Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 1 of 23
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`JAWBONE INNOVATIONS, LLC,
`
`
`Plaintiff,
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`
`
`v.
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`
`APPLE INC.,
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`§
`
`§
`Case No. 6:21-cv-00984-ADA
`§
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`JURY TRIAL DEMANDED
`§
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`§
`§
`§
`§
`§
`§
`§
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`
`
`
`
`
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`Defendant.
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`JAWBONE INNOVATIONS, LLC’S
`SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 2 of 23
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`TABLE OF CONTENTS
`
`Page(s)
`
`I.
`
`II.
`
`INTRODUCTION .............................................................................................................. 1
`
`DISPUTED TERMS ........................................................................................................... 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`I.
`
`J.
`
`“microphone” (’058 Patent, claim 1; ’543 Patent, claims 1, 8, 19, 20, 20,
`26) (proposed by Apple) ......................................................................................... 1
`
`“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) ..................................................................... 4
`
`“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) ............................ 6
`
`“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) ................................................................................. 8
`
`“virtual microphone array” (’072 Patent, claim 1) (proposed by Apple) ............... 9
`
`“acoustic noise” (proposed by Jawbone) and “less acoustic noise”
`(proposed by Apple) (’072 Patent, claims 1, 2, 9) ................................................ 10
`
`“approximately similar” / “approximately, dissimilar” / “approximately
`dissimilar” (’213 Patent, claims 2, 37, 38; ’611 Patent, claim 3, 4, 29)
`(proposed by Apple) ............................................................................................. 11
`
`“a relationship for speech” (’213 Patent claims 14, 42; ’611 Patent claim
`1) (proposed by Apple) ......................................................................................... 13
`
`“. . . substantially similar/dissimilar. . .” (’691 Patent, claims 1, 23, 27,
`28, 29, 41; ’080 Patent, claims 1, 14; ’357 Patent, claims 1, 15)
`(proposed by Apple) ............................................................................................. 15
`
`“apply a varying linear transfer function between the first and second
`microphone signals” (’357 Patent, claims 1, 15) (proposed by Apple) ................ 16
`
`III.
`
`CONCLUSION ................................................................................................................. 17
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`
`
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`i
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 3 of 23
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Bicon, Inc. v. Straumann Co.,
`441 F.3d 945 (Fed. Cir. 2006)....................................................................................................9
`
`Cochlear Bone Anchored Sols. AV v. Oticon Med. AB,
`958 F.3d 1348 (Fed. Cir. 2020)..................................................................................................4
`
`Cohesive Techs., Inc. v. Waters Corp.,
`543 F.3d 1351 (Fed. Cir. 2008)..........................................................................................12, 15
`
`Comark Commc’ns, Inc. v. Harris Corp.,
`156 F.3d 1182 (Fed. Cir. 1998)..................................................................................................2
`
`Ferring B.V. v. Watson Labs., Inc.-(FL),
`No. 3:11-cv-00481-RCJ-VPC, 2013 WL 499158 (D. Nev. Feb. 6, 2013), aff’d,
`764 F.3d 1382 (Fed. Cir. 2014)................................................................................................11
`
`GPNE Corp. v. Apple Inc.,
`108 F. Supp. 3d 839 (N.D. Cal. 2015) .....................................................................................14
`
`Innogenetics, N.V. v. Abbott Labs.,
`512 F.3d 1363 (Fed. Cir. 2008)..................................................................................................2
`
`Jawbone Innovations LLC v. Samsung Electronics Co.,
`No. 2:21-cv-00186-JRG-RSP, Dkt. 73 (E.D. Tex.) .................................................................17
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) ...................................................................................................................5
`
`Neodron, Ltd. v. Fujitsu Am., Inc.,
`No. 2:20-cv-00239-JRG-RSP, 2021 WL 2646214 (E.D. Tex. June 28, 2021) .......................13
`
`Par Pharm., Inc. v. Hospira, Inc.,
`835 Fed. App’x 578 (Fed. Cir. 2020) .................................................................................12, 15
`
`Rexnord Corp. v. Laitram Corp.,
`274 F.3d 1336 (Fed. Cir. 2001)..................................................................................................3
`
`RFCyber Corp. v. Google LLC,
`No. 2:20-CV-274-JRG, 2021 WL 5357465 (E.D. Tex. Nov. 17, 2021)....................................5
`
`Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC,
`824 F.3d 999 (Fed. Cir. 2016)....................................................................................................2
`
`ii
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`

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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 4 of 23
`
`TomTom, Inc. v. Adolph,
`790 F.3d 1315 (Fed. Cir. 2015)..................................................................................................5
`
`U.S. Well Servs., Inc. v. Halliburton Co.,
`No. 6:21-cv-00367-ADA, 2022 WL 819548 (W.D. Tex., Jan. 17, 2022) ...............................12
`
`Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp.,
`587 F.3d 1339 (Fed. Cir. 2009)................................................................................................14
`
`
`
`
`iii
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`

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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 5 of 23
`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 5 of 23
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`Pursuant to the Court’s Scheduling Order (Dkt. 23), Plaintiff Jawbone Innovations, LLC
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`(“Jawbone”) hereby submits its Sur-Reply Claim Construction Brief in response to Defendant
`
`Apple Inc. (“Apple”)’s Opening Brief (Dkt. 54, “Open.”). The asserted patents are U.S. Patent
`
`Nos. 8,019,091 (the “091 Patent”), 7,246,058 (the “’058 Patent”), 8,280,072 (the “’072 Patent”),
`
`8,321,213 (the “’213 Patent”), 8,326,611 (the “’611 Patent”), 10,779,080 (the “’080 Patent’),
`
`11,122,357 (the “’357 Patent’), 8,467,543 (the “’543 Patent”), and 8,503,691 (the “’691 Patent”)
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`(together, the “Asserted Patents”).
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`I.
`
`INTRODUCTION
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`Apple’s Reply (Dkt. 67, “Reply”) provides no justification for its efforts to either rewrite
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`or declare indefinite the easily understandable claims of the Asserted Patents. As explained in
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`Jawbone’s Responsive Brief (Dkt. 62, “Resp.”), Apple’s constructions seek to import limitations
`
`from the specification into the claims, and its indefiniteness positions lack any merit. The Court
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`should reject Apple’s indefiniteness arguments and unsupported constructions and adopt
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`Jawbone’s proposals.
`
`IL.
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`DISPUTED TERMS
`
`A.
`
`“microphone” (’058 Patent, claim 1; ’543 Patent, claims1, 8, 19, 20, 20, 26)
`(proposed by Apple)
`
`Apple’s Construction “microphone”
`
`Plain and ordinary meaning
`whichis “physical
`microphone”
`
`Jawbone’s Construction
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`Plain and ordinary meaning; no
`construction necessary
`
`The dispute turns on whether “microphone” should be limited to only a “physical
`
`microphone”orif it can include virtual or beamformed microphones. Apple presents no evidence
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`that “microphone” was understood by a POSITAas ofthe filing date of the Asserted Patents as
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`encompassing only physical microphones. Rather, Apple attempts to limit “microphone” to one
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`

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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 6 of 23
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`type of microphone disclosed in the embodiments without evidence of lexicography or disclaimer.
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`The Court should reject Apple’s attempt to narrow the claims to the embodiments.
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`The patents use the term “microphone” expansively and do not limit the microphone to a
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`physical microphone. Moreover, as Apple noted in its opening brief, in the other Asserted Patents,
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`when there was an intention to limit a microphone to a physical or acoustic microphone, the claim
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`recited such limitation specifically. (Open. at 8 (noting the limitation “acoustic microphone” in the
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`contemporaneously-filed ’091 Patent).) Indeed, there is no dispute that: i) the patent specifications
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`do not specifically call out virtual or beamformed microphones; and ii) the patent specifications
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`do not specifically exclude such virtual or beamformed microphones. (Reply at 1-5.) The Court
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`therefore must decide whether the term should be limited to disclosed embodiments. It should not.
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`Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (“[E]mbodiments
`
`and examples appearing in the specification will not generally be read into the claims.”);
`
`Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1370 (Fed. Cir. 2008) (“[A]s is well established,
`
`an applicant is not required to describe in the specification every conceivable and possible future
`
`embodiment of his invention.”).
`
`Apple cites Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC, 824 F.3d 999 (Fed.
`
`Cir. 2016). (Reply at 2-3.) There, the Federal Circuit held that “communications path” should be
`
`limited to wired communications, and not include wireless communications. Id. at 1003-04. Key
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`to the Federal Circuit’s determination was that the expressed embodiments at issue “do not include
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`[wireless communications] and they discourage that understanding.” Id. at 1003. Here, while the
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`embodiments do not expressly include virtual microphones, they do not discourage their use.
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`(Resp. at 7-8.)
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`2
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 7 of 23
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`Instead, this case is similar to Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1345 (Fed.
`
`Cir. 2001). There, the Federal Circuit reversed a district court claim construction that limited a
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`structure to “two-piece” embodiments. Id. Based on the broad claim language, the lack of any
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`limiting statements in the specification, and the inventor’s note that the invention was not limited
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`to the express embodiments, the Federal Circuit held that the claim term could encompass both
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`two-piece and integral constructions. Id. at 1344-45. Here, the situation is similar: the claims
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`broadly recite “microphones” without restriction, there are no limiting statements in the
`
`specification, and the inventor noted that the invention was not limited to the embodiments. (See,
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`e.g., Ex. 1, ’058 Patent at 10:41-47 (“The above description of illustrated embodiments of the
`
`invention is not intended to be exhaustive or to limit the invention to the precise form disclosed.”);
`
`’543 Patent at 23:31-37 (same).)
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`The remainder of Apple’s argument are rehashes of its arguments from its opening brief.
`
`(Reply at 3-5.) As explained in Jawbone’s Brief, the spatial orientations described in the ’543
`
`Patent are equally applicable to virtual microphones. (Resp. at 7-8.) In other words, a virtual
`
`microphone can be aimed in a direction to meet the claims and orientations described in the
`
`specifications. (Id.) Similarly,
`
`
`
`
`
` Indeed, while Apple mentions that the ’072 Patent, which claims virtual
`
`microphones formed from physical microphone signals, was filed later than the ’058 (Reply at 3
`
`n.2), it ignores that the ’091 Patent was filed in the same timeframe as the ’058 and ’543 Patents,
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`and there specifically claims “acoustic” (i.e., physical) microphones. (See Ex. 2, ’091 Patent, cl.
`
`1.)
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`3
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 8 of 23
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`Apple finally implies that, if the Court does not construe “microphone” to exclude virtual
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`microphones, the claims will be invalid for lack of written description. (Reply at 3-5.) Apple has
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`not raised any written description challenge based on this term in its contentions, nor doesit
`
`provide any evidence, through an expert or otherwise, that a POSITA would not have understood
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`that the inventor was in possession of an invention that was not limited to using physical
`
`microphones.
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`Accordingly, the Court should afford “microphone”its plain and ordinary meaning.
`
`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’s Construction
`
`Apple’s Construction
`
`“the acoustic signals” /|Plain and ordinary meaning; no Indefinite
`
`
`“the acoustic signal
`construction necessary
`received at the one
`receiver”/ “the acoustic
`signals received at each
`
`of the two receivers”
`
`Apple fails to show that these terms are indefinite. Indeed, a POSITA would have no
`
`difficulty interpreting them. (Resp. at 9-12.)
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`First, there can be no dispute that “acoustic signals” are recited in the preamble of claim 1.
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`Thus, to the extent antecedentbasis is required, it is found in the preamble. Apple instead argues
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`that “acoustic signals” must be indefinite because no party in this case has argued that the preamble
`
`is limiting. (Reply at 5-6.) But Apple presents no authority for its assumption that a litigant must
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`independently contend that a preamble is limiting in orderto rely on a preamble for antecedent
`
`basis—because no such authority exists. Indeed, “A conclusion that some preamble language is
`
`limiting does not imply that other preamble language, or the entire preamble,is limiting.” Cochlear
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`Bone Anchored Sols. AV v. Oticon Med. AB, 958 F.3d 1348, 1355 (Fed. Cir. 2020); see also
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`

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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 9 of 23
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`TomTom, Inc. v. Adolph, 790 F.3d 1315, 1323-24 (Fed. Cir. 2015) (holding that even if a portion
`
`of the preamble provides antecedent basis, the remainder need not be limiting); RFCyber Corp. v.
`
`Google LLC, No. 2:20-CV-274-JRG, 2021 WL 5357465, at *22 (E.D. Tex. Nov. 17, 2021)
`
`(holding preamble not limiting even if it provided antecedent basis). Apple provides no evidence
`
`or argument that the claim “fail[s] to inform, with reasonable certainty, those skilled in the art
`
`about the scope of the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 898-
`
`899 (2014).
`
`Secondly, the terms “the two receivers” and “the one receiver” are not indefinite because
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`a person of skill in the art would understand that they refer to the “at least two microphones” and
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`“one of the at least two microphones,” respectively. (Resp. at 16.)
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`Apple also argues that the specification’s use of the term “receiver,” which is unrelated to
`
`receiving acoustic signals, would confuse a person of skill in the art. (Reply at 6 (citing Ex. 1, ’058
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`Patent, 1:26-33).) But that section relates to a person or machine receiving “speech from a human
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`speaker [that] is captured and transmitted to a receiver in a different location.” (Id.) This section is
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`not discussing components of the claimed system; later, however, the specification describes
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`“microphones” as receiving acoustic signals. (E.g., id., Abstract (“acoustic signals received at each
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`of the two microphones”), 5:2-3 (“acoustic signal from microphone 1”), 7:52-57. See also Dkt. 63-
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`1, Brown Decl., ¶¶ 80-83.) The specification also explains that the difference parameters (which
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`are recited in the same limitation as the two receivers) are generated between the acoustic signals
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`received at those same microphones. (Ex. 1, ’058 Patent, Abstract, 7:52-57; Resp. at 12.) Apple
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`does not even address this argument.
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`Apple finally and irrelevantly argues that the Court should not redraft the claim terms.
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`(Reply at 6-7.) But in construing the claims, the Court must determine how a person of skill in the
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`5
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 10 of 23
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`art would understand those claims. As discussed above, a person of skill would understand the
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`“one receiver” and “two receivers” as referring to “the one of the two microphones” and “the at
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`least two microphones,” respectively.
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`Accordingly, the Court should find that the terms are not indefinite. Alternatively, should
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`the Court determine that construction of “one receiver” and “two receivers” is warranted, it should
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`construe them as “the one of the two microphones” and “the at least two microphones,”
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`respectively.
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`S:
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`“transfer function” (’091 Patent, claims 1, 2, 4,5, 9, 11, 15; °357 Patent,
`claims1, 15; ’080 Patent, claims 1, 14) (proposed by Jawbone)
`
`Jawbone’s Construction
`
`Apple’s Construction
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`signal”
`
`“transfer function”
`
`“a mathematical expression that
`specifies the relationship between
`an output signal and an input
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`Plain and ordinary meaning
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`Jawbone’s brief set out uncontradicted dictionary definitions and intrinsic evidence to
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`explain that “transfer function” means “a mathematical expression that specifies the relationship
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`between an output signal and an inputsignal.” (Resp. at 13-16.) Apple attempts to wave away that
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`evidence by conflating a “transfer function” with generating a transfer function. (Reply at 7-9.) As
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`Jawbone explained, a transfer function “expresses the relationship between input and output
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`signals.” (Resp. at 13, quoting Ex. A.) Even if a transfer function is generated or calculated while
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`a signal is not present, that transfer function can still express or specify the relationship between
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`input and output signals. (/d. at 15-16.)
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`For example, Apple argues that the specification’s use of transfer functions set to 1
`
`contradicts this definition (Reply at 8-9.) But as Jawbone explained, that transfer function still
`
`expressesa relationship between the two signals—namelythat they are the same. (Resp. at 15-16.)
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 11 of 23
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`Apple further repeats its argument that other embodiments, which generate a transfer function
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`based on microphone inputs, contradict the plain meaning of the term. (Reply at 7-8.) Again,
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`Jawbone addressed this argument in its responsive brief; in short, the “the ratio of the microphone
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`inputs (which are actually the outputs of the circuit for which that transfer function is generated)
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`is simply used to calculate the transfer function under specific conditions where the signal is 0.
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`(Resp. at 12-15.)
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`Apple further argues that its interpretation of the specification is right and that the
`
`prosecution history is wrong. (Open. at 8.) But, as explained above and in Jawbone’s responsive
`
`brief, the specification supports Jawbone’s construction. (Resp. at 7-8.)
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`Finally, Apple argues, citing no evidence, that a transfer function “representative of a ratio
`
`of energy” conflicts with Jawbone’s construction. (Reply at 9.) Apple does not explain how such
`
`a ratio is incompatible with Jawbone’s construction, it merely asserts that a ratio of energy is not
`
`the relationship between an output sign and an input signal. (Id.) Indeed, the ’091 Patent explains
`
`that “the actual relations between the signal, noise, and microphones are simply ratios.” (Ex. 2,
`
`’091 Patent, 3:57-58.) And of course, the ratio of the energy of two signals is certainly an
`
`expression of the relationship between those two signals.
`
`
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`Jawbone’s construction comports with the specifications, file history, and extrinsic
`
`evidence. The Court should therefore adopt it.
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`7
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 12 of 23
`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 12 of 23
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`
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`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)
`
`is present”
`
`“generating one transfer|No construction necessary except|Indefinite
`function of the at least
`for “transfer function[s]”
`two transfer
`. when the
`functions .
`.
`VAD indicates that user
`voice activity
`
`Apple argues that this term is indefinite because it lacks antecedent basis and because
`
`“there is no support in the claim language or the specification for changing or regenerating a
`
`transfer function.” (Reply at 9-10.) But as Jawbone explained, this term finds antecedent basis in
`
`claim 1’s limitation “generating at least two transfer functions .
`
`.
`
`. .” (Resp. at 16.)
`
`Moreover,
`
`this term is not indefinite because the patent describes regenerating and
`
`recalculating transfer functions. (F.g., Ex. 2, 091 Patent, 8:44-46 (“The calculation of Hi(z) is
`
`accomplished every 10 milliseconds”), 4:50-51 (performing calculations adaptively).) Indeed, one
`
`of claim 1’s dependent claims explicitly requires recalculating the transfer functions. (/d., cl. 4.)
`
`AsHi(z) is recalculated every 10 milliseconds in one embodiment, it will be calculated both when
`
`voice activity is present and whenitis not.
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`Accordingly, the Court should find the term not indefinite and hold that no construction is
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`necessary other than “transfer function,” as discussed above.
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`

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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 13 of 23
`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 13 of 23
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`E.
`
`“virtual microphone array”(’072 Patent, claim 1) (proposed by Apple)
`
`
`
`Plain and ordinary meaning.
`“two or more virtual
`
`microphonesusedtogether,
`Alternatively: “group of two or
`each virtual microphoneis
`
`more virtual microphones”
`constructed using two or
`
`morephysical
`
`omnidirectional microphones
`
`and associated signal
`
`processing, wherein at least
`
`one physical omnidirectional
`
`microphoneis commonto all
`
`of the virtual microphones”
`
`
`
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`Apple’s Reply providesnojustification for adding “used together” to the term. The claim
`
`already specifies the extent to which the microphones must work together (Resp. at 17)—
`
`importing that limitation into this term via claim construction renders the explicit limitation in the
`
`claim superfluous in violation of Federal Circuit precedent. E.g., Bicon, Inc. v. Straumann Co.,
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`441 F.3d 945, 950 (Fed. Cir. 2006) (“[C]laims are interpreted with an eye toward giving effect to
`
`all terms in the claim.”). To the extent Apple’s construction adds any further requirement to use
`
`the microphonestogether, it would necessarily be importing limitations from the specification into
`
`the claim and should berejected.
`
`While the parties agree that a virtual microphoneis constructed using two or morephysical
`
`omnidirectional microphones and associated signal processing, there is no need to insert that
`
`construction into this term. Doing so would be unnecessarily redundant and make the term
`
`unwieldy. (Resp. at 18.)
`
`The parties’ chief dispute is whether the Court should import Apple’s final limitation
`
`(“wherein at least one physical omnidirectional microphone is common to all of the virtual
`
`microphones”) into claim 1. Apple freely admits that it seeks to read this limitation, which is found
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`

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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 14 of 23
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`in claims 2 and 9, into claim 1 from the disclosed embodiments of the patent. (Reply at 11-12.)
`
`But the ’072 Patent presents numerous embodiments, while many do indeed haveat least one
`
`physical microphone shared across the virtual microphone array, nothing in the patent so limits
`
`the virtual microphone array. Indeed, at least one embodiment describes only that the virtual
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`microphone array be formed by “generating a plurality of different signal combinations from the
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`plurality of microphone signals” and that the “number of physical microphones of the physical
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`microphonearrayis larger than a numberofvirtual microphonesofthe virtual microphonearray.”
`
`(Ex. 3, ’072 Patent at 23:64-24:8.) Thus, in contrast to other embodiments, there is no description
`
`that the virtual microphonearray has one physical microphone commonto all virtual microphones.
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`Apple’s construction would exclude the full scope of this embodiment and the Court should reject
`
`it.
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`Accordingly, the Court should reject Apple’s construction and give the term its plain and
`
`ordinary meaning. If the Court finds construction to be necessary, it should construe the term as
`
`“a group of two or more virtual microphones.”
`
`F.
`
`“acoustic noise” (proposed by Jawbone) and “less acoustic noise” (proposed
`by Apple) (072 Patent, claims1, 2, 9)
`
`acoustic noise”
`
`
`
`“acoustic noise” ““mwanted environmental acoustic|Plain and ordinary meaning
`noise”
`
`Jawbone’s Construction
`
`Apple’s Construction
`
`“Jess acoustic noise”
`
`“less unwanted environmental
`
`Indefinite
`
`Apple nonsensically argues that “less acoustic noise” is indefinite because the claim does
`
`not specify the “amount of less acoustic noise.” (Reply at 12.) But “less” is not a term of
`
`approximation or degree; rather, it is a term of comparison. Thus, the claim is met if the output
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`10
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 15 of 23
`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 15 of 23
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`signal includes less (by any amount) acoustic noise (e.g., environmental noise) than the input
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`signal. (Resp. at 19-20.)
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`As Jawbone explained, one of skill in the art would understand that an output signal
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`includes less acoustic noise when it more clearly represents speech portion of the signal. (/d. at
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`20.) In other words, the signal-to-noise ratio is higher. (/d.) Thus, to the extent any objective
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`mathematical criteria is required, it can be provided by calculating the signal-to-noise ratio for
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`both input and output signals and comparing the value.
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`Accordingly, the term “less acoustic noise” is not indefinite. The Court should further
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`afford “acoustic noise” its defined meaning of “unwanted environmental acoustic noise.”
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`G.
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`“approximately similar” / “approximately, dissimilar” / “approximately
`dissimilar” (’?213 Patent, claims 2, 37, 38; ’611 Patent, claim 3, 4, 29)
`(proposed by Apple)
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`dissimilar”
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`“approximately similar”|Plain and ordinary meaning; no Indefinite
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`
`/ “approximately,
`construction necessary
`dissimilar” /
`“approximately
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`Apple asks the Court to declare claims containing the commonplace terms “approximately”
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`indefinite, despite failing to cite any case holding the term indefinite. As the Federal Circuit has
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`affirmed, a jury, guided by expert testimony, “can determine what the word approximately’
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`means.” Ferring B.V. v. Watson Labs., Inc.-(FL), No. 3:11-cv-00481-RCJ-VPC, 2013 WL 499158,
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`at *9 (D. Nev. Feb. 6, 2013), aff'd, 764 F.3d 1382 (Fed. Cir. 2014). As Jawbone explained, a
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`response that is approximately similar is simply one that has a similar response pattern, without
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 16 of 23
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`needing to be identical.1 (Resp. at 22.) And an approximately dissimilar response is one that is
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`different at least in the direction of speech.2 (Id. at 23.)
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`“Approximately similar” and “approximately dissimilar” are far different from the “high
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`pressure” term this Court previously held indefinite. (Id. at 24-25.) In that case, there was no
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`benchmark to determine what sort of pressure was high or very high. (Id., citing U.S. Well Servs.,
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`Inc. v. Halliburton Co., No. 6:21-cv-00367-ADA, 2022 WL 819548, at *6 (W.D. Tex., Jan. 17,
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`2022). The case here is very different. At the outset, “approximately” is a simple term that a jury
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`can easily apply. Moreover, as Jawbone exhaustively detailed in its Responsive Brief, the patent
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`specification provides numerous examples of what “approximately similar” should be. (Resp. at
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`21-23.) Indeed, Apple faults Jawbone for not providing mathematical certainty and then also faults
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`Jawbone for citing to the patents’ description allowing errors of 10-15%. (Reply at 15 n.4.)
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`The patents’ description of an allowable range of 10-15% error further supports the terms’
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`definiteness in view of the Federal Circuit’s guidance that terms such as “about” or
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`“approximately” are not indefinite, but rather afford the claim a range of equivalents that
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`accomplish the function described in the specification. (Resp. at 23-24.) Thus it does not matter if
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`the patent describes the terms. Here, the purpose of the limitation at issue is to provide cleaned and
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`denoised speech. (Id.; see also Brown Decl., ¶ 103.) So long as the accused instrumentality perform
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`the same function or purpose, in substantially the same way with substantially the same result, it
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`meets the limitation. Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1368 (Fed. Cir. 2008).
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`Par Pharm., Inc. v. Hospira, Inc., 835 Fed. App’x 578, 584 (Fed. Cir. 2020).
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`1 To the extent mathematical precision is required, the patent explains that errors of 10-15% can
`be tolerated. (Id.)
`2 If mathematical precision is required for this element, the ratio of speech responses should be
`above 10db. (Id.)
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 17 of 23
`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 17 of 23
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`Asdescribed in Jawbone’sbrief, similarity with 10-15% error (as to noise response) and
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`dissimilarity such that the ratio of Vi/V2is at least 10db provides acceptable performance. (Resp.
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`at 22-23.) Apple’s quibble about some examples being labeled as “very similar” is relevant in
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`view of the Federal Circuit’s guidancethat the purpose ofthe limitation must be considered. Thus,
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`the terms are not indefinite.
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`Apple tries to wave away the Federal Circuit cases affirming the use of “approximately”
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`and describing the appropriate test as relating only to claimed ranges. (Reply at 15-16.) But those
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`cases were in no waylimited to ranges. Moreover, ifthose cases’ holdingsare inapplicable to these
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`patents, then the answeris simply that the jury, guided by expert testimony, can determine whether
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`two responsesare substantially similar or dissimilar. Apple provides no law stating otherwise.
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`Accordingly, the Court should reject Apple’s indefiniteness arguments and afford the terms
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`their plain and ordinary meaning. Neodron, Ltd. v. Fujitsu Am., Inc., No. 2:20-cv-00239-JRG-RSP,
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`2021 WL 2646214,at *8 (E.D. Tex. June 28, 2021).
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`H.
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`“a relationship for speech” (’?213 Patent claims 14, 42; ’611 Patent claim 1)
`(proposed by Apple)
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`Jawbone’s Construction
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`Apple’s Construction “a relationship for
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`speech”
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`Plain and ordinary meaning; no
`construction necess
`
`Indefinite
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`Apple tacitly agrees that “a relationship for speech” means, as Jawbone explained, the
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`relationship between the responses to speech (as opposed to noise) of the two microphones based
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`on factors such as the distance from the user’s mouth and other physical variables. (Resp. at 25
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`(citing Ex. 4, °213 Patent at 5:20-67).) Apple’s only apparent issue is that there are multiple
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`possible relationships for speech, and it wishes to limit the claim to one particular type. (Reply at
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`17-18.)
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`Case 6:21-cv-00984-ADA Document 74 Filed 07/18/22 Page 18 of 23
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`There is no requirement that the claim term “a relationship for speech” must specify one
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`(and only one) type of relationship. Apple cites no law in support of its arguments. (Id.) Instead, it
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`is clear that a claim’s breadth has no relation to its definiteness. E.g., Ultimax Cement Mfg. Corp.
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`v. CTS Cement Mfg. Corp., 587 F.3d 1339, 1352 (Fed. Cir. 2009) (“Merely claiming broadly does
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`not render a claim [indefinite], nor does it prevent the public from understanding the scope of the
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`patent.”); GPNE Corp. v. Apple Inc., 108 F. Supp. 3d 839, 874 (N.D. Cal. 2015) (“That GPNE’s
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`claims encompass situations involving both lesser and greater degrees of randomness goes to the
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`breadth of the claims, not their definiteness.”). GPNE is instructive; there, the defendant argued
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`that a term requiring “randomly generated information” was indefinite because there were varying
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`degrees of randomness, just as Apple argues here that multiple possible relationships render the
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`term indefinite. 108 F. Supp.3d at 873. But the Court determined that the breadth of the claim did
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`not render it indefinite; instead, “[t]hat GPNE’s claims encompass situations involving both lesser
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`and greater degrees of randomness goes to the breadth o