Paper 12
`Entered: February 22, 2024
`
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`META PLATFORMS, INC.,
`Petitioner,
`v.
`
`JAWBONE INNOVATIONS, LLC,
`Patent Owner.
`
`
`IPR2023-01130
`Patent 11,122,357 B2
`
`
`
`
`Before GEORGIANNA W. BRADEN, NORMAN H. BEAMER,
`and JASON M. REPKO, Administrative Patent Judges.
`
`BEAMER, Administrative Patent Judge.
`
`
`
`
`
`
`
`DECISION
`
`
`Denying Petitioner’s Request on Rehearing of Decision Denying Institution
`
`37 C.F.R. § 42.71(d)
`
`
`
`

`

`IPR2023-01130
`Patent 11,122,357 B2
`
`
`I. INTRODUCTION
`Meta Platforms, Inc. (“Petitioner”) has filed a Request for Rehearing
`(Paper 11, “Request”) of the Decision Denying Institution of Inter Partes
`Review (Paper 10, “Decision”) of claims 1–20 of U.S. Patent
`No. 11,122,357 B2 (“the ’357 patent”). For the reasons that follow,
`Petitioner’s Request for Rehearing is denied.
`
`II. THE REQUEST FOR REHEARING
`In pertinent part, 37 C.F.R. § 42.71(d) states:
`The burden of showing a decision should be modified
`lies with the party challenging the decision. The request must
`specifically identify all matters the party believes the Board
`misapprehended or overlooked, and the place where each
`matter was previously addressed in a motion, an opposition,
`[or] a reply.
`When rehearing a decision on institution, we do not review the
`merits of the decision de novo, but instead review the decision for an
`abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of discretion occurs
`when a “decision was based on an erroneous conclusion of law or clearly
`erroneous factual findings, or . . . a clear error of judgment.” PPG Indus.
`Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567 (Fed. Cir.
`1988) (citations omitted). The party requesting rehearing has the burden
`to show that the decision should be modified. 37 C.F.R. § 42.71(d).
`Thus, a request for rehearing is not an opportunity merely to disagree with
`the Board’s assessment of the arguments or weighing of the evidence, or to
`present new arguments or evidence.
`Petitioner argues that reconsideration is appropriate because “the
`Board misapprehended the scope of the claims, narrowing the term noise
`
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`IPR2023-01130
`Patent 11,122,357 B2
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`
`response in a way that directly conflicts with the ’357 patent and the Board’s
`prior institution decision.” Request 1. Petitioner also argues that the Board
`“misapprehended Brandstein’s (Ex. 1003) teachings.” Id.
`We have reviewed Petitioner’s Request and carefully considered all of
`the arguments presented. For the following reasons, we are not persuaded
`that we misapprehended or overlooked any arguments or evidence. We,
`therefore, deny the Request.
`
`III. DISCUSSION
`A. The Construction of “wherein the first virtual microphone and
`the second virtual microphone are distinct virtual directional
`microphones with substantially similar responses to noise”
`With respect to the ’357 patent claim requirement “wherein the first
`virtual microphone and the second virtual microphone are distinct virtual
`directional microphones with substantially similar responses to noise” (the
`“noise response” requirement), Petitioner argues that the Board, in denying
`institution, “limited the claims to require the noise responses to be
`substantially similar in directions away from the noise direction, and for all
`frequencies.” Request 4. In doing so, Petitioner argues, the Board “reversed
`itself” from its June 1, 2023 decision to institute proceedings in
`Amazon.com, Inc. v. Jawbone Innovations, LLC, IPR2023-00251 (the
`“Amazon IPR”).1 Id. at 4–5. Petitioner argues that, in the Amazon IPR, the
`Board “previously understood the claims only required that the noise
`response be substantially similar in the noise direction.” Id. at 4.
`In fact, this claim construction issue was not presented in the Amazon
`IPR — the scope of the noise response requirement was not raised by the
`
`1 The Amazon IPR was terminated due to settlement. IPR2023-00251,
`Paper 15.
`
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`IPR2023-01130
`Patent 11,122,357 B2
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`
`parties and did not come to the Board’s attention. See Amazon IPR, Paper 7,
`14 (the “Amazon Decision”) (“The parties submit that no claim construction
`is necessary . . . . At this stage, we do not construe the claims . . . .”). Nor
`was it raised in the Petition or the Preliminary Response here. See Decision,
`14. As elaborated below, for purposes here, there is no need to resolve the
`issue of whether the claims require the noise responses of the virtual
`microphones to be substantially similar in directions away from the noise
`direction or only in the noise direction.
`In the Amazon Decision, the Board’s analysis comparing the
`requirements of independent claim 1 to the asserted combination of
`Brandstein and Gannot (Ex. 1004) led to the determination that the Petition
`in that Proceeding demonstrated a reasonable likelihood that Amazon would
`have prevailed in establishing that Brandstein taught the noise response
`requirement. Amazon Decision, 22. The only evidence supporting
`Amazon’s challenge with respect to the noise response requirement was
`Figure 5.2 of Brandstein. Id. at 19 (citing Amazon IPR, Paper 1, 28–30;
`Ex. 1003, Fig. 5.2, 87–90, 101; Ex. 1002 ¶¶ 94–97). 2 Amazon’s annotated
`version of Figure 5.2 (also used by Petitioner here) is reproduced below.
`
`
`2 The 1000-series exhibits referred to herein are filed in both the Amazon
`IPR and in this Proceeding with the same exhibit numbers.
`
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`IPR2023-01130
`Patent 11,122,357 B2
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`The Board relied on Amazon’s declarant’s testimony that the “deep null” for
`“Interference” in the figure discloses that the two virtual microphones are
`distinct and that their responses to noise are substantially similar (thus
`cancelling each other out as to noise). Amazon Decision, 19 (citing
`Ex. 1002 ¶¶ 96–97). The Board noted that Patent Owner did not address this
`claim requirement in its Preliminary Response in the Amazon IPR. Id. at 22.
`Although Petitioner now characterizes this determination by the Board as
`somehow construing the noise response requirement as “only requiring that
`the noise response be substantially similar in the noise direction” (Request
`4), in fact the Board relied on the unchallenged testimony of Amazon’s
`declarant (Ex. 1002 ¶¶ 95–97) and did not consider or address the issue of
`noise directionality.
`In contrast to the Amazon IPR, after reviewing Patent Owner’s
`Preliminary Response and the testimony of Patent Owner’s declarant in this
`Proceeding, the Board reconsidered its analysis of Brandstein’s Figure 5.2
`(still the only evidence regarding the noise response requirement) and
`determined that the “figure does not lead to an inference that the individual
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`IPR2023-01130
`Patent 11,122,357 B2
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`microphone responses have similar responses to noise.” Decision 24 (citing
`Prelim. Resp. 12–13). As Patent Owner’s declarant correctly observes:
`Figure 5.2 shows the overall directivity . . . , not the directivity
`of either virtual microphone . . . . [Figure 5.2] reflects the
`overall result of the system in attenuating noise; a POSITA
`would not understand this figure to disclose anything about the
`comparative responses to noise of the top or bottom path within
`that system (which are not even depicted in the figure).
`Ex. 2002 ¶ 44. Thus, Petitioner’s sole basis for arguing that Brandstein
`teaches the noise response requirement is flawed. This inadequacy of
`Brandstein has nothing to do with whether the noise response requirement
`specifies that the noise response must be substantially similar in directions
`away from the noise direction or only in the noise direction. Even if we
`were to agree with the construction of the noise response requirement now
`asserted by Petitioner in the Request, Petitioner’s flawed reliance on Figure
`5.2 of Brandstein still undercuts all of the unpatentability challenges raised
`by Petitioner, inevitably leading to the Board’s Decision Denying Institution
`of Inter Partes Review. 3
`
`
`3 In this Proceeding, Patent Owner raised, and the Board discussed, other
`arguments challenging the adequacy of Brandstein, including an argument
`based on Brandstein Figure 5.3, and a statement in Brandstein that the
`disclosed circuitry relating to one virtual microphone attenuated non-target
`signals in the “look direction,” whereas the other virtual microphone passed
`non-target signals through, thus failing to satisfy the requirement of
`“substantially similar responses to noise.” Decision 22–24 (citing Prelim.
`Resp. 8–14; Ex. 1003, Fig. 5.3, 88, 90; Ex. 2002 ¶¶ 42–43, 45). Given
`that the inadequacy of Petitioner’s reliance on Figure 5.2 of Brandstein is
`dispositive, it is not necessary to resolve Petitioner’s new arguments (at
`Request 6–10) concerning these other portions of Brandstein.
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`IPR2023-01130
`Patent 11,122,357 B2
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`B. Brandstein’s Teachings
`Petitioner argues that the Board misapprehended Brandstein. Request
`11. First, Petitioner asserts that “[t]he Board applies an incorrect
`understanding that Brandstein sums the virtual microphone signals,” which
`is “contrary to the undisputed teachings in Brandstein, which clearly show
`the two virtual microphone signals are subtracted, not summed.” Request
`11–12. Petitioner bases this argument on the Decision’s statement that “[i]n
`effect, Petitioner is arguing that knowing that the sum of two numbers is
`equal to ‘2’ necessarily means that each number is ‘1’, as opposed, for
`example, to one number being ‘2’ and the other ‘0’.” Id. at 11 (citing
`Decision 24). This statement was not describing the operation of
`Brandstein, however, but rather was making the general point that, as
`discussed above, the depiction in Figure 5.2 of the overall result of the
`system in attenuating noise does not support any conclusion about the
`comparative responses to noise of the two virtual microphones within that
`system. See Decision 24.
`Petitioner also argues that “[t]he Decision . . . erred in concluding
`Brandstein’s two virtual microphones cannot have substantially similar
`responses to noise, based on [Patent Owner]’s argument that the first virtual
`microphone ‘attenuates noise.’” Request 14 (citing Decision 23). This
`refers to the discussion in the Decision relying on the statement in
`Brandstein that the disclosed circuitry relating to one virtual microphone
`attenuated non-target signals in the “look direction,” whereas the other
`virtual microphone passed non-target signals through, thus failing to satisfy
`the requirement of “substantially similar responses to noise.” Decision 22–
`24. Petitioner specifically argues:
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`IPR2023-01130
`Patent 11,122,357 B2
`
`
`Brandstein’s first virtual microphone cannot eliminate noise, as
`the Decision concludes at p. 23. If it did, the first virtual
`microphone signal would already be free of noise, and that
`would defeat the purpose of Brandstein’s structure having a
`second virtual microphone for canceling the noise passed by the
`first virtual microphone.
`Request 14.
`Petitioner is correct that Brandstein’s first virtual microphone does not
`entirely eliminate noise. However, Brandstein’s disclosure does not support
`Petitioner’s assertion that the virtual microphones of Brandstein have
`substantially similar responses to noise. As Patent Owner’s declarant
`testifies:
`
`Unlike the invention of the ‘357 Patent which contemplates a
`first virtual microphone that captures both speech and noise, the top
`branch of the GJBF discussed in the cited portions of Brandstein
`captures speech while suppressing as much noise as possible, while
`the bottom branch captures as much noise as possible while
`suppressing speech. Brandstein states that for the top path “[t]he
`[fixed beamformer] is designed to form a beam in the look direction
`so that the target signal is passed through and all other signals are
`attenuated” while for the bottom path “the [blocking matrix] forms a
`null in the look direction so that the target signal is suppressed and all
`other signals are passed through.” Ex. 1003 at 88 (emphasis
`added). In other words, the fixed beamformer (top path) passes
`speech through (the target signal) and attenuates noise, while the
`blocking matrix (bottom path) suppresses speech and passes noise
`through . . . .
`. . . [I]nstead of using virtual microphones with substantially
`similar noise responses, Brandstein’s GJBF attempts to isolate speech
`in the top path as much as possible, then uses the MC to subtract only
`those noise components of the bottom path that are “correlated with
`the interferences.”
`Ex. 2002 ¶¶ 42–43.
`
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`IPR2023-01130
`Patent 11,122,357 B2
`
`
`In any event, as discussed above, given Petitioner’s failure of proof
`regarding Brandstein Figure 5.2, it is not necessary to resolve Petitioner’s
`arguments regarding this statement in Brandstein.
`
`IV. CONCLUSION
`Based on the foregoing, Petitioner does not persuade us that we
`overlooked or misapprehended any matter, or sufficiently show that not
`instituting an inter partes review of claims 1–20 the ’357 patent was an
`abuse of discretion.
`
`V. ORDER
`For the reasons given, it is:
`ORDERED that Petitioner’s Request for Rehearing is denied.
`
`
`
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`
`
`IPR2023-01130
`Patent 11,122,357 B2
`
`For PETITIONER:
`Lisa Nguyen
`David Tennant
`Alan Billharz
`Colby Davis
`Grace Wang
`ALLEN & OVERY LLP
`lisa.nguyen@allenovery.com
`david.tennant@allenovery.com
`alan.billharz@allenovery.com
`colby.davis@allenovery.com
`grace.wang@allenovery.com
`
`For PATENT OWNER:
`Peter Lambrianakos
`Vincent J. Rubino, III
`Enrique W. Iturralde
`Richard Cowell
`FABRICANT LLP
`plambrianakos@fabricantllp.com
`vrubino@fabricantllp.com
`eiturralde@fabricantllp.com
`rcowell@fabricantllp.com
`
`10
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`