Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 1 of 15
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`Exhibit 4
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`Case 6:21-cv-00985-ADA Document 96 Filed 11/01/22 Page 1 of 14Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 2 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`§
`
`§
`Case No. 6:21-cv-00985-ADA
`§
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`JURY TRIAL DEMANDED
`§
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`§
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`§
`§
`§
`§
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`Plaintiff,
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`JAWBONE INNOVATIONS, LLC,
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`v.
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`GOOGLE LLC,
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`Defendant.
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` §
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`PLAINTIFF JAWBONE INNOVATIONS, LLC’S
`MOTION TO RECONSIDER CLAIM CONSTRUCTION ORDER (DKT. 88)
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`Case 6:21-cv-00985-ADA Document 96 Filed 11/01/22 Page 2 of 14Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 3 of 15
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`TABLE OF CONTENTS
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`Page(s)
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`I.
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`II.
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`III.
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`IV.
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`INTRODUCTION .............................................................................................................. 1
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`BACKGROUND ................................................................................................................ 2
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`LEGAL STANDARDS ...................................................................................................... 3
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`ARGUMENT ...................................................................................................................... 4
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`A.
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`B.
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`The Disputed Terms Are Not Indefinite Because They Use Terms of
`Approximation ........................................................................................................ 4
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`The Specification of the Asserted Patents Supports the Claim Terms are
`Definite ................................................................................................................... 5
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`1.
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`2.
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`“Approximately/Substantially Similar” Responses to Noise ...................... 6
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`“Approximately/Substantially Dissimilar” Responses to Speech............... 7
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`C.
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`Appropriate Constructions of the Disputed Terms ................................................. 8
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`V.
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`CONCLUSION ................................................................................................................... 8
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`i
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`Case 6:21-cv-00985-ADA Document 96 Filed 11/01/22 Page 3 of 14Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 4 of 15
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
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`AudioEye, Inc. v. accessiBe Ltd.,
`No. 6:20-cv-997-ADA, 2022 WL 827805 (W.D. Tex. Mar. 9, 2022) .......................................3
`
`Austin v. Kroger Texas, L.P.,
`864 F.3d 326 (5th Cir. 2017) .....................................................................................................3
`
`Cohesive Techs., Inc. v. Waters Corp.,
`543 F.3d 1351 (Fed. Cir. 2008)..................................................................................................6
`
`Dallas Cnty., Tex. v. MERSCORP, Inc.,
`2 F. Supp. 3d 938 (N.D. Tex. 2014) ..........................................................................................3
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`Deere & Co. v. Bush Hog, LLC,
`703 F.3d 1349 (Fed. Cir. 2012)..................................................................................................4
`
`Enzo Biochem, Inc. v. Applera Corp.,
`599 F.3d 1325 (Fed. Cir. 2010)..................................................................................................5
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014)..................................................................................................4
`
`Lavespere v. Niagara Mach. & Tool Works, Inc.,
`910 F.2d 167 (5th Cir. 1990) .....................................................................................................3
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`Liberty Ammunition, Inc. v. United States,
`835 F.3d 1388 (Fed. Cir. 2016)..................................................................................................2
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`Nature Simulation Sys. Inc. v. Autodesk, Inc.,
`50 F.4th 1358 (Fed. Cir. Oct. 17, 2022) ........................................................................... passim
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`Personalized Media Commc’ns, LLC v. Int’l Trade Comm’n,
`161 F.3d 696 (Fed. Cir. 1998)....................................................................................................4
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`Pfizer, Inc. v. Teva Pharms., USA, Inc.,
`429 F.3d 1364 (Fed. Cir. 2005)..................................................................................................4
`
`Pressure Prods. Med. Supplies, Inc. v. Greatbatch Ltd.,
`599 F.3d 1308 (Fed. Cir. 2010)..................................................................................................4
`
`Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017)..................................................................................................4
`
`ii
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`Case 6:21-cv-00985-ADA Document 96 Filed 11/01/22 Page 4 of 14Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 5 of 15
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`Other Authorities
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`Fed. R. Civ. P. 54(b) ....................................................................................................................1, 3
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`iii
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`Case 6:21-cv-00985-ADA Document 96 Filed 11/01/22 Page 5 of 14Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 6 of 15
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`Pursuant to Fed. R. Civ. P. 54(b), Plaintiff Jawbone Innovations, LLC (“Jawbone” or
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`“Plaintiff”) hereby respectfully moves for reconsideration of the portion of the Court’s Claim
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`Construction Order (Dkt. 88) construing the terms “approximately similar” / “approximately,
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`dissimilar” / “approximately dissimilar” in U.S. Patent Nos. 8,321,213 (the “’213 Patent”),
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`8,326,611 (the “’611 Patent”) and “substantially similar / dissimilar” in U.S. Patent Nos. 8,503,691
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`(the “’691 Patent”), 10,779,080 (the “’080 Patent”), and 11,122,357 (the “’357 Patent”)
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`(collectively, the “Disputed Terms”) as indefinite.
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`I.
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`INTRODUCTION
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`A patent claim is definite if it informs a person of ordinary skill in the art (“POSITA”)
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`about the scope of the invention with reasonable certainty when viewed in light of the specification
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`and prosecution history. The undisputed evidence is that the specifications of the subject patents
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`contain an exhaustive discussion of the level of similarity or dissimilarity needed to accomplish
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`the goals of the claimed inventions. Google LLC (“Google” or “Defendant”) did not contest in its
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`briefing that the evidence cited by Jawbone provides sufficient guidance to a POSITA regarding
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`the scope of the invention. Google simply ignored it.
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`The Court indicated during oral argument that its primary concern was that the use of two
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`“words of approximation” in the claims, e.g., “substantially” or “approximately” with “similar” or
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`“dissimilar,” would prevent a defendant from being able to “quantify or calculate what those words
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`mean.” Ex. 1, Markman Hr’g Tr. 31:1-22, Oct. 14, 2022. At the conclusion of the argument, the
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`Court found the claim terms to be indefinite because it was “unconvinced that you can have two
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`words of degree modifying each other and not be more – provide more in the specification.” Id. at
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`49:2-7.
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`The Court’s decision improperly focused on the alleged ambiguity of the claim language
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`without giving appropriate weight to the disclosure in the specification. As the Federal Circuit
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`Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 7 of 15
`Casec6&2icrvO00S8SAR2A Diocouneein6364 FAitellOA202224 Aeages/obflis
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`ace
`recently clarified in a precedential decision,“‘[c]laim language, standing alone’ is not the correct
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`standard of law and is contrary to uniform precedent.” Nature Simulation Sys. Inc. v. Autodesk,
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`Inc., 50 F.4th 1358, 1364 (Fed. Cir. Oct. 17, 2022). “The function of the claims is not to duplicate
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`the specification.” Jd. at 1365. Rather, “[t]he claims set forth the metes and bounds ofthe invention;
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`they are not intended to repeat the detailed operation of the method as described in the
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`specification.” Jd. at 1366 (citing Liberty Ammunition, Inc. v. United States, 835 F.3d 1388, 1396
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`(Fed. Cir. 2016)
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`(finding the patent specification “saves the term [in the claim]
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`from
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`indefiniteness” by disclosing additional information about the invention that clarifies meaning)).
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`In view of this recent and binding precedent, the Court’s finding of indefiniteness of these
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`claim termsis contrary to the disclosures of the specification. Had the Court construed the claims
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`in light of specification, the Court would have concluded that the claims were not indefinite.
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`Jawbonerespectfully requests that the Court reconsider its decision and construe the Disputed
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`Termsas follows:
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`Claim Term
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`Proposed Construction
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`“approximately similar”
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`“substantially similar”
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`“approximately dissimilar
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`>>
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`“substantially dissimilar”
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`Plain and ordinary meaning or “the responses to noise
`between two microphonesdeviate by no more than 10 to 15
`percent”
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`Plain and ordinary meaning or “the responses to noise
`between two microphonesdeviate by no more than 10 to 15
`percent”
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`Plain and ordinary meaning or“a ratio of responses between
`two microphonesofat least 10 decibels”
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`Plain and ordinary meaningor “a ratio of responses between
`two microphonesofat least 10 decibels”
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`I.
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`BACKGROUND
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`Google filed its opening claim construction brief on May 25, 2022, Dkt. 46, along with a
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`declaration of its expert, Cliff Reader, Ph.D., Dkt. 46-16. Jawbonefiled its responsive claim
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`construction brief on June 15, 2022, Dkt. 51, along with a declaration of its expert, Donald R.
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`Brown, Ph.D., Dkt. 52-1. Google filed its reply on June 29, 2022, Dkt. 56, and Jawbone filed its
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`sur-reply on July 13, 2022, Dkt. 61.
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`The Court conducted the Markman hearing on October 14, 2022. Dkt. 86. Prior to the
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`hearing, the Court provided preliminary constructions finding that the Disputed Terms are
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`indefinite. See Ex. 2, Preliminary Constructions. Jawbone notified the Court that it intended to
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`argue the Disputed Terms at the Markman hearing.
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`The Court rendered its Opinion and Order Regarding Claim Constructions on October 14,
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`2022, in which it held that two groups of claim terms were indefinite. See Dkt. 88 at 3-4.
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`III. LEGAL STANDARDS
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`Rule 54(b) of the Federal Rules of Civil Procedure states that “any order or other decision,
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`however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer
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`than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all
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`the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). “Under Rule 54(b), ‘the
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`trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in
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`the absence of new evidence or an intervening change in or clarification of the substantive law.’”
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`Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017) (quoting Lavespere v. Niagara
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`Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)). “Although the precise standard for
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`evaluating a motion to reconsider under Rule 54(b) is unclear . . . [s]uch a motion requires the
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`Court to determine whether reconsideration is necessary under the circumstances.” AudioEye, Inc.
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`v. accessiBe Ltd., No. 6:20-cv-997-ADA, 2022 WL 827805, at *2 (W.D. Tex. Mar. 9, 2022)
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`(quoting Dallas Cnty., Tex. v. MERSCORP, Inc., 2 F. Supp. 3d 938, 950 (N.D. Tex. 2014)).
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`Moreover, “district courts may engage in rolling claim construction, in which the court
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`revisits and alters its interpretation of the claim terms as its understanding of the technology
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`3
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`Case 6:21-cv-00985-ADA Document 96 Filed 11/01/22 Page 8 of 14Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 9 of 15
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`evolves.” Pfizer, Inc. v. Teva Pharms., USA, Inc., 429 F.3d 1364, 1377 (Fed. Cir. 2005); see also
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`Pressure Prods. Med. Supplies, Inc. v. Greatbatch Ltd., 599 F.3d 1308, 1316 (Fed. Cir. 2010).
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`Claim indefiniteness is decided from the viewpoint of persons skilled in the field of the
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`invention. Personalized Media Commc’ns, LLC v. Int’l Trade Comm’n, 161 F.3d 696, 705 (Fed.
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`Cir. 1998). “Patent claims are viewed and understood in light of the specification, the prosecution
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`history, and other relevant evidence, as ‘would have allowed a skilled artisan to know the scope of
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`the claimed invention with reasonable certainty.’” Nature Simulation, 50 F.4th at 1364 (quoting
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`Sonix Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1376 (Fed. Cir. 2017)). Claim language
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`involving terms of degree is not inherently indefinite. Interval Licensing LLC v. AOL, Inc., 766
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`F.3d 1364, 1370 (Fed. Cir. 2014).
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`IV. ARGUMENT
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`The Court erred in ordering that the Disputed Terms are indefinite because the claims in
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`light of the specification inform a POSITA about the scope of the claimed invention with
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`reasonable certainty. The specification evidence detailed in Jawbone’s briefing and oral argument
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`include quantifiable standards which a POSITA may apply to determine the level of similarity or
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`dissimilarity necessary to meet the claims. In view of this evidence and the Federal Circuit’s
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`clarifying precedent, the Disputed Terms are not indefinite.
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`A.
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`The Disputed Terms Are Not Indefinite Because They Use Terms of
`Approximation
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`The Disputed Terms are not indefinite because they use terms of approximation such as
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`“substantially,” “approximately,” and “similar.” The Federal Circuit “has repeatedly confirmed
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`that relative terms such as ‘substantially’ do not render patent claims so unclear as to prevent a
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`person of skill in the art from ascertaining the scope of the claim.” Deere & Co. v. Bush Hog, LLC,
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`703 F.3d 1349, 1359 (Fed. Cir. 2012). Even without guidance to specific numerical measurements,
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`4
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`the Federal Circuit has found claim phrases are sufficiently definite. See Enzo Biochem, Inc. v.
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`Applera Corp., 599 F.3d 1325, 1335 (Fed. Cir. 2010) (holding that claim phrase “not interfering
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`substantially” is not indefinite even though construction define[d] the term without reference to a
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`precise numerical measurement).
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`The Federal Circuit recently clarified in a precedential decision that indefiniteness
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`decisions are not made on the basis of claim language alone. See Nature Simulation Sys., 50 F.4th
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`at 1364. Since the function of the claims is not to duplicate the specification, but to set forth the
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`metes and bounds of the invention, the claims must be read in ght of the clarifying disclosure in
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`the specification. Id. at 1366. Whether the terms “approximately,” “substantially,” “similar,” and
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`“dissimilar” are “words of approximation” is not dispositive of indefiniteness. Rather, the question
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`is whether these terms, when viewed and understood in light of the intrinsic record, inform a
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`POSITA of the scope of the claims with reasonable certainty. Id. at 1364.
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`As set forth below, the specification contains ample description from which a POSITA
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`would determine the metes and bounds of the claim.
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`B.
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`The Specification of the Asserted Patents Supports the Claim Terms
`are Definite
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`Jawbone’s briefing and oral argument identified the portions of the specification that define
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`how similar or dissimilar the microphones’ responses to noise or speech must be to meet the
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`requirements of the claims. After describing the basic structure of the invention, the specification
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`contains a lengthy discussion spanning over seven columns that details how a POSITA would
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`calculate the responses of the microphones to speech and noise and the margin by which those
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`responses deviate from a perfect system. See, e.g., Ex. 3, ’080 Patent, 9:22-16:55. Finally, the
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`specification provides numerical thresholds for determining whether the system’s performance is
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`sufficient to meet the claims.
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`5
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`1.
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`“Approximately/Substantially Similar” Responses to Noise
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`The patents teach that virtual microphones V1 and V2 “should have similar responses to
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`noise and V1 and V2 should have dissimilar responses to speech.” Ex. 1., 33:6-8; Ex. 3, 3:49-56.
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`The virtual microphones have responses to speech or noise that are calculated using a parameter
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`which may have an error of 10-15% but still yield acceptable results. Dkt. 51 at 22; Ex. 3, 10:3-
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`17; Ex. 1, 34:6-10. This parameter, “beta,” relates to the physical configuration of the system: beta
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`“is a physical variable of the system that depends on the intra-microphone distance do (which is
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`fixed) and the distance ds and angle [from the midpoint between the microphones and the speech
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`source], which can vary.” Ex. 3, 10:3-7, Fig. 2. “The response of all the virtual microphones, both
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`for noise and for speech, include the parameter beta in their calculations.” Ex. 3, 10:39-11:9; Ex.
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`1, 33:15-20. In calculating the response of V1 and V2 to noise, the calculations “incorporate the
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`error” in beta which results in a “difference in their response to noise.” Id. at 34:20-35:1. This
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`error, as discussed above, should be no greater than 10-15%. Ex. 3, 10:10-12.
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`Jawbone explained that the specification teaches that the noise response between V1 and
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`V2 should be “as similar as possible” but “the error in beta is going to cause there to be a difference
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`in their response to noise.” Ex. 3, 11:14-16; Ex. 1, 34:22-35:1. “That difference, if it’s less than 10
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`to 15 percent, is acceptable.” Ex. 1, 35:2-3. In other words, a difference between the response of
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`V1 and V2 to noise of less than 10-15 percent will still be substantially (or approximately) similar
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`and accomplish the function of the claims. Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351,
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`1370 (Fed. Cir. 2008) (construing “’about 30 um’ to accomplish the function of the low-end limit
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`on particle size described in the specification”). Accordingly, the specification provides that the
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`“substantially” or “approximately similar” responses exist when “the responses to noise of the two
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`microphones . . . deviate by no more than 10 to 15 percent.” Ex. 1 at 35:22-36:2.
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`6
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`Under the Federal Circuit’s decision in Nature Simulation Sys., it was not necessary for the
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`10-15% threshold to be written in the claims. “The function of the claims is not to duplicate the
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`specification,” 50 F.4th at 1365, or “to repeat the detailed operation of the method as described in
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`the specification.” Id. at 1366. It is enough that a POSITA, when reading the claims in light of this
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`disclosure, would be informed of the scope of the claims with reasonable certainty.
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`Google does not dispute this evidence. Neither Google nor its expert, in their filings or at
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`the hearing, disputed Jawbone’s interpretation of the specification or its applicability to the claims.
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`Rather, Google merely argued at the hearing that this quantifiable baseline “isn’t sufficient to
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`provide an objective baseline or an objective standard” because “it’s a single example of 10 to 15
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`percent.” Ex. 1, 36:18-19; 37:4-5. This argument is facile because the specification does not
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`describe the invention in terms of “examples.” Rather, the inventor states that “[e]rrors of
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`approximately 10-15% . . . have been used with very little degradation in quality.” Ex. 3, 10-10-
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`12 (emphasis added). The specification goes on to discuss extensive tests of the invention
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`accounting for errors in that range (or even higher) with good results. Id. at 11:20-16:62. Thus, the
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`inventor is describing the results of his testing of the invention, and not merely of an “example.”
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`As such, Google did not show by clear and convincing evidence that the “substantially /
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`approximately similar” claim terms are indefinite.
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`2.
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`“Approximately/Substantially Dissimilar” Responses to
`Speech
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`Jawbone has also shown that the specification informs a POSITA of the meaning of
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`“approximately / substantially dissimilar” and provides a standard for quantifying the term. The
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`specification explicitly discloses that the ratio of the speech responses of V1 to V2, when above
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`10 decibels, is “enough for good performance.” Dkt. 51 at 28; Ex. 3, 3:12-16, 13:5-10, 13:18-20,
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`Fig. 16; Ex. 1, 38:9-13. These acceptable results occur when parameter B, which is a factor that
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`7
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`gives the relationship between the theoretical beta and the real beta of the system (the same beta
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`discussed above), is between 0.8 and 1.1. Ex. 3, 13:5-10, 13:18-20. “This means that the physical
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`β of the system need not be exactly modeled for good performance.” Ex. 3, 3:12-16. A POSITA
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`would understand that responses to noise are approximately or substantially dissimilar under the
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`claims if their ratio is at least 10 decibels.
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`As discussed above, it was not necessary for the 10-decibel threshold to have been written
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`in the claims because the function of the claims is not to duplicate the technical disclosure of the
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`specification. Nature Simulation Sys., 50 F.4th at 1365-67. The guidance in the specification is
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`sufficient to have informed a POSITA of the scope of the claims.
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`C.
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`Appropriate Constructions of the Disputed Terms
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`Jawbone requests that the Disputed Terms be afforded their plain and ordinary meaning to
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`a POSITA in view of the specification. To the extent that the Court finds that a construction is
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`necessary to resolve any dispute of claim scope, the constructions set forth above adopt the
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`quantitative standards disclosed in the specification for the claimed similarity and dissimilarity of
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`the virtual microphones’ responses to noise and speech, respectively.
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`V.
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`CONCLUSION
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`The Court should reconsider its order finding that the Disputed Terms are indefinite and
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`construe the terms according to their plain and ordinary meaning or, in the alternative, the
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`constructions proposed by Jawbone.
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`Dated: November 1, 2022
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`Respectfully submitted,
`
` /s/Peter Lambrianakos
`Raymond W. Mort, III
`Texas Bar No. 00791308
`Email: raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`100 Congress Avenue, Suite 2000
`Austin, Texas 78701
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`8
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`Case 6:21-cv-00985-ADA Document 96 Filed 11/01/22 Page 13 of 14Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 14 of 15
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`Tel/Fax: 512-865-7950
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`OF COUNSEL:
`
`Alfred R. Fabricant (pro hac vice to be filed)
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos (Admitted Pro Hac Vice)
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III (pro hac vice to be filed)
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Richard Cowell (Admitted Pro Hac Vice)
`NY Bar No. 4617759
`Email: rcowell@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`ATTORNEYS FOR PLAINTIFF
` JAWBONE INNOVATIONS, LLC
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`9
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`Case 6:21-cv-00985-ADA Document 96 Filed 11/01/22 Page 14 of 14Case 6:23-cv-00158-ADA Document 63-4 Filed 04/03/24 Page 15 of 15
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on this 1st day of November 2022, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via email.
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`
`
` /s/ Peter Lambrianakos
` Peter Lambrianakos
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`CERTIFICATE OF CONFERENCE
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`Counsel for Plaintiff has complied with the meet and confer requirements of Local Rule
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`CV-7(h) by meeting and conferring with counsel for Defendant Google LLC, Shaun Hassett and
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`David Rosen, on October 31, 2022. Counsel for Defendants indicated that it opposed this motion.
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` /s/ Peter Lambrianakos
` Peter Lambrianakos
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