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 No. 8,654,999
`_________________
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`PURSUANT TO 37 C.F.R. § 42.107
`
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`K/S HIMPP,
`Petitioner
`
`v.
`
`III HOLDINGS 4, LLC,
`Patent Owner
`_________________
`
`Case IPR2017-00782
`Patent No. 8,654,999
`_________________
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`PURSUANT TO 37 C.F.R. § 42.107
`
`
`
`Pursuant
`
`to 37 C.F.R. § 42.107, Patent Owner III Holdings 4, LLC
`
`(“Patent Owner”) hereby submits its Patent Owner Preliminary Response.
`
`I.
`
`INTRODUCTION
`K/S HIMPP (“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”) and listing 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 GA and Sonova AG (formerly Phonak AG); Starkey Laboratories,
`
`Inc. (aka Starkey Hearing Technologies); Widex A/S; and William Demant
`
`Holding A/S.
`
`Petitioner has filed a concurrent Petition for Inter Partes Review of the ’999
`
`Patent captioned K/S HIMPP v. III Holdings 4, LLC, Case No. IPR2017-00781,
`
`seeking review of claims 1-9 and 16-19 of the ’999 Patent.
`
`In both Petitions, Petitioner relies on Fichtl1 as a primary reference. The
`
`grounds in this proceeding are as follows:
`
`1.
`
`Claims 10, 13, 14, and 20 as obvious by Fichtl in view of Mangold2;
`
`1 U.S. Patent No. 8,787,603 to Fichtl (“Fichtl”).
`
`2 U.S. Patent No. 4,972,487 to Mangold (“Mangold”).
`
`1
`
`
`
`and
`
`2.
`
`Claims 11, 12, and 15 as obvious by Fichtl in view of Mangold, and
`
`Sacha3.
`
`In general,
`
`the Petitions assert
`
`that Fichtl
`
`teaches a hearing aid that
`
`implements an acclimatization period which adjusts the hearing aid parameters
`
`over time in the same manner as the ’999 Patent. As will be discussed further
`
`herein, however, Fichtl does not disclose or teach the hearing correction filters
`
`required by each of the claims of the ’999 Patent.
`
`Moreover, a person of ordinary skill in the art (“POSA”) would not have
`
`been motivated to modify Fichtl with Sacha in the manner proposed by Petitioner
`
`and Petitioner’s expert, Dr. Atlas, because Sacha’s time-based hearing aid
`
`adjustments would have changed the very purpose of Fichtl’s hearing aid device
`
`which provides acclimatization based on user feedback.
`
`II. OVERVIEW OF U.S. PATENT NO. 8,654,999
`
`A. Summary of the ’999 Patent
`
`The ’999 Patent is entitled “SYSTEM AND METHOD OF PROGRESSIVE
`
`HEARING DEVICE ADJUSTMENT” and issued on February 18, 2014 from
`
`Application No. 13/085,016, which was filed on April 12, 2011. The ’999 Patent
`
`3 U.S. Patent Application Publication No. 2003/0215105 to Sacha (“Sacha”).
`
`2
`
`
`
`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 generally relates to a hearing aid that applies incremental or
`
`progressive hearing adjustment for a user to ease the transition from not wearing a
`
`hearing aid to wearing a hearing aid. ’999 Patent at 2:26-29. The incremental
`
`adjustments allow the user to become accustomed to the hearing compensation in
`
`small increments over time. Id. at 2:34-39. Specifically, the ’999 Patent describes a
`
`hearing aid that applies a plurality of sequences of incremental hearing correction
`
`filters. Id. at Abstract.
`
`In an embodiment of the ’999 Patent, the hearing aid stores a selected
`
`hearing aid profile and one or more hearing correction filters in its memory. Id. at
`
`6:42-44. The hearing aid profile is customized for the particular user to compensate
`
`for hearing deficits of the user or otherwise enhance the sound-related signals. Id.
`
`at 2:48-52. The hearing aid profile includes parameters that configure the hearing
`
`aid, such as signal amplitude and gain characteristics, signal processing algorithms,
`
`frequency response characteristics, coefficients associated with one or more signal
`
`processing algorithms, or any combination thereof. Id. at 2:54-58. A “hearing
`
`correction filter” refers to a collection of filters for the hearing aid which are
`
`applied by the processor within the hearing aid to a hearing aid profile to reduce the
`
`level of correction provided to the user by application of the hearing aid profile. Id.
`3
`
`
`
`at 2:65-3:2. The 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. Id. at 3:7-10; 6:44-52.
`
`In an embodiment of the ’999 Patent, the hearing aid communicates with a
`
`computing device via a transceiver. Id. at 5:49-56; FIG. 2 (below).
`
`4
`
`
`
`The computing device may store a plurality of hearing aid profiles and
`
`hearing correction filters and may selectively provide a desired hearing aid profile
`
`and/or hearing correction filter to the hearing aid. Id. at 6:36-41.
`
`5
`
`
`
`The hearing aid applies a first incremental hearing correction initially and
`
`after a period of time has passed, or a trigger is received (for example, from the
`
`computing device),
`
`the hearing aid may apply a second incremental hearing
`
`correction either obtained from its memory or received from the computing device.
`
`Id. at 5:3-9; 7:9-10; 9:59-62. The hearing aid continues applying the incremental
`
`hearing corrections to provide progressively enhanced hearing sensitivity until the
`
`desired correction level of the selected hearing aid profile is reached. Id. at 5:9-14.
`
`The hearing aid may also provide an alert indicating to the user that hearing
`
`is at desired levels and that the adjustment process is complete. Id. at 10:55-59. The
`
`alert may be audible or sent to the computing device for display on the computing
`
`device’s display interface. Id. at 10:59-62.
`
`B. Independent Claim 10
`
`The ’999 Patent has three independent claims—claims 1, 6, and 10. Claim
`
`10 is challenged in the Petition. Claim 10 recites:
`
`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
`6
`
`
`
`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
`
`Application No. 13/085,016 (now, the ’999 Patent) was filed on April 12,
`
`2011 and 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.
`
`Original Claim 14 (issued as claim 10) recited:
`
`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
`7
`
`
`
`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. 1002, 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 2005/036637 to
`
`Janssen in view of U.S. Patent No. 5,202,927 to Topholm. See Exh. 1002, 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.
`
`2003/0215105 to Sacha. Id.
`
`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
`
`8
`
`
`
`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. 1002, 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. 1002, Appl. No.
`
`13/085,016, Response, May 21, 2013, at 90.
`
`On July 26, 2013, the Examiner issued a Final Office Action, issuing
`
`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. 1002, 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. Id.
`
`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
`9
`
`
`
`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;
`
`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. 1002, Appl. No. 13/085,016, September 13, 2013, at 138-139.
`
`On October 2, 2013, the Examiner allowed the 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.
`
`10
`
`
`
`Exh. 1002, 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. Id. at
`
`161-162.
`
`III. CLAIM CONSTRUCTION
`
`A. Hearing Aid Profile
`
`Petitioner proposes “hearing aid profile” to mean “a collection of acoustic
`
`configuration settings for a hearing aid which are used by a processor to shape
`
`acoustic signals to correct for a user’s hearing loss.” Petition at 12 (citing ’999
`
`Patent at 2:40-44).
`
`For purposes of this Preliminary Response, Patent Owner has addressed the
`
`claims under Petitioner’s proposed construction of “hearing aid profile.”
`
`Nevertheless, Patent Owner reserves the right to present its own claim construction
`
`should the Inter Partes Review be instituted.
`
`B. Hearing Correction Filter
`
`Petitioner proposes “hearing correction filter” to mean “an adjustment
`
`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.” Petition at 13 (citing
`
`’999 Patent at 2:65-3:7). Petitioner’s proposed construction, however, changes the
`
`11
`
`
`
`express definition provided by the specification of the ’999 Patent for the term
`
`“hearing correction filter.” See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994)
`
`(holding that an inventor may define specific terms used to describe invention, but
`
`must do so “with reasonable clarity, deliberateness, and precision” and, if done,
`
`must “‘set out his uncommon definition in some manner within the patent
`
`disclosure’ so as to give one of ordinary skill in the art notice of the change” in
`
`meaning) (quoting Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387-88
`
`(Fed. Cir. 1992)).
`
`The specification for the ’999 Patent states a “‘hearing correction filter’
`
`refers to a collection of filters…which are applied by processor within the hearing
`
`aid…to a hearing aid profile to reduce the level of correction provided to the user
`
`by application of the hearing aid profile.” ’999 Patent at 2:65-3:2 (emphasis added).
`
`Even Petitioner’s expert, Dr. Atlas, acknowledges that the specification expressly
`
`provides a definition for the term “hearing correction filter” and quotes the same
`
`definition above. Atlas Decl. at ¶49 (“it is my opinion that the Patent Owner
`
`provided a definition for the term ‘hearing correction filter,’” quoting ’999 Patent
`
`at 2:65-3:7).
`
`The ’999 Patent states “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
`12
`
`
`
`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.” ’999
`
`Patent at 5:42-48 (emphasis added). As such, the hearing correction filter must
`
`comprise “a collection of filters” such that it adjusts “a plurality of coefficients,
`
`parameters, or other settings” to alter various characteristics of sound for the
`
`hearing aid user.
`
`Petitioner’s construction is unreasonably broad because it eliminates the
`
`expressly defined requirement for “a collection of filters” applied to the hearing aid
`
`profile. Instead, the Board must construe “hearing correction filter” consistent with
`
`its definition in the specification. Id. at 2:65-3:2; see also id. at 5:42-48.
`
`Specifically, “hearing correction filter” means “a collection of filters which are
`
`applied by a processor within the hearing aid to a hearing aid profile to reduce the
`
`level of correction provided to the user by application of the hearing aid profile.”
`
`C. Incremental Hearing Correction
`
`Petitioner proposes “incremental hearing correction” to mean “a collection of
`
`acoustic configuration settings for a hearing aid which are used by a processor to
`
`shape acoustic signals to correct for a user’s hearing loss, the collection of acoustic
`
`configuration settings representing an intermediate hearing adjustment to provide a
`
`modulated output signal having a level
`
`that
`
`is within a range between an
`
`13
`
`
`
`uncompensated output level and the desired output level.” Petition at 15-16 (citing
`
`’999 Patent at 3:24-32).
`
`Patent Owner does not believe a construction is necessary for “incremental
`
`hearing correction.” None of the claims of the ’999 Patent recite “incremental
`
`hearing correction.” Rather, the claims of the ’999 Patent recite “incremental
`
`hearing correction filters” and Petitioner has proposed a separate construction for
`
`that
`
`term, as discussed below. For this reason, the Board need not construe
`
`“incremental hearing correction.”
`
`D. Incremental Hearing Correction Filter
`
`Petitioner proposes “incremental hearing correction filter” to mean “a
`
`hearing correction filter applied to provide a modulated output signal having a level
`
`that is within a range between an uncompensated output level and the desired
`
`output level.” Petition at 16 (citing ’999 Patent at 8:55-58; 9:31-41). Petitioner’s
`
`proposed construction, however,
`
`changes
`
`the meaning provided by the
`
`specification of the ’999 Patent for this term.
`
`The specification for the ’999 Patent states that “incremental hearing
`
`corrections…are generated by applying hearing correction filters…to a selected
`
`one of hearing aid profiles…” ’999 Patent at 8:55-58. Moreover, the specification
`
`states “[o]nce the filters are generated, processor…selectively applies a selected
`
`one of the incremental hearing correction filters to the selected hearing aid profile
`
`14
`
`
`
`for a period of time before advancing to a next incremental hearing correction filter
`
`in the sequence.” Id. at 9:31-38 (emphasis added). Petitioner’s construction
`
`eliminates the requirement that the filter is applied to the hearing aid profile,
`
`seeking to divorce the term from its context.
`
`The Board must adopt a construction for “incremental hearing correction
`
`filter” consistent with the specification—specifically,
`
`the incremental hearing
`
`correction filter is applied to the hearing aid profile. Id. at 8:55-58; 9:31-41.
`
`Accordingly, Patent Owner proposes “incremental hearing correction filter” to
`
`mean “a hearing correction filter applied to the selected hearing aid profile to
`
`provide a modulated output signal having a level that is within a range between an
`
`uncompensated output level and the desired output level.”
`
`IV. DR. ATLAS’ DECLARATION IS ENTITLED TO NO WEIGHT
`
`The declaration of Dr. Atlas submitted by the Petitioner does nothing more
`
`than repeat verbatim attorney arguments presented in the Petition. See Ex. 1103.
`
`Such an approach has been uniformly criticized by the Board as failing to provide
`
`testimony of evidentiary value. Infobionic, Inc. v. Braemer Manufacturing, LLC.,
`
`IPR2015-01704, Paper No. 11, Decision Denying Institution at 6 (PTAB Feb. 16,
`
`2016) (“We do not find the testimony of Petitioner’s expert to be persuasive or
`
`helpful as
`
`it
`
`repeats
`
`the Petitioner’s arguments and offers
`
`little or no
`
`elaboration…”); CaptionCall LLC, et. al. v Ultratec, Inc., IPR2015-00637, Paper
`
`15
`
`
`
`No. 98, Final Written Decision at 54 (PTAB Sept. 7, 2016) (“The declaration cited
`
`merely mimics the language in the Response with no supporting evidence, and is
`
`not sufficient
`
`to provide evidence in support of
`
`the argument.”); Kinetic
`
`Technologies, Inc. v. Skyworks Solutions, Inc., IPR2014-00529, Paper No. 8,
`
`Decision Denying Institution at 15 (PTAB Sept. 23, 2014) (“merely repeating an
`
`argument from the Petition in the declaration of a proposed expert does not give
`
`that argument enhanced probative value.”).
`
`As an example, Patent Owner has provided a comparison of the Petition’s
`
`arguments for claim limitation 10.4.1, which is disputed to be taught by the prior
`
`art, and the alleged supporting paragraphs from Dr. Atlas’ declaration. Exh. 2001.
`
`As seen in Exhibit 2001, each argument presented in the Petition is mirrored in the
`
`declaration with the only difference being the Petition provides a citation to Dr.
`
`Atlas’ declaration. Yet, because Dr. Atlas’ declaration contains the exact same
`
`statements and citations as found in the Petition—and nothing more—the Petition’s
`
`argument is essentially citing to itself as evidentiary support. This type of circular
`
`analysis is not evidence and does not provide an underlying basis to support the
`
`Petitioner’s obviousness arguments. Thus, the Board should not give Dr. Atlas’
`
`declaration any weight. Roxane Laboratories, Inc. v. Novartis AG, IPR2016-01461,
`
`Paper No. 9, Decision Denying Institution at 10 (Feb. 13, 2017) (“As the Board has
`
`stated repeatedly, conclusory expert testimony is entitled to little or no weight.”).
`16
`
`
`
`Moreover,
`
`this defect
`
`is not
`
`limited to claim limitation 10.4.1 as
`
`demonstrated in Exhibit 2001, but is present in every other claim limitation as well.
`
`To illustrate the vast scope of this problem, Patent Owner has provided a marked-
`
`up version of Dr. Atlas’ declaration which highlights in yellow every statement in
`
`the declaration that was copied, in its entirety, from the Petition. See Exh. 2002. As
`
`seen in the marked-up declaration, all paragraphs discussing how the prior art
`
`allegedly teaches specific claim limitation are copied from the Petition. Id.
`
`Therefore, the declaration is no more than a repeat of the attorney argument
`
`contained in the Petition and should not be considered by the Board. As previously
`
`found by the Board, a declaration that merely mimics the language in the Petition
`
`with no supporting evidence “is not sufficient to provide evidence in support of the
`
`argument.” CaptionCall Inc., IPR2015-00637, Paper No. 98 at 54.
`
`V.
`
`THE PERSON OF ORDINARY SKILL IN THE ART
`
`Petitioner’s expert, Dr. Atlas, states that a POSA “would have had a B.S.
`
`degree in electrical or computer engineering, or the equivalent, and at least two
`
`years of experience in hearing aid systems.” Atlas Decl. at ¶28. The Petition,
`
`however, states a slightly different level of skill in the art than stated by Dr. Atlas
`
`in his declaration. In the Petition, Petitioner argues that a POSA “would have been
`
`someone with a bachelor’s degree in electrical or computer engineering, or the
`
`equivalent, and at least two years of experience in audio signal processing for
`
`17
`
`
`
`audiological products.” Petition at 11 (citing Atlas Decl. at ¶¶22-28)(emphasis
`
`added). Given Dr. Atlas’ actual testimony in paragraph 28 of his declaration, there
`
`is no evidence to support Petitioner’s broader arguments regarding the level of
`
`ordinary skill in the art.
`
`VI. THE PETITION SHOULD BE DENIED BECAUSE IT FAILS TO
`ESTABLISH A REASONABLE LIKELIHOOD THAT AT LEAST
`ONE OF THE CLAIMS IS UNPATENTABLE
`
`A. Fichtl Fails to Disclose or Teach A “Sequence of Incremental Hearing
`Correction Filters Including At Least A First Hearing Correction
`Filter and a Second Hearing Correction Filter” As Required By
`Independent Claim 10
`
`Claim 10 of the ’999 Patent recites a “sequence of incremental hearing
`
`correction filters including at least a first hearing correction filter and a secon
`
`hearing correction filter.” See ’999 Patent, Claim 10 at 13:60-63. As discussed
`
`above, the ’999 Patent defines a “hearing correction filter” as “a collection of
`
`filters…which are applied by processor within the hearing aid…to a hearing aid
`
`profile to reduce the level of correction provided to the user by application of the
`
`hearing aid profile.” ’999 Patent at 2:65-3:2 (emphasis added). Based on the
`
`definition of “hearing correction filter” provided by the specification of the ’999
`
`Patent,
`
`the recited “hearing correction filter” must comprise “a collection of
`
`filters.” See Section III.B (Claim Construction for “hearing correction filter”),
`
`above.
`
`Indeed, even Petitioner’s expert, Dr. Atlas, acknowledges that
`
`the
`
`specification expressly provides a definition for the term “hearing correction filter”
`18
`
`
`
`and quotes the same definition above. Atlas Decl. at ¶49 (citing ’999 Patent at 2:65-
`
`3:7)
`
`Petitioner has not shown that Fichtl discloses or
`
`teaches a “hearing
`
`correction filter” that comprises a collection of filters. Petitioner details how Fichtl
`
`teaches the process of acclimatization (Petition at 27-31) and then simply
`
`concludes that “Fichtl’s acclimatization algorithm as executed by controller 6
`
`generates a sequence of ‘hearing correction filters.’” Petition at 29 (citing Atlas
`
`Decl. at ¶192). Absent is any evidence that Fichtl teaches or discloses that its
`
`acclimatization algorithm generates a collection of filters.
`
`In describing the acclimatization algorithm, Petitioner states that “the
`
`acclimatization algorithm executed by controller 6 increases the value of an APP
`
`[audio processing parameter] over time.” Petition at 27. Petitioner states that
`
`“an intermediate value X is slowly increased while the hearing aid is on and held
`
`constant in memory while the hearing aid is off, such that each time the hearing aid
`
`is turned on, the APP is set to the last value for X as stored in memory.” Id.
`
`Petitioner continues, “[t]he compensation increases over time to a replacement
`
`power-on-value (rPOV) each time the hearing aid is turned on until it reaches tPOV
`
`[target power-on-value].” Id. at 28-29. While Fichtl may describe that the APP
`
`increases over time until it reaches tPOV, Fichtl fails to describe that the gradual
`
`increases in the APP are produced by a collection of filters.
`19
`
`
`
`Fichtl’s disclosure regarding the gradual increase of the APP to reach the
`
`tPOV merely describes an acclimatization algorithm that calculates the power-on-
`
`value. See Fichtl at 2:19-51. The gradual increase in the APP is represented by X.
`
`See id. at 3:55-57. The value of X is calculated periodically by an update function.
`
`See id. at 5:23-28; 5:56-65; 6:51-57; 7:5-12. The increase in the APP in Fichtl is
`
`not due to the application of a collection of filters as in the ’999 Patent, but rather
`
`due to the application of a single, simple algorithm that increases the APP.
`
`The ’999 Patent, however, describes that the hearing correction filter alters
`
`various characteristics of the sounds. For example, Figure 1 of the ’999 Patent
`
`illustrates gradual changes in both decibel level (dB) and frequency (Hz)—each
`
`incremental hearing correction filter applied in sequence gradually alters the
`
`decibel level (dB) and frequency (Hz). See ’999 Patent at FIG. 1; 5:3-38.
`
`20
`
`
`
`In Figure 1 of the ’999 Patent,
`
`line 102 represents a normal hearing
`
`sensitivity threshold. ’999 Patent at 3:63-66. Line 106 represents “a particular
`
`user’s actual hearing sensitivity, i.e., the user’s uncompensated hearing.” Id. at 4:2-
`
`3. Hearing aid profile correction line 108 “represents a desired (final or fully
`
`compensated) hearing correction for the user, which can be achieved by applying a
`
`selected hearing aid profile to sound using a processor of a hearing aid.” Id. at 4:9-
`
`21
`
`
`
`13. Each dashed line in Figure 1 of the ’999 Patent, i.e., intermediate lines 110,
`
`112, 114, 116, and 118, represents incremental hearing corrections provided in a
`
`progressive manner to the selected hearing aid profile to reduce its correction by a
`
`predetermined amount. Id. at 4:22-27. The incremental hearing corrections are
`
`applied in a sequence over time, gradually adjusting the hearing correction from the
`
`uncompensated level at hearing loss line 106 to the desired hearing level
`
`represented by hearing aid profile correction line 108. Id. at 4:28-34. In this
`
`embodiment, Figure 1 illustrates not just a change to a single audio parameter but
`
`gradual changes of decibel level (dB) for different frequencies (Hz) at different
`
`times to ease the hearing aid user into use of the hearing aid until the selected
`
`hearing aid profile is reached. Figure 1 further demonstrates that a hearing
`
`correction filter comprises a plurality of filters, each which alters different
`
`characteristics of sound—e.g., filters that provide different decibel level (dB)
`
`alterations for different frequencies (Hz) at different times. Id.
`
`Fichtl, on the other hand, simply describes gradually increasing the value of
`
`the “APP.” Nowhere does Fichtl describe or disclose anything about applying a
`
`collection of filters, let alone a sequence of hearing correction filters, to achieve the
`
`gradual increase of the APP. Nor does Petitioner’s expert, Dr. Atlas, explain that a
`
`POSA would understand that the calculation of X in Fichtl represents applying a
`
`collection of filters.
`
`22
`
`
`
`Since Fichtl does not disclose or teach application of a collection of filters,
`
`Fichtl, does not disclose a “hearing correction filter,” let alone “a sequence of
`
`incremental hearing correction filters,” as defined by the ’999 Patent. Petitioner
`
`relies solely on Fichtl to allegedly show these claim limitations—Petitioner does
`
`not rely on any of the other cited references to supply the missing claim elements.
`
`This failure of proof runs through all of the grounds in the Petition. As such, the
`
`Board should deny institution of all grounds.
`
`B. Fichtl Does Not Teach or Disclose A Processor That “Generate[s] 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” As Recited In Claim 10
`
`Claim 10 of the ’999 Patent recites the processor “generate[s] 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.” ’999 Patent at
`
`13:57-60. Petitioner and Petitioner’s expert, Dr. Atlas, make the same erroneous
`
`conclusion regarding the teachings of Fichtl:
`
`The iPOV is selected to provide a smaller degree of compensation
`than the tPOV, which corresponds to a hearing aid profile. Thus, the
`iPOV and all incremental adjustments between the iPOV and the
`tPOV are generated to provide values between the hearing loss level
`associated with the user (determined during the initial fitting) and the
`hearing aid profile (tPOV). This sequence of incremental hearing
`correction filters is, accordingly, based at least in part on a magnitude
`of a difference between a hearing aid profile and a hearing loss level
`associated with the user of the hearing aid, and includes at least the
`first and second hearing correction filter, as claimed.
`
`23
`
`
`
`Petition at 30-31; Atlas Decl. at ¶194. Both the Petition and the Atlas Declaration
`
`present the same, literally verbatim, conclusory argument. Roxane Laboratories,
`
`Inc., IPR2016-01461, Paper No. 9 at 10 (“As the Board has stated repeatedly,
`
`conclusory expert testimony is entitled to little or no weight.”). However, neither
`
`Petitioner nor Dr. Atlas provide any evidence that Fichtl’s incremental adjustments
`
`are based at least in part on a magnitude of a difference between a hearing aid
`
`profile and the user’s hearing loss level. Nor does Fichtl itself.
`
`In describing generating the sequence of incremental hearing correction
`
`filters, the ’999 Patent states: “the number of increments can be determined by the
`
`magnitude of the correction; therefore, the number of increments varies based on
`
`the magnitude of the hearing correction provided by the hearing aid profile relative
`
`to a zero-adjustment baseline.” ’999 Patent at 9:14-19. Here,
`
`the number of
`
`increments is based on the magnitude of difference. Fichtl, on the other hand,
`
`teaches that the number of increments is based on user feedback.
`
`Fichtl describes its novelty as its acclimatization algorithm which provides a
`
`personalized acclimatization for
`
`the hearing aid user, based on personal
`
`preferences, to ease the user into the hearing aid device. Specifically, Fichtl’s
`
`acclimatization algorithm determines the rate in which to increase the APP—or the
`
`number of increments to reach tPOV—based on user feedback. Fichtl at 3:58-65;
`
`24
`
`
`
`5:42-55. If the user increases the APP by one or two steps—for example, when the
`
`user is comfortable with the APP setting from the last POV—the intermediate
`
`value of X is calculated to provide faster acclimatization. Id. at 3:58-64; 5:47-49;
`
`FIGS. 1, 4a, and 4b. If the user decreases the APP by one step or leaves the APP at
`
`the last POV,
`
`the intermediate value of X is calculated to pro
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