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`Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 2 of 52
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`EXHIBIT 1
`EXHIBIT 1
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`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 2 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 3 of 52
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`JAWBONE INNOVATIONS, LLC*
`
`*
`October 14, 2022
`VS.
`*
`
`
` * CIVIL ACTION NO. W-21-CV-985
`GOOGLE LLC
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`MARKMAN HEARING (via Zoom)
`
`
`APPEARANCES:
`For the Plaintiff:
`
`Richard M. Cowell, Esq.
`Peter Lambrianakos, Esq.
`Fabricant LLP
`411 Theodore Fremd Road,
` Ste 206 South
`Rye, NY 10580
`Raymond W Mort III, Esq.
`The Mort Law Firm, PLLC
`100 Congress Ave, Suite 2000
`Austin, TX 78701
`Luis Gabriel Hoyos, Esq.
`Erin E. Meyer, Esq.
`Reid Mullen, Esq.
`Rylee Kercher Olm, Esq.
`David J. Rosen, Esq.
`Keker, Van Nest & Peters LLP
`633 Battery Street
`San Francisco, CA 94111
`Michael E. Jones, Esq.
`Potter Minton PC
`110 N College, Suite 500
`Tyler, TX 75702
`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
`Proceedings recorded by mechanical stenography,
`transcript produced by computer-aided transcription.
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`
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`For the Defendant:
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`Court Reporter:
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`2
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`(Hearing begins.)
`DEPUTY CLERK: Civil Action in Case
`6:21-CV-985, Jawbone Innovations, LLC versus Google
`LLC. Case called for a Markman hearing.
`THE COURT: And if we could start with
`the plaintiff, please.
`MR. LAMBRIANAKOS: Good morning, Your
`Honor. This is Peter Lambrianakos of Fabricant LLP on
`behalf of the plaintiff Jawbone. With me is Rich
`Cowell, also of Fabricant LLP, and Ray Mort.
`THE COURT: Good morning.
`MR. LAMBRIANAKOS: Good morning.
`THE COURT: I see Mr. Jones.
`MR. JONES: Good morning, Your Honor.
`This is Mike Jones for Google, together with David
`Rosen, Luis Hoyos, Rylee Kercher Olm, Reid Mullen, Erin
`Meyer and Shaun Hassett. And also on from Google
`itself is Mr. Timur Engin.
`And we're ready to proceed, Your Honor.
`THE COURT: Welcome to the client
`representatives.
`Mr. Jones, we've got to quit meeting like
`this. I get to see you several times a week. That's a
`good thing.
`
`MR. JONES: It's a privilege, Your Honor.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 4 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 5 of 52
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`3
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`THE COURT: Let me turn to the first
`claim term, which is "microphone." I very much look
`forward to hearing this argument.
`MR. HOYOS: Good morning. This is Luis
`Hoyos on behalf of the defendant, Google LLC.
`As you mentioned, I'll be discussing the
`term "microphone," which appears in the following
`asserted claims: Claim 1 of the '058 patent and Claims
`1, 8, 19, 20 and 26 of the '543 patent. And I will
`refer to these patents at times collectively as the
`"Burnett patents."
`As Your Honor recognizes in the Court's
`preliminary construction, the plain and ordinary
`meaning of the term "microphone" needs clarification in
`this case because Jawbone insists the term includes
`virtual microphones.
`But this construction would unnecessarily
`create a conflict with an order issued by Magistrate
`Judge Payne in another case also filed by Jawbone and
`involving some of the same patents against Samsung in
`the Eastern District of Texas.
`In fact, Jawbone did not object to
`Magistrate Judge Payne's claim construction order,
`which led the Court to adopt his construction of the
`term "microphone" to mean physical microphone in that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`4
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`case.
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`Google's position here is likewise that
`the proper construction of the term "microphone" in the
`Burnett patents has to be physical microphone. Because
`a person of ordinary skill in the art at that time in
`question would not have understood the term to mean
`virtual microphone.
`This is the right construction I think
`for at least four reasons, Your Honor.
`First, both specifications of the Burnett
`patents contain numerous references to physical
`microphones. In fact, every single figure of the
`patents contemplates a physical microphone.
`By contrast, the word "virtual" let alone
`the term "virtual microphone" does not appear anywhere
`in the patents. There's also no mention of the two
`elements that the parties agree are part of a virtual
`microphone: One, two or more omni-directional physical
`microphones and two associated signal processing.
`We know that a virtual microphone is
`those two elements because the same inventor in later
`patent -- in a later patent, the '072 patent, defined
`the term as such. And that definition does not appear
`in any of the -- in either of the two patents that are
`at issue here.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`5
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`The third reason, Your Honor, is that the
`physical placement of the microphones is essential to
`these patents. The specifications time and time again
`discuss the physical placement, the spatial placement
`of the microphones vis-à-vis each other and vis-à-vis a
`person's body, in particular their head, their ear,
`their hand.
`
`This further, you know, militates in
`favor of construing the term "microphone" to mean
`physical microphone.
`And finally, Your Honor, the extrinsic
`evidence, all of it, weighs in favor of this
`construction. Google has put forth several dictionary
`definitions of the time, all of which use the term
`"device" or some other indication that we're talking
`about a physical structure here.
`Jawbone, by contrast, hasn't offered a
`single piece of extrinsic evidence to the contrary.
`And so we think this really, you know, buttresses a
`construction in favor of physical microphone.
`Jawbone's main argument is that there's
`no lexicography here, that the term is not defined in
`the patents, and therefore, somehow this means it
`should have the broadest possible construction.
`But as Your Honor knows, that would go
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
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`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 7 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 8 of 52
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`6
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`against the Phillips test, which asks the Court to look
`at both the intrinsic and the extrinsic evidence of
`what a person of ordinary skill in the art would define
`the term to be.
`And, you know, not to belabor the point,
`all of the extrinsic and intrinsic evidence supports
`that the definition should be physical microphone.
`Jawbone instead points the Court to the
`'072 patent, which I mentioned earlier. That patent
`does define the term "virtual microphone" to mean one
`or more omni-directional microphones and associated
`signal processing.
`That patent was filed several years after
`the Burnett patents we're discussing here. And we
`contend that the definition of virtual microphone there
`actually supports the fact that that term does not
`appear here, because Burnett would have included that
`definition in these two patents like he did in the '072
`patent if he really meant that virtual microphones were
`included here.
`And there's also no evidence that
`Mr. Burnett knew how virtual microphones worked before
`the '072 patent was filed. And so we think the '072
`patent actually supports this argument.
`And by the way, the plaintiffs have
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`7
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`dropped the '072 patent from the case, so I think
`that's, you know, further reason to limit the claim
`here to physical microphone.
`Plaintiffs will --
`THE COURT: Why is that?
`MR. HOYOS: Your Honor, because all of
`these three patents are written by the same inventor.
`The '072 patent was filed six years after the '058
`patent and five years after the '543 patent.
`And the first time that the term "virtual
`microphone" -- the word "virtual" appears at all in the
`patents is in the '091 patent which was filed -- sorry.
`In the '072 patent which was filed in 2007.
`So if Mr. Burnett already knew about
`virtual microphones and already intended them to be a
`part of the '058 patent and '543 patents, presumably he
`would have used them in those patents.
`THE COURT: No. I meant why is the
`litigation strategical of dropping a patent mitigate in
`favor your claim construction? I'm not -- that's what
`I'm not following.
`MR. HOYOS: Oh, Your Honor, I apologize.
`I might have misspoken. I just wanted to point out
`that that -- I didn't want to -- I just wanted to
`clarify that that patent wasn't part of the case. I
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
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`8
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`didn't mean to indicate --
`THE COURT: Okay. No, no, no. That's
`fine. You just said something I --
`MR. HOYOS: Yes. I apologize.
`THE COURT: That's fine.
`MR. HOYOS: In sum, Your Honor, Google
`respectfully requests that the Court adopt Google's
`construction of "microphone" in order to tether the
`claims to what the specifications of the '058 and '543
`patent indicated Mr. Burnett actually invented.
`This would also be congruent with the
`extrinsic evidence. And importantly it would prevent
`an unnecessary conflict with another court that already
`construed the term "microphone" to mean physical
`microphone.
`
`I'm happy to answer any questions the
`Court may have.
`THE COURT: I thought that was very
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`elegant.
`
`A response?
`MR. COWELL: Good morning, Your Honor.
`Richard Cowell of Fabricant LLP for plaintiff Jawbone.
`I want to address first Mr. Hoyos'
`reference to Magistrate Judge Payne's order.
`Magistrate Judge Payne did indeed issue
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`9
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`an order. I think that Your Honor has it. It did not
`include the '058 patent for this term; it was only on
`the '543 patent. And we respect that the judge has
`made that ruling.
`It's not binding on this Court, however.
`It's not part of a final judgment. And Your Honor is
`free to make his own decision. It's not a controlling
`authority for you.
`Now, the issue here is whether microphone
`has been limited to a physical microphone. And it is
`not. There's no definition limiting microphone to a
`physical microphone. There's no lexicography and
`there's no disclaimer of any other type of microphone.
`And I'm going to attempt to share my
`screen. And I hope I do it right.
`To show our slides.
`And this is Slide 11 of our slides that
`we sent out today.
`And Mr. Hoyos mentioned the '072 patent.
`I want to talk about the '091 patent which is also in
`this case. And that was filed right around the same
`time as the '543 patent and not too long after the '058
`patent.
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`And in the '091 patent, Dr. Burnett did
`choose to limit microphone to an acoustic microphone,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`10
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`which is a physical microphone, by using the words
`"acoustic microphone" in the claim.
`And you contrast that with the way
`microphone is used in the '058 patent and the '543
`patent where it's just "microphone." So that alone is
`evidence that the inventor didn't intend to limit his
`microphone to a physical microphone.
`I'd also like to point out it's well
`established in the law, and we cited this in our
`briefs, that a -- that a claim is not limited to the
`embodiments that are disclosed within that claim or
`within that patent. Future embodiments can be covered,
`and that's -- there's nothing wrong with that.
`And finally, the inventor notebooks which
`were submitted in this case under seal clearly show
`that the inventor, Dr. Burnett, was aware of beamformed
`or virtual microphones. So they did exist in the art.
`He was aware of them. He chose not to limit the claims
`to only physical microphones.
`And the last point I wanted to hit is
`Mr. Hoyos just said, you know, the placement of the
`microphones which is described in the -- within the
`patents weighs in favor of his construction.
`I disagree. You can use a virtual
`microphone to point at a particular area or to be in a
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
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`11
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`particular area. There's nothing -- there's nothing
`exclusionary about that.
`And that's really the point here, Your
`Honor. There's no exclusion of virtual microphones.
`There's nothing saying you can't have a microphone
`that's made up of two smaller microphones which is all
`a virtual microphone is.
`And the Court should not limit the claim
`as Google suggests. If Your Honor has any questions,
`I'm happy to answer them. Otherwise that's my
`presentation on this.
`THE COURT: Very good.
`Any rebuttal?
`MR. HOYOS: Your Honor, I just want to
`address one point -- a couple points very briefly.
`First, I think, you know, the idea that a
`virtual microphone can be pointed is potentially
`correct, but the patents talk about placing
`microphones. They talk about distancing microphones
`specific centimeters apart from each other. You know,
`so it's not just about how a microphone is pointed,
`it's also about where it's placed spatially.
`And with regard to the '091 patent,
`again, that is a later patent. It was filed -- yes, it
`was closer in time to the '058 and '543 patents, but it
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
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`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 13 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 14 of 52
`
`12
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`was filed later. And I invite the Court to look at the
`Burnett notebooks closely because I don't think it's
`clear from that that Mr. Burnett was aware of virtual
`microphones at the time that the '058 patent and '543
`patents were filed.
`And also there is no extrinsic evidence
`that that was a term that was considered to be within
`the definition of microphone at the time.
`Thank you.
`THE COURT: I'll be back in just a
`
`second.
`
`(Pause in proceedings.)
`THE COURT: The Court is going to
`maintain its preliminary construction.
`The next claim term is the "acoustic
`signals" and goes on from there. I believe that the
`defendant wishes to argue that it's indefinite. The
`preliminary construction is that it is not. So I --
`and the preamble's not limiting.
`Counsel?
`MS. OLM: Good morning, Your Honor.
`Rylee Kercher Olm on behalf of defendant Google LLC.
`I'll be discussing Claim 1 of the '058 patent, as Your
`Honor just mentioned, and the term the "acoustic
`signal" and the "receiver."
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 14 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 15 of 52
`
`13
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`With the Court's permission, I'd like to
`share my screen to display the patent so everyone can
`more easily follow along.
`Thank you, Your Honor.
`So starting with the first part of the
`Court's tentative ruling, addressing the term "the
`acoustic signals." To the extent the Court declines to
`find this claim indefinite, we agree with the Court's
`tentative ruling that the full preamble is not
`limiting, but that a portion of the preamble is
`limiting.
`
`Today we just want to propose one minor
`modification to the Court's tentative as to which
`portion of the preamble is limiting. And this is
`responsive to an argument that Jawbone raised in its
`surreply which we did not have a chance to address in
`our briefing.
`Specifically we submit that this full
`term in the preamble "acoustic signals having varying
`levels of background noise" is limiting.
`This is because, as the Court recognizes,
`the claim term "the acoustic signals" derives its
`antecedent basis from the preamble. And this term is
`provided with greater detail in the preamble. It's
`acoustic signals having varying levels of background
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 15 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 16 of 52
`
`14
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`noise.
`
`The case law that Jawbone cites in its
`surreply in fact makes clear that this full phrase must
`be limiting. For instance, Jawbone cites to the case
`RFC Corp v. Google LLC, a 2021 Eastern District of
`Texas case. And in that case, the preamble was not
`limiting because it provided no additional detail
`regarding the term at issue.
`But the Court in that case specifically
`contrasted its decision with a holding in Proveris
`Scientific Corp versus Innovasystems, a 2013 Federal
`Circuit case.
`And in that case, the Federal Circuit
`found that the full phrase in the preamble was
`limiting, where the claim both derived the antecedent
`basis from the preamble and the claim was described in
`greater detail in the preamble.
`So just as an example, there's a claim
`term at issue with, quote, image data, end quote. And
`then the preamble included the more detailed language,
`quote, image data representative of at least one
`sequential set of images of a scraped flew, end quote.
`So our case is completely analogous to
`this Proveris Scientific case as is described in the
`RFC Cyber Corp case.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 16 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 17 of 52
`
`15
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`Here the acoustic signal is defined in
`greater detail in the preamble as having varying levels
`of background noise. So this full preamble phrase must
`be limiting.
`
`So assuming that the Court declines to
`hold this claim indefinite, we'd ask that the Court
`tweak its tentative slightly and hold that the full
`term "acoustic signals having varying levels of
`background noise" is limiting.
`Turning to the second part of Your
`Honor's tentative ruling, I'd like to just make two
`quick points about the indefiniteness of the "one
`receiver" and the "two receiver" terms.
`So first, these terms lack any antecedent
`basis. There is no recitation of the term "receiver"
`in any earlier elements of the claim. So it is
`entirely unclear what the term "the one receiver and
`each of the two receivers" is referring to, rendering
`the claim indefinite.
`Because of this antecedent basis issue, a
`person of ordinary skill in the art would not be able
`to determine whether the receiver refers back to the
`microphones that receive the acoustic signals or the
`voicing sensor which receives physiological signals or
`the processor which is coupled with the microphone that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 17 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 18 of 52
`
`16
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`receives signals or something else entirely.
`And per Federal Circuit case law, a claim
`is indefinite if the term does not have a proper
`antecedent basis and the meaning is not reasonably
`ascertainable.
`And that is the case here, Your Honor.
`If the Court sticks with its plain and ordinary meaning
`construction, it will be impossible for us to know what
`the term "receiver" means in this claim.
`Second, Your Honor, it is worth noting
`that Jawbone's only response to this antecedent basis
`issue is to argue that receiver refers back to the term
`"at least two microphones" and that receiver is
`identical to the term "microphone."
`But this conflicts with clear principles
`of claim construction. Each word in a claim term must
`have its own meaning. And Jawbone cannot redraft this
`claim by trying to equate receiver with microphone.
`Jawbone's argument that receiver must be
`understood to mean microphone also is not supported by
`the specification or the claim language. The term
`"receiver" is found in only one paragraph of the
`specification which I'll display on my screen for your
`convenience. It's in the background section.
`And in this section it discusses how
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 18 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 19 of 52
`
`17
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`"speech from a human speaker is captured and
`transmitted to a receiver in a different location."
`So essentially it's describing that
`speech is being captured by one object, presumably the
`microphone, and then it's being transmitted to a
`different object which is the receiver in a different
`location.
`
`So the receiver cannot be the same as the
`object that is capturing the speech. So the receiver
`cannot be the microphone here.
`And then later on in the same paragraph
`it explains that a receiver can be human or machine.
`So clearly the inventor was contemplating that receiver
`would mean something broader and different than
`microphone.
`
`This is the only mention of the term
`"receiver" in the entire patent other than in the claim
`language.
`
`Turning back to the claim language
`itself, the construction of microphone also conflicts
`with the claim language in that microphone is not the
`only object receiving acoustic signals.
`The voicing sensor is receiving
`physiological information in the form of a signal. It
`has to be in the form of a signal because otherwise it
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 19 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 20 of 52
`
`18
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`wouldn't be able to complete the required correlation
`that it has to be performed. It has to be, you know,
`similar data that it's receiving.
`And in fact in Claim 5 it talks about how
`a voicing sensor includes acoustic throat microphones.
`So clearly it can receive signals.
`And then the processor is also coupled
`among the microphones, meaning that it's receiving the
`same signals that the microphone is receiving. And
`this just logically makes sense, right? The processor
`is processing the signal, so it's receiving the signal.
`There's also a numerical disparity issue
`with assuming that receiver is the same as microphone.
`The claim recites "at least two microphones" so there
`could be three, four, five microphones.
`Whereas the claim is very specific that
`there are two receivers. There's the one receiver and
`each of the two receivers. So there's a numerical
`issue with assuming that microphone and receivers are
`the same.
`
`In sum, Your Honor, it is entirely
`unclear what the receiver is referring to, as the claim
`lacks an antecedent basis. And Jawbone's argument that
`receiver means microphone is flawed. Thus the claim is
`indefinite as its meaning does not read reasonably
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 20 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 21 of 52
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`19
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`ascertainable.
`Your Honor, if the Court does stick with
`its plain and ordinary meaning ruling, we would
`appreciate guidance from the Court as to what the term
`"receiver" is referring to.
`Does it refer to microphone, as Jawbone
`is arguing? Despite the fact that that's inconsistent
`with the specification. Or does it refer to voicing
`sensors or processors which the claim also recites as
`receiving signals? Or is it something else entirely?
`Any clarification from the Court would be greatly
`appreciated.
`
`Thank you, Your Honor.
`THE COURT: A response?
`MR. COWELL: Yes. Thank you, Your Honor.
`I'm going to share my screen again. I
`hope I can find it.
`So I'd like to start with Ms. Olm's
`"acoustic signals" argument. As Your Honor determined
`in the preliminary construction, "acoustic signals"
`does find its antecedent basis in the preamble.
`Ms. Olm argued that Google couldn't have
`anticipated that we would have said that it was the
`preamble. I think that's not quite true. It seems
`quite obvious that that's what we would argue.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 21 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 22 of 52
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`But she now wishes the Court to include
`"having varying levels of background noise" within the
`limiting portion of the preamble. We don't believe
`that's required or necessary.
`It was -- "having varying levels of
`background noise" was not used to overcome any prior
`art. It wasn't used -- I'm sorry -- it doesn't breathe
`life into the claim. It simply states an intended use
`of the invention.
`And the case law from the Federal Circuit
`tells you if that's what you have, that's not a
`limiting portion of the preamble.
`So now to move on to the "receiver"
`
`terms.
`
`The receivers receive acoustic signals.
`And Ms. Olm sort of glossed over this a little bit.
`The only elements recited within this claim that
`receive acoustic signals are the two -- are the at
`least two microphones.
`A person of skill in the art would look
`at the claim language and it would -- and he would say
`there's an acoustic signal received at the one receiver
`and there's acoustic signals received at each of the
`two receivers.
`
`Those are -- the receivers are there for
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`
`
`Case 6:21-cv-00985-ADA Document 96-2 Filed 11/01/22 Page 22 of 51Case 6:23-cv-00158-ADA Document 63-3 Filed 04/03/24 Page 23 of 52
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`21
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`the microphones. Those are the only elements that are
`recited as receiving acoustic signals.
`The -- now, Ms. Olm -- I'm just going to
`skip ahead a little.
`Ms. Olm says, well, the voicing sensor
`receives acoustic signals. But it's not recited as
`receiving acoustic signals, it's recited as receiving
`physiolog
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