Trials@uspto.gov
`571-272-7822
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`Paper # 36
`Entered: August 10, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BOSE CORP.,
`Petitioner,
`
`v.
`
`KOSS CORP.,
`Patent Owner.
`____________
`
`IPR2021-00680
`Patent 10,469,934 B2
`____________
`
`Record of Oral Hearing
`Held: June 30, 2022
`
`
`BEFORE: KARL D. EASTHOM, PATRICK R. SCANLON, and
`DAVID C. McKONE, Administrative Patent Judges.
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`571-272-7822
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`Paper # 36
`Entered: August 10, 2022
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BOSE CORP.,
`Petitioner,
`
`v.
`
`KOSS CORP.,
`Patent Owner.
`____________
`
`IPR2021-00680
`Patent 10,469,934 B2
`____________
`
`Record of Oral Hearing
`Held: June 30, 2022
`
`
`BEFORE: KARL D. EASTHOM, PATRICK R. SCANLON, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
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`
`
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`IPR2021-00680
`Patent 10,469,934 B2
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`
`APPEARANCES
`
`On Behalf of the Petitioner:
`
`
`MICHAEL RADER, ESQUIRE
`BARTIMUS, FRICKLETON, ROBERTSON, RADER
`4000 W. 114th Street, Suite 310
`Leawood, KS 66211
`(913) 266-2300
`
`
`On Behalf of the Patent Owner:
`
`
`MARK KNEDEISEN, ESQUIRE
`K&L GATES LLP
`210 6th Ave
`Pittsburgh, PA, 15222-2613
`(412) 355-6500
`
`Also Appearing:
`Sylvia Gerukos
`Nathan Speed, Esquire
`Gregory Nieberg, Esquire
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`The above-entitled matter came on for hearing on Thursday,
`June 30, 2022, commencing at 10:00 a.m. EST, by video/by telephone.
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`IPR2021-00680
`Patent 10,469,934 B2
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`
` P R O C E E D I N G S
` JUDGE EASTHOM: Good morning. This is
`Judge Easthom. I also have Judges McKone and Scanlon
`on the video link. This is Bose Corp. vs. Koss
`Corp., IPR2021-00680, and it's US patent number
`10469934B2.
` Who do we have for petitioner?
` MR. SPEED: Good morning, Your Honor. This
`is Nathan Speed on behalf of petitioner, Bose
`Corporation. I'm joined by my colleagues, Greg
`Nieberg and Mike Radar.
` JUDGE EASTHOM: Thank you. Mr. Nieberg
`and Mr. Radar, can you identify yourselves just so
`I've been -- for some reason your names aren't --
` MR. RADAR: Your Honor, I --
` JUDGE EASTHOM: -- they're not on my --
` MR. RADAR: -- I'm Mike Radar.
` JUDGE EASTHOM: Okay. Hi. Okay.
` MR. NIEBERG: Hey. And I'm Greg Nieberg.
`Hello.
` JUDGE EASTHOM: Oh, okay. Thank you. Oh,
`I see you. Okay. Welcome, Mr. Radar and Mr. Nieberg.
` Now, who do we have for -- first of all,
`Wait. Are -- who's going to be speaking today on --
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` MR. SPEED: -- It's going to --
` JUDGE EASTHOM: -- behalf of the
`petitioner?
` MR. SPEED: Yeah. Your Honor, it's going
`to be a combination of myself and Mr. Nieberg.
` JUDGE EASTHOM: Okay. Great. Okay. And who do
`we have for patent owner?
` MR. KNEDEISEN: This is Mark Knedeisen from K&L
`Gates for patent owner. And then I am with
`Ms. Laurén Murray, also with K&L Gates.
` JUDGE EASTHOM: Are you going to do most of the
`speaking or are you both going to -- split that up
`today?
` MR. KNEDEISEN: I'll be doing most of the
`speaking.
` JUDGE EASTHOM: Thank you. Okay.
` Well, welcome everyone. Just a few preliminary
`remarks; as you all know from our hearing order this is
`a -- basically a two-hour hearing each side, everyone
`gets 60 minutes, but we'll have the LEAP practitioner,
`I guess, Mr. Nieberg, he'll -- will have an extra 15
`minutes if the patent owner -- if petitioner desires.
` We want to thank you all for your flexibility
`here in conducting this, because we know that this has
`-- it's sort of typical now, but it hasn't been in the
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`Patent 10,469,934 B2
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`past, but we want to make sure you all have the right
`to be heard. And if at anytime during the proceeding
`you have any kind of technical difficulties or any
`kind of problems with your equipment, please let us
`know. We'll immediately contact the team members who
`helped you sign up here before.
` Second, just please mute yourself when you're not
`speaking. And when you need to speak, just
` identify yourself. I think the video screen is
`doing a good job of that.
` And we also would like to let you --
`remember that we have the demonstratives, so you don't
`need to show them to us. But -- and when you refer to
`them, please do so clearly and explicitly by slide or
`page number, and just pause a few seconds after you
`identify it so we can have time to jump to that slide.
` And with that, petitioner, it's 10:03, so
`why don't we get started?
` MR. SPEED: Thank you, Your Honor.
` So I'll start on behalf of the petitioner,
`Bose. The plan -- our plan this morning is for me to
`address the issue related to the independent claims,
`and Mr. Nieberg will address the issues related to the
`dependent claims. Our plan would be for me to spend
`about a half hour on my issues and Mr. Nieberg would
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`Patent 10,469,934 B2
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`have 25 minutes on his issues, which would leave us 20
`minutes of rebuttal time with the -- LEAP program’s
`additional time, if it's okay with Your Honors.
` JUDGE EASTHOM: Okay. Sure.
` MR. SPEED: Great. And obviously, if we can
`do it sooner we will do it sooner, but that's our
`initial estimate. So this proceeding involves the 934
`Koss patent.
` This is the third of three related patents
`that Bose has challenged in the same family of these
`costs -- the cost specification, but the Board already
`issued a final written decision for one of the
`patents, the 155 patent.
` And that decision found all of those claims
`unpatentable, and our final written decision is
`pending on the other challenged related patent, the
`025 patent.
` Many of the disputed issues relevant to the
`934 that I'll -- at least, I will be discussing today
`overlap with issues that we covered roughly two weeks
`ago at the 025 oral hearing. So just to kind of give
`you that preface, and if at any point there's an issue
`that you think you want me to skip over, I'm happy to
`that, but I'm -- otherwise, my plan is to walk through
`everything.
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`IPR2021-00680
`Patent 10,469,934 B2
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` So beginning with the independent claims of
`the 934 -- if we can turn to slide 3 in the Bose
`presentation. This patent's unique in that it has two
`independent claims; the other ones all had just a
`single independent claim. Independent claim 1 here
`recites essentially headphone assembly that has
`conventional components. And it has these wherein
`clauses, the latter of which -- the latter two of
`which introduce some of the disputes between the
`parties.
` The second to last wherein clause provides
`that the processor within the headphone can send a
`request to a remote network connected server. And
`then the last limitation is a new one where it recites
`that the headphone assembly is for receiving firmware
`upgrades transmitted from the remote network connected
`server.
` So this claim requires that the processor
`can send a request to a server and that same server
`can send firmware back to the headphone to update
`them. And that firmware limitation is where the bulk
`of the party's dispute will be for the -- for
`independent claim 1.
` And if we turn to slide 4, we can see
`independent claim 58. Claim 58 is similar to claim 1
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`in that it recites headphone assembly with
`conventional components like an antenna, microphone,
`and earphones. It also adds the wherein clause
`requiring the processor within the headphone send a
`request to the -- to a remote network's server. It
`does not have the firmware limitation; instead it has
`this limitation we've highlighted on slide 4 that the
`parties have been calling the signal strength
`limitation.
` This limitation requires that the
`headphone's in communication with two devices, and it
`switches between devices based on the signal strength
`of, essentially, you have your -- let's just use an
`iPhone and iPad, and your headphone is connected to
`both of them. It switches from an active connection
`with the iPhone to one with the iPad based on the
`signal strength of its connection to the iPad, so the
`second device. So we call this the signal strength
`limitation, and there is a dispute on that for claim
`58, and a handful of dependent claims that also have
`the signal strength limitation.
` If we could turn back to slide 1 and go to
`slide 6, we can see the four Schrager-based grounds in
`this proceeding, ground 1A to 1D. In ground 1A of
`Schrager plus Goldstein -- and that ground includes
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`Patent 10,469,934 B2
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`independent claim 1. Koss has one defense for these -
`- for this ground, and the critical question for the
`board to resolve will be whether the server in
`Goldstein's Server, is Goldstein's Server with a
`capital S, that sends firmware to devices, or whether
`it's some hypothetical server in the combination that
`sends the firmware to the headphone.
` If we turn to slide 8, we can set up the
`combination to kind of get some context for the
`dispute. So on slide 8 we have Schrager. Schrager
`describes at a high level of conventional wireless
`headset. It's -- and sitting at 105, it has a
`wireless connection 115 that can be Bluetooth to a
`base unit 110, that is described in Schrager columns
`4, lines 54 to 60, as being anything from a cellphone
`to an MP3 player.
` So Schrager is just a basic Bluetooth
`enabled headset that's communicating with an audio
`player. You turn to slide 9, and then we see
`Goldstein; Goldstein's similar to Schrager in that
`they both -- Goldstein also discloses a wireless
`headset.
` The purporting novelty of Goldstein's
`headphone is its ability to communicate with this
`central sever 100. Essentially, Goldstein's
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`IPR2021-00680
`Patent 10,469,934 B2
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`specification described the software that Mr.
`Goldstein called the personal audio assistant, or PAA.
`And with that software installed on a device it can
`communicate with the central server to download or
`stream audio and receive firmware upgrades.
` So please turn to slide 10. The combination
`we set forth in the petition is fairly
`straightforward; you would have Schrager as it was,
`and you would add to it, effectively, the PAA software
`so that it could communicate with Goldstein's Server
`so that it could receive audio, download audio, stream
`audio, and also receive firmware. As you can see here
`on slide 10, we've mapped the various limitations of
`the claim to the combination. So the fight that we
`would have on this issue is about firmware and whether
`or not the combination server, this Goldstein Server,
`would have been the one that sends firmware to the
`headphones.
` If we turn to slide 11, we can see the
`petitions are relevant discussion of the firmware
`issue for the Schrager-Goldstein combination. In
`setting up the basic combination, the petition
`identified one of the benefits of the combination
`being that, in addition to being able to receive audio
`from the server it -- the headphone could also receive
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`Patent 10,469,934 B2
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`firmware updates. And as we see it, the petition
`pages 13 to 14, we explained -- citing Dr. Williams,
`our expert -- and corroborating by this reference
`called Hind, that we'll talk about later -- that
`sending firmware from a server was well-known and
`conventional by 2008, and therefore, POSs would
`have had reason to have Goldstein's server send
`firmware to the headphones.
` And as you can see on the left-hand side of
`slide 11, that's actually the limitation that
`Goldstein discloses as well; Goldstein, in paragraph
`82, states that there is a -- incoming transmissions
`to a PAA enabled device include updates to the
`firmware. It may come from the communications port.
`So the communications port is where a PAA-enabled
`device receives firmware updates. And if you look
`back at 78, you see that the communications port --
`it's a capital C, capital P -- it's a defined term in
`this reference -- is the communication port that
`allows communication with the server. So Goldstein is
`already disclosing that its server sends firmware to
`devices.
` So if we turn to slide 12, we can see Koss's
`response to what we think is a fairly straightforward
`combination. Their response is that there could be
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`Patent 10,469,934 B2
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`some hypothetical other server in the combination
`that's sending the firmware. And in our reply we
`pulled up, there is no other server. Goldstein doesn't
`describe any other server, but its, you know, central
`server; Schrager doesn't have a server. So there's no
`other hypothetical server that would be in the system
`that could send this firmware. And Koss doesn't
`dispute that there are no other servers in these two
`references that relied upon.
` If we turn to slide 13, just to hammer home
`the point, we can see various disclosures from
`Goldstein that reinforce that it is the server, with a
`capital S, again, in Goldstein -- that are sending the
`firmware -- that would be sending the firmware to
`devices. Again, 82 and 78 connect the communications
`port to the server and the firmware to the
`communications port. 63 describes the server as the
`system that controls centrally-held data, and our
`expert explained in his reply declaration in paragraph
`8 that centrally held data is a -- firmware would be
`understood to be centrally-held data. And paragraphs
`94 and 96 describe other aspects of the server,
`including that it has device hardware registration
`information, which our expert explained, at paragraph
`9 of his reply declaration, is the type of information
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`you would need to know so that you would understand
`which device needs what firmware upgrades; you have to
`know what device you're communicating with. And so
`the server is the thing that controls all of this
`information in the Goldstein system, so naturally it's
`the one that is sending this firmware to devices.
` And turn to slide 14. Even if there was
`some ambiguity as to whether or not Goldstein
`explicitly says that the Server, with a capital S, is
`what's sending the firmware to devices, it at a
`minimum, those -- all of those disclosures we pointed
`to -- at a minimum, strongly suggests that
`implementation. And Koss doesn't dispute that we
`identified in the petition numerous other benefits
`apart from Goldstein, namely Hinds disclosures, that
`would have motivated POSs to pursue that -- a
`combination in which firmware is sent from the server.
` So that's it for ground 1 A and their
`defense on independent claim 1; unless there's
`questions, I'm happy to move to ground 2A.
` All right. Hearing none, I'll move to slide
`15. And we can see the ground 2A and the other
`related, what we'll call the Rezvani based grounds.
` So ground 2A is four reference combination,
`but it's straightforward. And indeed Koss doesn't
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`dispute that POSs would have reason to implement the
`combination the way we set forth. The fight is going
`to be about whether that combination as set forth
`actually discloses all the limitations of the claims.
` So if we turn to 16 -- slide 16, I can give
`a overview of the combination. It starts with
`Rezvani-446; Rezvani-446 is a system patent. It's
`describing primarily this WPM server that you see in
`figure 7 from Rezvani-446. That server does various
`things including providing music to various devices in
`the system. You can see in figure 7 those devices
`include a headset, a handset, or a cellphone. And
`Rezvani-446 is all about this -- the functionality of
`the server. So it mentions that a headset -- but
`doesn't give any details about that. On that same
`day, those same renters filed a different application
`and that application, the title of it is a headset --
`and that application describes in detail the
`electrical components of a headset, and that's what
`we've highlighted in green and you can see its
`disclosures here in the bottom right of slide 16, and
`it describes that headset as communicating with local
`devices like a phone or MP3 player, to listen to audio
`or maintain a phone call and also in paragraph 33
`which we have a big excerpt here on slide 16. It
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`describes the headset can communicate with a serve
`just like the WPM server.
` So the first step of our combination was you
`would use Rezvani-875's headset in Rezvani's 446
`system. Now, Rezvani's headset, reference 875, give
`details of the internal components of the headset, but
`it doesn't describe its design; it doesn't say -- does
`it have on the ear, behind the ear, how is it
`designed? That's because that type of design
`limitation was very conventional by 2008 so we're
`pointing to this -- the Skulley reference which stated
`what we think would be obvious that headphones usually
`have two earphones and so that's where Skulley comes
`in; no dispute from Koss on our use of Skulley. And
`then the last reference is Hind and that brings in the
`firmware.
` As we'll talk about shortly, Hind -- the
`title of Hind is about firmware updates and it
`describes a way in which you send updates to devices
`by using a server repository on a network and sending
`it over the network to various devices that could use
`the update. That was the combination; there's no
`dispute that Bose would have implemented in the way we
`set it up.
` If we turn to slide 17 we can see what the
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`dispute is. The dispute -- there's two of them -- the
`first is going to be whether Rezvani-875's figure 2
`actually depicts components of a headset or if it
`depicts components for something else. And then the
`second fight would be whether Hind's disclosure of
`microcode in one column of the reference somehow
`injects the ambiguity into Hind such that its
`disclosure of the firmware should be disregarded.
`Both arguments fail.
` If we could start with the figure 2 argument
`in slide 18 --
` JUDGE EASTHOM: So, Mr. Speed, this is Judge
`Easthom. I was just curious; I just wanted to jump to
`your friend's argument about the SIM card, I guess.
`One of the arguments with figure 2 is that it just pertains to a
`phone and not the headset, because the SIM cards were
`pretty large back then. I think it's 15 by 15--
`millimeters or something; can you -- how do you account
`for the SIM card?
` MR. SPEED: So if we turn to slide 19, I
`think that the -- so the argument that Koss has set
`forth is that there's various aspects of figure 2 that
`are more consistent with a cellphone than with a
`headset, but that ignores Rezvani-875’s description in
`the invention that the Rezvani inventors set forth in
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`this reference is a new novel headset that took
`functionality you would normally associate with a
`cellphone and put it into the headphone. And so the
`reason that there's a SIM card identified in figure 2
`is because, as we see here highlighted in -- I'll call
`it peach or orange, the -- it's the cell phone that
`supports -- sorry, it's the headset that supports
`cellular standards, and it's the headset that has a
`cellular telephone connection. So we were able to
`place a SIM card into the headset and described it as
`such in figure 2.
` So all these components that they've
`identified -- solar cells, a DC input, USB interface -
`- if you look at Rezvani-875, its disclosure says that
`it's the cell phone -- or the, sorry, it's the headset
`that has solar cells, it's the headset that has a USB
`interface.
` JUDGE EASTHOM: So this is a fairly large
`headset then, in other words; is that fair?
` MR. SPEED: That -- it's -- we don't
`describe the details of how large the headset would
`be, but to have these functionalities, one
`implementation could be that it would be -- you could
`fit them in by having a larger headset than maybe
`you're thinking of with, like, in 2022. This is from
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`2008, so it could be a larger headset at that point.
`But there hasn't been any argument that somehow
`Rezvani-875's not enabled for this disclosure or that
`POSs couldn't have included a SIM card into a
`headphone.
` JUDGE EASTHOM: Right. A headset.
` MR. SPEED: A headset, sir. If you turn to
`slide 18, Your Honor, just to go back a second, the
`whole fight here is whether Rezvani's figure 2
`discloses a headset. And Koss, the patent owner
`response, said that figure 2 never states that it's a
`headset, but that's inconsistent with Rezvani. If
`paragraph 38 and 47 both say, as shown in figure 2,
`the headset has, among other things, a power of
`management algorithm.
` That's a clear disclosure what figure 2 is
`describing the headset, you can see the power of
`management algorithm that they're -- it references is
`showing figure 2 in blue. And indeed in a prior
`proceeding, and I realize there was actually a typo,
`that's -- it should be IPR2021-00297 if I recall,
`involving the 155 patent, Koss, when giving an
`overview of the references, described Rezvani, said it
`discloses a headset indeed it says it has a processor,
`it has speakers, and it pointed to figure 2 as
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`IPR2021-00680
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`demonstrating that those features were in the headset.
` So Koss is -- Koss read Rezvani the exact
`same way that we read it and our expert read it. And
`just one additional point on that, on slide 20 it --
`but when you we get to their sole reply, their
`argument seems to boil down to, "Well, Dr. Williams,
`at his deposition, conceded that a cell phone is a
`device, and Rezvani-875 says that figure 2 shows the
`device." He said that, but what they didn't ask him
`was about his testimony in paragraph 20 of his reply
`declaration which they had when they were deposing
`him. In that paragraph he walked through Rezvani and
`said, "Every single time it refers to the device, the
`antecedent basis for that is a headset." And you can
`see that in paragraph 20 he walked through the whole
`disclosure and pointed out every single time that "the
`device" is referenced, it's the headset. Unless
`there's any questions on the headset issue, I can turn
`to the firmware issue in slide 21.
` So slide 21 shows Hind's disclosures;
`beginning in column 1, at the lines 23 to 26, Hind
`describes firmware; it says what it's all about, which
`is that it's software for hardware components that
`provides them their personality -- their
`functionality.
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`IPR2021-00680
`Patent 10,469,934 B2
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` And in column 1, lines 40 to 46, he explains
`that at the time in his filing, which is in 2000, so
`eight years before this patent -- the conventional way
`to distribute firmware was over a network where you
`stored on a server.
` And in column 18, lines 57 to 64, he
`describes one [inaudible] in which he's got a server -
`- a firmware repository in the server, distributes it
`over the internet to various electronic devices that
`could use the firmware. Where the --
` JUDGE EASTHOM: So the dispute is really
`over whether or not microcode is the same as firmware;
`is that right?
` MR. SPEED: That's correct. So the dispute
`is, you've got Rezvani; and for the entirety of the
`patent up to column 19, it's referring to firmware.
`The title of the patent is "Firmware updates over a
`server," I believe. And when you get to column 19 in
`-- Hind says, "One example of my invention can be used
`with a headset and you would send to the headset
`microcode that would update the headset's functional
`personality."
` And so Koss seizes on the word "microcode"
`and said, "Well, it says microcode; that's different
`from the word 'firmware,' so we don't know if
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`microcode and firmware are the same thing." But that -
`- from [inaudible], reading the word microcode, they
`know that that means firmware.
` We turn to slide 22. That's exactly what
`our expert explained, and he cited corroborating
`evidence; in his reply declaration, in paragraph 13,
`he went and said everyone in this [inaudible]
`understands microcode to be a form of or synonymous
`with firmware. And he had cited references to support
`that. He's got Exhibit 1148 where it says microcode
`is alternatively called firmware. He's got Exhibit
`1149, micro code i.e. firmware.
` This corroborates his undisputed testimony
`that Bose has understand microcode to just be
`synonymous with firmware. And he explained that the
`way that Hind describes firmware -- microcode -- as
`being software that can upgrade the headphones so --
`or the headset -- so that it could have Bluetooth
`functionality, that's exactly what micro -- firmware
`does.
` And so when he was explaining that Hind is
`referencing firmware, describing it in the exact same
`way that it's described in microcode. And if we see
`it on column -- on paragraph 299, in his opening
`declaration when he read column 19, he understood it
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`to be disclosing firmware.
` It's essentially as if we had a reference
`that talked about cars and you've got -- the title of
`the patent's "Cars," you've got -- columns 1 through
`18 are all about cars, and you get to column 19 and it
`says, "In one embodiment of my invention, a
`convertible is parked in the garage." A person
`reading that skilled in the art of cars would say,
`"Column 19 is disclosing that a car is in the garage,"
`even though it literally says a convertible is in the
`garage. And that's what Dr. Williams did here in 299,
`where he's reading those passages in column 19, and he
`says it's describing the -- that remote firmware
`updates were sent to the headphone.
` And I think it's very telling that on this
`issue Koss didn't ask Dr. Williams a single question
`in his first deposition or in his second deposition,
`they didn't have their expert replying on the issue at
`all; they never introduced any affirmative evidence
`that microcode is not firmware, and they've never even
`affirmatively taken the position that firmware and
`microcode are not the same thing.
` If we see on slide 23, the only thing that
`they try to do is argue that we couldn't respond to
`their patent response in our reply and use reply
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`evidence to respond to it, but that's incorrect. The
`Board's Trial Practice Guides and the Federal Circuit
`precedent make clear that we can't proceed in a new
`direction on a reply. This isn't a new direction;
`from the day we filed this petition challenging these
`claims, our position has been that column 19 along
`with everything else in Hind discloses firmware.
` Today it's the same exact position: column
`19, the relevant passage, discloses firmware; it just
`uses the word "microcode" which Bose would understand
`means firmware. That is simply adding confirmation of
`our original position in the petition. That's
`completely fair for us to do on reply. And a lot of
`this is also somewhat of a red herring. If we turn to
`slide 24, it's not as if we rely just on column 19.
`In our petition, we pointed to all of Hind's numerous
`disclosures of firmware. It said firmware is
`described in Hind as having -- being beneficial for
`devices that are sending over a network connection.
` So these other disclosures apart from --
`even if you read column 19 and said, "That's somewhat
`ambiguous," the rest of Hind is not ambiguous, and
`we've cited to those other disclosures to motivate the
`combination.
` MR. EASTHOM: Mr. Speed, that -- I think
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`you've used 23 minutes. Why don't we go to your
`signal strength claim arguments for what --
` MR. SPEED: Yeah. Definitely would. I
`think it's --
` MR. EASTHOM: -- justifying my side with --
` MR. SPEED: No, I'm happy to do it. If you
`go to 25, the signal strength arguments are based off
`of -- it's all about the Harada reference and whether
`or not Harada discloses limitation. If we go over --
`we can jump to 27 and see the disclosures of Harada --
` MR. EASTHOM: Maybe we can cut this a little
`short, I mean --
` MR. SPEED: Yeah.
` MR. EASTHOM: -- the panel's familiar with -
`- I've heard -- a large part of my understanding,
`there's been shifting in arguments, in other words,
`whether you were relying on figure 15 exclusively or
`one of the other disclosures, and a lot of it went to
`the base station signal strength. But now I think --
`what the argument that's been generated recently, in
`the surreply, and I understand that you think that's
`an improper argument, but it's whether or not this reference
`discloses a transition between audio sources. Can
`you just address that, please?
` MR. SPEED: Right. I'm happy to do so, Your
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`Honor, and I think we can use slide 27 to address it
`as well.
` From the best I can piece together with
`surreply argument is the idea that Harada's dynamic
`selection -- it's dynamic -- is only done when you
`first turn on the device and so it dynamically figures
`out which of my peripheral device the one I wanted
`connect to and then it remains static there. That
`seems to be what Koss is suggesting, but that's
`inconsistent with what Harada teaches. And we can see
`perhaps on paragraph 67, which is on slide 27, it
`explains expressly that this is a dynamic selection
`technique that uses dynamic information and the reason
`it's dynamic is that the connection is not fixed to
`certain devices, right?
` And so if it determines if there's a
`different device to which that is -- it has a stronger
`connection, it will switch to that other device. And
`paragraph 11 shown in the top right of slide 27
`corroborates our understanding part of that one piece
`of dynamic information it uses is a signal strength
`between the master device and the peripheral device.
` Koss's expert -- he made a passing reference
`to maybe there's no actual transition going on here,
`and he's referring to figure 8 in the patent. Figure 8
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`IPR2021-00680
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`in Harada is described in paragraphs 103 to 107, and
`we have 104 an
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