UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
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`v.
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`KOSS CORPORATION,
`Patent Owner.
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`Case IPR2021-00592
`Patent 10,469,934
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`CORRECTED PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`

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`2. 
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`B. 
`
`C. 
`
`TABLE OF CONTENTS
`I.  INTRODUCTION .................................................................................................. 1 
`II. THE PRIOR ART RENDERS CLAIM 1 OBVIOUS ........................................... 2 
`A.  Haupt-Seshadri-Rao combination renders obvious “a remote,
`network-connected server that is in wireless communication with the
`mobile, digital audio player” ................................................................. 2 
`1. 
`Koss inappropriately attempts to limit the Haupt-Seshadri-Rao
`combination to the express teachings of Seshadri with respect to
`the capabilities of the mobile DAP ............................................. 2 
`Koss misinterprets the Petition’s mapping of the claimed
`“headphone assembly,” “remote, network-connected server,”
`and “mobile, digital audio player” .............................................. 5 
`Haupt-Seshadri-Rao combination renders obvious that the same
`network-connected server to which the headphone assembly initiates
`transmission of the request also transmits the firmware upgrades to
`the headphone assembly ........................................................................ 8 
`Patent Owner’s arguments alleging non-obviousness of claim 1 are
`conclusory and unsupported by expert testimony ............................... 10 
`III.  A POSITA WOULD HAVE HAD A REASONABLE EXPECTATION OF
`SUCCESS IN COMBINING THE PRIOR ART TEACHINGS INTO AN
`EARBUD ........................................................................................................ 11 
`A.  A POSITA would have been able to implement the combination
`earphones using Rosener’s circuitry ................................................... 13 
`A POSITA would have understood how to implement the
`combination earphones to avoid any power consumption issues
`relating to firmware upgrades ............................................................. 15 
`IV.  THE PROPOSED COMBINATIONS TEACH THE HEADPHONE +
`MICROPHONE LIMITATIONS OF CLAIMS 7, 21, 30, and 45 ................. 17 
`V.  HAUPT-SESHADRI-RAO-PAULSON TEACHES ACTIVATION OF THE
`MICROPHONE BY THE USER (CLAIMS 37 and 39) ................................ 19 
`
`B. 
`
`i
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`

`

`Case IPR2021-00592
`Docket No. 50095-0018IP1
`VI.  THE HAUPT-SESHADRI COMBINATION TEACHES THE DIGITAL
`SIGNAL PROCESSOR (DSP) FOR SOUND QUALITY ENHANCEMENT
`RECITED IN CLAIMS 52 AND 56 ............................................................... 21 
`VII.  SECONDARY CONSIDERATIONS ............................................................ 23 
`A.  Koss Has Not Established Prima Facie Nexus ................................... 23 
`B. 
`Unclaimed Features In AirPod Products Confirm Lack of Nexus ..... 24 
`C. 
`Koss Fails To Show That the Secondary Considerations Evidence Is
`The Direct Result Of The Unique Characteristics Of The Challenged
`Claims .................................................................................................. 25 
`VIII. CONCLUSION ............................................................................................... 26 
`
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`
`ii
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`

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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`
`APPLE-1001
`
`APPLE-1002
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`LIST OF EXHIBITS
`U.S. Patent No. 10,469,934 to Koss, et al. (“the ’934 patent”)
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`Excerpts from the Prosecution History of the ’934 patent (“the
`Prosecution History”)
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`APPLE-1003
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`Declaration of Jeremy R. Cooperstock
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`APPLE-1004
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`Certified English-language translation of WIPO PCT App. Pub.
`No. WO 2006/042749 to Haupt et al. (“Haupt”)
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`APPLE-1005
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`U.S. Patent No. 8,401,219 to Hankey et al. (“Hankey”)
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`APPLE-1006
`
`[RESERVED]
`
`APPLE-1007
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`U.S. Pat. App. Pub. No. 2006/0166716 to Seshadri et al.
`(“Seshadri”)
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`APPLE-1008
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`U.S. Pat. App. Pub. No. 2008/0076489 to Rosener et al.
`(“Rosener”)
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`APPLE-1009
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`U.S. Pat. No. 7,881,745 to Rao et al. (“Rao”)
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`APPLE-1010
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`U.S. Pat. App. Pub. No. 2006/0026304 to Price et al. (“Price”)
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`APPLE-1011
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`U.S. Pat. No. 7,551,940 to Paulson et al. (“Paulson”)
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`APPLE-1012
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`U.S. Pat. App. Pub. No. 2008/0052698 to Olson et al. (“Olson”)
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`APPLE-1013
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`[RESERVED]
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`APPLE-1014
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`Plaintiff KOSS Corporations’ Preliminary Infringement
`Contentions, KOSS Corporation v. Apple Inc., 6:20-cv-00665
`(WDTX)
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`APPLE-1015
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`Example Order Governing Proceedings - Patent Case
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`iii
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`APPLE-1016
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`APPLE-1017
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`APPLE-1018
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`Agreed [Proposed] Scheduling Order, KOSS Corporation v.
`Apple Inc., 6:20-cv-00665 (WDTX)
`
`Katie Buehler, “Texas Patent Trials Halted Due to COVID-19
`Spike,” Law360, available at
`https://www.law360.com/ip/articles/1330855/texas-patent-
`trials-halted-due-to-covid-19-spike.
`
`Scott McKeown, District Court Trial Dates Tend to Slip After
`PTAB Discretionary Denials, available at
`https://www.patentspostgrant.com/district-court-trial-dates-
`tend-to-slip-afterptab-discretionary-denials/ (Jul. 24, 2020)
`
`APPLE-1019
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`Amended Agreed Scheduling Order, Fintiv, Inc. v. Apple, Inc.,
`Civil Action No. A-19-CV-1238 (WDTX)
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`APPLE-1020
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`Letter from Michael Pieja to Darlene F. Ghavimi re Conditional
`Stipulation dated March 2, 2021
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`APPLE-1021
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`Constantine A. Balanis, Antenna Theory: A Review, 80
`Proceedings of the IEEE 7 (1992)
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`APPLE-1022
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`Declaration of Seth Sproul ISO Motion for Pro Hac Vice
`Admission
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`APPLE-1023
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`Updated Declaration of Seth Sproul
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`APPLE-1024
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`Declaration of Michael Pieja ISO Motion for Pro Hac Vice
`Admission
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`APPLE-1025
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`Updated Declaration of Michael Pieja
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`APPLE-1026
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`Declaration of Doug Winnard ISO Motion for Pro Hac Vice
`Admission
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`APPLE-1027
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`Supplemental Declaration of Jeremy R. Cooperstock
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`iv
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`APPLE-1028
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`Joseph C. McAlexander III Deposition Transcript, Feb. 2, 2022
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`APPLE-1029
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`U.S. Pat. No. 7,480,907 to Marolia et al.
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`APPLE-1030
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`U.S. Pub. No. 2008/0194209 to Haupt et al.
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`APPLE-1031
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`“Apple AirPods + Powerbeats Pro is Keeping Apple in the
`Hearables Market Leadership with over 50% Market Share,”
`Patently Apple, Nov., 2019 (https://protect-
`us.mimecast.com/s/GcPPC9rpGyh8lKLWIEydzM?domain=pat
`entlyapple.com)
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`APPLE-1032
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`E-mail from Mark Knedeisen re “Apple v Koss IPRs - Routine
`Discovery” (Aug. 10, 2021, 14:42 EST)
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`v
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`

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`Case IPR2021-00592
`Docket No. 50095-0018IP1
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`I.
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`INTRODUCTION
`In its Patent Owner’s Response (“POR”), Koss’s main argument regarding
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`independent claim 1 relies entirely on a preliminary institution decision rendered
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`with respect to another patent and without the benefit of a full evidentiary record.
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`Instead of providing its own expert testimony with respect to the relevant claim
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`features, Koss avoids engaging with the actual teachings of the prior art references
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`or the manner in which the combination thereof was set forth in the petition. In so
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`doing, Koss attempts to dodge this Board’s full consideration of its claims in light
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`of the prior art.
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`Koss’s remaining arguments primarily focus on the alleged inability of a
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`person of ordinary skill in the art (“POSITA”) to implement teachings that are
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`commensurate in scope and detail as those provided in the ’934 Patent. Many of
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`these arguments relate to features not recited in the claims (e.g., “desired sound
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`quality level” of the wireless earphones). However, as noted in the petition,
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`Federal Circuit precedent makes clear that the specification of the ’934 Patent is
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`the bellwether of a POSITA’s skill level and abilities, providing evidence
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`regarding the assumed knowledge of a POSITA in assessing obviousness. Pet., 51
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`(citing In re Epstein, 32 F.3d 1559, 1568 (Fed. Cir. 1994)). The references that
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`form the basis for the grounds of the petition provide an equal level of disclosure
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`with respect to the relevant claim features, and also provide the motivation for
`1
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`combining their teachings. In short, the claims are clearly obvious, and Koss’s
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`attempts to avoid this outcome by ignoring the proper legal framework for judging
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`obviousness should be dismissed.
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`II. THE PRIOR ART RENDERS CLAIM 1 OBVIOUS
`A. Haupt-Seshadri-Rao combination renders obvious “a remote,
`network-connected server that is in wireless communication with
`the mobile, digital audio player”
`Koss’s arguments that the Haupt-Seshadri-Rao combination does not show
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`the claimed communications and transmissions between the headphone assembly,
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`the remote, network-connected server, and the mobile DAP are incorrect for at
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`least two reasons.
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`1.
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`Koss inappropriately attempts to limit the Haupt-Seshadri-Rao
`combination to the express teachings of Seshadri with respect
`to the capabilities of the mobile DAP
`Koss’s assertions in its POR that “Haupt does not disclose, and Petitioner
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`does not assert that Haupt discloses, that Haupt’s servers OS and PS are in
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`communication with a mobile DAP,” are patently false. See Paper 17 (“POR”), 17.
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`As argued in the Petition, Haupt teaches a system that includes the claimed
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`“remote, network connected server that is in wireless communication with the
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`mobile, digital audio player.” Paper 2 (“Pet.”), 27-29; APPLE-1003, ¶¶98-100.
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`Haupt’s “data transfer system” can include private and/or public servers that
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`communicate information wirelessly using one or more access points, as well as
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`2
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`via the Internet. See APPLE-1004, 6:16-7:5, 7:30-31. The WLAN interface of
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`Haupt’s headphones allows for connecting wirelessly with a remote server (e.g., a
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`public or private server) via a wireless access point. See APPLE-1004, 7:10-28,
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`18:30-19:21; APPLE-1003, ¶38, APPLE-1027, ¶16.
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`Haupt teaches that its “remote, network connected server” (e.g., its remote,
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`public server OS) can be also in wireless communication with a mobile, digital
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`audio player, such as Haupt’s operating element BE. APPLE-1027, ¶17. As
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`explained in the Petition and by Dr. Cooperstock, Haupt’s “operating element BE”
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`can “communicate with and receive audio files from a server (e.g., public server
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`OS).” Pet., 29, APPLE-1003, ¶100, APPLE-1027, ¶17. That is why the Petition
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`argued that a “POSITA would have found it obvious that Seshadri’s base unit 16
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`(e.g., PDA 30 or cellphone 36) would be able to communicate with and receive
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`audio files from a server (e.g., public server OS) in the same manner as the
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`operating element BE taught by Haupt with respect to FIG. 3.” Pet., 29.
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`Indeed, the Petition includes an annotated version of Haupt’s Fig. 1 (reproduced
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`below) meant to illustrate a mobile digital audio player (like those taught by both
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`Haupt and Seshadri) could be coupled to the remote public server OS.
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`3
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
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`APPLE-1004, Figure 1 Annotated (Pet., 6)
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`Consistent with this description in the Petition, Haupt gives an explicit
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`example of its headphones being connected with a PDA or pocket PC (like Haupt’s
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`operating element BE or Seashdri’s base unit 16), where the PDA or pocket PC
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`(referred to as first client C1) can “play live internet radio, or . . . make use of
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`internet telephoning (voice over IP).” APPLE-1004, 16:15-19 (cited at Pet., 9-10,
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`32-33). A POSITA would have known or at least found it obvious that the “live
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`internet radio” or “voice over IP” would be provided by a remote public server,
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`like Haupt’s OS. APPLE-1027, ¶18. Indeed, Haupt explains that its first client C1
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`(i.e., the PDA or pocket PC) may include an application that “makes use of a
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`4
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`service of a server in a network.” APPLE-1004, 18:26-28; APPLE-1027, ¶18;
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`see also APPLE-1030, ¶[0080].
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`Haupt’s description that its first client C1 can “make use of internet
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`telephoning (voice over IP)” is entirely consistent with Seshadri’s disclosure about
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`its mobile, DAP (i.e., “base unit 16”), which is described as being a PDA or
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`cellphone that can “directly couple the headset to multiple playback devices, audio
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`streams or voice communication networks such as radio, cellular, wireless
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`voice or packet data, public switched telephone networks (PSTN).” Pet., 30
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`(citing APPLE-1007, ¶0024). Indeed, Seshadri explicitly describes that its “base
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`unit 16 couples to a telephone network (PSTN, cellular, satellite, WLAN, VoIP,
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`etc.).” APPLE-1007, ¶0050 (cited at APPLE-1003, ¶¶44, 108).
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`Thus, Koss’s assertions in its POR that “Haupt does not disclose, and
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`Petitioner does not assert that Haupt discloses, that Haupt’s servers OS and PS are
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`in communication with a mobile DAP,” are patently false and misrepresent
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`Petitioner’s arguments. See POR, 17.
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`2.
`
`Koss misinterprets the Petition’s mapping of the claimed
`“headphone assembly,” “remote, network-connected server,”
`and “mobile, digital audio player”
`Koss misinterprets the Haupt-Seshadri-Rao combination and the Petition’s
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`asserted mapping of that combination against at least limitation 1[i]. Koss’s
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`misunderstanding of the mapping for limitation 1[i] is especially peculiar given the
`5
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`concise articulations in the Petition and apparent ease with which Board was able
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`to interpret and appreciate the motivations behind the Haupt-Seshadri-Rao
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`combination. Thus, in apparent haste to cast doubt on the clear mappings
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`advanced by Petitioner, Koss seemingly ignores the Petition’s conspicuous
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`rationale for its reliance on Seshadri.
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`As articulated in the Petition, Seshadri is relied on at least for its disclosure
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`about the “benefits of coupling wireless headphones to all of a user’s devices that
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`might store audio for[,] or provide audio to[,] the user.” Pet., 10. More
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`specifically, the Petition explains that a POSITA would have found it obvious to
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`modify Haupt based on Seshadri such that Haupt’s WLAN headphones would
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`include the capability to not only communicate with servers via WLAN (as taught
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`by Haupt), but to also communicate with local audio sources via both WLAN and
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`ad-hoc networks (as taught by Seshadri). Pet., 8-9; APPLE-1027, ¶22. The
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`Petition goes on to explain that a POSITA would have found it obvious that these
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`local audio sources (e.g., Seashdri’s base unit 16) would themselves “be able to
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`communicate with and receive audio files from a server (e.g., public server OS) in
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`the same manner as the operating element BE taught by Haupt with respect to FIG.
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`3.” Pet., 29; APPLE-1027, ¶22.
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`Because Haupt discloses: i) by way of its “first exemplary embodiment”
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`(Fig. 1) that the main audio source for its headphones is a server accessed over
`6
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`WLAN and ii) by way of its teachings regarding the capabilities of mobile DAPs
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`(e.g., its operating element or first client C1) communicating wirelessly with its
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`servers using an access point, Seshadri is relied on to bridge the gap (albeit a subtle
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`gap) between Haupt’s teachings regarding its headphones and its mobile DAPs.
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`That is, Seshadri is relied on primarily for its teachings and motivations with
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`regard to coupling Haupt’s wireless headsets/headphones to different user devices
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`that might store audio for, or provide audio to, a user (as taught by Seshadri), such
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`that the user is able to not only connect to these devices, but to also select between
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`multiple available audio streams (as also taught by Seshadri). APPLE-1027, ¶23;
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`see Pet., 9-10 citing to APPLE-1007, ¶¶0024, 0040-0042, 0047, 0067-0068.
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`To further clarify, both Haupt and Seshadri teach a remote, network-
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`connected server in wireless communication with a mobile DAP, and Seshadri’s
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`disclosure provides an example in which the connections already present in Haupt
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`would have been made for a headphone-to-server connection, a server-to-DAP
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`connection, and a headphone-to-DAP. APPLE-1027, ¶24.
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`And while Haupt describes its wireless headsets/headphones primarily from
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`the perspective of direct communications with the remote public server OS,
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`Seshadri provides additional teachings underscoring a POSITA’s motivation to
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`permit connection of Haupt’s wireless headsets/headphones to the remote public
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`server OS via a mobile DAP such as Haupt’s first client C1 or Seshadri’s base unit
`7
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`16. This is why the Petition explains that “Seshadri describes that the base unit 16
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`(e.g., the PDA 30 or cellphone 36) ‘may directly couple the headset to multiple
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`playback devices, audio streams or voice communication networks such as radio,
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`cellular, wireless voice or packet data, public switched telephone networks
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`(PSTN), private branch exchanges or others known to those skilled in the art.’
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`APPLE-1007, ¶0024.” Pet., 29.
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`A POSITA would have found it obvious in light of the complete teachings of
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`Haupt, Seshadri, and Rao that Haupt’s wireless headsets/headphones would receive
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`“live internet radio” or “make use of internet telephoning (voice of IP)” via a
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`mobile DAP (e.g., Haupt’s operating element or first client C1 or Seshadri’s base
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`unit 16) and that the transmissions initiated by the controls buttons of the
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`headphones/headset would similarly be communicated via the mobile DAP.
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`APPLE-1027, ¶26; see also Pet., 29-21; APPLE-1003, ¶¶99-103.
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`For at least these reasons, the Haupt-Seashdri-Rao combination renders
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`obvious that, “upon activation of a user-control of the headphone assembly, [the
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`processor of the headphone assembly] initiate[s] transmission of a request to a
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`remote, network-connected server that is in wireless communication with the
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`mobile, digital audio player,” as recited in claim 1.
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`B. Haupt-Seshadri-Rao combination renders obvious that the same
`network-connected server to which the headphone assembly
`
`
`
`8
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`initiates transmission of the request also transmits the firmware
`upgrades to the headphone assembly
`Koss argues that “Petitioner failed to show that the network-connected
`
`server to which the headphone assembly initiates transmission of the request also
`
`transmits the firmware upgrades to the headphone assembly.” POR, 23. This is
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`incorrect. Koss admits that “Rao discloses electronic devices adapted to access
`
`servers to retrieve firmware and/or software updates” but then argues that “Rao
`
`does not disclose wireless earphones.” POR, 7, 22-23. Whether Rao does or does
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`not disclose wireless earphones is moot. Wireless earphones are electronic
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`devices. APPLE-1027, ¶28. And, by Koss’s own admission, Rao discloses
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`electronic devices that access servers to retrieve firmware updates. POR, 7.
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`As set forth in the Petition, Haupt explains that the same server that provides
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`audio files to the headphones also provides the decompression software. See Pet.,
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`31-32 (citing Pet., 11-14). In response, Koss argues that “Haupt merely teaches
`
`that software can be transmitted ‘along with’ the audio files (APPLE-1004, 10:1-
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`2), which can mean at the same time and does not necessarily mean from the same
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`source.” POR, 24. But this argument makes little technical sense. There is no
`
`discussion in Haupt of any server providing the audio decompression software
`
`other than the server providing the audio files, so a POSITA would have naturally
`
`read the phrase “along with” to mean the audio files and software were being sent
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`
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`9
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`from the same server. APPLE-1027, ¶29. Indeed, for a separate server to transmit
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`the software “at the same time” as Haupt’s public server OS, a POSITA would
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`have needed to design—without any teachings in Haupt—delivery coordination
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`between these two servers to the headphones. Id. Notably, the U.S. Publication of
`
`Haupt (APPLE-1030) confirms that the “the required software can also be
`
`transmitted together with . . . the audio data.” APPLE-1030, ¶[0046]; APPLE-
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`1027, ¶29. Given these considerations, a POSITA would have at least found it
`
`obvious that Haupt’s public server OS would provide both the audio files and the
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`decompression software, so that they could be received “along with” one another,
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`as Haupt describes. APPLE-1027, ¶29; see also APPLE-1028, 188:12-22.
`
`C.
`
`Patent Owner’s arguments alleging non-obviousness of claim 1
`are conclusory and unsupported by expert testimony
`Each of Koss’s assertions regarding the alleged non-obviousness of claim 1
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`are conclusory and entirely unsupported by expert testimony. The declaration of
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`Koss’s expert is directed entirely to a subset of the challenged claims. Mr.
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`McAlexander did not opine on the alleged non-obviousness of claim 1 and did not
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`offer any opinions or analysis of claim 1 to rebut the well-reasoned opinions of
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`Petitioner’s expert. Hence, the asserted attacks from Koss contesting the
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`obviousness of claim 1 are speculative at best, entirely unsupported by expert
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`testimony, and should be rejected.
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`
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`10
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`III. A POSITA WOULD HAVE HAD A REASONABLE EXPECTATION
`OF SUCCESS IN COMBINING THE PRIOR ART TEACHINGS
`INTO AN EARBUD
`Koss argues that “a POSITA would not necessarily have any skills or
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`knowledge specific to designing a wireless earphone for a desired sound quality”
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`or for designing the transducer, arranging and fitting the components into a small
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`form factor, or powering a wireless earphone. POR, 6. Koss carries this argument
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`through with respect to a number of the dependent claims, including claims 33-37,
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`39, 42-43, and 45-46 (POR, 38-46) and claims 56-57 (POR, 50-51). However, the
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`record makes abundantly clear that a POSITA would have had no problem
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`implementing the claimed features in the small form factor of earbuds.
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`For example, Koss claims that implementing a set of wireless earphones
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`would have required understanding of acoustic transducers, component
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`arrangements for small form factors, and techniques to power wireless earphones
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`“during a firmware upgrade to avoid ‘bricking.’” POR, 45. But the ‘934 Patent
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`itself contains no disclosure of any details of how to choose an acoustic transducer,
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`arrange components, or select a power source for wireless earphones. APPLE-
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`1027, ¶35. If the identified POSITA could have implemented the ’934 patent’s
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`wireless headphones without undue experimentation based on its extremely thin
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`disclosure of such details, that can only be because understanding those details was
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`within the ordinary skill of the POSITA. In re Epstein, 32 F.3d 1559, 1568 (Fed.
`11
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`Cir. 1994) (concluding that a patent owner’s specification can support findings
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`regarding the knowledge of a POSITA to implement features taught in the prior
`
`art). This is confirmed by Rosener, which Petitioner relied upon for the earbud
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`claims and which does not significantly differentiate the technical requirements for
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`implementing wireless headphones as earbuds compared to other, larger form
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`factors. APPLE-1027, ¶36. A POSITA would thus have had sufficient skills and
`
`knowledge to understand, design, and implement the claimed limitations in any of
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`the known form factors based on disclosures in the prior art and widely-available
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`technology. APPLE-1027, ¶¶31-37.
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`Koss’s attempt to discredit Dr. Cooperstock’s testimony is similarly
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`ineffective. Koss alleges that “Cooperstock, whose skill level greatly exceeds the
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`skill level of a POSITA who has a bachelor’s degree in computer science and
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`two years of experience with LANs could not: identify design considerations
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`for the sound quality of earphones.” POR, 44 (emphasis added). Koss then
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`alleges that a POSITA “would have little, if any, reasonable expectation of making
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`the combination proposed by Petitioner for claim 33.” POR, 45. Yet, Koss’s own
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`claims include no limitations directed toward design considerations for the sound
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`quality of earphones, rendering such considerations either moot or within the skill
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`of a POSITA. Koss’s concerns are thus misdirected for the reasons discussed
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`below.
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`Case IPR2021-00592
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`A. A POSITA would have been able to implement the combination
`earphones using Rosener’s circuitry
`By way of its expert, Koss argues that “[t]rue [w]ireless earphones …
`
`receive their wireless streams independently and there could be timing differences,
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`or latencies, between the streams that, if not taken into account, would be
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`unacceptable to the user/wearer.” KOSS-2046, ¶24. Notably, the term “True
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`Wireless” is not recited in the claims of the ’934 patent, nor is the term disclosed or
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`defined in the ’934 patent specification. Koss’s expert seemingly fabricates a term
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`otherwise absent from the record to refute teachings that are self-evident as to the
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`obviousness of the challenged claims. According to Koss, if “Haupt’s and
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`Seshadri’s wireless earphones receive independent streams,” then those wireless
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`earphones “would need to account for latencies between the two data streams.”
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`Id., ¶66, see also ¶¶41, 42. Koss then argues that one or more of the challenged
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`claims “would not have been obvious to a POSITA” given the level of skill of the
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`POSITA advanced by Petitioner and given the different form factors disclosed by
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`the prior art combination. Id., ¶63.
`
`But these arguments are contradicted by the admitted teachings of Rosener.
`
`For example, despite conceding that Rosener discloses “techniques to account for
`
`timing differences,” and that Rosener “describes [] ways of dealing with” potential
`
`timing differences, or latencies, between independent wireless streams, Koss’s
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`expert nonetheless asserts, erroneously, that a POSITA would face challenges
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`designing earphones that “account for latencies between the two data streams.”
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`KOSS-2046, ¶¶24, 64, 66.
`
`The difference in form factor argued by Koss’s expert is of no moment
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`because a POSITA would have found it obvious to implement Haupt’s WLAN
`
`headphones utilizing any of Rosener’s form factors, some of which are
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`substantially similar to the form factors disclosed in Haupt and Seshadri. APPLE-
`
`1027, ¶40; see also, Pet., 49-51; see also APPLE-1004, FIGS. 2, 5; see also
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`APPLE-1007, FIG. 4; see also APPLE-1008, FIGS. 1A, 1B, 2-5. As explained in
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`the Petition, to the extent that the ’934 Patent provides a sufficient level of detail
`
`with respect to the various design challenges Koss concocts, solving these
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`challenges would have been within the skill of a POSITA based on the disclosures
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`of Haupt, Seshadri, and Rosener. Pet., 50 (“The ’934 Patent does not provide a
`
`POSITA with any specific teachings that would enable any given form and size of
`
`its headphones. APPLE-1003, ¶65.”). Therefore, assuming for these purposes that
`
`the ’934 Patent is enabled, it is equally appropriate to assume that modifying the
`
`wireless earphones of the proposed combination to realize large or small form
`
`factor earphones (or earbuds) would have been apparent and obvious to a POSITA
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`in light of Rosener’s teachings. APPLE-1027, ¶40; In re Epstein, 32 F.3d 1559,
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`1568 (Fed. Cir. 1994).
`
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`B. A POSITA would have understood how to implement the
`combination earphones to avoid any power consumption issues
`relating to firmware upgrades
`Koss asserts that “updating a device’s firmware requires that the device be
`
`sufficiently powered throughout the firmware upgrade process.” POR, 39. KOSS
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`then alleges that Rosener’s battery would be unreliable for upgrading firmware and
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`that a POSITA would have to “stick with Rosener’s unreliable power source or []
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`substantially modify Rosener’s earbuds to include a large battery.” Id., 46.
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`However, Koss provides no support for this allegation and instead offers only
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`baseless assertions about Rosener’s power source being unreliable. APPLE-1027,
`
`¶41.
`
`First, Koss does not explain its reasoning for assuming Rosener’s power
`
`source or battery is unreliable. This is not surprising, since Rosener lacks any
`
`disclosure indicating that its battery is unable to provide sufficient power during a
`
`firmware upgrade or any other mode of operating its headphones. See APPLE-
`
`1027, ¶42 (confirming that Rosener does not address power capability). Notably,
`
`the ’934 Patent is similar devoid of any teachings regarding the selection of
`
`allegedly “reliable” power sources. Id., ¶43.
`
`Second, even if Koss were correct that certain types of firmware upgrades
`
`involve high power consumption, a POSITA would have known how to implement
`
`the prior art combinations to avoid this issue. For example, Koss does not consider
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`that a POSITA would have understood that a battery used in prior art combinations
`
`involving Rosener could be charged by an external power source when the
`
`headphones initiate a firmware upgrade. See POR, 39, 41. Indeed, a POSITA
`
`could have simply charged the Haupt-Seshadri-Rosener earphones using the
`
`docking station taught by Seshadri and described in Petition with respect to claim
`
`35. Such a docking station would have been able to supply the power needed
`
`during the firmware upgrade. APPLE-1027, ¶47; see also Pet., 58-59. This
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`solution would have also been within the capability of a POSITA at least in view
`
`of Hankey’s corroborating disclosure that suggests permitting firmware download
`
`and installation when the headset is charging. APPLE-1027, ¶47 (citing APPLE-
`
`1005, 26:52-60).
`
`Even if Koss argues that the challenged claims require the firmware to be
`
`upgraded while the earphones are running on battery power, the proposed
`
`combinations would have still rendered this aspect obvious because a POSITA
`
`would have understood that there were techniques for mitigating Koss’s arbitrary
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`power consumption issue. APPLE-1027, ¶48. As explained by Dr. Cooperstock,
`
`one technique that would have been apparent to a POSITA is to condition the
`
`firmware upgrades based on the charge level of a headphones rechargeable battery.
`
`Id. (citing APPLE-1029, 4:4-7, 12:16-26). Another technique that would have
`
`been apparent to a POSITA involves requiring that the battery be charged for a
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`firmware upgrade. Id.; see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007)
`
`(“A person of ordinary skill is also a person of ordinary creativity, not an
`
`automaton.”).
`
`Yet another technique that would have been apparent to a POSITA is to
`
`incrementally upgrade the firmware. APPLE-1027, ¶49. As Dr. Cooperstock
`
`explains, a POSITA would have understood that firmware upgrades can have
`
`different times of completion depending on the nature of the update provided by
`
`the firmware upgrade and, in some instances, an incremental firmware upgrade
`
`may not involve high power consumption because of how quickly a device
`
`performs the firmware upgrade. Id. In such scenarios, even if a device is at low-
`
`power or has a low-capacity battery, the device could be configured to implement
`
`an incremental firmware upgrade without requiring external power. Id.
`
`IV. THE PROPOSED COMBINATIONS TEACH THE HEADPHONE +
`MICROPHONE LIMITATIONS OF CLAIMS 7, 21, 30, and 45
`With respect to the integration of a microphone into the claimed headphone
`
`assembly, Koss raises two arguments: (1) that the “block diagram of Figure 8 is not
`
`a headphone because it does not include a speaker element” and that “[n]either
`
`Petitioner nor its expert explains why the wireless microphone of Haupt’s Figure 6
`
`and 8 . . . constitute part of a ‘headphone assembly’ as recited in claim 1;” and (2)
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`Case IPR2021-00592
`Docket No. 50095-0018IP1
`that “Haupt does not disclose that the headphone’s network ID is transmitted by
`
`the wireless microphone.” POR, 35-38. Each of these arguments are incorrect.
`
`First, the Petition explicitly explains that “Haupt teaches that the microphone
`
`described with respect to FIG. 8 can be integrated into the WLAN headphones