Filed via PTAB E2E on January 27, 2017
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`DOCKET NO.: 2212665-00120US8
`Filed on behalf of K/S HIMPP
`By: Donald R. Steinberg, Reg. No 37,241
`Yung-Hoon Ha, Reg. No. 56,368
`Haixia Lin, Reg. No. 61,318
`Christopher R. O’Brien, Reg. No. 63,208
`Vera A. Shmidt 74,944
`Wilmer Cutler Pickering Hale and Dorr LLP
`60 State Street
`Boston, MA 02109
`Email: Don.Steinberg@wilmerhale.com
`Yung-Hoon.Ha@wilmerhale.com
`Haixia.Lin@wilmerhale.com
`Christopher.O’Brien@wilmerhale.com
`Vera.Shmidt@wilmerhale.com
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`K/S HIMPP
`Petitioner
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`v.
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`III HOLDINGS 4, LLC
`Patent Owner
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`
`Case IPR2017-00782
`Patent No. 8,654,999
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`PETITION FOR INTER PARTES REVIEW OF CLAIMS 10-15 AND 20 OF U.S.
`PATENT NO. 8,654,999
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`TABLE OF CONTENTS
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` 
`I. 
`Introduction .................................................................................................... 1 
`Mandatory Notices under 37 C.F.R. § 42.8 ................................................... 1 
`II. 
`A.  Real Party-In-Interest Under 37 C.F.R. § 42.8(b)(1) ..................................... 1 
`
`B.  Related Matters - 37 C.F.R. § 42.8(b)(2) ....................................................... 2 
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`C.  Lead and Back-Up Counsel - 37 C.F.R. § 42.8(b)(3) .................................... 2 
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`D.  Service Information - 37 C.F.R. § 42.8(b)(4) ................................................ 2 
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`Payment of Fees ............................................................................................. 3 
`III. 
`Requirements for Inter Partes Review........................................................... 3 
`IV. 
`A.  Grounds for Standing under 37 C.F.R. § 42.104(a) ....................................... 3 
`
`B. 
`
`Identification of the Challenge under 37 C.F.R. § 42.104(b) ........................ 3 
`
`1.  The Specific Art on Which the Challenge is Based ................................... 4 
`
`2.  The Specific Grounds on Which the Challenge is Based .......................... 5 
`
`Background of the ’999 Patent, State of the Art Prior to the Relevant Date,
`V. 
`and Person of Ordinary Skill in the Art ..................................................................... 6 
`A.  Summary of the ’999 Patent ........................................................................... 6 
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`B.  The Prosecution History of the ’999 Patent ................................................... 7 
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`C.  The State of the Art Prior to the Relevant Date ........................................... 10 
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`D.  Person of Ordinary Skill in the Art .............................................................. 11 
`
`Claim Construction - 37 CFR § 41.104(b)(3) .............................................. 11 
`VI. 
`A.  Legal Overview ............................................................................................ 11 
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`B.  Terms Needing Construction ....................................................................... 12 
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`1. 
`
`“hearing aid profile” ................................................................................. 12 
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`2. 
`“hearing correction filter” ......................................................................... 13 
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`3. 
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`4. 
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`“incremental hearing correction” ............................................................. 15 
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`“incremental hearing correction filter” ..................................................... 16 
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`VII.  GROUND 1: Claims 10, 13, 14, and 20 are unpatentable as obvious under
`35 U.S.C. § 103 over Fichtl (Ex. 1103) in view of Mangold (Ex. 1107). ............... 18 
`A. 
`[10 – preamble] “A computing device comprising” ................................... 18 
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`B. 
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`C. 
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`D. 
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`E. 
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`F. 
`
`G. 
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`[10.1] “a transceiver configurable to communicate with a hearing aid
`through a communication channel” .............................................................. 22 
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`[10.2] “a processor coupled to the transceiver” .......................................... 25 
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`[10.3] “a memory coupled to the processor and configured to store
`instructions…” .............................................................................................. 26 
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`[10.4.1] “…instructions that, when executed by the processor, cause the
`processor to: generate a sequence of incremental hearing correction filters
`based at least in part on a magnitude of a difference between a hearing aid
`profile and a hearing loss level associated with a user of the hearing aid, the
`sequence of incremental hearing correction filters including at least a first
`hearing correction filter and a second hearing correction filter” ................. 26 
`
`[10.4.2] “provide a first signal related to the first hearing correction filter of
`the sequence of incremental hearing correction filters to the hearing aid
`through the communication channel” .......................................................... 31 
`
`[10.4.3] “provide a second signal related to a second hearing correction
`filter of the sequence of incremental hearing correction filters to the hearing
`aid in response to receiving a selection of the second hearing correction
`filter from a user of the hearing aid” ............................................................ 32 
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`H.  KSR Rationale to Combine ........................................................................... 33 
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`I. 
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`J. 
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`K. 
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`[13] “computing device of claim 10, wherein the first signal and the second
`signal comprise triggers to initiate an adjustment to a currently selected
`incremental hearing correction filter executing on the hearing aid” ............ 34 
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`[14] “computing device of claim 10, wherein the first signal and the second
`signal include the first hearing correction filter and the second hearing
`correction filter” ........................................................................................... 34 
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`[20] “computer-readable [sic, computing] device of claim 10, further
`comprising instructions that, when executed by the processor, cause the
`processor to receive: a selection of a hearing aid profile; and provide the
`hearing aid profile to the hearing aid” .......................................................... 35 
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`VIII.  GROUND 2: Claims 11, 12, and 15 are unpatentable as obvious under 35
`U.S.C. § 103 over Fichtl (Ex. 1103) in view of Mangold (Ex. 1107) and Sacha (Ex.
`1104). ...................................................................................................................... 38 
`A. 
`[11.1] “computing device of claim 10, wherein the memory stores further
`instructions that, when executed by the processor, cause the processor to:
`initiate a timer to determine the [sic, a] period of time” .............................. 38 
`
`B. 
`
`C. 
`
`D. 
`
`[11.2] “iteratively select and provide selection signals related to subsequent
`ones of the incremental hearing correction filters from the sequence to the
`hearing aid when the period of time exceeds the [sic, a] threshold time
`increment” .................................................................................................... 41 
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`[11.3] “reset and restart the timer when each of the subsequent ones of the
`incremental hearing correction filters is provided to the hearing aid” ......... 42 
`
`[12] “computing device of claim 10, wherein the threshold time increment
`varies with each of the incremental hearing correction filters” ................... 42 
`
`E. 
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`[15] “computing device of claim 10, wherein the memory further
`comprises instructions that, when executed by the processor, cause the
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`processor to progressively advance through the sequence of the incremental
`hearing correction filters by providing each of the incremental hearing
`correction filter to the hearing aid, one at a time, over a sequence of time
`increments to provide a progressive hearing aid adjustment from an
`uncompensated hearing level to a corrected hearing level to aid in the user
`in acclimating to the hearing aid” ................................................................ 43 
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`F.  KSR Rationale to Combine ........................................................................... 44 
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`IX. 
`
`Conclusion .................................................................................................... 45 
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`I.
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`Introduction
`K/S HIMPP (“Petitioner”), in accordance with 35 U.S.C. §§ 311–19 and 37
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`C.F.R. §§ 42.100 et seq., respectfully requests inter partes review of claims 10–15
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`and 20 of U.S. Patent No. 8,654,999 (“the ’999 Patent”) (Ex. 1101) assigned to III
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`Holdings 4, LLC (“Patent Owner”) via assignment record at Reel/Frame: 36535-
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`249. This Petition shows by at least a preponderance of the evidence that there is a
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`reasonable likelihood that Petitioner will prevail in proving that claims 10–15 and
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`20 of the ’999 Patent are unpatentable based on prior art that the Patent Office did
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`not have before it or did not fully consider during prosecution.
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`II. Mandatory Notices under 37 C.F.R. § 42.8
`Pursuant to 37 C.F.R. § 42.8(a)(1), Petitioner provides the following
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`mandatory disclosures:
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`A. Real Party-In-Interest Under 37 C.F.R. § 42.8(b)(1)
`Petitioner K/S HIMPP is a real party-in-interest. For purposes of this
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`Petition and for the avoidance of disputes, Petitioner identifies HIMPP members
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`and affiliates GN Hearing A/S (formerly GN Resound A/S) and GN Store Nord
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`A/S; IntriCon Corporation; Sivantos GmbH and Sivantos Inc.; Sonova Holding AG
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`and Sonova AG (formerly Phonak AG); Starkey Laboratories, Inc. (aka Starkey
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`Hearing Technologies); Widex A/S; and William Demant Holding A/S as
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`additional real parties-in-interest.
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`B. Related Matters - 37 C.F.R. § 42.8(b)(2)
`Petitioner is not aware of any other matters related to the ’999 Patent.
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`Concurrently with this Petition for Inter Partes Review, Petitioner is also filing a
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`Petition for Inter Partes Review of claims 1–9 and 16-19 of the ’999 Patent and
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`requests that both petitions be assigned to the same panel.
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`C. Lead and Back-Up Counsel - 37 C.F.R. § 42.8(b)(3)
`Lead Counsel: Donald R. Steinberg (Reg. No. 37,241)
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`First Backup Counsel: Yung-Hoon Ha (Reg. No. 56,368)
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`Backup Counsel: Haixia Lin (Reg. No. 61,318); Christopher R. O’Brien
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`(Reg. No. 63,208); Vera A. Shmidt (Reg. No. 74,944)
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`D.
`Service Information - 37 C.F.R. § 42.8(b)(4)
`Email:
`Donald R. Steinberg, don.steinberg@wilmerhale.com;
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`Haixia Lin, Haixia.Lin@wilmerhale.com;
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`Christopher O’Brien, Christopher.O’Brien@wilmerhale.com;
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`Vera Schmidt, Vera.Schmidt@wilmerhale.com;
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`Yung-Hoon Ha Yung-Hoon.Ha@wilmerhale.com
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`Post and Hand Delivery: Wilmer, Cutler, Pickering, Hale and Dorr LLP
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`60 State St., Boston MA 02109
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`Telephone: 617-526-6000
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`Facsimile: 617-526-5000
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`Petitioner consents to email delivery on lead, first backup, and backup
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`counsel.
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`III. Payment of Fees
`The undersigned authorizes the Patent Office to charge the fee required by
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`37 C.F.R. § 42.15(a) for this Petition for inter partes review to Deposit Account
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`No. 080219. Any additional fees that might be due are also authorized.
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`IV. Requirements for Inter Partes Review
`A. Grounds for Standing under 37 C.F.R. § 42.104(a)
`Petitioner hereby certifies that the ’999 Patent is available for inter partes
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`review and that the Petitioner is not barred or estopped from requesting an inter
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`partes review challenging the patent claims of the ’999 Patent on the grounds
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`identified herein.
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`B.
`Identification of the Challenge under 37 C.F.R. § 42.104(b)
`Petitioner requests inter partes review of claims 10–15 and 20 of the ’999
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`Patent and that the Board cancel the same as unpatentable. Petitioner asks that
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`each claim be found unpatentable. The ’999 Patent claims priority to U.S.
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`Provisional Patent Application Nos. 61/323,841 filed April 13, 2010 and
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`61/305,759 filed June 2, 2010. ’999 Patent, Ex. 1101.1
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`1 As described below, the prior art relied on in this Petition predates the provisional
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`dates cited on the front of the ’999 Patent. Accordingly, for purposes of this
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`1. The Specific Art on Which the Challenge is Based
`Petitioner relies upon the following patents and printed publications:
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`Exhibit 1103 – U.S. Patent No. 8,787,603 to Fichtl, et al. (“Fichtl”) was
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`filed on December 22, 2009 and issued on July 22, 2014. Fichtl, which was not
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`considered during prosecution of the ’999 Patent and is not cumulative of any prior
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`art considered by the Examiner(s), is prior art under 35 U.S.C. § 102(e).
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`Exhibit 1104 – U.S. Patent Application Publication 2003/0215105 to Sacha
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`(“Sacha”) was filed on May 16, 2002 and published on November 20, 2003. Sacha
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`is prior art under at least 35 U.S.C. § 102(b) and was considered during
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`prosecution of the ’999 Patent.
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`Exhibit 1106 – U.S. Patent No. 6,741,712 to Bisgaard (“Bisgaard”) was
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`filed on June 21, 2001 and issued on May 25, 2004. Bisgaard, which was not
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`considered during prosecution of the ’999 Patent and is not cumulative of any prior
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`art considered by the Examiner(s), is prior art under at least 35 U.S.C. § 102(b).
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`Petition, Petitioner assumes, without taking a position, that the ’999 Patent is
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`entitled to the filing dates of those provisional applications. However, Petitioner
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`reserves the right to argue in later proceedings (before the USPTO or other
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`tribunals) that the subject matter claimed in the ’999 Patent is unsupported by those
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`provisional patent applications.
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`Exhibit 1107 – U.S. Patent No. 4,972,487 to Mangold (“Mangold”) was
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`filed on May 16, 1989 as a continuation of U.S. Application No. 07/175,233 filed
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`March 30, 1988. Mangold issued on November 20, 1990. Mangold, which was
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`not considered during prosecution of the ’999 Patent and is not cumulative of any
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`prior art considered by the Examiner(s), is prior art under at least 35 U.S.C. §
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`102(b).
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`Exhibit 1109 – German patent publication DE19542961 (“DE961”) was
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`published on May 15, 1997. DE961, which was not considered during prosecution
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`of the ’999 Patent and is not cumulative of any prior art considered by the
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`Examiner(s), is prior art under at least 35 U.S.C. § 102(b).
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`2. The Specific Grounds on Which the Challenge is Based
`Petitioner respectfully requests cancellation of claims 10–15 and 20 of the
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`’999 Patent on the following grounds:
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`Ground
`1
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`’999 Patent Claims
`10, 13, 14, 20
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`2
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`11, 12, 15
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`
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`Basis
`Obvious under §103 by Fichtl (Ex. 1103) in
`view of Mangold (Ex. 1107)
`Obvious under §103 by Fichtl (Ex. 1103) in
`view of Mangold (Ex. 1107) and Sacha (Ex.
`1104)
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`Pursuant to 37 C.F.R. § 42.104(b)(4) and (5), Sections VII-VIII demonstrate
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`that claims 10–15 and 20 of the ’999 Patent are unpatentable.
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`V. Background of the ’999 Patent, State of the Art Prior to the Relevant
`Date, and Person of Ordinary Skill in the Art
`A. Summary of the ’999 Patent
`The ’999 Patent relates to a hearing aid that includes the ability to provide an
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`incremental or progressive hearing adjustment for a user. ’999 Patent, Ex. 1101 at
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`Abstract, 1:58-67, 2:26-39. A user who is wearing a hearing aid for the first time
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`may not be accustomed to hearing certain sounds or frequencies. As described in
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`the ’999 Patent, some first-time hearing aid users may experience psychological
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`distress when their hearing is restored to a normal level after years of hearing loss.
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`Id. at 1:58-67. A user suffering from distress related to the abrupt change may stop
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`wearing his or her hearing aid. Id. Although already known prior to the filing of
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`the ’999 Patent, the purported invention of the ’999 Patent is the incremental or
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`progressive application of hearing adjustments over time to ease a user’s transition
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`from an uncompensated hearing level to a fully-compensated hearing level. Id. at
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`2:26-39.
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`According to the ’999 Patent, the hearing aid processor would normally
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`immediately apply a complete hearing correction for the user by applying a
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`“hearing aid profile.” Id. at 4:48-59. The purported invention of the ’999 Patent is
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`the application of multiple, incremental correction levels in the form of “hearing
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`correction filters.” Id. at 4:60-5:2, 6:42-52, 8:55-58. Both the hearing correction
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`filters and the amount of time that a particular hearing correction filter is applied
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`before transitioning to the next hearing correction filter may vary. Id. at 8:36-54.
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`The ’999 Patent also discloses that the hearing aid may generate a trigger
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`that signals the hearing aid to provide the next incremental hearing correction. Id.
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`at 10:32-52, Fig. 3. The trigger can be generated a number of different ways,
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`including once a number of clock cycles exceeds a preset limit, based on a
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`calendar, or after a period of time programmed by the user or preset by an
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`audiologist. Id. at 10:36-52; see also id. at 7:51-54 (user can program time period
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`using an input interface of a computing device). The trigger can also be user
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`initiated, such as through a graphical user interface (GUI). Id. at 8:3-16, 10:47-53.
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`The progressive application of “filtered” hearing correction profiles
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`continues until the user’s full hearing aid profile is implemented. At that time, the
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`hearing aid processor may provide an audible alert indicating to the user that the
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`adjustment process is complete. Id. at 10:53-61.
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`B.
`The Prosecution History of the ’999 Patent
`During prosecution of the ’999 Patent, the claims were amended twice in
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`response to Office Actions in order to overcome prior art. The first Office Action
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`issued on April 4, 2013 and rejected claims 1-20 as unpatentable on the basis of 35
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`U.S.C. §§ 101, 102, and 103. ’999 Patent File History, Ex. 1102 at 57-72.
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`Specifically, the Examiner rejected claims 1 and 4 under § 102(b) as being
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`anticipated by Janssen (Ex. 1105); claims 2, 3, and 10 under § 103(a) over Janssen
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`in view of Davis et al. (U.S. Patent 6,574,342); claim 6 under § 103(a) over
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`Janssen; claims 5 and 7-9 under § 103(a) over Janssen in view of Sacha (Ex.
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`1104); claims 11-13 under § 103(a) over Janssen and Davis and further in view of
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`Sacha; claims 14-15 under § 103(a) over Janssen in view of Topholm (U.S. Patent
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`5,202,927); and claims 16-20 under §103(a) over Janssen and Topholm and further
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`in view of Sacha. Id.
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`In response to the first Office Action, the Applicant amended the claims on
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`May 21, 2013. ’999 Patent File History, Ex. 1102 at 79-91. The Applicant
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`narrowed claim 1 by adding several limitations, including “a speaker to output
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`audible sound,” and “a memory to store instructions, which when executed by the
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`processor, cause the processor to: apply a first one of a sequence of incremental
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`hearing corrections the electrical signals to produce a modulated output signal to at
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`least partially compensate for a hearing impairment of a user when output by the
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`speaker; select a second one of the sequence of incremental hearing corrections in
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`response to receiving a trigger, the second one being designated to follow the first
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`one in the sequence of incremental hearing corrections; and cause the speaker to
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`output an alert when a final one of the sequence of incremental hearing corrections
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`is being applied, the final one being the last hearing correction of the sequence of
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`incremental hearing corrections.” Id. Claims 3, 5, 6, 10-14, and 18-19 were also
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`amended. Id.
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`The Examiner did not find the amendments and arguments persuasive, and
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`issued a Final Office Action on July 26, 2013 rejecting claims 1-20. ’999 Patent
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`File History, Ex. 1102 at 103-122. The Examiner rejected claims 10-13 under §
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`102(b) as being anticipated by Sacha; claims 1 and 4-9 under § 103(a) over Janssen
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`in view of Sacha; claims 2 and 3 under § 103(a) over Janssen and Sacha and
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`further in view of Davis; claims 14 and 15 under § 103(a) over Janssen in view of
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`Topholm and further in view of Zhang et al. (U.S. Patent App. Publication
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`2010/0246869); and claims 16-20 under § 103(a) over Janssen, Topholm and
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`Zhang and further in view of Sacha. Id.
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`In response to the Final Office Action, the Applicant filed a Request for
`
`Continued Examination (RCE) on September 13, 2013 cancelling claims 3-6 and
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`18, amending claims 1, 2, 8-17, 19, and 20, and adding new claims 21-25. ’999
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`Patent File History, Ex. 1102 at 127-146. The Applicant amended claim 1 to
`
`include the additional limitations of “receiv[ing] a selection of a hearing aid
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`profile from a plurality of hearing aid profiles, the selected hearing aid profile
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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 applying a first one of incremental hearing correction
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`filters to the “modulated electrical signals to produce a modulated output signal to
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`reduce 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 the
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`hearing impairment of the user.” Id.
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`A Notice of Allowance was mailed on October 2, 2013 and included an
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`Examiner’s Amendment to claims 1, 2, 10-14, 21 and 22. ’999 Patent File History,
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`Ex. 1102 at 154-165. The Examiner concluded, without explanation, that the prior
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`art did not disclose the limitations of the amended claims. Id. Claims 1-20 issued
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`on February 18, 2014. Id. at 184.
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`C. The State of the Art Prior to the Relevant Date
`As discussed below, all of the components involved in the ’999 Patent
`
`claims were known prior to the critical date. For example, hearing aids with
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`processors and memory, as well as the other physical components and software
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`functionality recited in the ’999 Patent claims, were all known and in use in the
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`field. The art discussed below also establishes that before 2010, one of ordinary
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`skill in the art would have recognized that many first time hearing aid users
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`experience discomfort due to a sudden increase in hearing sensitivity. The process
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`of incrementally adjusting the hearing aid correction, claimed in the ’999 Patent
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`and referred to as “acclimatization,” was a known solution to this problem. Atlas
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`Decl., Ex. 1108, ¶¶ 29-34, 61-101.
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`D.
`Person of Ordinary Skill in the Art
`The level of ordinary skill in the art is evidenced by the prior art. See In re
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`GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995) (determining that the Board did
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`not err in adopting the approach that the level of skill in the art was best
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`determined by references of record). The prior art discussed herein, and in the
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`declaration of Dr. Les Atlas, demonstrates that a person of ordinary skill in the art
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`(“POSA”) in the field of the ’999 Patent would have been someone with a
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`bachelor’s degree in electrical or computer engineering, or the equivalent, and at
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`least two years of experience in audio signal processing for audiological products.
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`Graduate education could substitute for work experience, and additional work
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`experience/training could substitute for formal education. Atlas Decl., Ex. 1108,
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`¶¶ 22-28.
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`VI. Claim Construction - 37 CFR § 41.104(b)(3)
`A. Legal Overview
`In an IPR, the terms in the challenged claims should be given their plain
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`meaning under the broadest reasonable interpretation standard. Cuozzo Speed
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`Technologies, LLC v. Lee, 136 S. Ct. 2131, 2145-46 (2016). If the specification
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`sets forth an alternate definition of a term with reasonable clarity, deliberateness,
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`and precision, the patentee’s lexicography governs. In re Paulsen, 30 F.3d 1475,
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`1480 (Fed. Cir. 1994). Petitioner adopts this standard for this proceeding, but
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`reserves the right to pursue different constructions in a district court, where
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`different claim construction standards apply.
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`Should the Patent Owner, seeking to avoid the prior art, contend that the
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`claim terms have a construction different from their broadest reasonable
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`interpretation, the appropriate course is for the Patent Owner to seek to amend the
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`claims to expressly correspond to its contentions in this proceeding. See 77 Fed.
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`Reg. 48,764, 68,766-767 (Aug. 14, 2012).
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`Any claim terms not included in this section have their broadest reasonable
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`meaning in light of the specification as commonly understood by those of ordinary
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`skill in the art.
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`B. Terms Needing Construction
`1. “hearing aid profile”
`The term “hearing air profile” should be construed as “a collection of
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`acoustic configuration settings for a hearing aid which are used by a processor to
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`shape acoustic signals to correct for a user’s hearing loss.” According to the ’999
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`Patent, “[a]s used herein, the term ‘hearing aid profile’ refers to a collection of
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`acoustic configuration settings for a hearing aid, such as hearing aid 202 depicted
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`in FIG. 2, which are used by a processor 210 (in FIG. 2) to shape acoustic signals
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`to correct for a user’s hearing loss.” ’999 Patent, Ex. 1101 at 2:40-44.2 Thus,
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`2 All emphasis is added unless otherwise noted.
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`Petitioner’s construction is consistent with the ’999 Patent’s explicit definition of
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`this term. The specification further confirms that a “hearing aid profile” is applied
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`to signals to correct for a user’s hearing loss. Id. at 2:46-49 (“Each of the hearing
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`aid profiles are designed to compensate for the hearing loss of the user based on
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`the user’s particular hearing characteristics (impairment).”), 2:49-58. Atlas Decl.,
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`Ex. 1108, ¶¶ 47-48.
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`2.
`“hearing correction filter”
`The term “hearing correction filter” should be construed as “an adjustment
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`applied by a processor to a hearing aid profile to reduce the level of correction
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`provided to a user by application of the hearing aid profile.” The ’999 Patent
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`states:
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`As used herein, the term ‘hearing correction filter’ refers to a
`collection of filters for hearing aid 202, which are applied by
`processor 210 within hearing aid 202 to a hearing aid profile to
`reduce the level of correction provided to the user by application of
`the hearing aid profile. The collection of hearing correction filters
`may include a series of hearing correction adjustments designed to
`be applied in a sequence over a period of time to provide incremental
`corrections for the user’s hearing loss to ease the user’s transition
`from uncompensated to corrected hearing.
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`’999 Patent, Ex. 1101 at 2:65-3:7. Thus, the specification explicitly defines a
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`“hearing correction filter” as “applied by [a] processor . . . to a hearing aid profile
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`to reduce the level of correction provided to [a] user by application of the hearing
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`aid profile” and makes clear that a “hearing correction filter” is an “adjustment[]”
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`that is “applied” to the hearing aid profile. Id. The specification and claims further
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`confirm the Petitioner’s construction. ’999 Patent, Ex. 1101 at 3:7-10 (“a first
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`hearing correction filter attenuates the hearing aid profile by a pre-determined
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`amount, limiting the adjustment provided by hearing aid”), 3:10-15 (“[e]ach of
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`subsequent hearing correction filter in the sequence increases the correction
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`provided by . . . the hearing aid profile . . . until . . . the hearing aid profile is fully
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`applied to provide the desired hearing correction for the user”), 3:32-36
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`(“incremental hearing corrections can be formed by applying one or more hearing
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`correction filters to a selected hearing aid profile”), 4:15-22 (“a plurality of
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`intermediate hearing sensitivity levels that fall within a range between hearing loss
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`line 106 and hearing aid profile correction line 108, which intermediate hearing
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`sensitivity levels are achieved by applying hearing correction filters to the selected
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`hearing aid profile”), 4:22-27 (“[e]ach of the intermediate hearing sensitivity lines
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`110, 112, 114, 116, and 118 represents one or more adjustments to enhance the
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`user’s hearing sensitivity by applying an incremental hearing filter the selected
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`hearing aid profile, reducing its hearing correction by a predetermined amount”),
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`5:31-38, 6:44-52, 8:55-67, 13:19-23, 13:26-31. Although Patent Owner may argue
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`that the language of claim 1 suggests that the “hearing correction filter” is applied
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`to modulate an audio signal that has already been modulated by the hearing aid
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`profile (e.g., based on the language – “apply [a first hearing correction filter]… to
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`the modulated electrical signals”), such an interpretation would directly contradict
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`the disclosed embodiment(s) and the explicit definition of “hearing correction
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`filter,” which refers to the hearing correction filter being applied to a hearing aid
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`profile, not an electrical signal that has already been modulated by such a hearing
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`aid profile. Atlas Decl., Ex. 1108, ¶¶ 49-51.
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`3.
`“incremental hearing correction”
`The term “incremental hearing correction” should be construed as “a
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`collection of acoustic configuration settings for a hearing aid which are used by a
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`processor to shape acoustic signals to correct for a user’s hearing loss, the
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`collection of acoustic configuration settings representing an intermediate hearing
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`adjustment to provide a modulated output signal having a level that is within a
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`range between an uncompensated output level and the desired output level.” The
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`’999 Patent states:
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`As used herein, the term “incremental hearing correction” refers to a
`collection of acoustic configuration settings for hearing aid 202
`(such as a hearing aid profile described above), which are used by
`processor 210 within hearing aid 202 to shape acoustic signals to
`correct for a user’s hearing loss. Each of the incremental hearing
`corrections represents an intermediate hearing adjustment to provide
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`a modulated output signal having a level that is within a range
`between an uncompensated output level and the desired output level.
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`’999 Patent, Ex. 1101 at 3:24-32. Thus, Petitioner’s construction is consistent with
`
`the ’999 Patent’s explicit definition of this term. The specification further
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`confirms the Petitioner’s construction. Id. at Abstract (“The processor is
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`configured to apply a selected one of a sequence of incremental hearing corrections
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`to the electrical signal to produce a modulated output signal to at least partially
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`compensate for a hearing impairment of a user.”), 3:32-56, Fig. 1, Fig. 3, 4:15-34,
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`5:3-14, 5:15-22, 5:31-33, 6:42-7:36, 10:10-25, 11:13-19, 11:41-48, 11:60-12:2,
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`12:3-10. Atlas Decl., Ex. 1108, ¶¶ 52-54.
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`4.
`“incremental hearing correction filter”
`The term “incremental hearing correction filter” should be construed as “a
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`hearing correction filter applied to provide a modulated output signal having a
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`level that is within