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`
`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
`_________________
`
`
`Patent Owner Response
`
`
`
`
`
`
`

`

`Table of Contents
`
`
`
`
`I.
`
`Introduction .......................................................................................... 1
`
`II. Asserted Grounds of Unpatentability ................................................... 3
`
`III. Overview of the ’999 Patent ................................................................. 4
`
`A.
`
`B.
`
`C.
`
`Background .................................................................................4
`
`Independent Claims .....................................................................7
`
`Prosecution History of the ’999 Patent .......................................9
`
`IV. Claim Construction ............................................................................. 13
`
`A.
`
`Broadest Reasonable Interpretation of “Hearing Correction
`Filter” ....................................................................................... 14
`
`V.
`
`Claims 1-5 and 16 Are Not Rendered Obvious by Fichtl in view of
`Mangold and Bisgaard ........................................................................ 19
`
`A. Overview of Distinctions for the Combination of Fichtl,
`Mangold and Bisgaard ............................................................ 19
`
`Fichtl in view of Mangold and Bisgaard does not disclose
`“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,” as
`recited in claim 1 ...................................................................... 24
`
`Fichtl in view of Mangold and Bisgaard does not disclose
`“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
`
`ii
`
`B.
`
`C.
`
`
`
`

`

`
`
`level that is greater than the first level and less than the level
`to compensate for the hearing impairment of the user,” as
`recited in claim 1 ...................................................................... 30
`
`VI. Claim 18 Is Not Rendered Obvious by Fichtl in view of Mangold,
`Bisgaard and Sacha ............................................................................. 34
`
`VII. Claims 6-9 and 17 Are Not Rendered Obvious by Fichtl in view of
`Sacha, Mangold and DE961 ............................................................... 35
`
`A.
`
`Fichtl in view of Mangold and Bisgaard does not disclose
`“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,” as recited in claim 6 ......................... 35
`
`VIII. Claim 19 Is Not Rendered Obvious by Fichtl in view of Sacha,
`Mangold Bisgaard and DE961 .......................................................... 36
`
`IX. Dr. Atlas’ Declaration is Entitled to No Weight ................................ 37
`
`X.
`
`Conclusion .......................................................................................... 39
`
`
`
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`
`
`
`
`
`
`
`iii
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`

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`
`
`Table of Exhibits
`
`Exhibit No.
`
`Document
`
`Comparison of the Petition arguments and Les Atlas
`Declaration for certain claim limitations
`
`Highlighted version of Les Atlas Declaration
`
`Expert Declaration of Clyde “Kip” Brown, Jr., P.E.
`
`CV of Clyde “Kip” Brown, Jr., P.E.
`
`Deposition Transcript of Les Atlas, September 27, 2017
`
`2001
`
`2002
`
`2003
`
`2004
`
`2005
`
`
`
`
`
`iv
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`

`

`
`
`I.
`
`Introduction
`
`K/S HIMPP1 (“HIMPP” or “Petitioner”) filed a Petition for Inter Partes
`
`Review on January 27, 2017, seeking review of claims 1-9 and 16-19 of U.S.
`
`Patent No. 8,654,999 (“the ’999 Patent”). On July 27, 2017, the Board instituted
`
`Inter Partes Review on claims 1–9 and 16-19 (“Decision”).
`
`The ’999 patent addresses a system where the audiologist examines a patient
`
`to determine the final hearing correction that is required by the hearing aid. Based
`
`on this determination, a final hearing aid profile is determined. However, the
`
`patient is unable to accept a full implementation of the hearing correction when
`
`first using the hearing aid that is set to a fully corrected hearing aid profile (an
`
`abrupt, fully corrected profile can be “traumatic”). (Exh. 1001, ’999 patent at 1:58-
`
`59). Accordingly, the profile is incrementally improved to approach the fully
`
`corrected hearing aid profile. Exh. 2003, Brown Dec. at ¶ 18. The ’999 patent
`
`teaches that the use of incremental corrections applied in a sequence over a period
`
`of time allow a user to ease into the transition from uncompensated hearing to full
`
`
`1 Petitioner also listed certain of its members and affiliates as additional real parties
`
`in interest: GN Hearing A/S (formerly GN Resound A/S) and GN Store Nord A/S;
`
`IntriCon Corporation; Sivantos GmbH and Sivantos Inc.; Sonova Holding AG and
`
`Sonova AG (formerly Phonak AG); Starkey Laboratories, Inc. (aka Starkey
`
`Hearing Technologies); Widex A/S; and William Demant Holding A/S.
`
`
`
`1
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`

`

`
`
`hearing correction. Exh. 1001, ’999 patent at 3:2-7; Exh. 2003, Brown Dec. at ¶¶
`
`19-23. Each hearing correction filter (“HCF”) is applied incrementally in sequence
`
`to slowly introduce the correction provided, by decreasing the attenuation of the
`
`signal to the user, until the hearing aid profile is fully adapted to provide full
`
`hearing correction. Exh. 1001, ’999 patent at 3:10-15.
`
`Rather than a system where the final hearing correction is known and
`
`attenuated using different collections of filters to ease a user into the appropriate
`
`hearing correction, Petitioner proposes a challenge to the claims based on coarsely
`
`implemented technology described in the primary reference to Fichtl2. Fichtl,
`
`provides a system that uses coarse and non-sequential adjustments of volume based
`
`on the user’s environment and use, in contrast to the current claims which are
`
`directed to the goal of achieving proper hearing correction. The Petition combines
`
`this older, unrelated and non-filter based technology with further inapposite
`
`references. As will be discussed further below, Petitioner has failed to show that
`
`the system described by Fichtl, even when viewed in light of Mangold or other
`
`secondary references, teaches or suggests the novel aspects of the challenged
`
`independent claims including (1) applying an “incremental hearing correction
`
`filter” to a hearing aid profile (independent claims 1 and 6), and (2) “sequential”
`
`application of an incremental hearing correction filter, as recited in independent
`
`2 U.S. Patent No. 8,787,603 to Fichtl et al. (“Fichtl”) (Exh. 1003).
`
`
`
`2
`
`

`

`
`
`claim 1 of the ’999 patent. Neither of these features is taught or suggested by the
`
`selected references applied by the Petition. Accordingly, the Board should confirm
`
`the patentability of independent claims 1 and 6, as well as claims 2-5, 7-9, and 16-
`
`19 each depending from either of independent claims 1 and 6 of the ’999 patent.
`
`II. Asserted Grounds of Unpatentability
`
`The Board instituted trial in IPR2017-00781 on the following grounds of
`
`unpatentability:
`
`• Claims 1-5 and 16 are unpatentable under 35 U.S.C. § 103 as obvious over
`
`Fichtl in view of Mangold3 and Bisgaard.4
`
`• Claim 18 is unpatentable under 35 U.S.C. § 103 as obvious over Fichtl in
`
`view of Mangold, Bisgaard and Sacha.5
`
`• Claims 6-9 and 17 are unpatentable under 35 U.S.C. § 103 as obvious over
`
`Fichtl in view of Sacha, Mangold and DE961.6
`
`• Claim 19 is unpatentable under 35 U.S.C. § 103 as obvious over Fichtl in
`
`view of Sacha, Mangold, Bisgaard and DE961.
`
`
`3 U.S. Patent No. 4,972,487 to Mangold et al. (“Mangold”) (Exh. 1007).
`
`4 U.S. Patent No. 6,741,712 to Bisgaard (“Bisgaard”) (Exh. 1006).
`
`5 U.S. Patent Publication No. 2003/0215105 to Sacha (“Sacha”) (Exh. 1004).
`
`6 German Patent Publication No. DE19542961 to ZÖLS (“DE961”) (Exh. 1009).
`
`
`
`3
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`

`

`
`
`III. Overview of the ’999 Patent
`
`A. Background
`
`U.S. Patent No. 8,654,999 (“the ’999 patent”) is entitled “SYSTEM AND
`
`METHOD OF PROGRESSIVE HEARING DEVICE ADJUSTMENT” and issued
`
`on February 18, 2014 from Application No. 13/085,016, which was filed on April
`
`12, 2011. 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.
`
`The ’999 patent discloses that “for some users, transitioning from not
`
`wearing a hearing aid to wearing a hearing aid can be traumatic. In particular,
`
`sounds that the user is not accustomed to hearing can suddenly be made audible to
`
`the user by the hearing aid.” Exh. 1001, ’999 patent at 1:58-61; Exh. 2003, Brown
`
`Dec. at ¶ 18. “Some individuals, such as those wearing hearing aids for the first
`
`time, can experience psychological distress when hearing is restored to a normal
`
`level after years of suffering from hearing loss.” Exh. 1001, ’999 Patent at 1:62-65;
`
`Exh. 2003, Brown Dec. at ¶ 18. The invention of the ’999 patent overcomes these
`
`challenges by providing an incremental or progressive collection of filters for
`
`audio signals, applying the incremental collection of filters gradually to adjust the
`
`user’s experience from an uncompensated hearing level to a fully compensated
`
`hearing level. Exh. 1001, ’999 patent at 2:26-35; Exh. 2003, Brown Dec. at ¶ 18.
`
`
`
`4
`
`

`

`
`
`In particular, the ’999 patent applies a series of incremental HCFs to a
`
`hearing aid profile to attain an appropriate level of hearing correction for the user.
`
`Exh. 1001, ’999 patent at 2:66-3:2; Exh. 2003, Brown Dec. at ¶ 19. The group of
`
`incremental HCFs are applied in an ordered sequence over a period of time so that
`
`the audiologist and/or user can predictably advance the rate of sound introduction.
`
`Exh. 1001, ’999 patent at 3:2-5; Exh. 2003, Brown Dec. at ¶ 24. As such, a first
`
`HCF attenuates the hearing aid profile by a pre-determined amount, limiting the
`
`adjustment provided by the hearing aid. Exh. 1001, ’999 patent at 3:7-10; Exh.
`
`2003, Brown Dec. at ¶ 24. Each subsequent HCF in the sequence, upon being
`
`applied, decreases the attenuation of the hearing aid profile provided by a
`
`preceding HCF until the sequence is complete and the hearing aid profile is fully
`
`applied to provide the intended hearing correction for the user. Exh. 1001, ’999
`
`patent at 3:10-15; Exh. 2003, Brown Dec. at ¶ 24.
`
`In an example embodiment of the ’999 patent, the hearing aid communicates
`
`with a computing device via a transceiver. Exh. 1001, ’999 patent at 5:49-56; FIG.
`
`2 (reproduced below); Exh. 2003, Brown Dec. at ¶ 25.
`
`
`
`5
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`

`

`
`
`Exh. 1001, Fichtl at FIG. 2
`
`
`
`The computing device may store a plurality of hearing aid profiles and HCFs
`
`and may selectively provide a desired hearing aid profile and/or HCF to the
`
`hearing aid. Exh. 1001, ’999 patent at 6:36-41; Exh. 2003, Brown Dec. at ¶ 25. The
`
`hearing aid initially attenuates the hearing aid profile to a first pre-determined
`
`correction, via a first HCF, and after a period of time has passed, or a trigger is
`
`received (for example, from the computing device), the hearing aid may increment
`
`
`
`6
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`

`

`
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`the attenuation to the hearing aid profile to a second pre-determined incremental
`
`correction, via a second HCF, either obtained from its memory or received from
`
`the computing device. Exh. 1001, ’999 patent at 5:3-9; 7:9-10; 9:59-62; Exh. 2003,
`
`Brown Dec. at ¶ 25. The hearing aid continues attenuating the hearing aid profile
`
`with the pre-determined incremental corrections, via subsequent HCFs, to provide
`
`progressively enhanced hearing sensitivity until the desired correction level of the
`
`selected hearing aid profile is reached. Exh. 1001, ’999 patent at 5:9-14; Exh.
`
`2003, Brown Dec. at ¶ 25.
`
`The hearing aid may also provide an alert indicating to the user that the
`
`hearing correction is at desired levels and that the correction process is complete.
`
`Exh. 1001, ’999 patent at 10:55-59; Exh. 2003; Brown Dec. at ¶ 26. The alert may
`
`be audible or sent to the computing device for display on the computing device’s
`
`display interface. Exh. 1001, ’999 patent at 10:59-62; Exh. 2003; Brown Dec. at ¶
`
`26.
`
`B.
`
`Independent Claims
`
`The ’999 patent has three independent claims (1, 6, and 10). Independent
`
`claims 1 and 6 are challenged in this Petition. Independent claim 1 is directed to a
`
`hearing aid device that is configured to receive a hearing aid profile that modulates
`
`electrical signals to compensate for a hearing impairment of a user and sequentially
`
`applies an incremental HCF to the hearing aid profile until a speaker outputs an
`
`
`
`7
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`

`

`
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`alert indicating application of a final incremental HCF. Exh. 2003, Brown Dec. at
`
`¶¶ 24 and 27.
`
`Independent claim 6 is directed to a computing device that selects a hearing
`
`aid profile, applies a first HCF to the hearing aid profile and when an amount of
`
`time during which the first HCF is applied exceeds a threshold, applies a second
`
`HCF to the hearing aid profile.
`
`As an example, Claim 1 is provided below:
`
`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;
`
`8
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`
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`

`

`
`
`
`
`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; 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.
`
`
`Prosecution History of the ’999 Patent
`
`C.
`
`Original claim 1, as filed, recited:
`
`1. A hearing aid comprising:
`
`
`
`
`
`a microphone to convert sound into an electrical signal;
`
`a processor coupled
`
`to
`
`the microphone,
`
`the processor
`
`configured to apply a selected one of a sequence of incremental
`
`hearing corrections to the electrical signal to produce a modulated
`
`output signal to at least partially compensate for a hearing impairment
`
`of a user; and
`
`
`
`a speaker coupled to the processor and configured to convert
`
`the modulated output signal into an audible sound.
`
`Exh. 1002, Application No. 13/085,016 (April 12, 2011).
`
`
`
`9
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`

`

`
`
`In an Office Action dated April 4, 2013, the Examiner rejected the claims
`
`based on U.S. Patent Application Publication 2005/0036637 to Janssen under 35
`
`U.S.C. § 102(b) and 35 U.S.C. § 103(a). Exh. 1002, Appl. No. 13/085,016, Office
`
`Action, April 4, 2013.
`
`On May 21, 2013, the Applicant amended claim 1 as follows:
`
`1. A hearing aid comprising:
`
`
`
`
`
`
`
`
`
`a microphone to convert sound into an electrical signal;
`
`a speaker to output audible sound;
`
`a processor; and
`
`a memory to store instructions, which when executed by the
`
`processor, cause the processor to:
`
`
`
`coupled to the microphone, the processor configured to
`
`apply a selected first one of a sequence of incremental hearing
`
`corrections to the electrical signals to produce a modulated
`
`output signal to at least partially compensate for a hearing
`
`impairment of a user when output by the speaker; and
`
`
`
`select a second one of the sequence of incremental
`
`hearing corrections in response to receiving a trigger, the
`
`second one being designated to follow the first one in the
`
`sequence of incremental hearing corrections; and
`
`
`
`cause the speaker to output an alert when a final one of
`
`the sequence of incremental hearing corrections is being
`
`applied, the final one being the last hearing correction of the
`
`sequence of incremental hearing corrections. a speaker coupled
`
`
`
`10
`
`

`

`
`
`to the processor and configured to convert the modulated output
`
`signal into an audible sound.
`
`Exh. 1002, Application No. 13/085,016, Response to April 4, 2013 Non-Final
`
`Office Action (May 21, 2013).
`
`On July 26, 2013, the Examiner issued a Final Office Action, issuing
`
`rejections under 35 U.S.C. §§ 112, 102, and 103. The independent claims were
`
`rejected under either § 102 or § 103 based on U.S. Patent Application Publication
`
`No. 2003/0215105 to Sacha or, again, based on Janssen. Exh. 1002, Application
`
`No. 13/085,016, Final Office Action (July 26, 2013).
`
`Subsequently, in a Response dated September 13, 2013, the Applicant filed
`
`amendments to the claim. Amended claim 1 recited:
`
`1. A hearing aid comprising:
`
`
`
`
`
`
`
`
`
`a microphone to convert sound into [[an]] electrical signal;
`
`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 user;
`
`
`
`apply a first one of a sequence of incremental hearing
`
`correction[[s]] to the modulated electrical signals to produce a
`
`
`
`11
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`

`

`
`
`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 to at least partially
`
`compensate for a hearing impairment of a user when output by
`
`the speaker;
`
`
`
`select a second one of the sequence of incremental
`
`hearing correction[[s]] filters in response to receiving a trigger,
`
`the second one being designated to follow the first one in the
`
`sequence of incremental hearing corrections filter and to reduce
`
`the amplitude of the modulated electrical signals produced by
`
`the selected hearing aid profile to a second level that is greater
`
`that 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[[s]] filters is
`
`being applied, the final one being the last hearing correction
`
`filter of the sequence of incremental hearing correction[[s]]
`
`filters.
`
`Exh. 1002, Application No. 13/085,016 Response to July 26, 2013 Final Office
`
`Action (September 13, 2013). Thereafter, on October 2, 2013, the Examiner
`
`allowed the pending claims, renumbered as claims 1-19. Exh. 1002, Application
`
`No. 13/085,016, Notice of Allowance (October 2, 2016).
`
`
`
`12
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`

`
`
`IV. Claim Construction
`
`The ’999 patent provides several express definitions for terms addressed in
`
`the Decision. Specifically, the ’999 patent expressly defines the disputed term
`
`“hearing correction filter.” Exh. 1001, ’999 patent at 2:65-3:2. The Decision set
`
`forth constructions for the following terms:
`
`• “hearing correction filter” – “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.” Decision at 11.
`
`• “incremental hearing correction filter” – “a hearing correction filter
`
`(as construed above)
`
`that represents an
`
`intermediate hearing
`
`adjustment to provide a modulated output signal having a level that is
`
`within range between an uncompensated output level and the desired
`
`level.” Decision at 12-13.
`
`The parties do not appear to dispute the meaning of the term “incremental”
`
`in the context of the claims. The principal dispute is best understood with respect
`
`to the phrase “hearing correction filter.” Based on the specific definition provided
`
`in the specification, the express definition of hearing correction filter should not be
`
`disturbed. As explained more fully below, when these terms are properly construed
`
`in accordance with the specification, this proceeding would be resolved in favor of
`
`
`
`13
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`

`

`
`
`patentability of all claims. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200
`
`F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that are in
`
`controversy and only to the extent necessary to resolve the controversy.”).
`
`A. Broadest Reasonable Interpretation of “Hearing Correction
`
`Filter”
`
`As noted above, the Board construed “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. (Decision at 11).
`
`As discussed below, however, the broadest reasonable interpretation of “hearing
`
`correction filter” in light of the specification is “a collection of filters 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.” See e.g., Exh. 1001, ’999 patent at
`
`2:65-3:7 (emphasis added). The specification provides a clear definition that
`
`“hearing correction filter” is a collection of filters 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. Exh. 1001, ’999 patent at 2:65-66. There is
`
`no evidentiary support indicating a basis to deviate from this definition,
`
`particularly when the law is clear that “the inventor’s lexicography governs.”
`
`Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005).
`
`The Decision acknowledges that:
`
`
`
`14
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`

`
`
`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 (Decision at
`
`9).
`
`The Decision then explains that, when understood in context, a hearing correction
`
`filter is understood to be a single filter that is a member of a collection. Decision at
`
`9 (stating that “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.”)
`
`(emphasis added). The Decision identifies passages that allegedly support a
`
`different context to deviate from the express definition set forth in the
`
`specification. As shown below, however, the passages identified in the Decision, as
`
`properly understood, do not support changing the express definition for hearing
`
`correction filter provided in the specification.
`
`
`
`First, the Decision identifies the following general description of hearing
`
`correction filters:
`
`The 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…. 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 provided by (decreases the attenuation applied to) the
`
`hearing aid profile to some degree, until the sequence is complete and
`15
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`

`
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`the hearing aid profile is fully applied to provide the desired hearing
`
`correction for the user. (Decision at 9-10) (citing Exh. 1001, ’999
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`patent at 3:2-15).
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`The Decision recognizes that the patent includes the concept that an HCF is part of
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`a group (a collection) of HCFs and that each individual HCF is applied in a
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`sequence. The above passage merely describes how a larger collection contains
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`smaller collections. This straightforward proposition was accepted by Dr. Atlas.
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`Exh. 2005, Atlas Transcript at 134:10-14 (nothing unusual about saying a filter
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`comprises multiple other filters.); see also Exh. 2003, Brown Dec. at ¶ 31. Thus, it
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`provides no reason to depart from the patentee’s express definition.
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`Second, the Decision references a passage relied on by Patent Owner.
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`Further it should be understood that the filter or correction used to
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`achieve the correction lines and ultimately the hearing aid profile is
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`composed of a plurality of coefficients, parameters, or other settings
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`that are applied by a processor of the hearing aid to alter various
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`characteristics of the sounds to modulate them to compensate for the
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`user’s hearing impairment. (Decision at 10) (citing Exh. 1001, ’999
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`patent at 5:42-48).
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`The Decision concludes that the passage “describes a single filter that is composed
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`of multiple coefficients or parameters.” Decision at 10. To the extent that passage
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`provides any context to how “hearing correction filter” is used in the specification,
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`it supports the express definition in the specification. That passage, therefore,
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`provides no additional context that a hearing correction filter is properly
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`understood to be anything other than a collection of filters as expressly stated in
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`the specification. Exh. 2003, Brown Dec. at ¶ 32.
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`Third, the Decision references claim 2. Based on the language of claim 2,
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`the Decision concludes that an HCF, as recited in claim 1, “need only include a
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`single acoustic configuration setting.” Decision at 10-11. Claim 2 recites:
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`2. The hearing aid of claim 1, wherein each of the incremental hearing
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`correction filters comprises a collection of acoustic configuration
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`settings configured to modulate the electronic signal to a level that is
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`within range between an uncompensated hearing level of the user and
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`the level to compensate for the hearing impairment of the user.
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`Understood in context, each incremental hearing correction filter includes “a
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`collection of acoustic configuration settings.” This language does not provide any
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`reason that the express definition of hearing correction filter should be altered in
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`any way; rather, this supports the express definition because each filter includes “a
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`collection,” not a single filter. This claim merely further narrows the scope of what
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`the HCF comprises. Exh. 2003, Brown Dec. at ¶ 33.
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`Finally, the Board notes that claim 1 provides that “the hearing correction
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`filter is applied to the electrical signals already modulated by the hearing aid
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`profile.” Decision at 11-12. Claim 1 recites “electrical signals” in various
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`limitations including “convert sound into electrical signals,” “the selected hearing
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`aid profile configured to modulate the electrical signals,” “apply … incremental
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`hearing correction filters to the modulated electrical signals,” and “produce a
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`modulated output signal to reduce the amplitude of the modulated electrical
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`signals.” In context, there is only one output signal, and that results from the
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`hearing aid profile. The HCF, properly construed to be a collection of filters for a
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`hearing aid profile, includes the settings for the hearing aid profile to produce the
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`modulated output signal. As Petitioner conceded, without dispute from Patent
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`Owner, this is what a person of skill in the art would understand as recited by claim
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`1. Decision at 11, 13 (noting that “the claims themselves expressly recite what the
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`hearing correction filters apply to”). Further, if claim 1 is to be interpreted as
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`proposed in the Decision, wherein the hearing correction filter is applied to signals
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`that have already been modulated, the express definition of HCF in the
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`specification would remain appropriate because the “hearing aid profile is
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`configured to modulate the electrical signals to a level to compensate for a hearing
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`impairment of a user” and the microphone-based electrical signals, as converted
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`into electrical signals, are also modulated electrical signals.
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`As such, the interpretation of “hearing correction filter” as adopted by the
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`Board must be modified to be “a collection of filters applied by a processor to a
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`hearing aid profile to reduce the level of correction provided to a user by
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`application of the hearing aid profile” to be consistent with the broadest reasonable
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`interpretation of the term in light of the ’999 patent specification. This is the
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`construction that “most naturally aligns with the patent’s description of the
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`invention.” Ormco 498 F.3d at 1313 (quoting Phillips v. AWH Corp., 415 F.3d
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`1303, 1316 (Fed. Cir.2005) (en banc)).”
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`V. Claims 1-5 and 16 Are Not Rendered Obvious by Fichtl in view of
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`Mangold and Bisgaard
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`A. Overview of Distinctions for the Combination of Fichtl, Mangold
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`and Bisgaard
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`The combined teachings of Fichtl, Mangold and Bisgaard do not apply
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`“hearing correction filters,” let alone “incremental hearing correction filters,” to a
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`hearing aid, nor do they apply “a sequence of incremental hearing correction
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`filters.” Specifically, Fichtl, Mangold, and Bisgaard, alone or in combination, fail
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`to teach or suggest at least the following limitations:
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`(1) “apply a first one of a sequence of incremental hearing correction filters
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`to the modulated electrical signals to produce a modulated output signal to reduce
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`the amplitude of the modulated electrical signals produced by the selected hearing
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`aid profile to a first level that is less than a level to compensate for the hearing
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`impairment of the user” and
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`(2) “select a second one of the sequence of incremental hearing correction
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`filters in response to receiving a trigger, the second one being designated to follow
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`the first one in the sequence of incremental hearing correction filters and to reduce
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`the amplitude of the modulated electrical signals produced by the selected hearing
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`aid profile to a second level that is greater than the first level and less than the level
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`to compensate for the hearing impairment of the user.”
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`The claims require both; Fichtl, Mangold, and Bisgaard teach neither. Exh. 2003,
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`Brown Dec. at ¶ 34.
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`Fichtl is directed to acclimatization of a user of a hearing device to the
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`hearing device by allowing the user to control a coarse volume adjustment of the
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`hearing device to increase the volume of the hearing device over several months.
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`Exh. 1003, Fichtl at 2:62-67, Abstract; Exh. 2001, Brown Dec. at ¶ 35.
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`Figures 1 and 2 of Fichtl are reproduced below:
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`Exh. 1001, Fichtl at FIGs. 1, 2
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`
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`With reference to figures 1 and 2 of Fichtl (above), Fichtl describes a user
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`changing the volume over time in a hearing device as follows:
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`• At time “A,” a fitter programs an initial power-on value iPOV
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`for the audio processing parameter APP as well as a target
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`power-on value tPOV. The target power-on value tPOV is, for
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`example, 10 dB higher than the initial power-on value iPOV.
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`• At time “B,” the hearing device user 10 switches on the hearing
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`device 1. The initial power-on-value iPOV is read from the
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`non-volatile memory 7. The audio-processing parameter APP is
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`set to the initial power-on value i