Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 1 of 27
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`JAWBONE INNOVATIONS, LLC,
`
`Case No. 6:21-CV-00984-ADA
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`
`
`
`
`
`
`PATENT CASE
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`APPLE INC.’S REPLY CLAIM CONSTRUCTION BRIEF
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`
`
`
`

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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 2 of 27
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`
`I.
`
`INTRODUCTION ...................................................................................................... 1
`
`TABLE OF CONTENTS
`
`II.
`
`DISPUTED TERMS................................................................................................... 1
`
`“microphone” (’058 patent, claim 1; ’543 patent, claims 1, 8, 19, 20, & 26)
`A.
`(proposed by Apple) ................................................................................................... 1
`
`“the acoustic signals” / “the acoustic signal received at the one receiver” /
`B.
`“the acoustic signals received at each of the two receivers” (’058 patent, claim 1)
`(proposed by Apple) ................................................................................................... 5
`
`“transfer function” (’091 patent, claims 1, 2, 4, 5, 9, 11, 15; ’357 patent,
`C.
`claims 1, 15; ’080 patent, claims 1, 14) (proposed by Jawbone) .................................. 7
`
`“generating one transfer function of the at least two transfer functions . . .
`D.
`when the VAD indicates that user voice activity is present.” (’091 patent, claim
`2) (proposed by Apple) ............................................................................................... 9
`
`E.
`
`“virtual microphone array” (’072 patent, claim 1) (proposed by Apple)............ 10
`
`“acoustic noise” (proposed by Jawbone) and “less acoustic noise”
`F.
`(proposed by Apple) (’072 patent, claims 1, 2, 9) ...................................................... 12
`
`“approximately similar” / “approximately, dissimilar” / “approximately
`G.
`dissimilar” (’213 patent, claims 2, 37 & 38; ’611 patent, claim 3, 4 & 29)
`(proposed by Apple) ................................................................................................. 13
`
`“a relationship for speech” (’213 patent claims 14, 42; ’611 patent claim 1)
`H.
`(proposed by Apple) ................................................................................................. 17
`
`“. . . substantially similar/dissimilar. . .” (’691 patent, claims 1, 23, 27, 28,
`I.
`29, 41; ’080 patent, claims 1, 14; ’357 patent, claims 1, 15;) (proposed by
`Apple) ...................................................................................................................... 18
`
`“apply a varying linear transfer function between the first and second
`J.
`microphone signals” (’357 patent, claims 1, 15) (proposed by Apple) ....................... 20
`
`III.
`
`CONCLUSION ........................................................................................................ 21
`
`
`
`
`
`i
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`

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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 3 of 27
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Allen Engr. Corp. v. Bartell Indus., Inc.,
`299 F.3d 1336 (Fed. Cir. 2002) ...............................................................................................7
`
`Applied Med. Res. Corp. v. U.S. Surgical Corp.,
`448 F.3d 1324 ................................................................................................................... 6, 16
`
`Biogen, Inc. v. Berlex Labs., Inc.,
`318 F.3d 1132 (Fed. Cir. 2003) ...............................................................................................8
`
`Biosig Instruments, Inc. v. Nautilus, Inc.,
`783 F.3d 1374 (Fed. Cir. 2015) ............................................................................................. 12
`
`Carman Indus., Inc. v. Wahl,
`724 F.2d 932 (Fed. Cir. 1983) .................................................................................................5
`
`Cf. Regents of U. of Minnesota v. AGA Med. Corp.,
`07-CV-4732 PJS/LIB, 2011 WL 13943 (D. Minn. Jan. 4, 2011) ............................................ 16
`
`Chef Am. Inc. v. Lamb-Weston, Inc.,
`358 F.3d 1371 (Fed. Cir. 2004) ............................................................................................. 10
`
`Chef Am., Inc. v. Lamb-Weston, Inc.,
`358 F.3d 1371 (Fed. Cir. 2004) ...............................................................................................7
`
`Cohesive Techs., Inc. v. Waters Corp.,
`543 F.3d 1351 (Fed Cir. 2008) .............................................................................................. 16
`
`Eli Lilly v. Teva Pharm. Int’l GmbH,
`8 F.4th 1331 (Fed. Cir. 2021) ..................................................................................................5
`
`Ferring B.V. v. Watson Labs., Inc.-Fla.,
`764 F.3d 1382 (Fed. Cir. 2014) ............................................................................................. 15
`
`Gentry Gallery, Inc. v. Berkline Corp.,
`134 F.3d 1473 (Fed. Cir. 1998) ...............................................................................................2
`
`Hologic, Inc. v. SenoRx, Inc.,
`639 F.3d 1329 (Fed. Cir. 2011) ............................................................................................. 11
`
`Immunex Corp. v. Sanofi-Aventis U.S., LLC,
`977 F.3d 1212 (Fed. Cir. 2020) ...............................................................................................9
`
`ii
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`

`

`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 4 of 27
`
`Innogenetics, N.V. v. Abbott Labs.,
`512 F.3d 1363
`(Fed. Cir. 2008) .......................................................................................................................4
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014) ....................................................................................... 12, 15
`
`Lydall Thermal/Acoustical, Inc. v. Federal-Mogul Corp.,
`344 Fed. Appx. 607 (Fed. Cir. 2009) .......................................................................................8
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .............................................................................................................. 15
`
`Neodron, Ltd. v. Fujitsu Am., Inc.,
`220CV00239JRGRSP, 2021 WL 2646214 (E.D. Tex. June 28, 2021) ................................... 15
`
`Neville v. Found. Constructors, Inc.,
`972 F.3d 1350 (Fed. Cir. 2020) ......................................................................................... 7, 16
`
`Pharm., Inc. v. Hospira, Inc.,
`835 Fed. Appx. 578 (Fed. Cir. 2020) ..................................................................................... 16
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ...............................................................................................1
`
`Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC,
`824 F.3d 999
`(Fed. Cir. 2016) ............................................................................................................... 2, 3, 4
`
`Superguide Corp. v. DirecTV Enters., Inc.,
`358 F.3d 870 (Fed. Cir. 2004) ......................................................................................... 11, 12
`
`U.S. Well Servs., Inc. v. Halliburton Co.,
`No. 6:21-cv-00367-ADA, 2022 WL 819548 (W.D. Tex. Jan. 17, 2022) .................... 13, 14, 15
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996) .................................................................................................1
`
`World Class Tech. Corp. v. Ormco Corp.,
`769 F.3d 1120 (Fed. Cir. 2014) ............................................................................................. 21
`
`
`
`
`
`
`iii
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`

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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 5 of 27
`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 5 of 27
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`I
`
`INTRODUCTION
`
`Defendant Apple Inc.’s proposed claim constructions provide necessary guidance for the
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`jury on essential terms of the asserted patent claims, consistent with the core legal principles of
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`claim construction.
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`In contrast, Jawbone repeatedly asserts that “no construction is necessary”
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`while advancing broad interpretations of the claim language in an effort to broaden the patents’
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`reach beyondthe legitimate scope ofthe claims. Similarly, Jawbone attempts to salvage numerous
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`indefinite terms by rewriting (or reading out) claim limitations. The Court should reject Jawbone’s
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`proposals and adopt Apple’s proposed constructions for all the disputed terms.
`
`0.
`
`DISPUTED TERMS
`
`A.
`
`“microphone”(’058 patent, claim 1; ’543 patent, claims 1, 8, 19, 20, & 26)
`(proposed by Apple)
`
`JAWBONEpoAPPLE
`Plain and ordinary meaning; no
`Plain and ordinary meaning, whichis “physical
`construction necessary
`microphone”
`
`
`
`Jawbone’s proposed construction of “microphone”—encompassing both physical and
`
`virtual microphones—is improper because it does not accord with “the meaning that the term
`
`would haveto a person of ordinary skill in the art in question at the time ofthe invention.” Phillips
`
`v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp. v.
`
`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). In its responsive brief, Jawbonefails to
`
`identify any intrinsic evidence to support its assumption that the term “microphone” would be
`
`understood to encompass both physical and virtual microphones at the time of the alleged
`
`invention. Its failure is a tacit admission that the 058 and ’543 patents do not provide support for
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`virtual microphones. See Jawbone Br. at 7 (conceding “the specifications do not specifically call
`
`out virtual (e.g. beamformed) microphones”).
`
`Indeed, Jawbone admits that microphones are
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`physical (and not virtual) structures. See id. at 12 (arguing “the two microphonesare the only
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`

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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 6 of 27
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`recited structures that receive acoustic signals”). By contrast, Apple’s plain and ordinary
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`construction is entirely supported by the intrinsic record, as well as the extrinsic evidence,
`
`confirming a POSITA’s understanding of the term “microphone” at the time of the alleged
`
`invention. See Apple Br. at 3-9 (explaining with patent citations that, e.g., the ’543 patent is about
`
`“use of these physical microphone configurations”).1
`
`Further, Jawbone’s attempt to stretch the construction of the “microphone” claim term
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`beyond its normal and supported meaning would render the claims invalid under Section 112,
`
`whereas Apple’s proposal for “microphone” presents no written description validity issues. See
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`Phillips, 415 F.3d at 1327 (instructing a claim “should be construed to preserve its validity”).
`
`Specifically, Jawbone’s proposed construction presents a Section 112 validity problem because
`
`the ’058 and ’543 patents admittedly do not provide written description support for virtual
`
`microphones. See Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1480 (Fed. Cir. 1998)
`
`(holding a claim “may be no broader than the supporting disclosure”). The Federal Circuit has
`
`consistently rejected claim construction proposals that are not supported by the patent
`
`specification. See Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC, 824 F.3d 999, 1004
`
`(Fed. Cir. 2016) (“Because the specification makes no mention of wireless communications,
`
`construing the instant claims to encompass that subject matter would likely render the claims
`
`invalid for lack of written description.”). Following the Federal Circuit’s guidance, Jawbone’s
`
`proposed construction should be rejected in favor of Apple’s.
`
`The parties’ dispute in this case is similar to the issue presented in the Federal Circuit’s
`
`Ruckus Wireless case, where a patent owner similarly sought a broad claim construction that was
`
`unsupported by the patent specifications. Ruckus Wireless, 824 F.3d at 1003 (asserting the term
`
`
`1 All emphasis added unless otherwise stated.
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`2
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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 7 of 27
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`“communication path” encompassed wired and wireless communications). That patent owner
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`(like Jawbone here) could not identify any intrinsic evidence suggesting the “patents might evoke
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`wireless communication in the mind of a skilled artisan,” and so the court had “no reason to believe
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`that the purpose of the patents would have implicated wireless communications within the meaning
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`of ‘communications path.’” Id. at 1004. Accordingly, the court found that “construing the instant
`
`claims to encompass that subject matter would likely render the claims invalid for lack of written
`
`description.” Id. On that basis, the Federal Circuit rejected the patent owner’s broad proposal and
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`restricted the construction of the term “communication path” in the context of those claims to
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`wired communications, as proposed by defendant. Id.
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`Following Ruckus Wireless, this Court should similarly reject Jawbone’s broad proposal
`
`and construe the “microphone” term in the context of the ’058 and ’543 patents to mean just a
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`“physical microphone.” Not surprisingly, Jawbone cannot identify any intrinsic evidence to
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`support a broader construction of the “microphone” term to also include a “virtual microphone.”
`
`This is because the ’058 and ’543 patent specifications describe only physical microphones and
`
`their physical orientation relative to a user’s head. See Apple Br. at 5-7; ’543 patent at 4:28-32,
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`2:17-20, 6:51-53 (“configurations described herein have been constructed using inexpensive off-
`
`the-shelf microphones”); ’058 patent at 4:58-63, 7:52-57 (describing placement of microphones
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`“in a linear array with the mouth”). As a result, Jawbone’s brief cites only the ’072 patent, but that
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`patent is not indicative of how a POSITA would have understood “microphone” at the relevant
`
`time because it was filed six years after the ’058 patent and five years after the ’543 patent.2 See
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`Jawbone Br. at 6 (relying on “the disclosure of the related ’072 Patent” as alleged support).
`
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`2 Consistently, the ’072 patent is contemporaneous with
`
`
`
`3
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`.
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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 8 of 27
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`Jawbone also concedes the ’058 and ’543 patents do not disclose “associated signal processing,”
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`which is necessary to construct a “virtual microphone.” See Jawbone Br. at 6-7 (arguing the
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`limited disclosure of directional physical microphones should not exclude virtual unidirectional
`
`microphones, although the latter “are not explicitly discussed”). The reasoning in the Ruckus
`
`Wireless case confirms that under these facts Apple’s proposed construction—which is consistent
`
`with the patent specifications—should be adopted. By contrast, construing these claims to
`
`encompass virtual microphones “would likely render the claims invalid for lack of written
`
`description.” Ruckus Wireless, 824 F.3d at 1004.
`
`Apple’s proposed construction is also consistent with the Innogenetics case cited by
`
`Jawbone. There, the Federal Circuit reversed a narrow construction because the intrinsic record
`
`supported a patent owner’s broader proposed construction. See Innogenetics, N.V. v. Abbott Labs.,
`
`512 F.3d 1363, 1370-71 (Fed. Cir. 2008) (“Given the sparse but broad statements in the
`
`specification about how the claimed invention detects hybridized complexes, . . . Abbott’s reading
`
`of the process of detection improperly narrows the claim language.”). Here, the intrinsic record
`
`does not support Jawbone’s broader construction, and Jawbone has not identified any alleged
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`intrinsic support in the ’058 and ’543 patents.
`
`Finally, the contemporaneous extrinsic evidence accords with the totality of the intrinsic
`
`evidence and provides additional support for Apple’s proposed construction. For instance,
`
`technical dictionary definitions from the relevant time period connote physical structure and
`
`describe a physical device. See, e.g., D.I. 55-12, Ex. 14 (Modern Dictionary of Electronics (7th
`
`Edition, 1999)) (“Microphone—2. A device for converting sound waves or sound-producing
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`vibrations (as from the strings of a guitar) into corresponding electrical impulses.”). Jawbone
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`offers no alternative or contradictory extrinsic evidence.
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`
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`4
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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 9 of 27
`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 9 of 27
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`Apple’s proposed construction of “microphone” is how a POSITA would understandthat
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`term at the time ofthe claimed inventions;it is entirely consistent with the intrinsic record, and the
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`contemporaneous extrinsic evidence. By contrast, Jawbone’s proposalis legally wrong becauseit
`
`advances an infrigement-driven construction that would result in invalidity of the claims. See
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`CarmanIndus., Inc. v. Wahl, 724 F.2d 932, 937 (Fed. Cir. 1983) (“If such a construction would
`
`result in invalidity of the claims, the appropriate legal conclusion is one of noninfrigement, not
`
`invalidity.”). Apple requests this Court adopt its proposed construction, which represents the
`
`correct plain and ordinary meaning of the “microphone”term.
`
`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 Apple)
`
`
`
`JAWBONE
`Plain and ordinary meaning; no
`construction necessa
`
`Indefinite.
`
`Asdiscussed in Apple’s opening brief, claim 1 of the ’058 patent is indefinite for two
`
`independent reasons: (1) the term “the acoustic signals” lacks an antecedent basis; and (2) it is
`
`unclear whatthe terms “the one receiver” and “the two receivers” mean in the context of claim 1.
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`In responseto the first argument, Jawbone nowasserts that the term “the acoustic signals”
`
`is not indefinite because the antecedent basis is provided in the preamble. Jawbone Br. at 10. In
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`so doing, Jawbone appears to concede that, absent a limiting preamble, the reference to “the
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`acoustic signals” would lack an antecedent basis. See id.; Brown Decl. § 77 (“A person of skill in
`
`the art would understand ‘the acoustic signals’ to refer to the acoustic signals recited in the
`
`preamble.”); see also Eli Lilly v. Teva Pharm. Int’l GmbH, 8 F.4th 1331, 1343 (Fed. Cir. 2021)
`
`(confirming preambleis limiting where “preamble .
`
`.
`
`. provide[d] antecedent basis for at least one
`
`later claim term”). Yet Jawbone has never actually asserted that the preamble és limiting—notin
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`

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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 10 of 27
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`its responsive brief and not during the parties’ exchanging of terms and proposed constructions.
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`See Jawbone Br. at 10. If the preamble is not limiting, then claim 1 is indefinite.
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`Additionally, uncertainty surrounding the terms “one receiver” and “two receivers” renders
`
`claim 1 indefinite. Jawbone’s argument that “receiver” must be understood to mean
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`“microphone,” Jawbone Br. at 11-12, is not actually supported by the specification or the claim
`
`language. First, the specification teaches “the receiver” can be “human or machine.” ’058 patent
`
`at 1:26-33; Google Br. at 11. There is no other limitation of the term “receiver” elsewhere in the
`
`patent. Jawbone’s unsupported limitation on the “receiver” term does not address the
`
`specification’s broad teaching. Accordingly, a POSITA would not have understood the term
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`“receiver” in claim 1 to be limited to a microphone. D.I. 55-16 (Reader Decl.) ¶¶ 41, 42.
`
`Jawbone’s construction also conflicts with the claim language. For example, Jawbone
`
`argues that the “microphone[s]” are the only elements recited as receiving acoustic signals.
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`However, the voicing sensors “receive” signals, and the processor is “coupled among the
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`microphones and the voicing sensor”; therefore, the processor may receive whatever the
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`microphone and voicing sensor receive. ’058 patent at 11:11-12, 11:15-16; D.I 55-16 (Reader
`
`Decl.) ¶ 41. Jawbone also argues that the number of microphones and the number of receivers are
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`the same in the claim, but this is also incorrect. The patent claims “at least two microphones” and
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`only claims exactly “two receivers.” Compare ’058 patent at 11:11 with id. at 11:25.
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`At bottom, Jawbone’s argument boils down to the notion that the “receiver” terms in claim
`
`1 could be replaced with the word “microphone” without altering the meaning of the claim. But
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`principles of claim construction require that each word in a claim must have its own meaning. See
`
`e.g., Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1340 n.3 (Fed. Cir. 2006)
`
`(“[T]he use of two terms in a claim requires that they connote different meanings[.]”) (emphasis
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`
`
`6
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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 11 of 27
`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 11 of 27
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`in original); Neville v. Found. Constructors, Inc., 972 F.3d 1350, 1357 (Fed. Cir. 2020) (rejecting
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`proposed construction where“there [was] no meaningful difference” between two different terms).
`
`Accordingly, Jawbone cannot save the claim by redrafting it
`
`to equate “receiver” with
`
`“microphone.” Indeed, the Federal Circuit has “repeatedly and consistently recognized that courts
`
`may not redraft claims, whether to make them operable or to sustain their validity.” ChefAm., Inc.
`
`v. Lamb-Weston, Inc., 358 F.3d 1371, 1374 (Fed. Cir. 2004); see also Allen Engr. Corp. v. Bartell
`
`Indus., Inc., 299 F.3d 1336, 1349 (Fed. Cir. 2002) (“It is not our function to rewrite claims to
`
`preserve their validity.”). Claim 1 of the ’058 patent is indefinite.
`
`Cc.
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`“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)
`
`JAWBONE|APPLE “a mathematical expression that specifies the relationship|Plain and ordinary meaning
`
`between an output signal and an input signal”
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`Jawbone’s arguments in favor of its proposed construction directly contradict
`
`the
`
`specification and, therefore, should not be adopted. As an initial matter, Jawbone’s proposed
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`construction requires a transfer function to include “an output signal and an input signal.”
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`However,
`
`this construction contradicts the specification because certain transfer functions
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`disclosed in the specifications are calculated when “a signal is not being generated.” See, e.g.,
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`°091 patent at 4:28-46; ’080 patent at 5:19-38. As Jawbone concedes, the H(z) transfer function
`
`in the 091 patent is “generated whenthe signal is absent.” JawboneBr.at 14.
`
`Jawbone also points to the ’091 patent prosecution history to support
`
`its proposed
`
`construction, see Jawbone Br.at 13, but the applicant’s explanation of transfer functions in the
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`prosecution history does not comport with the ’091 patent’s use of the term transfer function in all
`
`embodiments in the specification. Specifically, the applicant asserted that “[i]n order to generate
`
`a transfer function, two signals (an mput and output) are needed.” D.I. 63-4, Ex. B to JawboneBr.
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`

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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 12 of 27
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`(’091 FH, 7/23/2007 Response to Office Action) at 13. Yet, as discussed in Apple’s opening brief,
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`the ’091 patent describes “transfer functions” that are generated when a signal is not being
`
`generated and the embodiments do not always utilize an “output signal and an input signal” in
`
`calculating “transfer functions.” For instance, the specification discloses using a ratio of
`
`microphone input signals—not any “output signal”—to calculate certain transfer functions. See
`
`e.g., ’091 patent at 5:1-8. And claim 2 of the ’091 patent requires only one input signal and no
`
`output signal. ’091 patent at cl.2 (“generating one transfer function . . . to be representative of a
`
`ratio of energy of the acoustic signal received”). “[W]hen the prosecution history appears in
`
`conflict with the specification, any ambiguity must be resolved in favor of the specification.”
`
`Lydall Thermal/Acoustical, Inc. v. Federal-Mogul Corp., 344 Fed. Appx. 607, 614 (Fed. Cir. 2009)
`
`(citing Biogen, Inc. v. Berlex Labs., Inc., 318 F.3d 1132, 1140 (Fed. Cir. 2003). Thus, contrary to
`
`the applicant’s statement in during prosecution, an input and output are not “needed.”
`
`Jawbone also argues that, where transfer functions are “redefined” to be 1 (or “unity”), that
`
`is a “special case” that comports with Jawbone’s proposed construction. Jawbone Br. at 15. But,
`
`by admitting that the specification contemplates a “special case” of the transfer function being
`
`“redefined” as the constant “1,” that special case conflicts with Jawbone’s proposed construction
`
`requiring a mathematical relationship between an input and output signal; once the transfer
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`function is “redefined” it is no longer reflective of the physical reality, meaning it is divorced from
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`any input or output signal. The specification acknowledges this, explaining that regardless of what
`
`the actual transfer function is, everything is normalized to “assume” that certain transfer functions
`
`are 1. ’091 patent at 3:51-59. Jawbone’s proposed construction should be rejected as inconsistent
`
`with the embodiments. “There is a strong presumption against a claim construction that excludes
`
`
`
`8
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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 13 of 27
`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 13 of 27
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`a disclosed embodiment.” Jmmunex Corp. v. Sanofi-Aventis U.S., LLC, 977 F.3d 1212, 1220 (Fed.
`
`Cir. 2020) (citations omitted).
`
`Additionally, “transfer function”is recited in certain claims to be “representative of a ratio
`
`of energy.” °091 patent at cls. 1, 2, and 11. “Energy”is not the same as a “signal”; therefore a
`
`“ratio ofenergy”is not the sameas “the relationship between an output signal and an inputsignal.”
`
`Jawbone vaguely asserts that a transfer function “can be calculated using [a ratio of energy],” but
`
`fails to explain how that is true when “energy”is not the same as a “signal.” See Jawbone Br. at
`
`15-16. Notably, energyis defined in the specification as the “sum[] [of] the square ofthe amplitude
`
`over time.” ’091 patent at 11:13-24. Jawbone has not explained howaratio ofenergiesrelates an
`
`output signal to an inputsignal.
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`In sum, Jawbone’s proposed construction of “transfer function” should be rejected as it
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`conflicts with the specifications and the claim language.
`
`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 Apple)
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`JAWBONE|APPLE
`No construction necessary
`except for “transfer function|s]”
`Indefinite
`
`Claim 2 is indefinite because the term “generating one transfer function of the at least two
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`transfer functions . .. when the VAD indicatesthat user voiceactivity is presen?”has no antecedent
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`basis. Jawbone contends the antecedent basis is provided by claim 1, despite the fact that claim 1
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`recites “generating at least two transfer functions .
`
`.
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`. when the VAD indicates that user voice
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`activity is absent.” JawboneBr. at 16. But this ignores basic logic—when voiceactivity is absent
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`it cannot also be present. Jawboneattempts to get around the indefiniteness issue by arguing that
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`in claim 2, one of the transfer functions recited in claim 1 “changes” or “regenerat[es]” at a
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`“separate time” after voice activity goes from being absent to being present. Jawbone Br. at 16-
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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 14 of 27
`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 14 of 27
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`17. But if one of the transfer functions generates once voice activity is present (as required by
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`claim 2), it cannot be one claim 1’s “at least two transfer functions,” which are generated “when
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`the VAD indicates that user voicing activity is absent.” Furthermore, there is no support in the
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`claim languageorthe specification for changing or regenerating a transfer function.* There is also
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`no support in the specification for removing acoustic noise using transfer functions generated
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`solely when voicing activity is absent. Jawbone cannot avoid indefiniteness by redrafting claims.
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`ChefAm. Inc. v. Lamb-Weston, Inc., 358 F.3d 1371, 1374 (Fed. Cir. 2004) (“[C]Jourts may not
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`redraft claims, whether to make them operable or to sustain their validity.”).
`
`E.
`
`“virtual microphone array”(’072 patent, claim 1) (proposed by Apple)
`
`JAWBONEpoAPPLE
`Plain and ordinary meaning.
`“two or more virtual microphones used together, each virtual
`Alternatively: “group oftwo|microphoneis constructed using two or more physical
`or more virtual microphones”|omnidirectional microphonesand associated signal
`processing, wherein at least one physical omnidirectional
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`microphone is commonto all of the virtual microphones”
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`Jawbone’s arguments in favor of its proposed construction of “virtual microphone array”
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`ignore the ’072 patent specification and, therefore, should be rejected. First, Jawbone’s proposed
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`alternative construction of “two or more virtual microphones” impermissibly extends the scope of
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`the claims to reach devices where signals from one or more virtual microphones are used for a
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`purpose other than noise cancellation.
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`In contrast, Apple’s construction requires that the virtual
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`microphones are “used together,” reflecting the specification’s disclosure that each virtual
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`microphonecontributes a signal to form the output signals that include less acoustic noise than the
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`received acoustic signals. The specification teaches using virtual microphones together by
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`combining signals from each virtual microphone to generate denoised output signals. See ’072
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`3 Jawbonecites to the ’091 specification at 4:52-5:12 in support of its argument, see Jawbone Br.
`at 17, but that section does not involve any changing or regeneration of an existing transfer
`function.
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`10
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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 15 of 27
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`patent at Fig. 15 at 1512 (“Generate denoised output signals by combining signals output from the
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`first virtual microphone and the second virtual microphone.”); 14:19-23. Apple’s construction
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`helps the jury understand the role of each virtual microphone in the claimed invention.
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`The next portion of Apple’s construction—“each virtual microphone is constructed using
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`two or more physical omnidirectional microphones and associated signal processing”—merely
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`reflects the parties’ agreed construction for “virtual microphone.” Jawbone Br. at 17-18. Jawbone
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`unreasonably faults the construction as “redundant” when the term “virtual microphone array”
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`must necessarily capture the agreed construction for “virtual microphone” used therein.
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`The final portion of Apple’s construction—that a virtual microphone array have “at least
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`one physical omnidirectional microphone [that] is common to all of the virtual microphones”—is
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`supported by every embodiment in the ’072 patent. Tellingly, Jawbone does not dispute that every
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`figure and description of a virtual microphone array in the ’072 patent teaches one physical
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`microphone shared across all virtual microphones. ’072 patent at Figs. 5, 9, 10, 15; 13:38-53,
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`14:1-4, 21:33-37, 21:47-49, 22:16-35, 23:23-25, 24:60-62, 25:5-7, 26:25-27, 27:45-50. Jawbone
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`cites no authority for its specious argument that the specification must expressly define the
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`requirement of a shared physical microphone. Nor does Jawbone distinguish Apple’s cited Federal
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`Circuit authority that “because the specification, including the figures, consistently and exclusively
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`shows” the virtual microphone array being formed from at least one physical microphone common
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`to all, “virtual microphone array” should be construed accordingly. See Hologic, Inc. v. SenoRx,
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`Inc., 639 F.3d 1329, 1333-38 (Fed. Cir. 2011) (finding district court erred in construing claim too
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`broadly by not limiting “asymmetrically located” radiation source to be asymmetric relative to a
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`longitudinal axis as shown in every figure of every embodiment). Jawbone’s citation to
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`Superguide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) does not change
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`
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`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 16 of 27
`Case 6:21-cv-00984-ADA Document 70 Filed 07/06/22 Page 16 of 27
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`this conclusion. Jawbone Br. at 18. The principle that “a particular embodiment” may not be
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`read into a claim does not apply here where every e