Case 6:21-cv-00985-ADA Document 49 Filed 06/01/22 Page 1 of 37
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`JAWBONE INNOVATIONS, LLC,
`Plaintiff,
`
`v.
`GOOGLE LLC,
`Defendant.
`
`Case No. 6:21-CV-00985-ADA
`
`PATENT CASE
`
`JURY TRIAL DEMANDED
`
`*PUBLIC VERSION*
`
`GOOGLE LLC’S OPENING CLAIM CONSTRUCTION BRIEF
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .............................................................................................................. 1
`LEGAL STANDARD ......................................................................................................... 2
`DISPUTED TERMS ........................................................................................................... 3
`A.
`“microphone” (’058 patent, claim 1; ’543 patent, claims 1, 8, 19, 20, & 26)
`(proposed by Google) ......................................................................................................... 3
`B.
`“the acoustic signals” / “the acoustic signal received at the one receiver” / “the
`acoustic signals received at each of the two receivers” (’058 patent, claim 1) (proposed
`by Google) .......................................................................................................................... 9
`C.
`“transfer function” (’091 patent, claims 1, 2, 4, 5, 9, 11, 15; ’357 patent, claims 1,
`15; ’080 patent, claims 1, 14) (proposed by Jawbone) ..................................................... 12
`D.
`“generating one transfer function of the at least two transfer functions . . . when the
`VAD indicates that user voice activity is present.” (’091 patent, claim 2) (proposed by
`Google) ............................................................................................................................. 13
`E.
`“virtual microphone array” (’072 patent, claim 1) (proposed by Google) .............. 14
`F.
`“acoustic noise” (proposed by Jawbone) and “less acoustic noise” (proposed by
`Google) (’072 patent, claims 1, 2, 9) ................................................................................ 16
`G.
`“approximately similar” / “approximately, dissimilar” / “approximately dissimilar”
`(’213 patent, claims 2, 37 & 38; ’611 patent, claim 3, 4 & 29) (proposed by Google) .... 18
`H.
`“a relationship for speech” (’213 patent claims 14, 42; ’611 patent claim 1)
`(proposed by Google) ....................................................................................................... 22
`I.
`“. . . substantially similar/dissimilar. . .” (’691 patent, claims 1, 23, 27, 28, 29, 41;
`’080 patent, claims 1, 14; ’357 patent, claims 1, 15;) (proposed by Google) .................. 23
`J.
`“apply a varying linear transfer function between the first and second microphone
`signals” (’357 patent, claims 1, 15) (proposed by Google) .............................................. 28
`CONCLUSION ................................................................................................................. 30
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`I.
`II.
`III.
`
`IV.
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Federal Cases
`
`Abdou v. Alphatec Spine, Inc.,
`No. 12-CV-1804 BEN RBB, 2014 WL 6611422 (S.D. Cal. Nov. 19, 2014) ....................22, 23
`
`Allergan Sales, LLC v. Sandoz, Inc.,
`935 F.3d 1370 (Fed. Cir. 2019)..................................................................................................2
`
`Baldwin Graphics Sys., Inc. v. Siebert, Inc.,
`512 F.3d 1338 (Fed. Cir. 2008)................................................................................................11
`
`Biosig Instruments, Inc. v. Nautilus, Inc.,
`783 F.3d 1374 (Fed. Cir. 2015)................................................................................3, 16, 19, 24
`
`Bushnell Hawthorne, LLC v. Cisco Sys. Inc.,
`813 F. App’x 522 (Fed. Cir. 2020) ....................................................................................11, 14
`
`Datamize, LLC v. Plumtree Software, Inc.,
`417 F.3d 1342 (Fed. Cir. 2005)................................................................................................17
`
`Ernie Ball, Inc. v. Earvana, LLC,
`502 F. App’x 971 (Fed. Cir. 2013) ......................................................................................3, 16
`
`Geodynamics, Inc. v. Dynaenergetics US, Inc.,
`No. 2:15-CV-1546-RSP, 2016 WL 6217181 (E.D. Tex. Oct. 25, 2016) ...........................26, 27
`
`Halliburton Energy Servs., Inc. v. M-I LLC,
`514 F.3d 1244 (Fed. Cir. 2008)............................................................................................9, 14
`
`Hoechst Celanese Corp. v. BP Chems. Ltd.,
`78 F.3d 1575 (Fed. Cir. 1996)....................................................................................................2
`
`Hologic, Inc. v. SenoRx, Inc.,
`639 F.3d 1329 (Fed. Cir. 2011)..........................................................................................16, 29
`
`Howmedica Osteonics Corp. v. Zimmer, Inc.,
`822 F.3d 1312 (Fed. Cir. 2016)................................................................................................28
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014)........................................................................................ passim
`
`KLA-Tencor Corp. v. Xitronix Corp.,
`No. A-08-CA-723-SS, 2011 WL 318123 (W.D. Tex. Jan. 31, 2011) ...............................19, 24
`
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`Lexion Medical, LLC v. Northgate Techs., Inc.,
`641 F.3d 1352 (Fed. Cir. 2011)..................................................................................................2
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) ......................................................................................................... passim
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)........................................................................................ passim
`
`Renishaw PLC v. Marposs Societa’per Azioni,
`158 F.3d 1243 (Fed. Cir. 1998)..................................................................................................2
`
`Teleflex, Inc. v. Ficosa N. Am. Corp.,
`299 F.3d 1313 (Fed. Cir. 2002)..................................................................................................2
`
`U.S. Well Servs., Inc. v. Halliburton Co.,
`No. 6:21-CV-00367-ADA, 2022 WL 819548 (W.D. Tex. Jan. 17, 2022) ...................... passim
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)....................................................................................................2
`
`Rules
`
`Local Rule CV-5(a)........................................................................................................................32
`
`Local Rule CV-5.2(e).....................................................................................................................32
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`I.
`
`INTRODUCTION
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`Plaintiff Jawbone Innovations, LLC (“Jawbone”) alleges that Google infringes more than
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`200 claims in U.S. Patent Nos. 7,246,058 (“the ’058 patent”), 8,019,091 (“the ’091 patent”),
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`8,280,072 (“the ’072 patent”), 8,321,213 (“the ’213 patent”), 8,326,611 (“the ’611 patent”),
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`8,467,543 (“the ’543 patent”), 8,503,691 (“the ’691 patent”), 10,779,080 (“the ’080 patent”), and
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`11,122,357 (“the ’357 patent”) (collectively, the “Asserted Patents”).1 These nine Asserted
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`Patents all generally relate to audio processing, including voice detection and noise cancellation.
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`The majority of the parties’ claim construction disputes relate to whether certain terms are
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`indefinite. The asserted claims make plentiful use of terms of degree – “approximately
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`similar/dissimilar” (’213 and ’611 patents), “substantially similar/dissimilar” (’691, ’080, and ’357
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`patents), and “less acoustic noise” (072 patent). But the specifications and other intrinsic evidence
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`fail to provide any objective boundaries by which one of ordinary skill in the art can determine
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`whether those terms of degree are met. The asserted claims also use terms that are subjective,
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`ambiguous, and/or lacking antecedent basis. These amorphous claims should be rejected as
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`indefinite.
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`The parties agree that other terms such as “microphone” (’058 and ’543 patent) and “virtual
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`microphone array” (’072 patent) have meaning, but dispute those meanings. Jawbone generally
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`proposes that these terms be given “plain and ordinary meaning.” Examining its alternative
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`proposed constructions or reasons for disagreement with Google’s proposed constructions,
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`however, makes clear that Jawbone is ignoring the explicit teaching of the intrinsic evidence. In
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`contrast, Google’s proposed constructions stay true to the relevant patents’ description of the
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`invention.
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`1 The Asserted Patents are attached as Exhibits 1-9.
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`II.
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`LEGAL STANDARD
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`Claim terms should be “given their ordinary and customary meaning,” defined as “the
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`meaning that the term would have to a person of ordinary skill in the art in . . . question at the time
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`of the invention.” Allergan Sales, LLC v. Sandoz, Inc., 935 F.3d 1370, 1373 (Fed. Cir. 2019)
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`(quoting Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005)). “The words used in
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`the claims are interpreted in light of the intrinsic evidence of record, including the written
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`description, the drawings, and the prosecution history.” Id. (quoting Teleflex, Inc. v. Ficosa N.
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`Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002) (brackets omitted)); see also Lexion Medical,
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`LLC v. Northgate Techs., Inc., 641 F.3d 1352, 1356 (Fed. Cir. 2011) (the meaning of a disputed
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`claim term “should be harmonized, to the extent possible, with the intrinsic record, as understood
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`within the technological field of the invention.”). Still, “[a] technical term used in a patent
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`document is interpreted as having the meaning that it would be given by persons experienced in
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`the field of the invention, unless it is apparent from the patent and the prosecution history that the
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`inventor used the term with a different meaning.” Hoechst Celanese Corp. v. BP Chems. Ltd., 78
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`F.3d 1575, 1578 (Fed. Cir. 1996). For such ordinary meaning, the Court should turn to the
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`dictionary definition of the term. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584
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`n.6 (Fed. Cir. 1996) (“Although . . . dictionaries fall within the category of extrinsic evidence, as
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`they do not form a part of an integrated patent document, they are worthy of special note.
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`Judges . . . may . . . rely on dictionary definitions when construing claim terms, so long as the
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`dictionary definition does not contradict any definition found in or ascertained by a reading of the
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`patent documents.”). “The construction that stays true to the claim language and most naturally
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`aligns with the patent’s description of the invention will be, in the end, the correct construction.”
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`Phillips, 415 F.3d at 1316 (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
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`1250 (Fed. Cir. 1998)).
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`the alleged invention, to also include virtual microphones. Jawbone, however, rejects Google’s
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`proposed construction and instead insists the term encompasses both physical and virtual
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`microphones. See Ex. 10 (5/18 at 9:40PM PT email from Prescott to Ostling) (Jawbone’s counsel
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`never responded to Google’s requests on the “microphone” term). Construction of the
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`“microphone” term is necessary at this time to resolve the scope of this term.
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`The intrinsic evidence is clear—“microphone” in the context of these patents means only
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`a “physical microphone.” The contemporaneous extrinsic evidence also accords with the
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`specification, the prosecution history, and the claims themselves. The court should adopt Google’s
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`proposed construction because it “stays true to the claim language and most naturally aligns with
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`[each] patent’s description of the invention.” Phillips, 415 F.3d at 1316 (citation omitted).
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`By contrast, construing the “microphone” term to include a virtual microphone does not
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`“naturally align with the patent[s]’ description of the invention” because the ’058 and ’543 patents
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`focus on physical microphones and their physical orientation relative to a user’s head. That explicit
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`focus on the physical nature of the microphones, coupled with an absence of any disclosure of
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`requisite hardware and specialized software needed to create a virtual microphone, confirms that
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`a POSITA would not understand “microphone” to include a virtual microphone in this context.
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`First, physical microphones that operate in a traditional manner—converting sounds to
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`electrical signals—are the focus of the ’058 and ’543 patents. For example, the ’543 patent is
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`about “the use of these physical microphone configurations” for various applications. ’543 patent
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`at 4:28-322; id. at 2:17-20 (identifying a Pathfinder system application); see also ’058 patent at
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`7:50-51 (reciting “the propagation of noise and speech to microphones located somewhere on the
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`user’s head”); id. at 6:10-15 (describing the Pathfinder system depicted in figure 3 and reproduced
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`2 All emphasis added unless otherwise stated.
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`below). Consistently, in the “Microphone Configuration” section, the ’543 patent similarly
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`contemplates the use of only traditional physical microphones: “configurations described herein
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`have been constructed using inexpensive off-the-shelf microphones.” ’543 patent at 6:51-53.
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`Various types of physical microphones, e.g., unidirectional and omnidirectional microphones,
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`are noted as compatible with the disclosed embodiments and available for purchase. See id. at
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`7:12-26 (“FIG. 2 is a table describing different types of microphones and the associated spatial
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`responses (from the Shure microphone company website at http://www.shure.com).”). Indeed,
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`each patent shows the same image employing well-known, traditional physical microphones:
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`Left: ’543 patent, Fig. 1 (annotated); Right: ’058 patent, Fig. 3 (annotated).
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`Second, a person of ordinary skill would understand the “microphone” term to be limited
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`to physical microphones in the context of the ’543 patent because the spatial orientation of the
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`physical microphones relative to a user’s head is a key aspect of the patent. Importantly, the
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`orientation of the microphones relative to a user’s mouth is part of the ’543 patent claim language.
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`’543 patent at cl. 1 (“wherein a first microphone of the array is fixed at a first position relative to
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`a mouth, wherein the first position orients a front of the first microphone towards the mouth,
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`wherein a second microphone of the array is fixed at a second position relative to the mouth”).
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`Google’s construction of “physical microphone” harmonizes the claim language with the patent’s
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`extensive disclosures regarding the spatial orientation of the physical microphones with respect to
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`one another and a user’s head. For example, “[a]gain, the two microphones can be located quite
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`close together (within a few centimeters) . . . . [and t]he best performance is seen when the two
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`microphones are quite close (less than approximately 5 cm), and the UNI is far enough away from
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`the user’s mouth (approximately in the range of 10 to 15 centimeters depending on the
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`microphone).” Id. at 8:13-19; see also id. at 7:58-62 (“The UNI microphone, as the speech
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`microphone, points toward the user’s mouth.”), 10:31-38 (“Placement of the two UNI
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`microphones on the axis that includes the user’s mouth at one end and the noise microphone on
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`the other . . . .”), 11:5-10 (“The microphones are placed on an axis 902 that contains the user’s
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`mouth . . . .”), 17:64-8:3 (“The configuration orients MIC 1 towards the user’s mouth. Further,
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`the configuration places MIC 2 as close to MIC 1 as possible and orients MIC 2 at about 90
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`degrees with respect to MIC 1”), 8:21-29 (similar disclosure of alternative physical microphone
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`orientations), 9:10-12 (similar disclosure of alternative physical microphone orientations), 9:19-
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`24 (similar disclosure of alternative physical microphone orientations), 9:61-10:1-15 (similar
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`disclosure of alternative physical microphone orientations), 13:34-39 (similar disclosure of
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`alternative physical microphone orientations). Further, during prosecution of the ’543 patent, the
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`applicant emphasized the physical relationship between the two microphones to overcome an
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`examiner rejection. See Ex. 11 (’543 patent file history excerpt) at 527 (emphasizing the “physical
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`relationship between the front of two microphones as claimed” to overcome a rejection based on
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`the Yoshida prior art reference).
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`The ’058 patent similarly relies on the spatial relationship between two physical
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`microphones. “In the two-microphone system, the speech source should be relatively louder in
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`one designated microphone when compared to the other microphone. Tests have shown that this
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`requirement is easily met with conventional microphones when the microphones are placed on
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`the head.” ’058 patent at 4:58-63; see also id. at 7:52-57 (“Placing the microphones Mic 1 and
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`Mic 2 in a linear array with the mouth on the array midline . . . .”), 9:18-34 (“The first
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`microphone set had the signal microphone near the mouth and the noise microphone several
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`centimeters away at the ear, while the second configuration placed the noise and signal
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`microphones back-to-back within a few centimeters of the mouth.”). These descriptions of
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`microphone configurations “most naturally align[]” with a physical microphone, Phillips, 415 F.3d
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`at 1316; not a virtual microphone, which cannot be “placed on the head,” ’058 patent at 4:58-63.
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`Reproduced below are figure 4A of the ’543 patent (left) and figure 7 of the ’058 patent
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`(right), each illustrating a two-microphone headset system as described in the patents:
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`By contrast, a person of skill would not understand the term “microphone” to include a
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`virtual microphone in this context because the ’058 and ’543 patents do not mention or otherwise
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`provide for virtual microphones. First, the term “virtual” never appears in either of the ’058 or
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`’543 patents, or their respective prosecution histories. Second, Jawbone agreed that a “virtual
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`microphone” is “constructed using two or more omnidirectional microphones and associated signal
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`processing,” Ex. 10 (5/20 at 10:57PM PT email from Prescott to Ostling)—yet these elements,
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`which are needed to construct a virtual microphone, are missing from the ’058 and ’543 patents’
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`disclosures. Specifically, the “associated signal processing” to construct a virtual microphone is
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`not disclosed in either patent specification. And the ’058 patent specification also fails to disclose
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`“using two or more omnidirectional microphones.”
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`Finally, the contemporaneous extrinsic evidence accords with the intrinsic evidence and
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`provides ample support for Google’s proposed construction that “microphone” must mean a
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`physical microphone in the context of the ’058 and ’543 patents. First, Jawbone already agreed to
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`construe “acoustic microphone” as “physical microphone” in the context of the ’091 patent (which
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`was filed contemporaneously with the ’058 and ’543 patents). Second, the following technical
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`dictionary definitions from the relevant time period further confirm that the term “microphone”
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`LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008) (“[A] claim could be indefinite if a term does not have
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`proper antecedent basis where such basis is not otherwise present by implication or the meaning
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`is not reasonably ascertainable.”). Claim 1 recites “at least two microphones that receive the
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`acoustic signals,” but there is no mention of an acoustic signal in any prior limitation. ’ 058 patent
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`at cl. 1 (emphasis added).
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`Second, the claim is indefinite because it is unclear what the terms “the one receiver” and
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`“the two receivers” mean in the context of claim 1. Claim 1 of the ’058 patent recites:
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`A system for detecting voiced and unvoiced speech in acoustic signals
`having varying levels of background noise, comprising:
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`at least two microphones that receive the acoustic signals;
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`at least one voicing sensor that receives physiological information associated
`with human voicing activity; and
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`at least one processor coupled among the microphones and the voicing
`sensor, wherein the at least one processor;
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`generates cross correlation data between the physiological information and an
`acoustic signal received at one of the two microphones;
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`identifies information of the acoustic signals as voiced speech when the cross
`correlation data corresponding to a portion of the acoustic signal received at
`the one receiver exceeds a correlation threshold;
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`generates difference parameters between the acoustic signals received at each
`of the two receivers, wherein the difference parameters are representative of
`the relative difference in signal gain between portions of the received acoustic signals; ….
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`A person of skill would not be able to determine whether “the one receiver” refers to one of the
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`microphones, the voicing sensor, or the processor. Ex. 18 (Reader Decl.) ¶ 41. The microphones
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`“receive” signals, the voicing sensor “receives” signals, and the processor is coupled to the
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`microphones and the voicing sensor, i.e., it receives whatever the microphones and the voicing
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`sensor receive. Id. In other words, all of these prior-recited devices in the claim “receive” a signal.
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`For the same reason, it is unclear what “the two receivers” refers to in the next element of claim
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`1. Id. The terms “the one receiver” and “the two receivers” are thus indefinite because earlier
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`claim elements describe different receivers and the claim does not specify which, if any, constitutes
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`“the one receiver” or “the two receivers.” See, e.g., Baldwin Graphics Sys., Inc. v. Siebert, Inc.,
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`512 F.3d 1338, 1343 (Fed. Cir. 2008) (holding that a claim limitation lacks antecedent basis “where
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`it would be unclear as to what element the limitation was making reference”); Bushnell Hawthorne,
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`LLC v. Cisco Sys. Inc., 813 F. App’x 522, 526 (Fed. Cir. 2020) (finding term “said different IP
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`Address” indefinite where claim elsewhere described three classes of IP addresses and did not
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`explain which constituted “the different IP Address”).
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`Moreover, the specification does not clarify what a “receiver” means in the context of claim
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`1. Ex. 18 (Reader Decl.) ¶ 42. The term “receiver” appears in one paragraph of the entire written
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`description of the ’058 patent. The written description states only that “speech from a human
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`speaker is captured and transmitted to a receiver” and that “the receiver” can be “human or
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`machine.” ’058 patent at 1:26-33. Thus, based on the disclosures in the specification, a “receiver”
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`could refer to a microphone, a voicing sensor, or a processor. Ex. 18 (Reader Decl.) ¶ 42. In
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`addition, claim 2 of the ’058 patent recites “receivers,” which a person of ordinary skill in the art
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`would have understood to include, for example, a microphone, a voicing sensor, or a processor.
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`Id. In sum, the ’058 patent provides no indication as to whether “the one receiver” or “the two
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`receivers” recited in claim 1 refers to the microphones, the voicing sensor, the processor, or some
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`combination thereof; and it certainly does not identify which one or two microphones, voicing
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`sensors, or processors is claimed.
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`According to the ’072 patent specification, “the systems and methods described herein
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`include microphone arrays (MAs) that position and vent microphones so that performance of a
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`noise suppression system coupled to the microphone array is enhanced.” ’072 patent at 2:43-47.
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`All physical and virtual microphone arrays disclosed in the specification use “rear vents” that
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`“sample a common pressure source.” Id. at 2:48-50. The virtual microphone arrays, like the
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`physical microphone arrays, are arranged in a “shared-vent configuration” such that the virtual
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`microphones are formed from signals received from a physical omnidirectional microphone
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`common to all the virtual microphones. For example, Figure 6 shows a block diagram for a
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`microphone array 410 that includes three physical omnidirectional microphones (O1, O2, and O3)
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`configured to form two virtual microphones, M1 and M2. ’072 patent at 2:5-7, 11:22-48. The
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`output of physical microphone O3 is used for processing paths that form virtual microphones M1
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`and M2.
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`In every other disclosed embodiment of virtual microphone arrays, the virtual microphones
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`are formed from the output of physical microphones wherein at least one physical microphone is
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`819548, at *4. Here the ’072 patent fails to provide both a standard for measuring the degree and
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`objective boundaries.
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`Claims 1, 2, and 9 of the ’072 patent each include the limitation that the output signals
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`should have “less acoustic noise than the received acoustic signals.” The problem, however, is
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`that the patent specification does not delineate the portion of the received acoustic signals that
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`comprise “acoustic noise.” The term “less acoustic noise” is indefinite because without an
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`“objective baseline,” a POSITA is unable to evaluate whether the output has “less acoustic noise.”
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`See U.S. Well Servs., 2022 WL 819548, *6 (determining that “high pressure” was indefinite
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`because the intrinsic and extrinsic evidence did not provide a way for a POSITA to differentiate
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`“high pressure” from non-high pressure).
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`Jawbone’s proposed construction of “acoustic noise” illustrates this issue. Jawbone
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`proposes construing “acoustic noise” to mean “unwanted environmental acoustic noise.” The
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`term “unwanted” is subjective and provides no guidance to a POSITA about the difference
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`between “unwanted environmental acoustic noise” and “environmental acoustic noise.” See
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`Interval Licensing, 766 F.3d at 1371 (explaining that a “purely subjective” term such as
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`“unobtrusive manner” does not provide sufficient guidance on claim scope if it depends “on the
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`unpredictable vagaries of any one person’s opinion”) (quoting Datamize, LLC v. Plumtree
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`Software, Inc., 417 F.3d 1342, 1351 (Fed. Cir. 2005)). What is “unwanted” varies from one
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`situation to another. Ex. 18 (Reader Decl.) ¶¶ 46, 48. For example, a person taking a call in a
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`coffee shop would consider the sound of others talking in the background to be “unwanted.”
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`Another user, however, may consider the babbling of their infant in the background while on a call
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`with grandparents to be “wanted.” This dilemma is similar to U.S. Well Servs. where this Court
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`found the term “high pressure” was indefinite in view of the defendant’s argument that “what
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`The terms “approximately similar” and “approximately dissimilar” appear in six dependent
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`claims of the ’213 and ’611 patents, which share a common specification.4 Each of those
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`dependent claims depend from an independent claim that recites the formation of a “first virtual
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`microphone” and a “second virtual microphone.” All the dependent claims add the limitation that
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`the first virtual microphone and the second virtual microphone have “approximately similar
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`responses to noise” and/or “approximately dissimilar responses to speech.”5
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`The terms “approximately similar” and “approximately dissimilar” are terms of degree.
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`When a claim recites a term of degree, “the court must determine whether the patent provides some
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`standard for measuring that degree.” Biosig Instruments, 783 F.3d at 1378. The standard “must
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`provide objective boundaries for those of skill in the art.” Interval Licensing, 766 F.3d at 1371.
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`As the Supreme Court has stressed, it is not enough that “a court can ascribe some meaning
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`to a patent’s claims.” Id. at 1370–71 (Fed. Cir. 2014) (quoting Nautilus, 572 U.S. at 911). Instead,
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`“[t]he claims, . . . must provide objective boundaries for those of skill in the art.” Id. at 1371.
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`“[W]hen there is no objective standard by which to determine the scope of the word of degree, the
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`word of degree renders the claims indefinite.” KLA-Tencor Corp. v. Xitronix Corp., No. A-08-
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`CA-723-SS, 2011 WL 318123 at *3 (W.D. Tex. Jan. 31, 2011). Here, the claim language and
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`specification fail to provide an objective standard for measuring “approximately similar” and
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`“approximately dissimilar” in the claims of the ’213 and ’611 patents. Nor were any objective
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`4 Since the ’213 and ’611 patents share the same specification, for simplicity, and unless otherwise
`noted, all citations to their specifications are to the ’213 patent.
`5 Dependent claim 2 of the ’213 patent recites that the first virtual microphone and the second
`virtual microphone have “approximately, dissimilar responses to speech.” Neither Google nor
`Jawbone contends that the comma between “approximately” and “dissimilar” in claim 2 has any
`significance; the parties agree that “approximately, dissimilar” in claim 2 should be analyzed the
`same way as “approximately dissimilar” in the other dependent claims.
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`standards otherwise known to a person of ordinary skill in the art. See Ex. 18 (Reader Decl.) ¶ 53.
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`The claims in which those terms appear are thus indefinite.
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`Nothing in the intrinsic evidence of the ’21