UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`BOSE CORPORATION,
`Petitioner,
`
`v.
`
`KOSS CORPORATION,
`Patent Owner.
`_____________
`
`Case No. TBD
`Patent No. 10,368,155
`_____________
`
`
`
`
`
`
`DECLARATION OF JOHN G. CASALI, Ph.D., CPE
`
`
`Bose Exhibit 1005
`Bose v. Koss
`
`
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`

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`
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`TABLE OF CONTENTS
`
`I. BACKGROUND AND QUALIFICATIONS ............................................... 1
`A. Research Contracts and Grants at Virginia Tech and at H.E.A.R.
`LLC ............................................................................................................ 2
`B. Research and Practice Focus Areas ............................................................ 8
`C. Professional Service, Recognitions and Accomplishments ....................... 9
`D. Patents and Publications ........................................................................... 12
`E. Consulting and Outreach outside the University ...................................... 12
`F. Teaching and Advising at Virginia Tech ................................................. 14
`II. MATERIALS REVIEWED AND CONSIDERED ................................... 15
`III. SCOPE OF MY OPINIONS ........................................................................ 16
`IV. MY UNDERSTANDING OF RELEVANT PRINCIPLES OF
`PATENT LAW ............................................................................................. 18
`V. PERSON OF ORDINARY SKILL IN THE ART ..................................... 19
`VI. OVERVIEW OF HEADPHONE ASSEMBLY DESIGNS ....................... 21
`A. Earphones and Loudspeakers ................................................................... 21
`B. Form-Factors for the Housing Structure for Headphones ........................ 25
`1. On-The-Ear (Supra-Aural) Design ..................................................... 29
`2. Over-The-Ear (Circum-Aural) Design ............................................... 33
`3. In-the-Ear (Earbud) Design ................................................................ 36
`4. Headband-based Design ..................................................................... 40
`5. Hanger-Bar Design ............................................................................. 42
`C. Fully Wireless Design .............................................................................. 45
`D. User-Controls ........................................................................................... 50
`VII. THE HEADPHONE ASSEMBLY DESIGNS DISCLOSED IN
`THE ’155 PATENT ...................................................................................... 51
`VIII. THE HEADPHONE ASSEMBLY DESIGNS CLAIMED BY THE
`’155 PATENT ................................................................................................ 57
`A. Claim 1 ..................................................................................................... 58
`B. Claims 2-3 ................................................................................................ 59
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`– i –
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`C. Claims 4, 6-8 ............................................................................................ 60
`D. Claim 5 ..................................................................................................... 61
`E. Claim 9 ..................................................................................................... 61
`IX. THE HEADPHONE ASSEMBLY DESIGNS DISCLOSED IN
`THE PRIOR ART ........................................................................................ 62
`A. Rezvani (Ex. 1016): U.S. Patent Application Publication No.
`2007/0165875 ........................................................................................... 62
`B. Skulley (Ex. 1017): U.S. Patent No. 6,856,690 ........................................ 67
`C. Rosener (Ex. 1020): U.S. Patent Application Publication No.
`2008/0076489 ........................................................................................... 69
`D. Nakagawa (Ex. 1022): U.S. Patent Application Publication No.
`2003/0223604 ........................................................................................... 75
`E. Wilson (Ex. 1021): U.S. Patent No. 7,457,649 ........................................ 77
`CLAIM LISTING ............................................................................................. 81
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`– ii –
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`
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`I, John G. Casali, declare:
`
`1.
`
`I have been retained by Wolf, Greenfield & Sacks, P.C., counsel for
`
`Petitioner Bose Corporation, to submit this declaration in connection with Bose’s
`
`petition for inter partes review of claims 1-14 (the “challenged claims”) of U.S.
`
`Patent No. 10,368,155 (Ex. 1001, “the ’155 patent”). I am being compensated for
`
`my time at my standard rate of $600 per hour, plus actual expenses. My
`
`compensation is not dependent in any way upon the outcome of the inter partes
`
`review of the ’155 patent.
`
`I.
`
`BACKGROUND AND QUALIFICATIONS
`
`2.
`
`I am the John Grado Chaired Professor of Industrial and Systems
`
`Engineering at Virginia Polytechnic Institute and State University in Blacksburg,
`
`Virginia (“Virginia Tech”). I am also the founder and Director of the Auditory
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`Systems Laboratory at Virginia Tech.1 I have been an engineering professor at
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`Virginia Tech since 1982, and founded the Auditory Systems Laboratory in 1983.
`
`
`1 My work at Virginia Tech as a Chaired Professor and former Department Head
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`involves the procurement of research and foundation funding support from a
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`variety of outside sources, including U.S. military, U.S. government, and corporate
`
`sources. Over the years, I have been responsible for procuring more than $14
`
`million in total funding support at Virginia Tech, approximately $6M of which is
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`– 1 –
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`3.
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`I am a Founding Partner and Chief Technology Officer of Hearing,
`
`Ergonomics & Acoustics Resources LLC, d/b/a “H.E.A.R. LLC,” a small
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`consulting company chartered in Virginia in 2015 that specializes in hearing-
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`related, ergonomics, and acoustical consulting as applied to product and systems
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`design, product testing and evaluation, intellectual property assistance, forensics
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`and litigation support, and military research and development.
`
`4.
`
`I attended Virginia Tech as an undergraduate and graduate student,
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`obtaining a B.S. in Psychology in 1977, a Master of Science in 1979, and a Ph.D.
`
`in Industrial Engineering with concentration in Human Factors Engineering in
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`1982.
`
`5.
`
`I have been certified since 1993 by the Board of Professional
`
`Ergonomists as a Certified Professional Ergonomist (CPE), registration #222.
`
`A. Research Contracts and Grants at Virginia Tech
`and at H.E.A.R. LLC
`
`6.
`
`In 1983, I founded the Auditory Systems Laboratory at Virginia Tech,
`
`and since that time, have served as its sole Director. My work at Virginia Tech as a
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`Chaired Professor and former Department Head involves the procurement of
`
`
`directly related to the support of research on applied acoustics and ergonomics
`
`issues. None of this funding is related in any way to this case nor the outcome of it.
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`– 2 –
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`research and foundation funding support from a variety of outside sources,
`
`including U.S. military, U.S. government, and corporate sources.
`
`7.
`
`At Virginia Tech, I have served as Principal Investigator on over 100
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`sponsored research contracts and grants, with over half of these being conducted
`
`for various U.S. military branches or military equipment suppliers. The largest
`
`single category of these projects involves hearing protection and headphone
`
`research, development and/or testing.2 My total research contract and grant
`
`funding at Virginia Tech exceeds $6 million, with another $8 million in private
`
`foundation support of various types.3
`
`8.
`
`The Auditory Systems Laboratory physical facility consists of
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`anechoic, reverberant, and hemi-anechoic sound chambers, as well as an outdoor
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`acoustic test range. At the Auditory Systems Laboratory, we apply principles and
`
`methods of human factors engineering, ergonomics, and acoustics to solve research
`
`problems concerning human hearing conservation, auditory information display,
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`auditory situation awareness, auditory warnings and alarms, communications
`
`systems, and auditory product design. The Laboratory is equipped to provide
`
`2 Some of this work is military sensitive, subject to United States ITAR and Export
`
`Controls, and/or is proprietary.
`
`3 None of this funding is related in any way to this matter or its outcome.
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`– 3 –
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`versatile research and testing services for a wide variety of acoustics, hearing
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`protection and human factors-related applications, including attenuation testing and
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`noise reduction rating (NRR) testing for hearing protection devices per American
`
`National Standards Institute (ANSI) and United States Environmental Protection
`
`Agency (EPA) requirements. The Laboratory is further known for its seminal
`
`work over the past 15 years in the testing and measurement of hearing protection
`
`and headphone effects on auditory situation awareness, and for developing
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`protocols and training systems for improving a soldier’s (or others’) abilities to
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`identify and localize sounds via regimented training in an indoor environment, and
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`the transfer of that training to the field environment.
`
`9.
`
`Clients of the Auditory Systems Laboratory have included the U.S.
`
`Army Research Lab, U.S. Army Aeromedical Research Lab, U.S. Naval
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`Submarine Medical Research Lab, Office of Naval Research, U.S. Air Force,
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`NASA, Federal Highway Administration, U.S. Bureau of Mines, National Institute
`
`for Occupational Safety and Health (NIOSH), National Institutes of Health,
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`Virginia Center for Innovative Technologies, United Parcel Service, Lockheed-
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`Martin, Battelle, Inc., ALCOA, Bose Corporation, Cabot Safety Corporation,
`
`Aearo Corporation, Peltor AB (Sweden), ITT, Inc., Etymotic Research, Inc., Henry
`
`Dreyfuss Associates, Noise Cancellation Technologies, Sound Innovations
`
`Corporation, Korea Research Fund, Carilion Biomedical Institute, Adaptive
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`– 4 –
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`Technologies, Inc., Shure Corporation, Tetra Corporation, and Toyota Motor
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`Corporation, among others.
`
`10. At H.E.A.R LLC, I have been largely responsible for procuring
`
`approximately $1.2 million in funding on contracts from the U.S. Office of Naval
`
`Research for hearing protection and auditory situation awareness research, as well
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`as additional smaller funding amounts from various companies for hearing
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`protection and earphone research and development.
`
`11. Over the course of my 38-year university research and consulting
`
`career, my core areas of focus have included acoustics and human hearing,
`
`auditory situational awareness, acoustical testing and noise measurement, and
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`hearing-related product design, as well as signal detection, localization, and speech
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`communications in noise. I also have worked in the areas of human mental
`
`workload, driver performance, aircraft pilot performance and driving/flight
`
`simulator design and application.
`
`12. The most extensive core area of my work has involved the design and
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`testing of hearing protection devices (“HPDs”), headsets, earphones, headphones,
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`and hearing-protective Tactical Communications and Protective Systems
`
`(“TCAPS”). This line of work has included research inquiry into measurement
`
`standards, test protocols, variables of influence on attenuation and comfort
`
`achieved, design features and alternatives, and the testing of attenuation, auditory
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`– 5 –
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`situational awareness, comfort and usability, and speech intelligibility. As part of
`
`this work, my laboratory has conducted hundreds of NRR tests on all types of
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`hearing protectors, as well as Microphone-in-Real-Ear (MIRE) and acoustical test
`
`fixture (ATF) tests to determine attenuation and other performance aspects
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`provided by specialized products, such as Active Noise Reduction (ANR) and
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`electronic sound transmission devices. In many instances of my research work with
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`military and civilian headsets, HPDs, and headphones, since the mid-1980’s I have
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`emphasized the importance of user acceptance of devices, ease-of-fit, stability in
`
`the ear, comfort, and various design features and alternatives, in addition to the
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`more objective performance measures of attenuation and situation awareness.
`
`Example publications over the years on these usability and performance subjects
`
`include Casali, J. G., Ahroon, W. A., and Lancaster, J. (2009) A field investigation
`
`of hearing protection and hearing enhancement in one device: For soldiers whose
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`ears and lives depend upon it. Noise and Health Journal, 11(42), 69-90; Casali, J.
`
`G. (1992) Comfort: the "other" criterion for hearing protector design and selection.
`
`Proceedings of the 17th Annual National Hearing Conservation Association
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`Conference, Cincinnati, Ohio, April 1-4, 47-53. (Also in Spectrum, 9, Supplement
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`1, Winter 1992, 26); Park, M. Y. and Casali, J. G. (1991) An empirical study of
`
`comfort afforded by various hearing protection devices: laboratory versus field
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`results. Applied Acoustics, 34, 151-179; Casali, J. G., Lam, S. T., and Epps, B. W.
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`– 6 –
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`(1987) Rating and ranking methods for hearing protector wearability. Sound and
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`Vibration, 21(12), 10-18. All of my publications are listed on my resume, but one
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`particular example which involves electronic ear-mounted product (hearing
`
`protector and headphone) design features is: Casali, J. G. (2010) Powered
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`electronic augmentations in hearing protection technology circa 2010 including
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`Active Noise Reduction, electronically-modulated sound transmission, and tactical
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`communications devices: Review of design, testing, and research. International
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`Journal of Acoustics and Vibration, 15(4), 168-186.
`
`13. Through my work at the Auditory Systems Laboratory and more
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`generally throughout my career, I am deeply familiar with, and have applied
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`extensively, the EPA regulations on hearing protector testing and labeling (40 CFR
`
`§ 211)4 and ANSI standards governing hearing protector testing. I am also familiar
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`with, and have applied, certain human factors and acoustical aspects of U.S.
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`military standards.
`
`
`4 U.S. Environmental Protection Agency (EPA) (1979), Noise Labeling
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`Requirements for Hearing Protectors,” 40 CFR § 211, Code of Federal
`
`Regulations, Federal Register, Washington, DC. (Hereafter, 40 CFR § 211.)
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`– 7 –
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`
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`B. Research and Practice Focus Areas
`14.
`
`I have had significant involvement with military and civilian device
`
`testing and evaluation efforts, with particular emphasis on hearing protection and
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`headphone effectiveness, and its impact on an individual’s hearing and
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`communications abilities, which affects situational awareness. The U.S. military
`
`has contracted with my Auditory System Laboratory to conduct HPD testing and
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`engage in analysis of HPD effectiveness for tactical situations, situation awareness,
`
`or other mission-specific situations.
`
`15.
`
`I am currently the Principal Investigator on a $372,000 contract for
`
`the Office of Naval Research, to develop a portable auditory localization test and
`
`training system to determine effects of hearing protectors on situation awareness
`
`and to train soldiers to improve these abilities in an indoor barracks or office
`
`environment.
`
`16.
`
`In November 2015, I completed as Principal Investigator at Virginia
`
`Tech, a $470,000 contract for the Department of Defense’s Hearing Center of
`
`Excellence, to develop a comprehensive, objective test battery for measurement of
`
`the effects of HPDs and TCAPS on military personnel’s auditory situational
`
`awareness. This work included development of test protocols and metrics for
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`detection, recognition and identification, localization, and communications (known
`
`as ‘DRILCOM’) while wearing HPDs and TCAPS.
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`– 8 –
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`17. From 2010 to 2013, at the request of the Naval Submarine Medical
`
`Research Lab (NSMRL) in Groton, CT, I served on an Interagency Personnel
`
`Agreement (paid salary) with my regular employer (Virginia Tech), to complete a
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`research contract with NSMRL to develop and install a calibrated hearing
`
`protection device attenuation-testing facility on the Navy base in Groton.
`
`C.
`
`Professional Service, Recognitions and
`Accomplishments
`
`18.
`
`I am a Fellow of the Human Factors and Ergonomics Society, and
`
`have won several awards from that Society, as follows. In 2017, I received the
`
`Lauer Safety Award for outstanding contributions in the application of human
`
`factors engineering to safety issues. I also received the Paul M. Fitts Education
`
`Award in 1997 and the Jack A. Kraft Innovator Award in 1991. I am also a Fellow
`
`of the Institute of Industrial & Systems Engineers, and received the Dr. David. F.
`
`Baker Distinguished Research Award in 1996, and the Albert G. Holzman
`
`Distinguished Educator Award in 2005.
`
`19.
`
`I served as an appointed member of the National Institutes of Health
`
`(NIH) Consensus Development Panel on “Noise and Hearing Loss” in 1990, which
`
`authored the NIH statement on this subject. It was subsequently published in the
`
`Journal of the American Medical Association, 1990, 263(23), 3185-3190, entitled
`
`“Noise and Hearing Loss.” I was elected as President of the National Hearing
`
`Conservation Association (NHCA) for 2007 and have since served on its
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`– 9 –
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`
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`Leadership Advisory Team. In 2009, I received the NHCA’s Outstanding Hearing
`
`Conservationist Award, and I have twice received NHCA’s Outstanding Lecture
`
`Award, as well as the Media Award.
`
`20.
`
`In 2014, I received, in conjunction with former Ph.D. student and co-
`
`author Lt. Colonel Kristen Casto of the U.S. Army, the Joseph L. Haley Writing
`
`Award from the Aerospace Medical Association - Army Aviation Medical
`
`Association, for the best helicopter-related aerospace medicine publication in any
`
`media for the year 2013, in recognition of our paper in the Human Factors
`
`Journal, 2013, 55(3) 486-498, entitled “Effects of Headset, Flight Workload,
`
`Hearing Ability, and Communications Message Quality on Pilot Performance.”
`
`This paper analyzed hearing protective headsets as used in the U.S. military’s
`
`Blackhawk helicopter cockpit.
`
`21.
`
`In 2016, I received the Safe-in-Sound Award at the NHCA
`
`international conference, awarded through a partnership between NIOSH and
`
`NHCA, for research on auditory situation awareness and development of test
`
`systems and protocols for assessing the effects of hearing protection and
`
`headphone devices on auditory situation awareness.
`
`22. Most recently, in recognition of my work outside the university
`
`setting, I received the 2020 Dean of Engineering Award for Excellence in
`
`Outreach at Virginia Tech for providing engineering assistance to the community,
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`
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`businesses, and other entities. I am also a member of the Virginia Tech Outreach
`
`Academy of Excellence.
`
`23.
`
`I have served, or am currently serving, as a member of five American
`
`National Standards Institute (ANSI) Committees, as well as several other standards
`
`committees for other organizations, such as the U.S. Technical Advisory Group
`
`(TAG) to the International Standards Organization Technical Committee 159
`
`(Ergonomics). Four of the ANSI committees are/were directly related to hearing
`
`protection device testing. I also played a large role in the development of the
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`Method B (inexperienced subject fit) provisions of ANSI S12.6-1997,
`
`subsequently revised in several later versions and currently identified as ANSI
`
`S12.6-2016.
`
`24.
`
`I have been an invited presenter or participant at meetings,
`
`conferences, and hearings organized by Defense Advanced Research Projects
`
`Agency (DARPA), North Atlantic Treaty Organization (NATO) Aerospace
`
`Medical Panel, National Academy of Engineering, National Institutes of Health,
`
`National Fire Protection Association, American Psychological Association,
`
`Transportation Research Board, EPA, NHCA, Human Factors and Ergonomics
`
`Society, and the Institute of Industrial Engineers, among other organizations.
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`– 11 –
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`
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`D.
`25.
`
`Patents and Publications
`
`I am inventor or co-inventor on seven United States utility patents and
`
`one European patent. Five of these patents relate directly to hearing protection or
`
`other in-ear devices.
`
`26.
`
`I have published approximately 155 journal and proceedings articles,
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`70 various other papers, 28 book chapters, 40 technical reports for government and
`
`military agencies, and 88 technical reports for companies. The majority of articles
`
`and chapters relate specifically to human hearing, noise and/or hearing protection
`
`issues.
`
`E. Consulting and Outreach outside the University
`27. Through H.E.A.R. LLC (and prior to that as a sole proprietor), I have
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`served as a paid consultant on over 150 projects and other efforts for over 60
`
`companies, government agencies and law firms on various human hearing, hearing
`
`protection design and testing, noise, safety and ergonomics issues.
`
`28. Under Virginia Tech’s outreach mission, I have provided pro bono
`
`assistance on over 60 separate efforts to communities and agencies outside the
`
`university. The latter includes a lead role for two municipalities in drafting and
`
`assistance with the promulgation process for noise ordinance legislation.
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`
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`29.
`
`I have also provided approximately 50 outreach workshops, short
`
`courses and seminars to professional organizations, government/military agencies,
`
`and universities.
`
`30.
`
`I have also consulted for a variety of public, private and governmental
`
`entities on issues relating to the design of headsets. A few examples follow. In
`
`2017, I did proprietary company design work on insert earphones addressing
`
`comfort, attenuation and range of fit issues. Over a period of several years during
`
`the 2000 decade, I assisted Custom Protect Ear on various in-ear device design and
`
`performance issues, including hearing protectors and communications headsets.
`
`Starting in 2007, I was a Scientific Advisory Board member for Personics, Inc., a
`
`hearing protection and headphone company, for which I consulted on product
`
`design and patenting. In 2008-09, I consulted for Shure Corporation on earphone
`
`design issues. In 2002, I performed testing of a circumaural radio headset for
`
`Swedish company Peltor AB. In 1994, I consulted for Noise Cancellation
`
`Technologies on issues relating to an active noise cancellation headset. In 1993, I
`
`consulted for Booze-Allen & Hamilton, Inc. on active noise cancellation headsets.
`
`Additional consulting experience for headset and other ear-related technologies are
`
`listed in my CV (Ex. 1006).
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`– 13 –
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`

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`
`
`F.
`31.
`
`Teaching and Advising at Virginia Tech
`
`I have taught seven different courses at Virginia Tech, and developed
`
`four of them, including courses in Human Factors in Systems Design, Human
`
`Audition, Noise, and Auditory Displays, Forensics and Litigation for Human
`
`Factors Engineers, and Introduction to Human Factors Engineering.
`
`32.
`
`I have taught human factors in product and systems design for 38
`
`years, emphasizing the importance of evaluating and accommodating human
`
`capabilities, limitations, and physical, psychological, and sensory/perceptual
`
`characteristics in the design of human-machine systems and products to improve
`
`the safety, efficiency, and usability of these systems. I have taught courses at the
`
`Master’s (M.S.) and Doctoral (Ph.D.) level. For example, my Human Factors in
`
`Systems Design course entails the complete design process using a human-centered
`
`design philosophy, and relying on several example projects in product design and
`
`public system design. The centerpiece project of this course requires the students to
`
`redesign a headband-mounted, in-ear product that couples to the outer ear’s concha
`
`bowl and ear canal aperture regions of the pinnae. My Human Hearing and
`
`Auditory Display Design course covers sound and noise and its measurement;
`
`human hearing and its measurement, injury, protection, and compensation;
`
`auditory display and warnings design; consensus standards for product testing; and
`
`ear-related product design and testing.
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`– 14 –
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`

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`
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`33.
`
`I have been faculty chairman (i.e., major advisor) for 25 Ph.D. and 31
`
`Master’s students who have completed degrees to date. Of the 25 Ph.D. students,
`
`eight were U.S. military officers who came to Virginia Tech to study with me,
`
`three were U.S. military civilian employees, and three were military audiologists
`
`per prior training and practice. Seven of these military-affiliated Ph.D. students
`
`worked on hearing protection and headset research problems under my direction.
`
`II. MATERIALS REVIEWED AND CONSIDERED
`34. My opinions provided in this declaration are based on my years of
`
`education, research, experience, and background in the field of headphone
`
`assembly design, as well as my investigation and study of relevant materials for
`
`this declaration. When developing the opinions set forth in this declaration, I
`
`assumed the perspective of a person having ordinary skill in the art of headphone
`
`assembly design, as set forth in Section V below. In forming my opinions, I have
`
`studied and considered the materials identified in the list below.
`
`Exhibit Description
`1001
`U.S. Patent No. 10,368,155
`1002
`Prosecution History of U.S. Patent No. 10,368,155
`1007
`PCT/US2009/039754 (“PCT Application”)
`1013
`PCT Publication No. WO2009/126614 (“Pelland”)
`1016
`U.S. Patent Application Publication No. 2007/0165875 (“Rezvani”)
`1017
`U.S. Patent No. 6,856,690 (“Skulley”)
`1020
`U.S. Patent Application Publication No. 2008/0076489 (“Rosener”)
`1021
`U.S. Patent No. 7,457,649 (“Wilson”)
`
`– 15 –
`
`

`

`
`
`1022
`1023
`1024
`1025
`1026
`1027
`
`1033
`1035
`1041
`1042
`1048
`
`1049
`1050
`1076
`
`1077
`
`U.S. Patent Application Publication No. 2003/0223604 (“Nakagawa”)
`U.S. Patent Application Publication No. 2007/0253579
`U.S. Patent No. 7,627,289
`U.S. Patent No. 5,889,870
`U.S. Patent Application Publication No. 2008/0031475
`IEEE Std. 315, Graphic Symbols for Electrical and Electronic Diagrams
`(1975) (Reaffirmed 1993)
`U.S. Patent No. 5,761,298
`U.S. Patent No. 6,295,366
`U.S. Patent Application Publication No. 2007/0149261
`U.S. Patent No. 8,180,078
`Internet Archive of
`http://www.bose.com/controller?event=VIEW_PRODUCT_PAGE_EV
`ENT&product=headphones_audio_subcategory (Nov. 1, 2007)
`U.S. Patent Application Publication No. 2007/0092098
`U.S. Patent Application Publication No. 2008/0226094
`Skrainer, S. F., Royster, L.H., Berger, E.H., & Pearson, R. G. “Do
`Personal Radio Headsets Provide Hearing Protection,” Sound and
`Vibration, 19(5), (1985), 16-19
`Casali, J. G. & Park, M. Y., “Attenuation performance of four hearing
`protectors under dynamic movement and different user fitting
`conditions,” Human Factors, 32(1), (1990), 9-25
`U.S. Patent No. 7,564,989
`
`1078
`
`III. SCOPE OF MY OPINIONS
`
`35.
`
`The conclusions and opinions that I have expressed in this declaration
`
`are my own, and of my own formulation and expression. My conclusions and
`
`opinions are based on my education, experience, and background in the technical
`
`fields and areas of endeavor discussed below in Section V regarding the person of
`
`ordinary skill in the art (“POSA”), with the understanding that my expertise would
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`– 16 –
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`

`
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`be at the expert level, not at the POSA level.5 I hold these conclusions and
`
`opinions to a reasonable degree of scientific certainty.
`
`36.
`
`I understand that Bose has engaged another expert, Dr. Tim Williams,
`
`to provide opinions on issues relating to the wireless communications aspects of
`
`the challenged claims. I have not been asked to provide opinions on these topics
`
`and have not discussed or reviewed Dr. Williams’s expert declaration or any drafts
`
`of his declaration. Instead, I have been asked to provide an overview of the state
`
`of the art of the non-wireless communication aspects of wireless headphone
`
`assembly design by 2008, such as the known form-factor options for a wireless
`
`headphone assembly and the extent to which a product designer with experience
`
`with headphone assembly design and working in a collaborative team with a
`
`person having experience with wireless functionality (see Section V below for a
`
`description of a POSA) would have had reasons to design, and a reasonable
`
`expectation of success in designing, a wireless headphone assembly using each of
`
`the form factors that I discuss in more detail below in Sections VI, VIII-IX.
`
`
`5 As I note in Paragraph 43 below, when I refer to “POSA” in this declaration I am
`
`referring to the engineer or product designer with headphone experience that
`
`collaborates in a team with a person having experience in wireless functionality, as
`
`I discussed in Section V below.
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`– 17 –
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`IV. MY UNDERSTANDING OF RELEVANT PRINCIPLES OF
`PATENT LAW
`
`37.
`
`In developing my opinions, I discussed various relevant legal
`
`principles with Petitioner’s attorneys. I understood those legal principles when
`
`they were explained to me and have relied upon those legal principles, as explained
`
`to me, in the course of forming the opinions set forth in this declaration. My
`
`understanding in this respect is as follows:
`
`38.
`
`I understand that “inter partes review” (IPR) is a proceeding before
`
`the United States Patent & Trademark Office for evaluating the patentability of an
`
`issued patent’s claims based on prior-art patents and printed publications.
`
`39.
`
`I understand that, in this proceeding, Petitioner has the burden of
`
`proving that the challenged claims of the ’155 patent are unpatentable by a
`
`preponderance of the evidence. I understand that “preponderance of the evidence”
`
`means that a fact or conclusion is more likely true than not true.
`
`40.
`
`I understand that, in IPR proceedings, claim terms in a patent are
`
`given their ordinary and customary meaning as understood by a POSA in the
`
`context of the entire patent and the prosecution history pertaining to the patent. If
`
`the specification provides a special definition for a claim term that differs from the
`
`meaning the term would otherwise possess, then the specification’s special
`
`definition controls. I have applied these standards in preparing the opinions in this
`
`declaration.
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`– 18 –
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`
`
`V.
`
`PERSON OF ORDINARY SKILL IN THE ART
`
`41.
`
`I understand from Petitioner’s attorneys that Bose proposes that a
`
`POSA would principally have had a background in wireless networks, including at
`
`least a bachelor’s degree in electrical engineering or a related field and experience
`
`with ad hoc and infrastructure wireless networks. A POSA would have been a
`
`member of a team including an engineer or product designer with experience in
`
`headphone design.
`
`42.
`
`I agree that in the art of headphone assembly design for a wireless
`
`headphone assembly, a person would have a background in wireless technology
`
`and, if that person did not have sufficient experience with headphone design,
`
`would have been a member of a team including at least one other person with a
`
`background in engineering or product design bringing experience in headphone
`
`design.
`
`43.
`
`I have been informed and understand that for purposes of discussing
`
`the state of the prior art, my opinions should be provided from the perspective of
`
`the engineer or product design person described above in Paragraph 41 who would
`
`have worked in a collaborative team with a person with a background in wireless
`
`technology, based on the understanding of that engineer or product design person
`
`at the time of the patent claim’s alleged priority date, which I have been asked by
`
`Petitioner’s attorneys to assume is April 7, 2008. I have been informed and
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`– 19 –
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`
`
`understand that the person of ordinary skill in the art of headphone design is
`
`presumed to be aware of all pertinent prior art and the conventional wisdom in the
`
`art, and is a person of ordinary creativity. I have applied this standard throughout
`
`my declaration and, unless otherwise stated, when I refer to a “POSA” thr