UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`KOSS CORPORATION,
`Patent Owner.
`_____________________
`
`CASE: IPR2021-00381
`U.S. PATENT NO. 10,491,982
`_____________________
`
`DECLARATION OF JOSEPH C. MCALEXANDER III
`
`September 28, 2021
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`Page 1 of 91
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`KOSS-2038
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`KOSS CORPORATION,
`Patent Owner.
`_____________________
`
`CASE: IPR2021-00381
`U.S. PATENT NO. 10,491,982
`_____________________
`
`DECLARATION OF JOSEPH C. MCALEXANDER III
`
`September 28, 2021
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`Page 1 of 91
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`Case IPR2021-00381, U.S. Patent No. 10,491,982
`Declaration of Joseph C. McAlexander III
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`TABLE OF CONTENTS
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`
`I.
`BACKGROUND AND QUALIFICATIONS .............................................. 1
`II. MATERIALS REVIEWED .......................................................................... 4
`III. SUMMARY OF THE '982 PATENT .......................................................... 4
`IV. PERSON OF ORDINARY SKILL IN THE ART ...................................... 7
`V. APPLICABLE LEGAL PRINCIPLES ..................................................... 10
`A. Claim Construction ........................................................................ 10
`B. Obviousness ................................................................................... 11
`VI. SUMMARY OF PRIOR ART FOR GROUND 1A .................................. 14
`A. Rosener ........................................................................................... 15
`B. Hankey ........................................................................................... 22
`VII. CLAIM 1 WOULD NOT HAVE BEEN OBVIOUS TO A POSITA ..... 23
`A. A POSITA Would Not Have Been Technically Qualified to
`Modify Rosener in View of Hankey (and Dyer) ........................... 23
`B. A POSITA Would Not Understand the Transducers of Rosener and
`Thus, Could Not Modify Them in View of Hankey ...................... 26
`C. A POSITA Would Not Understand the Analog-to-Digital
`Converter and Buffer of Rosener and Thus, Could Not Modify
`Them in View of Hankey ............................................................... 27
`D. Petitioner’s Illustration of Rosener-Hankey-Dyer Evidences the
`Acoustic and Mechanical Infeasibility of the Asserted
`Combinations ................................................................................. 30
`VIII. THE PROPOSED COMBINATIONS FAIL TO TEACH EVERY
`TECHNICAL FEATURE RECITED BY THE CLAIMS ...................... 33
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`A. The Proposed Combinations Fail to Teach Two Wireless
`Earphones, Each Having a Microphone ......................................... 33
`B. A POSITA Would Not be Motivated to Modify Rosener and
`Hankey (and Dyer) to Include a Microphone in Each Earphone ... 37
`IX. DEPENDENT CLAIMS .............................................................................. 41
`A. The Rosener, Hankey, and Price (and Dyer) Combination Does
`Not Teach or Suggest the “Firmware Upgrades” of Claim 14 ...... 41
`B. The Rosener and Hankey (and Dyer) Combination Does Not Teach
`or Suggest the “Activation of the Microphone ” of Claim 15 ....... 45
`C. The Rosener and Hankey (and Dyer) Combination Does Not Teach
`or Suggest the “Digital Signal Processor” of Claim 19 ................. 48
`SECONDARY CONSIDERATIONS BUTTRESS MY OPINIONS
`THAT THE CHALLENGED CLAIMS WOULD NOT HAVE BEEN
`OBVIOUS ..................................................................................................... 53
`XI. CONCLUDING REMARKS ...................................................................... 55
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`X.
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`Declaration of Joseph C. McAlexander III
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`1.
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`I, Joseph C. McAlexander III, declare as follows:
`
`2.
`
`I have been retained by counsel for Koss Corp. (“Koss”) as a technical
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`expert in connection with the inter partes review (“IPR”) proceeding identified
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`above for U.S. Patent 10,491,982 (the “'982 Patent”). I submit this declaration in
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`support of Koss’s response to the petition.
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`I.
`
`BACKGROUND AND QUALIFICATIONS
`3.
`I have a Bachelor of Science in Electrical Engineering from North
`
`Carolina State University and have studied neural science at the University of
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`Texas Graduate School of Biomedical Science.
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`4.
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`Upon completion of my electrical engineering degree in 1969, I was
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`commissioned as an officer in the U.S. Army. For 2 years, I managed the air
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`defense operation for the New England area, which included radar and secure
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`communication channels to aircraft, missile batteries, and U.S. Command. I then
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`commanded a signal battalion in South Korea for 1 year, designing and
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`orchestrating at the division level the first of its kind communication power grid
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`mapping study using AM and FM transmission/reception, among others, and
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`utilizing crypto security transmission/reception methods.
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`5.
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`I am a Registered Professional Engineer in the state of Texas (Reg.
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`No. 79,454) and am a recognized inventor on thirty-one U.S. patents. I have forty-
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`nine years of professional experience, during which I designed and analyzed a
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`1
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`variety of microcircuits, semiconductors, and control systems, amongst other
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`technologies for Texas Instruments, Inc. and EPI Technologies, Inc. Specifically, I
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`have designed Dynamic Random Access Memories (“DRAMs”), Static Random
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`Access Memories (“SRAMs”), Charged Coupled Devices (“CCDs”), Shift
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`Registers (“SRs”), and a variety of functional circuits, including input/output
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`buffers for addresses and data transmission, decoders, clocks, sense amplifiers,
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`fault tolerant parallel-to-serial data paths for video applications, level shifters,
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`converters, pumps,
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`logic devices, wireless communication systems, and
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`microelectromechanical systems (“MEMs”). I possess significant expertise in
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`operations and manufacturing associated with these technologies, including a
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`sophisticated knowledge of quality control, testing, reliability, and failure analyses.
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`6.
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`I have conducted high level instruction to design and process
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`engineers and managers at Texas Instruments, among others, in Solid State Device
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`Physics, Semiconductor Processing, Circuit Design Techniques, and Statistical
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`Quality Control Methods. I have also instructed corporate audiences in
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`Effectiveness Training, Japanese Manufacturing Techniques, and problem
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`recognition and solution methods and tools.
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`7.
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`As part of licensing of my IP circa 2002 – 2004, I negotiated and
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`executed a number of licensing and design programs to provide GPS tracking and
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`transmission of
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`information wirelessly, using paging and CDMA.
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` The
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`technologies included partnerships for skier tracking with Snowtrax, offender
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`tracking with Stellar Technology Enterprises, pet tracking with The Procter &
`
`Gamble Company, journalist tracking with CNN, asset tracking with TrackDaddy,
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`and family tracking with Disney, to name a few. I also advised a startup between
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`2013 and 2018 in peer-to-peer encrypted cellular communication.
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`8.
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`I have provided consultancy
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`services associated with
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`the
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`aforementioned technologies.
`
` My consulting career began with Cochran
`
`Consulting, Inc. in 1991. Currently, I am the President of McAlexander Sound,
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`Inc. and the Managing Director of McAlexander Sound Pte Ltd., where I offer
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`such consultancy services and serve as a Technical Advisor for highly-specialized
`
`matters. I provide expert witness services for the protection of intellectual
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`property. As an expert witness, I have investigated processes and designs
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`associated with personal computers, peripheral computers, software, and wireless
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`communications systems, including telephones, microprocessors, controllers,
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`memories, programmable logic devices, and other consumer electronics.
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`9.
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`As part of my work with McAlexander Sound, I have gained intimate
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`experience with sound and lighting systems. I am very familiar with how acoustic
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`speakers operate and the design issues associated with sound systems.
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`10. A copy of my curriculum vitae is attached as Appendix A hereto.
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`II. MATERIALS REVIEWED
`11.
` I considered information from various sources in forming my
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`opinions expressed in this declaration. In addition to drawing from over four
`
`decades of experience in the field of circuit design and two decades of experience
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`with wireless technologies, I have also reviewed the IPR Petition and its exhibits,
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`including the
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`'982 Patent (APPLE-1001), Rosener (APPLE-1004), Hankey
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`(APPLE-1005), Dyer (APPLE-1006), Huddart (APPLE-1007), Paulson (APPLE-
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`1010), Vanderelli (APPLE-1012), Haupt (APPLE-1020), the Declaration of Dr.
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`Cooperstock (APPLE-1003), the deposition transcript for Dr. Cooperstock (KOSS-
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`2037), and the Declaration of Nicholas Blair (KOSS-2039). Furthermore, I
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`reviewed Koss’s response filed herewith, and the exhibits cited by it, and I agree
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`with its analysis and conclusions regarding the non-obviousness of the '982 Patent,
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`including that the commercial success of the AirPods and AirPods Pro headphones
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`confirm that the Challenged Claims would not have been obvious.
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`III. SUMMARY OF THE '982 PATENT
`12. The '982 Patent relates to a system comprising headphones that
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`comprise “a pair of first and second wireless earphones to be worn simultaneously
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`by a user, wherein the first and second earphones are separate such that when the
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`headphones are worn by the user, the first and second earphones are not physically
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`connected ….” APPLE-1001, 18:9-14. Each of the earphones comprises “a body
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`4
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`portion that comprises a wireless communication circuit….a processor circuit…an
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`ear canal portion…and at least one acoustic transducer.” Id., 18:16-24.
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`13.
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`In addition, each earphone comprises “an elongated portion that
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`extends away from the body portion such that the elongated portion extends
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`downwardly when the ear canal portion is inserted in the ear of [a] user,” a
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`“microphone…an antenna…and a rechargeable power source.” Id., 18:25-33.
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`Furthermore, “each earphone receives and plays audio content received wirelessly
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`via [a] Bluetooth wireless communication link[] from [a] mobile, digital audio
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`player.” Id., 18:37-40. The mobile, digital audio player is separate from the
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`headphones.
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`14.
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`In a first operational mode, the processor circuit receives digital audio
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`content from the digital audio player and the at least one acoustic transducer
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`outputs the received audio content. In a second operational mode, the wireless
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`communication circuit receives digital audio content from a remote digital audio
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`source over a wireless network, and the processor circuit processes the digital
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`audio content, and the at least one acoustic transducer outputs the audio content.
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`APPLE-1001, Abstract.
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`15. An example of the claimed headphones is depicted in Figure 1B of the
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`'982 Patent, reproduced below. The wireless earphone 10, shown in Figure 1B, has
`
`a body 12 that comprises “an ear canal portion 14 that is inserted in the ear canal of
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`the user of the earphone 10.” APPLE-1001, 3:26-27. As illustrated in Figure 1B,
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`the body 12 comprises an elongated portion that would extend downwardly when
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`the ear canal 14 portion is inserted in the ear of the user. The earphone 10 may
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`comprise a transceiver circuit 100, or wireless communication circuit, housed
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`within the body 12 that may transmit and receive wireless signals, including
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`receiving streaming audio for playing by the earphone 10. Id., 3:40-44. The
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`transceiver circuit may be housed in the exterior portion 15 of the earphone 10
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`and/or in the ear canal portion 14. Id., 3:44-46.
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`
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`16. Figure 3 of the '982 Patent, reproduced below, shows various
`
`components of the earphone 10. Each earphone 10 includes transceiver circuit 100
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`and related peripheral components. APPLE-1001, 6:35-37. The peripheral
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`components comprise a power source 102, a microphone 104, one or more acoustic
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`transducers 106, and an antenna 108. Id., 6:37-41. The transceiver circuit 100 and
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`some of the peripheral components may be housed within the body 12 of the
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`earphone 10. Id., 6:41-44. The transceiver circuit 100 may be implemented as a
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`single integrated circuit (IC), such as a system-on-chip (SoC), which is conducive
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`to miniaturizing the components of the earphone 10. Id., 6:49-54.
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`IV. PERSON OF ORDINARY SKILL IN THE ART
`17.
`I have been informed and understand that patent claims are construed
`
`in accordance with the ordinary and customary meaning of such claims as
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`understood by one of ordinary skill in the art and as supported by the prosecution
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`history pertaining to the patent.
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`18. Counsel has advised me that, to determine the appropriate skill level
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`of one skilled in the art, I may consider the following factors: (a) the types of
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`problems encountered by those working in the field and prior art solutions thereto;
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`(b) the sophistication of the technology in question, and the rapidity with which
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`innovations occur in the field; (c) the educational level of active workers in the
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`field; and (d) the educational level of the inventor. I considered those factors and
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`also considered the engineers that I worked with at both Texas Instruments, Inc.
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`and EPI Technologies, Inc.
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`19. The relevant technology field for the '982 Patent is compact, wireless
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`headphones configured to receive streaming audio wirelessly from a data source,
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`such as a digital audio player. APPLE-1001, 1:60-2:3. The '982 Patent describes
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`wireless networks such as “infrastructure” wireless networks and “ad hoc” wireless
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`networks. An “infrastructure” wireless network is described as “a wireless
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`network that uses one or more access points to allow a wireless-capable device …
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`to connect to a computer network, such as a LAN or WAN ….” Id. 3:14-18. An
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`infrastructure wireless network may use the Wi-Fi data protocol, for example. Id.,
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`5:40-43. An “ad hoc” wireless network is described as “a network where two (or
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`more) wireless-capable devices … communicate directly and wirelessly, without
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`using an access point.” Id., 3:11-14. The “ad hoc” communication link could use
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`Bluetooth, for example. Id., 4:63-67. The headphones may comprise one or more
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`in-ear, earphone elements. Id., 3:1-6.
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`20.
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`I understand that, according to Dr. Cooperstock, as of April 7, 2008, a
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`person of ordinary skill in the art (“POSITA”) to which the '982 Patent pertains
`
`“would have had at least a Bachelor’s Degree in an academic area emphasizing
`
`electrical engineering, computer science, or a similar discipline, and at least two
`
`years of experience in wireless communications across short distance or local area
`
`networks,” with the proviso that “[s]uperior education could compensate for a
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`deficiency in work experience, and vice-versa.” APPLE-1003, ¶30; KOSS-2037,
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`29:14-30:8. The proposed standard and skill level seem reasonable given the
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`context of the '982 Patent; and I adopt the proposed standard for purposes of my
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`opinions herein. A person with these skills and experience would not necessarily
`
`have skills or knowledge specific to designing the acoustic transducer for a
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`wireless earphone, fitting all of the components into a small form factor earphone,
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`or suitably powering a wireless earphone given the safety and size constraints.
`
`Also, experience with short distance wireless communications and LANs would
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`not necessarily translate to experience involving acoustics, wireless headphone or
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`wireless speakers.
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`V. APPLICABLE LEGAL PRINCIPLES
`21.
`I am not an attorney. For purposes of this declaration, I have been
`
`informed about certain aspects of the law that are relevant to my analysis and
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`opinions, as set forth below.
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`A. Claim Construction
`22.
`I understand that claim terms are generally given their ordinary and
`
`customary meaning, which is the meaning that the term would have to a person of
`
`ordinary skill in the art (POSITA) in question at the time of the invention, e.g., as
`
`of the earliest priority date of the patent. I further understand that the POSITA is
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`deemed to read the claim term not only in the context of the particular claim in
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`which a claim term appears, but in the context of the entire patent, including the
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`specification and file history.
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`23.
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`I am informed by counsel that the patent specification has been
`
`described as the best guide to determining the meaning of a claim term, and is thus,
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`highly relevant to the interpretation of claim terms. I understand that, for claim
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`terms that do not have a customary meaning within the art, the specification
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`usually supplies the best context of understanding the meaning of those terms. I
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`also understand that claim terms should be understood in the context of the claim
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`as a whole.
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`24.
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`I understand that the prosecution history can further inform the
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`meaning of the claim language by demonstrating how the inventors understood the
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`invention and whether the inventors limited the invention in the course of
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`prosecution, making the claim scope narrower than it otherwise would be.
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`Extrinsic evidence may also be consulted in construing the claim terms, such as my
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`experience and expert testimony.
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`25.
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`I have not been asked to provide any specific definitions for any of the
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`terms in the claims I have analyzed. If asked, I would undertake such an endeavor.
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`Accordingly, I have treated each claim term as it would be understood to have its
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`plain and ordinary meaning to a POSITA in light of the specification, as outlined
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`below.
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`26.
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`I understand that some claims are independent, and that these claims
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`are complete by themselves. Other claims refer to these independent claims and
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`are “dependent” from those independent claims. The dependent claims include all
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`the limitations of the claims from which they depend.
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`B. Obviousness
`27.
`I am informed that a patent cannot be properly granted for subject
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`matter that would have been obvious to a POSITA before the effective filing date
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`of the claimed invention and that a patent claim directed to such obvious subject
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`matter is invalid (under 35 U.S.C. § 103). I am also informed that, in assessing the
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`obviousness of claimed subject matter, one should evaluate obviousness over the
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`prior art from the perspective of a POSITA before the effective filing date of the
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`claimed invention. It is my further understanding that obviousness is to be
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`determined based on several factual inquiries:
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`i. The scope and content of the prior art;
`ii. The difference or differences between the subject matter of the
`claim (as construed) and the prior art; and
`iii. The level of ordinary skill in the art at the time of the invention of
`the subject matter of the claim.
`Against this background, the obviousness or non-obviousness of the claim is
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`determined.
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`28.
`
`I am informed that relevant objective factors (the “secondary indicia”)
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`indicating non-obviousness might be utilized to give light to the circumstances
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`surrounding the origin of the subject matter sought to be patented. I am informed
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`that relevant secondary indicia can include:
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`i. Commercial success of the products or methods covered by the
`patent claims;
`ii. A long-felt need for the invention;
`iii. Failed attempts by others to make the invention;
`iv. Teaching away from the invention by the prior art;
`v. Copying of the invention by others in the field;
`vi. Unexpected results achieved by the invention;
`vii. Praise, approval, or acclaim of the invention by others in the field;
`viii. Commercial acquiescence to the validity of the patents;
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`ix. Skepticism of experts;
`x. Expressions of surprise by experts and those skilled in the art at the
`subject matter of the claims; and
`xi. Whether the patentee proceeded contrary to accepted wisdom of
`the prior art.
`I am informed that, in order to be relevant to the issue of obviousness, such
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`secondary indicia must have some nexus to the claimed invention.
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`29.
`
`I am informed that sometimes obviousness is shown by combining
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`multiple prior art teachings under a test commonly referred to as the “teaching-
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`suggestion-motivation” or “TSM” test, which addresses the common situation
`
`where previously known components are recited in a claim. I am informed that,
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`according to the TSM test, it must be shown explicitly or implicitly that there is
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`some suggestion or motivation in the prior art to combine known elements to form
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`the claimed invention.
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`30.
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`I am also informed that additional rationales may support an
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`obviousness determination when dealing with a known problem, including:
`
`i. Combining prior art according to known methods to yield
`predictable results;
`ii. Simple substitution of a known element for another element to
`obtain predictable results;
`iii. Use of a known technique to improve similar devices, methods, or
`products in some way;
`iv. Applying a known technique to a known device, method, or
`product ready for improvement to yield predictable results;
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`v. Obvious to try―that is, choosing from a finite number of
`identified, predictable solutions with a reasonable expectation of
`success; and
`vi. Known work in one field of endeavor may prompt variations for
`use in either the same field or a different one based on design
`incentives or other market forces if the variations are predictable to
`a POSITA.
`I am informed that, when I conduct my analysis, I should guard
`
`31.
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`against hindsight, that is, using the claimed invention(s) to retroactively form the
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`basis of any combination of prior art references. To guard against this, a reason
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`must be shown to combine or modify prior art teachings to arrive at the claimed
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`subject matter, and I have taken into consideration any teachings as expressed
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`within the prior art references and the general common knowledge in the art at the
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`time the claimed invention(s) was filed to guide my determination whether or not a
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`POSITA would make any of the combinations or modifications proposed in the
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`Petition.
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`VI. SUMMARY OF PRIOR ART FOR GROUND 1A
`32. Petitioner asserts that independent claim 1 would have been obvious
`
`over Rosener (APPLE-1004) and Hankey (APPLE-1005) and, in the alternative,
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`would have been obvious over Rosener (APPLE-1004), Hankey (APPLE-1005),
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`and Dyer (APPLE-1006). As I understand the Petition, Petitioner relies on
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`Rosener to show all the technical components of the headphones of claim 1 but
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`introduces Hankey to support an argument that the components of Rosener can be
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`Case IPR2021-00381, U.S. Patent No. 10,491,982
`Declaration of Joseph C. McAlexander III
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`arranged in a compact form factor, as claimed. Pet. at 25. I summarize Rosener
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`and Hankey below and provide details about other references relied upon in the
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`Petition at various places in this declaration.
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`A. Rosener
`33. Figure 5 of Rosener, reproduced below, provides “an illustration of a
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`user wearing a wireless headset comprising first and second wireless earphone.”
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`APPLE-1004, ¶[0018]; Fig. 5. According to Rosener, “[e]ach of the first and
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`second wireless earphones 502, 504 comprises a housing containing a speaker, an
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`RF receiver or transceiver and a battery.” Id., ¶[0048].
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`Declaration of Joseph C. McAlexander III
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`34. The earphones 502, 504 in the embodiment shown in Figure 5,
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`include an earbud and a downwardly extending member. Rosener discloses that
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`the earphones “may be in the form of an earbud designed to fit into the concha of
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`the pinna of the user’s ear,” which is what appears to be shown in Figure 5, but
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`also discloses that the earphones may be in the form of “a canalphone, which can
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`be fitted within the ear canal of the user's ear; an over-the-ear circum-aural type
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`headphone; or any other suitable configuration that may be attached to, worn on, or
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`fitted within the user's ear.” Id., ¶[0030].
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`35. Referring to Figure 5, Rosener explains that “[t]he speaker may
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`comprise, for example, a magnetic element attached to a voice-coil-actuated
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`diaphragm, an electrostatically charged diaphragm, a balanced armature driver, or
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`a combination of one or more of these transducer elements.” Id. These drivers are
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`types of acoustic transducers used in acoustic speaker devices such as earphones.
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`They all have to move air in response to an electrical signal to make sound. They
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`also have different properties and characteristics that need to be considered when
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`designing acoustic devices, such as wireless earphones. Direct dynamic drivers,
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`like voice-coil actuated diaphragms, are the most common for uses where sound
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`quality is important because they offer wide dynamic range, high power handling,
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`high sensitivity, relatively simple design, and ruggedness. Electrostatic drivers
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`also provide high quality sound, but they are expensive and utilize high voltages.
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`Declaration of Joseph C. McAlexander III
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`On the other hand, a balanced armature driver might be preferred for a very small
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`device where a narrow frequency range is acceptable.
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`36. Figure 6 of Rosener, reproduced below, illustrates “a wireless system
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`that may be used to wirelessly transmit data signals to two or more data sinks.”
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`Id., ¶[0019]; Fig. 6. According to Rosener, “the first and second data
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`sinks 602, 606 may correspond to the first and second earphones 502, 504 in FIG.
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`5.” Id., ¶[0031]. Rosener further explains that, where “the data source 618 is an
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`analog data source, and the RF transmitters 610, 614 are digital transmitters, an
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`analog-to-digital converter (A/D converter) may be provided…to convert the
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`analog data signals to digital data signals.” Id., ¶[0033].
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`Declaration of Joseph C. McAlexander III
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`37. According to Rosener, the data streams transmitted from the data
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`source 618 (by the two transmitters 610, 614) have data packets formatted in
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`compliance with GFSK or FSK, for example. APPLE-1004, ¶[0034]. The
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`baseband portion of the transmitters 610, 614 can also format the data packets
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`according to the Bluetooth standard. Id., ¶[0035]. The data streams are modulated
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`onto RF carriers. Id., ¶[0036]. The receivers 604, 608 downconvert the modulated
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`RF carriers. Id. The baseband portions of the receivers 604, 608 may also contain
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`a digital-to-analog (A/D) converter. Id. The receivers 604, 608 also include data
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`buffers to compensate for data packet losses as described herein. Id., ¶[0037].
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`38. As shown in Rosener’s Figs. 7A and 7B, the transmitters may include
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`two-stage heterodyne circuits or homodyne circuits. APPLE-1004, ¶¶[0044]-
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`[0045]. The receivers may include superheterodyne receivers. Id., ¶[0046].
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`Referring to Rosener’s Fig. 8A, a first band-pass filter 804 filters the modulated RF
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`signal received by the antenna 802. The low-noise amplifier (LNA) 806 amplifies
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`the filtered signal. Filtered signals from a second band-pass filter 808 are coupled
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`to a mixer 810, which transfers the modulation of the RF signal to an intermediate
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`frequency (IF). After processing by a third BPF 814 and automatic gain control
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`amplifier 816, a baseband quadrature demodulator 818 extracts the baseband band
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`signals from the IF. The extracted baseband signals are digitized by A/D
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`converters 820, 822, and transmitted to the baseband processor 824. Id., ¶[0047].
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`39. Rosener’s Fig. 8B shows another embodiment for the receiver. The
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`embodiment in Fig. 8B is a direct conversion receiver that operates similar to the
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`superheterodyne receiver of Fig. 8A, but the conversion in Fig. 8B is performed in
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`one step instead of two. APPLE-1004, ¶[0048].
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`40. Rosener explains that “[t]iming differences between the first and
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`second data streams” for the respective wireless earphones may be “of concern,
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`particularly in applications where the data packets comprise audio data,” if the data
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`packets arrive more than 100 microseconds apart. APPLE-1004, ¶[0038]. In other
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`words, Rosener acknowledges what a POSITA would understand to be a serious
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`issue implicated by its proposed use of the earphones 502, 504—the inevitable
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`difference in latency between data sinks 602, 606. Id., ¶[0039]. Accordingly,
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`Rosener describes “a number of ways to compensate for differential latencies
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`between the first and second data streams.” Id., ¶¶[0039]-[0042].
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`41. Rosener describes two approaches for managing latency differentials
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`Declaration of Joseph C. McAlexander III
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`involving data buffers in each of the first and second RF receivers 604, 608. Id.,
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`¶¶[0039], [0042]. In the first data buffer approach, Rosener suggests controlling
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`the buffers so that they maintain a predetermined constant occupancy, explaining
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`that the analog-to-digital (A/D) converters in the earphones “may consume data
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`faster or slower than the data provided” by the transmitters. Id., ¶[0039]. If one of
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`the A/D converters is too slow, data sent by the corresponding transmitter “will be
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`lost at the sending end since the data has no place to go.” Id., ¶[0038].
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`Conversely, the A/D converter “will stall if it operates too fast, since it will run out
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`of data faster than data is provided to it.” Id.
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`42. The second approach involving data buffers involves monitoring the
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`occupancy of a data buffer of one of the first and second RF receivers 604, 608 and
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`adjusting the clock signals of the A/D converters. Id., ¶[0042]. If the occupancy
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`of a data buffer “is too low (or the receive clock/sample clock delay is decreasing),
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`the A/D clock is slowed down. Id. Conversely, if it is determined that the
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`occupancy of the data buffer is too high (or the delay is increasing), the A/D clock
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`is sped up.” Id.
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`43. Rosener discloses two other techniques for compensating the
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`differential latencies of the data streams at ¶[0040] and ¶[0041]. One approach
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`involves embedding a data sample clock, used by the first and second RF
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`transmitters 610 and 614, in the RF carrier signals used to carry the first and
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