PATENT OWNER’S DEMONSTRATIVE
`EXHIBITS
`
`JANUARY 25, 2024
`
`ORAL ARGUMENT
`
`VERANCE CORP.
`
` V.
`
`MZ AUDIO SCIENCES, LLC
`
`U.S. PATENT NO. 7,289,961
`
`CASE NO. IPR2022-01544
`
`SARAH E. SPIRES, COUNSEL FOR PATENT OWNER
`
`
`EXHIBITS
`
`JANUARY 25, 2024
`
`ORAL ARGUMENT
`
`VERANCE CORP.
`
` V.
`
`MZ AUDIO SCIENCES, LLC
`
`U.S. PATENT NO. 7,289,961
`
`CASE NO. IPR2022-01544
`
`SARAH E. SPIRES, COUNSEL FOR PATENT OWNER
`
`
`
`TECHNOLOGY BACKGROUND
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`2
`
`
`
`General Principles of Sound Waves
`
`• Sound wave = energy released
`by vibrating objects
`
`• Amplitude = relative
`strength/intensity; measured in
`decibels (dB)
`
`• Frequency = oscillations per
`second; measured in Hertz (Hz)
`
`Example of pure-pitch sine wave
`
`POR, 2-3; Ex. 2007, 11.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`3
`
`
`
`General Principles of Sound Waves
`
`• Phase = the fractional part of a
`period through which the time
`variable of a periodic quantity
`has moved, as measured at any
`point in time from an arbitrary
`time origin
`
`• Usually expressed in terms of
`angular measure
`
`• One period = 360° or 2π radians
`
`Example of pure-pitch sine wave
`
`POR, 3; Ex. 2007, 11.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`4
`
`
`
`General Principles of Sound Waves
`
`•
`
`• Music = collection of multiple
`instruments/voices playing
`and/or singing different notes
`concurrently
`Individual components of a
`sound are combined and
`represented as a composite or
`complex waveform
`In the example shown at right,
`the top and middle sine waves
`are added to produce the bottom
`waveform
`
`•
`
`Example of complex waveform
`
`POR, 4; Ex. 2004, 61.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`5
`
`
`
`General Principles of Sound Waves
`
`• Fundamental tone = lowest
`frequency in a series of related
`tones
`
`• Overtone = frequency above the
`fundamental tone
`
`• Harmonic = integer multiple of
`the fundamental tone
`
`Note “A” played on a violin
`(showing fundamental and overtones)
`
`POR, 6; Ex. 2002, 255.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`6
`
`
`
`The ’961 Patent
`
`Ex. 1001.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`7
`
`
`
`The ’961 Patent
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 6; Ex. 1001, 1:20-24.
`
`8
`
`
`
`Challenges Addressed by the ’961
`Patent
`• The ’961 Patent is directed to
`audio watermarking.
`
`• Historical attempts to develop
`robust audio watermarking
`schemes failed.
`
`•
`
`’961 Patent inventors recognized
`phase of overtones could be
`manipulated to hide data in
`audio signals.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 6; Ex. 1001, 1:31-41.
`
`9
`
`
`
`Advantages of the ’961 Patent
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 8; Ex. 1001, 4:32-37.
`
`10
`
`
`
`’961 Patent
`First Preferred Embodiment
`
`“[D]uring each time frame one selects a
`pair (or more) of frequency components.
`The choice of spectral components and
`the selected phase shift can be chosen
`according to a pseudo-random sequence
`known only to the sender and receiver.
`To decode, one must compute the phase
`of the spectrum and correlate it with the
`known pseudorandom carrier sequence.”
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 8-9; Ex. 1001, 5:22-30, FIG. 3.
`
`11
`
`
`
`’961 Patent
`Second Preferred Embodiment
`Relative Phase Quantization Encoding
`• Step 1: segment audio signal into frames
`
`• Step 2: compute spectrum of each frame and calculate the phase of each
`frequency therein
`
`• Step 3: quantize the relative phases of two overtones in selected frame to
`embed data, wherein the number of quantization levels is variable
`
`• Step 4: inverse transform the phase-quantized spectrum to convert back to
`the time representation of the signal by applying an inverse fast Fourier
`transform.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 10; Ex. 1001, 5:22-30, FIG. 3.
`
`12
`
`
`
`’961 Patent
`Second Preferred Embodiment cont.
`
`POR, 11.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`13
`
`
`
`GROUND 1 ARGUMENTS
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`14
`
`
`
`CABOT
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`15
`
`
`
`Cabot Overview
`
`•
`
`“The audibility of phase shifts in harmonically related tones has been a topic of
`discussion for many years. Before the advent of electronic instrumentation,
`Helmholtz ran crude experiments to show that phase shifts were not audible.”
`
`• Cabot posits that there is no consensus concerning whether or not relative phase
`shifts can be detected by the human ear, or to what degree.
`
`• Cabot does not present this issue of audibility of phase shifts as a settled question.
`
`• Cabot includes no details about the prior experiments, the experimental conditions,
`the equipment used, or the test procedure, much less if those prior experiments
`involved fundamentals and overtones (including third harmonics) as required by the
`challenged claims.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 24-25, 28; Ex. 1006, 568.
`
`16
`
`
`
`Cabot’s Experimental Data
`
`• Listeners can detect a wide variety of phase
`shifts.
`• Relative phase shifts greater than 30 degrees in
`a 2-component composite signal consisting of
`a fundamental and third harmonic was audible
`at least 75% of the time.
`• A phase shift of 22.5° (i.e., π/8 rad), the
`detection rate reported was 83% and the false
`alarm rate was 58%.
`• Listeners could hear the difference between
`composite signals of a fundamental and third
`harmonic when the relative phase of the two
`frequency components was shifted.
`• The detection rate by a listener was always
`greater than the false alarm rate for all non-
`zero changes.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 17, 25-26; Ex. 1006, Table II.
`
`17
`
`
`
`Petitioner Ignores Cabot’s Conclusions
`
`• Cabot: “The experiment shows phase shifts of harmonic complexes to be
`detectable” and that “it was found that a 30° shift was still fairly well recognized.”
`
`– Axalta Coating Systems, LLC v. PPG Industries Ohio, Inc., IPR2022-00676, Paper 10 at 22 (PTAB Sept. 12,
`2022) (“Petitioner fails to explain why, when considering pigments for an intermediate coating layer for an
`automobile, a POSA would have focused on Grubenmann’s and Vernardakis’s teachings about transparency,
`while ignoring their competing teachings about weather and sunlight fastness.
`
`– Unirac, Inc. v. EcoFasten Solar, LLC, IPR2021-00532, Paper 7 at 21 (PTAB July 22, 2021) (“Petitioner has
`not sufficiently explained why a person having ordinary skill in the art would ignore Wentworth’s express
`teaching…”).
`
`–
`
`Intel Corp. v. XMTT, Inc., IPR2020-00144, Paper 12 at 15 (PTAB May 20, 2020) ( “Petitioner provides no
`explanation as to why one of ordinary skill in the art would have been motivated to pick and choose portions
`of the teachings of Nakamura while ignoring the primary focus (how to update the shared data registers).”).
`
`• Cabot’s finding that phase shifts are detectable undermines Petitioner’s contention
`that phase shifts between a fundamental and a third harmonic are inaudible.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 26, 28, 29; Ex. 1006, 570.
`
`18
`
`
`
`Dr. Scordilis’ Declaration and the Petition
`Conflict with Cabot
`
`•
`
`•
`
`Scordilis Declaration: “Cabot teaches differential phase shifts of the third harmonic
`relative to the fundamental are inaudible even under extreme testing
`conditions…Thus, a POSA would have understood from Cabot that applying a
`differential phase shift between the fundamental and third harmonic would be
`inaudible.” (Emphasis added.)
`
`Petition: “[A] POSA would have understood from Cabot that applying a differential
`phase shift between the fundamental and third harmonic would be inaudible.”
`(Emphasis added.)
`
`• Cabot’s experimental data and conclusions contradict Dr. Scordilis’ declaration
`opinion and the Petition.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 30; Ex. 1003, ⁋200; Pet. 60.
`
`19
`
`
`
`Dr. Scordilis’ Contrary Deposition Testimony
`
`At deposition, Dr. Scordilis admitted Cabot confirms that such phase shifts between a
`fundamental and third harmonic are “not inaudible” (i.e., they are audible) based on the
`conditions described in Cabot.
`
`Q. So is it your opinion that Cabot teaches that phase shifts between fundamental and
`third harmonics are inaudible?
`A. Cabot, the Cabot reference describes a very specific psychoacoustic experiment
`under very controlled conditions that involve the first harmonic – the fundamental
`and the third harmonic of a composite signal consisting of two sinusoids, and the
`experiment was about altering the phase of the second sinusoid, which was at the
`third harmonic and at various degrees of change, and trying to establish at what
`degree of change these changes would be audible to listeners…. So under these
`very controlled conditions, they concluded that phase changes are not inaudible
`under these specific conditions that they describe in their publication.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 31; Ex. 2011, 14:14-15:19.
`
`20
`
`
`
`Dr. Scordilis’ Contrary Deposition Testimony cont.
`
`Q. It's your opinion that under the specific conditions described in Cabot, that phase
`shifts between the fundamental and third harmonics are audible; is that right?
`A. Phase changes between the fundamental and the third harmonic are audible if
`the stimulus consists of only a fundamental and of only a third harmonic. So,
`basically, if it consists of two sinusoidal signals, then, under the conditions that we
`describe, they can be audible.
`
`*****
`Q. So just looking at the inaudible portion and putting aside for now whether a phase
`change is objectionable, is it your opinion that phase shifts between fundamental and
`third -- third harmonics, such as in Cabot, are inaudible?
`A. …So my answer is, phase changes are -- as in the setup described by Cabot for
`these two frequencies that are related, first harmonic and third harmonic,
`fundamental and third, are audible under those testing harmonics…
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 31; Ex. 2011, 15:20-16:9, 21:1-22:3.
`
`21
`
`
`
`Dr. Scordilis’ Contrary Deposition Testimony cont.
`
`Q. …So using the terminology that you’ve just set forth, I think I understand that it is
`your opinion that in Cabot, under the specific conditions set forth in Cabot, the phase
`shifts between the fundamental and its third harmonic are audible, detectable, and
`identifiable; is that right?
`A. They are audible -- yes, all of the above within a certain range of phase change.
`Not for all phase changes. A certain -- beyond a certain range of phase changes. So
`within a range of changes, that was true. Not for all. Some of the changes.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 31; Ex. 2011, 57:1-14.
`
`22
`
`
`
`Dr. Scordilis’ Contrary Deposition Testimony cont.
`
`Q. So Cabot doesn’t say that you can just change phases without audibility. Correct?
`A. Yeah, for Cabot’s experiment, he shows that the phase changes can be detected.
`There is a substantial degree of confusion as to whether they're detected or not, by
`the way.
`
`*****
`Q. So, I guess, for the circumstances of Cabot’s experiment in particular, Cabot is
`saying that if you change phases, there -- this phase change is audible. Right?
`A. Yes, Cabot says, and he -- in writing, and I quote in his conclusion, that
`although phase – although differences were detectable, they were subtle.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 31; Ex. 2011, 65:17-67:2.
`
`23
`
`
`
`Cabot is the Only Record Evidence Concerning
`Audibility/Detectability of Phase Shifts
`
`Dr. Scordilis confirmed that he does not provide an opinion on the audibility of phase
`shifts under any other circumstances/conditions other than those in Cabot:
`
`Q. In your declaration, do you express an opinion as to whether phase changes between
`the fundamental and the third harmonic are audible under any other circumstances than
`what you just described?
`A. I do not -- I have to go to my report to see if I have specific -- I have made this
`specific point, but it is my position in the report, and in my work outside of the
`report before this case ever came to life, that -- and, of course, this is supported by
`research evidence from other people, that phase changes are extremely difficult to
`detect, at best.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 31; Ex. 2011, 16:11.
`
`24
`
`
`
`Dr. Scordilis Confirms Cabot Teaches Away
`Because It Has Little Relation to Watermarking
`
`Q. If a POSA was looking to make watermarks undetectable, wouldn't Cabot's data,
`which shows that listeners can detect phase shifts between a fundamental and a third
`harmonic across various degrees of shifts, have discouraged a POSA from using phase
`shifts in watermarks?
`A. Not really because you are not going to take Cabot’s stimulus and add
`watermarks to it. Cabot's stimulus is really useless for everyday life. It's just a --
`an experiment that was conducted in a laboratory and that's the end of it. We
`don't listen to tones in our ordinary life. We would be very -- we would object to
`that very strongly. We just listen to general purpose audio and music. And, so, the
`conclusions and the degree of audibility that Cabot describes has no bearing on
`the general purpose audio we listen to every day…
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 32; Ex. 2011, 74:21-75:22.
`
`25
`
`
`
`Dr. Scordilis Confirms Watermarks Should not be Audible
`
`Q. I just saw in your answer earlier, you said, “And, of course, we have a very strong
`motivation here to make it inaudible so that only the people who need to detect it can
`detect it and not a casual listener or an adversary.”
`A. That's right. That’s right.
`
`*****
`Q. And I just wanted to clarify that when you said that, you were talking about
`watermarks.
`A. Yes, yes, I was talking about watermark. Of course, the purpose of inserting a
`watermark is so that you can detect it by -- of course, you cannot -- you do not
`detect it by listening. You detect it by technical analysis…So, of course, you don’t
`want to make it audible to someone who would – there’s no point in making it
`audible. If you make it audible, then people who are looking for it may detect
`it…So you don’t want to make it audible. You want to make it detectable to the
`system that will detect it and extract it and do whatever it needs to do with it, but
`certainly you don’t want to make it detectable by anybody else or anybody, period.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 26; Ex. 2011, 59:5-60:19.
`
`26
`
`
`
`The Record Establishes that Cabot Teaches
`Away as Phase Shifts Are Audible
`
`• Cabot is relied on for all proposed combinations in Grounds 1-3.
`
`• Dr. Scordilis confirmed watermarks should not be audible.
`
`• Dr. Scordilis confirmed Cabot’s experimental data shows phase shifts are
`audible.
`
`• Cabot’s experimental data, as well as Dr. Scordilis’ testimony, confirm that
`Cabot would dissuade a POSA from employing phase shifts as a data hiding
`method.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 26-28; Ex. 2011, 59:5-60:19.
`
`27
`
`
`
`SRINIVASAN
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`28
`
`
`
`Srinivasan Overview
`
`•
`
`Srinivasan discloses a method for manipulating the amplitude or phase of a
`pair of spectral components of an audio signal to encode data.
`
`• Code frequencies f1 and f0 between 4.8-6 khz (i.e., 4800-6000 Hz) are
`manipulated to avoid perceptibility of the modifications.
`
`•
`
`•
`
`Srinivasan discloses two methods to randomize the selection of frequencies
`f1 and f0.
`
`In both methods, the spectral modifications are made to frequencies in the
`range 4.8 kHz to 6 kHz, and the fundamental tone and its overtones are not
`modified.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 12-15; Ex. 1005, 7:29-9:12.
`
`29
`
`
`
`Srinivasan Overview
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 12-15; Ex. 1005, Fig. 2.
`
`30
`
`
`
`Srinivasan Teaches the Use of Code
`Frequencies Between 4.8-6 kHz for Inaudibility
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 37; Ex. 1005, 1:1-9, 7:64-8:5, 8:25-28; 8:59-62.
`
`31
`
`
`
`Dr. Scordilis’ Testimony Confirms Srinivasan Operates
`in the 4.8-6 kHz Range for Inaudibility
`
`Q. Why does Srinivasan use this frequency range, in your opinion?
`A. Because Srinivasan is trying to -- tried to exploit the
`masking properties of the human ear and which masks
`information that follow in the frequency domain, the
`frequency range, follow louder portions of the signal.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 38; Ex. 2011, 77:13-79:14, 79:18-80:20.
`
`32
`
`
`
`Dr. Scordilis’ Testimony Confirms Srinivasan Does Not
`Teach Using Frequencies Outside 4.8-6 kHz
`
`Q. Does Srinivasan suggest using any -- choosing any
`frequencies outside of the 4.8 to 6 kilohertz range?
`
`A. No, they don’t. They talk about lower
`frequencies, but the actual changes to the signal
`are implemented in that frequency range.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 38; Ex. 2011, 80:21-81:3.
`
`33
`
`
`
`Dr. Scordilis’ Testimony Confirms a Fundamental and
`Harmonic Cannot Both Be Chosen in Srinivasan’s Range
`
`Q. And it’s not possible for both a fundamental and a harmonic to
`be chosen in the frequency interval used by Srinivasan. Right?
`
`A. Even if we have a fundamental in that range, the harmonic
`would be well beyond that range because of multitudes of that --
`of the location of the fundamental. So it would be outside that
`range, yes.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 38; Ex. 2011, 77:4-82:3.
`
`34
`
`
`
`Petitioner’s Proposed Modification Renders
`Srinivasan Inoperable for Its Intended Purpose
`
`The Federal Circuit has stated:
`
`“obviousness is a question of law based on several underlying factual
`findings,” including what a reference teaches, and whether proposed
`modifications would change a reference’s “principle of operation.” Where “a
`patent claims a structure already known in the prior art that is altered by the
`mere substitution of one element for another known in the field, the
`combination must do more than yield predictable results.” However,
`combinations that change the “basic principles under which the [prior art]
`was designed to operate,” or that render the prior art “inoperable for its
`intended purpose,” may fail to support a conclusion of obviousness.
`
`Adidas AG, v, Nike, Inc., IPR2016-00922, Paper 31 at 46 (PTAB Feb. 19, 2019) (citing
`and quoting Plas-Pak Industries, Inc. v. Sulzer Mixpac AG, 600 F. App’x 755, 757–758
`(Fed. Cir. 2015)) (non-precedential) (citations omitted, emphasis added)).
`
`POR, 39.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`35
`
`
`
`The ’961 Patent Teaches Data Hiding
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`Sur-reply, 5-6; Ex. 1001, 1:1-2, 1:20-22, 4:31-34.
`
`36
`
`
`
`Petitioner Acknowledges the ’961 Patent
`Teaches Data Hiding
`
`“POSA would have understood it was unnecessary
`for inaudibility to place the codes at the ‘edges’ of
`the fundamental and its harmonics.”
`
`Sur-reply, 5-6; Pet., 28.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`37
`
`
`
`KUDUMAKIS
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`38
`
`
`
`Kudumakis Overview
`
`• Kudumakis relies on notch filtering:
`“Two notches are inserted in the audio band to provide frequencies at which the
`code may be inserted. The code signal is inserted as a series of pulses at the
`center frequencies of the notches, and insertion is initiated when the program
`content provides sufficient masking conditions for the code to be inserted
`inaudibly.”
`
`• Kudumakis describes making modification to the host signal nearby, but not directly to,
`the strongest frequency components of the host signal, such as its fundamental and
`harmonics:
`
`“The codes are more perceptible if the notch frequencies coincide with the main
`frequency component of the signal. On the other hand, they have to be placed in
`a part of the spectrum with sufficient energy so that frequent [sic] masking
`conditions can be met.”
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 18; Ex. 1007, 1:17-22, 3:4-8.
`
`39
`
`
`
`Kudumakis Teaches Away
`
`•
`
`Petitioner asserts that “a POSA would have implemented the
`Srinivasan/Cabot/Kudumakis Combination by performing the data-encoding phase
`shifts directly at the fundamental or third harmonic to ensure the phase shifts were
`inaudible.”
`
`• Kudumakis describes manipulating the weaker masked spectral components near
`stronger harmonics, not manipulating the harmonics themselves, and the specification
`cautions against making modifications to the strongest frequency components of a
`signal (those that are audible or not masked by other tones, such as its fundamental and
`harmonics) because the inserted codes would be more perceptible in that case.
`
`• Kudumakis: “The placement of the notch frequencies plays a significant role to the
`subjective quality of the coded signals. The codes are more perceptible if the notch
`frequencies coincide with the main frequency component of the signal.”
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 44; Pet. 28; Ex. 1007, 3:4-6; Ex. 1003, ⁋136.
`
`40
`
`
`
`Dr. Scordilis’ Confirms Kudumakis Teaches Away
`
`Dr. Scordilis confirmed that Kudumakis makes modifications near fundamentals while
`leaving the fundamentals and harmonics unaltered and that the Kudumakis performs a
`modification different from phase adjustment:
`
`Q. And you would agree that Kudumakis inflicts modifications near fundamentals and
`harmonics. Correct?
`A. That is correct.
`
`*****
`Q. The modification that Kudumakis makes has nothing to do with phases. Right??
`A. Kudumakis mentions phase in the context of the encoded signal that would be
`inserted in the audio for the purpose of watermarking or hiding that information,
`that code. And he mentions that phase modulation could be applied through the code
`signal that would be inserted in the audio after it has been processed by the methods
`described by Kudumakis. That’s the only -- that's the reference it makes to phase.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 44: Ex. 2011, 82:16-19, 83:10-21.
`
`41
`
`
`
`Dr. Scordilis’ Testimony Confirms Kudumakis
`Teaches Away cont.
`
`Q. So this reference that Kudumakis makes to phase is not with respect to the actual
`audio. Right?
`A. Well, we have – we’ll have a composite audio. So the audio, if we -- if we were to do
`phase modulation that Kudumakis suggests -- suggested, then the resulting audio
`would have some phase information, phase that carries watermark information in
`that audio. But it would be the carrier -- it would be -- it would be the signal that is
`added to the host audio rather than the host audio itself.
`
`Q. Right. And this is not phase adjustment. Right?
`A. It is not an adjustment of the phase of the host audio, no. You’re right.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 44; Ex. 2011, 84:1-15.
`
`42
`
`
`
`Kudumakis Teaches Away
`
`• The Petition expressly asserts that the purported combination would “execute the data-
`encoding phase shifts directly at the fundamental or third harmonic to ensure the
`phase shifts were inaudible.”
`
`• Kudumakis teaches away because it pertains to manipulating the weaker masked
`spectral components surrounding stronger harmonics, not the manipulation of the
`harmonics themselves.
`
`• Kudumakis teaches against altering a signal’s most prominent frequency components
`(such as its fundamental and harmonics) because inserted codes would become more
`discernible in such instances:
`“The placement of the notch frequencies plays a significant role to the subjective
`quality of the coded signals. The codes are more perceptible if the notch
`frequencies coincide with the main frequency component of the signal.”
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`Sur-reply, 10-11; Pet., 28; Ex. 1007, 3:4-6.
`
`43
`
`
`
`LIPSHITZ
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`44
`
`
`
`Lipshitz Would Dissuade a POSA
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 33-34; Ex. 1031, 580-81.
`
`45
`
`
`
`Lipshitz Would Dissuade a POSA cont.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 33-34; Ex. 1031, 581-82.
`
`46
`
`
`
`Lipshitz Would Dissuade a POSA cont.
`
`• Dr. Scordilis testified: “[w]atermark technology is geared towards not being
`detectable by anybody, any listener, whether it’s a casual listener or a
`noncausal listener or even an acoustics expert.”
`
`• A POSA reading Lipshitz would be discouraged from using phase encoding
`for watermarking applications given Lipshitz’s express acknowledgment that
`phase shifts are detectable.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 34; Ex. 2011, 76:5-12.
`
`47
`
`
`
`RISSET
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`48
`
`
`
`Risset Relies on Cabot
`
`•
`
`Petitioner and Dr. Scordilis cite Risset that there is “remarkable insensitivity to phase”
`between harmonics of periodic tones, and while changing the phase between the
`harmonics of a periodic tone can alter the timbre of audio under certain conditions,
`“this effect is quite weak, and it is generally inaudible in a normally reverberant room
`where phase relations are smeared.”
`
`• Risset’s statement is based on Cabot, whose data shows phase shifts are audible:
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR 34-35; Pet. 23; Ex. 1028, 114.
`
`49
`
`
`
`Risset Would Dissuade a POSA Based on Dr.
`Scordilis’ Testimony
`
`• Dr. Scordilis testified: “[w]atermark technology is geared towards not being
`detectable by anybody, any listener, whether it’s a casual listener or a noncausal
`listener or even an acoustics expert.”
`
`• Given Dr. Scordilis’ testimony, even detectable “weak” effects associated with phase
`shifts between fundamentals and harmonics would be unacceptable and, thus,
`discourage a POSA from using phase shifts between fundamentals and harmonics for
`audio watermarking.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR 35; Ex. 2011, 76:5-12.
`
`50
`
`
`
`GROUND 2 ARGUMENTS
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`51
`
`
`
`NON-ANALOGOUS ART
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`52
`
`
`
`Hobson is Not Analogous Art
`Legal Standard
`
`• A reference qualifies as prior art for an obviousness determination under § 103 only
`when it is analogous to the claimed invention. In re Klein, 647 F.3d 1343, 1348
`(Fed. Cir. 2011); Innovention Toys, LLC v. MGA Entm’t, Inc., 637 F.3d 1314, 1321
`(Fed. Cir. 2011); In re Bigio, 381 F.3d at 1325; In re Clay, 966 F.2d 656, 658 (Fed.
`Cir. 1992).
`
`• A reference is considered analogous prior art:
`– (1) if the reference is from the same field of endeavor as the claimed subjected
`matter, regardless of the problem addressed, or
`– (2) if “the reference still is reasonably pertinent to the particular problem with
`which the inventor is involved,” even though the reference is not within the
`field of the inventor’s endeavor.
`In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).
`
`POR, 48.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`53
`
`
`
`Hobson is Not Analogous Art
`“Same Field of Endeavor” Test
`
`•
`
`•
`
`•
`
`•
`
`‘961 Patent
`Class 704: “This class also provides for
`systems or methods for bandwidth
`compression or expansion of an audio
`signal, or for time compression or
`expansion of an audio signal.”
`Sub-class 273: “Subject matter for
`providing security (e.g., limited access).”
`Sub-class 270: “Subject matter intended or
`designed for a specified use to which the
`speech signal processing is being applied.”
`Sub-class 253: “Subject matter identifying
`the beginning and ending points of
`words.”
`
`•
`
`•
`
`•
`
`Hobson
`Class 382: “This is the generic class for
`apparatus and corresponding methods for
`the automated analysis of an image or
`recognition of a pattern*. Included
`herein are systems that transform an
`image for the purpose of...”
`Sub-class 100: “Subject matter wherein
`the image analysis* is disclosed as being
`designed for or utilized in a diverse art
`device, system, process, or environment.”
`Sub-class 250: “Subject matter in which
`image data is partitioned into blocks and
`transformed using the discrete cosine or
`the discrete sine transform.”
`
`POR, 52-54.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`54
`
`
`
`Hobson is Not Analogous Art
`“Same Field of Endeavor” Test
`
`•
`
`Patent Office classifications provide objective evidence that ‘961 and Hobson are
`directed toward different subject matter.
`– In re Deminski, 796 F.2d 436, 442 n.3 (Fed. Cir. 1986) (employing
`classifications of prior art references as one basis for deciding if prior art is
`relevant).
`– SDS USA, Inc. v. Ken Specialties, Inc., No. 99-133, 2002 WL 31055997, at *22
`(D.N.J. Aug. 28, 2002) (“different classifications constitute further evidence
`that they are nonanalogous fields.”).
`
`•
`
`Petitioner does not address Patent Owner’s classification arguments.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 51-52, 54; Sur-reply, 13.
`
`55
`
`
`
`Hobson is Not Analogous Art
`“Same Field of Endeavor” Test
`
`•
`
`‘961 Patent
`• Title: “Data Hiding Via Phase
`Manipulation of Audio Signals”
`Specification: “…is directed to a
`system and method for insertion of
`hidden data into audio signals and
`retrieval of such data from audio
`signals and is more particularly
`directed to such a system and method
`using a phase encoding scheme.”
`
`Hobson
`• Title: “Watermark Digital Images”
`Specification: “…relates to methods
`•
`for improving confidence in and for
`authentication of watermarked
`digital images.”
`
`In re Wood, 599 F.2d 1032, 1036 (CCPA 1979) (characterizing the “field of the art”
`statement in the Background of Invention section of the specification as a “more realistic
`description of the field in which appellants endeavored”).
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 50-51; Ex. 1001, Cover, 1:1-24; Ex. 1042, Cover, 1:6-11.
`
`56
`
`
`
`Hobson is Not Analogous Art
`“Same Field of Endeavor” Test
`
`•
`
`‘961 Patent
`Specification: “[s]teganography in
`digital audio signals is especially
`challenging due to the acuity and
`complexity of the human auditory
`system (HAS). Besides having a wide
`dynamic range and a fairly small
`differential range, the HAS is unable
`to perceive absolute monaural phase,
`except in certain contrived
`situations.”
`
`•
`
`Hobson
`Specification: “to increase confidence
`of use of digital images as evidence,
`possibly in a court of law, there is a
`significant need to demonstrate that
`an image has not been tampered
`with.”
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 50-51; Ex. 1001, 2:16-21; Ex. 1042, 1:8-11.
`
`57
`
`
`
`Hobson is Not Analogous Art
`“Same Field of Endeavor” Test
`
`• Hobson is not concerned with audio watermarking, much less the unique challenges
`associated with audio watermarking, such as devising methods to encode data that
`are not perceptible to the human ear, as well as “being undetectable and robust to
`blind signal processing attacks and of being uniquely robust to digital to analog
`conversion processing.”
`
`• Hobson primarily concerns itself with “methods for improving confidence in and
`for authentication of watermarked digital images,” distinctly aimed at detecting
`tampering in visual images that are already watermarked.
`
`•
`
`Petitioner’s argument that Hobson and the ’961 both pertain to “watermark
`embedding methods for digital media” is an over-abstraction.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`POR, 50-51, 21-23; Sur-reply, 13-14, Ex. 1001, 4:31-33, Ex. 1042, 1:6-7.
`
`58
`
`
`
`Hobson is Not Analogous Art
`“Same Field of Endeavor” Test
`
`• The “field of endeavor” test requires “reference to explanations of the invention’s
`subject matter in the patent application, including the embodiments, function, and
`structure of the claimed invention.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
`2004).
`
`• The factfinder must consider each reference’s disclosure given “the reality of the
`circumstances” and to “weigh those circumstances from the vantage point of the
`common sense likely to be exerted by one of ordinary skill in the art in assessing
`the scope of the endeavor.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).
`
`•
`
`Petitioner defaulted on its burden in not providing evidence from a POSA assessing
`the scope of the endeavor.
`
`Sur-reply, 14.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`59
`
`
`
`Hobson is Not Analogous Art
`“Reasonably Pertinent” Test
`
`•
`
`“A reference is reasonably pertinent if, even though it may be in a different field
`from that of the inventor’s endeavor, it is one which, because of the matter with
`which it deals, logically would have commended itself to an inventor’s attention in
`considering his problem. Thus, the purposes of both the invention and the prior art
`are important in determining whether the reference is reasonably pertinent to the
`problem the invention attempts to solve. If a reference disclosure has the same
`purpose as the claimed invention, the reference relates to the same problem, and
`that fact supports use of that reference in an obviousness rejection.” In re Clay, 966
`F.2d 656, 659 (Fed. Cir. 1992).
`
`• To be considered “reasonably pertinent,” prior art must “logically commend” itself
`to an inventor’s attention in considering the problem addressed by the challenged
`patent. Innovention Toys, LLC v. MGA Entm’t, Inc., 637 F.3d 1314, 1321 (Fed. Cir.
`2011).
`
`POR, 48-49.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`60
`
`
`
`Hobson is Not Analogous Art
`“Reasonably Pertinent” Test
`
`‘961 Patent
`• Discloses methods for addressing the
`unique challenges related to audio
`watermarking, particularly those
`arising from encoding data that is not
`perceptible to the human ear and that
`are robust enough to survive
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