UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`K/S HIMPP,
`Petitioner,
`
`v.
`
`III HOLDINGS 4, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00781
` Case IPR2017-00782
`Patent 8,654,999 B2
`____________
`
`Record of Oral Hearing
`Held: May 1, 2018
`____________
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`Before SALLY C. MEDLEY, DAVID C. McKONE, and KIMBERLY
`McGRAW, Administrative Patent Judges.
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`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`K/S HIMPP,
`Petitioner,
`
`v.
`
`III HOLDINGS 4, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00781
` Case IPR2017-00782
`Patent 8,654,999 B2
`____________
`
`Record of Oral Hearing
`Held: May 1, 2018
`____________
`
`
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, DAVID C. McKONE, and KIMBERLY
`McGRAW, Administrative Patent Judges.
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`
`
`
`
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`
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`
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`
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`Case IPR2017-00781, Case IPR2017-00782
`Patent 8,654,999 B2
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`APPEARANCES:
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`ON BEHALF OF PETITIONER:
`
`
`HAIXIA LIN
`CHRISTOPHER O’BRIEN
`Wilmer, Cutler, Pickering, Hale and Dorr LLP
`60 State St., Boston MA 02109
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`
`
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`MARGAUX SAVEE, ESQUIRE
`HENRY A. PETRI, Jr., ESQUIRE
`Polsinelli, LLP
`Three Embarcadero Center
`Suite 2400
`San Francisco, California 94111
`
`
`
`The above-entitled matter came on for hearing on Tuesday, May 1,
`2018, commencing at 1:00 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-00781, Case IPR2017-00782
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`P R O C E E D I N G S
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`JUDGE MEDLEY: Good afternoon. This is the hearing for
`IPR2017-00781 and 782 between petitioner, K/S HIMPP, and patent
`owner, III Holdings 4, involving U.S. patent number 8,654,999. Per our
`March 22nd order, each side has 60 minutes to present, and the parties
`shall present in accordance with that order. At this time we would like
`the parties to please introduce themselves, beginning with the petitioner.
`MS. LIN: I am Haixia Lin representing petitioner, K/S HIMPP.
`And with me is Christopher O'Brien, also representing the petitioner.
`JUDGE MEDLEY: And for patent owner?
`MS. SAVEE: Good afternoon. My name is Margaux Savee.
`I'm appearing for Polsinelli on behalf of patent owner. And with me here
`today is Mr. Henry Petri, also from Polsinelli, and Russ Rigby, in-house
`counsel.
`JUDGE MEDLEY: Thank you.
`JUDGE McKONE: This is Judge McKone in Detroit. Can you
`hear me okay?
`JUDGE MEDLEY: Yes. They are nodding their heads.
`JUDGE McKONE: I just wanted to follow up real quick on a
`teleconference we had last Thursday. As you recall, in our decision to
`institute in the 782 matter, we declined to institute on claim 12. The
`recent Supreme Court decision in SAS Institute suggests that we may
`need to deal with that claim now at the final written decision stage. So
`we convened a call on Thursday, and neither party indicated that they
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`wanted this hearing to be put off to address claim 12, so we are
`conducting the hearing as scheduled.
`Now, however, we did ask the parties to confer with their
`clients and meet and confer with each other to determine if they could
`agree on what ought to be the course forward on claim 12. We don't have
`time today to resolve any disputes, but I would like a quick update from
`the parties, if they have anything to report. So it looks like patent owner
`is standing up to speak. I'm happy to start with patent owner.
`MR. PETRI: I apologize, Your Honor, if you want to hear from
`petitioner. We have met and conferred and have agreed that claim 12
`should be withdrawn from the IPR. And whatever guidance the Board
`can give us on the specific procedures for that we would welcome. But
`that would be our proposed resolution.
`JUDGE McKONE: Okay. Is that also the case for petitioner?
`You agree with that?
`MS. LIN: Yes, we do.
`JUDGE McKONE: So I think probably the course going
`forward here would be for the parties to meet and confer one more time
`to determine a few times -- several times next week when both parties are
`available for a conference call and then submit that to the trials e-mail
`box. And we will schedule a conference call sometime next week to
`figure out the precise course that we'll follow to address claim 12 and
`potentially withdraw it from the case. Is that acceptable?
`MR. PETRI: Yes, thank you, Your Honor.
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`MS. LIN: Yes, Your Honor. And I do want to point out that
`yesterday during the Chat With the Chief webinar, they had indicated that
`if both parties agree to terminate part of the claim -- terminate part of the
`case by terminating one or more claims that are not instituted, that that
`would be permissible. I just wanted to update the judges in case they
`hadn't heard.
`JUDGE McKONE: I also listened in on the Chat With the
`Chief, so I'm aware of what you are talking about. We'll just need to
`discuss next week what the precise course is for that. And I just don't
`want to take up the parties' time at this hearing to address that issue.
`MR. PETRI: Thank you, Your Honor.
`JUDGE McKONE: So with that, I think it's probably
`appropriate to start the hearing.
`JUDGE MEDLEY: And would you like to reserve rebuttal
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`time?
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`MS. LIN: Yes, I would like to reserve 20 minutes for rebuttal.
`JUDGE MEDLEY: You may begin.
`MS. LIN: Thank you. Turning to slide 2 of petitioner's
`demonstratives, today's presentation by petitioner will focus on three
`areas. First we'll do a quick overview of the '999 patent. Then we will
`have a brief discussion of the instituted combinations, and then we will
`talk about the issues raised by patent owner. And in particular, as I will
`explain in detail shortly when we get to that section, that the primary
`reference, Fichtl, teaches a sequence of hearing correction filters.
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`Turning to slide 3, the '999 patent is titled System and Method
`of Progressive Hearing Device Adjustment. Turning to slide 4, the '999
`patent discloses that first-time hearing aid users may experience
`psychological distress when their hearing is restored to a normal level.
`To address this issue, incremental hearing adjustments over time ease the
`user from an uncompensated hearing level to a fully compensated level,
`and the purported invention of the '999 patent is the application of these
`incremental correction levels in the form of hearing correction filters.
`For example, looking at slide 5, which shows independent claim 1, it
`recites a sequence of incremental hearing correction filters including a
`first one and a second one of the sequence, the second one being
`designated to follow the first one.
`Slide 6 shows the remaining independent claims. Claim 6
`recites first and second hearing correction filters and claim 10 recites a
`sequence of incremental hearing correction filters, including first and
`second hearing correction filters.
`Turning to slide 7, as shown on this slide and the next slide, 8,
`the Board found that there is a reasonable likelihood that certain claims
`of the '999 patent are obvious over Fichtl in view of various secondary
`references. Now, the issues raised by the patent owner in its patent
`owner response all relate to the primary reference, Fichtl. The patent
`owner does not challenge any of the secondary references as not teaching
`any of the claim limitations for which they are relied upon in the
`instituted grounds. And the patent owner does not challenge whether it
`would have been obvious to combine the references as discussed in each
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`of the instituted grounds. Thus, my presentation today will focus on
`Fichtl, the primary reference.
`We will skip ahead to slide 9. Fichtl discloses audio processing
`parameters, referred to as APP, that are used to shape acoustic signals to
`correct for a user's hearing loss. Notably, APP need not be limited to just
`one type of parameter. Specifically, Fichtl states at column 3, lines 44 to
`47 that APP may be volume, but may also be something else, as for
`example, treble or noise cancelling. Fichtl, like the '999 patent, discloses
`incremental adjustments over time to ease a user from an uncompensated
`hearing level to a fully compensated level. In particular, Fichtl discloses
`an acclimatization algorithm where the amount of compensation
`increases over time by increasing APP.
`JUDGE McKONE: Now, what is the filter that you are
`pointing to? Is the APP the filter or is there something else that is the
`actual filter?
`MS. LIN: So the APP corresponds to a filter. The act of
`adjusting APP or increasing it would include the use of a filter that would
`change the APP so as to enact the correction.
`JUDGE McKONE: I'm sorry, the APP corresponds to a filter?
`MS. LIN: Yes.
`JUDGE McKONE: There seems to be some qualifying
`language there, corresponding. What do you mean by that?
`MS. LIN: The overall effect is Fichtl has an acclimatization
`algorithm, and the algorithm applies filters over time to create each of
`these incremental APP values. For example, one of the APPs is treble.
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`So there is a treble adjustment that can occur over time during Fichtl's
`acclimatization algorithm. And it's well known and I don't think either
`party disputes that when you adjust treble, that involves the use of a
`filter.
`
`JUDGE McKONE: I notice that neither party construed filter
`or told us in so many words what a filter is.
`MS. LIN: To be fair, in our petition, we said that a filter in the
`context of the '999 patent is an adjustment. If you look in our petition
`itself, we have Dr. Atlas discussing how in the context of the '999 patent
`it is a filter. And he testified to that as well during his cross-examination.
`He said -- he was asked what is a filter, and he said that in the context of
`the '999 patent it's simply an adjustment.
`And if we look at slide, I think it's 17, you can see here where it
`says the collection of hearing correction filters may include a series of
`hearing correction adjustments. So the '999 patent makes clear that a
`filter is, in this context, any kind of adjustment that you make.
`JUDGE McKONE: Okay.
`MS. LIN: Returning to slide 10, we are looking at Figure 2 of
`Fichtl. And this is showing an exemplary acclimatization algorithm. It's
`got an intermediate value X which increases while the hearing aid is on.
`It's indicated in red, then held constant in memory while the hearing aid
`is off, as indicated in blue. Each time the hearing aid is turned on, such
`as at time G at the end of the line indicated in blue, APP is set to the last
`value for X as stored in memory, which is called a power-on value or
`POV.
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`Turning to slide 11, APP starts at an initial power-on value
`called iPOV, as highlighted in yellow, and increases over time to each of
`a sequence of replacement power-on values such as rPOV1, highlighted
`in green, and then rPOV2, as highlighted in blue, each time the hearing
`aid is turned on. The sequence continues until it reaches the target
`power-on value called tPOV, as highlighted in purple.
`So in this example, iPOV, highlighted in yellow, corresponds to
`a first in a sequence of hearing correction filters, and rPOV1, highlighted
`in green, corresponds to a second one in the sequence. Thus, Fichtl
`discloses a sequence of hearing correction filters as recited in the '999
`claims.
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`Turning to slide 12, we will now turn to the issues raised by
`patent owner in its patent owner response. For each of these issues,
`patent owner employs the same tactic. First patent owner takes an
`unreasonably narrow interpretation of a claim term, then mischaracterizes
`disclosure of Fichtl to argue that Fichtl fails to disclose the term under
`patent owner's overly narrow interpretation. However, as I will show for
`each of these issues, patent owner's claim interpretations are unsupported
`by the specification, file history or the claims themselves. Furthermore,
`even under patent owner's unreasonably narrow interpretations, Fichtl
`still discloses these terms.
`Now, the first issue raised by patent owner, as shown on slide
`12, is whether Fichtl discloses a hearing correction filter. As shown on
`slides 13 and 14, the term "hearing correction filter" is recited in all
`independent claims of the '999 patent.
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`Turning to slide 15, first I will discuss the proper interpretation
`of the term "hearing correction filter." In the institution decision the
`Board construed this term as a filter that is applied by a processor within
`a hearing aid to a hearing aid profile to reduce the level of correction
`provided to the user by application of the hearing aid profile.
`Now, patent owner disagrees with the Board's construction,
`reiterating its argument from its preliminary response, an argument that
`the Board already considered and rejected. Namely, patent owner argues
`that the term "hearing correction filter" should be narrowed to require not
`just a filter but a collection of filters.
`JUDGE McKONE: Now, we made that ruling in a preliminary
`basis in the decision to institute. You are not arguing that we are bound
`by that earlier decision?
`MS. LIN: No, I am not, but I do think that for the reasons that
`you described in the institution decision that you should ultimately find
`that the construction does not require a collection of filters.
`So turning to slide 16, patent owner argues that column 2, lines
`65 to 66 of the '999 patent provides an express definition that a hearing
`correction filter is a collection of filters. However, if you read column 2,
`lines 65 to 66, it does not state a hearing correction filter is, must be,
`requires, anything like that, a collection of filters. Instead, it merely
`states that the term "hearing correction filter" refers to a collection of
`filters.
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`Now, as the Board explained in its institution decision, the rest
`of this paragraph provides the necessary context for understanding what
`is meant by referring to a collection of filters.
`JUDGE McKONE: I'm not sure that I understand the
`distinction you are drawing between "is" and "refers to." Refers to --
`MS. LIN: In that it alludes to, it's making reference to. It's not
`saying it is itself. And the reason, which will become clear as I walk
`through this paragraph, that it's saying it refers to a collection is because a
`hearing correction filter is actually just one in a sequence of filters, and
`that sequence as a whole forms the collection. So when you say hearing
`correction filter in the context of the '999 patent, you are talking about a
`sequence of them which forms a collection. That's how it refers to a
`collection.
`So in particular, if we look at this paragraph which shows more
`of the context for the portion that patent owner says provides the express
`definition, it starts by explaining that the term "hearing correction filter"
`refers to a collection of filters. The next sentence then explains that the
`collection of hearing correction filters, in other words, the collection of
`filters mentioned in the preceding sentence, may include a series of
`hearing correction adjustments designed to be applied in a sequence over
`time. Thus, taken together, these two sentences explain that the term
`"hearing correction filter" refers to a collection of filters because it is one
`in a sequence of filters applied over a period of time. It does not require
`that each filter in the sequence is itself a collection of filters.
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`Moving on to slide 18, this shows the next two sentences in this
`paragraph which further describe how the collection of hearing correction
`filters forms a sequence, as acknowledged by the Board in the institution
`decision. Thus, as the Board correctly found in the institution decision
`and contrary to patent owner's assertions, the broadest reasonable
`interpretation of a hearing correction filter is simply a filter. Not a
`collection of filters.
`JUDGE McKONE: I would like to ask you some questions on
`Figure 1 of the '999 patent.
`MS. LIN: Yes, sure.
`JUDGE McKONE: I have it up on my screen. I can't see your
`screen there, but I'll assume you'll be able to look at it. This shows a set
`of curves representing how hearing would be adjusted across a range of
`frequencies. I do note that it does show different frequencies being
`attenuated differently. It's not simply moving that curve 106 up the
`graph. There are actually different shaped curves, 110, 112, 114. How
`are we to interpret this? Is each one of these a filter or is each one of
`these lines a set of filters that filter different frequencies differently?
`MS. LIN: Could you repeat your question one more time? You
`are asking how we should --
`JUDGE McKONE: Sure. We have a series of lines on
`Figure 1 that represent hearing corrections across a range of frequencies
`and across time. 106 would be the earliest correction that would be
`applied. Then 110 would be the next correction and so forth. I note that
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`they affect different frequencies differently. Should I interpret line 106
`as a single filter or a set of filters?
`MS. LIN: Well, as an initial matter, and I will answer your
`question, I just want to point out that this is just an illustrated example.
`That's what it's referred to in the specification. So this is one example of
`how to implement a hearing correction filter in the '999 patent.
`JUDGE McKONE: But I'm trying to understand this example
`and the terminology. I want to know what terminology you want me to
`use for this example.
`MS. LIN: Well, so I don't think either party disputes that a
`filter itself may, could include multiple filters. So in this case you could
`use multiple filters to create the specific illustrated example lines that are
`shown in Figure 1. So by construing it --
`JUDGE McKONE: Is that the best interpretation, that 106 is a
`set or series of filters?
`MS. LIN: That is one way to interpret it. I don't know if that's
`necessarily the best way.
`JUDGE McKONE: How would one of ordinary skill in the art
`interpret it?
`MS. LIN: I think they could understand that one way to
`implement this is to use multiple filters. That's one way of doing it. I
`don't presume to say that that's the only way.
`JUDGE McKONE: There's discussion in the patent of using
`different parameters. I don't have it on the tip of my tongue what passage
`that is, but that would be another way to describe it. Is that different?
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`MS. LIN: I would say that's different. I mean, when you see
`generally that there's a lot of settings or coefficients or parameters, that
`doesn't necessarily mean multiple filters. A single filter could have
`multiple coefficients associated with it. You could have different kinds
`of noise reduction, noise cancellation, you could have other sort of
`features compressing that aren't, you know -- that could be other things
`that aren't necessarily like a bunch of frequency band filters. So when it
`talks about lots of coefficients, it could be -- for example, as in Fichtl,
`there could be some parameters that deal with volume. There could be
`some parameters that deal with noise cancellation. So when you have all
`of those, one interpretation is that you could execute those using a
`collection of filters, but that's not the only way they could be executed.
`JUDGE McKONE: What is the difference between a collection
`of filters and a single filter with a collection of parameters? It seems like
`in both cases you have sets of adjustments.
`MS. LIN: What is the difference between a single filter with
`multiple parameters is what you are saying?
`JUDGE McKONE: Yes, and multiple filters.
`MS. LIN: I can explain to you my understanding of what I
`believe the patent owner is requiring by a collection of filters. They
`appear to interpret a collection of filters as being you have different
`filters for each frequency band necessarily, and then each band has its
`own filter, and that's how you have a collection of filters.
`JUDGE McKONE: And you agree with this?
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`MS. LIN: I think that is one way to have a collection of filters.
`I would agree with that. But it wouldn't be the only way. Filter itself is a
`very broad term, so it's hard to describe the entire universe.
`So continuing on with my presentation, now, the patent owner
`explicitly challenged the part of the Board's construction that stated a
`filter but did not otherwise explicitly argue that any other part of the
`construction was incorrect. Despite not making any other challenges to
`the construction, patent owner imposed more requirements when
`discussing the primary reference, Fichtl.
`Turning to slide 20, patent owner appears to interpret the term
`"hearing correction filter" to further require a mechanism that changes
`frequency characteristics and impacts different frequencies in different
`ways.
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`Turning to slide 21, patent owner's expert, Mr. Brown,
`acknowledges that he adopts this narrow view of the term "hearing
`correction filter", namely, that it must provide a varying effect on
`different frequencies of a signal. However, this requirement is
`completely untethered from patent owner's own proposed construction of
`the term "hearing correction filter" which nowhere mentions frequencies,
`let alone providing varying effects on different frequencies. And the
`term "filter" without "more" does not require a varying effect on different
`frequencies.
`As shown on slide 22, patent owner's expert, Mr. Brown,
`confirmed that a filter can treat all frequencies equally, namely that it
`could affect or impact all frequencies the same. Furthermore, there is no
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`Patent 8,654,999 B2
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`indication in the specification or file history that a hearing correction
`filter must impact different frequencies in different ways.
`Returning to slide 17 and 18, nowhere in the passage, starting at
`column 2, line 65, that patent owner cites as providing express definition
`for this term is there any discussion of varying effects on different
`frequencies.
`And returning to slide 20, the only portion of the specification
`cited in support of patent owner's position is at column 4, lines 35 to 39,
`which discloses adjusting selected frequencies to the desired hearing
`level while providing less of an enhancement to the other frequencies.
`Moving over to slide 23, this snippet cited by patent owner is
`part of a sentence that merely discloses an illustrated example. The
`sentence that immediately follows confirms that other hearing --
`incremental hearing corrections could be used, with the next sentence
`explicitly disclosing that filters could be applied to adjust across the
`entire range of frequencies substantially evenly.
`So contrary to patent owner's assertions, a hearing correction
`filter of the '999 patent could have the same impact across all frequencies
`of the signal. Thus, there is no requirement that a hearing correction
`filter impacts different frequencies in different ways. Nevertheless,
`patent owner's assessment of the primary reference, Fichtl, is based on
`this erroneous, overly narrow interpretation of the term "hearing
`correction filter."
`Despite the '999 patent explicitly disclosing at column 4, line 40
`that hearing correction filter could evenly dampen the entire range of
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`frequencies, as we can see on slide 24, patent owner's expert, Mr. Brown,
`states that in his opinion that would not be logical. Thus, Mr. Brown's
`opinions, on which patent owner relies, are based on narrow
`interpretations of the claims that are inconsistent with the '999
`specification itself.
`Moving on to slide 25, I will now address how patent owner
`argues that Fichtl doesn't disclose a hearing correction filter using its
`unreasonably narrow interpretation of that term. Patent owner tries to
`argue that Fichtl only discloses incremental volume adjustments, then
`argues that a volume adjustment, one, does not provide varying effects on
`different portions of the signal and, two, does not involve a collection of
`filters. Now, as an initial matter, as I discussed earlier, neither of these
`are required for a hearing correction filter.
`Furthermore, turning to slide 26, a volume adjustment
`constitutes a hearing correction filter in the context of the '999 patent.
`Mr. Brown testified that a volume control evenly dampens the entire
`range of frequencies. Likewise, the '999 patent discloses at column 4,
`lines 40 to 44 that hearing correction filters can adjust the entire range of
`frequency substantially evenly. Thus, contrary to patent owner's
`assertions, the '999 patent contemplates a hearing correction filter that is
`a volume adjustment like in Fichtl.
`Turning to slide 27, a person of ordinary skill in the art would
`have understood that a volume adjustment may actually be a vector of
`volume values each associated with the loudness of a different frequency
`band, as explained by Dr. Atlas under cross.
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`JUDGE McKONE: Now, this wasn't raised in your petition,
`correct?
`MS. LIN: No, it was not raised in the petition. It came up in
`response to questions from patent owner during his cross-examination.
`JUDGE McKONE: Okay.
`MS. LIN: Turning to slide 28, Mr. Brown confirmed that this
`concept was known, namely it was known before the '999 patent that
`hearing aids included filter coefficients, including a coefficient for each
`frequency band for changing its level of attenuation or loudness. Thus, a
`vector volume adjustment would correspond to a collection of filters
`capable of impacting different frequencies in a different way, as required
`by patent owner. A volume adjustment is, therefore, a hearing correction
`filter even under patent owner's overly narrow view of the term.
`And to return to Judge McKone's question about whether this
`was in the petition, I do want to point out that the only reason that we are
`addressing it now is to address the patent owner's construction which was
`not available at the time of the petition and which, in petitioner's, view is
`erroneous.
`Turning to slide 29, as I discussed earlier, Fichtl discloses other
`adjustments besides volume adjustments. Fichtl's volume, APP may be
`volume but may also being something else such as treble or noise
`cancelling, as stated column 3, lines 44 to 47 of Fichtl. Thus, APP may
`include multiple parameters, for example, parameters such as relating to
`volume, treble and noise cancelling where those parameters may
`correspond to filters and impact different frequencies in different ways.
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`For example, treble adjustments are adjustments to a set of higher
`frequencies. However, patent owner claims that treble adjustments
`would not use a collection of filters and thus would not constitute a
`hearing correction filter.
`Turning to slide 30, patent owner's position is contradicted by
`their own expert's testimony. Mr. Brown acknowledged that treble
`adjustments are adjustments to higher frequencies and that an adjustment
`to a set of higher frequencies could constitute a hearing correction filter.
`So in his mind treble adjustments are a hearing correction filter, contrary
`to what he had said in his declaration.
`Turning to slide 31, in another example, Fichtl's APP could
`include noise cancelling. As explained by Dr. Atlas, in one form of noise
`cancelling, different frequency bands are dampened or amplified
`depending on their noise content. Frequencies bands of relatively high
`noise content can be dampened and bands with relatively low noise
`content can be amplified. Thus, Fichtl's noise cancelling adjustments
`correspond to a collection of filters that provide varying effects on
`different frequencies of the signal.
`In summary, Fichtl discloses a variety of incremental
`adjustments that correspond to hearing correction filters both under the
`proper broadest reasonable interpretation of that term and under patent
`owner's unreasonably narrow view of that term.
`Turning now to slide 32, I will discuss the second issue raised
`by patent owner. Now, we are going to see once again, as with the first
`issue, patent owner takes an unreasonably narrow interpretation of the
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`claim term, in this case the term "sequence," and then mischaracterizes
`again the disclosure of Fichtl to argue that it fails to disclose a sequence
`under patent owner's overly narrow interpretation.
`However, yet again, as with the term "hearing correction filter,"
`patent owner's interpretation of “sequence” is unsupported by the
`specification, file history or the claims themselves. And furthermore,
`even under patent owner's unreasonably narrow interpretation, Fichtl
`discloses a sequence.
`Turning to slide 33, the term "sequence" is recited in
`independent claims 1 and 10 but not independent claim 6. So this issue
`applies to only a subset of the '999 claims.
`Turning to slide 34, patent owner interprets the term "sequence"
`to require that elements of the sequence are determined in advance or
`predictable.
`Turning to slide 35, patent owner's interpretation is contrary to
`the plain and ordinary meaning of the term "sequence" which merely
`requires the following of one element in the sequence after another. In
`particular, sequence is defined, as shown here, as the following of one
`thing after another in chronological, causal or logical order. There is no
`requirement that each of those things is determined in advance or
`predictable.
`Furthermore, Mr. Brown testified that there is no special
`meaning for the term "sequence" in the field of hearing aids and thus,
`there is no reason that the plain and ordinary meaning would not apply.
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`JUDGE McKONE: How is a sequence described in the '999
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`patent?
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`MS. LIN: It talks about a sequence of adjustments. It talks
`about a sequence of filters. You know --
`JUDGE McKONE: They are determined in
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