`Trials@uspto.gov
`571-272-7822
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`Paper # 38
`Entered: December 7, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`___________
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`HYUNDAI MOTOR AMERICA,
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`Petitioner,
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`v.
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`STRATOSAUDIO, INC.,
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`Patent Owner.
`___________
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`IPR 2021-01267
` Patent 8,166,081 B2
`__________
`
`Record of Oral Hearing
`Held: October 24, 2022
`_____________
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`Before, JUSTIN T. ARBES, HYUN J. JUNG, and KEVIN C. TROCK,
`Administrative Patent Judges.
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`IPR2021-01267
`Patent 8,166,081 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`BENJAMIN HABER, ESQUIRE
`CAITLIN P. HOGAN, ESQUIRE
`O’Melveney & Myers, LLP
`610 Newport Center Drive
`17th floor
`Newport Beach, CA 92660
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`ON BEHALF OF PATENT OWNER:
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`JONATHAN LAMBERSON, ESQUIRE
`White & Case, LLP
`1221 Avenue of the Americas
`New York, NY 10020
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`The above-entitled matter came on for hearing, by video, on Monday,
`October 24, 2022, commencing at 3:25 p.m., EDT, at the U.S. Patent and
`Trademark Office, before Chris Hofer, Notary Public.
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`IPR2021-01267
`Patent 8,166,081 B2
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` P R O C E E D I N G S
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`JUDGE TROCK: Good day everyone. This is Judge Trock. With
`
`me on the panel today are Judge Arbes and Judge Jung and this is in IPR
`2021-01267 concerning U.S. patent No. 8,166,081 Hyundai Motor America
`v. StratosAudio, Inc. Why don’t we get appearances first. Petitioner?
`
`MR. HABER: Benjamin Haber for Petitioner Hyundai, and with me
`in the room is Brad Berg. Also on the line is Tim Fink and Catlin Hogan as
`well. Caitlin is going to be presenting a portion of the argument as a LEAP
`practitioner.
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`JUDGE TROCK: Thank you, Mr. Haber. Counsel for Patent Owner.
`
`MR. LAMBERSON: Yes, thank you. Jonathan Lamberson for Patent
`Owner, StratosAudio. I’ll be presenting today and also with me on the line
`are John Scheibeler and Hallie Kiernan.
`
`JUDGE TROCK: Thank you, Mr. Lamberson. So in the original
`order each side had 60 minutes but Petitioner had requested a LEAP
`presentation so that’s an additional 15 minutes, so Petitioner you’ll have 75
`minutes for your presentation and Patent Owner, you will have 60 minutes.
`Just remember to mute yourself when you’re not speaking. When
`you’re identifying a demonstrative or an exhibit please identify it by number
`so that we can have a clear record and also give us a second to pull that up as
`we have copies of everything that you’ve provided. Counsel for Petitioner,
`would you like to reserve some time for rebuttal?
`MR. HABER: Yes. We would like to reserve 20 minutes for rebuttal
`at this time.
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`JUDGE TROCK: So that will give you 55 minutes for your
`presentation here. So whenever you are ready, go ahead and get started.
`MR. HABER: I’ll first share my screen. Just give me a moment.
`Can you see the presentation?
`JUDGE TROCK: We do.
`MR. HABER: Right. Thank you, Your Honors. If I may proceed?
`Benjamin Haber for Hyundai Motor America. I am going to be discussing
`the ‘081 patent today in IPR 2021-01267.
`So here I have an overview of the presentation that we’ll be giving.
`Happy to take these in any order but otherwise these will be the general
`order of presentation. Ms. Hogan will be presenting the argument with
`regard to 9[b] and [e] and I will be discussing the remainder.
`I’ll start with the alleged invention. So we have on slide 4 the title of
`the patent. The patent is related to systems and methods for associating and
`presenting multi-media content and so the claims at issue can be understood
`in the context of, for example figure 3 of the patent but shown in figure 3 is
`a mobile device, as a telephone. The mobile device has a receiver 455. A
`signal comes in to the receiver and is received by two or more modules in
`the device. So these receiver modules then have respective outputs and the
`signal that is processed received is output on a receiver according to the
`respective module that receives that signal.
`So, for example, if there is a audio signal that could be played on the
`audio output of speaker 453, is there is a signal that can be presented
`visually it can be displayed on the display panel 450 and important to these
`claims is the idea of concurrent presentation of those signals. So, for
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`Patent 8,166,081 B2
`example, a song may be presented to a user on the speaker concurrently
`while the display panel 450 is displaying information about the source such
`as the artist or the title, et cetera.
`JUDGE TROCK: Counsel, not to interrupt but if you could go back
`to that slide for a second I just have a question on this figure. You have a
`screen here I believe that’s 450 that’s indicated which appears to be split into
`two where you have an upper display panel 451 and a lower display panel
`452; is that correct?
`MR. HABER: That is correct. So --
`JUDGE TROCK: Right. Sorry. And then it’s providing information
`about a song and an artist and a time I believe on the upper part 451 as well
`as an advertisement below on a 452. So you had mentioned I believe in your
`description of the ‘081 patent that there was a receiver for the audio
`information and perhaps a receiver for the visual information. I have a
`question just with respect to the 450 which is split into two portions. Are
`there two separate receivers for the portion that’s displayed in 451 and a
`separate receiver for the portion which is displayed in 452 or is that
`information being provided into that separated screen by a single receiver?
`MR. HABER: So --
`JUDGE TROCK: -- or with a single output and that’s really the crux
`of my question is whether there are multiple receivers here providing that
`information and therefore multiple outputs?
`MR. HABER: Right. So think that there could be multiple receivers
`corresponding to the different information that is presented on the display
`panel. There’s a number of kind of examples that you can get from the ‘081
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`patent and one of them is concurrently presenting information on a display
`panel from, you know, an advertising stream transmitted along with the
`broadcast stream and you could also do it with concurrent presentation
`through a speaker and a display panel. I think both of those things are
`permissible under the ‘081 patent.
`JUDGE TROCK: Right. But my question has to do with this
`embodiment which is displayed here in figure 3. This dual split screen you
`have here, is this information being provided on the screen or is it described
`in any extent in the ‘081 patent? Is there a single receiver which is receiving
`this information and then using its output to display the split screen or are
`there two separate receivers with two separate outputs, one output going to
`the portion 451 and a second output going to the portion 452?
`MR. HABER: I have to go back and look at the specification. My
`recollection is that it’s not entirely clear in the ‘081 patent. I think the
`claims envision that it could be done either way. I have to go back and look
`to see if there’s a specific teaching in the specification that supports one or
`the other. My understanding is that both of those things are possible.
`JUDGE TROCK: Okay. Thank you.
`MR. HABER: So we have the instituted grounds on which IPR was
`instituted. I’m going to be focusing primarily on the primary references,
`Noreen and Ellis. I may also touch on Crosby as well as the secondary
`reference in each one of these grounds.
`So I’m going to start with the data enabling identification of a specific
`instance limitation. I’m going to start with kind of an implied claim
`construction issue and then describe how the art teaches that claim and the
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`reason that I say it’s kind of an implied claim construction issue is because
`everyone seems to agree that these claim terms should have their plain and
`ordinary meaning. That is what Petitioner said in its petition, it’s what
`Patent Owner said in its papers and indeed it’s what Your Honors said in the
`Institution decision, no construction is necessary to resolve -- to apply the art
`to these claims and that continues to be Petitioner’s position.
`But that doesn’t actually answer the question here unfortunately
`because it has been made clear that the Patent Owner argues or a very
`narrow construction in the guise of plain and ordinary meaning. They don’t
`actually appear to be applying the plain and ordinary meaning. For example,
`in their surreply they identify this term specific instance an they provide a
`particular meaning and definition for that which I will discuss momentarily.
`But the idea that they want is that you have to kind of distinguish between
`different instances of content and that is what the claim requires.
`Now, starting with the plain language here we can see highlighted
`data enabling the identification of a specific instance. Those words are
`ordinary. There’s nothing particularly idiosyncratic about them and indeed,
`as Petitioner explained, the specification, the prosecution history, nothing
`actually talks about distinguishing multiple instances of the same content.
`So how does Patent Owner kind of get to this claim construction view
`that they are implying? So they take the claim language, data enabling the
`identification of a specific instance and then they add some additional
`requirements to the claim and it has to be done by distinguishing between
`multiple instances of the same content. Those words don’t appear in the
`claim and in fact as we explained in our papers. They don’t appear in the
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`specification. They don’t appear in the figures. They don’t appear in the
`file history. They don’t appear anywhere in the intrinsic record. So they are
`words that are added by their expert really for no reason other than to
`attempt to avoid the prior art. There really is no claim construction
`argument presented or supportable around that term.
`So I wanted to talk about the first ground. Noreen alone discloses
`data enabling identification of a specific instance, and I’m on slide 13 here.
`Specifically, as we explained in our papers, the first media content may be a
`page or other data message that’s transmitted over Noreen’s time division
`multiplex channel, the TDM channel in Noreen. Noreen explains that
`coding its transmissions for addressing messages to a particular users.
`Noreen also includes identification information that is included with its
`transmission. Noreen specifically explains that when you have a digital
`signal the identification may be included in “a time slot in the time division
`multiplex signal.” That is Noreen, column 2, lines 59 through 64.
`So Noreen makes clear that particular messages that are sent on the
`TDM channel include data sufficient to enable their identification and
`ultimate presentation to a user, and so this is similar to what happens in the
`‘081 patent. Noreen has a module in it, this is the TDM demodulator and
`decoder module. It receives a signal. In that signal is, for example, a page
`or other data message that is meant to be displayed to a particular user. The
`TDM module receives that information, decodes it and ultimately identifies
`it for presentation to a user so that a user can view it on their display and
`what Dr. Almeroth has explained is that each time a sports report, stock
`quote, travel alert or an individualized message is received and displayed on
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`Noreen’s display a POSITA would have understood that Noreen has
`decoded the sufficient paging and packet data from the TDM channel
`sufficient to identify it and present it to the user.
`JUDGE TROCK: Counsel, this is Judge Trock again.
`MR. HABER: Yes, Your Honor.
`JUDGE TROCK: With respect to the ‘081 patent does the
`specification describe or provide examples of what data enabling
`identification of a specific instance would be?
`MR. HABER: The specification in our view is rather sparse. So the
`figure 3 example provides information like song titles, artists, if there’s time
`information. It doesn’t, you know, provide a kind of exhaustive definition of
`everything that would be data enabling identification of a specific instance.
`The fact is that that term is broad and it’s broadly used and it just has to be
`data that enables the system to identify that particular instance.
`JUDGE TROCK: Thank you.
`MR. HABER: So one of the things that can be sent on Noreen’s
`TDM channel is, for example, a page, alpha-numeric page, and some of
`those implementation details are left to a POSITA but everyone kind of
`agrees that those implementation details would have been well know. Patent
`Owner’s expert was asked at deposition and he explained that a POSITA at
`the time would be familiar with these paging protocols, they would be
`familiar with two way paging. They would have been ablet o examine and
`understand these protocols and our expert, Dr. Almeroth, has further
`provided some additional examples to show just how these well known
`paging protocols would have been used. This is example 1028. So one of
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`the examples of data in these paging protocols that enables identification of
`specific instances are end of transmission and start of transmission tags
`along with the page.
`As we explained previously we don’t think that the claim is actually
`limited as Patent Owner suggests to identifying and distinguishing between
`multiple duplicate instances of the same content. We don’t think that that’s
`actually a requirement of the claim. But to the extent that it is, this Exhibit
`1028 makes clear that duplicate message detection, for example, was a well
`known feature of two way paging protocols at the time and that is if I get a
`page at 2 o’clock in the afternoon and I get the same page at 2:05 that
`duplicate instance of the page will -- is identified as a repeated message and
`it is not stored. So to the extent that that even was a claim requirement, it is
`part of the well known details of paging protocols as described by Noreen.
`I want to talk about slide 18 which is ground 4. Again, Ellis 2005
`alone discloses data enabling identification of a specific instance. I did want
`to note for the record that this particular claim element, element 9[a] is the
`only basis on which Patent Owner has attempted to distinguish Ellis 2005.
`Also let’s talk a little bit about what Ellis does. Ellis is a set top box.
`It receives video and audio and associated data in a signal from a
`programming source. Also included in that signal are PIDs and PID maps.
`Those are packet identifiers, as identified by Ellis 2005 and it’s those PIDs
`and PID maps that enable the identification of a specific instance as claimed.
`So let’s talk a little bit more about how Ellis works. So I have on
`slide 19 paragraph 44 of Ellis and Ellis’s figure 3 and you can see annotated
`to the right there’s going to be a signal, a data stream that comes in and in
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`that data are going to be -- in that transmitted in-band in that data are the
`packet IDs and packet ID maps and so they’re depicted here as these little
`crescents so you can see there’s gray circle corresponding to some data and
`then there’s a corresponding gray crescent which is the packet ID that
`enables the identification of that particular data, and as the PIDs and PID
`maps are received in-band with the signal they are stored into the device’s
`memory.
`And so if, for example, a user wants to select to listen to and view an
`audio channel, the PIDs for the audio tracks in that channel are selected and
`used to identify the audio that will be presented to the user. There is some
`packet filtering done to make sure that the PIDs -- that the data that
`corresponds to the selected PIDs are actually what gets outputted to the user
`and Dr. Almeroth has explained that a POSITA would have understood that
`Ellis, 2005’s PIDs and PID maps meet this limitation because they identify
`where the data is within the stream and they distinguish between the tracks.
`So the end result of this is shown on slide 21. The audio tracks are
`output on the audio line. They are fed to the audio system and then they are
`ultimately presented to the user. You can see the little gray dot at the output
`of the audio system corresponds to the specific instance that is reflective of
`the corresponding little gray crescent, that’s the PID which identifies it and
`so those PIDs and PID maps are what is used to enable the identification of
`the specific instance that corresponds to whatever it is the user has
`requested.
`So moving ahead to slide 24. I wanted to note that the Patent Owner’s
`argument on this term is essentially the same as the argument that was
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`presented in its POPR. It was not accepted in the Institution decision and the
`Board noted that there is nothing in the record that requires restricting the
`claim as Patent Owner suggests and in Petitioner’s view that remains
`correct, and interestingly if you look at Patent Owner’s surreply they
`expressly say they’re not seeking to construe claim element 9[a]. There is
`nothing in the record that supports the argument they’re presenting and they
`haven’t even attempted to provide an argument that there is under traditional
`claim construction principles.
`I wanted to talk about StratosAudio’s argument against ground 5.
`Ground 5 is the combination of Crosby and Ellis 2005 and so Patent
`Owner’s argument here really rests on both legal and factual errors. What
`they did is they went through Crosby and they identified a particular
`embodiment that, in their view, is most similar to the embodiment of Ellis
`2005 and once they’ve identified that most similar embodiment they say that
`we should just ignore everything else in Crosby and one of skill in the art
`would kind of myopically and narrowly focus their review of Crosby on just
`the one particular embodiment that they think is most relevant and ignore
`everything else.
`But Almeroth has explained that that is not consistent with how one of
`skill in the art would have considered Crosby, one of skill in the art would
`have considered it for all that it teaches, and that’s also not consistent with
`the applicable legal principles. Of course a reference may be read for all that
`it teaches including uses beyond its primary purpose. Their kind of narrow
`view of Crosby that Patent Owner is advancing is simply not how that
`reference would have been viewed by a POSITA.
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`But even putting that aside, if we go to slide 33. It’s not actually a
`factually accurate characterization of Crosby. Crosby does not have these
`sort of limited mutually exclusive embodiments that StratosAudio seems to
`be suggesting. Crosby itself says that its particular examples can be used in
`different ways. So, for example, in the passage identified on the left it says
`that the system can be used in conjunction. So you have satellite
`broadcasting systems with interactive radio systems. As you can see on the
`right it says that the overall system is configured to work in a combination
`with a variety of types of broadcasters including conventional AM/FM
`broadcasters, digital radio broadcasters, satellite broadcasters and the like.
`The point is that Crosby is just not as limited as Statosaudio seems to
`suggest it is and a POSITA would have taken its applicable teachings and
`applied them as necessary.
`I think at this point I’d like to hand it over to Ms. Hogan to address
`elements 9[b] and [e]. Just let me see if I need to stop sharing my screen.
`MS. HOGAN: Okay. Let me share. Can you see this slide here, 34?
`JUDGE TROCK: Yes.
`MS. HOGAN: Okay. Great. Good afternoon, Your Honors. My
`name is Caitlin Hogan and I’m presenting under LEAP on behalf of
`Petitioner.
`I’m on slide 34 now. There are two terms in dispute for limitation
`9[b], received discretely and uniquely identifying data which also appears in
`limitation 9[e]. First I will discuss Patent Owner’s proposed narrow
`construction for the term received discretely and then I will discuss why
`both disputed terms are taught by Noreen.
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`Starting with the received discretely term, as shown on slide 35 in its
`Institution decision the Board requested that Patent Owner directly and fully
`address in its papers any claim construction issue for the received discretely
`term and not leave it open for speculation. Despite this directive in its Patent
`Owner response Patent Owner agreed with Petitioner that no term requires
`construction but applied a new narrow construction of the term receive
`discretely in its analysis for limitation 9[b].
`Specifically for the first time in its Patent Owner response, Patent
`Owner revealed that its arguing a narrow construction of the term receive
`discretely shown here on slide 36 which requires that the first and second
`media content are each received on separate not integrated signals when
`received by the user device. Petitioner has applied the plain and ordinary
`meaning of the term received discretely to Noreen in its analysis.
`Claim 9 is depicted here on slide 38. As the highlighting shows claim
`9 requires first and second receiver modules to receive the first and second
`media content respectively. Moreover, the claim requires that the first and
`second media content are received discretely at the receiver modules. This
`is what Petitioner has identified in Noreen.
`As Noreen explains and is as depicted in annotated figure 9 here on
`slide 39 Noreen discloses two receiver modules receiving IF, also known as
`intermediate frequency signals discretely. This is shown here with the blue
`and orange arrows. Each IF signal is demodulated and decoded by separate
`receiver modules, one for the TDM channel which Petitioner has mapped to
`the first receiver module and one for the assignable channel which Petitioner
`has mapped to the second receiver module. The modules identified by
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`Petitioner meet limitation 9[b].
`There’s no express written description support for adding a negative
`not integrated limitation to the claims shown here on slide 41, and Patent
`Owner has provided no reason to add this negative limitation. Absent this
`improper negative limitation, Patent Owner admits that Noreen operates the
`same as the first ‘081 patent example but Patent Owner argues it is only the
`second example on this slide that meets the claims.
`Putting aside Petitioner’s disagreement that the examples pointed to
`by Patent Owner are commensurate with the claim or limit it, Noreen
`operates the same way as the second example that Patent Owner recites to as
`receiving discretely. As shown here on slide 42, the ‘081 patent explicitly
`discloses that when two signals are separate, it can be transmitted on distinct
`frequencies. This embodiment Patent Owner agrees satisfies the received
`discretely term and this is exactly how the Noreen system works.
`As Dr. Almeroth explained in his reply declaration excerpted here on
`slide 43, the ‘081 patent explains that as an alternative to being transmitted
`integrally, the signals may be transmitted on distinct frequencies which is
`exactly how the signals are transmitted in Noreen. Specifically each channel
`in Noreen occupies its own discrete spectrum within the same band because
`each demodulator applies a different frequency to the respective IF signals.
`Therefore, Noreen reaches this limitation regardless of Patent Owner’s
`narrow unarticulated construction.
`I will now address the uniquely identifying data term of limitations
`9[b] and 9]e] shown on slide 44. As explained in the Petitioner reply,
`Noreen discloses that identification information processed from the program
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`IPR2021-01267
`Patent 8,166,081 B2
`signal may include identification of the particular program to which the user
`is listening. Noreen also discloses that high quality digital program data
`such as music are sent to the assignable channel. Dr. Almeroth explained in
`his reply declaration that a person of ordinary skill in the art would have
`understood that the identification information from the program signal
`responds to the particular high quality program that the listener is listening
`to, such as music.
`Patent Owner’s argument, shown on slide 45, is that there is nothing
`in Noreen to link the assignable channel to the program signal. But slide 46
`shows that this is not true. Noreen figure 4 and its accompanying
`disclosures cited by Patent Owner support Petitioner’s position that the
`assignable channel includes the uniquely identifying data attributed to the
`program signal. The disclosure here on slide 46 states that at mobile
`terminal 401 depicted in yellow in figure 4, broadcast receiver 402 depicted
`in green receives and demodulates the program signal. Noreen further
`discloses that broadcast receiver 402 use a satellite receiver that employs the
`microchip depicted in figure 5B of Noreen which explicitly includes the
`assignable channel module. This is all part of Noreen’s disclosure.
`Therefore, a person of ordinary skill in the art would have understood that
`Noreen itself links the program signal to the satellite receiver microchip of
`figure 3B which in turn includes the assignable channel.
`Unless there are any questions, I will now pass the presentation back
`to my colleague, Ben Haber. Thank you very much.
`JUDGE TROCK: Thank you.
`MR. HABER: All right. Can you see my screen again? All right. So
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`I’m going to now move on to the output system limitation that is element
`9[c] and again we’re going to focus on a kind of claim construction dispute
`and I’ll explain how the art teaches this particular claim element and once
`again, similar to the other elements everyone seems to agree that the plain
`and ordinary meaning should control. That is Petitioner’s construction, that
`is the only construction that has been advanced. But Patent Owner, again,
`throughout its papers in the guise of a plain and ordinary construction argues
`for an actually very long and fairly complicated what it calls structural
`limitation that should be read into this claim without actually trying to prove
`up this very limited claim construction.
`So, again, let’s stat with the claim language. So here is the particular
`claim element at issue and as Petitioner has explained in its paper, as a
`POSITA would understand there is a first and second procedural module.
`There are first and second outputs respectively, such as an output for video
`and an output for audio which can be presented concurrently to a user.
`Nothing more is required by the claim language here.
`I have shown on slide 50 kind of a schematic of what that claim talks
`about, what the claim language should read on. So we have a receiver. The
`receiver has a first receiver module. The first receiver module will receive a
`first media content, for example a alpha numeric page, and then there will be
`an output whether that alpha numeric page is displayed. So if you were to
`say page or display you can see the message being displayed there. There is
`also a second receiver module, for example for receiving audio, that receives
`that second media content which may be a song or other bit of audio. It is
`presented on another output to the user, a second output, here as a speaker
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`and the point of the claims is that these particular outputs are concurrently
`presented. So a user can be listening to a song at the same time it is
`presented with a page.
`So let’s talk again about Noreen. Noreen alone discloses the claimed
`output system. Noreen explains that its device will simultaneously receive
`two channels. They are the time division multiplex channel, the TDM data
`channel, and an assignable channel. There are radio speakers and display for
`paging -- for presenting these messages concurrently and Noreen has
`sufficient structure to perform that concurrent presentation. There isn’t
`really a substantial argument about what Noreen, the structure of Noreen,
`and so when you actually map Noreen’s structure to the claim, as we
`explained it we have a TDM module which is the first receiver module
`receives a first media content over the TDM channel, here an alpha numeric
`page, and it is displayed on Noreen’s display and then there is the second
`receiver module which is the assignable channel that receives a second
`media content and displays it, I’m sorry, presents it to a user on a speaker
`and it presents those things concurrently.
`JUDGE TROCK: Counsel, this is Judge Trock. Sorry to interrupt
`you. So to get to Patent Owner’s position on this. They’re reading 9[c] I
`think a little differently than how you’re reading it. They’re reading it as an
`output system configured to present concurrently the first media content and
`the second media content on an output of the first receiver module.
`So what they would do with your illustration here is they would take
`that second media content which is coming into your second receiver and
`they would somehow or other turn it over and display it on the output of the
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`first receiver module, and then -- or they could use the second receiver
`module if they don’t want to use the first. So they’re putting both media
`contents on, at some point in time, on the same output whereas you have
`them as separate outputs and so that I believe is the heart of the issue here in
`this case, that there is this interpretation of 9[c] which differs from your
`perspective and Patent Owner’s perspective and I’d like to get your input on
`this about how the art that you’ve provided would be able to satisfy Patent
`Owner’s interpretation, if it does, and then I’d also like your perspective on
`Patent Owner’s interpretation here where both the media contents need to be
`displayed on the output of either the first receiver module or the second
`receiver module.
`MR. HABER: Right. Thank you for that question, Judge Trock. I
`think you kind of focused right down on the fundamental disputes here. I
`think it is one of claim construction and so as we present our argument,
`Noreen maps to the claim as we understand it. What Patent Owner seems to
`be having a problem with is this large structural limitation that they want
`imported into the claim and they argue that Noreen doesn’t do that, and just
`parsing through their construction I think there’s two impor
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