IPR2021-00721
`U.S. Patent No. 8,166,081
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VOLKSWAGEN GROUP OF AMERICA, INC.,
`Petitioner
`
`v.
`
`STRATOSAUDIO, INC.,
`Patent Owner
`
`IPR2021-00721
`U.S. Patent No. 8,166,081
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`DECLARATION OF DR. TODD K. MOON
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`1
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`IPR2021-00721
`U.S. Patent No. 8,166,081
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................... 4
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`A.
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`Background And Qualifications ............................................................ 4
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`SUMMARY OF OPINIONS ........................................................................... 6
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`LEGAL STANDARDS ................................................................................... 7
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`A.
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`B.
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`C.
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`D.
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`Claim Construction ................................................................................ 8
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`Anticipation ............................................................................................ 9
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`Obviousness ........................................................................................... 9
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`Objective Indicia of Non-Obviousness ................................................11
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`THE ’081 PATENT AND THE CHALLENGED CLAIMS ........................13
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`LEVEL OF ORDINARY SKILL IN THE ART ...........................................21
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`CLAIM CONSTRUCTION ..........................................................................23
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`“media content” (claims 9-11, 23) ............................................23
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`“presenting . . . media content” (claims 9-11, 23) ....................23
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`“first receiver module” and “second receiver module” ............24
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`THE PRIOR ART ..........................................................................................27
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`A. Mackintosh (EX1004) ..........................................................................27
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`B.
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`DeWeese (EX1005) .............................................................................32
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`MACKINTOSH DOES NOT ANTICIPATE CLAIMS 9-11 AND 23 ........35
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`A. Mackintosh Does Not Anticipate Claim 9 ...........................................36
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`Mackintosh does not describe “a second receiver module” –
`Element 9[b] ..............................................................................36
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` Mackintosh Fails To Teach Two Receiver Module Outputs (“an
`output of the first receiver module or the second receiver
`module”) – Element 9[d] ..........................................................39
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` Mackintosh does not describe “data enabling identification of a
`specific instance of a first media content” – Element 9[a] .......42
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`B. Mackintosh Does Not Anticipate Claim 10 .........................................45
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`C. Mackintosh Does Not Anticipate Claims 11 And 23 ..........................47
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` MACKINTOSH DOES NOT RENDER OBVIOUS CLAIMS 9-11 AND 23
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`47
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` DEWEESE DOES NOT ANTICIPATE CLAIMS 9-11 AND 23 ................49
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`A. DeWeese Does Not Anticipate Claim 9 ..............................................49
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`DeWeese Fails To Teach “data enabling identification of a
`specific instance of the first media content” – Element 9[a] ....49
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`DeWeese does not describe a “second receiver module” –
`Element 9[b] ..............................................................................50
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`DeWeese Fails To Teach Two Receiver Module Outputs (“an
`output of the first receiver module or the second receiver
`module”) – Element 9[d] ..........................................................52
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`DeWeese does not describe “the second media content received
`discretely from the first media content” – Element 9[c] ...........54
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`B. DeWeese Does Not Anticipate Claim 10 ............................................58
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`C. DeWeese Does Not Anticipate Claims 11 And 23 ..............................61
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` DEWEESE DOES NOT RENDER OBVIOUS CLAIMS 9-11 AND 23 .....61
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` DECLARATION ...........................................................................................63
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`INTRODUCTION
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`IPR2021-00721
`U.S. Patent No. 8,166,081
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`1.
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`I, Todd K. Moon, Ph.D., have been retained by Patent Owner
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`StratosAudio, Inc. (“Patent Owner”) as an independent expert witness in the above
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`referenced inter partes review (“IPR”) of United States Patent No. 8,166,081 (“the
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`’081 patent”) (EX1001). I understand that Volkswagen Group of America, Inc.
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`(“Petitioner”) has petitioned for inter partes review of the ’081 patent and requests
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`that the United States Patent and Trademark Office (“PTO”) cancel as unpatentable
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`certain claims of the ’081 patent.
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`2.
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`This declaration sets forth my analyses and opinions based on the
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`materials I have considered thus far and the bases for my opinions. I understand
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`that this declaration will be used in the above mentioned IPR2021-00721.
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`A. Background And Qualifications
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`3. My qualifications are set forth in my curriculum vitae, a copy of
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`which is attached as Appendix A. As set forth in my curriculum vitae, I received
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`my B.S. in Electrical Engineering and Mathematics (dual major) and M.S. in
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`Electrical Engineering from Brigham Young University in 1988. I received my
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`Ph.D. in Electrical Engineering from the University of Utah in 1991.
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`4.
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`In 1991, I began teaching electrical and computer engineering at the
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`Utah State University (“USU”). From 1991 to 1996, I was an Assistant Professor
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`4
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`of Electrical Engineering, and from 1996 to 2002, I was an Associate Professor of
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`Electrical Engineering. I currently serve as a Professor of Electrical and Computer
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`Engineering and served as the department head from 2007 through 2016.
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`5.
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`As further described in my CV, I have over thirty years of experience
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`in electrical engineering, including extensive experience in signal processing and
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`digital communications. I have taught numerous classes in the field of signals and
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`systems. Some of the courses I have taught include digital communications, digital
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`signal processing, circuits and signals/signals and systems, digital control systems,
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`and digital systems design. I am a member of the IEEE Signal Processing Theory
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`and Methods (SPTM) Committee and was the General Conference Chair of the
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`IEEE Signal Processing/SP Education Workshop in 2015.
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`6.
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`I have authored or co-authored four books: Error Correction Coding:
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`Mathematical Methods and Algorithms, 1st Ed., Wiley, 2005, Error Correction
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`Coding: Mathematical Methods and Algorithms, 2nd Ed., Wiley, 2021,
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`Mathematical Methods and Algorithms for Signal Processing, Prentice-Hall, 2000,
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`and Advanced Signal Processing: A Concise Guide, McGraw-Hill, 2020. I have
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`authored or coauthored more than 50 journal papers and over 140 conference
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`papers on topics including geolocation, remote sensing, signal processing,
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`communication, filter design, and error correction coding.
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`5
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`7.
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`I have been involved in a variety of technologies related to
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`communications. My dissertation was about spread spectrum communications. I
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`have done work on co-channel interference, and using communications signals to
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`locate the transmitter source.
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`8.
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`9.
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`Additional qualifications are detailed in my CV.
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`I have been asked to provide certain opinions related to the validity of
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`the ’081 Patent. In doing so, I have considered my own education and work
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`experience that I believe render me well-qualified to opine on the level of ordinary
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`skill in the art and the non-obviousness of certain claims in view of prior art
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`presented in the petition.
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`10.
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`I am being compensated for my time spent in connection with this
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`matter at my usual rate of $450 per hour. My compensation is not contingent on
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`the outcome of this case.
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`
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`SUMMARY OF OPINIONS
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`11.
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`I have reviewed the Declaration of Tim A. Williams, Ph.D. (EX1003)
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`(the “Williams Declaration”),
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`the Petition,
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`the specification, claims, and
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`prosecution history of the ’081 patent, and the PTAB’s Institution Decision. In
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`forming my opinions, I considered the ’081 patent, the Petition, Petitioner’s
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`U.S. Patent No. 8,166,081
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`Exhibits, the Institution Decision, and additional exhibits cited herein. I also relied
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`on my education, training, and experience as a skilled artisan in the field.
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`12. The opinions that I express in this declaration are based on the
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`information and evidence currently available to me. It is my opinion that the
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`challenged claims of the ’081 patent are not anticipated or obvious in light of the
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`combinations of references put forth in the Petition.
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`13.
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`In my opinion, the challenges presented by Petitioner and Dr.
`
`Williams in Grounds 1-4 all fail. In particular, I have formed the following
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`opinions with respect to the challenges against claims 9-11 and 23 of the ’081
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`patent:
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` Mackintosh does not anticipate claims 9-11 and 23 (Ground 1);
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` Mackintosh does not render obvious claims 9-11 and 23 (Ground 2);
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` DeWeese does not anticipate clams 9-11 and 23 (Ground 3); and
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` DeWeese does not render obvious claims 9-11 and 23 (Ground 4).
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`The bases for my opinions are set forth in this declaration.
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` LEGAL STANDARDS
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`14.
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`I am not an attorney, and therefore, my understanding of patent law
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`and the legal standards set forth in this report is based on explanations provided by
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`counsel.
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`15.
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`I have been informed by counsel and I understand that the ’081 Patent
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`was filed on February 5, 2009, but that it claims priority to U.S. Provisional
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`Application No. 61/026,449 filed on February 5, 2008. Therefore, I have been
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`instructed by counsel that the invention date of the ’081 Patent is February 5, 2008,
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`for the purposes of this Petition. I take no position on whether an earlier invention
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`date should be afforded to the ’081 Patent.
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`A. Claim Construction
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`16.
`
`I understand that the United States Patent and Trademark Office
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`interprets claim terms in an inter partes review proceeding under the same claim
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`construction standard that is used in a United States federal court. I understand
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`that, under this standard, the meaning of claim terms is considered from the
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`viewpoint of a person of ordinary skill in the art (“POSITA”) at the time of the
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`alleged invention.
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`17.
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`I understand that claim terms are generally given their plain and
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`ordinary meaning as understood by a POSITA, in light of the specification and the
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`prosecution history pertaining to the patent. I further understand that claim terms
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`are generally not to be imported from the embodiments described in the
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`specification unless the patentee has demonstrated a clear intention to limit the
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`claim scope.
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`18.
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`I understand that in addition to the claims, specification, and
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`prosecution history, other evidence may be considered to ascertain the meaning of
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`claim terms, including textbooks, encyclopedias, articles, and dictionaries. I have
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`been informed and understand that this other evidence is often less significant and
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`less reliable than the claims, specification, and prosecution history.
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`B. Anticipation
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`19.
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`I understand that a patent claim is unpatentable as anticipated if each
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`element of that claim is present either explicitly or inherently in a single prior art
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`reference. I have also been informed that, to be an inherent disclosure, the prior art
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`reference must necessarily disclose the limitation, and the fact that the reference
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`might possibly practice or contain the claimed limitation is insufficient to establish
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`that the reference inherently teaches the limitation.
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`C. Obviousness
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`20.
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`I understand that even if an alleged claimed invention is not
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`identically disclosed or described in a single piece of prior art, the patent claim
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`may still be unpatentable if the differences between the claimed invention and the
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`prior art (alone or in combination) are such that the claimed invention as a whole
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`would have been obvious to a person having ordinary skill in the art at the time the
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`invention was made. I understand that the level of ordinary skill in the pertinent
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`art is evaluated as of the time of the invention, here the effective filing date of the
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`IPR2021-00721
`U.S. Patent No. 8,166,081
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`’081 patent.
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`21.
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`I also understand that, in addressing obviousness, the following
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`factors must be considered from the perspective of a hypothetical person of
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`ordinary skill in the relevant art: (1) the scope and content of the prior art; (2) the
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`differences between the claimed invention and the prior art; (3) the level of
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`ordinary skill in the art; and (4) any other indications (“objective indicia”) of non-
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`obviousness, such as commercial success, long-felt but unsolved needs, failure of
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`others, industry acclaim, and unexpected results.
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`22.
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`I understand that prior art references may be combined to render a
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`claim obvious if a person of ordinary skill in the art would have been motivated to
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`combine those teachings to derive the claimed subject matter with a reasonable
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`expectation of success. I also understand that the use of hindsight to select or
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`combine prior art references is improper for purposes of an obviousness analysis.
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`23.
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`I understand that in considering obviousness, it is relevant to consider
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`whether the art includes references that “teach away” from the claimed invention.
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`I have been informed that a reference teaches away from the claimed invention if a
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`person of ordinary skill, reading the reference, would be discouraged from
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`following the path of the claimed invention or would be led in a divergent
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`direction.
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`D. Objective Indicia of Non-Obviousness
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`24. With regard to objective evidence of non-obviousness, I understand
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`that such objective evidence of non-obviousness may be used to rebut a prima
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`facie case of obviousness based on prior art. Objective evidence of non-
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`obviousness includes:
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` Commercial Success: I understand that evidence of commercial
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`success can be considered as an indication of non-obviousness. I
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`understand that the law presumes an idea would successfully have
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`been brought to market sooner, in response to market forces, had the
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`idea been obvious to persons skilled in the art.
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` Long-Felt but Unsolved Need: I understand that evidence that a
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`claimed invention solved longstanding problems or fulfilled a long-
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`felt need in an industry can be considered as an indication of non-
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`obviousness. I understand that existence of an enduring, unmet need
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`is strong, practical evidence of the state of knowledge at the relevant
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`time period showing that the invention is novel and not obvious, and
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`not anticipated.
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` Copying: I understand that evidence that a competitor copied a
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`claimed invention can be considered as an indication of non-
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`obviousness.
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` Licensing: I understand that evidence of acquiescence by a
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`substantial portion of competitors in a market to the validity of a
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`patent, generally through acceptance of a license, can be considered as
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`an indication of non-obviousness.
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` Skepticism: I understand that evidence of skepticism by those of skill
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`in the art that the invention would work can be considered as an
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`indication of non-obviousness. I understand that, in effect, teaching
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`away, is a more pointed and probative form of skepticism expressed in
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`the prior art.
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` Unexpected Results: I understand that evidence that shows that a
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`claimed invention exhibits some superior property or advantage, and
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`that a person of ordinary skill in that art would have found it
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`surprising or unexpected, can be considered as an indication of non-
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`obviousness. In particular, if the benefits of a combination of prior art
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`elements were unpredicted by those of ordinary skill, then they would
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`have no apparent reason to pursue the claimed combination.
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` Praise by Others: I understand that evidence of praise by the industry
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`regarding the claimed invention can be considered as an indication of
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`non-obviousness.
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` Failure of Others: I understand that evidence that others have tried to
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`solve the same problem, but have failed can be considered as an
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`indication of non-obviousness.
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`25.
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`I understand that notwithstanding what the teachings of the prior art
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`would have suggested to one of ordinary skill in the art at the time of the invention,
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`the totality of the evidence submitted, including objective evidence of non-
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`obviousness, may lead to a conclusion that the challenged claims would not have
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`been obvious to one of ordinary skill in the art.
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`26.
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`I understand there must also be a causal relationship, termed a
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`“nexus,” between the objective evidence of non-obviousness and the claimed
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`invention. I understand that all types of objective evidence of non-obviousness
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`must be shown to have a nexus. The stronger the showing of nexus, the greater the
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`weight accorded the objective evidence of non-obviousness.
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` THE ’081 PATENT AND THE CHALLENGED CLAIMS
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`27. The ’081 patent relates to media advertising and combining an
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`advertising media signal with another media signal. Specifically, the ’081 patent
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`describes a novel system for combining multiple media content after discretely
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`identifying each instance of the first media content (e.g., content such as a radio
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`program) and the second media content (e.g., target advertisements). EX1001,
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`1:18-20. In advertising, it is desirable to associate products with specific
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`characteristics and such associations may increase the chance that a potential
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`customer will decide to purchase a product when the product is associated with a
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`favorable characteristic. Id., 1:22-30. In view of this, the ’081 Patent states that an
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`advertisement may be more effective if it is associated with an image of a celebrity
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`or another media element that exhibits favorable characteristics. Id., 1:30-34.
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`28. The ’081 patent achieves the objective of associating ads with other
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`media content by, for example, the steps of challenged claims 9-11 and 23. Claim
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`9 is set forth below:
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`9[pre] A system for combining multiple media comprising:
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`9[a]
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`a first receiver module configured to receive at least a first
`media content and data enabling the identification of a
`specific instance of the first media content from a first
`broadcast medium;
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`9[b] a second receiver module configured to receive at least a
`second media content and uniquely identifying data specific to
`at least the second media content,
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`9[c]
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`the second media content received discretely from the first
`media content;
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`9[d] an output system configured to present concurrently the first
`media content and the second media content on an output of
`the first receiver module or the second receiver module;
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`9[e] an input module configured to receive at least a response input
`responsive to the second media content; and
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`9[f]
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`a transmitting module configured to transmit a response
`message having at least the uniquely identifying data specific
`to the second media content to a computer server.
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`29. The subject matter of challenged claims 9-11 and 23 is set forth
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`throughout the specification of the ’081 patent. Below I have provided examples
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`from the specification of the ’081 patent demonstrating the claimed system.
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`30. The Summary of the invention contemplates several embodiments of
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`“associating multiple media signals” and “combining multiple media signals”
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`which provide support for the claimed system. See id., 1:38-2:30. The Detailed
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`Description also discloses several embodiments for a media enhancement system
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`configured to associate/combine a secondary media signal (for example, an
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`advertisement) to a primary media signal (for example, a radio broadcast). Id., 3:8-
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`5:21.
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`31. The claimed system is implemented, for example, by the system
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`shown in Figures 1 and 1A (reproduced below):
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`32. The system comprises a first transmitter 3, primary device 4, ancillary
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`device(s) 5, media association system 2, advertisement entity 6, and control
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`management system 100. Id., Fig. 1, 8:11-16.
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`33. The first transmitter 3 (e.g., a radio broadcaster) may transmit the first
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`media content to the primary device, or any other devices, systems, or entities in
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`the multimedia system, including the ancillary device. Id., 10:56-58 (“the first
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`transmitter 3 can send a first media signal 111 to the primary device 4 and/or
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`ancillary device 5”), 12:30-35 (“it is clear that the first media signal 111 could
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`further be transmitted to any number of devices or entities, as well as the ancillary
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`devices 5”). The media association system can provide a related media signal 114
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`to the primary and/or ancillary devices. Id., 9:43-48. Similarly, “the media
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`association system 2 and the advertisement entity 6 can provide an advertisement
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`media signal 113 to the primary and/or ancillary devices 4, 5.” Id., 12:37-40; see
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`also id., 21:49-51 (“The ancillary device 5 can receive the first media signal 111
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`and the advertisement signal 113 directly from the first transmitter 3 and/or the
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`media association system 2.”).
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`34. The ’081 patent describes three ways of transmitting the first media
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`signal and the second media signal to the devices: (1) the second media signal is
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`integrated with the first media signal; (2) “the first media signal and the second
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`media signal are separate and discrete;” and (3) the first media signal is
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`intercepted during transmission and the second media signal is added to the
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`transmission. Id., 4:64-5:3 (emphasis added), 10:63-11:1, 11:14-20. In my
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`opinion, a POSITA would understand that claim 9 is directed to those
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`embodiments where the first media content is transmitted separately and discretely
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`from the second media content. Id., cl. 9, 35:30-31.
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`35. The ’081 patent explains that when the first and second media signals
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`are sent separately, a “unique identifier 115” can be assigned to each signal. Id.,
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`11:24-28, 12:66-13:13, Fig. 1D. A unique identifier may be used to identify each
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`media signal from other media signals and “each instance of each signal or content
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`media segment.” Id., 12:61-13:4. “As illustrated in FIG. 1D, the unique identifier
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`115 is database-linked thereby allowing a user (for example, a user of the control
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`management system 100, media association system 2 and/or advertisement entity
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`6) to conduct a search or lookup of the information identified by the unique
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`identifier 115 to determine the location, the user device, the time of transmittal, the
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`program and/or media content in the first media signal, the available options for
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`response to the user of the device, and/or other identifying characteristic
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`information.” Id., 11:38-46.
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`36. The ’081 patent shows that data enabling the identification of a
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`specific instance (in other words, occurrence) is determined at the time the signal is
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`broadcasted. In particular, the ’081 patent states, “the broadcast scanning system
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`160 is configured to: analyze the broadcast streams received by a plurality of
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`broadcast sources 120 to obtain or identify the media content transmitted in the
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`broadcast streams” and “assign a unique event identifier 115 specific to the
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`broadcast of each specific broadcast stream.” Id., 32:5-11. The ’081 patent
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`incorporates by reference a co-pending application (which issued as U.S. Patent
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`No. 8,875,188 (EX2021) for its disclosure regarding how the broadcast scanning
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`system 160 determines the unique event identifier. See EX1001, 32:14-20. The
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`incorporated-by-reference application confirms that the broadcast scanning system
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`analyzes the broadcast stream and determines the unique event identifier enabling
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`identification of the specific instance of the media content at the time the broadcast
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`occurs. See, e.g., EX2021, 10:4-42, 12:32-38, 14:31-34.
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`37. The ’081 patent states that the unique event identifier data is
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`“preferably implemented as a part of a database that allows for the storage and/or
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`retrieval of the identifier and/or data associated with the identifier.” EX1001,
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`7:65-8:1. The patent states “[b]y means of the unique event identifier and/or
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`identifiers, reports can be generated on the performance of various aspects of the
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`system such as who, what, when, where, why, which, and/or how an event within
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`the system occurred, including the number of times an event within the system
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`occurred; locations for events; what prompted an event; devices, signals and/or
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`users associated with events and/or means associated with the events.” Id., 8:1-9.
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`38. Once the system receives the first media content, the second media
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`content, and their respective identifying data, either the primary device 4 and/or the
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`ancillary device 5 present concurrently both media content. EX1001, 14:5-13
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`(“then have either the primary device 4 and/or ancillary device 5 to present the
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`advertisement signal 113 at the same time or substantially the same time as the first
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`media signal 111 is presented to the user of either the primary device 4 and/or
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`ancillary device 5”), 14:27-31 (“Next the primary device 4 and/or ancillary device
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`5 present the advertisement signal media signal 113 at the same time or nearly the
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`same time as the first media signal 111 is presented to the user of primary device 4
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`and/or ancillary device 5.”). When discussing presentation of the first and second
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`media content on an output, the use of “and/or” in the specification versus “or” in
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`claim element 9[d] of the challenged claims has meaning. While the specification
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`contemplates that the first and second media content may be presented separately
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`or together on the primary device and/or the ancillary device, claim element 9[d]
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`requires concurrently presenting the “first media content” and “second media
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`content” together on “an output of the first receiver module or the second receive
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`module.”
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`39. The ’081 patent explains that “[t]he ancillary device 5 can comprise
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`superior bandwidth, storage capacity, and/or processing power relative to the
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`primary device 4, allowing the ancillary device 5 to transmit more complex data to
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`the media association system 2.” Id., 15:43-47. “For example, if a media signal
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`114 and/or an advertisement media signal 113 cannot be viewed, then a user can
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`view the media signal 113 on an ancillary device 5.” Id., 21:32-36; see also id.,
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`25:26-29 (“Such steps can reduce bandwidth requirements, restrict access to the
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`related media signal 114, and allow it to be viewed on the primary and/or an
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`ancillary devices 4, 5 capable of viewing media in a certain set of formats.”).
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`40. The ’081 patent further explains the system includes a means of
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`allowing a user to input or respond to the media content being presented. Id., 15:9-
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`12. The user responses can include responses to interactive media content, such as
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`polls, voting, or games. Id., 12:54-57, 15:12-14.
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` LEVEL OF ORDINARY SKILL IN THE ART
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`41.
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`I understand that Petitioner and Dr. Williams assert that a person of
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`skill in the art (“POSITA”) in the context of the ’081 Patent as of February 5, 2008
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`would have had “at least a B.S. in computer science or electrical engineering or a
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`related field, and approximately three years of experience working in the
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`communications or Internet-related industries” but that “a higher education or skill
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`level might make up for less experience, and vice-versa; for example, a POSITA
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`could have a master’s degree with no industry experience.” Pet. 7; EX1003, ¶ 33.
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`42. For the purpose of these proceedings, I do not object to the level of
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`skill proposed by Petitioner and Dr. Williams.
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`43.
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`I am qualified to testify as to this level of skill because, as noted
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`above, I have B.S., M.S., and Ph.D. degree in electrical engineering and have over
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`thirty-years’ experience teaching and working in the electrical engineering
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`industry. Specifically, I have taught electrical and computer engineering at USU
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`since 1991. From 1991 to 1996, I was an Assistant Professor of Electrical
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`Engineering, and from 1996 to 2002, I was an Associate Professor of Electrical
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`Engineering. I currently serve as a Professor of Electrical and Computer
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`Engineering and served as the department head from 2007 through 2016.
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`44. Within the electrical engineering field, I have extensive experience in
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`signal processing and digital communications, and I have taught numerous classes
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`in the field of signals and systems. I am also a member of the IEEE Signal
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`Processing Theory and Methods (SPTM) Committee and was the General
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`Conference Chair of the IEEE Signal Processing/SP Education Workshop in
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`2015. Further, I have authored or co-authored four books: Error Correction
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`Coding: Mathematical Methods and Algorithms, 1st Ed., Wiley, 2005, Error
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`Correction Coding: Mathematical Methods and Algorithms, 2nd Ed., Wiley, 2021,
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`Mathematical Methods and Algorithms for Signal Processing, Prentice-Hall, 2000,
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`and Advanced Signal Processing: A Concise Guide, McGraw-Hill, 2020. I have
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`authored or coauthored more than 50 journal papers and over 140 conference
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`papers on topics including geolocation, remote sensing, signal processing,
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`communication, filter design, and error correction coding.
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`
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` CLAIM CONSTRUCTION
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`“media content” (claims 9-11, 23)
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`45.
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`I understand the Petitioner and Dr. Williams propose that the term
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`“media content” should be construed according to the ’405 patent’s definition as
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`follows:
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`46.
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`[T]he terms “media” or “media content” are broad terms that comprise
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`any form of content, including without