Case 6:23-cv-00158-ADA Document 63-5 Filed 04/03/24 Page 1 of 85
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`Exhibit 5
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`Case 6:23-cv-00158-ADA Document 63-5 Filed 04/03/24 Page 2 of 85
`Case 6:23-cv-00158-ADA Document 63-5 Filed 04/03/24 Page 2 of 85
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`JAWBONEINNOVATIONS,LLC,
`Plaintiff,
`
`|
`
`ve
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`META PLATFORMS,INC.,
`D/B/A META,
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`Defendant.
`
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`Case No. 6:23-cv-00158-ADA-DTG
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`JURY TRIAL DEMANDED
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`DECLARATION OF CLIFF READER, PH.D.
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`Dated: April 2, 2024
`
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`Cliff Reader. Ph.D.
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`Case 6:23-cv-00158-ADA Document 63-5 Filed 04/03/24 Page 3 of 85
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`
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`I.
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`INTRODUCTION
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`1.
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`2.
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`My name is Cliff Reader, Ph.D. I am over 18 years of age and, if I am called upon to do so, I
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`would be competent to testify as to the matters discussed below.
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`I have prepared this declaration at the request of Defendant Meta Platforms, Inc. (“Meta”). I
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`understand that the parties will be asking the Court to construe certain claim terms in U.S.
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`Patent No. 8,321,213 (the “’213 Patent”), U.S. Patent No. 8,326,611 (the “’611 Patent”), U.S.
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`Patent No. 8,503,691 (the “’691 Patent”), U.S. Patent No. 10,779,080 (the “’080 Patent”), and
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`U.S. Patent No. 11,122,357 (the “’357 Patent”) (collectively, the “Asserted Patents”). I
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`understand that other than the claim terms that I discuss below, the parties dispute additional
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`terms that appear in the ’213, ’611, ’691, ’080, and ’357 patents. It is also my understanding
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`that Jawbone additionally asserts U.S. Patent No. 7,246,058 (the “’058 Patent”), U.S. Patent
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`No. 8,019,091 (the “’091 Patent”), and U.S. Patent No. 8,467,543 (the “’543 Patent”) against
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`Meta. I have previously submitted a declaration in another case concerning at least these same
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`patents. That declaration is attached as Exhibit A and is incorporated by reference herein. I
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`have not been asked by Meta to provide any additional opinions regarding any terms other than
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`the terms that I discuss below.
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`3.
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`In this declaration, I give my opinions regarding the view of a person of ordinary skill in the art
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`of certain terms in the claims of the Asserted Patents. This declaration is based on information
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`currently available to me, and I am willing to testify on the topics addressed below. This case is
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`ongoing, and I may supplement or amend these opinions based on the results of further analysis
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`and in rebuttal to positions taken by the Plaintiff. Because this declaration is based on
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`information currently available to me, I reserve the right to continue my investigation, to
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`review documents and information that may be produced, and to consider declarations,
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`Case 6:23-cv-00158-ADA Document 63-5 Filed 04/03/24 Page 4 of 85
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`briefing, and deposition testimony from future depositions in this case. Therefore, I reserve the
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`right to supplement, expand, and/or modify my opinions as my investigation continues and in
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`response to any additional information that comes to my attention, including matters raised by
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`the Plaintiff and other opinions provided by the Plaintiff’s expert(s).
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`II.
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`QUALIFICATIONS
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`4.
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`Information concerning my professional qualifications, experience, and publications, and the
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`matters in which I have served as an expert, are described in my current curriculum vitae,
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`attached as Exhibit B. I highlight certain relevant experience below.
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`5.
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`I am currently an independent consultant and I provide technical and marketing consulting
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`services in the areas of digital imaging and digital video, including, for example, image and
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`video & audio compression, audio/video transmission, and real-time processing and display. I
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`have worked in this capacity since 2001. I have over forty-five years of work experience in
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`digital video, audio, and imaging. My career includes technical work in areas of algorithm
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`design, system design, and semiconductor chip design.
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`6.
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`I received my Bachelor of Engineering degree with Honors in 1970 from the University of
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`Liverpool, England. I received my Doctoral degree in 1974 from University of Sussex,
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`England. My Ph.D. thesis was on “Orthogonal Transform Coding of Still and Moving
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`Pictures.” The research for my thesis was performed in residence at the Image Processing
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`Institute, University of Southern California, Los Angeles. From 1970 to 1973, I performed my
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`graduate research in video compression. I was one of the first to perform adaptive block
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`transform coding and the first to apply this type of coding to video. This is described in my
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`thesis and summarized in a 1975 SPIE paper. See Reader C, Intraframe and Interframe
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`Adaptive Transform Coding, SPIE Vol. 66, 1975. These techniques underlie the audiovisual
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`coding standards known as “MPEG” (Moving Picture Experts Group), and virtually all other
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`video compression schemes today.
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`7.
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`From 1975 to 1989, I worked in the engineering field of real-time, interactive image and video
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`processing and display. Applications included military imaging, reconnaissance imaging,
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`8.
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`9.
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`medical imaging and earth resources imaging.
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`In the early 1980s I taught “early bird” classes at Santa Clara University in the fundamentals of
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`digital signal processing.
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`In the 1990 timeframe, semiconductor technology passed a critical threshold that supported
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`logic chips and attendant DRAM capable of processing digital video at real-time rates and costs
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`for consumer devices. While employed by Cypress Semiconductor, I began developing a
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`semiconductor chip to implement an audio, video and systems decoder for the emerging
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`MPEG-1 standard. I designed a hierarchical architecture with an embedded ARM
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`microprocessor running a real-time OS, controlling a programmable “video DSP” and
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`dedicated hardware modules. My work included writing a software implementation of a
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`complete MPEG- 1 encoder and decoder. The encoder and decoder included a video encoder
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`and decoder, an audio encoder and decoder, and a “systems” component for multiplexing,
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`buffering and synchronizing the video and audio components. Subsequently, I worked on a
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`similar project for the MPEG-2 standard at Samsung Semiconductor. Both projects included
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`the videoconferencing application, which included the ITU series of speech codecs.
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`10.
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`I became an accredited member of the Moving Picture Experts Group (MPEG) in 1990. From
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`1991 to 1992, I was the head of the US delegation to MPEG. I chaired the US ANSI
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`subcommittee, and led the formation of US positions on the emerging video and audio
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`standards. I was the chief editor of the MPEG1 standard, and wrote and edited all three parts of
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`the standard (video, audio and systems).
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`11.
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`From 1990 to 1995, I was deeply involved in the development of the MPEG1 and MPEG2
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`audio coding standards. I participated in the development of what became the mp3 audio
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`standard, fostered the involvement of Dolby in the standardization process, and drove the
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`MPEG2 audio standards development that led to the adoption of the AAC family of digital
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`audio coding standards. The audio standards are based on a perceptual model of the human
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`hearing process, and employ transform domain techniques to mask audio noise.
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`12.
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`I chaired the ITU implementation subcommittee that analyzed MPEG1 Audio (aka
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`MUSICAM), Dolby AC3 and other proposed algorithms for cost of implementation.
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`13.
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`From 1992 to 1993, I was hired by CableLabs to be the technical expert for establishing the
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`MPEG Patent Pool (now MPEGLA). In the course of creating a list of essential intellectual
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`property to practice the standard, I reviewed approximately ten thousand abstracts and one
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`thousand patents.
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`14.
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`In the early 2000s, I was an invited expert to the joint ISO-MPEG/ITU-VCEG committee
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`developing the H.264/AVC video standard for videoconferencing and consumer video
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`applications.
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`15.
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`In 2003, I was invited to chair the IPR Subgroup of the Audio Video coding Standard
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`Workgroup of China (AVS). I was invited to lead formation of the AVS Patent Pool, for which
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`I drafted the formal legal agreements and led negotiations with evaluated essential patent
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`holders that led to the AVS1 and AVS2 patent pools. I am co-director of the AVS patent pools.
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`16.
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`In 2013, I was retained to analyze the contributions to the H.265/HEVC standard that were
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`adopted into the final standard.
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`17.
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`I am an independent expert in this case. All of my opinions stated in this declaration are based
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`on my own personal knowledge and professional judgment. In forming my opinions, I have
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`relied on my education, experience, and knowledge regarding engineering, video/audio
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`compression, audio/video transmission, signal and audio processing, real-time processing and
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`display, system and algorithm design, and communications. I am being compensated $850 per
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`hour for my work in connection with this case regardless of the outcome.
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`III. MATERIALS AND OTHER INFORMATION CONSIDERED
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`18.
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`I have reviewed each of the Asserted Patents along with their file histories, the parties’
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`exchange of terms and proposed constructions, and the evidence identified therein. I have also
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`considered the sources cited below as well as my over 45 years of educational and professional
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`experience in research and development in the areas of engineering, video/audio compression,
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`audio/video transmission, signal and audio processing, real-time processing and display,
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`system and algorithm design, and communications. In addition to the documents cited within
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`this declaration, materials I considered are listed in Exhibit C.
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`IV.
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`LEGAL FRAMEWORK FOR CLAIM CONSTRUCTION
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`19.
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`I am not an attorney or a legal expert, and I offer no opinions on the law. In preparation for
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`forming the opinions stated in this declaration, I have been informed of the relevant legal
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`principles. I have used my understanding of those principles in forming the opinions stated in
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`this declaration. Below I provide those principles relevant to this declaration as explained to me
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`by counsel for Defendants and as I understand them.
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`A.
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`Plain and Ordinary Meaning
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`20.
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`I understand that the appropriate starting point for claim construction is the language of the
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`claim, i.e., the numbered paragraphs toward the end of a patent. I understand that the claims
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`define the patented invention and that claim construction must always remain centered on the
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`language of the claim itself.
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`21.
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`I understand that claim terms are generally given their ordinary and customary meaning to a
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`person of ordinary skill in the art (“POSITA”) in the relevant field and that the ordinary and
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`customary meaning is determined, depending on the patent, at the time the patent- in-suit was
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`filed or at the time of the invention.
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`B.
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`Intrinsic Evidence
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`22.
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`I understand intrinsic evidence to include the language of the claims, the specification of the
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`patent (including the drawings), and the prosecution history of the patent and its family
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`members (including the references cited and/or considered in the prosecution history). I
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`understand the intrinsic evidence is the primary guide in determining the meaning of claims.
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`For example, if there are two potential plain and ordinary meanings, the intrinsic evidence may
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`confirm which of the two may be best applied to the term in question.
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`23.
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`I understand that there are two exceptions to the general rule that claim terms are construed
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`according to their plain and ordinary meaning: 1) when a patentee sets out a definition and acts
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`as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term
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`either in the specification or during prosecution.
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`C.
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`Extrinsic Evidence
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`24.
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`I understand that although the intrinsic evidence is the most important evidence in claim
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`construction, extrinsic evidence may also be helpful in understanding the meaning of a claim
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`term. I understand extrinsic evidence is all evidence other than intrinsic evidence, including, for
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`example, inventor testimony, dictionaries, expert testimony, and learned treatises. While
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`extrinsic evidence can shed useful light on the relevant term, it is less significant than the
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`intrinsic record, and extrinsic evidence may be considered if it is consistent with (and not
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`contradictory to) the intrinsic evidence.
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`25.
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`Because dictionaries, and especially technical dictionaries, endeavor to collect the accepted
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`meanings of terms used in various fields of science and technology, I understand that they may
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`be useful as a resource in determining the meaning of a particular term to a POSITA.
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`D.
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`Indefiniteness
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`26.
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`I understand that although absolute precision in claim language is not required, a claim term
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`can be “indefinite” if its scope is not reasonably certain in light of the specification and
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`prosecution history, meaning that it fails to provide sufficient clarity about the bounds of the
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`term to a POSITA. I further understand that if a claim term can have multiple meanings, and
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`the proper meaning depends solely on a person’s subjective opinion, it is indefinite.
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`V.
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`LEVEL OF SKILL OF ONE OF ORDINARY SKILL IN THE ART
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`27.
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`I have been advised that a person of ordinary skill in the art is a hypothetical person to which
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`the claimed subject matter pertains with the capability of understanding the scientific and
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`engineering principles applicable to the pertinent art. I understand that the following factors
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`may be considered in determining the level of ordinary skill: the type of problems encountered
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`in the art; prior art solutions to those problems; the speed with which innovations are made; the
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`sophistication of the technology; and the educational level of active workers in the field. I also
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`understand that not every factor may be present and that one or more factors may predominate.
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`28.
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`I understand that the parties may have a dispute over the relevant timeframe for determining
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`who is a POSITA. I understand that the timeframe for determining a POSITA could be as early
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`as June 2000 to as late as October 2009 across the patents I have reviewed. In my opinion, this
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`approximate seven-year difference in the timeframe does not materially change the
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`qualifications of a POSITA, and based on the nature of the terms at issue, my opinions in this
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`declaration would be the same regardless of the outcome of that dispute.
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`29.
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`In my opinion, a person of ordinary skill in the art at the relevant time would be a person with
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`at least the equivalent of a bachelor’s degree in electrical engineering, computer science, audio
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`engineering or a similar field and two years of experience in a relevant field, such as, acoustics,
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`speech recognition, speech detection, signal processing, and/or designing microphone arrays.
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`During the relevant time from June 2000 to as late as October 2009, I was at least a person of
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`ordinary skill in the art.
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`VI. OVERVIEW OF THE PATENTS
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`A.
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`The ’213 and ’611 Patents
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`30.
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`The ’213 patent is generally directed to “Acoustic Voice Activity Detection (AVAD) methods
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`and systems” that “use microphones to generate virtual directional microphones which have
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`very similar noise responses and very dissimilar speech responses.” ’213 patent at Abstract.
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`According to the ’213 patent, “[t]he ratio of the energies of the virtual microphones is then
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`calculated over a given window size and the ratio can then be used with a variety of methods to
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`generate a VAD signal.” Id.
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`31.
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`Specifically, the ’213 patent describes an AVAD system that “uses two physical microphones
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`[] to form two virtual microphones,” where the physical microphones “include omnidirectional
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`microphones.” Id. at 4:14-21. The ’213 patent also describes “the use of an adaptive filter to
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`further minimize the speech response” of one virtual microphone, “thereby increasing the
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`speech energy ratio used in PSAD and resulting in better overall performance of the AVAD.”
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`Id. at 4:27-31.
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`32.
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`The ’611 patent shares a specification with the ’213 patent.
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`B.
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`The ’691, ’357 and ’080 Patents
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`33.
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`The ’691 patent is generally directed to “noise suppression systems, devices, and methods for
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`use in acoustic applications.” ’691 patent at 1:15–17. Specifically, the ’691 patent discloses
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`“dual omnidirectional microphone array devices, systems, and methods.” Id. at 3:38-39.
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`According to the ’691 patent, “[c]onventional adaptive noise suppression algorithms . . . have
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`used two or more microphones to sample both an (unwanted) acoustic noise field and the
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`(desired) speech of the user,” which “have not been very successful for a variety of reasons, the
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`most compelling being poor noise cancellation performance and/or significant speech
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`distortion.” Id. at 1:21-46.
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`34.
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`The ’691 patent discloses “a dual omnidirectional microphone array (DOMA) that provides
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`improved noise suppression.” Id. at 4:61–62. According to the ’691 patent, “[c]ompared to
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`conventional arrays and algorithms, which seek to reduce noise by nulling out noise sources,
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`the array of an embodiment is used to form two distinct virtual directional microphones which
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`are configured to have very similar noise responses and very dissimilar speech responses.” Id.
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`at 4:63–67. The ’691 patent discloses creating two virtual directional microphones using the
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`combination of two physical omnidirectional microphones and associated signal processing.
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`35.
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`The ’357 patent is a continuation of the ’691 patent and shares a specification. The ’080 patent
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`has a specification that is similar to the ’691 with respect to the description above.
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`VII. DISPUTED TERMS
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`36.
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`In this section, I give my opinions regarding the view of a POSITA of certain terms in the
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`asserted claims of the Asserted Patents.
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`A.
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` The ’213 and ’611 patents: The terms “approximately similar” and
`“approximately dissimilar” are indefinite.
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`37.
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`The terms “approximately similar” and “approximately dissimilar” occur in claims 2, 37, and
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`38 of the ’213 patent, and in claims 3, 4, and 29 of the ’611 patent. All the claims in which the
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`terms appear are dependent claims. Each depends from an independent claim that requires the
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`formation of a “first virtual microphone” and a “second virtual microphone.” The six
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`dependent claims add the limitation that the first virtual microphone and the second virtual
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`microphone have “approximately similar responses to noise” and/or “approximately dissimilar
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`responses to speech.” Thus, the questions a person of ordinary skill in the art would face is how
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`to decide, with reasonable certainty, how similar the respective responses of the first virtual
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`microphone and the second virtual microphone must be to satisfy the “approximately similar”
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`requirement with respect to noise, and how dissimilar the respective responses of the first
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`virtual microphone and the second virtual microphone must be to satisfy the “approximately
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`dissimilar” requirement with respect to speech. In my opinion, a POSITA would not have been
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`able to discern any objective standards or other criteria by which to answer these questions
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`with reasonable certainty.
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`38.
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`First, to begin with, at the time of the purported invention of the ’213 and ’611 patents (i.e.,
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`June 20051), there was no generally accepted understanding of what “approximately similar”
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`1 I have been informed that Jawbone alleges the ’213 and ’611 patents have an earliest invention date in June 2005
`and that Jawbone further alleges the ’213 and ’611 patents are entitled to at least the filing date of its earliest
`application, U.S. Patent Application No. 11/805,987, filed May 25, 2007. However, I have not seen any analysis
`that demonstrates that these patents are entitled to an invention date of June 2005, nor have I see any analysis that
`demonstrates the ’987 application meets the enablement or written description requirements for these patents to
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`meant in connection with comparing the respective responses to noise of two virtual
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`microphones. Nor was there a generally accepted understanding of what “approximately
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`dissimilar” meant in connection with comparing the respective responses to speech of two
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`virtual microphones. I am aware of no technical, dictionary, or other accepted definition of the
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`term “approximately similar” or “approximately dissimilar” in this context at the relevant time.
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`39.
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`Second, based on my review, neither the specification nor the prosecution history of the ’213
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`and ’611 patents supply any objective standards by which to measure the bounds of when
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`responses to noise are “approximately similar” or when responses to speech are “approximately
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`dissimilar.” Although the specification includes some examples of two virtual microphones
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`responding to noise and speech, none of those examples use the terms “approximately similar”
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`or “approximately dissimilar” when comparing how the first virtual microphone and the second
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`virtual microphone respond to speech or noise. Instead, the virtual microphones’ responses to
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`noise and speech are consistently described either as “very similar” or “very dissimilar.” See,
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`e.g., ’213 patent at 3:57-62 (“Acoustic Voice Activity Detection (AVAD) methods and systems
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`are described herein. The AVAD methods and systems, which include algorithms or programs,
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`use microphones to generate virtual directional microphones which have very similar noise
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`responses and very dissimilar speech responses.”); id. at 4:23-25 (“V1 is configured so that it
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`does respond to the user’s speech but has a very similar noise magnitude response to V2); id. at
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`5:35-37 (“For this configuration V1 and V2 have very similar noise response magnitudes and
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`very dissimilar speech response magnitudes
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`”); id. at 8:61-62 (“Examining FIG. 6, the
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`response of both V1 and V2 are very similar . . . .”); id. at 17:49-51 (“The two virtual
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`microphones are configured to have very similar noise responses and very dissimilar speech
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`claim priority to the ’987 application. Nonetheless, even if I were to assume the earlier priority date of June 2005 or
`May 25, 2007 for these patents, that would not affect any of my analysis described in this declaration.
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`responses.”); id. at 24:63-65 (“The linear response of virtual microphone V1 to noise is devoid
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`of or includes no null and the response is very similar to V2 shown in FIG. 26.”).
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`40.
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`In my opinion, the intrinsic evidence provides no guidance for differentiating the “very
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`similar/dissimilar” examples in the specification from the “approximately similar/dissimilar”
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`language used in the claims. For example, if a POSITA wished to design a device that avoids
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`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 used 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 of the patent (which the patent describes only as “very
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`similar”), the designer of the device would have no way to determine if the responses crossed
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`the ambiguous threshold between “very similar” and “approximately similar.” Neither the
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`specification nor the prosecution history provides a basis for making such a distinction.
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`41.
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`I understand that after initially proposing that these terms should have their plain and ordinary
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`meaning, Jawbone next proposed a first alternative construction, before proposing its current
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`alternative construction. These are summarized in the table below, with emphasis in red.
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`Term
`
`“approximately
`similar”
`
`Jawbone’s
`original proposal
`Plain and ordinary
`meaning; no
`construction
`necessary.
`
`“approximately
`dissimilar”
`
`Plain and ordinary
`meaning; no
`construction
`necessary.
`
`Jawbone’s next
`proposal
`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
`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
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`absolute value of 10 dB or
`more”
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`As an initial matter, as I’ve highlighted in the above table in red, Jawbone has changed its
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`alternate construction proposals for “approximately similar” from a deviation “by no more
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`than 10 to 15 percent” to a “ratio has an absolute value of less than 10 dB.” This is a
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`drastically significant change. When converted to a percentage value, 10 dB corresponds to a
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`1000% deviation, which represents a value that is orders of magnitude larger than Jawbone’s
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`previous proposal of 10-15%. Indeed, Jawbone’s current proposal is 67 (i.e., which is 1000
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`divided by 15) to 100 (i.e., which is 1000 divided by 10) times larger than its previous
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`proposal.
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`42. Moreover, as I’ve highlighted further in the above table in red, Jawbone has also changed its
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`proposals for “approximately dissimilar” from a ratio of at least 10 dB to a ratio having an
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`“absolute value” of 10 dB or more. Jawbone has therefore broadened its previous proposal,
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`which was restricted to only positive ratios of at least 10 dB, to its current proposal, which now
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`allows the ratio to take on negative values of less than or equal to -10 dB as well as positive
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`values of more than or equal to 10 dB.
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`43.
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`Setting this aside for the moment, it is also the case that neither of Jawbone’s alternative
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`formulations, based on a deviation of 10-15%, or a ratio of 10 dB, is supported by the patent
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`specification.
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`44.
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`In my opinion, Jawbone’s previous proposal that “approximately similar” should mean a
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`deviation “by no more than 10 to 15 percent” is unsupported. The patents do not associate an
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`objective boundary of 10-15% with the term “similar,” let alone “approximately similar.”
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`Instead, the patents merely state that “[e]rrors of approximately 10-15% in the actual (cid:533)” “have
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`been used with very little degradation in quality,” but does not associate these errors with
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`anything being “approximately similar,” let alone responses to noise that are “approximately
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`similar.” See, e.g., ’213 patent at 23:25-53. The only teaching in the specification regarding a
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`10-15% deviation is with respect to the term (cid:533), which is “a physical variable of the system that
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`depends on the intra-microphone distance d0 (which is fixed) and the distance ds (cid:68)(cid:81)(cid:71) (cid:68)(cid:81)(cid:74)(cid:79)(cid:72) (cid:537)(cid:15)
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`which can vary.” See id. at 23:25-53. In particular, (cid:533) is a ratio of the distances of the
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`microphones from the speech source. Id. Thus, (cid:533) is “is “a physical variable” that does not
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`provide an objective boundary for whether “the first virtual microphone and the second virtual
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`microphone have approximately similar responses to noise.” In fact, far from being related to
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`“responses to noise,” the patents teach to calculate (cid:533) “when little or no noise is present” (see id.
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`at 23:49-52). Moreover, even if (cid:533) were a measure of whether “the first virtual microphone and
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`the second virtual microphone have approximately similar responses to noise” (it is not), the
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`10-15% is not taught as a value of (cid:533), but instead is an error in (cid:533). See id. at 23:25-53 ( “[e]rrors
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`of approximately 10-15% in the actual (cid:533)” “have been used with very little degradation in
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`quality.”). In other words, while (cid:533) itself is a physical parameter related to the ratio of the
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`distances of the microphones from the speech source, the error in (cid:533) is just the uncertainty in
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`the value of (cid:533), not an expression of how “approximately similar” two responses to noise are.
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`45.
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`In my opinion, Jawbone’s current proposal that “approximately similar” should mean a ratio
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`having “an absolute value of less than 10 dB” and that “approximately dissimilar” should
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`mean a ratio having “an absolute value of 10 dB or more” is unsupported. The patents do not
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`associate an objective boundary of 10 dB with the term “similar” or “dissimilar,” let alone
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`“approximately similar” or “approximately dissimilar.” Instead, the patents merely state that a
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`V1/V2 ratio of “above approximately 10 dB” is a metric that is “enough for good performance.”
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`See, id. at 26:54-64. However, nowhere do the patents refer to 10 dB as a boundary to define
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`responses to noise that are “approximately similar” or responses to speech that are
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`“approximately dissimilar.” In fact, the only portion of the patents that references a 10 dB ratio
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`is limited to “speech responses,” but not speech responses that are “approximately dissimilar.”
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`Moreover, the only portion of the patents that references a 10 dB ratio mentions nothing about
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`responses to noise, let alone responses to noise that are “approximately similar.”
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`46.
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`Third, I have reviewed various dictionary definitions of the words in these terms:
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`“approximately,” “similar,” and “dissimilar,” all of which confirm these terms are indefinite.
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`The dictionary definitions confirm that each of the words in these terms is a word of degree, is
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`imprecise, and provides no standard for determining its scope. For example, “approximately”
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`is synonymous with “inexact.” See Penguin Dictionary Excerpts (Approximately); see also
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`Collins Dictionary Excerpts (Approximately: “around; roughly or in the region of”); Oxford
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`Dictionary Excerpts (Approximately: “close to the actual, but not completely accurate or
`
`exact”). “Similar” and “dissimilar” are likewise imprecise terms. See Penguin Dictionary
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`Excerpts (Similar: “marked by correspondence or resemblance, esp of a general kind”); Collins
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`Dictionary Excerpts (Similar: “showing resemblance in qualities, characteristics, or
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`appearance; alike but not identical”); Oxford Dictionary Excerpts (Similar: “resembling
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`without being identical”); Penguin Dictionary Excerpts (Dissimilar: “not similar; unlike”);
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`Collins Dictionary Excerpts (Dissimilar: “not alike; not similar; different”); Oxford Dictionary
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`Excerpts (Dissimilar: “not alike; different”).
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`47.
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`In short, a POSITA would not have been able to ascertain the scope of the terms
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`“approximately similar” and “approximately dissimilar” with reasonable certainty.
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`B.
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`The ‘080, ‘691, and ‘357 patents: The term “substantially similar” and
`“substantially dissimilar” are indefinite.
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`48.
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`The terms “substantially similar” and “substantially dissimilar” appear in ten independent
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`claims of the ’691, ’080, and ’357 patents. The ’357 patent is a continuation of the ’691 patent
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`and the two patents share a common specification. The ’080 patent has a specification that is
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`the same as or similar to the specification for the ’357 and ’691 patents with respect to these
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`disputed claim terms. The independent claims at issue all recite the formation of a “first virtual
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`microphone” and a “second virtual microphone” that have “substantially similar