Trials@uspto.gov
`571-272-7822
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`Paper 11
`Entered: January 3, 2023
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC,
`Petitioner,
`v.
`
`JAWBONE INNOVATIONS, LLC,
`Patent Owner.
`
`
`IPR2022-01124
`Patent 11,122,357 B2
`
`
`
`
`Before LYNNE E. PETTIGREW, GEORGIANNA W. BRADEN,
`and NORMAN H. BEAMER, Administrative Patent Judges.
`
`BEAMER, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
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`571-272-7822
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`Paper 11
`Entered: January 3, 2023
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC,
`Petitioner,
`v.
`
`JAWBONE INNOVATIONS, LLC,
`Patent Owner.
`
`
`IPR2022-01124
`Patent 11,122,357 B2
`
`
`
`
`Before LYNNE E. PETTIGREW, GEORGIANNA W. BRADEN,
`and NORMAN H. BEAMER, Administrative Patent Judges.
`
`BEAMER, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`
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`IPR2022-01124
`Patent 11,122,357 B2
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`
`INTRODUCTION
`I.
`On June 16, 2022, Google LLC (“Petitioner”) filed a Petition (“Pet.”)
`pursuant to 35 U.S.C. §§ 311–319 to institute an inter partes review of
`claims 1–20 of U.S. Patent No. 11,122,357 B2 (Ex. 1001, “the ’357 patent”).
`Paper 1. On October 6, 2022, Jawbone Innovations, LLC (“Patent Owner”)
`filed a Preliminary Response (“Prelim. Resp.”). Paper 6. As authorized by
`the Board, Petitioner filed a Reply and Patent Owner filed a Sur-Reply,
`directed to the issue of discretionary denial under 35 U.S.C. § 314(a).
`Papers 7, 10.
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides that an inter partes review may not be
`instituted unless the information presented in the Petition and any
`preliminary response shows that “there is a reasonable likelihood that the
`petitioner would prevail with respect to at least 1 of the claims challenged in
`the petition.”
`For the reasons explained below, we determine that Petitioner has
`established a reasonable likelihood that it would prevail with respect to at
`least one challenged claim. Accordingly, we institute an inter partes review
`as to the challenged claims and grounds raised in the Petition.
`
`II. BACKGROUND
`The ’357 Patent
`A.
`The ’357 patent, titled “Forming Virtual Microphone Arrays Using
`Dual Omnidirectional Microphone Array (DOMA),” was filed on August 5,
`2013, issued on September 14, 2021, is a continuation of an application filed
`June 13, 2008, and lists several provisional applications, the earliest of
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`which was filed on June 13, 2007. Ex. 1001, codes (54), (22), (45), (63),
`(60).
`The ’357 patent is directed to:
`[a] dual omnidirectional microphone array noise suppression
`[system] used to form two distinct virtual directional
`microphones which are configured to have very similar noise
`responses and very dissimilar speech responses. The only null
`formed is one used to remove the speech of the user from [the
`second virtual microphone]. The two virtual microphones may
`be paired with an adaptive filter algorithm and VAD [Voice
`Activity Detector] algorithm to significantly reduce the noise
`without distorting the speech, significantly improving the SNR
`[signal-to-noise ratio] of the desired speech over conventional
`noise suppression systems.”
`Ex. 1001, code (57). Figure 1 is reproduced below.
`
`Figure 1 is a block diagram of a two-microphone adaptive noise suppression
`system. Ex. 1001, 2:29–30. Microphones Mic 1 and Mic 2 receive acoustic
`information from speech signal source 101 and noise source 102, and the
`acoustic information received at each microphone is provided to Noise
`Removal system 105. Id. at 6:11–25. VAD 106 is a voice activity detector
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`which generates a voicing information signal indicating when user speech is
`detected — for example, a skin surface microphone. Id. at 5:64–67, 6:5–6.
`Noise Removal component 105 generates the virtual microphones paired
`with the adaptive filter algorithm to generate cleaned speech 107. Id. at
`5:16–21.
`The DOMA provides adaptive noise cancellation by filtering and
`summing the two microphone signals in the time domain. The adaptive
`filter generally uses the signal received from a microphone of the DOMA to
`remove noise from the speech received from the other microphone of the
`DOMA, relying on a slowly varying linear transfer function between the two
`microphones for sources of noise. Following processing of the two channels
`of the DOMA, an output signal is generated in which the noise content is
`attenuated with respect to the speech content. Ex. 1001, 8:27–38.
`According to the ’357 patent, the disclosed embodiments “result[] in
`excellent noise suppression performance and minimal speech removal and
`distortion.” Id. at 8:16–18.
`In one embodiment, virtual directional microphones are formed from
`the physical microphones as shown in Figure 4 reproduced below:
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`Figure 4 depicts how two virtual directional microphones V1 and V2 are
`formed based on two physical omnidirectional microphones O1 and O2,
`where the physical microphone signals are coupled to processing component
`402, in which delays z21, z11, z22, and z12, and gains A21, A11, A22, and A12 are
`applied to the signals, which are then summed via ∑1 and ∑2. Ex. 1001,
`2:40–42, 8:62–9:21. As stated in the ’357 patent, “varying the magnitude
`and sign of the delays and gains of the processing paths leads to a wide
`variety of virtual microphones (VMs), also referred to herein as virtual
`directional microphones.” Id. at 9:22–25.
`In particular, for adaptive noise suppression, the delay and gain values
`are selected so that the noise responses of V1 and V2 are substantially
`similar, there is sufficient speech response for V1, and there is a relatively
`small speech response for V2, which insures that the cleaned speech will
`have significantly higher signal-to-noise ratio than the original speech
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`captured by microphone O1. Ex. 1001, 10:44–60. The ’357 patent discloses
`the results of a particular selection of delay and gain parameters that meet
`the criteria for effective noise suppression, in which arranging for the
`response of V2 to have a null at the speech location will cause V2 to exhibit
`minimal response to the speech. Id. at 11:50–52. The ’357 patent then
`explains that the speech null at zero degrees is not present for noise in the far
`field for the same microphone, with a noise source distance of
`approximately 1 meter. Id. at 11:54–57. The ’357 patent states this insures
`that noise in front of the user will be detected so that it can be removed. Id.
`at 11:57–58. According to the ’357 patent, this differs from conventional
`systems that can have difficulty removing noise in the direction of the mouth
`of the user. Id. at 11:58–60.
`The plotted responses of the virtual microphones for an optimal
`selection of the delay and gain parameters are shown in a series of figures —
`first, in Figure 9 reproduced below.
`
`
`Figure 9 is a plot of linear response of virtual microphone V2 with delay=0.8
`to a 1 kHz speech source at a distance of 0.1 m. Ex. 1001, 11:40–42. The
`null in the linear response of virtual microphone V2 to speech is located at 0
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`degrees, where the speech is typically expected to be located. Id. at
`11:42–44.
`Next, the response of V2 to noise is shown in Figure 10 reproduced
`below.
`
`
`Figure 10 is a plot of a linear response of virtual microphone V2 with
`delay=0.8 to a 1 kHz noise source at a distance of 1.0 m. Id. at 11:44–47.
`The ’357 patent states that “[t]he linear response of V2 to noise is devoid of
`or includes no null, meaning all noise sources are detected.” Id. at 11:47–49.
`Further, the response of V1 to speech is shown in Figure 11
`reproduced below.
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`Figure 11 is a plot of linear response of virtual microphone V1 to a 1 kHz
`speech source at a distance of 0.1 m. Ex. 1001, 12:39-41. The ’357 patent
`states that “[t]here is no null and the response for speech is greater than that
`shown in FIG. 9.” Id. at 2:64–65.
`Finally, the response of V1 to noise is shown in Figure 12 reproduced
`below.
`
`
`Figure 12 is a plot of linear response of virtual microphone V1 to a 1 kHz
`noise source at a distance of 1.0 m. Ex. 1001, 12:44–46. The ’357 patent
`states that “[t]here is no null and the response is very similar to V2 shown in
`FIG. 10.” Id. at 3:1–2.
`
`Illustrative Claim
`B.
`Independent claim 1 is reproduced below.
`1. A device, comprising:
`a first virtual microphone comprising a first
`combination of a first microphone signal and a
`second microphone signal, wherein the first
`microphone signal is generated by a first physical
`microphone and the second microphone signal is
`generated by a second physical microphone;
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`a second virtual microphone comprising a second
`combination of the first microphone signal and
`the second microphone signal, wherein the
`second combination is different from the first
`combination, wherein the first virtual
`microphone and the second virtual microphone
`are distinct virtual directional microphones with
`substantially similar responses to noise and
`substantially dissimilar responses to speech; and
`a signal processor coupled with the first and second
`microphone signals and operative to combine the
`first and second microphone signals by filtering
`and summing in the time domain, to apply a
`varying linear transfer function between the first
`and second microphone signals, and to generate
`an output signal having noise content that is
`attenuated with respect to speech content.
`Ex. 1001, 34:55–35:10.
`We note that Figures 9–12 reproduced above exemplify the claim 1
`requirement that the virtual microphones have “substantially similar
`responses to noise and substantially dissimilar responses to speech.”
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`Asserted Challenges to Patentability and Evidence of Record
`C.
`Petitioner challenges the patentability of claims 1–20 of the ’357
`patent based on the following combination of references:
`
`Reference(s)/Basis
`35 U.S.C. §
`Claims Challenged
`1–20
`1031
`Kanamori,2 McCowan,3 Elko4
`In support of its patentability challenge, Petitioner relies on, inter alia, the
`Declaration of Jeffrey S. Vipperman, Ph.D. Ex. 1003 (“Vipperman Decl.”).
`
`Real Parties in Interest
`D.
`The parties identify themselves as the real parties in interest. Pet. 80;
`Paper 5, 2.
`
`Related Proceedings
`E.
`The parties identify the following related proceedings: Jawbone
`Innovations, LLC v. Samsung Electronics Co., Ltd. and Samsung Electronics
`America, Inc., Case No. 2:21-cv-00186-JRG (E.D. Tex.); Jawbone
`Innovations, LLC v. Amazon.com, Inc. and Amazon.com Services, Inc., Case
`
`
`1 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), included revisions to 35 U.S.C. § 103 that became effective
`as of March 16, 2013. Although the application for the ’357 patent was filed
`after March 16, 2013, it includes a priority claim to an application filed
`before this date. Ex. 1001, codes (22), (60), (63). Accordingly, for purposes
`of institution, we apply the pre-AIA version of 35 U.S.C. § 103.
`2 Kanamori, et al., US 2004/0185804 A1, published September 23, 2004
`(“Kanamori,” Ex. 1005).
`3 Iain A. McCowan, et al., Near-Field Adaptive Beamformer for Robust
`Speech Recognition, Digital Signal Processing, Vol. 12, Issue 1 (2002), 87–
`106 (“McCowan,” Ex. 1006).
`4 Elko, et al., US 8,942,387 B2, issued January 27, 2015 (“Elko,” Ex. 1009).
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`No. 2:21-cv-00435-JRG (E.D. Tex.); Jawbone Innovations, LLC v. Apple
`Inc., Case No. 6:21-cv-00984-ADA (W.D. Tex.); and Jawbone Innovations,
`LLC v. Google LLC, Case No. 6:21-cv-00985-ADA (W.D. Tex.) (“the
`Google case”). Pet. 81; Paper 5, 2.
`III. DISCRETION UNDER SECTION 314(a)
`Institution of an inter partes review is discretionary. Section 314(a) of
`Title 35 of the United States Code provides that
`The Director may not authorize an inter partes review to be
`instituted unless the Director determines that the information
`presented in the petition . . . and any response . . . shows that
`there is a reasonable likelihood that the petitioner would prevail
`with respect to at least 1 of the claims challenged in the
`petition.
`The U.S. Supreme Court has explained that because Section 314 includes no
`mandate to institute review, “the agency’s decision to deny a petition is a
`matter committed to the Patent Office’s discretion.” Cuozzo Speed Techs.,
`LLC v. Lee, 579 U.S. 261, 273 (2016); see also Harmonic Inc. v. Avid Tech.,
`Inc., 815 F.3d 1356, 1367 (Fed. Cir. 2016) (explaining that under Section
`314(a), “the PTO is permitted, but never compelled, to institute an IPR
`proceeding”). The Director has delegated this authority under
`Section 314(a) to the Board. 37 C.F.R. § 42.4(a) (2022) (“The Board
`institutes the trial on behalf of the Director.”).
`In this proceeding, Patent Owner argues that we should exercise
`discretion to deny institution under Section 314(a), given the four actions
`involving the ’357 patent pending in the District Courts for the Western and
`Eastern Districts of Texas, listed in Section II.E above, particularly including
`the Google case. Prelim. Resp. 14–15. Patent Owner contends that all of
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`the factors identified in Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11
`at 6 (PTAB Mar. 20, 2020) (precedential) (“Fintiv”), weigh in favor of
`denying institution. Id. Petitioner contests Patent Owner’s arguments. Pet.
`76–79; Reply 1–5.
`In Fintiv, the Board ordered supplemental briefing on a nonexclusive
`list of factors for consideration in analyzing whether the circumstances of a
`parallel district court action are a basis for discretionary denial of trial
`institution under NHK Spring Co. v. Intri-Plex Techs., Inc., IPR2018-00752,
`Paper 8 (PTAB Sept. 12, 2018) (precedential). Fintiv, Paper 11 at 5−16.
`Those factors include:
`1. whether the court granted a stay or evidence exists that one
`may be granted if a proceeding is instituted;
`2. proximity of the court’s trial date to the Board’s projected
`statutory deadline for a final written decision;
`3. investment in the parallel proceeding by the court and
`the parties;
`4. overlap between issues raised in the petition and in the
`parallel proceeding;
`5. whether the petitioner and the defendant in the parallel
`proceeding are the same party; and
`6. other circumstances that impact the Board’s exercise of
`discretion, including the merits.
`Id. at 5−6. Here, we consider these factors to determine whether we
`should exercise discretion to deny institution. In evaluating the factors,
`we take a holistic view of whether efficiency and integrity of the system
`are best served by denying or instituting review. Id. at 6. We also
`conduct our analysis considering the Interim Procedure for Discretionary
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`Denials in AIA Post-Grant Proceedings with Parallel District Court
`Litigation at 9 (June 21, 2022) (“Interim Procedure”).5
`
`A. Factor 1: Whether the court granted a stay or evidence exists
`that one may be granted if a proceeding is instituted
`Petitioner has not sought a stay in the Google case, and Patent Owner
`argues there is no evidence that a stay will be granted, and argues that “even
`if the Western District of Texas were to stay the Google Action, there will
`still be another action pending with regard to the ’357 Patent in both
`Western and Eastern Texas.” Prelim. Resp. 16. Patent Owner submits that
`this factor should weigh against institution. Id.; Sur-Reply 2. Petitioner
`states that it “intends to file a motion to stay litigation of the ’357 patent
`after institution of this Petition,” and argues that this factor is neutral.
`Pet. 77.
`On the record before us, we decline to speculate how the district court
`in the Google case might decide the motion to stay in the event it is filed.
`Accordingly, we find that this factor does not weigh for or against exercising
`our discretion to deny institution.
`
`B. Factor 2: Proximity of the court’s trial date to the Board’s
`projected statutory deadline for a final written decision
`Patent Owner, relying on a July 26, 2023 trial date set by the court in
`the Google case in a January 2022 Order, contends that the trial will have
`been completed before the projected statutory deadline for a Final Written
`
`
`5 Available at https://www.uspto.gov/sites/default/files/documents/
`interim_proc_discretionary_denials_aia_parallel_district_court_litigation_m
`emo_20220621_.pdf.
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`Decision in January 2023, and argues this weighs strongly in favor of
`denying institution. Prelim. Resp. 17 (citing Ex. 1014); Sur-Reply 2–3.
`Petitioner argues that it timely filed its Petition less than nine months
`from the filing of the complaint in the Google case. Pet. 77. Petitioner also
`relies on the Interim Procedure, and submits that based on Federal Court
`Management Statistics, “[t]he median time from the filing of a civil case to
`trial in the Western District of Texas is 28.3 months, placing the expected
`trial date in the parallel litigation around January 30, 2024.” after the
`expected January 6, 2024 Final Decision here. Reply 3 (citing Ex. 1019, 5;
`Interim Procedure, 8–9). Petitioner also cites the fact that the Markman
`hearing “occurred nearly three months after its originally scheduled date,
`further demonstrating that the scheduled trial date is not reliable.” Id. at 3–
`4. Accordingly, Petitioner argues this factor weighs against discretionary
`denial. Id.
`Given that the median time to go to trial in the Google case indicates
`that a decision is unlikely to precede our Final Written Decision, we find
`that factor 2 weighs against exercising our discretion to deny institution.
`
`C. Factor 3: Investment in the parallel proceeding by the court
`and the parties
`Patent Owner argues that there has been significant work in the
`Google case, including the opening of fact discovery and the completion of
`claim construction briefing. Prelim. Resp. 18 (citing Ex. 1014); Sur-
`Reply 3. In addition, on October 14, 2022, the court issued its Markman
`order. Ex. 1023, “Claim Construction Order.”
`Petitioner again argues that it was diligent in filing the present
`Petition, and also argues that the Google case is still in its early stages,
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`including that fact discovery does not close until four months after the
`projected institution decision, and the deadline for opening expert reports
`will not occur until May 19, 2023. Pet. 77–78; Reply 4 (citing Ex. 1021;
`Ex. 1022, 14).
`Based on the present record, we understand that a large portion of
`work remains uncompleted in the Google case. For instance, fact discovery
`will continue until mid-May 2023, and expert discovery will start after fact
`discovery ends. See Ex. 1022, 14. Accordingly, we find that factor 3 weighs
`marginally against exercising our discretion to deny institution.
`
`D. Factor 4: Overlap between issues raised in the petition and in
`the parallel proceeding
`Petitioner argues that the scheduled trial in the Google case “likely
`will have no overlap with this proceeding based on the court’s Claim
`Construction Order [which found a claim requirement in the independent
`claims indefinite].” Reply 5; Ex. 1023, 4. Petitioner also argues that this
`factor weighs against discretionary denial, because Petitioner has stipulated
`“that it will not challenge the validity of the ’357 patent in the parallel
`litigation based on the grounds advanced in the Petition or on any ground
`that utilizes Kanamori [a reference relied on here].” Id. (citing Microsoft
`Corp. v. WSOU Invs., LLC, IPR2021-00930, Paper 8 at 11 (PTAB Dec. 2,
`2021)).
`Patent Owner asserts that this “falls short of the Sotera stipulation the
`Board has endorsed.” Sur-Reply 3.
`Although Petitioner’s stipulation does minimize overlap with regard
`to the grounds raised here, it does not mitigate completely the concerns of
`duplicative efforts between the district court and the Board, as well as
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`concerns of potentially conflicting decisions.6 Therefore, we determine that
`this factor weighs marginally against exercising our discretion to deny
`institution.
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`E. Factor 5: Whether the petitioner and the defendant in the
`parallel proceeding are the same party
`It is undisputed that Petitioner is the defendant in the parallel litigation.
`See Pet. 78; Prelim. Resp. 20. As the Board explained in Fintiv, “[i]f a
`petitioner is unrelated to a defendant in an earlier court proceeding, the
`Board has weighed this fact against exercising discretion to deny institution
`under NHK.” Fintiv, Paper 11 at 13–14 (emphasis added). The Board
`determined in Sand Revolution that
`Although it is far from an unusual circumstance that a petitioner
`in inter partes review and a defendant in a parallel district court
`proceeding are the same, or where a district court is scheduled
`to go to trial before the Board’s final decision would be due in a
`related inter partes review, this factor weighs in favor of
`discretionary denial.
`Sand Revolution II, Paper 24 at 12–13. Here, it is undisputed that Petitioner
`is a defendant in the parallel litigation, but as we noted above in factor 2, it
`is unlikely the district court will go to trial before the final written decision
`is due in this proceeding. Therefore, we find that factor 5 does not weigh for
`or against exercising our discretion to deny institution.
`
`
`6 See Sand Revolution II, LLC, v. Cont’l Intermodal Group-Trucking LLC,
`IPR2019-01393, Paper 24 at 11–12, n.5 (PTAB June 16, 2020) (concerns
`about the degree of overlap may be mitigated where a petitioner agrees not
`to pursue in the parallel proceeding the grounds advanced in the petition)
`(informative).
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`F. Factor 6: Other circumstances that impact the Board’s exercise
`of discretion, including the merits
`When considering whether to exercise discretion to deny a petition,
`the Board assesses “all the relevant circumstances in the case,” including the
`Petition’s merits. Fintiv, Paper 11 at 14–16. Here, there are no
`circumstances under the sixth Fintiv factor that would lead us to conclude
`that we should exercise our discretion to deny institution.
`
`G. Conclusion Regarding Discretionary Denial Under § 314(a)
`As noted in Fintiv, we consider the above factors when taking “a
`holistic view of whether efficiency and integrity of the system are best
`served by denying or instituting review.” Fintiv, Paper 11 at 6. Under such
`a holistic view, we determine that the above-discussed factors do not support
`exercising our discretion to deny institution.
`Accordingly, under the particular circumstances of this case, we are
`not persuaded that the interests of efficiency and integrity of the system
`would be best served by invoking our discretion under Section 314(a) to
`deny institution of a potentially meritorious Petition.
`
`IV. ANALYSIS OF PETITIONER’S CHALLENGE
`Legal Standards
`A.
`To prevail in its challenge, Petitioner must demonstrate by a
`preponderance of the evidence that the claims are unpatentable. 35 U.S.C.
`§ 316(e); 37 C.F.R. § 42.1(d). “In an IPR, the petitioner has the burden from
`the onset to show with particularity why the patent it challenges is
`unpatentable.” Harmonic Inc., 815 F.3d at 1363 (citing 35 U.S.C.
`§ 312(a)(3) (2012) (requiring inter partes review petitions to identify “with
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`particularity . . . the evidence that supports the grounds for the challenge to
`each claim”)). This burden of persuasion never shifts to the patent owner.
`See Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378
`(Fed. Cir. 2015) (discussing the burden of proof in inter partes review).
`A patent claim is unpatentable under 35 U.S.C. § 103 if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) when in evidence, objective
`indicia of non-obviousness (also called secondary considerations), such as
`commercial success, long-felt but unsolved needs, and failure of others.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). We analyze grounds
`based on obviousness in accordance with the above-stated principles.
`
`Level of Ordinary Skill in the Art
`B.
`In determining whether an invention would have been obvious at the
`time it was made, 35 U.S.C. § 103(a) requires us to resolve the level of
`ordinary skill in the pertinent art at the time of the invention. Graham, 383
`U.S. at 17. The person of ordinary skill in the art is a hypothetical person
`who is presumed to have known the relevant art at the time of the invention.
`In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995). Factors that may be
`considered in determining the level of ordinary skill in the art include, but
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`are not limited to, the types of problems encountered in the art, the
`sophistication of the technology, and educational level of active workers in
`the field. Id. In a given case, one or more factors may predominate. Id.
`Petitioner asserts that a person of ordinary skill in the art at the time of
`the alleged invention of the ’357 patent:
`[W]ould have had a minimum of a bachelor’s degree in
`computer engineering, computer science, electrical engineering,
`mechanical engineering, or a similar field, and approximately
`three years of industry or academic experience in a field related
`to acoustics, speech recognition, speech detection, or signal
`processing. . . . Work experience can substitute for formal
`education and additional formal education can substitute for
`work experience.
`Pet. 6 (citing Vipperman Decl. ¶ 25). Patent Owner utilizes Petitioner’s
`proposed level of skill in the art “[f]or the purposes of this Preliminary
`Response only.” Prelim. Resp. 6.
`Petitioner’s proposal is consistent with the level of ordinary skill in
`the art reflected by the asserted prior art. See Okajima v. Bourdeau, 261
`F.3d 1350, 1355 (Fed. Cir. 2001); GPAC, 57 F.3d at 1579. On this record,
`the level of ordinary skill is neither in dispute nor dispositive of any
`challenge. For purposes of this Decision, we apply Petitioner’s articulation.
`
`Claim Construction
`C.
`The Petition was accorded a filing date of June 16, 2022. Paper 3, 1.
`In an inter partes review for a petition filed on or after November 13, 2018, a
`claim “shall be construed using the same claim construction standard that
`would be used to construe the claim in a civil action under 35 U.S.C. 282(b).”
`37 C.F.R. § 42.100(b). We apply the claim construction standard from
`Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc).
`19
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`Claim terms need only be construed to the extent necessary to resolve
`the controversy. Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co.
`Matal, 868 F.3d 1013, 1017 (Fed. Cir. 2017).
`The parties submit that no claim construction is necessary. Pet. 7;
`Prelim. Resp. 6. At this stage, we do not construe the claims. We note,
`however, that the court in the Google case has held that “substantially
`similar/dissimilar” in the independent claims is indefinite. Ex. 1023, 4. We
`discuss this further below.
`
`D.
`
`Alleged Obviousness of Claims 1–20 over Kanamori, McCowan, and
`Elko
`Petitioner challenges claims 1–20 as obvious over the combination of
`Kanamori, McCowan, and Elko. Pet. 7–76.
`
`1. Kanamori
`Kanamori is a U.S. Patent Application Publication, published on
`September 23, 2004, titled “Microphone Device and Audio Player.”
`Ex. 1005, codes (12), (43), (54). Kanamori discloses a technique “to
`generate a main signal and noise reference signal used in a noise suppressing
`process.” Id. ¶ 18. One embodiment of Kanamori is shown in Figure 17A,
`reproduced below.
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`Figure 17A is an illustration showing a part of the configuration of a
`microphone device according to Kanamori’s embodiment number 8.7 Id.
`¶ 66. Specifically, Figure 17A illustrates a technique, where a main signal
`m1 and a noise reference signal m2 are generated using signals from
`microphone units 3 and 4, which microphones are unidirectional with their
`main axis of directivity oriented to the front. Id. ¶¶ 154, 160, 165, 172–173.
`In this embodiment, the signals from microphones 3 and 4 are processed by
`directivity combining section 100, in which signal delaying section 111
`delays the microphone 3 signal output by an amount τ1, signal amplifying
`section 150 amplifies the delayed microphone 3 signal, second signal
`delaying section 112 delays the microphone 4 signal output by an amount
`τ2, first signal subtracting section 103 subtracts the signal output from signal
`amplifying section 150 from the signal output from signal delaying
`
`7 Kanamori explains that this embodiment 8 would include circuitry in
`addition to that shown in Figure 17A in order to generate noise suppressed
`speech: “[A]fter the stages of obtaining the signal m1 and the signal m2 [in
`Figure 17A], any one of the structures according to Embodiments 1 through
`4 is applied.” Ex. 1005 ¶ 173.
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`section 112 thereby obtaining signal m1, which is the main signal, and
`second signal subtracting section 104 subtracts the signal output from the
`signal delaying section 111 from a signal output from second signal delaying
`section 112, obtaining signal m2, which is the noise reference signal. Id.
`¶¶ 166–167, 173–174.
`The choice of delays and gain values in directivity combining section
`100 determine the directivity patterns of the processed microphone signals.
`Ex. 1005 ¶¶ 167, 169, 175–176. Two possible patterns are illustrated in
`Figures 17B and 17C reproduced below.
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`Figures 17B and 17C are illustrations showing directivity patterns of
`Kanamori’s microphone device. Id. ¶ 66. The angle between the direction
`of the target sound (i.e., speech) and the orientation of the directional
`microphones is controlled by angle setting section 160, which adjusts delay
`τ1 to vary the angle from +90 degrees to -90 degrees. Ex. 1005 ¶¶ 167, 174–
`176. When τ1=0, the angle is zero, meaning that the direction of the target
`sound is lined up with the directionality of the microphones. Id. ¶ 167.
`Also, as reflected in the above figures, the pattern formed by the
`directivity combining section 100 is preferably such that, for the direction of
`the target sound, there is a large difference in sensitivity between the signals
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`m1 and m2, whereas there is little or no difference in sensitivity in other
`directions. Ex. 1005 ¶¶ 168–169. Kanamori asserts that this approach
`provides an “an excellent [noise] suppressing effect” in removing noise
`components included in the main signal under the circumstances where
`noise is coming from a plurality of directions. Id. ¶¶ 168, 170.
`
`2. McCowan
`McCowan is an article titled “Near-Field Adaptive Beamformer for
`Robust Speech Recognition” published in the Digital Signal Processing
`Review Journal. Ex. 1006, 87.8 Petitioner offers evidence that McCowan
`was publicly accessible to those skilled in the art in 2002 when it was
`published in the journal, and catalogued in libraries. Pet. 12–13. Patent
`Owner raises no issue as to the prior art status of this reference, and we treat
`it as prior art pursuant to pre-AIA 35 U.S.C. § 102(a) and § 102(b) for
`purposes of this Decision.
`McCowan discloses an adaptive noise cancellation system for near-
`field speech sources. Ex. 1006, 87. Mc
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