
`Petitioner contends that “incremental hearing correction filter,” as
`recited in claim 1, should be construed as “a hearing correction filter applied
`to provide a modulated output signal having a level that is within a range
`between an uncompensated output level and the desired output level.”
`Pet. 16. Petitioner bases its proposal on description in the specification that
`it contends is definitional. Id. at 15–18 (citing Ex. 1001, 3:24–32).
`“Incremental hearing correction filter” is related to two terms defined
`in the specification. As explained above, the specification defines “hearing
`correction filter.” Ex. 1001, 2:65–3:15. The specification also provides a
`definition of “incremental hearing correction”:
`As used herein, the term “incremental hearing correction” refers
`to a collection of acoustic configuration settings for hearing aid
`202 (such as a hearing aid profile described above), which are
`used by processor 210 within hearing aid 202 to shape acoustic
`signals to correct for a user’s hearing loss. Each of the
`incremental hearing corrections represents an intermediate
`hearing adjustment to provide a modulated output signal having
`a level that is within a range between an uncompensated output
`level and the desired output level. In one embodiment, the
`incremental hearing corrections can be formed by applying one
`or more hearing correction filters to a selected hearing aid profile
`to produce the intermediate hearing aid profiles.
`Id. at 3:24–36. Taking these definitions together, we construe incremental
`hearing correction filter to be a hearing correction filter (as construed above)
`that represents an intermediate hearing adjustment to provide a modulated
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`output signal having a level that is within a range between an
`uncompensated output level and the desired output level.
`Patent Owner responds that Petitioner’s proposal “eliminates the
`requirement that the filter is applied to the hearing aid profile, seeking to
`divorce the term from its context.” Prelim. Resp. 16. Patent Owner
`proposes an alternative construction, namely, “a hearing correction filter
`applied to the selected hearing aid profile to provide a modulated output
`signal having a level that is within a range between an uncompensated
`output level and the desired output level.” Id. As explained in our
`construction of “hearing correction filter,” above, Petitioner proposes that
`hearing correction filters apply to hearing aid profiles rather than modulated
`signals output from such profiles. See Pet. 14–15. As we note above,
`however, the claims themselves expressly recite what the hearing correction
`filters apply to. Thus, we reject Patent Owner’s argument as to “incremental
`hearing correction filter” for the same reasons we reject Petitioner’s
`argument as to “hearing correction filter.”
`
`B. Asserted Grounds of Unpatentability
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the claimed subject matter and the prior art are “such that the
`subject matter as a whole would have been obvious at the time the invention
`was made to a person having ordinary skill in the art to which said subject
`matter pertains.” We resolve the question of obviousness on the basis of
`underlying factual determinations, including: (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of skill in the art; and (4) objective evidence of
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`nonobviousness, i.e., secondary considerations.3 See Graham v. John Deere
`Co. of Kansas City, 383 U.S. 1, 17–18 (1966).
`
`
`1. Level of Skill in the Art
`Petitioner contends that a person of ordinary skill in the art “would
`have been someone with a bachelor’s degree in electrical or computer
`engineering, or the equivalent, and at least two years of experience in audio
`signal processing for audiological products” and that “[g]raduate education
`could substitute for work experience, and additional work
`experience/training could substitute for formal education.” Pet. 11 (citing
`Ex. 1008 ¶¶ 22–28) (emphasis added). Petitioner relies on the Atlas
`Declaration, which states that a skilled artisan “would have had a B.S.
`degree in electrical or computer engineering, or the equivalent, and at least
`two years of experience in hearing aid systems.” Ex. 1008 ¶ 28 (emphasis
`added).
`Patent Owner points out that the statements of relevant work
`experience by Petitioner (signal processing for audiological products) and
`Dr. Atlas’s (hearing aid systems) are “slightly different” and concludes that
`there is no evidence supporting Petitioner’s proposed level of skill. Prelim.
`Resp. 18–19.
`It is not necessary to resolve the apparent dispute to reach a
`determination on the merits, since we find that the level of ordinary skill in
`the art is reflected by the prior art of record. Okajima v. Bourdeau, 261 F.3d
`
`
`3 The record does not include allegations or evidence of objective indicia of
`nonobviousness.
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`1350, 1355 (Fed. Cir. 2001) (the prior art itself can reflect the appropriate
`level of skill in the art).
`
`
`2. Alleged Obviousness over Fichtl, Mangold, and Bisgaard
`Petitioner contends that claims 1–5 and 16 would have been obvious
`over Fichtl, Mangold, and Bisgaard. Pet. 18–45. For the reasons given
`below, Petitioner has demonstrated a reasonable likelihood that it would
`prevail with respect to this challenge.
`
`
`a. Overview of Fichtl
`Fichtl describes a hearing device that implements an acclimatization
`algorithm. Ex. 1003, Abstract. Acclimatization is the process by which,
`over the course of several weeks to half a year, the intensity of a hearing
`device gradually is increased from an initially low intensity to a target
`intensity. Id. at 1:19–26.
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`Fichtl’s hearing device is depicted in Figure 1, reproduced below:
`
`
`
`Figure 1 is a schematic diagram of hearing device 1. Id. at 3:1–2. Sounds
`are picked up by microphone 2, processed by signal processor 9, and
`presented to hearing device user 10 by receiver 3. Id. at 3:23–25. User 10
`controls the magnitude of amplification using volume control 4. Id. at 3:25–
`26. Controller 6 sets hearing device parameters when hearing device 1 is
`switched on or when volume control 4 is actuated. Id. at 3:28–30. Non-
`volatile memory 7 stores parameters when hearing device 1 is off. Id. at
`3:30–32. Controller 6 executes an acclimatization algorithm. Id. at 3:32–34.
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`Fichtl’s acclimatization algorithm is described with respect to
`Figure 2, reproduced below:
`
`
`
`Figure 2 is a graph that depicts how an audio processing parameter (“APP”)
`is changed over time in a hearing aid. Id. at 3:3–5. Examples of APP
`include volume, treble, and noise cancelling. Id. at 3:42–47.
`At time A, an audiologist (11 in Figure 1) programs into memory 7
`initial power-on value iPOV and target power-on value tPOV for the APP,
`for example tPOV being 10 dB higher than iPOV. Id. at 3:42–48. At time
`B, user 10 switches the hearing aid on and the APP is set to iPOV. Id. at
`3:49–53. An intermediate value of APP, X, is increased at time C. Id. at
`3:54–57. At time D, the user selects the APP to be two steps higher than the
`original audio processing parameter, APPref, and X is increased faster. Id. at
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`3:58–61. At time E, the user selects the APP to be one step lower than
`APPref, and X is increased more slowly. Id. at 3:62–65.
`The user switches the hearing aid off at time F and intermediate value
`X is stored in memory 7 as the first replacement power-on value rPOV.
`Id. at 3:66–4:4. The user switches the hearing aid back on at time G and the
`APP is set to rPOV and intermediate value X is increased. Id. at 4:5–7. At
`time H, intermediate value X reaches tPOV and is not changed anymore, at
`which time the acclimatization phase ends. Id. at 4:8–11. When the user
`switches the hearing aid off, as at time I, the value stored in memory 7,
`second replacement value rPOV2, is tPOV. Id. at 4:12–15.
`
`
`b. Overview of Mangold
`Mangold describes an auditory prosthesis (hearing aid) with
`datalogging capability. Ex. 1007, Abstract. Figures 2 and 3, reproduced
`below, illustrate an example:
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`Figure 2 is a functional block diagram of remote-controlled programmable
`hearing aid 4 and Figure 3 is a functional block diagram of remote control
`unit 6 for use with hearing aid 4. Id. at 2:42–48.
`Hearing aid 4 includes microphone 10, signal processor 12 with slave
`memory, speaker 14, and programmable memory with logic 20, which
`includes logic for datalogging capability. Id. at 3:22–29. Remote control 6
`is worn on a user’s wrist or placed in a pocket. Id. at 3:38–40. Remote
`control 6 includes programmable block 26 with an automatic program
`selector (“APS”) to automatically select a program in response to the
`ambient noise level as detected by microphone 32. Id. at 3:49–52.
`“Programs,” as used in Mangold, are “one or more of: specific settings of a
`limited number of parameters; selection of a processing configuration of
`strategy; modification of a prosthesis control program; or setting of
`coefficients in a prosthesis program.” Id. at 2:28–33. The selected program
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`is transmitted to the hearing aid where the program is entered. Id. at 3:57–
`59.
`
`In its datalogging capability, memory 20 of hearing aid 4 records
`environmentally selected events, such as selection of programs based on a
`current sound environment. Id. at 1:40–49. After a period of time, the
`dispenser of the hearing aid can connect to the hearing aid, read out the data
`stored in memory 20, and determine a new set of operating parameters for
`the hearing aid based on the degree to which the user has used the original
`programs. Id. at 2:3–11.
`In an alternative embodiment (depicted in Figures 4 and 5), the
`functions of datalogging unit 20 of the hearing aid of Figure 2 are placed in
`programmable APS with logic unit 26 in remote control unit 9 of Figure 5.
`Id. at 4:11–21.
`
`
`c. Overview of Bisgaard
`Bisgaard describes a hearing aid intended to be used in a subscription
`arrangement. Ex. 1006, 1:32–38. The hearing aid is programmed by an
`audiologist with programs and data necessary for operation and also a time
`limit value that can be set for a subscription period. Id. at 2:1–5, 6:33–41.
`The subscription period can correspond to a “habituation” period, during
`which the hearing aid undergoes a gradual transition from no compensation
`to full compensation for the user’s hearing loss. Id. at 2:48–56, 6:41–44.
`After the subscription period expires, the user is notified by an alarm (e.g., a
`series of audio signals) and the hearing aid can be deactivated. Id. at 2:15–
`22, 6:45–57.
`
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`
`IPR2017-00781
`Patent 8,654,999 B2
`
`
`d. Claims 1 and 2
`Petitioner cites Fichtl for the structural aspects of claim 1, including
`“a microphone to convert sound into electrical signals” (Fichtl’s
`microphone 2), “a speaker to output audible sound” (Fichtl’s output
`transducer 3), “a processor” (Fichtl’s controller 6), and “a memory to store
`instructions” (Fichtl’s non-volatile memory 7). Pet. 18–20.
`As to instructions, executed by the processor, causing 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,”
`Petitioner cites a combination of Fichtl and Mangold. As explained above,
`Fichtl describes an algorithm for changing over time an APP corresponding
`to a user’s hearing loss. Ex. 1003, 3:35–4:15. Petitioner contends that
`Fichtl’s algorithm would be applied to multiple APPs in a collection that
`would correspond to a “hearing aid profile,” as recited in claim 1. Pet. 22.
`As Petitioner notes (id.), Fichtl describes processing a signal “based on
`audio processing parameters,” and that the controller is “adapted to set such
`parameters, for example, when the hearing device 1 is switched on or when
`the volume control 4 is actuated,” Ex, 1003, 3:23–30, suggesting that
`Fichtl’s system processes multiple APPs as part of a collection.
`Petitioner further contends that Mangold describes programming
`multiple hearing aid profiles, such as those described in Fichtl, and receiving
`a selection of a profile from among those stored to compensate for a user’s
`hearing impairment. Pet. 22–23 (citing Ex. 1007, 1:9–29, 2:28–33, 4:47–
`58). As noted above, Mangold’s stored programs include specific settings of
`parameters, processing configuration or strategy, and coefficients for a
`
`21
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`IPR2017-00781
`Patent 8,654,999 B2
`
`prosthesis program, Ex. 1007, 2:28–33, which we agree correspond to
`Fichtl’s APPs and claim 1’s “hearing aid profiles.” Petitioner further argues
`that Mangold describes storing multiple programs corresponding to multiple
`possible sound environments the user might encounter, and that the hearing
`aid receives a selection from among those programs. Pet. 22–23 (citing
`Ex. 1007, 1:40–49, 3:13–15). According to Petitioner, it would have been
`obvious to store collections of APP values in Fichtl’s memory 7 and for
`Fichtl’s controller to receive a selection from among those collections or
`profiles in order to better compensate for the user’s hearing loss in a
`particular sound environment. Id. Petitioner points to disclosure in Fichtl
`identifying benefits of its acclimatization algorithm, including greater
`comfort and reduction in the number of visits to an audiologist. Id. at 32–33
`(citing Ex. 1003, 1:19–34). We agree that these benefits would be
`applicable to the hearing aid system of Mangold.
`Petitioner cites Fichtl for instructions that cause the processor to:
`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,
`
`and
`
`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,
`
`22
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`
`
`IPR2017-00781
`Patent 8,654,999 B2
`
`as recited in claim 1. Petitioner contends that, because “Fichtl’s
`acclimatization algorithm corresponds to adjustments applied by controller 6
`to the collection of APPs of processor 9 to reduce the level of correction
`provided to the hearing device user by application of the hearing aid
`profile,” the algorithm comprises a sequence of hearing correction filters.
`Pet. 26. Petitioner further contends that, because the algorithm outputs
`intermediate APP values with reduced amplitudes relative to tPOV, the
`algorithm reduces 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,” as recited in
`claim 1. Id. at 27–28. According to Petitioner and Dr. Atlas, applying
`Fichtl’s acclimatization algorithm to modulated electrical signals output by a
`hearing aid profile or to the hearing aid profile itself would have been
`mathematically equivalent. Id. at 28–29; Ex. 1008 ¶¶ 123–124.
`Petitioner further argues that a subsequent APP value, e.g., the second
`APP value rPOV shown in Ficthl’s Figure 2, is the next in a sequence of
`incremental hearing correction filters, and is designated to follow the initial
`APP value iPOV. Pet. 30. According to Petitioner, iPOV is “a first one of a
`sequence of incremental hearing correction filters” and rPOV is “a second
`one of the sequence of incremental hearing correction filters,” as recited in
`claim 1. Id.
`Relying on its proposed construction of “hearing correction filter,”
`Patent Owner responds that Petitioner does not show a hearing correction
`filter that comprises a collection of filters. Prelim. Resp. 20–21. According
`to Patent Owner, “[w]hile Fichtl may describe that the APP increases over
`time until it reaches tPOV, Fichtl fails to describe that the gradual increases
`
`23
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`
`
`IP
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