Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 1 of 34
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`JAWBONE INNOVATIONS, LLC,
`
`Plaintiff,
`
`
`
`v.
`
`META PLATFORMS, INC.,
`D/B/A META,
`
`Defendant.
`
`
`Case No. 6:23-cv-00158-ADA-DTG
`
`
`JURY TRIAL DEMANDED
`
`
`META’S OPENING CLAIM CONSTRUCTION BRIEF
`
`
`
`
`
`

`

`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 2 of 34
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`TABLE OF CONTENTS
`
`
`Page
`
`
`I.
`II.
`
`III.
`
`B.
`
`C.
`
`INTRODUCTION ............................................................................................................. 1
`BACKGROUND ............................................................................................................... 2
`A.
`Asserted Patents ..................................................................................................... 2
`B.
`Litigation History ................................................................................................... 3
`DISPUTED TERMS .......................................................................................................... 3
`A.
`“approximately similar”/ “approximately, dissimilar” / “approximately
`dissimilar” (’213 patent, claims 2, 37, 38; ’611 patent, claims 3, 4, 30) ............... 3
`1.
`Jawbone’s shifting proposals confirms these terms are indefinite ............. 5
`2.
`The patents provide no objective standard or boundaries for
`“approximately similar” or “approximately dissimilar” ............................ 7
`a.
`The patents use “very similar” and “very dissimilar”
`instead of “approximately similar” and “approximately
`dissimilar.” ..................................................................................... 9
`The patents’ 10 dB teachings do not refer to
`“approximately similar” or “approximately dissimilar”
`responses. ..................................................................................... 10
`The extrinsic evidence confirms these terms are indefinite ..................... 11
`3.
`“substantially similar” / “substantially dissimilar” (’691 patent, claims 1,
`23, 27, 28, 29, 41; ’080 patent, claims 1, 14; ’357 patent, claims 1, 15) ............. 12
`1.
`Jawbone’s shifting proposals only confirms these terms are
`indefinite .................................................................................................. 14
`The patents provide no objective standard or boundaries for
`“substantially similar” or “substantially dissimilar.” ............................... 14
`a.
`The patents use “very similar” and “very dissimilar”
`instead of “substantially similar” and “substantially
`dissimilar.” ................................................................................... 15
`The patents’ 10 dB teachings do not refer to “substantially
`similar” or “substantially dissimilar” responses. ......................... 17
`The extrinsic evidence confirms these terms are indefinite ..................... 17
`3.
`“the processing component” (’080 patent, claims 10, 11) ................................... 18
`1.
`The other claims confirm the element referenced is uncertain. ............... 19
`2.
`The specification discloses multiple, alternative embodiments of
`the processing component. ....................................................................... 20
`
`b.
`
`b.
`
`2.
`
`
`
`
`
`-i-
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`

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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 3 of 34
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`TABLE OF CONTENTS
`(continued)
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`Page
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`3.
`
`A POSITA does not know what “the processing component” is
`with reasonable certainty. ........................................................................ 23
`IV. OTHER DISPUTED TERMS.......................................................................................... 25
`V.
`CONCLUSION ................................................................................................................ 26
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`
`
`
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`
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`
`-ii-
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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 4 of 34
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`
`
`
`
`Cases
`
`Biosig Instruments, Inc. v. Nautilus, Inc.,
`783 F.3d 1374 (Fed. Cir. 2015)............................................................................................7, 15
`
`Bushnell Hawthorne, LLC v. Cisco Sys., Inc.,
`813 F. App’x 522 (Fed. Cir. 2020) ....................................................................................24, 25
`
`CA, Inc. v. Netflix, Inc.,
`No. 2:21-CV-00080-JRG, 2021 WL 5323413 (E.D. Tex. Nov. 16, 2021)..........................9, 10
`
`CardWare Inc. v. Samsung Elec. Co. Ltd.,
`Case No. 2:22-cv-00141-JRG-RSP, 2023 WL 5434763 (E.D. Tex. Aug. 23,
`2023) ........................................................................................................................................24
`
`Geodynamics, Inc. v. Dynaenergetics US, Inc.,
`No. 2:15-CV-1546-RSP, 2016 WL 6217181 (E.D. Tex. Oct. 25, 2016) ...........................15, 16
`
`Halliburton Energy Servs., Inc. v. M-I LLC,
`514 F.3d 1244 (Fed. Cir. 2008)................................................................................................24
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014)..................................................................................................7
`
`Jawbone Innovations, LLC v. Apple Inc.,
`6:21-cv-00984 (W.D. Tex.) .......................................................................................................3
`
`Jawbone Innovations, LLC v. Google, LLC,
`6:21-cv-00985 (W.D. Tex.) .......................................................................................................3
`
`Jawbone v. Google,
`2:21-cv-00985 (W.D.Tex. Sep. 23, 2021) ...............................................................................26
`
`Jawbone v. Samsung,
`2:21-cv-00186 (E.D.Tex. May 27, 2021) ................................................................................25
`
`KLA-Tencor Corp. v. Xitronix Corp.,
`No. A-08-CA-723-SS, 2011 WL 318123 (W.D. Tex. Jan. 31, 2011) ...................................7, 8
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .................................................................................................................24
`
`
`
`iii
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`

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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 5 of 34
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`
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`Regeneron Pharms., Inc. v. Merus B.V.,
`C.A. No. 14-1650 (KBF), 2014 WL 6611510 (S.D.N.Y. Nov. 21, 2014) ...........................6, 14
`
`Seattle Box Co. v. Indus. Crate & Packing, Inc.,
`731 F.2d 818 (Fed. Cir. 1984)............................................................................................11, 17
`
`SIMO Holdings, Inc. v. H.K. uCloudlink Network Tech., Ltd.,
`983 F.3d 1367 (Fed. Cir. 2021)................................................................................................18
`
`U.S. Well Servs. Inc. v. Halliburton Co.,
`No. 6:21-cv-00367, 2022 WL 819548 (W.D. Tex. Jan. 17, 2022) ............................................8
`
`Vaxcel Int’l Co., Ltd. v. HeathCo LLC,
`C.A. No. 20-224-LPS, 2022 WL 611067 (D. Del. Feb. 3, 2022) ........................................7, 14
`
`In re Walter,
`698 F. App’x 1022 (Fed. Cir. 2017) ....................................................................................6, 14
`
`
`
`iv
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`

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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 6 of 34
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`Exhibit
`1
`
`2
`
`3
`
`4
`
`5
`6
`
`TABLE OF EXHIBITS
`
`
`Description
`Claim Construction Order in Jawbone Innovations LLC v. Google LLC, No. 6:21-
`cv-00985-ADA, Dkt. 88 (Oct. 14, 2022)
`Jawbone’s Responsive Claim Construction Brief in Jawbone Innovations LLC v.
`Google LLC, No. 6:21-cv-00985-ADA, Dkt. 54 (June 21, 2022)
`Transcript, Oct. 14, 2022 Markman Hearing, in Jawbone Innovations LLC v. Google
`LLC, No. 6:21-cv-00985-ADA, Dkt. 96-2 (Nov. 1, 2022)
`Jawbone’s Motion for Reconsideration in Jawbone Innovations LLC v. Google LLC,
`No. 6:21-cv-00985-ADA, Dkt. 96 (Nov. 1, 2022)
`Declaration of Cliff Reader, PhD (“Reader Decl.”)
`Excerpts from Collins English Dictionary (7th ed.) (2005),
`META_JWBN_00000532-537
`Excerpts from New Oxford American Dictionary (2nd ed.) (2005),
`META_JWBN_00000551-556
`Excerpts from Merriam Webster Dictionary (new ed.) (2005),
`META_JWBN_00000538-543
`Excerpts from Penguin Complete English Dictionary (2006),
`META_JWBN_00000544-550
`Jawbone’s Disclosure of Extrinsic Evidence (Mar. 20, 2024)
`10
`11 Meta’s Disclosure of Extrinsic Evidence (Mar. 20, 2024)
`
`7
`
`8
`
`9
`
`v
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`

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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 7 of 34
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`Plaintiff Jawbone Innovations LLC (“Jawbone”) asserts 208 claims across eight patents1
`
`in this action: U.S. Patent No. 8,321,213 (the “’213 Patent”), U.S. Patent No. 8,326,611 (the “’611
`
`Patent”), U.S. Patent No. 7,246,058 (the “’058 Patent”), U.S. Patent No. 8,019,091 (the “’091
`
`Patent”) , U.S. Patent No. 8,467,543 (the “’543 Patent”), U.S. Patent No. 8,503,691 (the “’691
`
`Patent”), U.S. Patent No. 10,779,080 (the “’080 Patent”), and U.S. Patent No. 11,122,357 (the
`
`“’357 Patent”) (collectively, the “Asserted Patents”). Jawbone does so despite the fact that this
`
`Court previously determined in another case that nearly half of those claims are invalid as
`
`indefinite—the independent claims of three of the patents (’691, ’080, and ’357 patents) and
`
`several dependent claims of two of the patents (’213 and ’611 patents). Ex. 1, Claim Construction
`
`Order in Jawbone Innovations LLC v. Google LLC, No. 6:21-cv-00985-ADA (the “Google case”),
`
`(W.D. Tex. Oct. 14, 2022), Dkt. 88. Defendant Meta Platforms, Inc. (“Meta”) hereby submits its
`
`opening claim construction brief for the Asserted Patents, respectfully requesting the Court adopt
`
`its prior indefiniteness findings and to find another term indefinite that the Court did not previously
`
`address.
`
`I.
`
`INTRODUCTION
`
`Meta presents arguments herein for three terms: (1) “approximately similar/dissimilar,” (2)
`
`“substantially similar/dissimilar,” and (3) “the processing component.” In the Google case
`
`involving the same patents and the same claims, this Court already found terms (1) and (2)
`
`indefinite. Ex. 1 (Google Claim Construction Order) at 3-4 (finding the terms “approximately
`
`similar” and “approximately dissimilar” as claimed in the ’213 and ’611 patents to be indefinite,
`
`and finding the terms “substantially similar” and “substantially dissimilar” as claimed in the ’080,
`
`
`1
`Plaintiff proposed to drop the ’058, ’091, and ’543 patents. Meta continues to maintain
`its positions on the disputed terms from these patents until they are formally withdrawn from this
`action.
`
`
`
`1
`
`

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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 8 of 34
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`
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`’691, and ’357 patents to be indefinite). As noted by the Court during the Markman hearing in
`
`that case, each of these terms recites “two words of degree modifying each other” (Ex. 3 (Google
`
`Markman Transcript) at 49:25-50:7, 32:1-22), and the specifications fail to provide an objective
`
`standard to measure its scope. The third term appears in only two dependent claims of one patent
`
`and lacks antecedent basis.
`
`Jawbone proposes that no construction is necessary for any of these terms, but that does
`
`nothing to resolve the parties’ dispute or clear up any ambiguity in the terms. For the first two
`
`terms, Jawbone also proposes new alternative constructions that differ from its original proposal
`
`and its previous alternative constructions in a prior case. The Court should reject Jawbone’s
`
`shifting approach, maintain its findings that terms (1) and (2) are indefinite, and adopt Meta’s
`
`proposal that term (3) is also indefinite.
`
`II.
`
`BACKGROUND
`
`Asserted Patents
`
`A.
`The Asserted Patents relate to audio processing, and specifically voice detection and noise
`
`cancellation. The disputed terms appear in five of the Asserted Patents: ’213, ’611, ’691, ’080,
`
`and ’357 patents.
`
`The ’213 and ’611 patents are generally directed to acoustic voice activity detection
`
`(“AVAD”) systems. The claimed systems generally use physical microphones “to generate virtual
`
`directional microphones which have very similar noise responses and very dissimilar speech
`
`responses.” ’213 patent at Abstract.
`
`The ’691, ’080, and ’357 patents are generally directed to dual omnidirectional microphone
`
`array (“DOMA”) systems. The claimed systems “seek to reduce noise by nulling out noise
`
`sources.” ’080 patent at Abstract. A physical microphone array “is used to form two distinct
`
`
`
`2
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`

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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 9 of 34
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`virtual directional microphones which are configured to have very similar noise responses and
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`very dissimilar speech responses.” Id.
`
`Litigation History
`
`B.
`On September 23, 2021, Jawbone filed a complaint in Jawbone Innovations, LLC v. Apple
`
`Inc., 6:21-cv-00984 (W.D. Tex.) (the “Apple case”) and Jawbone Innovations, LLC v. Google,
`
`LLC, 6:21-cv-00985 (W.D. Tex.) alleging infringement of the same patents asserted here. The
`
`parties in the Apple case settled before the Markman hearing. On October 22, 2022, the Court held
`
`a Markman hearing and issued a claim construction order the same day. The claim construction
`
`order held the terms “approximately similar” / “approximately dissimilar” as well as the terms
`
`“substantially similar” / “substantially dissimilar” indefinite.
`
`On November 1, 2022, Jawbone filed a motion for reconsideration on the terms the Court
`
`found indefinite. Briefing was completed on the motion on November 22, 2022. Before the Court
`
`decided the motion for reconsideration, the Google case was transferred to the Northern District
`
`of California. The Google case was stayed pending inter partes review on April 27, 2023 and the
`
`case was dismissed based on settlement on July 25, 2023.
`
`III. DISPUTED TERMS
`
`A.
`
`“approximately similar”/ “approximately, dissimilar” / “approximately
`dissimilar” (’213 patent, claims 2, 37, 38; ’611 patent, claims 3, 4, 30)2
`
`Meta
`
`Indefinite
`
`Jawbone
`Plain and ordinary meaning; no
`construction necessary
`
`2 The terms “approximately similar,” “approximately, dissimilar,” and “approximately
`dissimilar” appear in six dependent claims of the ’213 and ’611 patents, which share a common
`specification. Each of those dependent claims depend from an independent claim that recites the
`formation of a “first virtual microphone” and a “second virtual microphone.” All the dependent
`claims add the limitation that the first virtual microphone and the second virtual microphone
`have “approximately similar responses to noise” and/or “approximately dissimilar responses to
`speech.” Dependent claim 2 of the ’213 patent recites that the first virtual microphone and the
`second virtual microphone have “approximately, dissimilar responses to speech.”
`3
`
`Term
`“approximately similar”
`
`
`
`

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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 10 of 34
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`“approximately,
`dissimilar” /
`“approximately
`dissimilar”
`
`
`Alternatively, “responses to
`noise whose ratio has an absolute
`value of less than 10 dB”
`Plain and ordinary meaning; no
`construction necessary
`
`Alternatively, “responses to
`speech whose ratio has an
`absolute value of 10 dB or more”
`
`Indefinite
`
`The Court has already determined that these terms are indefinite. Ex. 1 at 3-4. There is
`
`no reason (either in law or in fact) to depart from that determination. To the contrary, Jawbone
`
`has provided even more reasons to find the terms indefinite.
`
`Each term recites two words of degree: the word “approximately” tethered to the word
`
`“similar” or “dissimilar.” As the Court has already concluded during the Markman hearing in
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`the Google case, these terms consist of “two words of degree modifying each other,” and “the
`
`words are words of [] approximation” and are “not easy to quantify.” Ex. 3 at 50:5-7, 32:4-12.
`
`Importantly, the Court found the patents to lack any objective boundaries. Id. at 50:5-7 (“I’m
`
`unconvinced that you can have two words of degree modifying each other and not [] provide
`
`more in the specification.”). Nothing changes this finding.
`
`And since the Court’s Markman ruling in the Google case, Jawbone has only confirmed
`
`that these terms have no reasonably certain scope by offering three substantively different
`
`constructions. This fact alone underscores that Jawbone has struggled to define objective
`
`boundaries for these terms (because none exist in the patents). If Jawbone itself does not know
`
`what these terms mean, a POSITA would certainly be unable to determine any objective
`
`boundaries for measuring these terms of double degree. See id. at 32:13-18 (this Court stating
`
`“[T]he problem the Court has, let me be clear, with these claim terms is that both words are
`
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`4
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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 11 of 34
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`words of [] approximation. And I don’t understand how someone who’s afraid of infringing a
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`patent would be able to quantify or calculate what those words mean.”); Reader Decl. ¶¶ 37-47.
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`The Court should maintain its finding that these terms of double degree are indefinite.
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`Jawbone’s shifting proposals confirms these terms are indefinite
`
`1.
`As shown in the table below, this is now Jawbone’s third attempt at construing these
`
`same terms. Notably, each of Jawbone’s proposals has had a different scope. See Reader Decl.
`
`¶¶ 41-42. After the Court in the Google case rejected Jawbone’s original proposal of “plain and
`
`ordinary meaning” (second column) and found these terms indefinite, Jawbone moved for
`
`reconsideration. In that motion, Jawbone changed course and proposed alternative constructions
`
`(third column) for the first time.
`
`Term
`
`“approximately
`similar”
`
`Jawbone’s
`original proposal
`6/21/223-10/14/224
`Plain and ordinary
`meaning; no
`construction
`necessary.
`
`“approximately
`dissimilar”
`
`Plain and ordinary
`meaning; no
`construction
`necessary.
`
`
`
`Jawbone’s proposal
`11/1/22-11/22/225
`(reconsideration)
`Plain and ordinary
`meaning or “the
`responses to noise
`between two
`microphones deviate
`by no more than 10
`to 15 percent”
`Plain and ordinary
`meaning or “a ratio
`of responses
`between two
`microphones of at
`least 10 decibels”
`
`Jawbone’s current proposal
`3/22/24 (against Meta)6
`
`Plain and ordinary meaning; no
`construction necessary.
`
`Alternatively, “responses to
`noise whose ratio has an
`absolute value of less than 10
`dB”
`Plain and ordinary meaning; no
`construction necessary.
`
`Alternatively, “responses to
`noise whose ratio has an
`absolute value of 10 dB or
`more”
`
`
`3
`Ex. 2, Jawbone’s Claim Construction Brief in the Google case, Dkt. 54 (June 21, 2022).
`4
`Ex. 3, Transcript, Oct. 14, 2022 Markman Hearing, in the Google Case, Dkt. 96-2 (Nov.
`1, 2022).
`5
`Ex. 4, Jawbone’s Motion for Reconsideration in the Google Case, Dkt. 96 (Nov. 1, 2022).
`6
`Ex. 10, Jawbone’s Disclosure of Extrinsic Evidence (Mar. 20, 2024)
`5
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`

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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 12 of 34
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`Specifically, Jawbone asked the Court for an alternative construction, to find that
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`“approximately similar” means a deviation “by no more than 10 to 15 percent.” Ex. 4.
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`However, in the current case, Jawbone changed course again, abandoning any reliance on a
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`percentage deviation, let alone 10 to 15%. Jawbone instead now asks the Court to believe that
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`this term actually means a “ratio has an absolute value of less than 10 dB” (fourth column).
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`However, when converted to a percentage value, 10 dB corresponds to a 1000% deviation, which
`
`is orders of magnitude larger than Jawbone’s previous proposal of 10-15%. Reader Decl. ¶ 41.
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`Even setting aside the serious flaws in Jawbone’s approach in arriving at its proposal of 10 dB
`
`(infra), Jawbone’s drastic shift from a 10-15% deviation to 1000% only confirms this term is
`
`indefinite. See Regeneron Pharms., Inc. v. Merus B.V., C.A. No. 14-1650 (KBF), 2014 WL
`
`6611510, at *23 (S.D.N.Y. Nov. 21, 2014) (“His shifting positions reflect the general
`
`uncertainty: his opening declaration referred to 2.3 megabases, but that number was changed to
`
`2.741 megabases in his deposition.”).
`
`Similarly, Jawbone previously asked the Court in the Google case to find an alternative
`
`construction for “approximately dissimilar” to mean a ratio of “at least 10 decibels.” Now,
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`Jawbone changes its proposal yet again, this time adding that the 10 dB limit refers to the ratio’s
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`“absolute value,” which broadens Jawbone’s previous proposal (restricted to only positive
`
`ratios) to now include negative values, and is unsupported anywhere in the patents. Reader Decl.
`
`¶¶ 42-45.
`
`Jawbone’s shifting approach to claim construction demonstrates that the scope of these
`
`terms are not reasonably certain. See In re Walter, 698 F. App’x 1022, 1027 (Fed. Cir. 2017)
`
`(“These shifting positions make pinning down a construction of [the disputed term] all the more
`
`elusive. And even if it were possible to harmonize all of [patentee’s expert’s] statements, it is
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`6
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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 13 of 34
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`not enough that a court can ascribe some meaning to a patent’s claims”) (quotations omitted); see
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`also Vaxcel Int’l Co., Ltd. v. HeathCo LLC, C.A. No. 20-224-LPS, 2022 WL 611067, at *2 (D.
`
`Del. Feb. 3, 2022) (“[Plaintiff’s] shifting positions underscore that the relevant patents do not
`
`convey the meanings of [the disputed terms] with reasonable certainty”). The Court should
`
`therefore reject Jawbone’s third (inconsistent) attempt to construe these terms.
`
`2.
`
`The patents provide no objective standard or boundaries for
`“approximately similar” or “approximately dissimilar”
`
`Even setting aside Jawbone’s shifting approach, the Court should maintain its finding that
`
`these terms are indefinite. There is good reason for Jawbone’s difficulty in articulating the scope
`
`of these terms. The terms “approximately similar” and “approximately dissimilar” are terms of
`
`double degree, as the word “approximately” is a term of degree that modifies another term of
`
`degree “similar” or “dissimilar.” When a claim recites a term of degree, let alone a double
`
`degree, “the court must determine whether the patent provides ‘some standard for measuring that
`
`degree.’” Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1378 (Fed. Cir. 2015)
`
`(internal citation omitted). The standard “must provide objective boundaries for those of skill in
`
`the art.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014).
`
`As the Supreme Court has stressed, it is not enough that “a court can ascribe some
`
`meaning to a patent’s claims.” Id. at 1370–71 (Fed. Cir. 2014) (quoting Nautilus, Inc. v. Biosig
`
`Instruments, Inc., 572 U.S. 898, 911 (2014)). Instead, “[t]he claims, … must provide objective
`
`boundaries for those of skill in the art.” Id. at 1371. “[W]hen there is no objective standard by
`
`which to determine the scope of the word of degree, the word of degree renders the claims
`
`indefinite.” KLA-Tencor Corp. v. Xitronix Corp., No. A-08-CA-723-SS, 2011 WL 318123, at *3
`
`(W.D. Tex. Jan. 31, 2011). Here, the claim language and specification fail to provide an
`
`objective standard for measuring “approximately similar” and “approximately dissimilar” in the
`
`
`
`7
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`Case 6:23-cv-00158-ADA Document 63 Filed 04/03/24 Page 14 of 34
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`claims of the ’213 and ’611 patents. Nor were any objective standards otherwise known to a
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`person of ordinary skill in the art. See Reader Decl. ¶ 38. The claims in which those terms
`
`appear are thus indefinite.
`
`Nothing in the intrinsic evidence of the ’213 and ’611 patents supplies an objective
`
`standard to permit a person of ordinary skill in the art to determine, with reasonable certainty,
`
`whether the recited first and second virtual microphones have “approximately similar” responses
`
`to noise or “approximately dissimilar” responses to speech. How similar must the responses to
`
`noise be in order to satisfy the “approximately similar” limitations? And how dissimilar must
`
`the responses to speech be to satisfy the “approximately dissimilar” limitations? The
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`specification does not say. See id. ¶¶ 39-40.
`
`In analogous circumstances, this Court recently found that the term “high pressure” was
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`indefinite. The claim term “high pressure” appeared in patents whose specifications “do not
`
`provide guidance that would clarify the meaning of the term ‘high pressure,’ or provide a
`
`baseline of comparison to allow skilled artisans to differentiate a pump that is ‘high pressure’
`
`from a pump that is ‘not high pressure.’” U.S. Well Servs. Inc. v. Halliburton Co., No. 6:21-cv-
`
`00367, 2022 WL 819548, at *7 (W.D. Tex. Jan. 17, 2022). Moreover, the ambiguity of the
`
`scope of the term was “compound[ed]” because the specifications stated that “[f]racturing rock
`
`in a formation requires that the fracture fluid be pumped into the wellbore at very high pressure,”
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`which, this Court observed, “begs the question of the difference between ‘high pressure’ (as
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`stated in the claims) and ‘very high pressure’ (in the specification).” Id. Here, the ’213 and ’611
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`patents likewise beg the question of the difference between “approximately similar/dissimilar”
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`responses to speech and noise (as stated in the claims) and “very similar/dissimilar” responses to
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`speech and noise (as stated in the specification). See KLA-Tencor Corp., 2011 WL 318123, at
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`*3. (“[W]hen there is no objective standard by which to determine the scope of the word of
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`degree, the word of degree renders the claims indefinite.”).
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`In another similar case, the Eastern District of Texas found that the terms “maximizing,”
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`“minimiz[es/ing],” and “substantially [minimizes]” were all indefinite because the “specification
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`fail[s] to provide an objective standard for measuring” these parameters. CA, Inc. v. Netflix, Inc.,
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`No. 2:21-CV-00080-JRG, 2021 WL 5323413, at *14-16 (E.D. Tex. Nov. 16, 2021). Importantly,
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`the court found that “[t]he specification's failure to provide an objective standard to measure
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`against is critical because different baselines could lead to different conclusions about whether a
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`resulting ‘time required for retrieving’ has been ‘minimize[d]’ or a resulting ‘rate’ has been
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`‘maximiz[ed]’.” Id. at *15 (emphasis added). Likewise, here, the patents’ lack of an objective
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`standard for measuring “approximately similar” and “approximately dissimilar” means that there
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`are any number of conclusions that could be reached as to whether two responses are
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`“approximately similar” or “approximately dissimilar.” See Reader Decl. ¶¶ 39-40.
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`a.
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`The patents use “very similar” and “very dissimilar” instead of
`“approximately similar” and “approximately dissimilar.”
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`Although the specification7 of the ’213 and ’611 patents describes a few examples of two
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`virtual microphones responding to noise and speech, those descriptions do not use the terms
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`“approximately similar” or “approximately dissimilar” when comparing the respective responses
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`of the first virtual microphone and the second virtual microphone. Instead, the responses of the
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`two virtual microphones to noise and speech are repeatedly described either as “very similar” or
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`“very dissimilar.” See, e.g., ’213 patent at 3:57-62 (“Acoustic Voice Activity Detection (AVAD)
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`methods and systems are described herein. The AVAD methods and systems, which include
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`7 Since the ’213 and ’611 patents share the same specification, unless otherwise noted, all
`citations to their specifications are to the ’213 patent.
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`algorithms or programs, use microphones to generate virtual directional microphones which have
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`very similar noise responses and very dissimilar speech responses.”); id. at 4:23-25 (“V1 is
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`configured so that it does respond to the user’s speech but has a very similar noise magnitude
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`response to V2); id. at 5:35-37 (“For this configuration V1 and V2 have very similar noise
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`response magnitudes and very dissimilar speech response magnitudes . . .”); id. at 8:61-62
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`(“Examining FIG. 6, the response of both V1 and V2 are very similar . . .”); id. at 17:49-51
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`(“The two virtual microphones are configured to have very similar noise responses and very
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`dissimilar speech responses.”); id. at 24:63-65 (“The linear response of virtual microphone V1 to
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`noise is devoid of or includes no null and the response is very similar to V2 shown in FIG. 26.”).
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`The disclosures in the ’213 and ’611 patents provide no guidance for differentiating the
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`“very similar/dissimilar” examples in the specification from the “approximately similar/
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`dissimilar” limitations recited in the claims. For example, if a POSITA tried to design a device
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`that avoids practicing the limitation requiring the first virtual microphone and the second virtual
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`microphone to have “approximately similar responses to noise,” and if that device employed two
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`virtual microphones whose responses to noise were less similar than those of the two responses
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`to noise depicted in Figures 6 and 26 (which the patent describes only as “very similar”), the
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`designer would not be able to determine if the responses met or exceeded the ambiguous
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`threshold between “very similar” and “approximately similar.” Neither the specification nor the
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`prosecution history provides a basis for making such a distinction. See Reader Decl. ¶¶ 39-40.
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`b.
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`The patents’ 10 dB teachings do not refer to “approximately
`similar” or “approximately dissimilar” responses.
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`In proposing 10 dB in its alternative constructions for these terms, Jawbone appears to
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`rely on the specification’s teaching that a 10 dB ratio of signals is “enough for good
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`performance.” See Ex. 4 (Jawbone’s Motion for Reconsideration in the Google case, Dkt. 96), at
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`7-8 (citing ’213 patent at 26:58-60). However, there is nothing in the specification tying a 10 dB
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`ratio to noise responses being “approximately similar” or speech responses being “approximately
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`dissimilar.” See Reader Decl. ¶ 45. In fact, that portion of the specification (and its surrounding
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`portions) are completely silent regarding the terms at issue.
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`When reviewing the specification for an objective standard for meeting a claim term, the
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`standard must be for measuring the relevant claimed term of degree, not any standard for any
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`metric. See, e.g., Seattle Box Co. v. Indus. Crate & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir.
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`1984) (“When a word of degree is used the district court must determine whether the patent’s
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`specification provides some standard for measuring that degree.”) (emphasis added). Put
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`simply, there must be a nexus between the claim term and the measurement in the specification.
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`Here, the specification’s description of a 10 dB ratio is a metric “enough for good performance.”
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`But the term “good performance” is not in dispute. Nowhere does the specification tie a 10 dB
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`ratio to the terms “approximately similar” or “approximately dissimilar.” The patents are
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`completely silent as to any standard for measuring these terms of double degree, and never
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`associate any objective boundary, let alone 10 dB, with “approximately similar” or
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`“approximately dissimilar” responses. See Reader Decl. ¶ 45. As neither term is tied to any
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`objective boundary, let alone a 10 dB ratio, the Court should reject Jawbone’s proposal and
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`reaffirm that these terms are indefinite.
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`The extrinsic evidence confirms these terms are indefinite
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`3.
`Various dictionary definitions further confirm these terms are indefinite. See id. ¶ 46.
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`Each word in each term here—approximately, similar, and dissimilar—is an imprecise word of
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`degree and provides no standard for determining the scope of the claims. For example,
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`“approximately” is synonymous with “inexact.” See Ex. 9 at META_JWBN_00000546
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`(Approximately, Penguin (2006)); see also Ex. 6 at META_JWBN_00000534 (Approximately,
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