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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 IPR2017-00782
`Patent 8,654,999
`_________________
`
`
`Patent Owner Response
`
`
`
`
`
`
`

`

`Table of Contents
`
`
`
`
`I.
`
`Introduction .......................................................................................... 1
`
`II. Asserted Grounds of Unpatentability ................................................... 3
`
`III. Overview of the ’999 Patent ................................................................. 3
`
`A.
`
`Background .................................................................................3
`
`B.
`
`Independent Claims .....................................................................7
`
`C.
`
`Prosecution History of the ’999 Patent .......................................8
`
`IV. Claim Construction ............................................................................. 13
`
`A.
`
`Broadest Reasonable Interpretation of “Hearing Correction
`Filter” ....................................................................................... 14
`
`V.
`
`Claims 10, 13, 14, and 20 Are Not Rendered Obvious by Fichtl in
`view of Mangold ................................................................................. 18
`
`A. Overview of Distinctions for the Combination of Fichtl and
`Mangold ................................................................................... 18
`
`B.
`
`C.
`
`Fichtl in view of Mangold does not disclose “sequence of
`incremental hearing correction filters including at least a
`first hearing correction filter and a second hearing correction
`filter,” as recited in claim 10 .................................................... 23
`
`Fichtl in view of Mangold does not disclose “generate a
`sequence of incremental hearing correction filters” as recited
`in claim 10 ................................................................................ 28
`
`VI. Claims 11 and 15 are Not Rendered Obvious by Fichtl in view of
`Mangold, and Sacha ........................................................................... 32
`
`VII. Dr. Atlas’ Declaration is Entitled to No Weight ................................ 32
`
`VIII. Conclusion .......................................................................................... 34
`
`
`
`
`
`ii
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`

`

`
`
`Table of Exhibits
`
`Exhibit No.
`
`Document
`
`2001
`
`2002
`
`2103
`
`2104
`
`2105
`
`Comparison of the Petition arguments and Les Atlas
`Declaration for certain claim limitations
`
`Highlighted version of Les Atlas Declaration
`
`Expert Declaration of Clyde “Kip” Brown, Jr., P.E.
`
`CV of Clyde “Kip” Brown, Jr., P.E.
`
`Deposition Transcript of Les Atlas, September 27, 2017
`
`
`
`
`
`iii
`
`

`

`
`
`I.
`
`Introduction
`
`K/S HIMPP1 (“HIMPP” or “Petitioner”) filed a Petition for Inter Partes
`
`Review on January 27, 2017, seeking review of claims 10-15 and 20 of U.S. Patent
`
`No. 8,654,999 (“the ’999 patent”). On July 27, 2017, the Board instituted Inter
`
`Partes Review on claims 10, 11, 13-15, and 20 (“Decision”).
`
`The ’999 patent addresses a system where the audiologist examines a patient
`
`to determine the final hearing correction that is required by the hearing aid. Based
`
`on this determination, a final hearing aid profile is determined. However, because
`
`the patient is unable to accept a full implementation of the hearing correction when
`
`first using the hearing aid that is set to a fully corrected hearing aid profile (an
`
`abrupt, fully corrected profile can be “traumatic”). (Exh. 1101, ’999 patent at 1:58-
`
`59). Accordingly, the profile is incrementally improved to approach the fully
`
`corrected hearing aid profile. Exh. 2003, Brown Dec. at ¶ 18. The ’999 patent
`
`teaches that the use of incremental corrections applied in a sequence over a period
`
`of time allow a user to ease into the transition from uncompensated hearing to full
`
`
`1 Petitioner also listed certain of its members and affiliates as additional real parties
`
`in interest: GN Hearing A/S (formerly GN Resound A/S) and GN Store Nord A/S;
`
`IntriCon Corporation; Sivantos GmbH and Sivantos Inc.; Sonova Holding AG and
`
`Sonova AG (formerly Phonak AG); Starkey Laboratories, Inc. (aka Starkey
`
`Hearing Technologies); Widex A/S; and William Demant Holding A/S.
`
`
`
`1
`
`

`

`
`
`hearing correction. Exh. 1101, ’999 patent at 3:2-7; Exh. 2103, Brown Dec. at ¶¶
`
`19-23. Each hearing correction filter (“HCF”) is applied incrementally in sequence
`
`to slowly introduce the correction provided, by decreasing the attenuation of the
`
`signal, to the user, until the hearing aid profile is fully adapted to provide full
`
`hearing correction. Exh. 1101, ’999 patent at 3:10-15.
`
`Rather than a system where the final hearing correction is known and
`
`attenuated using different collections of filters to ease a user into the appropriate
`
`hearing correction, Petitioner proposes a challenge to the claims based on coarsely
`
`implemented technology described in the primary reference to Fichtl2. Fichtl,
`
`provides a system that uses coarse and non-sequential adjustments of volume based
`
`on the user’s environment and use, in contrast to the current claims which are
`
`directed to the goal of achieving proper hearing correction. The Petition combines
`
`this older, unrelated and non-filter based technology with further inapposite
`
`references. As will be discussed further below, Petitioner has failed to show that
`
`the system described by Fichtl, even when viewed in light of Mangold or other
`
`secondary references, teaches or suggests the novel aspects of the challenged
`
`independent claims including (1) a “sequence of incremental hearing correction
`
`filters including at least a first hearing correction filter and a second hearing
`
`correction filter,” and (2) “generate a sequence of incremental hearing correction
`
`
`2 U.S. Patent No. 8,787,603 to Fichtl et al. (“Fichtl”) (Exh. 1103).
`
`
`
`2
`
`

`

`
`
`filters based at least in part on a magnitude of a difference between a hearing aid
`
`profile and a hearing loss level,” as recited in independent claim 10 of the ’999
`
`patent. Neither of these features is taught or suggested by the selected references
`
`applied by the Petition. Accordingly, the Board should confirm the patentability of
`
`independent claim 10, as well as claims 11, 13-15, and 20 which depend from
`
`independent claim 10 of the ’999 patent.
`
`II. Asserted Grounds of Unpatentability
`
`The Board instituted trial in IPR2017-00782 on the following grounds of
`
`unpatentability:
`
`• Claims 10, 13, 14, and 20 are unpatentable under 35 U.S.C. § 103 as
`
`obvious over Fichtl in view of Mangold3.
`
`• Claims 11, and 15 are unpatentable under 35 U.S.C. § 103 as obvious
`
`over Fichtl in view of Mangold, and Sacha.4
`
`III. Overview of the ’999 Patent
`
`A. Background
`
`U.S. Patent No. 8,654,999 (“the ’999 patent”) is entitled “SYSTEM AND
`
`METHOD OF PROGRESSIVE HEARING DEVICE ADJUSTMENT” and issued
`
`on February 18, 2014 from Application No. 13/085,016, which was filed on April
`
`
`3 U.S. Patent No. 4,972,487 to Mangold et al. (“Mangold”) (Exh. 1107).
`
`4 U.S. Patent Publication No. 2003/0215105 to Sacha (“Sacha”) (Exh. 1104).
`
`
`
`3
`
`

`

`
`
`12, 2011. The ’999 patent claims priority to Provisional Application No.
`
`61/323,841, filed on April 13, 2010, and Provisional Application No. 61/305,759,
`
`filed on June 2, 2010.
`
`The ’999 patent discloses that “for some users, transitioning from not
`
`wearing a hearing aid to wearing a hearing aid can be traumatic. In particular,
`
`sounds that the user is not accustomed to hearing can suddenly be made audible to
`
`the user by the hearing aid.” Exh. 1101, ’999 patent at 1:58-61; Exh. 2103, Brown
`
`Dec. at ¶ 18. “Some individuals, such as those wearing hearing aids for the first
`
`time, can experience psychological distress when hearing is restored to a normal
`
`level after years of suffering from hearing loss.” Exh. 1101, ’999 patent at 1:62-65;
`
`Exh. 2103, Brown Dec. at ¶ 18. The invention of the ’999 patent overcomes these
`
`challenges by providing an incremental or progressive collection of filters for
`
`audio signals, applying the incremental collection of filters gradually to adjust the
`
`user’s experience from an uncompensated hearing level to a fully compensated
`
`hearing level. Exh. 1101, ’999 patent at 2:26-35; Exh. 2103, Brown Dec. at ¶ 18.
`
`In particular, the ’999 patent applies a series of incremental HCFs to a
`
`hearing aid profile to attain an appropriate level of hearing correction for the user.
`
`Exh. 1101, ’999 patent at 2:66-3:2; Exh. 2103, Brown Dec. at ¶ 19. The group of
`
`incremental HCFs is applied in an ordered sequence over a period of time so that
`
`the audiologist and/or user can predictably advance the rate of sound introduction.
`
`
`
`4
`
`

`

`
`
`Exh. 1101, ’999 patent at 3:2-5; Exh. 2103, Brown Dec. at ¶ 24. As such, a first
`
`HCF attenuates the hearing aid profile by a pre-determined amount, limiting the
`
`adjustment provided by the hearing aid. Exh. 1101, ’999 patent at 3:7-10; Exh.
`
`2103, Brown Dec. at ¶ 24. Each subsequent HCF in the sequence, upon being
`
`applied, decreases the attenuation of the hearing aid profile provided by a
`
`preceding HCF until the sequence is complete and the hearing aid profile is fully
`
`applied to provide the intended hearing correction for the user. Exh. 1101, ’999
`
`patent at 3:10-15; Exh. 2103, Brown Dec. at ¶ 24.
`
`In an example embodiment of the ’999 patent, the hearing aid communicates
`
`with a computing device via a transceiver. Exh. 1101, ’999 patent at 5:49-56; FIG.
`
`2 (reproduced below); Exh. 2103, Brown Dec. at ¶ 25.
`
`
`
`5
`
`

`

`
`
`Exh. 1101, ’999 patent at FIG. 2
`
`
`
`The computing device may store a plurality of hearing aid profiles and HCFs
`
`and may selectively provide a desired hearing aid profile and/or HCF to the
`
`hearing aid. Exh. 1101, ’999 patent at 6:36-41; Exh. 2103, Brown Dec. at ¶ 25. The
`
`hearing aid initially attenuates the hearing aid profile to a first pre-determined
`
`correction, via a first HCF, and after a period of time has passed, or a trigger is
`
`received (for example, from the computing device), the hearing aid may increment
`
`
`
`6
`
`

`

`
`
`the attenuation to the hearing aid profile to a second pre-determined incremental
`
`correction, via a second HCF, either obtained from its memory or received from
`
`the computing device. Exh. 1101, ’999 patent at 5:3-9; 7:9-10; 9:59-62; Exh. 2103,
`
`Brown Dec. at ¶ 26. The hearing aid continues attenuating the hearing aid profile
`
`with the pre-determined incremental corrections, via subsequent HCFs, to provide
`
`progressively enhanced hearing sensitivity until the desired correction level of the
`
`selected hearing aid profile is reached. Exh. 1101, ’999 patent at 5:9-14; Exh.
`
`2103, Brown Dec. at ¶ 26.
`
`The hearing aid may also provide an alert indicating to the user that the
`
`hearing correction is at desired levels and that the correction process is complete.
`
`Exh. 1101, ’999 patent at 10:55-59; Exh. 2103, Brown Dec. at ¶ 27. The alert may
`
`be audible or sent to the computing device for display on the computing device’s
`
`display interface. Exh. 1101, ’999 patent at 10:59-62; Exh. 2103, Brown Dec. at ¶
`
`27.
`
`B.
`
`Independent Claims
`
`The ’999 patent has three independent claims (1, 6, and 10). Independent
`
`claim 10 is challenged in this Petition. Independent claim 10 is directed to a
`
`computing device that has a memory that is configured to generate a sequence of
`
`incremental HCFs and provide the HCFs to the hearing aid. Exh. 2103, Brown
`
`Dec. at ¶ 28.
`
`
`
`7
`
`

`

`
`
`
`
`As an example, Claim 10 is provided below:
`
`10. A computing device comprising:
`
`a transceiver configurable to communicate with a hearing aid
`
`through a communication channel;
`
`a processor coupled to the transceiver; and
`
`a memory coupled to the processor and configured to store
`
`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;
`
`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; and
`
`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.
`
`C.
`
`Prosecution History of the ’999 Patent
`
`Original claim 14 (issued as claim 10), recited:
`
`
`
`
`
`8
`
`

`

`
`
`
`
`
`
`14. A computing device comprising:
`
`a transceiver configurable to communicate with a hearing aid through
`
`a communication channel;
`
`a processor coupled to the transceiver; and
`
`a memory coupled to the processor and configured to store
`
`instructions that, when executed by the processor, cause the processor
`
`to:
`
`provide a signal related to a first hearing correction of a
`
`sequence of incremental hearing corrections to the hearing aid
`
`through the communication channel; and provide a second
`
`signal related to a next hearing correction of the sequence to the
`
`hearing aid when a period of time exceeds a threshold time
`
`increment.
`
`Exh. 1102, Appl. No. 13/085,016, Application, April 12, 2011, at 35.
`
`On April 4, 2013, the Examiner issued a Non-Final Office Action, issuing
`
`rejections under 35 U.S.C. §§101, 102, and 103. With respect to original
`
`independent claim 14, now issued as independent claim 10, the Examiner issued a
`
`rejection under §103 based on U.S. Patent Application Publication 2005/0036637
`
`to Janssen in view of U.S. Patent No. 5,202,927 to Topholm. See Exh. 1102, Appl.
`
`No. 13/085,016, Office Action, April 4, 2013, at 67-70. The Examiner also issued
`
`a rejection under §103 of dependent claims to original independent claim 14 based
`
`on Janssen in view of Topholm and U.S. Patent Application Publication No.
`
`
`
`9
`
`

`

`2003/0215105 to Sacha. Exh. 1102, Appl. No. 13/085,016, Office Action, April 4,
`
`2013, at 67-70.
`
`On May 21, 2013, the Applicant amended the claims. For example, original
`
`
`
`claim 14 was amended as follows:
`
`14. A computing device comprising:
`
`a transceiver configurable to communicate with a hearing aid
`
`through a communication channel;
`
`a processor coupled to the transceiver; and
`
`a memory coupled to the processor and configured to store
`
`instructions that, when executed by the processor, cause the
`
`processor to:
`
`provide a first signal related to a first hearing correction
`
`of a sequence of incremental hearing corrections to the
`
`hearing aid through the communication channel; and
`
`provide a second signal related to a next second hearing
`
`correction of the sequence to the hearing aid in response
`
`to receiving a selection of the second hearing correction
`
`from a user of the hearing aid when a period of time
`
`exceeds a threshold time increment.
`
`Exh. 1102, Appl. No. 13/085,016, Response, May 21, 2013, at 84.
`
`The Applicant also argued that the references do not teach or suggest all of
`
`the features of the independent claims as amended. Exh. 1102, Appl. No.
`
`13/085,016, Response, May 21, 2013, at 90.
`
`On July 26, 2013, the Examiner issued a Final Office Action, issuing
`
`
`
`10
`
`

`

`
`
`rejections under 35 U.S.C. §§112, 102 and 103. With respect to independent claim
`
`14, the Examiner issued a rejection under §103 based on Janssen in view of
`
`Topholm and U.S. Patent Application Publication No. 2010/0246869 to Zhang et
`
`al. See Exh. 1102, Appl. No. 13/085,016, Final Office Action, July 26, 2013, at
`
`115-119. The Examiner also issued a rejection under §103 of dependent claims to
`
`original independent claim 14 based on Janssen in view of Topholm, Zhang, and
`
`Sacha. Exh. 1102, Appl. No. 13/085,016, Final Office Action, July 26, 2013, at
`
`115-119.
`
`On September 13, 2013, the Applicant amended the claims. For example,
`
`original claim 1 was amended as follows:
`
`14. A computing device comprising:
`
`a transceiver configurable to communicate with a hearing aid
`
`through a communication channel;
`
`a processor coupled to the transceiver; and
`
`a memory coupled to the processor and configured to store
`
`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
`
`corrections filter including at least a first hearing correction
`
`filter and a second hearing correction filter;
`
`11
`
`

`

`
`
`provide a first signal related to [[a]]the first hearing correction
`
`filter of [[a]]the sequence of incremental hearing corrections to
`
`the hearing aid through the communication channel; and
`
`provide a second signal related to a second hearing correction
`
`filter of the sequence to the hearing aid in response to receiving
`
`a selection of the second hearing correction from a user of the
`
`hearing aid.
`
`Exh. 1102, Appl. No. 13/085,016, September 13, 2013, at 138-139.
`
`On October 2, 2013, the Examiner allowed the pending claims and
`
`determined that the prior art fails to teach a hearing aid with the following
`
`limitations (issued claim 10):
`
`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.
`
`Exh. 1102, Appl. No. 13/085,016, Notice of Allowance, October 2, 2013, at 163-
`
`164 (Examiner erroneously labeling original claim 14 as claim 16). In addition, the
`
`Examiner made amendments to the claims to correct for typographical errors. Exh.
`
`1102, Appl. No. 13/085,016, Notice of Allowance, October 2, 2013, at 161-162.
`
`
`
`12
`
`

`

`
`
`IV. Claim Construction
`
`The ’999 patent provides several express definitions for terms addressed in
`
`the Decision. Specifically, the ’999 patent expressly defines the disputed term
`
`“hearing correction filter.” Exh. 1101, ’999 patent at 2:65-3:2. The Decision set
`
`forth constructions for the following terms:
`
`• “hearing correction filter” – “a filter that is applied by a processor
`
`within a hearing aid to a hearing aid profile to reduce the level of
`
`correction provided to the user by application of the hearing aid
`
`profile.” Decision at 9.
`
`• “incremental hearing correction filter” – “a hearing correction filter
`
`(as construed above)
`
`that represents an
`
`intermediate hearing
`
`adjustment to provide a modulated output signal having a level that is
`
`within range between an uncompensated output level and the desired
`
`output level.” Decision at 11.
`
`The parties do not appear to dispute the meaning of the term “incremental”
`
`in the context of the claims. The principal dispute is best understood with respect
`
`to the phrase “hearing correction filter.” Based on the specific definition provided
`
`in the specification, the express definition of hearing correction filter should not be
`
`disturbed. As explained more fully below, when these terms are properly construed
`
`in accordance with the specification, this proceeding would be resolved in favor of
`
`
`
`13
`
`

`

`
`
`patentability of all claims. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200
`
`F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that are in
`
`controversy and only to the extent necessary to resolve the controversy.”).
`
`A. Broadest Reasonable Interpretation of “Hearing Correction
`
`Filter”
`
`As noted above, the Board construed “hearing correction filter” to mean:
`
`a filter that is applied by a processor within a hearing aid to a hearing
`
`aid profile to reduce the level of correction provided to the user by
`
`application of the hearing aid profile. (Decision at 9).
`
`As discussed below, however, the broadest reasonable interpretation of “hearing
`
`correction filter” in light of the specification is “a collection of filters applied by a
`
`processor to a hearing aid profile to reduce the level of correction provided to a
`
`user by application of the hearing aid profile.” See e.g., Exh. 1101, ’999 patent at
`
`2:65-3:7 (emphasis added). The specification provides a clear definition that
`
`“hearing correction filter” is a collection of filters applied by a processor to a
`
`hearing aid profile to reduce the level of correction provided to a user by
`
`application of the hearing aid profile. Exh. 1101, ’999 patent at 2:65-66. There is
`
`no evidentiary support indicating a basis to deviate from this definition,
`
`particularly when the law is clear that “the inventor’s lexicography governs.”
`
`Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005).
`
`The Decision acknowledges that:
`
`
`
`14
`
`

`

`
`
`the ’999 patent states that “the term ‘hearing correction filter’ refers to
`
`a collection of filters,” suggesting that a single hearing correction
`
`filter actually is a collection of filters. Ex. 1101, 2:65-66 (Decision at
`
`8).
`
`The Decision then explains that, when understood in context, a hearing correction
`
`filter is understood to be a single filter that is a member of a collection. Decision at
`
`9 (stating that “the patent’s use of the term in context indicates that a hearing
`
`correction filter actually is a single filter that is a member of a collection.”)
`
`(emphasis added). The Decision identifies passages that allegedly support a
`
`different context to deviate from the express definition set forth in the
`
`specification. As shown below, however, the passages identified in the Decision, as
`
`properly understood, do not support changing the express definition for hearing
`
`correction filter provided in the specification.
`
`
`
`First, the Decision identifies the following general description of hearing
`
`correction filters:
`
`The collection of hearing correction filters may include a series of
`
`hearing correction adjustments designed to be applied in a sequence
`
`over a period of time…. In such an instance, a first hearing correction
`
`filter attenuates the hearing aid profile by a pre-determined amount,
`
`limiting the adjustment provided by hearing aid 202. Each of
`
`subsequent hearing correction filter in the sequence increases the
`
`correction provided by (decreases the attenuation applied to) the
`
`hearing aid profile to some degree, until the sequence is complete and
`
`
`
`15
`
`

`

`
`
`the hearing aid profile is fully applied to provide the desired hearing
`
`correction for the user. (Decision at 8) (citing Exh. 1101, ’999 patent
`
`at 3:2-15).
`
`The Decision recognizes that the patent includes the concept that an HCF is part of
`
`a group (a collection) of HCFs and that each individual HCF is applied in a
`
`sequence. The above passage merely describes how a larger collection contains
`
`smaller collections. This straightforward proposition was accepted by Dr. Atlas.
`
`Exh. 2105, Atlas Transcript at 134:10-14 (nothing unusual about saying a filter
`
`comprises multiple other filters.); see also Exh. 2103, Brown Dec. at ¶¶ 31-32.
`
`Thus, it provides no reason to depart from the patentee’s express definition.
`
`
`
`Second, the Decision references a passage relied on by Patent Owner.
`
`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. (Decision at 8-9) (citing Exh. 1101, ’999
`
`patent at 5:42-48).
`
`The Decision concludes that the passage “describes a single filter that is composed
`
`of multiple coefficients or parameters.” Decision at 9. To the extent that passage
`
`provides any context to how “hearing correction filter” is used in the specification,
`
`it supports the express definition in the specification. That passage, therefore,
`
`
`
`16
`
`

`

`
`
`provides no additional context that a hearing correction filter is properly
`
`understood to be anything other than a collection of filters as expressly stated in
`
`the specification. Exh. 2103, Brown Dec. at ¶ 33.
`
`
`
`Finally, the Board compares claims 1 and 6 noting that claim 1 recites that
`
`“the hearing correction filter is applied to the electrical signals already modulated
`
`by the hearing aid profile.” Decision at 11-12. Claim 1 recites “electrical signals”
`
`in various limitations including “convert sound into electrical signals,” “the
`
`selected hearing aid profile configured to modulate the electrical signals,” “apply
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`… incremental hearing correction filters to the modulated electrical signals,” and
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`“produce a modulated output signal to reduce the amplitude of the modulated
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`electrical signals.” In context, there is only one output signal, and that results from
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`the hearing aid profile. The HCF, properly construed to be a collection of filters for
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`a hearing aid profile, includes the settings for the hearing aid profile to produce the
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`modulated output signal. As Petitioner conceded, without dispute from Patent
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`Owner, this is what a person of skill in the art would understand as recited by claim
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`10. Decision at 9, 11 (noting that “the claims themselves expressly recite what the
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`hearing correction filters apply to”). Further, if claim 1 is to be interpreted as
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`proposed in the Decision, wherein the hearing correction filter is applied to signals
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`that have already been modulated, the express definition of HCF in the
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`specification would remain appropriate because the “hearing aid profile is
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`configured to modulate the electrical signals to a level to compensate for a hearing
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`impairment of a user” and the microphone-based electrical signals, as converted
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`into electrical signals, are also modulated electrical signals.
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`As such, the interpretation of “hearing correction filter” as adopted by the
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`Board must be modified to be “a collection of filters applied by a processor to a
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`hearing aid profile to reduce the level of correction provided to a user by
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`application of the hearing aid profile” to be consistent with the broadest reasonable
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`interpretation of the term in light of the ’999 patent specification. This is the
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`construction that “most naturally aligns with the patent’s description of the
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`invention.” Ormco 498 F.3d at 1313 (quoting Phillips v. AWH Corp., 415 F.3d
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`1303, 1316 (Fed. Cir.2005) (en banc)).”
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`V. Claims 10, 13, 14, and 20 Are Not Rendered Obvious by Fichtl in view
`of Mangold
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`A. Overview of Distinctions for the Combination of Fichtl and
`Mangold
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`The combined teachings of Fichtl and Mangold do not generate “hearing
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`correction filters,” let alone a “sequence of incremental hearing correction filters,”
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`to provide to a hearing aid. Specifically, Fichtl and Mangold alone or in
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`combination, fail to teach or suggest at least the following limitations:
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`(1)
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`“generate a sequence of incremental hearing correction filters” and
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`(2)
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`“the sequence of incremental hearing correction filters including at
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`least a first hearing correction filter and a second hearing correction filter”
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`The claims require both; Fichtl and Mangold teach neither. Exh. 2103, Brown Dec.
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`at ¶ 34.
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`Fichtl is directed to acclimatization of a user of a hearing device to the
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`hearing device by allowing the user to control a coarse volume adjustment of the
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`hearing device to increase the volume of the hearing device over several months.
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`Exh. 1103, Fichtl at Abstract, 2:62-67; Exh. 2103, Brown Dec. at ¶ 35.
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`Exh. 1101, Fichtl at FIGs. 1, 2
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`With reference to figures 1 and 2 of Fichtl (above), Fichtl describes a user
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`changing the volume over time in a hearing device as follows:
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`
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`• At time “A,” a fitter programs an initial power-on value iPOV
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`for the audio processing parameter APP as well as a target
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`power-on value tPOV. The target power-on value tPOV is, for
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`example, 10 dB higher than the initial power-on value iPOV.
`• At time “B,” the hearing device user 10 switches on the hearing
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`device 1. The initial power-on-value iPOV is read from the
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`non-volatile memory 7. The audio-processing parameter APP is
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`set to the initial power-on value iPOV.
`• At time “C,” the hearing device user 10 uses the hearing device
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`1 but has not actuated the control 4 yet. An intermediate value
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`X which will later become the next power-on value is increased
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`slowly.
`• At time “D,” the hearing device user 10 has selected the audio-
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`processing parameter APP to be two steps higher than the initial
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`audio-processing parameter APPref. The intermediate value X is
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`now increased faster.
`• At time “E,” the hearing device user 10 has selected the audio-
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`processing parameter APP to be one step lower than the initial
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`audio-processing parameter APPref. The intermediate value X is
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`now increased slower again.
`• At time “F,” the hearing device user 10 switches off the hearing
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`device 1. The intermediate value X is now stored frequently
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`(e.g. every hour) in the non-volatile memory 7 to be the next
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`power-on value. The intermediate value X lastly stored to the
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`non-volatile memory 7 is therefore the first replacement power-
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`on-value rPOV1.
`• At time “G,” the hearing device user 10 switches on the hearing
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`device 1. The audio processing parameter APP is set to the
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`previously stored power-on-value.
`• At time “H,” the acclimatization phase ends. The intermediate
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`value X has reached the target power-on-value tPOV. From this
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`point on, the intermediate value X is not changed any more.
`• At time “I,” the hearing device user 10 switches off the hearing
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`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-
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`on-value tPOV.
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`Exh. 1103, Fichtl at 2:41-3:15 (emphasis added); Exh. 2103, Brown Dec. at ¶ 36.
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`Furthermore, Fichtl discloses a software implementation of the above, user
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`controlled, acclimatization process. In particular, Fichtl describes a controller
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`executing software to perform:
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`a) writing a value indicative of said target power-on value tPOV for
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`said audio processing parameter APP to the non-volatile memory 7,
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`b) waiting until the hearing device user 10 switches on the hearing
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`device 1,
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`c) setting said audio processing parameter APP to a power-on value
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`POV, said power-on value POV being stored in said non-volatile
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`memory 7 or being calculated from values stored in said non-volatile
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`memory 7,
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`d) allowing said hearing device user 10 to continuously perform one
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`or more adjustment actions by the control 4 for adjusting said audio
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`processing parameter APP to his or her preferences in varying
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`listening situations,
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`e) executing an acclimatization algorithm simultaneously with step d),
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`after step d) and/or before step c), said acclimatization algorithm
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`being designed to approximate said power-on value POV in the long
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`term, in particular in more than a week, to said target power-on value
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`tPOV, said acclimatization algorithm determining a replacement value
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`rPOV for said power-on value POV taking into account which setting
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`or settings for said audio processing parameter APP has or have been
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`set by said hearing device user 10 and how long said setting or
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`settings have been active.
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`Exh. 1103, Fichtl at 3:25-51 (emphasis added); Exh. 2103, Brown Dec. at ¶ 37.
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`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 the
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`hearing device is adjusted, according to a user-provided adjustment command (the
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`command is based on the user’s preferences for a particular listening situation the
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`user is in at that moment in time). The final adjusted volume at th