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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
`_________________
`
`
`Declaration of Clyde “Kip” Brown
`In Support of Patent Owner Response
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`
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`1
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`Table of Contents
`Introduction .................................................................................................. 5
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`Qualifications ............................................................................................... 5
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`My Understanding of the Obviousness Standard in Determining
`Patentability ................................................................................................. 7
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`Basis of Opinion ........................................................................................... 8
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`Overview of the ’999 Patent ...................................................................... 10
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`I.
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`II.
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`III.
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`IV.
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`V.
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`A. Background ........................................................................................... 10
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`B. Independent Claims .............................................................................. 17
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`C. Prosecution History of the ’999 Patent ................................................. 18
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`VI.
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`Claim Construction .................................................................................... 19
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`VII.
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`Claims 1-5 and 16 Are Patentable .............................................................. 21
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`A. Overview of Distinctions for the Combination of Fichtl, Mangold
`and Bisgaard .......................................................................................... 21
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`B. Fichtl in view of Mangold and Bisgaard does not disclose “apply a
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`first one of a sequence of incremental hearing correction filters to
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`the modulated electrical signals to produce a modulated output
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`signal to reduce the amplitude of the modulated electrical signals
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`produced by the selected hearing aid profile to a first level that is
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`less than a level to compensate for the hearing impairment of the
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`user,” as recited in claim 1 ..................................................................... 28
`2
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`C. Fichtl in view of Mangold and Bisgaard does not disclose “select a
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`second one of the sequence of incremental hearing correction
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`filters in response to receiving a trigger, the second one being
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`designated to follow the first one in the sequence of incremental
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`hearing correction filters and to reduce the amplitude of the
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`modulated electrical signals produced by the selected hearing aid
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`profile to a second level that is greater than the first level and less
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`than the level to compensate for the hearing impairment of the
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`user,” as recited in claim 1 ..................................................................... 33
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`VI.
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`VII.
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`Fichtl in view of Mangold, Bisgaard and Sacha Fails to Teach or
`Suggest the Limitations of Claim 18 .......................................................... 36
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`Fichtl in view of Sacha, Mangold, and DE961 Fails to Teach or
`Suggest All the Limitations of Claims 6-9 and 17 ..................................... 37
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`VIII. Fichtl in view of Sacha, Mangold, Bisgaard, and DE961 Fails to
`Teach or Suggest All the Limitations of Claim 19 .................................... 38
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`3
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`Table of Exhibits
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`Exhibit No.
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`Document
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`2001
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`2002
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`2003
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`2004
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`2005
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`Comparison of the Petition arguments and Les Atlas
`Declaration for certain claim limitations
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`Highlighted version of Les Atlas Declaration
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`Expert Declaration of Clyde “Kip” Brown, Jr., P.E.
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`CV of Clyde “Kip” Brown, Jr., P.E.
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`Deposition Transcript of Les Atlas, September 27, 2017
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`4
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`Introduction
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`I.
`I, Clyde "Kip" Brown, declare as follows:
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`1.
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`I am over 18 years of age. I have personal knowledge of the facts stated in
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`this declaration and could testify competently to them if asked to do so.
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`2.
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`I have been retained on behalf of III Holdings 4, LLC (“Patent Owner”) to
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`provide expert opinions in connection with an inter partes review (“IPR”) of
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`U.S. Patent No. 8,654,999 (“the ’999 patent”) assigned case number
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`IPR2017-00781. Specifically, I have been asked to provide my opinion
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`relating to an inquiry into the patentability of claims 1-9 and 16-19 (“the
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`Challenged Claims”) of the ’999 patent.
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`3.
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`I am being compensated for my time spent on this matter by Patent Owner,
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`including independent study, document review, analysis, and writing, at my
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`standard hourly consulting rates. My compensation is not dependent upon
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`my testimony or the outcome of this or any other proceeding. I have no
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`financial interest in Patent Owner.
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`II. Qualifications
`4.
`I have over 45 years of engineering design experience as an analog mixed
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`signal IC designer. I have developed both smart power and single battery
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`ultra-low noise processes and ICs.
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`5
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`5.
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`I was founder, President, and CTO of The Engineering Consortium (referred
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`
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`to and known as “TEC” by the hearing aid industry from 1980 through 2003.
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`TEC developed multiple custom and standard products for the hearing
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`industry. This involved close interaction with their advanced development
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`engineering departments to develop ICs for their new products. Some
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`representative products (nonproprietary) we developed include:
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`• Designed first WDRC hearing aid (K-Amp with Etymotic Research) and
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`first single battery HA class D power amp (D-Amp for Knowles)
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`• Designed and produced
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`the
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`industry standard
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`(single battery)
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`programming chip for hearing aids (DSD – TEC941)
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`• Designed and produced the first single chip, fully programmable, hearing
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`aid IC, the HSOC™ (low noise analog, digital, EEPROM including 8
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`prescription memories all at one volt on a single SOC chip)
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`• Developed full DSP u-processor, single battery, hearing aid SOC
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`6.
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`TEC developed both the low noise composite processes involving analog,
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`digital, and EEPROM on a single chip and several custom and standard ICs
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`for the hearing industry. In addition, we developed the programming
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`software for our DSD programming chip and our SOC hearing aid chips,
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`including custom fitting procedures, such as gain, compression ratios, band-
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`split frequencies, filter parameters, graphic display of resulting prescription,
`6
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`
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`etc. In my consulting following TEC, I developed a turnkey (design, layout,
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`fab and production) of an ultra-low noise amplifier and charge pump for a
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`MEMS microphone.
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`7.
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`Other details concerning my background, professional service, and more, are
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`set forth in my curriculum vitae. Exh. 2004.
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`8.
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`In forming my opinion expressed in this report, I relied on my knowledge,
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`skill, training, and education and many years of professional experience in
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`hearing aid technology.
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`III. My Understanding of the Obviousness Standard in Determining
`Patentability
`9.
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`I understand that a patent claim is not patentable if the claimed invention
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`would have been obvious to a person of ordinary skill in the art at the time
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`the application was filed (“POSA” or “POSITA”). This means that even if
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`all of the requirements of the claim cannot be found in a single prior art
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`reference so as to anticipate the claim, the claim might still be not patentable
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`if the claimed invention would have been obvious.
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`10. To obtain a patent, a claimed invention must have been nonobvious in view
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`of the prior art in the field. I understand that an invention is obvious when
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`the differences between the subject matter sought to be patented and the
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`7
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`prior art are such that the subject matter as a whole would have been obvious
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`at the time the invention was made to a POSTIA.
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`11.
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`I understand that to prove that a prior art reference or a combination of prior
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`art references renders a patent obvious, it is necessary to: (1) identify the
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`particular references that either alone, or in combination, render the patent
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`obvious; (2) specifically identify which elements of the patent claim appear
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`in each of the asserted references; and (3) explain how the prior art
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`references could have been combined in order to create the inventions
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`claimed in the particular claim at issue.
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`IV. Basis of Opinion
`12.
`In forming my opinions expressed in this declaration, I have considered and
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`relied upon my education, background, and experience. I reviewed the
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`Petition filed by Petitioner along with relevant exhibits to the Petition. A list
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`of reviewed materials that is most relevant to my opinion is presented below.
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`I understand these documents have been or will be submitted as exhibits in
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`this IPR proceeding with the following exhibit numbers:
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`Exhibit/Paper
`Number
`Exh. 1001
`Exh. 1002
`Exh. 1003
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`
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`Document Description
`
`U.S. Patent No. 8,654,999 to Mindlin
`File History for U.S. Patent No. 8,654,999 to Mindlin
`U.S. Patent No. 8,787,603 to Fichtl
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`8
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`U.S. Patent Publication No. 2003/0215105 to Sacha
`U.S. Patent Publication No. 2005/0036637 to Janssen
`U.S. Patent No. 6,741,712 to Bisgaard
`U.S. Patent No. 4,972,487 to Mangold
`Declaration of Les Atlas
`German patent publication DE19542961 with translation
`U.S. Patent No. 7,933,419 to Roeck
`Michael Valente, “Guideline for Audiologic Management of
`the Adult Patient”
`Good Practice Guidance for Adult Hearing Aid Fittings and
`Services – Background to the Document and Consultation
`Keidser, “Variation in preferred gain with experience for
`hearing-aid user”
`Dillon, “The trainable hearing aid: What will it do for clients
`and clinicians?”
`Petition
`Patent Owner Preliminary Response
`Institution Decision
`Deposition Transcript of Les Atlas, September 27, 2017
`
`Exh. 1004
`Exh. 1005
`Exh. 1006
`Exh. 1007
`Exh. 1008
`Exh. 1009
`Exh. 1010
`
`Exh. 1011
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`Exh. 1012
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`Exh. 1013
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`Exh. 1014
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`Paper No. 3
`Paper No. 7
`Paper No. 8
`Exh. 2005
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`13.
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`In addition, I understand the ’999 patent was filed on April 12, 2011 and
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`claims priority to Provisional Application No. 61/323,841, filed on April 13,
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`2010, and Provisional Application No. 61/305,759, filed on June 2, 2010.
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`14.
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`I understand the definition of a POSITA as set forth in Dr. Atlas’ declaration
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`is defined as a person with a B.S. degree in electrical or computer
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`engineering, or the equivalent, and at least two years of experience in
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`hearing aid systems. Graduate education could substitute for work
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`9
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`
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`experience, and additional work experience/training could substitute for
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`formal education.
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`15. All the opinions I provide in this declaration are based on the knowledge of
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`a person that has at least a bachelor’s degree in electrical or computer
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`engineering, or the equivalent, and one to two years of experience in audio
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`signal processing for audiological products. As noted above, graduate
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`education could substitute for work experience, and additional work
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`experience/training could substitute for formal education.
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`16.
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`I also understand that claims in an IPR are given their broadest reasonable
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`interpretation in view of the patent specification and the understanding a
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`POSITA.
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`V. Overview of the ’999 Patent
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`A.
`Background
`17. U.S. Patent No. 8,654,999 (“the ’999 patent”) is entitled “SYSTEM AND
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`METHOD OF PROGRESSIVE HEARING DEVICE ADJUSTMENT” and
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`issued on February 18, 2014. I understand that the ’999 patent ultimately
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`claims prior to applications filed on claims priority to applications filed on
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`April 13, 2010 and June 2, 2010.
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`10
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`18. The ’999 patent explains that “for some users, transitioning from not
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`
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`wearing a hearing aid to wearing a hearing aid can be traumatic. In
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`particular, sounds that the user is not accustomed to hearing can suddenly be
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`made audible to the user by the hearing aid.” Exh. 1001, ’999 patent at 1:58-
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`61. For individuals, wearing hearing aids for the first time, the users “can
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`experience psychological distress when hearing is restored to a normal level
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`after years of suffering from hearing loss.” Exh. 1001, ’999 patent at 1:62-
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`65. The’999 patent describes these challenges and explains a solution that
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`involves providing an incremental or progressive filtering of audio signals
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`that includes a group of HCFs to gradually adjust the user’s experience from
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`an uncompensated hearing level to a fully compensated hearing level using
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`hearing aid profiles. Exh. 1001, ’999 patent at 2:26-35.
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`19. Hearing aid profiles are a collection of acoustic configuration settings for a
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`hearing aid, and the hearing aid profiles are used by the hearing aid to shape
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`acoustic signals to correct for users hearing loss. The complete hearing aid
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`profile would be a complex set of correction factors designed to compensate
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`for the hearing loss of the patient.
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`20. The typical patient will have lost sensitivity to quiet sounds and a
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`progressively increasing loss at higher frequencies as depicted in figure 1 of
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`11
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`
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`the ‘999 patent. These quiet sounds are critical to speech recognition. The
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`patient’s sensitivity to loud sounds is not as significantly impacted.
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`Increasing the loudness of the output signal by a hearing aid does not
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`compensate for the loss of hearing experienced by the user. At the time of
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`the ‘999 patent, compensating for loss was understood to be addressed by
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`Wide Dynamic Range Compression (WDRC), where the quiet sounds are
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`amplified significantly but the gain factor is reduced as amplitude increases
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`such that loud sounds are acceptable to the user. This allows the hearing aid
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`to compress the real world dynamic range into what remains of the patient’s
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`hearing dynamic range, thus recovering some of the patient’s speech
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`recognition. This is initially perceived as a distortion. As the brain adjusts to
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`the new logarithmic response, a change in the compression ratio and can be
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`adapted to in a few weeks.
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`21.
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` In a multi-band hearing aid this would require setting the quiet gain,
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`compression ratio and knee where the compression is adjusted for in the
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`appropriate bands. A POSITA would understand that there would be settings
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`for overall gain (possibly by band), feedback reduction, frequency
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`compensation, maximum power output (MPO), etc. – generally too many
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`settings for an average patient to understand. A POSITA would understand
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`that there is a likelihood that patients may report the adjusted settings as
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`12
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`being perceived as “too harsh” or tinny. These results would likely increase
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`the return rate of hearing aids for what would be perceived as unsatisfactory
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`performance. A POSITA would understand that the phasing-in approach by
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`applying, incrementally, a different HCF over time as explained in the ‘999
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`patent would be a suitable solution to acclimate the user to the new
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`perceived sounds.
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`22.
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` A POSITA would further understand that changes to different settings may
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`not be appropriate depending on the level of adjustment required during a
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`particular phase, and thus only some settings would need to be improved in
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`varying sequences as depicted in Fig 1. A POSITA would recognize that
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`applying progressive filters (modified filter parameters) to only those
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`portions of the signal, which still required changes, would be a more
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`efficient method to train the patient’s brain to relearn how to use the sound-
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`based information presented by the properly corrected profile.
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`23. One method of compensation for hearing impairment is to provide multiple
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`filters for the hearing aid profile. Each profile would be associated with the
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`appropriate filters to alter the frequencies from the received signal, for
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`example, that meet the compensation characteristics for the individual user.
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`This allows the system of the ’999 to provide incremental adjustment by
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`13
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`
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`having a series of HCFs, each with multiple filters for the appropriate
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`frequencies, in a particular sequence determined by the individual user’s
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`hearing loss.
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`24. As explained in the ’999 patent applies a collection of incremental HFCs to a
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`hearing aid profile to reduce the level of correction provided to the user by
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`the application of the hearing aid profile. Exh. 1001, ’999 patent at 2:66-3:2.
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`The collection of incremental HCFs are applied sequentially over a period of
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`time. Exh. 1001, ’999 patent at 3:2-5. A POSITA would understand that a
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`first HCF attenuates the hearing aid profile by a pre-determined amount,
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`limiting the adjustment provided by the hearing aid. Exh. 1001, ’999 patent
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`at 3:7-10. Each subsequent HCF in the sequence, after being applied to the
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`hearing aid profile, decreases the attenuation of the profile provided by a
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`preceding HCF until the sequence is complete. The goal is to achieve a fully
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`compensating the hearing aid profile to provide the intended hearing
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`correction for the user. Exh. 1001, ’999 patent at 3:10-15. These aspects of
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`the ‘999 patent are shown in Figure 1 below.
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`14
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`25.
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`In an example embodiment of the ’999 patent, the hearing aid communicates
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`with a computing device via a transceiver. Exh. 1001, ’999 patent at 5:49-
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`56; FIG. 2 (reproduced below). The computing device includes several
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`hearing aid profiles and HCFs, and may selectively provide a desired
`
`hearing aid profile with an appropriate HCF to be applied by the hearing aid.
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`Exh. 1001, ’999 patent at 6:36-41. The hearing aid applies a first incremental
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`15
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`hearing correction and after a period of time has passed, or a trigger is
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`received (for example, from the computing device), the hearing aid may
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`apply a second incremental hearing correction. Exh. 1001, ’999 patent at
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`5:3-9; 7:9-10; 9:59-62. The hearing aid continues applying the incremental
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`hearing corrections to achieve progressively enhanced hearing sensitivity
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`until the desired correction level of the selected hearing aid profile is
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`reached. Exh. 1001, ’999 patent at 5:9-14.
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`26. The hearing aid can also issue an alert notifying the user that the hearing
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`adjustment is at desired levels and that the adjustment process is complete.
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`Exh. 1001, ’999 patent at 10:55-59. The alert can either be sent to a display
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`or made audible for the user. Exh. 1001, ’999 patent at 10:59-62.
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`16
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`
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`Independent Claims
`B.
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`27. The ’999 patent includes three independent claims (1, 6 and 10).
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`Independent claims 1 and 6 are challenged in this IPR (IPR2017-00781).
`
`Independent claim 1 is directed to a hearing aid device that is configured to
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`utilize a hearing aid profile that modulates electrical signals to compensate
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`for a hearing impairment of a user and sequentially applies a different
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`hearing correction filter (HCF) until a speaker outputs an alert indicating
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`application of a final one of incremental hearing correction filters.
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`28.
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`Independent claim 6 is directed to a computing device that selects a hearing
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`aid profile, applies a first HFC to the hearing aid profile and, when an
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`amount of time during which the HFC is applied exceeds a threshold, apply
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`a next HCF to the hearing aid profile.
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`29. As an example, Claim 1 is provided below:
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`1. A hearing aid comprising:
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`a microphone to convert sound into electrical signals;
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`a speaker to output audible sound;
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`a processor; and
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`a memory to store instructions, which when executed by the
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`processor, cause the processor to:
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`receive a selection of a hearing aid profile from a
`plurality of hearing aid profiles, the selected hearing aid profile
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`
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`17
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`
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`configured to modulate the electrical signals to a level to
`compensate for a hearing impairment of a user;
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`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 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.
`
`
`30.
`
`
`Prosecution History of the ’999 Patent
`
`C.
`
`I understand that the Examiner allowed the claims of the ’999 patent based
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`on amendments made to the claims, including use of the term “hearing
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`18
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`
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`correction filter.” My understanding is that the Examiner allowed the claims
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`that became claims 1-9 and 16-19 of the ’999 patent.
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`VI. Claim Construction
`31.
`I have reviewed the following passage from the specification of the ’999
`
`patent:
`
`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
`the hearing aid profile is fully applied to provide the desired hearing
`correction for the user. ’999 patent at 3:2-15.
`
`This passage merely describes how a larger collection includes smaller collections.
`
`A POSITA would understand that this passage would not impact the definition of
`
`hearing correction filter. It is my opinion that a POSITA would understand a
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`hearing correction filter 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
`
`application of the hearing aid profile” as expressly stated in the ’999 patent at 2:65-
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`3:2.
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`19
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`32.
`
`I have also reviewed the following passage:
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`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. Exh. 1001, ’999 patent at 5:42-48.
`
`A POSITA would understand that this passage would not impact the definition of
`
`hearing correction filter. This passage merely explains how a correction line is
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`achieved. It is my opinion that a POSITA would understand a hearing correction
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`filter to be “a collection of filters applied by a processor to a hearing aid profile to
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`reduce the level of correction provided to a user by application of the hearing aid
`
`profile” as expressly stated in the ’999 patent at 2:65-3:2.
`
`33.
`
`I have also reviewed the following passage:
`
`2. The hearing aid of claim 1, wherein each of the incremental hearing
`correction filters comprises a collection of acoustic configuration
`settings configured to modulate the electronic signal to a level that is
`within range between an uncompensated hearing level of the user and
`the level to compensate for the hearing impairment of the user.
`
`A POSITA would understand that this passage would not impact the definition of
`
`hearing correction filter. This passage merely reflects that an incremental HCF is
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`comprised of a group of acoustic configuration settings. It is my opinion that a
`20
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`
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`III HOLDINGS 4, LLC
`Exhibit 2003
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`
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`POSITA would understand a hearing correction filter to be “a collection of filters
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`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” as expressly stated in
`
`the ’999 patent at 2:65-3:2.
`
`VII. Claims 1-5 and 16 Are Patentable
`
`A. Overview of Distinctions for the Combination of Fichtl, Mangold
`
`and Bisgaard
`34. 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 hearing aid profile, nor do they apply “a sequence of incremental
`
`hearing correction filters.” Specifically, Fichtl, Mangold and Bisgaard, alone
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`or in combination fail to teach or suggest at least the features of “apply a
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`first one of a sequence of incremental hearing correction filters to the
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`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
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`hearing aid profile to a first level that is less than a level to compensate for
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`the hearing impairment of the user” and “select a second one of the sequence
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`of incremental hearing correction filters in response to receiving a trigger,
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`the second one being designated to follow the first one in the sequence of
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`incremental hearing correction filters and to reduce the amplitude of the
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`modulated electrical signals produced by the selected hearing aid profile to a
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`second level that is greater than the first level and less than the level to
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`compensate for the hearing impairment of the user,” as recited in claim 1.
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`35. Fichtl is directed to acclimatization of a user of a hearing correction device
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`by allowing the user to control a volume of the hearing device in order to
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`increase the intensity of the hearing device in the long term (e.g., during
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`several months). Exh. 1003, Fichtl at 2:62-67. Exh. 1003, Fichtl at Abstract.
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`A POSITA would understand that by allowing a user to manually control his
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`or her hearing correction, it rarely will get to a proper final correction. A
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`POSITA would understand it is very difficult for users to appreciate the
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`complexity of the appropriate hearing aid profile.
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`36. With reference to figures 1 and 2 of Fichtl (reproduced below), Fichtl
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`describes 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
`for the audio processing parameter APP as well as a target
`power-on value tPOV. The target power-on value tPOV is, for
`example, 10 dB higher than the initial power-on value iPOV.
`• At time “B”, the hearing device user 10 switches on the hearing
`device 1. The initial power-on-value iPOV is read from the
`non-volatile memory 7. The audio-processing parameter APP is
`set to the initial power-on value iPOV.
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`• At time “C”, the hearing device user 10 uses the hearing device
`1 but has not actuated the control 4 yet. An intermediate value
`X which will later become the next power-on value is increased
`slowly.
`• At time “D”, the hearing device user 10 has selected the audio-
`processing parameter APP to be two steps higher than the initial
`audio-processing parameter APPref. The intermediate value X is
`now increased faster.
`• At time “E”, the hearing device user 10 has selected the audio-
`processing parameter APP to be one step lower than the initial
`audio-processing parameter APPref. The intermediate value X is
`now increased slower again.
`• At time “F”, the hearing device user 10 switches off the hearing
`device 1. The intermediate value X is now stored frequently
`(e.g. every hour) in the non-volatile memory 7 to be the next
`power-on value. The intermediate value X lastly stored to the
`non-volatile memory 7 is therefore the first replacement power-
`on-value rPOV1.
`• At time “G”, the hearing device user 10 switches on the hearing
`device 1. The audio processing parameter APP is set to the
`previously stored power-on-value.
`• At time “H”, the acclimatization phase ends. The intermediate
`value X has reached the target power-on-value tPOV. From this
`point on, the intermediate value X is not changed any more.
`• At time “I”, the hearing device user 10 switches off the hearing
`device 1. The second replacement power-on-value rPOV2 which
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`is now stored in the non-volatile memory 7 is the target power-
`on-value tPOV.
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`Exh. 1003, Fichtl at 2:41-3:15.
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`37. Furthermore, Fichtl discloses a software implementation of the above
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`acclimatization process. In particular, Fichtl describes a controller executing
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`software to perform:
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`a) writing a value indicative of said target power-on value tPOV for
`said audio processing parameter APP to the non-volatile memory 7,
`b) waiting until the hearing device user 10 switches on the hearing
`device 1,
`c) setting said audio processing parameter APP to a power-on value
`POV, said power-on value POV being stored in said non-volatile
`memory 7 or being calculated from values stored in said non-volatile
`memory 7,
`d) allowing said hearing device user 10 to continuously perform one
`or more adjustment actions by the control 4 for adjusting said audio
`processing parameter APP to his or her preferences in varying
`listening situations,
`e) executing an acclimatization algorithm simultaneously with step d),
`after step d) and/or before step c), said acclimatization algorithm
`being designed to approximate said power-on value POV in the long
`term, in particular in more than a week, to said target power-on value
`tPOV, said acclimatization algorithm determining a replacement value
`rPOV for said power-on value POV taking into account which setting
`or settings for said audio processing parameter APP has or have been
`set by said hearing device user 10 and how long said setting or
`settings have been active.
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`Exh. 1003, Fichtl at 3:25-51.
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`38. Accordingly, Fichtl is directed to a software implementation of a sequence
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`of disjointed volume adjustment events during each of which a volume of
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`the hearing device is adjusted, according to a user provided adjustment
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`command (the command is based on the user’s preferences for a particular
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`listening situation the user is in at that moment in time). The final adjusted
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`volume at the end of each disjoint volume adjustment event is then stored for
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`use as an initial volume during a subsequent volume adjustment event for
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`adjusting the volume.
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`39. Fichtl discusses adjusting the volume of hearing aid over a period of time
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`until a target volume/adjustment is reached over several months. Petitioner
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`contends that this incremental adjustment of the volume of the hearing
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`device, as disclosed by Fichtl, is “a sequence of hearing correction filters.”
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`Petition at 26. Application of a hearing correction filter to a hearing aid
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`profile can dynamically change/adjust selected frequencies of a signal. This
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`is not possible with a volume adjustment.
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`40. The combination of Fichtl in view of Mangold and Bisgaard suggests or
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`teaches, at best, adjusting a volume of a hearing aid device over a period of
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`several months until a target volume/intensity is reached.
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`41. The ’999 patent explicitly recites that applying hearing correction filters to a
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`hearing aid profile adjusts “selected frequencies to the desired hearing level
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`while providing less of an enhancement to other frequencies” of a signal.
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`Exh. 1001, ’999 patent at 4:35-39. This is consistent with the explicit
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