`
`Bose Corporation, Petitioner
`v.
`Koss Corporation, Patent Owner
`
`IPR2021-00297
`Patent 10,368,155
`
`March 8, 2022
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`KOSS-2028
`IPR2021-00297
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`2
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`Pet., 4
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`3
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`4
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`Challenged Claims - Independent Claim 1
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`5
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`Pelland FIG. 6
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`Ex. 1013, FIG. 6
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`6
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`Williams’s Testimony Is Unreliable
`• To anticipate, a reference
`must enable the
`allegedly anticipated
`claim.
`• Elan Pharm., Inc. v. Mayo
`Found. For Med. Educ. &
`Research, 346 F.3d 1051, 1054
`(Fed. Cir. 2003)
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`Ex. 2024, 45
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`7
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`Pet., 4
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`9
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`Challenged Claims – Independent Claim 1
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`10
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`Petitioner Does Not Rely on Rezvani
`• Williams’s direct testimony
`• Rezvani, ¶41
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`Ex.1003, ¶106
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`11
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`Petitioner Does Not Rely on Rezvani
`• Williams’s direct testimony
`• Rezvani (Ex. 1016), ¶41
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`Ex.1003, ¶106
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`12
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`Rezvani
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`Ex. 1016, ¶¶41, 50
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`13
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`Petitioner Formed its Typo Theory
`by the Time of Petition
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`Williams Deposition Transcript
`Ex. 2026, 47-48
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`14
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`Petitioner Formed its Typo Theory
`by the Time of Petition
`… but did not disclose it
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`Board found Petitioner failed
`to provide evidence as to
`why Rezvani’s ¶41 contains a
`typo.
`
`Institution Decision, 39
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`“Petitioner may not submit new evidence or argument in reply that
`it could have presented earlier, e.g. to make out a prima facie case
`of unpatentability.” PTAB Consolidated Trial Practice Guide (Nov.
`2019), 73
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`15
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`Invalidity Grounds Must Be “On the Basis of Prior Art
`Consisting of Patents and Printed Publications” – 35
`U.S.C. §311(b)
`Petitioner contends Rezvani contains several alleged
`typos
`• Not relying on Rezvani as published, but on a revised version
`• Petitioner cannot rewrite the words in Rezvani
`• Expert testimony “cannot take the place of a disclosure in
`a prior art reference, when that disclosure is required as
`part of the unpatentability analysis.” PTAB Consolidated Trial
`Practice Guide (Nov. 2019), 36
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`Williams’s New Typo Opinion is Not Credible
`• New typo theory formed by a method worse than hindsight
`reconstruction
`• Formed typo opinion after reading the ‘155 Patent (Ex. 2026,
`14)
`• Conducted little to no investigation into source of alleged typos
`• Failed to consult with:
`• Listed inventors of Rezvani
`• Patent Attorney(s) who prosecuted Rezvani
`• Patent Examiner for Rezvani (Ex. 2026, 11-12)
`• His review of file history failed to provide “definitively” the
`source of the alleged typos (Ex. 2026, 12)
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`Typo Theory Defies Practicality
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`• Exact typing mistake allegedly
`made three times
`• No identification of any other
`typing mistakes in Rezvani
`• Odds of the exact same
`typing mistake in every place
`where a typo is critical to
`support Petitioner’s
`obviousness theory—and
`only those typing mistake—
`are astronomical
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`18
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`Williams Deposition Transcript
`Ex. 2026, 11
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`Context of Rezvani ¶41 Shows No Typos
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`• POSA in 2008 would have understood that a handset,
`such as a cellular phone, could switch from one network
`to another (Ex. 2026, 18-23)
`• Rezvani discloses that the handset could be a cell phone (Ex.
`1016, ¶4; Ex. 2026, 21-22)
`• Just because ¶41 begins by describing FIG. 8 does not
`limit all of ¶41 to FIG. 8
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`Seamless Handoff By Handset ≠ Automatic
`Transitioning by Headset
`• Something can be seamless without being automatic (KOSS-
`2023, ¶¶52-53)
`• Petitioner fails to show a “seamless handoff” is performed
`without external influence or control on the handoff.
`• It is performed by the handset. (Ex. 1016, ¶41)
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`Ex. 2025, 4-5
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`Pet., 4
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`22
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`Challenged Claims – Claims 1 and 5
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`23
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`• “The Petition’s first reason for
`Nakagawa-Wilson was implementing
`Nakagawa’s functionality into a stereo
`headphone like Wilson’s.” (Reply, 4)
`
`Bose Reversed its Combination
`Reply
`Petition
`• “Claims 1-3, 6-8, 10 and 14 Would
`Have Been Obvious Over Nakagawa
`in view of Wilson” (Pet., 57)
`• “POSAs would have had several
`reasons to implement
`Nakagawa’s wireless headset
`using Wilson’s form-factor.”
`(Pet., 61)
`Motivations to Combine
`• Making Nakagawa’s headset stereo
`like Wilson (Pet., 61-62)
`• Provide Nakagawa’s headset with
`rechargeable battery and docking
`station (Pet., 61)
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`Not Applicable
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`Not Applicable
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`Nakagawa’s Sound-Source Switching Device
`Purely Functional
`• “Devices” besides the control
`unit perform the source-
`switching (Ex. 1022, ¶53)
`• A “prior-connection request
`analyzing unit 35 and [a] sound-
`source switching unit 36 are
`devices that accomplish the …
`sound-source switching.” (Ex.
`1022, ¶57)
`• Silent as to the nature and
`structure of the sound-source
`switching devices 35, 36
`• Merely depicted as boxes and
`described in functional terms only
`Ex. 1012, ¶¶53, 57, FIG. 3
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`Nakagawa’s Sound-Source Switching Device
`Purely Functional
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`Williams’s Testimony
`Ex. 2026, 44
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`• Sound switching device
`• Not a term of art; “intrinsic terms” within Nakagawa
`• POSA would not know how to implement them but for Nakagawa’s disclosure (Ex.
`2023, ¶36)
`• Asking POSA to choose an appropriate battery without giving a POSA circuit
`components to be powered
`• No reasonable expectation of success (Ex. 2023, ¶36)
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`‘155 Patent Solution
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`Ex. 1001, 6:43-53
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`Ex. 1001, FIG. 3
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`McAlexander’s Testimony is Credible
`• McAlexander has experience with audio and acoustic
`engineering (Ex. 1101, 80; Ex. 2023 ¶9 and p. 30)
`• Issue faced by POSA in implementing the Nakagawa
`combinations requires internal headphone design
`experience
`• McAlexander’s experience outweighs Casali’s
`• Casali did not provide opinions relating to wireless
`communication aspects of the challenged claims (Ex. 1005, ¶36)
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`Pet., 4
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`Claims 11-12
`not challenged
`under Grounds
`3A-3D
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`29
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