Paper No. 26
`Trials@uspto.gov
`Entered: July 23, 2018
`571-272-7822
`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
`Patent 8,654,999 B2
`____________
`
`
`Before SALLY C. MEDLEY, DAVID C. MCKONE, and
`KIMBERLY MCGRAW, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`Trials@uspto.gov
`Entered: July 23, 2018
`571-272-7822
`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
`Patent 8,654,999 B2
`____________
`
`
`Before SALLY C. MEDLEY, DAVID C. MCKONE, and
`KIMBERLY MCGRAW, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`IPR2017-00781
`Patent 8,654,999 B2
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`I. INTRODUCTION
`
`A. Background
`K/S HIMPP (“Petitioner”) filed a Petition (Paper 3, “Pet.”) to institute
`an inter partes review of claims 1–9 and 16–19 of U.S. Patent No. 8,654,999
`B2 (Ex. 1001, “the ’999 patent”). Petitioner indicates that GN Hearing A/S
`(formerly GN Resound A/S), GN Store Nord A/S, IntriCon Corporation,
`Sivantos GmbH, Sivantos Inc., Sonova Holding AG, Sonova AG (formerly
`Phonak AG), Starkey Laboratories, Inc. (aka Starkey Hearing
`Technologies), Widex A/S, and William Demant Holding A/S are also real
`parties in interest. Pet. 1. III Holdings 4, LLC (“Patent Owner”), filed a
`Preliminary Response (Paper 7, “Prelim. Resp.”).
`Pursuant to 35 U.S.C. § 314, in our Institution Decision (Paper 8,
`“Dec.”), we instituted this proceeding as to claims 1–9 and 16–19.
`Patent Owner filed a Patent Owner’s Response (Paper 12, “PO
`Resp.”), and Petitioner filed a Reply to the Patent Owner’s Response
`(Paper 15, “Reply”).
`Patent Owner also filed a Motion to Exclude Evidence (Paper 17,
`“Mot. to Exclude”), Petitioner filed an Opposition to the Motion to Exclude
`(Paper 21, “Opp. to Mot. to Exclude”), and Patent Owner filed a Reply to
`the Opposition to the Motion to Exclude (Paper 22, “Reply Mot. to
`Exclude”).
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`Petitioner relies on the Declaration of Les Atlas, Ph.D. (Ex. 1008,
`“Atlas Decl.”).1 Patent Owner relies on the Declaration of Clyde Brown
`(Ex. 2003, “Brown Decl.”).
`An oral argument was held on May 1, 2018 (Paper 25, “Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. This Decision is a final
`written decision under 35 U.S.C. § 318(a) as to the patentability of claims 1–
`9 and 16–19. Based on the record before us, Petitioner has proved, by a
`preponderance of the evidence, that claims 1–9 and 16–19 are unpatentable.
`
`B. Related Matters
`Petitioner challenges claims 10–15 and 20 of the ’999 patent in K/S
`HIMPP v. III Holdings 4, LLC, Case IPR2017-00782 (PTAB). Pet. 2.
`
`
`
`
`C. Asserted Prior Art References
`Petitioner relies on the following prior art:
`July 22, 2014
`
`Ex. 1003 (“Fichtl”)
`US 8,787,603 B2
`(filed June 19, 2012)
`
`
`
`
`
`
`
`Ex. 1004 (“Sacha”)
`US 2003/0215105 A1 Nov. 20, 2003
`Ex. 1006 (“Bisgaard”) US 6,741,712 B2
`
`May 25, 2004
`Ex. 1007 (“Mangold”) US 4,972,487
`
`Nov. 20, 1990
`
`
`1 Patent Owner argues that we should give Dr. Atlas’s Declaration no weight
`because it merely repeats the arguments in the Petition. PO Resp. 37–39. In
`the cases of both Dr. Atlas’s testimony and that of Mr. Brown (whose
`Declaration suffers from essentially the same defect Patent Owner ascribes
`to Dr. Atlas’s testimony) we evaluate the extent to which expert testimony
`discloses the underlying facts or data on which it is based as a factor in
`determining the weight to give that testimony. See 37 C.F.R. § 42.65(a).
`We are not persuaded to discount either expert’s testimony entirely.
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`Ex. 1009 (“DE961”)
`
`DE 195 42 961 C1
`
`May 15, 19972
`
`
`
`§ 103(a)
`
`18
`
`§ 103(a)
`
`6–9 and 17
`
`D. The Asserted Grounds
`We instituted on the following grounds of unpatentability (Dec. 38):
`References
`Basis
`Claim(s) Challenged
`Fichtl, Mangold, and Bisgaard
`§ 103(a)
`1–5 and 16
`Fichtl, Mangold, Bisgaard, and
`Sacha
`Fichtl, Sacha, Mangold, and DE961
`Fichtl, Mangold, Bisgaard, Sacha,
`and DE961
`
`E. The ’999 Patent
`The ’999 patent describes a hearing aid system. By way of
`background, the ’999 patent explains that an individual’s hearing loss can
`vary across audio frequencies and that an audiologist typically measures the
`individual’s hearing capacities in various environments and tunes or
`calibrates a hearing aid for the individual to compensate for that individual’s
`particular hearing loss. Ex. 1001, 1:46–55. The patent further notes that the
`
`§ 103(a)
`
`19
`
`
`2 Petitioner relies on a verified English translation of a German publication.
`We cite to the English translation. Exhibit 1009 is a subject of Patent
`Owner’s Motion to Exclude. Paper 17, 1–4. In particular, Patent Owner
`argues that the translator’s verification is not compliant with 37 C.F.R.
`§ 42.63. In response, Petitioner submitted Exhibit 1015, the same translation
`with a new verification compliant with Rule 42.63. We discuss the Motion
`to Exclude in detail below. To be consistent with the citations in the parties’
`papers, we cite to Exhibit 1009 when referring to DE961, although cites to
`Exhibit 1015 would be the same.
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`abrupt transition to a hearing aid can be traumatic or distressful for the
`individual. Id. at 1:58–67. To address this, the ’999 patent describes a
`hearing aid system in which, “rather than abruptly implementing the hearing
`correction for the user immediately, the hearing aid progressively applies
`incremental adjustments to progressively or gradually adjust the user’s
`experience from an uncompensated hearing level to a fully compensated
`hearing level.” Id. at 2:30–34.
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`Figure 2, reproduced below, illustrates an embodiment of the hearing
`aid system of the ’999 patent:
`
`
`Figure 2 is a block diagram of a hearing aid system. Id. at 2:10–12. Hearing
`aid 202 and computing device 252 (e.g., a personal digital assistant (PDA) or
`smart phone) communicate using transceivers 216 and 264, through a wired
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`or wireless channel (e.g., a Bluetooth channel or network 230). Id. at 5:49–
`61, 6:3–16. Hearing aid 202 includes memory 204 and processor 210 to
`store and process hearing aid profiles 218 and hearing correction filters 220.
`Id. at 5:61–6:2. Computing device 252 includes memory 254 and processor
`260 for storing and processing hearing aid profiles 270 and hearing
`correction filters 272. Id. at 6:29–35.
`Processor 210 of hearing aid 202 shapes acoustic signals according to
`a “hearing aid profile,” which the patent explains is “a collection of acoustic
`configuration settings,” and provides the shaped acoustic signals to a speaker
`or bone conduction element to correct a user’s hearing loss. Id. at 2:40–46.
`In one embodiment, processor 210 applies a “collection of hearing
`correction filters” that “include a series of hearing correction adjustments
`designed to be applied in a sequence over a period of time to provide
`incremental corrections for the user’s hearing loss.” Id. at 3:2–7. For
`example, “a first hearing correction filter attenuates the hearing aid profile
`by a pre-determined amount” and “[e]ach . . . subsequent hearing correction
`filter in the sequence increases the correction provided by (decreases the
`attenuation applied to) the hearing aid profile to some degree, until the
`sequence is complete and the hearing aid profile is fully applied to provide
`the desired hearing correction for the user.” Id. at 3:7–15. The processor
`can provide an alert to the user when the user’s hearing is at the desired level
`and the adjustment process is complete. Id. at 10:55–59. For example, “the
`alert may be an audible alert reproduced through a speaker of hearing aid” or
`“may be sent to the computing device for display on the display interface.”
`Id. at 10:59–62.
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`In one embodiment, processor 210 of hearing aid 202 selectively
`applies a hearing correction filter 220 to selected hearing aid profile 218 to
`provide hearing correction for a period of time before advancing to a next
`incremental hearing correction filter 220 in a sequence. Id. at 6:42–52. In
`another embodiment, hearing aid 202 receives a trigger from computing
`device 252 through the communication channel and selects a filter from
`hearing correction filters 222 for application to a selected hearing aid profile
`218. Id. at 7:9–16. In some instances, hearing aid 202 can signal computing
`device 252 to retrieve an incremental hearing correction filter 276 from
`memory 254. Id. at 9:62–65.
`Claims 1 and 6 are the only independent claims at issue in this
`proceeding. Claim 1, reproduced below, is illustrative of the invention:
`1.
`A hearing aid comprising:
`a microphone to convert sound into electrical signals;
`a speaker to output audible sound;
`a processor; and
`a memory to store instructions, which when executed by the
`processor, cause the processor to:
`receive a selection of a hearing aid profile from a
`plurality of hearing aid profiles, the selected
`hearing aid profile configured to modulate the
`electrical signals to a level to compensate for a
`hearing impairment of a user;
`apply a first one of a sequence of incremental hearing
`correction filters to the modulated electrical signals
`to produce a modulated output signal to reduce the
`amplitude of the modulated electrical signals
`produced by the selected hearing aid profile to a
`first level that is less than a level to compensate for
`the hearing impairment of the user;
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`select a second one of the sequence of incremental
`hearing correction filters in response to receiving a
`trigger, the second one being designated to follow
`the first one in the sequence of incremental hearing
`correction filters and to reduce the amplitude of the
`modulated electrical signals produced by the
`selected hearing aid profile to a second level that is
`greater than the first level and less than the level to
`compensate for the hearing impairment of the user;
`and
`cause the speaker to output an alert when a final one of
`the sequence of incremental hearing correction
`filters is being applied, the final one being the last
`hearing correction filter of the sequence of
`incremental hearing correction filters.
`
`
`
`II. ANALYSIS
`Claim Construction
`A.
`We interpret claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee,
`136 S. Ct. 2131, 2144–45 (2016). In applying a broadest reasonable
`construction, claim terms generally are given their ordinary and customary
`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007).
`
`
`1. “hearing correction filter”
`In the Decision on Institution, we preliminarily construed “hearing
`correction filter” to mean “a filter that is applied by a processor within a
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`hearing aid to a hearing aid profile to reduce the level of correction provided
`to the user by application of the hearing aid profile.” Dec. 11. The parties’
`primary dispute was whether an individual hearing correction filter itself
`must include a collection of filters, as Patent Owner advocates. Id. at 9–10.
`We rejected Patent Owner’s argument based on the preliminary record.
`Id. at 10–11. In its Response, Patent Owner asks us to revisit our
`construction and rule that a hearing correction filter requires a collection of
`filters. PO Resp. 14.
`The ’999 patent describes “hearing correction filter” as follows:
`As used herein, the term “hearing correction filter” refers to a
`collection of filters for hearing aid 202, which are applied by
`processor 210 within hearing aid 202 to a hearing aid profile to
`reduce the level of correction provided to the user by
`application of the hearing aid profile. The collection of hearing
`correction filters may include a series of hearing correction
`adjustments designed to be applied in a sequence over a period
`of time to provide incremental corrections for the user’s hearing
`loss to ease the user’s transition from uncompensated to
`corrected hearing.
`Ex. 1001, 2:65–3:7. Patent Owner argues that the first sentence in this
`passage provides a clear definition that “hearing correction filter,” singular
`means a collection of filters, plural. PO Resp. 14.
`“To act as its own lexicographer, a patentee must ‘clearly set forth a
`definition of the disputed claim term’ other than its plain and ordinary
`meaning. It is not enough for a patentee to simply disclose a single
`embodiment or use a word in the same manner in all embodiments, the
`patentee must ‘clearly express an intent’ to redefine the term.” Thorner v.
`Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)
`(quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366
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`(Fed. Cir. 2002) and Helmsderfer v. Bobrick Washroom Equip., Inc.,
`527 F.3d 1379, 1381 (Fed. Cir. 2008)). As a starting point, the Federal
`Circuit has “repeatedly emphasized that an indefinite article ‘a’ or ‘an’ in
`patent parlance carries the meaning of ‘one or more’ in open-ended claims
`containing the transitional phrase ‘comprising.’” Convolve, Inc. v. Compaq
`Computer Corp., 812 F.3d 1313, 1321 (Fed. Cir. 2016) (quoting KCJ Corp.
`v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000)). According
`to the Federal Circuit, “[t]he exceptions to this rule are ‘extremely limited: a
`patentee must ‘evince [ ] a clear intent’ to limit ‘a’ or ‘an’ to ‘one.’’”
`Id. (quoting Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342
`(Fed. Cir. 2008)). By the same reasoning, we look for a clear intent to limit
`“a” or “an” to more than one. Thus, we start with the premise that the
`language “a first one of a sequence of incremental hearing correction
`filters,” as recited in claim 1 and “a first hearing correction filter,” as recited
`in claim 6, identify one or more filters, and determine whether the
`specification evinces a clear intent to redefine these phrases to mean more
`than one filter.
`The claim language supports our preliminary construction by reciting
`a hearing correction filter as a member of a collection of filters rather than
`itself including a collection of filters. For example, claim 1 recites “apply a
`first one of a sequence of incremental hearing correction filters” and “select
`a second one of the sequence of incremental hearing correction filters.” In
`these recitations, a collection of incremental hearing correction filters is
`recited as a set of individual filters (“first one,” “second one”) that are
`applied in a sequence. In contrast, claim 2, which depends from and limits
`claim 1, recites “wherein each of the incremental hearing correction filters
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`comprises a collection of acoustic configuration settings configured to
`modulate the electrical signal . . . .” To the extent that multiple acoustic
`configuration settings are modulated by multiple separate filters, claim 2’s
`express recitation of a hearing correction filter comprising multiple acoustic
`configuration settings suggests that a hearing correction filter, in claim 1,
`could include only one acoustic configuration setting, and, therefore, could
`be a single filter. Similar to claim 1, claim 6 recites “a first hearing
`correction filter” and “a second hearing correction filter,” implying
`individual members of a collection, rather than an individual filter that
`includes a collection of filters.
`The specification also supports our preliminary construction. In the
`Decision on Institution, we recognized that the ’999 patent’s statement that
`“the term ‘hearing correction filter’ refers to a collection of filters” suggests
`that a single hearing correction filter actually is a collection of filters. Dec. 9
`(quoting Ex. 1001, 2:65–66). Nevertheless, consistent with the claim
`language discussed above, we explained that the patent’s use of the term in
`context indicates that a hearing correction filter can be a single filter that is a
`member of a collection. Id. Specifically, the patent explains that “[t]he
`collection of hearing correction filters may include a series of hearing
`correction adjustments designed to be applied in a sequence over a period of
`time.” Id. at 3:2–5. This informs how the ’999 patent intends “collection of
`filters” to be understood. Here, the collection of hearing correction filters is
`a “series” of adjustments applied “in a sequence over a period of time,” not
`all at once. The patent then expands on this explanation of a collection of
`filters:
`
`12
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`In such an instance, a first hearing correction filter attenuates
`the hearing aid profile by a pre-determined amount, limiting the
`adjustment provided by hearing aid 202. Each of subsequent
`hearing correction filter in the sequence increases the correction
`provided by (decreases the attenuation applied to) the hearing
`aid profile to some degree, until the sequence is complete and
`the hearing aid profile is fully applied to provide the desired
`hearing correction for the user.
`Ex. 1001, 3:7–15. Here, the patent describes individual hearing correction
`filters that are part of a collection and are individually applied in sequence.
`Patent Owner contends that these passages “merely describe[] how a
`larger collection contains smaller collections.” PO Resp. 16. Mr. Brown
`repeats this argument in his testimony without further elaboration, and states
`that they do not impact the definition of hearing correction filter. Ex. 2003
`¶ 31. Patent Owner also cites to Dr. Atlas’s cross-examination testimony
`that it would not be unusual to refer to a filter that includes multiple filters.
`PO Resp. 16 (citing Ex. 2005, 134:10–14 (“Q. In the world of audio devices
`in general, there would be nothing unusual about saying a filter comprises
`multiple other filters, is there? A. No, there wouldn’t be.”)). We disagree
`with Patent Owner’s reading of these passages and do not give substantial
`weight to Mr. Brown’s testimony. As explained above, the specification
`describes a collection of individual filters that are applied in a sequence, not
`a collection of collections of filters applied in a sequence. As to Dr. Atlas’s
`cross-examination testimony, even if it is acceptable to say that a filter
`contains multiple filters, the specification does not suggest that it must be
`understood this way. Ex. 1001, 3:2–15.
`Patent Owner next argues (PO Resp. 16–17) that additional
`description in the specification supports its construction, namely:
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`Further, it should be understood that the filter or correction used
`to achieve the correction lines and ultimately the hearing aid
`profile is composed of a plurality of coefficients, parameters, or
`other settings that are applied by a processor of the hearing aid
`to alter various characteristics of the sounds to modulate them
`to compensate for the user’s hearing impairment.
`Ex. 1001, 5:42–48. As we noted in the Decision on Institution, this
`description on its face describes a single filter that is composed of multiple
`coefficients or parameters. Dec. 10. It does not state that a filter is
`comprised of multiple filters, each such filter corresponding to one of the
`coefficients or parameters. Patent Owner appears to disagree, arguing that
`“[t]o the extent that passage provides any context to how ‘hearing correction
`filter’ is used in the specification, it supports the express definition in the
`specification,” and otherwise provides no additional context. PO Resp. 16–
`17. In support, Patent Owner cites to Mr. Brown, who testifies that “[t]his
`passage merely explains how a correction line is achieved.” Ex. 2003 ¶ 32.
`Patent Owner attempted to clarify its position at the oral argument,
`contending that “a single filter would only be able to achieve a correction of
`a single frequency band” while “a collection of hearing correction filters
`would be able to achieve the correction for multiple frequencies.”
`Tr. 29:16–19.3 Patent Owner, however, does not cite to persuasive evidence
`to support this argument. We find that this passage (Ex. 1001, 5:42–48) is
`consistent with either multiple filters, each adjusting a single characteristic,
`
`
`3 Petitioner contended at the oral argument that adjustments to multiple
`coefficients or parameters could be implemented with a filter comprising
`multiple filters, but that the specification also describes implementing it with
`a single filter with multiple coefficients or parameters. Tr. 12:21–14:12.
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`or a single filter with multiple coefficients for adjusting multiple
`characteristics.
`Patent Owner also disagrees that claim 2 supports our preliminary
`construction. As noted above, claim 2 depends from claim 1 and adds
`“wherein each of the incremental hearing correction filters comprises a
`collection of acoustic configuration settings configured to modulate the
`electronic signal to a level that is within range between an uncompensated
`hearing level of the user and the level to compensate for the hearing
`impairment of the user.” Patent Owner argues that claim 2 supports its
`proposed construction because it shows that each filter includes a collection,
`not a single filter. PO Resp. 17. Mr. Brown repeats this argument in his
`testimony. Ex. 2003 ¶ 33. At the oral argument, Patent Owner clarified its
`argument, contending that all claim 2 adds is a lower boundary
`(“uncompensated hearing level of the user”) for the modulated electronic
`signal and otherwise confirms that a hearing correction filter comprises
`multiple filters. Tr. 35:12–36:4.
`Claim 2 does not recite that each filter comprises a collection of
`filters; rather, it recites that each filter comprises a collection of acoustic
`configuration settings. Patent Owner does not explain persuasively why this
`requires multiple filters for each acoustic configuration setting rather than a
`single filter with multiple acoustic configuration settings. PO Resp. 17. As
`with the passage from the specification discussed above (Ex. 1001, 5:42–
`48), claim 2’s language is consistent with either view.
`In a similar argument, Patent Owner contends that a hearing
`correction filter “impacts different frequencies of the signal in different
`ways.” PO Resp. 27. According to Mr. Brown, “applying a hearing
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`correction filter to a hearing aid profile for adjusting a signal provides a
`varying effect on different frequencies of the signal.” Ex. 2003 ¶ 49. The
`specification explains, “in the illustrated example [of Figure 1], the hearing
`sensitivity lines 110, 112, 114, 116, and 118 appear to indicate that the
`incremental hearing corrections adjust selected frequencies to the desired
`hearing level while providing less of an enhancement to other frequencies.”
`Ex. 1001, 4:35–39. According to Mr. Brown, a skilled artisan “would
`recognize that this means a collection of frequency adjustments not a single
`setting.” Ex. 2003 ¶ 49. However, the specification describes this as an
`“illustrated example,” not a limitation on the invention. Ex. 1001, 4:35.
`Indeed, as Petitioner points out (Reply 7), directly below this passage,
`the specification makes clear that “it should be understood that other
`incremental hearing corrections could be used. For example, in one
`particular instance, the incremental hearing correction could dampen or
`otherwise apply filters to the selected hearing aid profile to incrementally
`adjust the hearing correction across the entire range of frequencies
`substantially evenly.” Ex. 1001, 4:39–44. The specification continues: “In
`another instance, the incremental hearing correction could adjust selected
`frequencies by different amounts, providing a non-uniform hearing
`correction.” Id. at 4:44–47. Here, the specification clearly distinguishes
`between uniform and non-uniform hearing corrections.
`At the oral argument, Patent Owner argued “the ’999 patent discloses
`that the hearing correction filters can dampen an entire range of frequencies
`substantially evenly. Not entirely evenly. And dampening substantially
`evenly is done with a collection of filters.” Tr. 39:5–8. Patent Owner points
`to no evidence that the language “substantially evenly” was intended to draw
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`a distinction between one filter adjusting all frequencies perfectly evenly and
`a collection of filters adjusting all frequencies substantially evenly. Rather,
`the two passages together (Ex. 1001, 4:35–47) are consistent with the
`claims, for example claim 1 reciting one or more filters (e.g., one filter
`adjusting all frequencies substantially evenly) and claim 2 reciting a filter or
`collection of filters that adjust selected frequencies non-uniformly. These
`examples from the specification also support our preliminary construction
`and counsel against Patent Owner’s proposed alternative.
`On the complete record, based on the language of the claims, the
`definition in the specification when viewed in its proper context, and the
`remaining consistent description in the specification, we maintain our
`construction of “hearing correction filter,” namely, “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.”
`In the Petition, Petitioner argued that a hearing correction filter should
`not be construed to cover a filter that is applied to modulate an audio signal
`that already has been modulated by the hearing aid profile, arguing that such
`a construction would be contradicted by the embodiments and definition
`provided by the specification. Pet. 14–15. We declined to place such a
`restriction on “hearing correction filter,” as the claims themselves recite the
`signals to which the hearing correction filter is applied. Dec. 11–12; see
`also claim 1 (“the selected hearing aid profile configured to modulate the
`electrical signals to a level to compensate for a hearing impairment of a
`user” and “apply a first one of a sequence of incremental hearing correction
`filters to the modulated electrical signals to produce a modulated output
`signal”), claim 6 (“apply a first hearing correction filter to the selected
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`hearing aid profile”). Patent Owner appears to dispute this aspect of our
`construction. PO Resp. 17–18. Nevertheless, neither party argues that any
`factual dispute turns on this aspect of our construction. Thus, we need not
`address it further. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
`795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that are in
`controversy, and only to the extent necessary to resolve the controversy.”).
`
`
`2. “incremental hearing correction filter”
`In light of our construction of “hearing correction filter,” above, and
`additional description in the specification of “incremental hearing
`correction” (Ex. 1001, 3:24–36), we construed “incremental hearing
`correction filter” to mean a hearing correction filter (as construed above) that
`represents an intermediate hearing adjustment to provide a modulated output
`signal having a level that is within a range between an uncompensated
`output level and the desired output level. Dec. 12–13. The parties do not
`raise additional disputes for this term beyond those raised for “hearing
`correction filter.” Accordingly, we maintain our construction of
`“incremental hearing correction filter” on the complete record.
`
`Asserted Grounds of Unpatentability
`B.
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the claimed subject matter and the prior art are “such that the
`subject matter as a whole would have been obvious at the time the invention
`was made to a person having ordinary skill in the art to which said subject
`matter pertains.” We resolve the question of obviousness on the basis of
`underlying factual determinations, including: (1) the scope and content of
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`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of skill in the art; and (4) objective evidence of
`nonobviousness, i.e., secondary considerations.4 See Graham v. John Deere
`Co. of Kansas City, 383 U.S. 1, 17–18 (1966).
`
`
`1. Level of Skill in the Art
`Petitioner contends that a person of ordinary skill in the art “would
`have been someone with a bachelor’s degree in electrical or computer
`engineering, or the equivalent, and at least two years of experience in audio
`signal processing for audiological products” and that “[g]raduate education
`could substitute for work experience, and additional work
`experience/training could substitute for formal education.” Pet. 11 (citing
`Ex. 1008 ¶¶ 22–28). Petitioner relies on the Atlas Declaration, which states
`that a skilled artisan “would have had a B.S. degree in electrical or computer
`engineering, or the equivalent, and at least two years of experience in
`hearing aid systems.” Ex. 1008 ¶ 28. Patent Owner does not propose an
`alternative. We adopt Petitioner’s proposed level of skill and find that it is
`consistent with the level of ordinary skill reflected by the prior art of record.
`Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (the prior art
`itself can reflect the appropriate level of skill in the art).
`
`
`
`4 The complete record does not include allegations or evidence of objective
`indicia of nonobviousness.
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`2. Alleged Obviousness over Fichtl, Mangold, and Bisgaard
`Petitioner contends that claims 1–5 and 16 would have been obvious
`over Fichtl, Mangold, and Bisgaard. Pet. 18–45. For the reasons given
`below, we agree.
`
`a. Scope and Content of the Prior Art
`(1) Overview of Fichtl
`Fichtl describes a hearing device that implements an acclimatization
`algorithm. Ex. 1003, Abstract. Acclimatization is the process by which,
`over the course of several weeks to half a year, the intensity of a hearing
`device gradually is increased from an initially low intensity to a target
`intensity. Id. at 1:19–26.
`Fichtl’s hearing device is depicted in Figure 1, reproduced below:
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`Figure 1 is a schematic diagram of hearing device 1. Id. at 3:1–2. Sounds
`are picked up by microphone 2, processed by signal processor 9, and
`presented to hearing device user 10 by receiver 3. Id. at 3:23–25. User 10
`controls the magnitude of amplification using volume control 4. Id. at 3:25–
`26. Controller 6 sets hearing device parameters when hearing device 1 is
`switched on or when volume control 4 is actuated. Id. at 3:28–30. Non-
`volatile memory 7 stores parameters when hearing device 1 is off. Id. at
`3:30–32. Controller 6 executes an acclimatization algorithm. Id. at 3:32–34.
`Fichtl’s acclimatization algorithm is described with respect to
`Figure 2, reproduced below:
`
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`Figure 2 is a graph that depicts how an audio processing parameter (“APP”)
`is changed over time in a hearing aid. Id. at 3:3–5. Examples of APP
`include volume, treble, and noise cancelling. Id. at 3:42–47.
`In the algorithm of Figure 2, at time A, an audiologist (11 in Figure 1)
`programs into memory 7 initial power-on value iPOV and target power-on
`value tPOV for the APP, for example tPOV being 10 dB higher than iPOV.
`Id. at 3:42–48. At time B, user 10 switches the hearing aid on and the APP
`is set to iPOV. Id. at 3:49–53. An intermediate value of APP, X, is
`increased slowly during time C. Id. at 3:54–57. During time D, the user
`selects the APP to be two steps higher than the original audio processing
`parameter, APPref, and X is increased faster. Id. at 3:58–61. During time E,
`the user sel
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