Shure Acquisition Holdings, Inc.

Patent Trials and Appeals Board

Aug 14, 2020

IPR2019-00683 (P.T.A.B. Aug. 14, 2020)

Trials@uspto.gov Paper No. 91
571-272-7822 Date: August 14, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

CLEARONE, INC.,
Petitioner,
v.
SHURE ACQUISITION HOLDINGS, INC.,
Patent Owner.

IPR2019-00683
Patent 9,565,493 B2

Before MICHAEL R. ZECHER, JON M. JURGOVAN, and
CHRISTA P. ZADO, Administrative Patent Judges.
ZADO, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining Some Challenged Claims Unpatentable
Granting-in-Part Patent Owner’s Motion to Amend
Granting Patent Owner’s Motion to Seal
Granting Petitioner’s Motion to Seal
35 U.S.C. § 318(a)

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I. INTRODUCTION
We have authority to hear this inter partes review under 35 U.S.C.
§ 6. This Final Written Decision issues pursuant to 35 U.S.C. § 318(a) and
37 C.F.R. § 42.73. For the reasons discussed herein, we determine that
ClearOne, Inc. (“Petitioner”)1 has shown, by a preponderance of the
evidence, that claims 1–5, 7–33, and 35–40 (“challenged claims”) of
U.S. Patent No. 9,656,493 B2 (Ex. 1001, “the ’493 patent”) are
unpatentable. See 35 U.S.C. § 316(e) (2012); 37 C.F.R. § 42.1(d) (2018).
Petitioner has not demonstrated unpatentability of claims 6 and 34. In
addition, Patent Owner’s Revised Motion to Amend is hereby granted-in-
part. Paper 57 (“Mot. Amend”). Specifically, Patent Owner’s Revised
Motion to Amend is granted as to proposed substitute claims 57–67.
A. Procedural History
Petitioner filed a Petition for inter partes review of claims 1–40 of the
’493 patent. Paper 1 (“Pet.” or “Petition”). Shure Acquisition Holdings,
Inc. (Patent Owner”)2 subsequently filed a Preliminary Response. Paper 14
(“Prelim. Resp.”). Petitioner subsequently filed a corrected Reply, with our
authorization. Paper 18.3 Patent Owner filed a Sur-Reply, also with our
authorization. Paper 17. On August 16, 2019, we entered a decision
instituting an inter partes review of all claims and all grounds presented in
the Petition. Paper 21 (“Institution Decision” or “Inst. Dec.”).

1 Petitioner identifies only itself as a real party-in-interest to the Petition.
Pet. 4.
2 Patent Owner identifies only itself as a real party-in-interest to this
proceeding. Paper 4, 1.
3 We refer to Petitioner’s Corrected Reply to Patent Owner’s Preliminary
Response, filed July 25, 2019, Paper 18, the filing of which the Board
authorized in a July 25, 2019 email to the parties.
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After institution, Patent Owner filed a Response to the Petition,
Paper 37 (“Response” or “PO Resp.”),4 along with an Unopposed Motion
for Entry of a Modified Protective Order, Paper 33, and Unopposed Motion
to Seal, Paper 34. Patent Owner also filed a Contingent Motion to Amend
[Claims 1–40] Under 37 C.F.R. § 42.121, Paper 35, and requested
preliminary guidance on such motion under the Patent Office’s pilot
program. Pilot Program Concerning Motion to Amend Practice, 84 Fed.
Reg. 9497 (Mar. 15, 2019). Petitioner filed a Reply to Patent Owner’s
Response, Paper 49 (“Reply”),5 along with a Motion to Seal Paper 48 and
[Certain] Exhibits, Paper 50. Petitioner also filed an Opposition to [Patent
Owner’s] Motion to Amend. Paper 46. On February 25, 2020, we issued
Preliminary Guidance [on] Patent Owner’s Motion to Amend. Paper 55
(“Prelim. Guidance” or “Preliminary Guidance”).
Thereafter, Patent Owner filed a Sur-Reply to Petitioner’s Reply to
Patent Owner’s Response. Paper 67 (“Sur-Reply”). Patent Owner also filed
a Revised Contingent Motion to Amend Claims 1–40 Under 37 C.F.R.
§ 42.121, Paper 57, which Petitioner opposed, Paper 68 (“Pet. Opp.”).
Patent Owner filed a Reply to Petitioner’s Opposition to Patent Owner’s
Revised Motion to Amend. Paper 74 (“PO Reply”).

4 Herein, “Response” refers to the non-confidential version of Patent
Owner’s response to the Petition (Paper 37), and we cite to the non-
confidential version in this Final Written Decision. A confidential version
of Patent Owner’s response to the Petition was filed as Paper 36.
5 Herein, “Reply” refers to the non-confidential version of Petitioner’s reply
to Patent Owner’s Response (Paper 49), and we cite to the non-confidential
version in this Final Written Decision. A confidential version of Petitioner’s
reply to Patent Owner’s Response was filed as Paper 48.
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Prior to entry of this Final Written Decision, we granted Patent
Owner’s Unopposed Motion for Entry of a Modified Protective Order.
Paper 85.
An oral hearing was held on June 15, 2020. A transcript of the
hearing is included in the record. Paper 90 (“Tr.”).
B. Related Matters
The parties advise that they are not aware of any related matters
involving the ’493 patent, other than abandoned U.S. patent applications and
one pending application, U.S. Patent Application No. 15/833,404, which
claims priority to the ’493 patent. Pet. 4; Paper 4, 1.
C. The ’493 Patent
The ’493 patent, filed on April 30, 2015, and issued on February 7,
2017, does not claim priority to any earlier patent applications. Ex. 1001,
code (22), (45). Accordingly, April 30, 2015 (“the priority date”) is the
earliest date to which the ’493 patent may claim priority.
The ’493 patent is titled, “Array Microphone System and Method of
Assembling the Same,” and generally relates to an array microphone capable
of fitting into a ceiling tile of a drop ceiling. Id. at code (54), 1:6–11. The
specification of the ’493 patent (“Specification”) explains that there were
problems with microphones placed in conferencing environments, such as
boardrooms. Problems resulted from microphone placement on tables or
lecterns, and included: 1) obtrusive and/or unaesthetic appearance;
2) detection of undesirable noise, such as pen tapping or paper shuffling; and
3) being accidently covered by paper, cloth, or napkins in a manner that
disrupts sound capture. Id. at 1:15–31. The Specification also describes
problems with the microphone itself, stating that one type of microphone,
the “shotgun” microphone, could lead to sub-optimal performance. Id. at
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1:32–48. The shotgun microphone’s primary sensitivity was focused in a
single direction, thereby requiring the microphone to be pointed directly at a
particular audio source for optimal detection. Id. According to the
Specification, it was difficult and tedious to point the shotgun microphone in
the ideal direction, and that proper adjustment required trial and error. Id.
Finally, the Specification explains that there were problems with some
ceiling mounted microphones. Id. at 1:49–63. Although ceiling mounting
addressed some problems associated with table mounted microphones and
shotgun microphones, “[m]ost existing ceiling-mounted microphones are
configured to be secured directly to the ceiling or hanging from drop-down
cables that are mounted to the ceiling.” Id. at 1:54–56. As a result,
according to the Specification, such systems “require[d] complex installation
and tend[ed] to become a permanent fixture.” Id. at 1:56–58. “Furthermore,
while ceiling microphones may not pick up tabletop noises given their
distance from the table,” such microphones, according to the Specification,
had increased sensitivity to loud speakers, Heating Ventilation and Air
Conditioning systems, air motion, and white noise. Id. at 1:57–63.
The Specification states there is, therefore,
an opportunity for systems that address these concerns.
More particularly, there is an opportunity for systems
including an array microphone that is unobtrusive, easy to
install into an existing environment, and can enable the
adjustment of the microphone array to optimally detect
sounds from an audio source, e.g., a human speaker, and
reject unwanted noise and reflections.
Id. at 1:64–2:3. Moreover, the Specification states the invention is intended
to address the above-noted problems
by providing systems and methods that are designed to,
among other things: (1) provide an array microphone
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assembly that is sized and shaped to be mountable in a
drop ceiling in place of a ceiling tile; and (2) provide an
array microphone system comprising a concentric
configuration of microphones that achieves improved
directional sensitivity over the voice frequency range and
an optimal main to side lobe ratio over a prescribed
steering angle range.
Id. at 2:8–16.
The Specification discloses that, in one embodiment, an array
microphone system comprises a substrate having a plurality of microphones
arranged thereon in concentric, nested rings of varying sizes. Id. at 2:17–22.
Figure 5, reproduced below, is illustrative.

Figure 5 depicts a top plan view of array microphone 104
Ex. 1001, Fig. 5, 2:62–64. Array 104 comprises a plurality of
microphones 106, including microphone 106a positioned at the central point
of a printed circuit board, surrounded by remaining microphones 106b,
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arranged in a fractal configuration surrounding central microphone 106a. Id.
at 9:4–11. As shown in Figure 5, “microphone 106 can be arranged in
concentric, circular rings of varying sizes,” the arrangement of which will,
according to the Specification, “avoid undesired pickup patterns (e.g., due to
grating lobes) and accommodate a wide range of audio frequencies.” Id. at
9:25–28. The Specification provides that the term “ring,” as used therein,
“may include any type of circular configuration (e.g., perfect circle, near-
perfect circle, less than perfect circle, etc.) as well as any type of oval
configuration or other oblong loop.” Id. at 9:29–32.
The Specification also states that, in another embodiment, the
microphone assembly comprises a microphone array placed inside a housing
sized and shaped to be mountable in a drop ceiling in place of at least one of
a plurality of ceiling tiles included in the drop ceiling. Id. at 2:23–28.
Furthermore, the front face of the housing has a sound permeable screen of
substantially similar shape and size as the ceiling tile. Id. at 2:29–32.
Figure 6, reproduced below, is illustrative.

Figure 6 shows example ceiling 600 with microphone
assembly 100 installed therein
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Id. Fig. 6, 2:65–67, 5:38–40. The Specification states ceiling 600 may be a
drop ceiling, “a.k.a., dropped ceiling or suspended ceiling,” hung below a
main, central ceiling. Id. at 5:55–57. The Specification further provides
[a]s is conventional, the drop ceiling 600 comprises a grid
of metal channels 602 that are suspended on wires (not
shown) from the main ceiling and form a pattern of
regularly spaced cells. Each cell can be filled with a
lightweight ceiling tile or panel 604 that, for example, can
be removed to provide access for repair or inspection of
the area above the tiles. In a preferred embodiment, the
ceiling tiles 604 are drop-in tiles that can be easily
installed or removed without disturbing the grid or other
tiles 604. Each ceiling tile 604 is typically sized and
shaped according to a “cell size” of the grid.
Id. at 5:57–67.
D. Illustrative Claims
Of the challenged claims, claims 1, 17, and 28 are independent.
Claims 1 and 17, reproduced below, are illustrative.
1. An array microphone system comprising:
a substrate; and
a plurality of microphones arranged, on the substrate, in a
number of concentric, nested rings of varying sizes, each
ring comprising a subset of the plurality of microphones
positioned at predetermined intervals along a
circumference of the ring.
Ex. 1001, 17:50–56.
17. A microphone assembly comprising:
an array microphone comprising a plurality of
microphones; and
a housing configured to support the array microphone, the
housing being sized and shaped to be mountable in a drop
ceiling in place of at least one of a plurality of ceiling tiles
in the drop ceiling,
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wherein a front face of the housing includes a sound-
permeable screen having a size and shape that is
substantially similar to the at least one of the plurality of
ceiling tiles.
Id. at 18:39–49.
E. Prior Art and Asserted Grounds of Unpatentability
Petitioner challenges claims 1–40 of the ’493 patent on the following
grounds. Pet. 9.
Claims 35 U.S.C. § Reference(s)/Basis
1–7, 9–13, 28–31, 33, 34, 37–
40
103 Tiete,6 Chan7
8, 36 103 Tiete, Chan, Chou8
14, 16, 35 103 Tiete, Chan, Sawa9
15 103 Tiete, Chan, Beaucoup10
32 103 Tiete, Chan, Meyer11

6 Jelmer Tiete, et al., SoundCompass: A Distributed MEMS Microphone
Array-Based Sensor for Sound Source Localization, SENSORS (Jan. 23,
2014). Ex. 1005 (“Tiete”).
7 S. C. Chan & H. H. Chen, Uniform Concentric Circular Arrays with
Frequency-Invariant Characteristics—Theory, Design, Adaptive
Beamforming and DOA Estimation, IEEE TRANSACTIONS ON SIGNAL
PROCESSING, Vol. 55, No. 1, 165 (Jan. 2007). Ex. 1006 (“Chan”). Petitioner
filed two copies of the same reference, except the two copies each come
from different libraries. Exhibit 1006 bears a date stamp from the library at
University of California—Berkeley with a date of January 10, 2007, whereas
Exhibit 1007 has a date stamp of January 5, 2007. Unless expressly stated
otherwise, we refer to Exhibit 1006 as Chan.
8 Thomas Chou, Frequency-Independent Beamformer with Low Response
Error, THE 1995 INTERNATIONAL CONFERENCE ON ACOUSTICS, SPEECH, AND
SIGNAL PROCESSING, sponsored by The Signal Processing Society of the
IEEE, 2995 (May 9–12, 1995). Ex. 1014 (“Chou”).
9 U.S. Patent No. 9,826,211 B2, issued Nov. 21, 2017. Ex. 1008 (“Sawa”).
10 U.S. Patent Publication No. 2003/0118200 A1, published June 26, 2003.
Ex. 1009 (“Beaucoup”).
11 U.S. Patent No. 8,903,106 B2, issued Dec. 2, 2014. Ex. 1010 (“Meyer”).
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Claims 35 U.S.C. § Reference(s)/Basis
17, 18, 21, 23–26 103 Graham12
19, 20 103 Graham, Sawa
22 103 Graham, Berry13
27 103 Graham, Beaucoup

II. ANALYSIS
A. Motions to Exclude
The party moving to exclude evidence bears the burden of proof to
establish that it is entitled to the relief requested—namely, that the material
sought to be excluded is inadmissible under the Federal Rules of Evidence.
See 37 C.F.R. §§ 42.20(c), 42.62(a). For the reasons discussed below,
Petitioner’s Motion is dismissed as moot, and Patent Owner’s Motion is
denied-in-part and dismissed-in-part.
1. Petitioner’s Motion to Exclude
a) Exhibit 2014
Petitioner moves to exclude paragraphs 4, 5, and 9–11 of the
declaration of James Schanz (Ex. 2014), a Vice President of Sales at Shure,
Inc. Paper 76 (“Pet. Mot.”), 1–12. Patent Owner opposes Petitioner’s
Motion. Paper 78 (“PO Opp. Mot.”), 2–13.

12 U.S. Patent Publication No. 2015/0078582 A1, published Mar. 19, 2015.
Ex. 1011 (“Graham”). The Petition refers to Exhibit 1011 as “Graham.”
However, in subsequent papers, the parties sometimes refer to Exhibit 1011
as the “Graham Publication,” to distinguish it from Exhibit 1040 (patent that
issued from the application published in Graham), which the parties refer to
as the Graham Patent. Herein, “Graham” shall refer to Exhibit 1011.
13 PCT Application WO 2011/104501 A2, published Sept. 1, 2011.
Ex. 1012 (“Berry”).
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The testimony Petitioner seeks to exclude is relied on by Patent
Owner as objective evidence of non-obviousness. See, e.g., PO Resp. 71–
72, 74–75, 78 (citing Ex. 2014 ¶¶ 4, 5, 9–11).
In rendering our Final Written Decision, we have considered the
testimony Petitioner seeks to exclude, but we do not rely on this testimony in
a manner adverse to Petitioner in this Decision. Accordingly, Petitioner’s
Motion to Exclude certain paragraphs of Mr. Schanz’s declaration is
dismissed as moot.
b) Exhibit 2020
Petitioner moves to exclude paragraphs 199–201 of the declaration of
Patent Owner’s expert, Jeffrey S. Vipperman, Ph.D. (Ex. 2020). Paper 76
Pet. Mot. 13–15. Patent Owner opposes Petitioner’s Motion. PO Opp. Mot.
13–15.
The testimony Petitioner seeks to exclude is relied on by Patent
Owner to support its arguments regarding objective evidence of non-
obviousness. See, e.g., PO Resp. 68, 78 (citing Ex. 2020 ¶¶ 199–201).
In rendering our Final Written Decision, we have considered the
testimony Petitioner seeks to exclude, but we do not rely on this testimony in
a manner adverse to Petitioner in this Decision. Accordingly, Petitioner’s
Motion to Exclude certain paragraphs of Dr. Vipperman’s declaration is
dismissed as moot.
2. Patent Owner’s Motion to Exclude
Patent Owner moves to exclude Exhibits 1040, 1054, 1055, 1125,
1127, 1128, 1131, 1132, 1136–1143, and portions of Exhibits 1043 and
1144. Paper 77 (“PO Mot.”) Petitioner opposes Patent Owner’s Motion.
Paper 80 (“Pet. Opp. Mot.”).
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a) Exhibits 1040 and 1043
Exhibit 1040 (“Graham Patent”) is a patent that issued from the
application published in Graham (Ex. 1011). Exhibit 1043 is the
supplemental declaration of Petitioner’s expert, Durand R. Begault, Ph.D.
Patent Owner submits that Exhibit 1040 should be excluded as irrelevant
under FRE 401 and 402, arguing that new matter was added after the priority
date of the ’493 patent. PO Mot. 2–3. Patent Owner submits that
paragraphs 22–36, 45, and 198–200 of Exhibit 1043 should be excluded
under FRE 401–403 because they rely on Exhibit 1040. Id. at 3–4.
Patent Owner asserts that the new matter added to the Graham Patent
(Ex. 1040) during prosecution included disclosure of a grille, front surface,
and an acoustically transparent tile. Id. at 2–3. Petitioner responds that
Exhibit 1040 is relied on in the Reply for the purpose of showing a skilled
artisan would have considered Graham (Ex. 1011) as providing support for a
grille, front surface, and acoustically transparent material, because the
Examiner accepted claim amendments adding these features, and therefore
Exhibit 1040 is relevant. Pet. Opp. Mot. 1–2. We agree with Petitioner that
Exhibit 1040 is relevant. Even if the dates of the claim amendments leading
to the issuance of Exhibit 1040 are after the priority date of the ’493 patent,
the acceptance of such amendments is relevant to the question of whether
Ex. 1011 provides adequate disclosure of these features.
Although we do not exclude Exhibit 1040 and paragraphs 22–36, 45,
and 198–200 of Exhibit 1043, we do not rely on this material in a manner
adverse to Patent Owner in this Final Written Decision. Accordingly, Patent
Owner’s Motion to Exclude Exhibit 1040 and certain paragraphs of Dr.
Begault’s supplemental declaration is dismissed as moot.
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b) Exhibits 1054 and 1055
Exhibit 1054 is the declaration of William Oxford, Ph.D., submitted
by Patent Owner in IPR2017-01785, and Exhibit 1055 is the deposition
transcript for the related cross-examination of Dr. Oxford. Patent Owner
moves to exclude Exhibits 1054 and 1055 under FRE 401–403 and 801–803.
PO Mot. 4–5. As to relevance, Patent Owner asserts, without explanation,
that Exhibits 1054 and 1055 are irrelevant as failing to make any fact more
or less probable in this proceeding and is more prejudicial than probative,
confuses the issues, and/or wastes time. Id. This naked assertion, without
any explanation, is insufficient to satisfy Patent Owner’s burden to establish
that Patent Owner is it entitled to the relief sought. As to hearsay, Patent
Owner asserts the exhibits are from a different proceeding, and therefore are
inadmissible hearsay without any exception. Id. Petitioner responds that Dr.
Oxford’s declaration and transcript testimony fall within the residual
exception under FRE 807, because the testimony was given under oath and
has the same guarantees of trustworthiness as testimony created for this
proceeding, and is more probative on the point for which it is offered than
any other evidence the proponent can obtain through reasonable efforts. Pet.
Opp. Mot. 10 (citing Fed. Rule Evid. 807).
We are persuaded that Dr. Oxford’s testimony falls within the residual
exception under FRE 807. In response to Patent Owner’s assertion that
Chan is not analogous art to the ’493 patent, PO Resp. 44–48, Petitioner
argues Chan is in the same field of endeavor as the ’493 patent because
Chan’s research overlaps with the same objectives for solutions as the ’493
patent, Reply 30. In support of this argument, Petitioner relies on a
reference citing Chan that relates specifically to microphone orientation in a
Speakerphone, titled “Microphones Orientation and Size in a
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Speakerphone,” which lists Patent Owner’s expert in IPR2017-01785, Dr.
Oxford, as a co-inventor, as well as testimony by Dr. Oxford. Reply 30
(citing Ex. 1053; Ex. 1054; Ex. 1043 ¶ 101 (citing Ex. 1055)). Dr. Oxford
previously testified that his discussion of designing a telephone conferencing
system for LifeSize between the time frame of 2003–2007 included beaming
techniques that Petitioner argues are like those taught in Chan. Id. (citing
Ex. 1053, 3; Ex. 1054, 4, 7–1014; Ex. 1003 ¶ 101 (citing Ex. 1055)). Dr.
Oxford’s cited testimony in Exhibits 1054 and 1055 are more probative on
the point for which it is offered—namely, Exhibit 1053, which names Dr.
Oxford as co-inventor, teaches beamforming techniques like those taught in
Chan—than any other evidence Petitioner can obtain through reasonable
efforts. Patent Owner also has sufficient guarantee of trustworthiness, given
the testimony was under oath and entered into evidence in IPR2017-01785
by Patent Owner.
For the foregoing reasons, Patent Owner’s Motion to Exclude Exhibits
1054 and 1055 is denied.
c) Exhibit 1125, 1127, 1128, 1131, 1132, and 1136–1143
Patent Owner moves to exclude Exhibits 1125, 1127, 1128, 1131,
1132, and 1136–1143 under FRE 401–403 and/or 901. PO Mot. 5–14.
Petitioner opposes Patent Owner’s Motion. Pet. Opp. Mot. 11–13. Patent
Owner argues, inter alia, that these exhibits bear dates after the priority date
of the ’493 patent, and therefore, they should be excluded. PO Mot. 5–14.

14 Petitioner also cites “Ex. 1054, 157–11:22.” Exhibit 1054 is a declaration
that includes numbered paragraphs and page number at the bottom of each
page. It is unclear what “157–11:22” is citing to.
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Patent Owner also argues that some of these exhibits have not been properly
authenticated. Id.
Petitioner responds that a document need not be prior art in order to
be relevant. Pet. Opp. Mot. 11. As to authentication, Petitioner submits
these exhibits have been authenticated in the declaration of Derek Meeker
(Ex. 1234). Id. at 13.
The exhibits at issue relate to arguments Petitioner makes in its
Opposition to Patent Owner’s Revised Motion to Amend, specifically in
regard to proposed substitute claims 57–67 involving a drop ceiling tile
configuration. For reasons discussed below, infra Sec. II.F.3.c.(1)-(2), we
determine Petitioner has not shown that these proposed substitute claims are
unpatentable by a preponderance of the evidence.
Accordingly, Patent Owner’s Motion to Exclude Exhibits 1125, 1127,
1128, 1131, 1132, and 1136–1143 is dismissed as moot, as we do not rely on
these Exhibits in a manner adverse to Patent Owner in this Final Written
Decision.
d) Exhibit 1144
Exhibit 1144 is the second supplemental declaration of Dr. Begault.
Patent Owner seeks to exclude certain paragraphs of Dr. Begault’s
declaration as irrelevant. PO Mot. 14–15. Petitioner opposes Patent
Owner’s Motion. Pet. Opp. Mot. 13–15.
Patent Owner contends paragraphs 31, 35, 49–51, 55, 57, 58, 60, 62,
67, 75–77, and 90 should be excluded as irrelevant because they rely on
Exhibits 1040, 1125, 1127, 1128, 1131, 1132, and 1136–1144, which Patent
Owner asserts have not been authenticated and/or have not been shown to be
a printed publication as of the priority date of the ’493 patent. PO Mot. 14–
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15. As we discussed above, we do not rely on Exhibits 1040, 1125, 1127,
1128, 1131, 1132, and 1136–1143, in a manner adverse to Patent Owner in
this Final Written Decision. Accordingly, Patent Owner’s Motion to
Exclude paragraphs 31, 35, 49–51, 55, 57, 58, 60, 62, 67, 75–77, and 90 of
Dr. Begault’s second supplemental declaration is dismissed as moot.
Patent Owner asserts paragraphs 16–18, 62–64, 66, 68–70, 75–81, 83–
85, and 94–97 should be excluded as irrelevant because Petitioner fails to
rely on them in its papers. Id. at 15. Petitioner responds that failure to cite
paragraphs of a declaration in a paper is not sufficient basis to show the
paragraph are irrelevant. Pet. Opp. Mot. 13–14. Petitioner explains that the
paragraphs Patent Owner seeks to exclude build on content of other
paragraphs, are conclusion paragraphs, provide foundation for later
paragraphs, and/or support conclusions in later paragraphs. Id. Petitioner
argues there is no strict requirement to directly cite each paragraph of an
expert declaration, because non-cited paragraphs provide useful foundations,
conclusions, or cite to earlier testimony, and they make cited testimony more
or less probable and are more probative than prejudicial, and do not confuse
the issue or waste time. Id. at 14–15. We agree with Petitioner there is no
strict requirement to cite each paragraph of a declaration in the substantive
papers. Here, Patent Owner has not provided sufficient explanation as to
why the paragraphs it seeks to exclude are irrelevant, and we determine
Patent Owner has failed to meet its burden of establishing it is entitled to the
relief sought. Accordingly, Patent Owner’s Motion to Exclude paragraphs
16–18, 62–64, 66, 68–70, 75–81, 83–85, and 94–97 of Dr. Begault’s second
supplemental declaration is denied.
Patent Owner also includes an introductory sentence that states
paragraphs 22–36 and 45 should be excluded under FRE 401–403, but
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Patent Owner does not elaborate further as to why these particular
paragraphs should be excluded. We determine with regard to these
paragraphs that Patent Owner has failed to meet its burden of establishing it
is entitled to the relief sought. According, Patent Owner’s Motion to
Exclude paragraphs 22–36 and 45 of Dr. Begualt’s second supplemental
declaration is denied.
B. Motions to Seal
Patent Owner filed an Unopposed Motion for Entry of a Modified
Protective Order, Paper 33, which we granted, Paper 85.
Concurrently with filing for entry of a protective order, Patent Owner
filed an Unopposed Motion to Seal. Paper 34. Patent Owner’s Motion to
Seal seeks to seal portions of Exhibits 2014 and 2020 designated as
confidential that relate to objective evidence of non-obviousness and to seal
portions of the version of Patent Owner’s Response filed as paper 36 that
include material designated as confidential. Id.
Petitioner filed a Motion to Seal, concurrently with the filing of its
Reply. Paper 50. Petitioner’s Motion to Seal seeks to seal Exhibits 1051,
1096, 1098, 1100, 1102, 1104, 1106, 1108, 1110, 1112, 1114, 1116, and
1118, and portions of the version of Petitioner’s Reply filed as paper 48 that
include material designated as confidential. Id.
Except as otherwise ordered, the record of an inter partes review trial
shall be made available to the public. See 35 U.S.C. § 316(a)(1); 37 C.F.R.
§ 42.14. Motions to seal may be granted for good cause. See 37 C.F.R.
§§ 42.14, 42.54(a). The moving party bears the burden of showing that there
is good cause to seal the record. See 37 C.F.R. § 42.20(c). Also, relevant to
these motions, the Patent Trial and Appeal Board Consolidated Trial
Practice Guide states:
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The Board has a strong interest in the public availability
of trial proceedings. Redactions to documents filed in this
proceeding should be limited to the minimum amount
necessary to protect confidential information, and the
thrust of the underlying argument or evidence must be
clearly discernible from the redacted versions. We also
advise the parties that information subject to a protective
order may become public if identified in a final written
decision in this proceeding, and that a motion to expunge
the information will not necessarily prevail over the public
interest in maintaining a complete and understandable file
history. See Practice Guide.
Patent Trial and Appeal Board Consolidated Trial Practice Guide 91–92
(Nov. 2019), available at
https://www.uspto.gov/TrialPracticeGuideConsolidated; see also 84 Fed.
Reg. 64,280 (Nov. 21, 2019).
The information the Patent Owner seeks to seal, according to Patent
Owner, contains “highly confidential for its MXA910 product, including
sales data and nonpublic information associated with the product that a
business would not make public.” Paper 34, 2. Patent Owner explains
The confidential information Patent Owner seeks to seal consists
of Patent Owner’s highly confidential sales data and nonpublic
schematics of Patent Owner’s MXA910 product. Patent Owner
relies on this sales and product data to support Patent Owner’s
assertion of secondary considerations of nonobviousness. The
confidential data is presented in Patent Owner’s Response, as
well as in Exhibits 2014 and 2020. Exhibit 2014 is a declaration
of James Schanz, VP of Sales for Shure, Inc. Exhibit 2020 is a
declaration of Patent Owner’s technical expert, Jeffery S.
Vipperman, Ph.D., in support of Patent Owner’s Response.
Good cause exists to seal these documents because they include
highly confidential sales data and data pertaining to the MXA910
that has not been published, publicized, or otherwise been shared
or made public and are highly sensitive business and financial
information that a business would not make public.
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Id. at 3.
Petitioner attests the information it seeks to seal necessarily must be
sealed because it “contain[s] sensitive business information of Shure or a
third party, and public disclosure of that sensitive business information may
irreversibly harm Shure or the third party.” Paper 50; id. at 1–8 (explaining
why the information contains sensitive business information and why harm
would occur if made public).
Upon review of the information the parties seek to seal, we determine
each party has shown good cause for an order protecting it from disclosure
of the designated information, which contains sensitive business information
that is not otherwise publicly available and would cause harm if made
public. 37 C.F.R. § 42.54.
We also find that maintaining confidentiality is not outweighed by the
public’s interest. The designated information relates to showing secondary
considerations of non-obviousness. The parties’ redactions are minimal and
relate only to a portion of the evidence relied upon to show secondary
considerations. Also, this Final Written Decision does not reveal any
designated material and is not redacted. Upon review of the above-
discussed considerations, we find the parties’ desire to keep this information
confidential is not outweighed by the public interest in maintaining a
complete and understandable record of this proceeding.
Accordingly, Patent Owner’s Motion to Seal is granted. Petitioner’s
Motion to Seal also is granted.
C. Level of Ordinary Skill in the Art
To establish the level of ordinary skill in the art, we look to various
factors including “the types of problems encountered in the art; prior art
solutions to those problems; rapidity with which innovations are made;
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sophistication of the technology; and education level of active workers in the
field.” In re GPAC, 57 F.3d 1573, 1579 (Fed. Cir. 1995) (citing Custom
Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed.
Cir. 1986)).
Petitioner asserts that a person of ordinary skill in the art in the field
of the ’493 patent as of April 2015 would have at least a Bachelor’s degree
in electrical engineering, engineering acoustics, physical acoustics, or signal
processing in acoustics, or 3–5 years of work experience in fields related to
acoustical engineering and signal processing. Pet. 28 (citing Ex. 1003
¶¶ 88–89).
Patent Owner asserts that a person of ordinary skill in the art in the
field of the ’493 patent as of April 2015 would have possessed at least: (i) a
bachelor’s degree in mechanical engineering, electrical engineering, physics,
or acoustical engineering that included coursework on the design of acoustic
and/or antenna arrays, phased arrays, and/or beamforming, or (ii) at least 3
years of work experience in the field of directional microphone arrays. PO
Resp. 15 (citing Ex. 2020 ¶¶ 22–26). Patent Owner contends its definition is
“more accurate than that set forth by Petitioner’s expert, Dr. Begault,
because the study of microphone arrays is not necessarily part of
undergraduate curricula.” Id. (citing Ex. 2020 ¶¶ 22–26).
Based on the record before us, we adopt Petitioner’s assessment of the
level of ordinary skill in the art because it is consistent with the ’493 patent
and the asserted prior art, but without the qualifier “at least” because the
qualifier renders the articulated level vague and expands it to include an
expert’s level of practical experience. We note that, if we were to adopt
Patent Owner’s proposal, which requires skills in addition to those proposed
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by Petitioner that are specific to microphone arrays and beamforming
techniques, it would not have altered the outcome of this Final Written
Decision. See Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d
1342, 1366 (Fed. Cir. 2012) (“[I]t is generally easier to establish
obviousness under a higher level of ordinary skill in the art.”).
D. Claim Construction
We interpret a claim “using the same claim construction standard that
would be used to construe the claim in a civil action under 35 U.S.C.
282(b).” See Changes to the Claim Construction Standard for Interpreting
Claims in Trial Proceedings Before the Patent Trial and Appeal Board, 83
Fed. Reg. 51,340, 51,358 (Oct. 11, 2018) (amending 37 C.F.R. § 42.100(b)
effective November 13, 2018) (now codified at 37 C.F.R. § 42.100(b)
(2019)). Under that standard, we construe the claim in accordance with the
ordinary and customary meaning of such claim, as would have been
understood by one of ordinary skill in the art at the time of the invention, in
light of the specification and prosecution history. Phillips v. AWH Corp.,
415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc). Only those terms that
are in controversy need be construed, and only to the extent necessary to
resolve the controversy. See Nidec Motor Corp. v. Zhongshan Broad Ocean
Motor Co. Matal, 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs.,
Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
Claim 2 recites the array microphone system of claim 1, “wherein the
concentric, nested rings are rotationally offset from each other.” Ex. 1001,
17:57–59. Patent Owner contends the term “rotationally offset from each
other” should be construed “to mean that across the concentric, nested rings,
‘no more than any two microphones are axially aligned.’” PO Resp. 16.
Petitioner argues we should not limit the “rotationally offset” term in the
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manner Patent Owner proposes, and that this term should be given its plain
and ordinary meaning. The parties do not propose construction of any other
claim terms. In our claim construction analysis below, we construe the term
“rotationally offset from each other,” as recited in claim 2 of the ’493 patent.
We determine, however, that no other terms require express construction.
To support its construction, Patent Owner relies on a non-limiting
embodiment disclosing that microphone rings “can be offset from each
other, for example, by rotating each ring a different number of degrees, so
that no more than any two microphones 906 are axially aligned.” PO
Resp. 16 (citing Ex. 1001, 11:16–34). Patent Owner contends this
configuration has various benefits that are disclosed in the Specification,
and, therefore, a skilled artisan would have understood the “rotationally
offset” embodiment of claim 2 would have meant “no more than any two
microphones are axially aligned.” Id. at 16–17 (citing Ex. 1001, 4:10–17,
11:16–34, 14:6–50; Ex. 2020 ¶¶ 101–104).
Based on the fully developed trial record, we do not agree with Patent
Owner’s construction. In particular, as argued by Petitioner, Patent Owner
cites to one embodiment of rotationally offset rings, but fails to address
disclosure of other embodiments of rotationally offset rings that do not
support Patent Owner’s proposed claim construction. Reply 28–29.
The Specification states that, in some embodiments, rings “may be at
least slightly rotated relative to a central axis” in order to optimize
directivity of the microphone, and that “in such cases . . . [i]n some
embodiments” the rings “can be rotationally offset” in the manner proposed
in Patent Owner’s construction. Ex. 1001, 11:16–30 (emphasis added). The
Specification discloses such an arrangement may be beneficial in
microphone arrays with a smaller number of microphones. Id. at 11:26–30.
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However, within that same paragraph, the Specification discloses other
embodiments, that also may be optimized (e.g., beneficial), stating “[i]n
other embodiments, for example in arrays with a large number of
microphones, the rotational offset may be more arbitrarily implemented, if
at all, and/or other methods may be utilized to optimize the overall
directivity of the microphone array.” Id. at 11:30–34.
We discern nothing in the claim language that limits the phrase
“wherein the concentric, nested rings are rotationally offset from each other”
to the embodiment relied on by Patent Owner and, as a result, we do not
agree with Patent Owner’s attempt to narrow the claim to exclude other
embodiments disclosed in the Specification.
For the foregoing reasons, we determine the term “rotationally offset
from each other,” as recited in claim 2, is not limited to mean that across the
concentric, nested rings, “no more than any two microphones are axially
aligned.” Instead, because the Specification states that, in at least some
embodiments, “the rotational offset may be more arbitrarily implemented, if
at all,” and then refers to “other methods” that are not identified explicitly,
and because the claim language does not specify a particular method of
rotationally offsetting the concentric, nested rings, this term encompasses
various, different ways of rotationally offsetting the concentric, nested rings,
and is not limited to any particular way of offsetting the concentric, nested
rings. In light of the parties’ arguments regarding unpatentability, and in
particular whether the prior art teaches the “rotationally offset” limitation
under Patent Owner’s proposed construction, we determine that we need not
further construe the “rotationally offset” term.
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E. Asserted Unpatentability
As we noted above, Petitioner asserts that claims 1–16 and claims 28–
40 are unpatentable over Tiete in various combinations with other art.
Pet. 9. Petitioner asserts further than claims 17–27 are unpatentable over
Graham alone or in various combinations with other art. Id.
Patent Owner argues Petitioner has not shown unpatentability of the
challenged claims.
For the reasons discussed herein, we determine Petitioner has
demonstrated, by a preponderance of the evidence, that claims 1–5, 7–33,
and 35–40 are unpatentable. Petitioner has not demonstrated, by a
preponderance of the evidence, that claims 6 and 34 are unpatentable.
1. Tiete as Prior Art
The parties dispute whether Tiete was publicly accessible, and,
therefore, available as a prior art printed publication under 35 U.S.C.
§ 102(a)(1) as Petitioner asserts. Pet. 6–7; PO Resp. 65–68; Reply 31.
A printed publication is not effective as a prior art reference until the
date it becomes publicly accessible. In re Hall, 781 F.2d 897, 899 (Fed. Cir.
1986). “Whether a reference qualifies as a printed publication under § 102
is a legal conclusion based on underlying fact findings.” Acceleration Bay,
LLC v. Activision Blizzard Inc., 908 F.3d 765, 772 (Fed. Cir. 2018). “A
reference is considered publicly accessible if it was ‘disseminated or
otherwise made available to the extent that persons interested and ordinarily
skilled in the subject matter or art, exercising reasonable diligence, can
locate it.’” Id.
Petitioner asserts Tiete was published on January 23, 2014, in an
online publication called Sensors. Pet. 6. Petitioner also avers that Tiete has
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conventional markers, including: 1) a copyright notice; 2) a standard
identifier; and 3) statements on the reference detailing the publication by a
commercial publisher. Id.; Reply 31. Petitioner also submits the declaration
of Dr. James L. Mullins, Dean Emeritus of Libraries and Esther Norton
Professor Emeritus at Purdue University, who has more than 44 years of
experience as a librarian, and who is knowledgeable about online library
management systems. Ex. 1025 ¶ 2, 5–9 (“Mullins Declaration”). Dr.
Mullins testifies he evaluated Tiete by: 1) assessing Exhibit 1005;
2) accessing a digital copy of Tiete downloaded from the Sensors periodical
database; and 3) identifying papers and articles that cite Tiete that were
presented at international conferences or published prior to April 30, 2914.
Id. ¶ 36. Dr. Mullins testifies further that he searched the OCLC WorldCat
Database, which he contends demonstrates Sensors was available in 840
libraries worldwide, including in the United States at MIT Libraries and
Cornell University Libraries, and was searchable and accessible by title and
subject headings. Id. ¶ 39; Ex. 1027. Dr. Mullins also testifies that he
confirmed on the OPAC online catalog that Sensors would have been
accessible through both MIT Libraries OPAC and Cornell University
Libraries OPAC by title and subject. Ex. 1025 ¶¶ 41–42; Ex. 1028;
Ex. 1029.
We find the evidence upon which Petitioner and Dr. Mullins rely to be
credible, and shows both that Tiete was disseminated and that Tiete was
made available to the extent that persons interested and ordinarily skilled in
the subject matter or art, exercising reasonable diligence, could have located
it. Tiete on its face indicates it was received on October 28, 2013, and
published on January 23, 2014. Ex. 1005. The three articles identified by
Dr. Mullins corroborate Tiete’s publication date as being before the critical
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date. Ex. 1025 ¶¶ 48–50; Exs. 1030–1032. First, the articles cite to Tiete,
because each of the three articles identify the names of the authors and title,
and also publication information, identifying Tiete as published in issue 2 of
Sensors in 2014, at pages 1918–1949, all of which corresponds with the
information provided in Exhibit 1005. Exs. 1030–1032; 1005. Second, each
article bears a date after Tiete’s alleged date of publication—January 23,
2014—and prior to the critical date—April 15, 2015—which corroborates
both a publication date and dissemination between January 23, 2014 and
April 15, 2015. Ex. 1030; Ex. 1031; Ex. 1032; Ex. 1005 ¶¶ 48–50.
Accessibility of Tiete finds further corroboration in the OPAC WorldCat and
OPAC databases, upon which Dr. Mullins relies, which confirm accessibility
of Sensors by both title and subject. Ex. 1025 ¶¶ 39–42; Exs. 1027–1029.
Patent Owner contends that Petitioner’s evidence fails to demonstrate
that Tiete is a prior art printed publication. PO Resp. 66–67. Patent Owner
asserts that Dr. Mullins is not a person of ordinary skill in the art, and
therefore is unqualified to testify as to whether a skilled artisan would have
been able to locate Tiete, arguing Petitioner must show that Tiete was
publicly accessible to the relevant public. Id. at 66–67 (citing Blue Calypso,
LLC v. Groupon, Inc., 815 F.3d 1331, 1348 (Fed. Cir. 2016)). In so doing,
Patent Owner fails to distinguish between: 1) dissemination of Tiete, and
2) otherwise making Tiete available to the extent that persons interested and
ordinarily skilled in the subject matter or art, exercising reasonable
diligence, can locate it.
With regard to dissemination of Tiete, Patent Owner’s argument that
Dr. Mullins is not a person of ordinary skill in the art of the ’493 patent is
irrelevant. Here, the issue is not whether Tiete could have been located by a
person of ordinary skill in the art exercising reasonable diligence. Rather,
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the issue is whether Tiete was actually disseminated. Tiete’s being
referenced in three technical articles bearing 2014 publication dates indicates
Tiete was disseminated to the authors of these articles prior to the articles’
publication dates. Dr. Mullins, who has extensive experience in cataloguing
and library systems, is competent to testify regarding his confirmation that
the citations in these articles refer to Tiete. Ex. 1025 ¶¶ 48–50.
With regard to whether Tiete was made available to the extent a
person of ordinary skill in the art could have located it, Dr. Mullins is
competent to testify that Tiete bears markers on its face that it was accessible
to the public (Ex. 1025 ¶ 37), and to verify the authenticity of Sensors,
including confirming that Sensors was accessible and searchable in online
catalog databases and available in university libraries (id. ¶ 38–44). As to
whether Tiete was available to the relevant public, evidence of this includes
evidence that Sensors was accessible and searchable by title and subject at
840 libraries, including the libraries at MIT and Cornell University. We find
these facts sufficiently indicate that a person of ordinary skill in the art
would have been able to locate Tiete. The title of Tiete itself, i.e., “Sound
Compass: A Distributed MEMS Microphone Array-Based Sensor for Sound
Source Localization,” would have made Tiete accessible to a skilled artisan
searching by title for information about array microphone systems. Both
MIT and Cornell University have engineering programs, which would have
made Sensors available to engineering professors and students. In addition,
840 libraries worldwide hold Sensors, including issues dating to at least as
early as 2001. See, e.g., Ex. 1028. Although Dr. Mullins does not indicate
the date that Sensors first became available at the libraries, we do not view
evidence of library cataloging in a vacuum, but rather we view it alongside
the other evidence, including evidence that the libraries hold issues of
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Sensors dating back to at least as early as 2001, the markers on the face of
Tiete, and the fact that three technical articles relating to acoustic design
dated 2014 cite to Tiete. When considering all this evidence, Tiete was
publicly accessible and was located by persons in the field of acoustic
sensing prior to the critical date.
For the foregoing reasons, having considered the totality of the
evidence, we determine Petitioner has shown that Tiete is available as a prior
art printed publication under § 102(a)(1).
2. Tiete (Ex. 1005)
Tiete, titled “SoundCompass: A Distributed MEMS Microphone
Array-Based Sensor for Sound Source Localization,” generally describes
SoundCompass, an acoustic sensor capable of measuring sound intensity and
directionality. Ex. 1005, 1919. Tiete explains that SoundCompass is a
compass for a sound field that points to the direction of the loudest sound
sources, while measuring the total sound pressure level (“SPL”). Id. Tiete
explains that in the environmental, industrial, and military domains, the
ability to localize sound sources is of vital importance. Id. The driving
application of SoundCompass is noise pollution mapping in urban
environments, but applications may range from localizing sniper fire to
identifying noisy engine parts. Id.
Tiete describes a prototype SoundCompass comprising a 20-cm
circular printed circuit board (“PCB”) containing a sensor array of 52
microphones, an inertial measurement unit (“IMU”), and a low-power field
programmable gate array (“FPGA”). Id. The microphone array comprises
microelectromechanical machine (“MEM”) microphones mounted in a
specific pattern on the circular PCB. Id. at 1923. The MEMs microphones
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are off-the-shelf components commonly found in mobile phones, used
because of their low-cost/high-quality and small package size. Id. The 52
MEMs microphones are arranged on a single plane and consist of four
concentric rings. Id. at 1926. Tiete explains that this array
is capable of performing spatial sampling of the
surrounding sound field by using beamforming
techniques. Beamforming focuses the array in one
specific direction or orientation, amplifying all sound
coming from that direction and suppressing sound coming
from other directions. By iteratively steering the focus
direction in a 360˚ sweep, the SoundCompass can measure
the directional variations of its surrounding sound field.
Id.
3. Chan (Ex. 1006)
Chan, titled “Uniform Concentric Circular Arrays With Frequency-
Invariant Characteristics—Theory, Design, Adaptive Beamforming and
DOA Estimation,” generally describes a digital beamformer for uniform
concentric circular arrays (“UCCAs”) having nearly frequency-invariant
(“FI”) characteristics. Ex. 1006, 165. Chan explains that beamforming
using sensor arrays is an effective method for suppressing interference
whose angles of arrival are different from the desired looking direction, and
is useful in applications involving radio communications, sonar, radar, and
acoustics. Id. The beamforming techniques described in Chan relate to how
to implement filters to achieve a desired frequency response. Id. Chan
explains that traditional adaptive broad beamformers use tapped-delay lines
or linear transversal filters with adaptive coefficients to generate appropriate
beam patterns for suppressing undesirable interference. Id. The drawback,
however, is that a considerable number of adaptive coefficients are required,
leading to increased convergence time, degraded numerical properties, and
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high implementation complexity. Id. In light of various alleged
shortcomings of alternative solutions to this problem, Chan describes a
solution involving an electronically steerable UCCA comprising P
concentric, circular rings, each ring having Kp omni-directional sensors. Id.
at 166–167.
4. Sawa (Ex. 1008)
Sawa, titled “Sound Processing System and Processing Method that
Emphasize Sound from Position Designated in Displayed Video Image,”
generally describes a sound processing system and method capable of
reproducing recorded video and audio data. Ex. 1008, code (57), 1:8–10.
Sawa discloses that in video monitoring systems, for example in a factory,
retail space, or public space, a plurality of monitoring cameras may be
deployed, and typically are connected to each other via a network. Id. at
1:14–22. Moreover, in such systems, video cameras may use a microphone
to obtain audio, in addition to video, data. Id. at 1:23–28. Sawa avers that a
problem with such systems is that, when certain accidents occur within the
vicinity of the monitoring target, the sound processing apparatus may be
unlikely to obtain audio data in the direction of where the accident occurred.
Id. at 1:58–2:15. Sawa seeks to address this problem by providing a sound
processing system and method, capable of emphasizing and outputting audio
data having directivity toward positions corresponding to designated
locations. Id. at 2:17–23.
Sawa discloses, in pertinent part, microphone array 20 installed, for
example, on the ceiling of an event hall, wherein array 20 comprises a set of
microphones 22 and collects sound in the vicinity of the monitoring target
point. Id. at 7:29–39. Furthermore, Sawa discloses sound processing
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apparatus 40, that includes recorder 45, signal processing unit 50, operation
unit 55, and reproducing unit 60. Id. at 7:40–42. Sawa states that
By using the audio data recorded in the recorder 45, the
signal processing unit 50 adds audio data collected by each
of the microphones thereto through a directivity control
process of the audio data to be described later, and
generates audio data in which directivity is formed in a
specific directivity in order to emphasize (amplify) sound
(volume level thereof) in the specific direction from a
position of each microphone 22 of the microphone array
20. In addition, by using audio data transmitted from the
microphone array 20, the signal processing unit 50 may
generate audio data in which directivity is formed in a
specific direction in order to emphasize (amplify) a
volume level of sound in the specific direction (directivity)
from the microphone array 20. Further, the specific
direction is a direction which is directed from the
microphone array 20 toward a position corresponding to a
predetermined designated location which is designated
from the operation unit 55, and is a direction designated
by a user in order to emphasize (amplify) a volume level
of audio data.
Id. at 7:57–8:8.
5. Beacoup (Ex. 1009)
Beaucoup, titled “System and Method of Indicating and Controlling
Sound Pickup Direction and Location in a Teleconferencing System,”
generally describes a method of identifying talker location that includes
picking up audio signals using a steerable microphone array and processing
the picked up signals to determine location of an active talker. Ex. 1017,
codes (54), (57). The microphone array then is steered in the direction of the
active talker and a cue is generated to identify the direction in which the
microphone has been steered. Id. at code (57).
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6. Meyer (Ex. 1010)
Meyer, titled “Augmented Elliptical Microphone Array,” generally
describes am audio system having a microphone array and a signal
processing subsystem that processes audio signals generated by the array to
produce an output beam pattern. Ex. 1010, codes (54), (57). In one
embodiment, the array comprises a single microphone at the center of a
circular microphone array. Id. at 1:47–49. The central microphone,
according to Meyer, makes it possible to gain control over the vertical
direction beampattern response, thereby avoiding undesirable increased
sensitivity in the vertical direction. Id. at 1:49–53. Meyer also discloses
arranging the microphone array as two elliptical arrays, one smaller array
located within the other, larger array. Id. at 1:54–2:14.
7. Graham (Ex. 1011)
Graham, titled “Beamforming Microphone Array with Support for
Interior Design Elements,” generally describes beamforming microphone
array systems. Ex. 1011, codes (54), (57). Graham discloses that traditional
beamform arrays configured for use with professionally installed
applications, such as video conferencing in a conference room, typically had
an electro-mechanical design requiring the array to be installed or set-up as a
separate device with its own mounting system in addition to other design
elements, such as lighting fixtures, decorative items and motifs, etc. Id. ¶ 6.
Graham provides as an example a ceiling-mounted beamforming
microphone array installed separately from ceiling tiles of a drop ceiling. Id.
Graham discloses that a problem with the prior art is that such traditional
approaches involving a separate microphone array resulted in the arrays
being visible to people in the conference room. Id. ¶ 7. Graham addresses
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this problem by disclosing a beamforming microphone array that has support
for interior design elements. Id. ¶ 8. In one embodiment, an apparatus
comprises at least one tile capable of being coupled to a wall or ceiling, and
a beamforming microphone system integrated with the at least one tile. Id.
¶ 10. The microphone system includes a plurality of first microphones, and
at least one second microphone. Id. Graham also discloses, with reference
to Figures 2F–2I, microphone array 116 with beamforming microphones 212
integrated into a ceiling tile for drop ceiling mounting configuration 260. Id.
¶ 51.
8. Berry (Ex. 1012)
Berry, titled “Acoustic Composite Panel Assembly Containing Phase
Change Materials,” generally describes acoustic composite panel assemblies
that include a phase change material for use in construction, wherein the tiles
are applicable, but not limited to, ceiling tiles. Ex. 1012, code (54), 1:3–5.
Berry explains that phase change materials and compositions are materials
that reversibly undergo state changes and act as a sink for thermal energy,
absorbing or releasing heat as necessary. Id. at 1:7–9. They are used, for
example, to regulate temperatures within a desired range, and may provide
protection against extreme heat or cold, and may be used for building
applications, such as in wallboards, sheetrock, drywall, plasterboard, and
fibreboard for absorbing or releasing heat energy into or from a room
environment. Id. at 1:9–16. Berry discloses using phase change materials in
an acoustic barrier of an acoustic composite panel in order to provide both
latent heat storage capacity and acoustic damping properties in the same
panel. Id. at 8:5–15. In a preferred embodiment, the panel front
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incorporates depending edges to form a tray construction that is particularly
useful for use as ceiling tiles. Id. at 8:17–18.
9. Chou (Ex. 1014)
Chou, titled “Frequency-Independent Beamformer with Low
Response Error,” generally describes a method for designing broadband
beamformers with highly frequency-invariant behavior. Ex. 1014, 2995.
10. Principles of Law
A claim is unpatentable under 35 U.S.C. § 103 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 of the invention to a
person having ordinary skill in the art. KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 406 (2007). The question of obviousness is resolved on the basis
of underlying factual determinations, including: (1) the scope and content of
the prior art; (2) any differences between the claimed subject matter and the
prior art; (3) the level of ordinary skill in the art; and (4) objective evidence
of non-obviousness (i.e., secondary considerations), if present. See Graham
v. John Deere Co., 383 U.S. 1, 17–18 (1966). When evaluating a claim for
obviousness, we also must “determine whether there was an apparent reason
to combine the known elements in the fashion claimed by the patent at
issue.” KSR, 550 U.S. at 418 (citing In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006)).
The Supreme Court has made clear that we apply “an expansive and
flexible approach” to the question of obviousness. KSR, 550 U.S. at 415.
Whether a patent claiming the combination of prior art elements would have
been obvious is determined by whether the improvement is more than the
predictable use of prior art elements according to their established functions.
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Id. at 417. Reaching this conclusion, however, requires more than a mere
showing that the prior art includes separate references covering each
separate limitation in a claim under examination. Unigene Labs., Inc. v.
Apotex, Inc., 655 F.3d 1352, 1360 (Fed. Cir. 2011). Rather, obviousness
requires the additional showing that a person of ordinary skill at the time of
the invention would have selected and combined those prior art elements in
the normal course of research and development to yield the claimed
invention. Id.
11. Objective Evidence of Non-Obviousness
Patent Owner contends that objective evidence supports a finding of
non-obviousness of the ’493 patent. PO Resp. 68–78. According to Patent
Owner, Shure’s MXA910—a commercial product—embodies claims 1, 17,
and 28 of the ’493 patent, and that product’s “commercial success, industry
praise, and copying by competitors” evinces non-obviousness of claims 1–
40. Id. at 68.
Obviousness is a question of law based on underlying findings of fact.
In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). One of the underlying
findings of fact include, when in evidence, objective indicia of
non-obviousness (i.e., secondary considerations). Graham v. John Deere
Co., 383 U.S. 1, 17–18 (1966). In order to accord substantial weight to
secondary considerations in an obviousness analysis, “the evidence of
secondary considerations must have a ‘nexus’ to the claims, i.e., there must
be ‘a legally and factually significant connection’ between the evidence and
the patented invention.’” Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366,
1373 (Fed. Cir. 2019) (quoting Henny Penny Corp. v. Frymaster LLC, 938
F.3d 1324, 1332 (Fed. Cir. 2019)); Lectrosonics, Inc. v. Zaxcom, Inc.,
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IPR2018-01129, Paper 33, 32 (PTAB January 24, 2020) (precedential,
designated April 14, 2020). “The patentee bears the burden of showing that
a nexus exists.” Id. One way for a patentee to satisfy this burden is to show
that the asserted evidence is tied to a specific product and that the specific
product “embodies the claimed features and is coextensive with them.”
Polaris Indus., Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1072 (Fed. Cir. 2018).
If the patentee makes this showing, patentee is entitled to a rebuttable
presumption that a nexus exists. Id. Even if a patentee fails to invoke the
rebuttable presumption, a patentee can still demonstrate a nexus exists “by
showing that the evidence of secondary considerations is the ‘direct result of
the unique characteristics of the claimed invention.’” Fox Factory, 944 F.3d
at 1373–74 (quoting In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996)).
As argued by Petitioner, “[t]he ’493 Patent claims entirely separate,
distinct, and unrelated inventions: (1) a ceiling tile form factor [claims 17–
27] and (2) concentric nested rings of microphones [claims 1–16 and 28–
40].” Reply 37–38. Patent Owner’s evidence relates primarily to a drop
ceiling tile configuration, and provides little evidence regarding the
microphone array that includes concentric, nested rings of microphones. See
PO Resp. 68–78.
a) Claims 1–16 and 28–40
Claims 1–16 and 28–40 recite “an array microphone system” and
“method of assembling an array microphone,” respectively. Ex. 1001,
17:50, 19:21. Claims 1–16 require a plurality of microphones arranged on a
substrate in a number of concentric, nested rings, wherein the microphones
within each ring are positioned at predetermined intervals along the ring’s
circumference. Id. at 17:51–56. Claims 28–40 require arranging a second
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plurality of microphones on a substrate to form a second configuration that
concentrically surrounds a first plurality of microphones arranged to form a
first configuration on the substrate. Id. at 18:23–31. Patent Owner briefly
touches upon these microphone arrays, alleging the MXA910 microphone
array is arranged in a number of concentric, nested rings of varying sizes,
each ring including a subset of the plurality of microphones positioned at
predetermined intervals along the circumference of each ring. PO Resp. 68–
70. However, Patent Owner fails to demonstrate a nexus between the
alleged evidence of non-obviousness, and claims 1–16 and 28–40. See id. at
68–78.
Specifically, relying on the declaration of Dr. Vipperman, Patent
Owner asserts that MXA910 embodies claims 1 and 28. PO Resp. 69–70
(citing Ex. 2020 ¶¶ 61–65). Patent Owner and Dr. Vipperman both rely on
an alleged photograph of MXA910’s microphone array. Id.; Ex. 2020
¶¶ 61–65. However, neither Patent Owner nor Dr. Vipperman provide
similar analysis for claims 2–16 and 29–40. Accordingly, aside from
claims 1 and 28, Patent Owner fails to show that MXA910 embodies the
claims. Second, Patent Owner neither contends nor shows the claims are
coextensive with the evidence of non-obviousness. See PO Resp. 68–78.
Therefore, we find Patent Owner has failed to demonstrate it is entitled to a
presumption of nexus as to claims 1–16 and 28–40. Polaris Indus., 882 F.3d
at 1072. As discussed below, Patent Owner has otherwise failed to show
nexus to claims 1–16 and 28–40. Fox Factory, 944 F.3d at 1373–74.
For evidence of commercial success, Patent Owner cites sales figures
for MXA910, but asserts without any supporting evidence that the alleged
success was due to “superior audio performance” that improved existing
offerings “by enabling 360-degree pickup and improved directionality while
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avoiding unwanted noise.” Id. at 71–72. Patent Owner does not cite to any
testimony or document to support its assertion that this feature, i.e., 360-
degree pickup and improved directionality while avoiding unwanted noise,
was attributable to the claimed nested harmonic ring configuration and led to
any alleged commercial success. Id.; see also Reply 38 (arguing that, to the
extent MXA910 had improved sound quality, such improvement resulted
from signal processing, not the array configuration of concentric nested
rings). Accordingly, we find the evidence is insufficient to show MXA910
sales is the direct result of the unique characteristics of the invention covered
by claims 1–16 and 28–40.
For evidence of copying, Patent Owner contends that Petitioner’s
beamforming microphone array (BMA) and Sennheiser’s TeamConnect
Ceiling copied MXA910. PO Resp. 72–77. Patent Owner’s evidence of
copying is directed to the ceiling tile configuration of MXA910, and Patent
Owner provides no evidence, much less any assertion, that the alleged copies
used the microphone array of MXA910. Id. Indeed, Patent Owner admits
that BMA does not “incorporate[e] the same array microphone geometry as
the MXA910.” Id. at 75–76. Patent Owner similarly provides no evidence,
and does not even assert, that the Sennheiser TeamConnect Ceiling uses the
MXA910 microphone array, but rather focuses on Sennhesier’s ceiling tile
configuration. Id. at 76–77.
For industry praise, Patent Owner asserts “the industry has bestowed
several honors on the MXA910 since its introduction.” PO Resp. 77–78.
However, we give little weight to this assertion because Patent Owner does
not cite to any underlying documents. Rather, Patent Owner cites to the
declaration of Mr. Schanz, Vice President of Shure, Inc., who provides a list
enumerating alleged awards received, without any explanation of the
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awards, specific identification of alleged praise, or any attempt to show any
alleged praise is the direct result of the unique characteristics of the
inventions covered by claims 1–16 and 28–40.
For the foregoing reasons, as to claims 1–16 and 28–40, although we
have considered Patent Owner’s evidence regarding objective indicia of non-
obviousness in our overall obviousness analysis, we find it to be of limited
weight.
b) Claims 17–27
Claims 17–27 recite a microphone assembly comprising, inter alia, a
housing configured to support an array microphone that is “sized and shaped
to be mountable in a drop ceiling in place of at least one of a plurality of
ceiling tiles,” and wherein “a front face of the housing includes a sound-
permeable screen” shaped and sized substantially similarly to one of the
ceiling tiles. Ex. 1001, 18:39–49. For the reasons discussed below, Patent
Owner fails to demonstrate a nexus between the alleged evidence of non-
obviousness, and claims 17–27. PO Resp. 68–78.
Patent Owner contends its MXA910 product embodies claim 17. PO
Resp. 68, 71 (citing Ex. 2020 ¶¶ 61–65). However, neither Patent Owner
nor Dr. Vipperman provide similar analysis for claims 18–27. Accordingly,
aside from claim 17, Patent Owner fails to show MXA910 embodies the
claims. Second, Patent Owner neither contends nor shows the claims are
coextensive with the evidence of non-obviousness. Id. at 68–78. Therefore,
we find Patent Owner has failed to demonstrate it is entitled to a
presumption of nexus as to claims 17–27. Polaris Indus., 882 F.3d at 1072.
As discussed below, Patent Owner has otherwise failed to show nexus to
claims 17–27. Fox Factory, 944 F.3d at 1373–74.
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For evidence of commercial success, Patent Owner, once again, cites
sales figures for MXA910, but asserts without supporting evidence that the
alleged success was due to a new market created by Shure for ceiling-
mounted arrays that could be integrated into a drop ceiling in place of a
ceiling tile. PO Resp. 71 (citing Ex. 2014 ¶¶ 9–10). For evidence of
copying, Patent Owner contends that Petitioner’s beamforming microphone
array (BMA) and Sennheiser’s TeamConnect Ceiling copied MXA910. PO
Resp. 72–77.
Patent Owner suggests that the success of MXA910 was attributable
to its design that “provides a complete assembly housing an array
microphone with a sound-permeable screen sized and shaped substantially
similar to a ceiling tile.” Id. at 74. The sales figures and evidence of alleged
copying Patent Owner provides is weak. As Petitioner points out, Shure
sells MXA910 for multiple different configurations, including
configurations that do not involve the claimed ceiling tile configuration.
Reply 38 (citing Ex. 1049 ¶¶ 27–34; Ex. 2014 ¶ 10; Ex. 1051 21:21–22:3,
23:15–20, 65:7–8, 113:6–15). The evidence supports Petitioner’s argument
that MXA910 features multiple configurations that do not involve the
claimed ceiling tile configuration. Ex. 2017, 1–2, 4 (depicting
configurations of the array hanging from the ceiling, rather than replacing a
ceiling tile). The MXA910 brochure entered into evidence by Patent Owner
depicts several installations of MXA910, none of which embodies the
claimed configuration in which the microphone assembly replaces a ceiling
tile. Ex. 2017. Specifically, the brochure depicts installations in which the
microphone assembly hangs from the ceiling—i.e., an embodiment Patent
Owner argues is distinguishable from a drop ceiling configuration in arguing
Graham does not render claim 26 unpatentable. Id. at 1–2, 4; PO Resp. 42–
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44. Although claim 17 does not expressly require the microphone assembly
to be fitted into a ceiling to replace a ceiling tile, Patent Owner fails to
establish the value of the claimed features in the configurations where the
microphone assembly hangs from the ceiling. Indeed, Exhibit 2017 depicts
installations that do not even have a drop ceiling, much less ceiling tiles in
the ceiling. Ex. 2017, 1–2, 4. Accordingly, we find the evidence is
insufficient to show that MXA910 sales and alleged copying are the direct
result of the unique characteristics of the invention covered by claims 17–27.
For industry praise, Patent Owner asserts “the industry has bestowed
several honors on the MXA910 since its introduction.” PO Resp. 77–78.
However, we give little weight to this assertion because Patent Owner does
not cite to any underlying documents. Rather, Patent Owner cites to the
declaration of Mr. Schanz, who provides a list enumerating alleged awards
received, without any explanation of the awards, specific identification of
alleged praise, or any attempt to show any alleged praise is the direct result
of the unique characteristics of the invention covered by claims 17–27.
For the foregoing reasons, as to claims 17–27, although we have
considered Patent Owner’s evidence regarding objective indicia of non-
obviousness in our obviousness analysis, we find it to be of limited weight.
12. Asserted Obviousness Over Tiete in Combination with Other Art
As we noted above, Petitioner asserts that claims 1–16 and claims 28–
40 are unpatentable over Tiete in various combinations with other art.
Pet. 9. For the reasons discussed below, we determine Petitioner has
demonstrated, by a preponderance of the evidence, the unpatentability of
claims 1–5, 7–16, 28–33, and 35–40 under § 103. Petitioner, however, has
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not demonstrated, by a preponderance of the evidence, the unpatentability of
claims 6 and 34 under § 103.
a) Claim 1
Petitioner has demonstrated, by a preponderance of the evidence, that
claim 1 is unpatentable over the combination of Tiete and Chan. As we
discussed above, Tiete describes a device called SoundCompass—a
compass, containing an array of 52 microphones on a PCB, for measuring a
sound field. Supra, Sec. II.E.2. Figures 1(b) and 5 of Tiete, reproduced
below, are illustrative.

Figure 1(b) of Tiete is a photograph showing a bottom view of the
SoundCompass PCB. Figure 5 of Tiete is an illustration showing the
geometry of the 52 microphone array on the SoundCompass PCB.
Ex. 1005, Fig. 1(b) (left), Fig. 5 (right). Figure 1(b) is a photograph showing
a bottom view of the SoundCompass PCB, and shows a microphone array
and attached debug cable. Id. at 1919, Fig. 1(b). Figure 5 is an illustration
showing the geometry of the 52 microphone array on the SoundCompass
PCB. Id. at 1926, Fig. 5.
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To the extent the preamble of claim 1 should be treated as limiting,
Petitioner shows Tiete’s SoundCompass discloses “[a]n array microphone
system,” as recited in the preamble of claim 1, because SoundCompass
includes an array of 52 microphones. Pet. 40 (citing Ex. 1005, 1918, 1919,
1923, 1926–27, Figs. 1, 3, 5).
Petitioner shows Tiete discloses “a substrate,” as recited in claim 1,
because, as shown in Figure 1(b) of Tiete, SoundCompass includes 20-cm
circular printed circuit board (“PCB”). Id. (citing Ex. 1005, 1919, 1923–24,
1931–32, Figs. 1, 2; Ex. 1003 ¶ 122).
Petitioner shows Tiete discloses “a plurality of microphones arranged,
on the substrate, in a number of concentric, nested rings of varying sizes,
each ring comprising a subset of the plurality of microphones positioned at
predetermined intervals along a circumference of the ring,” as recited in
claim 1, based on Tiete’s disclosure of a 52 microphone array. Id. at 30–32,
41–42. As we noted above, Figures 1(b) and 5 show the geometry of the 52
microphone array on the SoundCompass PCB. Id. at 1919, 1926. As shown
in these figures, and explained in Tiete, the 52 microphones are arranged in
four concentric rings. Id. at 1926.
Claim 1 further requires the microphones to be “positioned at
predetermined intervals along a circumference of the ring.” Petitioner
argues Tiete teaches this feature because Tiete discloses that the microphone
arrangement is predetermined to “maintain the array’s [polar-steered power
response], and also [directivity] Dp, independent of orientation.” Pet. 30–31
(citing Ex. 1005, 1931); see also id. at 41 (explaining that the microphones
are “mounted in a specific pattern on a circular circuit board with a diameter
of 20 cm,” and that certain parameters, including an array’s polar steered
response power (“P-SRP”) and polar directivity, motivate the chosen array
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geometry shown in Figure 5) (citing Ex. 1005, 1923, 1927, Fig. 5). In
addition, Petitioner’s declarant, Dr. Begault, opines that a skilled artisan
viewing Figures 1 and 5 of Tiete would have understood that the
microphones are uniformly arranged with purpose at predetermined intervals
on each ring of the array. Ex. 1003 ¶ 98 (citing Ex. 1005, 1931). We credit
Dr. Begault’s testimony, and we find Petitioner’s argument persuasive, for
the following reasons.
Tiete explains that the digital array of microphones on the
SoundCompass are “mounted in a specific pattern” on the circular PCB.
Ex. 1005, 1923. As Dr. Begault points out, a skilled artisan looking at the
depictions of SoundCompass in Tiete’s Figures 1 and 5 would have
observed regularly spaced intervals between microphones along the
circumference of each concentric ring. Ex. 1003 ¶ 98 (citing Ex. 1005,
1931). Tiete’s description of the microphone array geometry supports
Dr. Begault’s testimony. Section 4.4 of Tiete, titled “Motivating the Array
Geometry,” explains that a circular array geometry having radial symmetry,
unlike linear arrays, maintains P-SRP and Dp in all directions. Id. at 1931.
Teite’s disclosure that the array has radial symmetry supports Dr. Begault’s
testimony that the microphones are evenly spaced along the circumference
of the ring. Tiete further discloses that adding more microphones to the
array results in positioning microphones more closely together, thereby
suggesting that the spacing between microphones along a concentric ring
depends on the number of microphones. Id. This disclosure in Tiete also
supports Dr. Begault’s testimony. Therefore, we find Dr. Begault’s
testimony to be credible, and we are persuaded that Tiete teaches positioning
microphones at predetermined intervals along a circumference of the rings.
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For the foregoing reasons, Petitioner has shown sufficiently that Tiete
teaches all the limitations of claim 1, even without relying on the teachings
Chan.
Alternatively, Petitioner asserts that Chan also teaches microphones
“positioned at predetermined intervals along a circumference of the ring.”
Pet. 31–32 (citing Ex. 1003 ¶ 99). Petitioner explains that “Chan determined
that the spacing between each microphone on each ring is ‘λ/2, where λ is
the smallest wavelength of the array to be operated.’” Pet. 31 (citing
Ex. 1006, 167). Based on the fully developed trial record, we find
Petitioner’s argument persuasive. Figures 1 and 2 of Chan illustrate the
spacing between microphones, i.e., inter-sensor spacing, along the
circumference of a ring. The figures are reproduced below.

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Figure 1 of Chan illustrates a uniform concentric circular array (UCCA)
with p rings. Figure 2 of Chan illustrates the relationship between inter-
sensor spacing and the radius of the pth ring of the UCCA.
Ex. 1006, 167 (Figs. 1–2). Figure 1 shows a uniform concentric circular
array (“UCCA”) of microphones, i.e., sensors, wherein the UCCA has p
rings, and each pth ring has Kp “equally spaced” microphones along the
circumference of the respective ring. Id. Figure 2 shows the “[r]elationship
between intersensor [i.e., microphone] spacing and the radius of the pth ring
of the UCCA.” Id. As seen in these figures, Chan teaches equally spaced
microphones along the circumference of the ring, and Chan teaches that the
spacing is λ/2, where λ is the smallest wavelength of the array to be
operated. Id. Accordingly, we find that Chan also teaches microphones
“positioned at predetermined intervals along a circumference of the ring,” as
recited in claim 1.
Petitioner articulates a rationale to combine the teachings of Chan
with those of Tiete. Pet. 31–32, 37–39. Both Tiete and Chan are in the field
of acoustics and, as discussed above, each employ a microphone array
comprising multiple concentric circular rings. Petitioner argues that a
skilled artisan would have been motivated to apply Chan’s teachings about
beamforming techniques because beamforming, according to Chan, “find[s]
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important applications in . . . acoustics.” Pet. 38 (quoting Ex. 1006, 165–
166). A skilled artisan, according to Petitioner, would have been interested
in applying beamforming techniques like those taught in Chan to improve an
acoustical array like that taught in Tiete. Id. (citing Ex. 1003 ¶ 117).
We find that Petitioner’s argument and evidence is supported by the
teachings of Tiete and Chan. Both Tiete and Chan teach that beamforming
techniques are useful for suppressing sound coming from directions other
than the direction from which the desired sound originates. Chan states that
beamforming using sensor, e.g., microphone, arrays “is an effective method
for suppressing interference whose angles of arrival are different from the
desired looking direction.” Ex. 1006, 165. Tiete, likewise, states that it uses
beamforming techniques to sample the surrounding sound field, and that
beamforming focuses the microphone array “in one specific direction or
orientation, amplifying all sound coming from that direction and suppressing
sound coming from other directions.” Ex. 1005, 1926.
Tiete also teaches a need for detecting bearing, i.e., direction, of sound
sources in, for example, an urban environment, where the sounds may have a
broad range of characteristics, such as a broad range of frequencies. Tiete’s
SoundCompass is “designed to sample the directionality of the sound field
of an urban environment where multiple sound sources of different
characteristics might be present.” Ex. 1005, 1922. Tiete teaches that the
SoundCompass’s ability to discriminate sound sources of various
frequencies to a particular degree of directivity Dp depends on the
circumference of the ring. Id. at 1930. Figure 8(a) of Tiete, reproduced
below, is illustrative.
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Figure 8(a) of Tiete illustrates a SoundCompass at different frequencies.
Ex. 1005, 1930. Figure 8(a) shows a polar plot indicating responses of the
SoundCompass to sounds of various frequencies, namely 600, 846, 1,630,
12,560, and 15,850 Hz. Id. The sound sources all have the same bearing of
45˚. Id. As can be seen in Figure 8(a), the main lobe (circular curve) for a
600 Hz sound source, shown in black, is wide, and therefore, does not
provide high directivity, because it does not narrow the sound source even to
within a 90˚ quadrant. Id. In contrast, the main lobe for a 15,850 Hz sound
source, shown in green, is narrow and provides for much greater directivity
that can more confidently estimate the bearing of the sound source. Id.
Tiete explains that increasing the diameter of the ring array increases
directivity over all frequencies. Id. at 1931. Therefore, in order to achieve
desired directivity for lower frequencies, rings of greater diameter may be
useful. “[Polar directivity] Dp increases as the total diameter of a circular
array increases . . . the bigger the better,” and, therefore, removing outer
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rings “reduces [polar] directivity, Dp,” over all frequencies. Ex. 1005, 1931;
see also Pet. 37–38 (citing Ex. 1005, 1931).
Chan teaches a beamforming technique that provides improved
operation over a broad range of frequency bands, i.e., is frequency invariant.
Ex. 1006, 165. Chan teaches that increasing the radius (and hence diameter,
which is twice the radius) of a circular array results in a narrower passband,
and that by employing multiple rings of progressively increasing radius,
frequency invariance over a much larger frequency bandwidth may be
achieved. Ex. 1006, 166.
We are persuaded, therefore, by Petitioner’s assertion that a person of
ordinary skill in the art “would have been motivated to look to Chan to
determine how to optimize and expand Tiete’s [microphone] array.” Pet. 38.
We also find sufficient Petitioner’s argument that skilled artisans
would have applied Chan’s teachings to those of Tiete with a reasonable
expectation of success. Id. at 39. As Petitioner points out, both Tiete and
Chan employ similar concentric circular ring arrays. Id. (citing Ex. 1003
¶ 118; Ex. 1005, 1926; Ex. 1006, 165). Dr. Begault testifies that a skilled
artisan would not have encountered any difficulty applying Chan’s teachings
to Tiete’s microphone array because changes to the design would have been
straight-forward. Id. (citing Ex. 1003 ¶ 118). The record supports Dr.
Begault’s testimony. The ’493 patent provides little detail as to how to
determine interval spacing, thereby leaving the implementation details to a
person of ordinary skill in the art. The ’493 patent states that the
predetermined interval spacing along the circumference of a ring “can
depend on size or diameter of the ring, a number of microphones 106b
included in the subset assigned to that ring, and/or a desired sensitivity or
overall pressure for the microphones 106b in the ring.” Ex. 1001, 9:42–56.
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With regard to claim 1, Patent Owner contends: 1) the Petition fails to
demonstrate Tiete is a printed publication, and therefore qualifies as prior art
to the ’493 patent, and 2) Tiete and Chan are not analogous art, and a skilled
artisan therefore would not have looked to the teachings of either Tiete or
Chan. PO Resp. 44–48, 65–68.
As to Patent Owner’s first argument, for reasons discussed above, we
determine Tiete is a printed publication, and qualifies as prior art to the ’493
patent under 35 U.S.C. § 102(a)(1). Supra Sec. II.E.1.
As to Patent Owner’s second argument, under In re Klein, 647 F.3d
1343, 1348 (Fed. Cir. 2011), “[a] reference qualifies as prior art for an
obviousness determination under § 103 only when it is analogous to the
claimed invention.” 647 F.3d at 1348. “‘Two separate tests define the scope
of analogous prior art’”:
(1) whether the art is from the same field of endeavor, regardless
of the problem addressed and, (2) if the reference is not within
the field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the
invention is involved.

Id. (citations omitted). Whether a reference in the prior art is analogous is a
question of fact. In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992).
Patent Owner contends that neither Tiete nor Chan are in the same
field of endeavor as the ’493 patent, and that neither reference addresses the
same problems that the invention of the ’493 patent seeks to solve. PO
Resp. 44–48.
Patent Owner submits the field of endeavor is defined in the ’493
patent as “an array microphone system and method of assembling the same”
that is “capable of fitting into a ceiling tile of a drop ceiling and providing
360-degree audio pickup with an overall directivity index that is optimized
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across the voice frequency range.” Id. at 45–46 (quoting Ex. 1001, 1:6–11).
Patent Owner argues that, in contrast, Tiete seeks localizing sounds such as
sniper fire or wildlife in noisy environments, and therefore is not concerned
with an overall directivity matrix that is optimized across the voice
frequency range. Id. at 45 (citing Ex. 1005, 1918; Ex. 2020 ¶¶ 142–145).
With regard to Chan, Patent Owner does not address whether Chan is
concerned with optimization across the voice frequency range. See id. at
46–47. Instead, Patent Owner identifies Chan’s disclosure of beamforming
techniques as directed to attaining nearly frequency invariant characteristics
and argues that Chan “refers generally to ‘applications in radio,
communications, sonar, radar, and acoustics.” Id. at 46 (citing Ex. 1006,
165). Patent Owner argues further that the ’493 patent does not contemplate
a system that maintains frequency invariance using Chan’s techniques. Id. at
46–47 (citing Ex. 2020 ¶ 146).
Petitioner responds that the field of endeavor is an array microphone
system and method of assembling the same. Reply 29–30. As argued by
Petitioner, claims 1–16 and 28–40—i.e., the claims against which Petitioner
asserts Tiete and Chan—do not state a field of use and are not limited to a
particular use. Id. at 29 (citing Ex. 1052, 29:16–17, 24:13–29:17, 80:4–6).
Petitioner responds further that Tiete is in the same field of endeavor
because Tiete is based on indoor telephone conference systems, and the
frequency range of Tiete’s system ranges from 100–16,000 Hz, and
therefore covers the prominent sound frequencies of speech, i.e., 100–8,000
Hz. Id. at 30 (citing Ex. 1005, 1921; Ex. 1003 ¶ 97). Petitioner argues that
Chan also is in the same field of endeavor because Chan “overlaps with the
same objectives for solutions as the ’493 patent.” Id. at 30 (citing Ex. 1003
¶ 99–103). For example, Chan is cited in a patent titled “Microphones
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Orientation and Size in a Speakerphone,” which lists Patent Owner’s expert
in IPR2017-01785, William Oxford, Ph.D., as a co-inventor. Id. (citing
Ex. 1053, 3). Dr. Oxford previously testified that his discussion of
designing a telephone conferencing system for LifeSize between the time
frame of 2003–2007 included beaming techniques that Petitioner argues are
like those taught in Chan. Id. (citing Ex. 1053, 3; Ex. 1054, 4, 7–1015;
Ex. 1003 ¶ 101).
Based on the fully developed trial record, we find Petitioner’s
arguments persuasive. The title of the ’493 patent is “Array Microphone
System and Method of Assembling the Same.” Ex. 1001, code (54). It does
not state or indicate a field of use or narrow the field of use to a microphone
capable of fitting into a ceiling tile of a drop ceiling and providing 360-
degree audio pickup with an overall directivity index optimized across a
voice frequency range. In order to import this narrowing feature into the
alleged field of use, Patent Owner cites to the Technical Field of the ’493
patent. PO Resp. 45 (citing Ex. 1001, 1:6–11). We find this unavailing
because, as argued by Petitioner, claims 1–16 and 28–40—i.e., the claims
against which Petitioner asserts Tiete and Chan—do not state a field of use
and are not limited to a particular use. Reply 29. This is in contrast with
claims 17–27, which specifically require, inter alia, a “housing shaped to be
mountable in a drop ceiling.” We find that the field of endeavor for the
invention recited in claims 1–16 and 28–40 is array microphone systems and
methods of assembling the same. We are persuaded by Petitioner’s
arguments that both Tiete and Chan are in this field of endeavor because

15 Petitioner also cites “Ex. 1054, 157–11:22.” Exhibit 1054 is a declaration
that includes numbered paragraphs and page number at the bottom of each
page. It is unclear what “157–11:22” is citing to.
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Tiete relates to a distributed microphone array based sensor for sound
localization and Chan relates to beamforming microphone (i.e., sensor)
arrays. Ex. 1005; Ex. 1006.
Even if we were to assume that the field of endeavor pertained to
providing 360-degree audio pickup with an overall directivity index that is
optimized across the voice frequency range, as argued by Patent Owner, our
finding that Tiete and Chan are analogous to the ’493 patent would be the
same. As argued by Petitioner, Tiete is based on indoor telephone
conference systems, and the frequency range of Tiete’s system ranges from
100–16,000 Hz and, therefore, covers the prominent sound frequencies of
speech, i.e., 100–8,000 Hz. Reply 30 (citing Ex. 1005, 1921; Ex. 1003
¶ 97). We find Chan also is applicable with regard to the voice frequency
arrange. As acknowledged by Patent Owner, Chan’s beamforming
techniques are broadly applicable, and include applications in acoustics. PO
Resp. 46 (citing Ex. 1006, 165). Chan’s citation in a patent titled
“Microphones Orientation and Size in a Speakerphone,” further supports our
finding that a person of ordinary skill in the art would have considered the
teachings of Chan in the context of microphone arrays optimized across the
voice frequency range. Ex. 1053, 3.
Patent Owner also contends that Tiete and Chan do not address the
same problem as the ’493 patent. PO Resp. 47. Petitioner disputes this
contention, but does not provide a substantive response. Reply 29–30.
However, we need not decide this question because, as we discussed above,
we find Tiete and Chan are in the same field of endeavor as the ’493 patent.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has shown, by a preponderance of the
evidence, that claim 1 is unpatentable as obvious over Tiete and Chan.
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b) Claim 28
Petitioner contends claim 28 is unpatentable as obvious over Tiete and
Chan. Pet. 30, 56–58. Claim 28 is similar to claim 1, but with some
differences. Ex. 1001, 17:50–56, 19:21–31. Patent Owner does not provide
arguments specific to claim 28. For the foregoing reasons, Petitioner has
shown unpatentability of claim 28.
The preamble of claim 28 recites “[a] method of assembling an array
microphone.” Ex. 1001, 19:21–22. To the extent the preamble of claim 28
should be treated as limiting, Petitioner shows that Tiete describes a method
of assembling an array microphone, because Tiete discloses the assembly of
a SoundCompass prototype, described as “a 20-cm circular printed circuit
board (PCB) (Figure 1) containing a sensor array of 52 microphones.”
Pet. 56 (citing Ex. 1003 ¶ 134; Ex. 1005, 1918, 1919, 1923, 1926, 1927,
Figs. 1, 3, 5).
Claim 28 next recites “arranging a first plurality of microphones to
form a first configuration on a substrate” and “arranging a second plurality
of microphones to from a second configuration on the substrate, the second
configuration concentrically surrounding the first configuration.” Ex. 1001,
19:23–28. Petitioner shows that Tiete teaches these limitations because
Tiete’s microphone array comprises four concentric, nested rings, as
illustrated in Figure 5 of Tiete. Pet. 56–57 (citing Ex. 1003 ¶ 134; Ex. 1005,
1923, 1924, 1926, 1927, 1931, 1932, Figs. 1, 5). As argued by Petitioner,
the two inner rings are arranged in a first plurality of microphones to form a
first configuration and the two outer rings are arranged in a second plurality
of microphones to form a second configuration concentrically surrounding
the first configuration. Id.
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Finally, claim 28 recites “electrically coupling each of the first and
second pluralities of microphones to an audio processor for processing audio
signals captured by the microphones.” Ex. 1001, 18:29–31. Petitioner
shows that Tiete teaches this limitation because Tiete discloses that the data
captured from the microphones forming the array, e.g., MEMs microphones,
are processed. More specifically, the MEMs microphones on the PCB
connect to an FPGA add on board on the bottom of the PCB, wherein the
FPGA is connected via an Inter-Integrated Circuit (I2C) interface with a host
platform for processing audio signals captured by the MEMs microphones.
Pet. 57–58 (citing Ex. 1001 ¶ 134; Fig. 1005, 1919, 1923–1932, Figs. 1, 4).
For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence, claim 28 is unpatentable as obvious over Tiete and Chan.
c) Claims 2–16, 29–40
(1) Claim 2
Claim 2 depends from claim 1, further reciting “wherein the
concentric, nested rings are rotationally offset from each other.” Ex. 1001,
17:57–59. We find that Tiete discloses this feature. As demonstrated by
Petitioner, Tiete Figures 1 and 5 depict rings that are rotationally offset from
each other. Pet. 42–43 (citing Ex. 1005, Figs. 1, 5; Ex. 1003 ¶ 123). Patent
Owner contends that Tiete does not disclose rotationally offset rings based
on Patent Owner’s proposed claim construction requiring that “no more than
any two microphones are axially aligned.” PO Resp. 48. As we discussed
above, Patent Owner’s construction is unduly narrow because the
Specification and claim language do not require a particular way of
rotationally offsetting the concentric, nested rings. Supra Sec. II.D.
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For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence, claim 2 is unpatentable as obvious over Tiete and Chan.
(2) Claims 3–5
Claims 3–5 depend directly from claim 1. Patent Owner does not
raise arguments for these claims in addition to those argued for claim 1.
Having reviewed Petitioner’s evidence and arguments, we are persuaded
Tiete teaches the additional claimed features required by claims 3–5.
Pet. 43–45. Petitioner demonstrates Figure 5 of Tiete depicts concentric
nested rings “positioned at different radial distances from a central point of
the substrate to form a nested configuration,” as recited in claim 3. Id. at
43–44. Petitioner also demonstrates the plurality of microphones in Tiete
are “micro-electrical mechanical system (MEMS) microphones,” as recited
in claim 4, based on Tiete’s explicit disclosure that the microphone array “is
composed of a sensor array of 52 Microelectricalmechanical systems
(MEMS) microphones.” Id. at 44 (citing Ex. 1005, 1918, 1926, 1923, 1924,
1938, 1946). Lastly, Petitioner demonstrates Tiete’s Figure 5 depicts each
of Tiete’s rings “form[ing] a circle with a different diameter,” as recited in
claim 5, because each ring progressively is larger and, therefore, has a larger
diameter. Id. at 45 (citing Ex. 1005, Fig. 5, 1923, 1924, 1926, 1927, Fig. 1).
For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence, claims 3–5 are unpatentable as obvious over Tiete and Chan.
(3) Claims 6 and 34
Claims 6 and 34 depend from claims 5 and 30, respectively, and they
recite “wherein the diameter of each ring is determined based on a lowest
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operating frequency assigned to the subset of microphones included in the
ring” and “wherein a diameter of each concentric ring is defined by a lowest
operating frequency assigned to the microphones forming the ring,”
respectively. Ex. 1001, 18:1–4, 20:12–14. Petitioner relies on Chan’s
teaching that rings with a larger radius perform better in lower frequency
bandwidths, and rings with a smaller radius perform better in higher
frequency bandwidths. Pet. 32–34, 45–46, 61. According to Petitioner,
Chan determines the radius (i.e., half the diameter) of the ring based on the
smallest wavelength the array measures. Id. at 32 (citing Ex. 1006, 167); id.
at 45–46. Specifically, Petitioner argues “[t]he spacing between the rings in
each microphone is fixed at λ/2, ‘where λ is the smallest wavelength of the
array to be operated.’ λmin”. Id. at 46 (citing Ex. 1006, 167).
Based on the fully developed trial record, Petitioner has failed to show
that Chan teaches the limitations of claims 6 and 34. The formula Petitioner
identifies is not used to calculate the radius of the ring, but rather is used to
calculate the spacing between sensors within a particular ring: “In UCCAs,
the intersensor spacing in each ring is fixed at λ/2, where λ is the smallest
wavelength of the array to be operated and is denoted by λmin.” Ex. 1006,
167 (emphasis added). Neither Petitioner nor Dr. Begault explain how
calculating inter-sensor spacing amounts to defining a diameter of each
concentric ring by a lowest operating frequency assigned to the microphones
forming the ring, as required by these two claims. Chan includes a formula
to calculate the radius of the pth ring of the microphone array, namely
rp = λmin/ (4sin (π/Kp)).
Id. However, neither Petitioner nor Dr. Begault discuss this formula.
Patent Owner points out that a smallest wavelength corresponds to a
highest frequency, because frequency and wavelength are inversely
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proportional. PO Resp. 53. But the claims require determining diameter
based on the lowest operating frequency within the operational frequency
range assigned to the ring. Neither Petitioner nor Dr. Begault explain why a
skilled artisan would determine the diameter of a ring using the lowest
operating frequency assigned to the microphones forming a particular ring,
especially based on Chan’s teaching to use the highest frequency of the
array —i.e., λmin. Ex. 1006, 167 (“λ is the smallest wavelength of the array
to be operated and is denoted by λmin”).
For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has not shown, by a preponderance of
the evidence, claims 6 and 34 are unpatentable as obvious over Tiete and
Chan.
(4) Claim 7
Claim 7 depends from claim 1, and further recites “wherein the
number of concentric, nested rings is seven.” Ex. 1001, 18:5–6. Petitioner
appears to acknowledge that neither Tiete nor Chan explicitly disclose seven
rings. Pet. 48–49; Ex. 1003 ¶ 107 (Dr. Begault acknowledging Tiete does
not expressly disclose seven rings). Tiete explicitly discloses an array
comprising four rings. Ex. 1005, Fig. 5 (1926). However, Tiete’s teachings
are not limited to the disclosed 52 microphone array comprising four rings.
As explained by Dr. Begault, Tiete discloses that, “as for most sensor array
applications, the bigger, the better” and “adding more microphones to the
array increases the array’s output signal-to-noise ratio (SNR)”). Ex. 1003
¶ 107; Pet. 35, 48 (citing Ex. 1005, 1931, 1932, 1946). Based on these
teachings, Dr. Begault contends a person of ordinary skill in the art would
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have been motivated to add additional rings to improve the array’s SNR.
Ex. 1003 ¶ 107.
Petitioner and Dr. Begault rely further on Chan to teach the limitation
of claim 7. Figure 1 of Chan depicts an array comprising p rings, where p in
an integer number, e.g., p encompasses the number 7. Pet. 35, 48–49 (citing
Ex. 1006, 167, Fig. 1; Ex. 1003 ¶¶ 107–109, 128). According to Dr.
Begault, a person of ordinary skill in the art would have applied Chan’s
teachings of using p rings to Tiete’s teaching of larger microphone arrays, to
arrive at an array of seven rings. Ex. 1003 ¶ 108; Pet. 35, 48–49. Indeed, as
Dr. Begault points out, Christensen, discloses an array comprising 10 rings.
Id.; Pet. 36, 49 (citing Ex. 1013, Fig. 5, 4:53–5:2).
Patent Owner responds that none of the references Petitioner cites
teaches seven rings, arguing that seven is not an arbitrary or random number
rendered obvious by the teachings in the cited prior art. PO Resp. 54–55.
Patent Owner explains the ’493 patent’s Specification discloses that each
ring is a sub-array that covers a different frequency octave within the
frequency range of human speech, leading to the number seven. Id. (citing
Ex. 1001, 10:42–67, 13:60–64, 10:57–61, 17:6–10). According to Patent
Owner, Tiete does not use sub-arrays within the main array, but instead
discloses that all of its signals are processed and summed. Id. at 56 (citing
Ex. 1005, 1925–1926).
Petitioner responds that Patent Owner improperly attempts to read
into claim 7 the requirement that the seven rings correspond to the seven
octaves within the frequency range of human speech. Reply 32. Petitioner
contends, nonetheless, that seven rings corresponding to seven octaves
would have been obvious given the range of frequencies for human speech.
Id. (citing Ex. 1043 ¶¶ 114–116, 141–147).
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We are persuaded by the argument in the Petition and the testimony in
the Begault Declaration (Ex. 1003). We agree with Petitioner that the claims
do not require the rings to correspond with octaves of human speech. As we
discussed above and as argued by Petitioner, Tiete teaches increasing the
number of microphones in the array to increase SNR, and Chan teaches
using p rings, wherein p is an undefined integer. Pet. 35–36, 48–49. We
credit Dr. Begault’s testimony that skilled artisan reading Tiete and Chan
would have reasonably understood that p includes seven. Ex. 1003 ¶¶ 107–
109. As noted by Dr. Begault, Tiete discloses four rings, but also discloses
it would have been desirable to use more microphones, and Christensen
discloses using ten rings. Pet. 35–36, 48–49; Ex. 1003 ¶¶ 107–109.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence, claim 7 is unpatentable as obvious over Tiete and Chan.
(5) Claims 8 and 36
Claims 8 and 36 depend from claims 1 and 30, respectively, and they
recite “the concentric rings of the microphones are harmonically nested” and
“the concentric rings in each of the first and second configurations are
harmonically nested,” respectively. Ex. 1001: 18:7–8, 20:22–24. Petitioner
contends “harmonically nested” rings would have been obvious over the
combined teachings of Tiete and Chan in view of the teachings of Chou.
Pet. 65–67 (citing Ex. 1003 ¶¶ 145–149, 174). Chou teaches using harmonic
nesting of array microphones “to cover a large frequency range by
implementing several subarrays, each designed for a smaller frequency
range, typically an octave.” Id. at 65 (quoting Ex. 1014, 2995) (citing
Ex. 1022, 201). Petitioner acknowledges Chou discloses harmonic nesting
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of linear microphone arrays, whereas the claims recite harmonically nested
ring (i.e., circular) arrays. Id. at 66. Petitioner argues, nonetheless, that a
skilled artisan would have known Chou’s principles would apply to circular
nested arrays, such as those taught in Chan. Id. (citing Ex. 1003 ¶ 147).
According to Petitioner, “[s]killed artisans would have known to overlay the
harmonic subarrays to obtain a ‘composite array’ shown in Chou, Ex. 1014
at 2995, Fig. 2, or join the ends of the linear subarrays to form circular
subarrays like those taught in Chan and Tiete, Ex. 1006 at 1067; Begault
Decl. ¶147.” Id. Petitioner contends, moreover, that an ordinarily skilled
artisan would have been motivated to modify the combined teachings of
Tiete and Chan with those of Chou with a reasonable expectation of success.
Id. at 66 (citing Ex. 1003 ¶ 148).
Patent Owner responds that Chou teaches harmonic nesting of linear
subarrays of microphones, whereas the claims require harmonically nested
ring arrays. PO Resp. 56–59. Patent Owner argues the combination of these
references would have led to either: 1) a large ring, or 2) a linear array
configuration. Id. at 57–58. Patent Owner also contends Dr. Begault’s
testimony is derived solely from hindsight. Id. at 59. To support this
contention, Patent Owner argues that Chan discloses a composite array that
consolidates multiple linear arrays into a single linear array. Id.
We find unavailing Patent Owner’s argument that the proposed
combination would have resulted in either: 1) a large ring, or 2) a linear
array configuration. See PO Resp. 56–59. Dr. Begault does not bodily
incorporate the teachings of Chou into those of Chan and Tiete, or vice-
versa. Rather, as Dr. Begault explains, in the proposed combination the
rings remain concentrically nested, as taught by Tiete and Chan. Ex. 1043
¶ 119. As Petitioner points out, Dr. Begault explains that a skilled artisan
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would have recognized that the harmonic nesting technique in Chou may be
applied to circular arrays. Reply 33 (citing Ex. 1043 ¶¶ 117–122). The
physical configuration of the rings in the proposed combination of Tiete and
Chan remains in a nested, concentric configuration, but they are
harmonically nested, as taught by Chou. Ex. 1043 ¶ 119.
Moreover, as argued by Petitioner, and attested to by Dr. Begault,
harmonic nesting was a well-known technique for microphone arrays to
cover a larger frequency range by using sub-arrays, each covering a smaller
frequency range. Pet. 66 (citing Ex. 1003 ¶ 148; Ex. 2014, 2995; Ex. 2019,
5; Ex. 1022, 201, Fig. 3.57); Ex. 1043 ¶ 119. Quoting a text Book titled
“Microphone Arrays: Signal Processing Techniques and Applications,” Dr.
Begault explains that harmonic nesting techniques “are based on the idea
that at different frequencies, a different array should be used that has a total
size and inter-sensor spacing appropriate for that particular frequency.”
Ex. 1043 ¶ 150 (citing Ex. 1019, 4–5). Dr. Begault quotes several additional
references describing the technique of harmonic nesting of microphone
arrays that confirm his testimony that harmonic nesting was a well-known
technique to cover a broadband frequency range by using sub-arrays. Id.
¶¶ 150–152 (citing Ex. 1019, 290 (“Accounting for the wideband nature of
speech and audio signals, nested arrays are often employed using different
sets of sensors for different frequency bands.”); Ex. 1014, 2995 (“The
harmonic nesting approach is to cover a large frequency range by
implementing several subarrays, each designed for a smaller frequency
range, typically an octave.”); Ex. 1069, 909 (explaining with regard to
speech signals that a “[n]ested array is designed so that covers frequency
range of [50-7200]Hz through 4 sub-arrays”); Ex. 1078, 143 (“Harmonic
nesting is a widely used method in order to step towards frequency
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invariance, whereby for a number of frequency bands, different subarrays
with appropriate apertures and sensor spacings are operated.”).
Accordingly, we credit Dr. Begault’s testimony that harmonic nesting was a
well-known technique that, when implemented, permitted microphone arrays
to cover a large frequency range.
We note that, although Chan does not use the phrase “harmonic
nesting,” like Chou, Chan also describes broadband adaptive beamforming
as leading to problems (e.g., increased convergence time, degraded
numerical properties, and high implementation complexity). Ex. 1006, 165.
Furthermore, like Chou, Chan overcomes the problems with broadband
beamforming by using sub-band arrays. Id. at 166. Chan acknowledges the
use of linear arrays, stating that traditionally frequency invariant
beamformers mainly focused on linear arrays with fixed spatial-frequency
responses, but that “motivated by the potential advantages of FIB and the
symmetric geometry of uniform circular arrays,” the author of Chan
developed electronically steerable uniform circular arrays, and further
developed uniform concentric circular arrays comprising ring subarrays. Id.
Thus, Chan teaches the use of sub-band arrays and also teaches improving
linear arrays by using uniform concentric circles.
We find the record evidence provides sufficient support for Dr.
Begault’s testimony and that, contrary to Patent Owner’s assertion, his
testimony is not based solely on hindsight.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has shown, by a preponderance of the
evidence, that claims 8 and 36 are unpatentable as obvious over Tiete and
Chan in view of Chou.
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(6) Claims 9 and 10
Claim 9 depends from claim 1, and further recites “wherein the
plurality of microphones includes at least 113 microphones.” Ex. 1001,
18:9–10. Claim 10 depends from claim 9, and further recites “wherein the
plurality of microphones includes up to 120 microphones.” Id. at 18:11–12.
Accordingly, due to its dependence on claim 9, claim 10 requires the number
of microphones to be 113 to 120 microphones.
Petitioner contends that claims 9 and 10 would have been obvious
over the combined teachings of Tiete and Chan. Pet. 36–37. Petitioner
argues a skilled artisan would have found it obvious to add microphones to
Tiete’s 52 microphone array to improve frequency range, signal-to-noise
ratio, and directivity. Id. at 37 (citing Ex. 1003 ¶ 110; Ex. 1005, 1931,
1946). We find Petitioner’s argument persuasive because Tiete expressly
teaches using more microphones. Tiete teaches that the “total number of
microphones has a direct effect on the array gain; adding more microphones
to the array increases the array’s output signal-to-noise ratio (SNR).” Id. at
36–37 (citing Ex. 1005, 1931). Tiete teaches, furthermore, that “as
microphones are positioned closer together, the directivity, Dp, increases in
the high ranges.” Id. at 37 (citing Ex. 1005, 1931, 1946). Petitioner also
points out, correctly, that Chan teaches using an abstract number of P rings
and Kp microphones that would encompass 113 to 120 microphones. Id. at
37 (citing Ex. 1006, 167). Petitioner’s argument that 113 to 120
microphones would have been obvious finds further support in Petitioner’s
identification of a 118 beamforming array in Christensen. Id. (citing
Ex. 1013, Fig. 5).
Patent Owner contends the range of the number of microphones, i.e.,
113 to 120, is not arbitrary, but rather is based on the array comprising seven
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rings—one ring for each the of seven octave bands covering the frequencies
of human speech—wherein each ring comprises a specific number of
microphones based on scaling requirements to achieve harmonic nesting.
PO Resp. 60–61 (citing Ex. 2020 ¶¶ 189–92); Ex. 1001, 1061–67, Fig. 9).
However, we find Patent Owner’s argument unavailing. Claims 9 and 10 do
not include any limitations directed to a specific number of octaves/rings
and/or a specific number of microphones per ring. Reply 33. Even though
the Specification provides an example in Figure 9 of a microphone array
comprising 113 microphones, claims 9 and 10 do not require this specific
configuration in the Specification.
Also unavailing, Patent Owner contends Tiete teaches away from
adding microphones to the array, arguing Tiete discloses that it is desirable
to reduce the number of microphones from 52 to a “prototype[] with fewer
microphones.” PO Resp. 61 (citing Ex. 1005, 1946). Whether a reference
teaches away from a claimed invention is a question of fact. In re Harris,
409 F.3d 1339, 1341 (Fed. Cir. 2005). A reference may be said to teach
away when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant. In re
Gurley, 27 F.3d 551, 53 (Fed. Cir. 1994). “A reference does not teach away
[. . .] if it merely expresses a general preference for an alternative
invention[.]” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d
1314, 1327 (Fed. Cir. 2009). Here, we are not persuaded by Patent Owner’s
argument that Tiete discourages the use of more microphones. Tiete merely
discloses that the number of microphones “can probably be reduced, while
still resulting in almost equally good results.” Reply 34 (citing Ex. 1005,
1946). In contrast with this consideration, Tiete encourages the use of more
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microphones, stating that “removing the outer rings, has a negative impact of
the array directivity over all frequencies” and that “for most sensor
applications, the bigger the better,” with the caveat for achieving a
compromise between size and cost. Id. (citing Ex. 1005, 1931). The fact
that Tiete discloses costs and benefits of larger arrays and smaller arrays
does not nullify its teaching of using a larger array or teach away from
adding more microphones to its array.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has shown, by a preponderance of the
evidence, that claims 9 and 10 are unpatentable as obvious over Tiete and
Chan.
(7) Claims 11 and 29
Claims 11 and 29 depend from claims 1 and 28, respectively, and they
recite that the “microphones are configured to cover preset frequency
ranges” and “the first and second pluralities of microphones are configured
to cover different present frequency ranges,” respectively. Ex. 1001, 18:13–
15, 19:32–34. Petitioner contends that claims 11 and 29 would have been
obvious over the combination of Tiete and Chan. Pet. 32–34. Petitioner
argues persuasively that Chan teaches this limitation, because Chan
discloses that “rings with larger radii will have a lower frequency and
bandwidth, while rings with smaller radii usually will have better high
frequency responses.” Pet. 32 (citing Ex. 1006, 168–69). Accordingly, we
are persuaded Chan teaches different rings covering different preset
frequency ranges. Patent Owner does not provide arguments specific to
claims 11 and 29.
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For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence, claims 11 and 29 are unpatentable as obvious over Tiete and Chan.
(8) Claims 12–15
Petitioner contends the following claims are unpatentable as obvious
over the following combinations: 1) claims 12 and 13 over Tiete and Chan
(Pet. 53–55); 2) claim 14 over Tiete, Chan, and Sawa (id. at 67–69); and
3) claim 15 over Tiete, Chan, and Beaucoup (id. at 69–70). Petitioner
identifies how each claim limitation is taught by the asserted prior art
reference and persuasively provides a rationale to combine. Id. at 53–55,
67–70. Patent Owner does not provide arguments specific to claims 12
through 15.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence: 1) claims 12 and 13 are unpatentable as obvious over Tiete and
Chan; 2) claim 14 is unpatentable as obvious over Tiete, Chan, and Sawa;
and 3) claim 15 is unpatentable as obvious over Tiete, Chan, and Beaucoup.
(9) Claims 16 and 35
Claim 16 depends from claim 1, and further recites “wherein the
substrate comprises a central printed circuit board (PCB) and a plurality of
peripheral printed circuit boards (PCBs) radially positioned around, and
electrically connected to, the central PCB, at least one of the number of
concentric, nested rings being positioned on the plurality of peripheral
PCBs.” Ex. 1001, 18:33–38. Claim 35 depends ultimately from claim 28,
and recites a similar limitation. Id. at 20:14–20. Petitioner contends
claims 16 and 35 are unpatentable as obvious over Tiete, Chan, and Sawa.
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Pet. 71–74. Petitioner acknowledges Tiete’s SoundCompass does not have a
substrate comprising a central PCB with a plurality of radially positioned
surrounding PCB’s. Pet. 71 (citing Ex. 1005, 1926). Petitioner argues,
however, that such a design would have been obvious in view of Tiete’s
teaching that the microphone array mounted on a 20 centimeter PCB would
be improved with additional microphones, because a skilled artisan would
have known to add additional peripheral PCBs, as taught in Sawa, in order to
accommodate additional microphones. Id. (citing Ex. 1005, 1926, 1923,
1931, 1946; Ex. 1003 ¶¶ 161–164). Specifically, Sawa teaches arranging a
ring of microphones on multiple peripheral PCBs around a central point. Id.
at 71–72 (citing Ex. 1008, 21:54–22:4, Fig. 16). According to Petitioner,
use of multiple PCBs was conventional, and Tiete itself taught the use of
“add-on” boards for including additional components. Id. at 71 (citing
Ex. 1005, 1924).
Figure 16 of Sawa depicts four PCB microphone array boards radially
positioned around a central point, thereby forming a circular microphone
array. Figure 16, as annotated by Petitioner in red, is reproduced below:

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Figure 16 of Sawa is a schematic diagram illustrating a microphone array
structure including four microphone boards 127.
Pet. 72 (reproducing Ex. 1008, Fig. 16 annotated)). As shown in Figure 16
of Sawa, four PCBs (i.e., microphone boards 127) are arranged radially
around a central point. Petitioner argues that a skilled artisan combining
Tiete, which has a single, round PCB, with Sawa, would have modified
Tiete so that Tiete’s two inner rings (as shown in Figure 5 of Tiete) would
have been on a central PCB, and the two outer rings would have been
implemented using the configuration in Sawa around the central PCB. Id. at
72–74 (citing Ex. 1005, Fig. 5, Fig. 1; Ex. 1008, 21:66–22:4; Ex. 1015,
Fig. 2; Ex. 1003 ¶¶ 165–167). The combination, according to Petitioner,
would have been as shown in the figure generated by Dr. Begault,
reproduced below.

Dr. Begault’s Figure illustrating Tiete’s microphone array of Figure 5 in
Tiete, as modified in view of Sawa
Pet. 73 (reproducing a modified illustration of Ex. 1005, Fig. 5 (citing
Ex. 1003 ¶¶ 165–167)). Petitioner argues using multiple peripheral PCBs,
instead of a single PCB, would have improved the performance of Tiete’s
and Chan’s arrays. Id. (citing Ex. 1003 ¶ 163). Petitioner argues further that
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using additional or smaller boards would have provided the additional
advantage of reducing cost, relying on Dr. Begault, who testifies that it was
known in the industry that smaller PCBs were cheaper to fabricate. Id.
(citing Ex. 1003 ¶ 164). Moreover, according to Petitioner, using one PCB
versus multiple interconnected PCBs was an established design choice, and
either could have been accomplished predictably and with a reasonable
expectation of success. Id. at 73–74 (citing Ex. 1003 ¶¶ 165–167).
Based on the fully developed trial record, we find credible Dr.
Begault’s testimony, which is supported, for example, by McElveen. Dr.
Begault explains designs like that required by claims 16 and 35 “were
already implemented in other microphone arrays, as evinced by McElveen.”
Ex. 1003 ¶ 167. McElveen relates to a directional audio array apparatus, and
explicitly discloses a microphone array implemented on multiple PCBs
arranged radially around a central PCB. Ex. 1003 ¶ 167; Ex. 1015 codes
(54), (57), Fig. 2; Pet. 74; Reply 34–35. Figure 2 of McElveen is reproduced
below, and discloses a microphone array implemented using a plurality of
PCBs radially positioned around a central PCB.

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Figure 2 of McElveen is an isometric view of an embodiment of the invention
with multiple tiles operating as a single directional audio array. Ex. 1015
¶ 24.
Ex. 1015, Fig. 2. As shown in Figure 2, a microphone array is implemented
on a plurality of PCBs radially positioned around a central PCB, confirming
Dr. Begault’s testimony that such designs were well-known.
Patent Owner contends that Petitioner has failed to show claims 16
and 35 would have been obvious over the combined teachings of Tiete,
Chan, and Sawa. PO Resp. 61–65. First, Patent Owner argues Tiete itself
fails to sufficiently teach claims 16 and 35, arguing that Tiete’s teaching of
using multiple PCBs relates to additional components, and not to the
microphone array and, therefore, does not teach implementing a microphone
array using multiple PCBs. Id. at 62–63 (citing Ex. 1005, 1924; Pet. 71;
Ex. 2020 ¶¶ 193–194). We agree with Patent Owner that Tiete does not
expressly disclose using multiple PCBs to implement a microphone array.
However, Petitioner does not rely on Tiete by itself to teach that the overall
SoundCompass may be implemented on several PCBs. Instead, Petitioner
relies on Sawa for the specific teaching of using multiple PCBs to
implement a circular microphone array. Pet. 71–74; Reply 34–37. Patent
Owner also points out Sawa does not disclose a central PCB and teaches
leaving the central space open to accommodate a video camera. PO
Resp. 63 (citing Ex. 1008 19:55–64, Figs. 16, 19A, 19B, 20; Ex. 2020
¶¶ 193–194). However, Petitioner does not rely on Sawa’s microphone
arrangement, which leaves interior space for a camera. On the contrary,
Petitioner relies specifically on Tiete’s arrangement of concentric circular
rings to form a microphone array, and relies on Sawa for teaching use of a
plurality of PCBs. Pet. 71–74.
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Patent Owner further contends Petitioner fails to provide a basis for
showing why the proposed combination of Sawa and Tiete would have
improved performance, but we disagree that Petitioner’s showing is without
basis. PO Resp. 63–64. As Dr. Begault explains,
Tiete explains the benefits of adding more outer rings and adding
more microphones, which provides ample motivation to expand
the number of rings in Sawa. As I indicated in [Ex. 1003] ¶ 164,
it was known in the industry that smaller PCBs are cheaper to
fabricate and that using additional and smaller boards would
reduce the cost of the system. Additionally, Tiete specifically
mentions tradeoffs between the number of microphones and
performance as a design consideration. Thus, a person of
ordinary skill in the art would be motivated by Sawa to modify
Tiete’s PCB design by using the modularity taught by Sawa for
the outer rings added to Tiete’s PCB design.
Ex. 1043 ¶ 138; see also Ex. 1003 ¶¶ 160–167. Dr. Begault’s testimony
finds basis in Tiete’s teaching of using larger microphone arrays. We find
credible Dr. Begault’s opinion that a skilled artisan would have been
motivated to implement a microphone array having a larger diameter using a
plurality of PCBs rather than one large PCB, as taught in Sawa and evinced
by McElveen.
Patent Owner also criticizes Petitioner’s reliance on McElveen,
arguing McElveen’s array does not have nested concentric rings. PO
Resp. 64–65. We find this argument unavailing because, as we discussed
earlier, Petitioner relies on Tiete, not McElveen, for a microphone array
arranged in nested concentric rings.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence, claims 16 and 35 are unpatentable as obvious over Tiete, Chan,
and Sawa.
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(10) Claims 30–33, 37–40
Petitioner contends claims 30, 31, 33, and 37–40 would have been
obvious over Tiete and Chan. Pet. 30–32, 37–39, 59–66. Petitioner
contends claim 32 would have been obvious over Tiete, Chan, and Meyer.
Id. at 74–76. Petitioner identifies how each limitation of claims 30–33 and
37–40 is taught by the asserted prior art and provides a rationale to combine
the art. Id. at 30–32, 37–39, 59–66, 74–76. Patent Owner does not provide
arguments in addition to those for the claims discussed above.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence: 1) claims 30–31, 33, and 37–40 are unpatentable as obvious over
Tiete and Chan; and 2) claim 32 is unpatentable as obvious over Tiete, Chan,
and Meyer.
13. Obviousness Over Graham Alone or Combined with Other Art
As we noted above, Petitioner asserts that claims 17–27 are
unpatentable as obvious over Graham alone or in various combinations with
other art. Pet. 9. For the reasons discussed below, we determine Petitioner
has demonstrated, by a preponderance of the evidence, the unpatentability of
claims 17–27 under § 103.
a) Claim 17
Petitioner has demonstrated, by a preponderance of the evidence, that
claim 17 is unpatentable as obvious over Graham alone. As we discussed
above, Graham discloses a beamforming microphone array (BMA) with
support for interior design element. Supra, Sec. II.E.7. Figure 2F of
Graham, reproduced below, is illustrative.
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Figure 2F illustrates a BMA integrated into a ceiling tile for a drop ceiling
mounting configuration.
Ex. 1011, Fig. 2F, ¶ 51. Like Figure 6 of the ’493 patent, Figure 2F of
Graham depicts a ceiling tile for a drop ceiling mounting configuration that
provides support for a BMA. Ex. 1011 ¶ 51. Figure 2H of Graham is also
illustrative, and is reproduced below.

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Figure 2H illustrates the mounting of microphone array 116 to ceiling
tile 264 secured with hooks 272.
Ex. 1011, Fig. 2H, ¶¶ 53, 54. Figure 2H illustrates microphone array 116
mounted to the back of ceiling tile 264 and secured with hooks 272, such
that ceiling tile 264 provides support for the microphone array. Id. Fig. 2A,
¶¶ 53, 54.
Petitioner shows that Graham renders obvious claim 17 of the ’493
patent as follows.
To the extend the preamble of claim 17 should be treated as limiting,
Petitioner shows that Graham discloses “[a] microphone assembly,” as
recited in the preamble of claim 17, because Graham discloses
environment 100, which includes beamforming microphone array 116.
Pet. 86 (citing Ex. 1011 ¶¶ 5, 9, 38, 43, 51–58, Figs. 2F–I, code 57)).
Petitioner shows that Graham’s beamforming microphone array 116
discloses “an array microphone comprising a plurality of microphones,” as
recited in claim 17. Pet. 86 (citing Ex. 1011 ¶¶ 38, 43, 51–58, Figs. 2F, 2G,
2I). As can be seen in Figures 2F and 2G, and as disclosed in Graham,
microphone array 116 comprises a plurality of microphones. See, e.g.,
Ex. 1011 ¶ 38 (“array 116 may include multiple microphones”).
Petitioner shows that Graham discloses “a housing configured to
support the array microphone, the housing being sized and shaped to be
mountable in a drop ceiling in place of at least one of a plurality of ceiling
tiles included in the drop ceiling,” as recited in claim 17, because Graham
discloses ceiling tile 264, which integrates microphone array 116 and is
mounted onto ceiling frame 266. Pet. 87 (citing Ex. 1011 ¶¶ 43, 51–58,
Figs. 2F–2I). As can be seen in Figure 2H, ceiling tile 264 forms a front
face of the housing that supports microphone array 116. Ex. 1011, Fig. 2H.
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The housing in sized and shaped to be mountable in a drop ceiling in place
of at least one of a plurality of ceiling tiles included in the drop ceiling, as
shown in Figure 2F.
More specifically, as shown in Figure 2H, Graham’s microphone
assembly includes ceiling tile 264 that forms a front face, support
beams 266-1, 266-2, 266-3, and 266-4 (collectively support beams 266) that
form a support frame around ceiling tile 264, and hooks 272-1, 272-2, 272-3,
and 272-4 (collectively hooks 272). Ex. 1011, Fig. 2H, ¶¶ 51–53; Pet. 87;
Reply 8 (citing Ex. 1043 ¶¶ 37–42; Ex. 1011 ¶ 55). We are persuaded this
discloses a “housing configured to support the array microphone,” because,
as can be seen in Figure 2H and as disclosed in Graham, microphone
array 116 is supported by beams 266 and secured using hooks 272.
Ex. 1011, Fig. 2H, ¶¶ 51–53; Pet. 87; Reply 8 (citing Ex. 1043 ¶¶ 37–42;
Ex. 1011 ¶ 55). We are persuaded, furthermore, that the housing disclosed
in Graham is sized and shaped to be mountable in a drop ceiling in place of
at least one of a plurality of ceiling tiles included in the drop ceiling,” as
recited in claim 17, because Graham explicitly discloses this to be so.
Graham discloses that the drop ceiling mounting configuration shown in
Figures 2F through 2I may be integrated for a drop ceiling mounting
configuration, and as shown in Figure 2F, the microphone assembly
comprising ceiling tile 264, support beams 266, microphone array 116, and
which may further include hooks 272, is sized and shaped to be dropped into
the ceiling frame. Ex. 1001, Fig. 2F, ¶¶ 51–53; Pet. 87.
Petitioner shows that Graham discloses “wherein a front face of the
housing includes a sound-permeable screen having a size and shape that is
substantially similar to the at least one of the plurality of ceiling tiles,” as
recited in claim 17, based on Graham’s disclosure of an acoustically neutral
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material forming ceiling tile 264. Id. at 87–88 (citing Ex. 1011 ¶¶ 51–58,
Fig. 2G). We credit Dr. Begault’s testimony that a skilled artisan would
have understood to use a sound-permeable screen for ceiling tile 264.
Ex. 1003 ¶ 190. As is taught in Graham, use of acoustically transparent
material was an obvious design choice for covering microphones. Pet. 88–
89 (citing Ex. 1011 ¶¶ 51–58; Ex. 1003 ¶ 190).
Patent Owner contends that Petitioner fails to show Graham teaches or
suggests “a front face of the housing [that] includes a sound-permeable
screen having a size and shape that is substantially similar to [] at least one
. . . ceiling tile[].” PO Resp. 18–33. Patent Owner submits the following
arguments in support of its contention.
Patent Owner argues that Graham’s disclosure in paragraph 20 of an
acoustically transparent screen applies only to a wall-mounted microphone
assembly disclosed in Graham, and does not apply to the drop ceiling
assembly illustrated in Figures 2H–2I of Graham. Id. at 18–21. In support
of this argument, Patent Owner submits Graham uses the term “outer
surface” exclusively with regard to the wall-mounted configuration, but uses
the term “front side” when describing the drop ceiling configuration. Id.
(citing Ex. 1011 ¶¶ 11, 54, 56–57, 59, 61–63, 86, Ex. 2020 ¶¶ 106–110;
Ex. 2013, 139:2–146:9, 146:10–22); According to Patent Owner,
paragraph 20 of Graham describes an acoustically transparent screen of an
“outer surface,” and, therefore, is referring to the wall-mounted embodiment
only. Id.
Patent Owner also argues Graham’s disclosure of modifying front
side 268 of ceiling tile 264 to include various contours, corrugations,
depressions, extensions, color schemes, and designs does not teach or
suggest a sound-permeable screen, again focusing on the purported
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distinction between the ceiling tile’s “front side” and the wall-mount’s
“outer surface.” PO Resp. 21–22 (citing Ex. 1011 ¶ 55–63; Ex. 2020
¶¶ 109–110; In re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000).). Patent
Owner then argues “contours, corrugations, depressions, extensions, color
schemes, and designs,” described in connection with the “front face” of a
ceiling tile, does not teach a sound permeable screen. Id. at 22–23 (citing
Ex. 1011 ¶¶ 51–58; Ex. 2020 ¶ 111).
Patent Owner also argues that Graham’s disclosure of embedding
microphones in contours, corrugations, or depressions in the ceiling tile to
disguise the microphones fails to teach a sound-permeable screen having a
size and shape substantially similar to a ceiling tile, explaining this
embodiment contemplates attaching the microphones to the back side of a
ceiling tile and/or placing microphones in visible holes in the ceiling tile,
and, therefore, does not disclose a “screen.” PO Resp. 22–25 (citing
Ex. 1011 ¶¶ 51–58, Figs. 2G–2I; Ex. 2020 ¶¶ 111–113; Ex. 1003 ¶ 190).
According to Patent Owner, nothing in Graham teaches the ceiling tile is
“covered” by anything, let alone “covered” by a “screen” shaped as a ceiling
tile. Id. at 26; see also id. at 25–28 citing Ex. 1003 ¶ 114; Ex. 2020 ¶¶ 114–
117; Ex. 2013, 169:14–172:4; Ex. 1001, Fig. 6; Ex. 1011 ¶ 58). Rather,
according to Patent Owner, Graham’s approach is to retrofit a ceiling tile to
support a microphone array. Id. at 28–30 (citing Ex. 2020 ¶¶ 118–119;
Ex. 2019, 140 ¶ 9, 148 ¶ 72). Patent Owner submits that “punching holes in
a ceiling tile and attaching the tile to a microphone array is fundamentally
different than the configuration of claim 17.” Id. at 27 (citing Ex. 2020
¶¶ 115–117). Patent Owner relies on the provisional application to which
the Graham publication claims priority (Ex. 2019) to support its argument
that Graham’s approach is fundamentally different from claim 17. Id. at 28–
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33 (citing Ex. 2020 ¶¶ 118–123; Ex. 2019 ¶¶ 9, 72, Fig. 1, Fig. 53; Ex. 1001,
5:14–37, code (57), 5:55–7:3, Figs. 3, 4, 6–8; Ex. 1011, Figs. 2A, 2F, 2J).
Patent Owner argues
Rather than retrofit a ceiling tile to include microphones in
“holes” or “depressions,” in the tile, the ’493 patent discloses and
claims a distinct self-contained “microphone assembly” in
claim 17 that includes a “housing” supporting the array
microphone, and a “front face of the housing” [that] includes a
sound-permeable screen having a size and shape that is
substantially similar to [] at least one . . . ceiling tile.
Id. at 29–30.
We find Patent Owner’s arguments unavailing. First, Patent Owner’s
argument that paragraph 20 of Graham is referring only to the wall mount
configuration, and does not apply to the drop ceiling configuration, does not
alter our determination. Discussed below, we find a sound permeable screen
as claimed would have been an obvious design choice, regardless of whether
Graham’s disclosure that “the outer surface is acoustically transparent to the
audio input signal” in paragraph 20 refers to the drop ceiling configuration.
Dr. Begault opines that a skilled artisan would have known to use a sound
permeable screen in any application where a microphone is covered.
Ex. 1003 ¶ 190. We agree that a skilled artisan would have understood that
in a configuration in which a material, e.g., ceiling tile, is covering a
microphone, the material would be sound permeable so that sound can reach
the microphone. Id. (explaining that a skilled artisan would have known to
use a sound permeable material so that sound can reach the microphones).
Paragraph 20, whether it refers to a ceiling tile or a wall’s outer surface,
supports the notion that a skilled artisan would have understood that a
microphone array, if covered, would be covered with a sound permeable
material.
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However, we need not solely rely on paragraph 20 for confirmation of
this understanding because, with regard to the drop ceiling configuration,
Graham expressly teaches using a sound permeable material for ceiling
tile 264:
The ceiling tiles such as the ceiling tile 264 may be made of a
variety of materials or combinations of materials including, but
not limited to, metals, alloys, ceramic, fiberboards, fiberglass,
plastics, polyurethane, vinyl, or any suitable acoustically neutral
material known in the art, related art, or developed later.
Ex. 1011 ¶ 52 (emphasis added).
Despite Graham’s disclosure of a sound permeable material for
ceiling tile 264, Patent Owner nonetheless argues that Graham does not
teach a “screen,” because Graham “merely affixes a ceiling tile to its array
and, as shown in Fig. 2G . . . , places microphones 212-1 and 212-2 in
visible holes in the tile.” PO Resp. 24. This argument is unavailing.
Graham’s teaching are not limited to the ceiling tile shown in Figures 2F–I,
which Patent Owner argues depict holes punched through ceiling tile 264
into which microphones are embedded. Id. at 27–30. Indeed, Graham
teaches that such a configuration may, but need not, be used, stating that in
some embodiments, the microphones may be embedded within contours,
corrugations, or depressions, in the ceiling tile, but this is non-limiting.
Ex. 1011 ¶ 58. As we noted above, with regard to the drop ceiling
configuration, Graham teaches that ceiling tile 264—i.e., the asserted front
face of the housing—may be made of a variety of materials that are suitable
acoustically neutral materials. Ex. 1011 ¶ 52. Given the variety of materials
from which ceiling tile 264 may be made, including but not limited to
metals, alloys, ceramic, fiberboards, fiberglass, plastics, polyurethane, vinyl,
or any suitable acoustically neutral material known in the art, related art, or
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developed later, Ex. 1011 ¶ 52, and Dr. Begault’s testimony that sound
permeable material would be used so sound can reach the microphones, we
are persuaded a sound-permeable screen would have been an obvious design
choice.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has shown, by a preponderance of the
evidence, that claim 17 is unpatentable as obvious over Graham.
b) Claims 18–27
Petitioner asserts the following unpatentability combinations:
1) claims 18, 21, and 23–26 over Graham; 2) claims 19 and 20 over Graham
and Sawa; 3) claim 22 over Graham and Berry; 4) claim 27 over Graham
and Beaucoup. Pet. 83–103. For the following reasons, we determine
Petitioner has shown claims 18–27 are unpatentable as obvious over Graham
alone or in various combinations with other art.
(1) Claims 18, 21, 23–25, and 27
Petitioner demonstrates how each limitation of claims 18, 21, 23–25,
and 27 is taught by the asserted prior art, and where applicable, persuasively
provides a rationale to combine Graham with an additional prior art
reference. Pet. 83–92, 97–99, 103. Patent Owner does not provide
additional arguments specific to these claims.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence, claims 18, 21, and 23–25 are unpatentable as obvious over
Graham and claim 27 is unpatentable as obvious over Graham and
Beaucoup.
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(2) Claims 19 and 20
Claim 19 recites:
a control box coupled to the second face of the housing and
configured to house a processor coupled to the array microphone
an external port coupled to the control box and electrically
connected to the processor.
Ex. 1001, 18:54–60. Claim 20 depends from claim 19, and further recites;
the external port is electrically connectable to a cable configured
for at least one of outputting audio signals received at the
processor from the array microphone, receiving control signals
from an external control system, and providing power to the
processor and array microphone from an external power supply.
Id. at 18:61–67.
Petitioner contends that Graham teaches all the limitations of claims
19 and 20, except a “control box.” Pet. 93–94. Petitioner relies on Sawa for
this teaching. Id. at 94–96. Sawa generally discloses an acoustic system,
and in Figure 12, Sawa depicts an exploded view illustrating a casing
structure of a microphone array. Figure 12 of Sawa, as annotated by
Petitioner, is reproduced below.

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Figure 12 of Sawa is an exploded perspective view illustrating a casing
structure of microphone array 20.
Pet. 94 (reproducing Ex. 1008, Fig. 12 with annotations). The casing
structure shown in Figure 12 includes microphone sheet metal 105 and base
sheet metal 107 encasing main board 139. Petitioner asserts that Sawa
discloses a “control box” that is “configured to house a processor coupled to
the array microphone,” as claimed, because Sawa teaches main board 139
housed between two metal sheets. Pet. 94 (citing Ex. 1008, 21:17–23).
We find that Sawa’s disclosure of microphone sheet metal 105 and
base sheet metal 107 teaches a “control box,” because the metal sheets house
main board 139. Id. (citing Ex. 1008, 21:17–23); Ex. 1008, Fig. 12. Our
finding that Sawa’s metal sheets teach a “control box” is consistent with the
disclosure of a “control box” is the ’493 patent. Figure 3 of the ’493 patent,
reproduced below, shows a “control box.”

Figure 3 is an exploded view of microphone array assembly 100.
Ex. 1001, Fig. 3. As shown in Figure 3 above, and described in the
Specification, control box 114 is mounted to the back of support 110 and
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comprises backside 122 and houses printed circuit board 116. Id. at 7:21–
26. As such, a “control box” may simply be two sheets, i.e., support 110 and
backside 122, encasing a printed circuit board. See, e.g., Ex. 1043 ¶ 51 (Dr.
Begault testifying that “[u]sing the description in the ’493 Patent, Sawa’s
control box equates to the [’493 Patent] control box 114, which is just a wall
around the audio PCB 116, with the optional removable cover 122 to
provide access to the audio PCB 116”); Reply 18 (citing Ex. 1001, 7:36–38;
Ex. 1052, 143:15–144:19); id. at 23 (citing Ex. 1043 ¶ 57). Accordingly, the
’493 disclosure supports our finding that Sawa’s metal sheets that house
main board 139 would have been considered a “control box.”
We find Sawa’s main board 139 includes a “processor coupled to the
array microphone,” as recited in claim 19, because Sawa discloses main
board 139 has mounted thereon components “for controlling a process in the
microphone array 20.” Pet. 94 (citing Ex. 1008, 21:17–23).
We also find that the combination of Graham and Sawa teach that the
control box is “coupled to the second face of the housing and configured to
house a processor coupled to the array microphone,” as recited in claim 19.
In its analysis for claim 18, from which claim 19 depends, Petitioner
identifies where Graham teaches the claimed “second face of the housing.”
Pet. 89. Claim 18 recites the microphone assembly of claim 17 “wherein the
housing comprises a second face positioned opposite the first face, the
second face being positioned inside the drop ceiling, when the housing is
mounted to the drop ceiling.” Ex. 1001, 18:50–53. Petitioner identifies the
back of Graham’s ceiling tile as the claimed “second face.” Pet. 89. For
claim 19, Petitioner argues that it would have been obvious to modify
Graham to co-locate the processor (and therefore the control box in which
the processor is housed, as taught in Sawa) to the back of Graham’s ceiling
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tile, i.e., to the back of the asserted second face. Id. at 95. We are persuaded
that a skilled artisan would have known to co-locate the processor in
Graham with array 116, as taught in Sawa, because doing so would have
facilitated easy connection between array 116 and a teleconferencing
system, and would have reduced system cost by eliminating the need for a
separate computer or server. Id. (citing Ex. 1003 ¶¶ 199–200; Ex. 1008,
21:16–26).
Petitioner also argues persuasively that a skilled artisan would have
understood that Sawa’s control box included an external port to allow
communications with the processor. Id. at 94 (citing Ex. 1003 ¶ 198;
Ex. 1008, 2:27–46, 7:49–56, 21:15–23). As mentioned above, Sawa
discloses that main board 139 includes components for controlling a process
in microphone array 20. Ex. 1008, 21:17–23. Accordingly, we are
persuaded that microphone array 20 and main board 139 are in
communication with each other. Because microphone array 20 is external to
main board 139 and the metal sheets asserted to form the control box, we are
persuaded that a skilled artisan would have understood that Sawa’s control
box includes an external port to allow communications with the processor.
We are also persuaded by Petitioner’s arguments and evidence
regarding the rationale to combine the teachings of Sawa with those of
Graham and regarding whether there would have been a reasonable
expectation of excess in doing so. Pet. 95–96 (citing Ex. 1003 ¶¶ 199–202;
Ex. 1011 ¶¶ 36, 39, 41, 82, 67–69, Figs. 4A, 2F; Ex. 1008, 21:16–26, 8:63–
9:8, Figs. 6A, 21A). As explained by Dr. Begault, Graham describes a first
communication device to process microphone array signals with regard to
the embodiment shown in Figure 1A and 4A. Ex. 1003 ¶ 200 (citing
Ex. 1011 ¶ 39). Dr. Begault testifies that a person of ordinary skill in the art
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would have been motivated to simplify and reduce the costs of Graham by
reducing the need for external components, and, therefore, would have been
motivated to include the processor with a control box, as taught in Sawa, on
the back of Graham’s microphone housing. Id. We also are persuaded that
modifying Graham by moving the processor to the back of the ceiling tile
would have been a straight-forward design change within the abilities of a
skilled artisan, because Graham’s system already included a processor for
processing signals from the microphone array, and the proposed
modification simply moves the location of the processor to be nearer to the
microphone array. Id. ¶ 202 (citing Ex. 1011 ¶¶ 36, 39, 41, 82; Ex. 1008,
21:17–23).
Patent Owner contends that Sawa fails to render obvious the claimed
“control box” and “external port coupled to the control box and electrically
connected to the processor.” PO Resp. 33–40.
First, Patent Owner asserts that Sawa’s microphone sheet meal 105
and base metal sheet 107 fail to disclose a “control box,” but Patent Owner
fails to adequately explain why, in light of the disclosure in the ’493 patent,
this would not have been considered a “control box” to a person of ordinary
skill in the art. PO Resp. 34–35. As we discussed above, in the
Specification a “control box” is simply two layers, i.e., support 110 and
backside 122, encasing a printed circuit board. Ex. 1001, Fig. 3, 7:21–26.
Petitioner points out that the control box disclosed in the Specification is
simply “a wall that houses a PCB 116 (processor), ‘can include a removable
cover 122,’ and lacks a bottom opposite the cover 122.” Reply 18 (citing
Ex. 1001, 7:36–38; Ex. 1052, 143:15–144:19). Patent Owner attempts to
distinguish Sawa, arguing Sawa’s metal sheets are components of a casing
structure, rather than components to form a “control box.” PO Resp. 34–35;
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Sur-reply 19 (asserting the structure in Sawa is arbitrary). We find Patent
Owner’s argument unavailing. Patent Owner has not provided any claim
construction for the term “control box,” and has not provided evidence
showing that Sawa’s microphone sheet metal 105 and base metal sheet 107
would not have been understood to form a “control box.” As explained by
Dr. Begault, the control box disclosed in the ’493 patent has generally the
same structure in the same vertical order as Sawa’s asserted control box.
Reply 23 (citing Ex. 1043 ¶ 57); Ex. 1043 ¶ 51 (“Using the description in the
’493 Patent, Sawa’s control box equates to the [’493 Patent] control
box 114, which is just a wall around the audio PCB 116, with the optional
removable cover 122 to provide access to the audio PCB 116”). Moreover,
Dr. Vipperman, Patent Owner’s declarant, does not disagree that a control
box is just a box housing a processor. Reply 20 (citing Ex. 1052, 72:8–16).
Accordingly, we find Sawa teaches a “control box.”
Patent Owner also argues that Sawa’s asserted “control box” fails to
satisfy the claim because it is not “coupled to the second face of [a]
housing,” as recited in claim 19. PO Resp. 34–35. We find this argument
unavailing. As explained by Dr. Begault, Sawa’s asserted control box is
attached to a microphone array structure. Ex. 1043 ¶ 57; Ex. 1008, Fig. 12
(showing microphone sheet metal 105 stacked on top of microphone
casing 129 that houses microphone array board 127). Applying the teaching
of placing Sawa’s control box on top of microphone array board 127, Dr.
Begault explains that Graham, as modified, would include Sawa’s control
box on top of the back Graham’s array 116, i.e., a second face. Patent
Owner argues that Petitioner’s analysis for claim 19 does not use the word
“face.” PO Resp. 35. However, Patent Owner’s argument fails to address
Petitioner’s analysis for claim 18, from which claim 19 depends, and which
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recites “wherein the housing comprises a second face positioned opposite
the first face, the second face being positioned inside the drop ceiling when
the housing is mounted to the drop ceiling.” Ex. 1001, 18:50–53. For
claim 18, Petitioner identifies the back side of Graham’s drop ceiling tile
assembly as the claimed “second face.” Pet. 89. Consistent with
Petitioner’s identification of Graham’s “second face” for claim 18 as the
back side of the drop ceiling tile assembly, for claim 19 Petitioner asserts
Sawa’s control box would have been mounted on the back of the ceiling tile,
i.e., second face, as taught by Sawa’s teaching of mounting a control box on
to microphone array board 127. Pet. 95 (citing Ex. 1003 ¶ 200).
Patent Owner also argues that co-locating a processor on the back of
Graham’s ceiling tile, as argued by Petitioner, is hindsight and the opposite
of what Graham teaches. PO Resp. 36–37. In particular, Graham teaches
communication device 110 for processing audio input signals, and in one
embodiment, illustrated in Figure 1A, communications device 110 (and its
processor) communicates with microphone array 116 via network 114.
Ex. 1011 ¶ 39, Fig. 1A. Based on this embodiment, Patent Owner submits
that Graham teaches keeping the processor remote from microphone
array 116, i.e., Graham’s processor is not coupled to the ceiling tile
assembly. PO Resp. 36. Patent Owner’s arguments are unavailing. First,
the embodiment of Graham identified by Patent Owner is exemplary only,
and is non-limiting. Ex. 1011 ¶ 36 (“FIGS. 1A and 1B are schematics that
illustrate environments for implementing an exemplary band-limited
beamforming microphone array.” (emphasis added)). Second, Figure 1A is
a functional schematic, not a physical one. Functionally, microphone array
116 communicates with communication device 110 through network 114.
Id. Fig. 1A, ¶¶ 36–39. However, there is nothing that limits the physical
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proximity of microphone array 116 and communication device 110. Id.
Accordingly, we disagree that Graham teaches the opposite of locating the
processor remotely from the ceiling tile assembly. Rather, as we discuss
above, Graham does not limit the physical location of the processor, and
Sawa teaches that the processor may be located near the microphone array
within a single assembly. Pet. 95 (citing Ex. 1008, 21:16–25); Reply 21–22
(citing Ex. 1043 ¶¶ 58–60; Ex. 1008, 21:2–26).
Patent Owner also takes issue with Petitioner’s argument in the Reply
that Graham’s microphone array 116 is an example of a control box and
implicitly includes a processor, asserting that this is new argument. Sur-
Reply 19 (citing Pet. 19–21). We, however, do not rely in this Final Written
Decision on the argument discussed in Petitioner’s Reply that Graham’s
microphone array 116 is an example of a control box and implicitly includes
a processor. Reply 19–21.
Patent Owner also contends that Petitioner fails to identify an external
port on either Sawa’s asserted “control box” or Graham’s microphone array
116. PO Resp. 38–40. Patent Owner argues that Sawa has no explicit
disclosure of the claimed “port,” and that Graham discloses electrical
conduits, at most, but not the claimed “external port.” Id. Based on the fully
developed trial record, Patent Owner’s arguments do not persuade us. As
explained by Dr. Begault, including an external port would have been a
straightforward design task within the abilities of one of ordinary skill in the
art. Pet. 96 (citing Ex. 1011 ¶¶ 36, 39, 41, 82; Ex. 1008, 21:17–23; Ex. 1003
¶ 202). We are persuaded that it was well-known and understood to use
electrical ports to facilitate electrical connections between components, as
argued by Petitioner and explained by Dr. Begault. Reply 23–24 (citing
Ex. 1011, Fig. 4A, ¶¶ 55, 67; Pet. 100–101; Ex. 1043 ¶¶ 66–74). Graham
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confirms this, teaching multiple ports electrically connected to microphone
array 116, including USB and Ethernet ports in Figure 4A. Id. Dr.
Vipperman confirmed in his deposition that it was known for ports to be
electrically connectable to a cable to achieve the functions recited in
claim 20 (which depends from claim 19). Id. at 24 (citing Ex. 1052, 73:2–
76:2). Accordingly, we are persuaded that the use of ports was well-known.
As to the combination of Sawa’s control box in which a processor is located,
we are persuaded that it would have been obvious to include a connection to
facilitate communication between microphone array 116 and the processor,
because microphone array 116 transmits (i.e., communicates) data to
communication device 110 for processing. Ex. 1011 ¶ 39 (“[microphone]
array 116 may transmit the captured audio input signals to the first
communication device 110 for processing”). Moreover, we are persuaded
that Sawa’s control box would have had an external port connected to the
processor to connect microphone array 116 and the processor in
embodiments using electrical connections, because such port would have
been necessary in order facilitate these connections. Pet. 94–96, 99–101;
Reply 25 (citing Ex. 1043 ¶¶ 198–202).
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has shown, by a preponderance of the
evidence, that claims 19 and 20 are unpatentable as obvious over Graham
and Sawa.
(3) Claim 22
Claim 22 recites “wherein the housing includes an aluminum back
panel comprising a honeycomb core.” Ex. 1001, 19:3–5. Petitioner argues
it would have been obvious to make Graham’s housing from aluminum,
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which we find persuasive because Graham discloses that the ceiling tile may
be made of a variety of materials, including but not limited to metal alloys.
Pet. 90 (citing Ex. 1011 ¶ 52); id. at 96. However, Petitioner acknowledges
Graham does not expressly teach an aluminum back panel with a
honeycomb core. Petitioner accounts for the “honeycomb core” feature by
relying on Berry, which teaches that ceiling tiles can incorporate an
“aluminum honeycomb (hexagonal cells) . . . core.” Id. (citing Ex. 1012,
39:18–19; Ex. 1003 ¶ 203). Petitioner argues further that the ’493 patent
admits that aluminum board comprising a honeycomb core was a known
commercial product, and, therefore, was not inventive. Id. (citing Ex. 1001,
6:55; Ex. 1021); Ex. 1001, 6:52–55 (“[I]n certain embodiments, at least back
panel 110 comprises a flat, aerospace-grade, aluminum board comprising a
honeycomb core (e.g., as manufactured by Plascore®).”). Petitioner
explains that both Graham and Berry teach ceiling tiles that use metal back
panels, and, therefore, a skilled artisan would have predictably replaced
Graham’s metal back panel with the honeycomb design described in Berry.
Pet. 97 (citing Ex. 1003 ¶ 206); Reply 27 (citing Pet. 96–97; Ex. 1003
¶¶ 203–206; Ex. 1043 ¶¶ 75–79).
Patent Owner argues that Berry teaches using an aluminum
honeycomb core for the front of a ceiling tile to provide improved strength
for the ceiling tile, but does not teach using the same material for the back of
a microphone housing, as required by claim 22. PO Resp. 41 (citing
Ex. 1012, 39–18–19). Based on the fully developed trial record, we are not
persuaded by Patent Owner’s argument. As we discussed above, Petitioner
persuasively provides a rationale for using Berry’s aluminum honeycomb
core for the back panel of the ceiling tile, namely that both Graham and
Berry teach a metal back panel, and that using an aluminum honeycomb core
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for the metal back panel would have had the added benefits of using a light
weight design that improves the strength of the ceiling tile assembly. Pet. 97
(citing Ex. 1003 ¶ 206); Reply 27 (citing Pet. 96–97; Ex. 1003 ¶¶ 203–206;
Ex. 1043 ¶¶ 75–79).
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has shown, by a preponderance of the
evidence, that Claim 22 is unpatentable as obvious over Graham and Berry.
(4) Claim 26
Claim 26 recites the microphone assembly of claim 17, “wherein the
housing is sized and shaped to replace more than one of the plurality of
ceiling tiles.” Ex. 1001, 19:13–15. Petitioner relies on: 1) Graham’s
teaching of microphone array 116 suspended from a ceiling, as shown in
Figures 2B–2E, that spans multiple ceiling tiles in size; and 2) Graham’s
teaching of creating larger microphone arrays using multiple ceiling tiles.
Pet. 85 (citing Ex. 1011, Figs. 2B–2F, ¶ 51). In view of these teachings, and
Dr. Begault’s testimony that a larger array would improve performance in
large conference rooms, we find that a skilled artisan would have been
motivated to design a larger microphone array (as taught in Figs. 2B–2H)
hidden in the ceiling (as taught in Fig. 2F), and, therefore, would have
created a housing that would replace more than one ceiling tile. Id. (citing
Ex. 1003 ¶¶ 186–188); Reply 28; Ex. 1003 ¶ 196; Ex. 1043 ¶ 80.
Patent Owner contends Petitioner fails to show that Graham teaches
claim 26, arguing that Petitioner relies on, and improperly combines,
separate embodiments of Graham. PO Resp. 42–44. Patent Owner
distinguishes the multi-ceiling tile sized array embodied by Graham’s
Figures 2B–2F on grounds that the array is a suspended light fixture, not a
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drop ceiling tile. Id. at 42. Patent Owner then distinguishes the ceiling tile
configuration embodied in Graham’s Figure 2H on the grounds that it is the
size of only a single ceiling tile. Id. at 42–43. Based on the fully developed
trial record, we find this unavailing, because Petitioner relies not on one
embodiment or the other, but rather combines the teachings to arrive at the
claimed housing “sized and shaped to replace more than one of the plurality
of ceiling tiles.” Pet. 85. Patent Owner argues “Petitioner tries to fill the
gaps in Graham using hindsight,” arguing that Dr. Bergault does not explain
why a larger conference room would necessarily require a larger array or
why this would provide motivation to alter Graham’s disclosure. PO
Resp. 43 (citing Ex. 1011 ¶ 68 (disclosing multiple arrays); Ex. 2020 ¶ 139).
We find this argument unpersuasive, because Dr. Begault explains why a
larger array would have been desirable in a larger conference room in order
to improve performance. Ex. 1003 ¶ 186. Dr. Begault explains that a larger
array would be used in order to effectively detect the people speaking
throughout the room, and that a skilled artisan would have adapted the size
of the microphone array in order to provide adequate performance, e.g.,
sound localization and signal-to-noise ratio, for all speakers distributed
throughout the room. Id. (citing Ex. 1011 ¶ 51). Patent Owner attempts to
argue that Graham does not teach using a larger microphone array in a larger
conference room, but instead teaches using multiple microphone arrays. PO
Resp. 43 (citing Ex. 1011 ¶ 68). Patent Owner is referring to an
embodiment shown in Graham’s Figure 4B, in which microphone array 116
is connected to a first auxiliary band-limited array 414–1 and a second
auxiliary band-limited array 414–2 in a daisy chain arrangement. Ex. 1011
¶ 67, Fig. 4B. It appears, therefore, that Patent Owner’s argument is that
Graham teaches using multiple, separately housed, microphone arrays
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spread throughout a large room, and, therefore, does not teach a larger array
in a single housing that is the size and shape of more than one ceiling tile.
We find that Patent Owner’s argument and evidence does not
undermine Petitioner’s showing. Patent Owner’s evidence relates to
Graham’s Figure 4B, which is a schematic of the back side of the exemplary
band-limited BFM array of Figure 1A. Id. ¶ 67. Graham’s Figure 3 relates
to the same embodiment as Figure 4B, but shows the front, rather than the
back, side of the exemplary band-limited BFM array of Figure 1A. Id. ¶ 64.
With regard to Figure 3, Graham discloses that microphone array 116 itself
is comprised of multiple BFMs 302-1, 302-2, 302-3, . . . 302-n, as is shown
in Figure 3, Id. ¶ 64, Fig. 3. The microphone array is rectangular in shape,
and, therefore, teaches a microphone array suited to a ceiling tile sized and
shaped to replace more than one ceiling tile. Graham also confirms Dr.
Begault’s testimony as to the desirability of arranging microphone array 116
in this configuration, stating the BFMs may be arranged in a specific pattern
that facilitates maximum directional coverage of various sound sources in
the ambient surrounding. Id. ¶ 64. Therefore, the embodiment in Graham
upon which Patent Owner relies, if anything, supports Petitioner arguments
and Dr. Begault’s supporting testimony.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has shown, by a preponderance of the
evidence, that claim 26 is unpatentable as obvious over Graham.
F. Contingent Motion to Amend
Patent Owner initially filed a Contingent Motion to Amend, Paper 35,
and Petitioner field an Opposition to the Motion, Paper 46. In the
Contingent Motion to Amend, Patent Owner requested that we provide
preliminary guidance concerning the Contingent Motion to Amend in
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accordance with the Board’s pilot program concerning motion to amend
practice and procedures. Paper 35, 1; see also Notice Regarding a New Pilot
Program Concerning Motion to Amend Practice and Procedures in Trial
Proceedings under the America Invents Act before the Patent Trial and
Appeal Board, 84 Fed. Reg. 9,497 (Mar. 15, 2019) (providing a patent
owner with the option to receive preliminary guidance from the Board on its
motion to amend) (“Notice”). Consistent with Patent Owner’s request under
the pilot program, we issued Preliminary Guidance to Patent Owner’s
Motion to Amend. Paper 55.
In accordance with the pilot program, Patent Owner subsequently
filed a Revised Contingent Motion to Amend. Paper 57 (“Mot. Amend” or
“Motion”). Petitioner filed an Opposition to Patent Owner’s Revised
Motion to Amend. Paper 68 (“Pet. Opp.”). Patent Owner filed a Reply in
Support of its Revised Contingent Motion to Amend. Paper 74 (“PO
Reply.”). Petitioner filed a Surreply to Patent Owner’s Reply in Support of
Revised Contingent Motion to Amend. Paper 84 (“Pet. Sur-reply”).
In the Motion, Patent Owner seeks to amend the patent by adding
substitute claims 41–80, each of which corresponds to a respective one of
challenged claims 1–40, contingent on our determining claims 1–40 are
unpatentable. Mot. Amend 1.
Having determined claims 1–5, 7–33, and 35–40 are unpatentable, we
decide Patent Owner’s Motion as to substitute claims 41–45, 47–73, and 75–
80. We do not reach the issue of whether proposed substitute claims 46 and
74 have been shown to be unpatentable, because Patent Owner’s Motion is
contingent on finding unpatentability. The contingency has not been
reached as to substitute claims 46 and 74 because the claims they are
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proposed to substitute, claims 6 and 34, were not shown by Petitioner to be
unpatentable. Supra Sec. II.E.12.c.3.
1. Burden of Persuasion
“[A] patent owner does not bear the burden of persuasion to
demonstrate patentability of substitute claims presented in a motion to
amend.” Lectrosonics, Inc. v. Zaxcom, Inc., IPR2018-01129, Paper 15 at 4
(PTAB Feb. 25, 2019). “[T]he burden of persuasion ordinarily will lie with
the petitioner to show that any proposed substitute claims are unpatentable
by a preponderance of the evidence.” Id. “The Board itself also may justify
any finding of unpatentability by reference to evidence of record in the
proceeding, for example, when a petitioner ceases to participate, as further
noted in Aqua Products and Bosch.” Id. (citing Bosch Automotive Service
Solutions, LLC v. Matal, 878 F.3d 1027, 1040 (Fed. Cir. 2017) (citing Aqua
Products, Inc. v. Matal, 872 F.3d 1290, 1311 (Fed. Cir. 2017))). “Thus, the
Board determines whether substitute claims are unpatentable by a
preponderance of the evidence based on the entirety of the record, including
any opposition made by the petitioner.” Id. “Although the Board may, in
certain rare circumstances, raise a ground of unpatentability that a petitioner
did not advance, or insufficiently developed, against substitute claims
proposed in opposing a motion to amend, those circumstances are limited to
situations in which the adversarial process fails to provide the Board with
potential arguments of patentability with respect to the proposed substitute
claims.” Hunting Titan, Inc. v. DynaEnergetics Europe GMBH, IPR2018-
00600, Paper 67 at 25 (PTAB July 6, 2020) (precedential) (“Hunting
Titan”).
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“Before considering the patentability of any substitute claims,
however, the Board first must determine whether the motion to amend meets
the statutory and regulatory requirements set forth in 35 U.S.C. § 316(d) and
37 C.F.R. § 42.121.” Lectrosonics, Paper 15 at 4.
2. Statutory and Regulatory Requirements
a) Reasonable Number of Substitute Claims
Patent Owner proposes a reasonable number of substitute claims. 35
U.S.C. § 316(d)(1)(B). Patent Owner proposes no more than one substitute
claim for each of challenged claims 1–40. Mot. Amend 1; see id. at
App’x A. Petitioner does not argue otherwise. See generally Pet. Opp.
b) Responsiveness to Ground of Unpatentability
Patent Owner’s Motion responds to a ground of unpatentability
involved in this trial. 37 C.F.R. § 42.121(a)(2)(i). Patent Owner presents
the claim amendments in an attempt to add features to further distinguish the
proposed substitute claims as patentable over the references asserted in the
instituted grounds. In particular, Patent Owner explicitly addresses the prior
art references underlying our Decision on Institution, and the Motion
responds to at least a ground of unpatentability involved in trial. Petitioner
does not argue otherwise. See generally Pet. Opp.
c) Scope of Amended Claims
The proposed amendment does not seek to enlarge the scope of the
claims. 35 U.S.C. § 316(d)(3); 37 C.F.R. § 42.121(a)(2)(ii). Proposed
substitute claims 41, 56, 57, 60, 61, and 68 add limitations as compared to
their original claims, and therefore, do not enlarge the scope of challenged
claims 1, 16, 17, 20, 21, and 28. Proposed substitute claim 53 deletes the
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phrase “[array microphone system] further comprising” and replaces it with
“wherein the audio component includes,” thereby narrowing claim scope by
requiring the processor to be specifically in the audio component, rather than
merely in the array microphone system. Proposed substitute claim 58
deletes the word “first [face]” and replaces it with “front [face],” thereby
providing antecedent basis for the term because proposed substitute claim
57, from which proposed substitute claim 58 depends, recites a “front face,”
but does not recite a “first face.” Remaining substitute claims 42–55, 58, 59,
62–67, and 69–80 merely change the dependency of challenged claims 2–15,
18, 19, 22–27, and 29–40 of the ’493 patent. Petitioner does not argue
otherwise. See generally Pet. Opp.
d) New Matter
The proposed amendment does not seek to add new subject matter.
35 U.S.C. § 316(d)(3); 37 C.F.R. § 42.121(a)(2)(ii); Mot. Amend 2–8
(identifying support for the substitute claims). Petitioner does not argue
otherwise. See generally Pet. Opp.
3. Patentability
a) Substitute Claims 41–45, 47–55, 68–73, and 75–80
Proposed substitute claim 41 amends claim 1 by adding the word
“harmonically” in from the of the phrase “nested rings of varying sizes.”
Mot. Amend, App’x A, 1. Substitute claim 41 also adds the following
limitations:
an audio component that receives audio signals from the plurality of
microphones; and
a communications interface configured to allow communications
between the audio component and an external control device;
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wherein the external control device is configured to control at least
one of: directionality of the audio signals, noise suppression of the
audio signals, muting of the audio signals, or a pickup pattern of the
audio signals.
Id.
Proposed substitute claim 68 amends claim 28 by adding the words
“and being harmonically nested with” after “the second configuration
concentrically surrounding” and before “the first configuration.” Mot.
Amend App’x A, 1. Substitute claim 68 also adds the following limitations
electrically coupling a communications interface to the audio
processor, the communications interface being configured to allow
communications between the audio processor and an external control
device;
wherein the external control device is configured to control at least
one of: directionality of the audio signals, noise suppression of the
audio signals, muting of the audio signals, or a pickup pattern of the
audio signals.
Id.
Proposed substitute claims 42–45, 47–55, 69–73, and 75–80 merely
change the dependency of challenged claims 2–5, 7–15, 29–33, and 35–40
of the ’493 patent.
Petitioner contends that the proposed substitute claims are
unpatentable as obvious as follows:
1) substitute claims 41–45, 47–53, 68–71, 73, and 76–80 over Tiete,
Chan, Chou, and Firoozabadi16;

16 Ali Dehghan Firoozabadi & Hamid Reza Abutalebi, Combination of
Nested Microphone Array and Subband Processing for Multiple
Simultaneous Speaker Localization, 6th International Symposium on
Telecommunications (2012). Ex. 1069 (“Firoozabadi”).
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2) substitute claim 56 over Tiete, Chan, Chou, Firoozabadi, and
McElveen17;
3) substitute claims 54 and 75 over Tiete, Chan, Chou, Firoozabadi,
and Sawa;
4) substitute claim 55 over Tiete, Chan, Chou, Firoozabadi, and
Beaucoup;
5) substitute claim 72 over Tiete, Chan, Chou, Firoozabadi, and
Meyer; and
6) substitute claim 42 over Tiete, Chan, Chou, Firoozabadi, Lai,18 and
Hald.19
Opp. 20–25. For the matter in the proposed substitute claims that is in the
original claims, for the reasons discussed above Petitioner has made a
persuasive showing of unpatentability. Below, we address the recitations
added to proposed substitute claims 41 and 68 by amendment, and
Petitioner’s arguments for proposed substitute claim 42 in view of Lai and
Hald.
(1) “harmonically”
For the amendment requiring that the rings must be “harmonically”
nested, for reasons discussed above for challenged claims 8 and 36 (which
recite that the rings are harmonically nested) Petitioner has shown this

17 U.S. Patent Publication No. 2013/0101141 A1, published Apr. 25, 2013.
Ex. 1015 (“McElveen”).
18 Chiong-Ching Lai et al., Design of Robust Steerable Broadband
Beamformers with Spiral Arrays and the Farrow Filter Structure (2010).
Ex. 1067 (“Lai”).
19 J. Hald & J. J. Christensen, A Class of Optimal Broadband Phased Array
Geometries Designed for Easy Construction, The 2002 International
Congress and Exposition on Noise Control Engineering (2002). Ex. 1072
(“Hald”).
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feature is taught by the combination of Tiete, Chan, and Chou. Supra
Sec. II.E.12.c.5. Petitioner includes an additional reference, Firoozabadi
(Ex. 1069), in its unpatentability ground for proposed substitute claims 41
and 68. Opp. 21–22. For challenged claims 8 and 36, although Petitioner
did not include Firoozabadi in its unpatentability grounds (and we did not
rely on Firoozabadi in finding claims 8 and 36 unpatentable), Dr. Begault
explains that Firoozabadi confirms his testimony that harmonic nesting
techniques were well-known. Ex. 1043 ¶ 120 (citing Ex. 1069; Ex. 1043
¶¶ 148–149, 175); id. ¶ 151 (citing Ex. 1069, 909). Indeed, Firoozabadi
expressly discloses generalizing the concept of harmonic nesting of
microphone arrays to circular arrays, stating “[l]inear arrays have been
already in use in the field of nested arrays for speech enhancement . . . , but
our aim is to generalize the concept of nested microphone arrays to the
circular arrays.” Ex. 1069, 909.
Specifically with regard to proposed substitute claims 41 and 68,
Petitioner includes Firoozabadi in its unpatentability grounds, explaining
that Firoozabadi discloses a nested circular microphone array. Pet. Opp. 21.
Firoozabadi discloses using a nested design to cover a broad frequency range
encompassing 50 to 7,200 Hz (e.g., range of human speech) using sub-
arrays, wherein each sub-array is optimized toward a specific frequency
octave. Id. (citing Ex. 1069, 909; Ex. 1043 ¶¶ 148, 178). Petitioner relies on
Firoozabadi’s teachings that undesirable spatial aliasing effects can be
eliminated using harmonically nested microphones. Ex. 1069, 909.
Petitioner also relies on Chou’s teaching that harmonic nesting was a well-
known concept used to “cover a large frequency range by implementing
several subarrays, each designed for a smaller frequency range, typically an
octave.” Ex. 1014, 2995.
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As we discussed for challenged claims 8 and 36, we are persuaded
that a skilled artisan would have been motivated to use harmonic nesting in
the combined Tiete and Chan microphone assembly, in view of Chou. For
the same reasons, we find a skilled artisan would have been motivated to use
harmonically nested rings, as recited in proposed substitute claims 41 and
68. Petitioner’s additional reliance on Firoozabadi further supports our
findings, because Firoozabadi confirms the well-known technique of
harmonic nesting could be applied to a circular array, and provides further
motivation to combine with Tiete and Chan, as well as Tiete, Chan, anc
Chou with Firoozabadi itself, namely the elimination of undesirable spatial
aliasing. Pet. Opp. 21–22 (citing Ex. 1069, 909; Ex. 1043 ¶¶ 148, 178).
Petitioner also provides additional evidence supporting our finding, namely
that Dr. Vipperman confirms nesting of microphone arrays was a well-
known technique, and that Liu confirms this also. Id. (citing Ex. 1052,
56:17–20; Ex. 1078, 143; Ex. 1043 ¶ 152).
Patent Owner asserts that Firoozabadi fails to disclose more than one
ring, let alone multiple rings that are harmonically nested. PO Reply 11
(citing Ex. 2032 ¶¶ 42–43; Ex. 2033, 78:25–79:18). To support this
argument, Patent Owner points out that Firoozabadi describes an example in
which a single ring circular array was considered. Ex. 2032 ¶ 42 (citing
Ex. 1069, 909). Patent Owner argues further that the combination of Tiete,
Chan, and Chou fail to cure the deficiency of Firoozabadi. PO Reply 11–12
(citing Ex. 2032 ¶¶ 42–43). Based on the fully developed trial record, we
find Patent Owner’s arguments unavailing. As we discussed immediately
above and for challenged claims 8 and 36, Petitioner relies on Tiete and
Chan for disclosure of nested rings, not Chou or Firoozabadi.
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(2) “audio component,” “communications interface,” and “external
control device”
Petitioner shows Tiete discloses the recited “audio component,”
because Tiete discloses a field programmable gate array (FPGA) that
receives audio signals from the microphone array and performs processing
on the audio signals to generate an audio output. Pet. Opp. 22 (citing
Ex. 1005, 1924, 1925, Fig. 4; Ex. 1144 ¶¶ 22, 82, 86).
Petitioner shows Tiete discloses the recited “communications
interface” and “electronically coupling a communications interface to the
audio processor, the communications interface being configured to allow
communications between the audio processor and an external control
device,” because Tiete discloses an industry standard I2C interface that
allows connection between the FPGA (i.e., the asserted “audio component”)
and a host platform (i.e., the asserted “external control device”). Id. (citing
Ex. 1005, 1923; Ex. 1144 ¶¶ 88–89).
Petitioner shows Tiete discloses “wherein the external control device
is configured to control at least one of: directionality of the audio signals,
noise suppression of the audio signals, muting of the audio signals, or a
pickup pattern of the audio signals.” Because the proposed substitute claims
41 and 68 each recite “at least one of,” it is sufficient for Petitioner to show
the prior art teaches controlling one of the enumerated features. Petitioner
shows Tiete discloses the recited limitation because Tiete teaches that the
host platform (i.e., the asserted “external device”) “can configure the
SoundCompass and request a measurement.” Ex. 1144 ¶ 89 (quoting
Ex. 1005, 1926) (emphasis added). Among the data that is sent to the host
platform as the result of a requested measurement is directionality of audio
signals. Id. ¶ 88 (citing Ex. 1005, 1923). Accordingly, we credit Dr.
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Begault’s testimony that the host platform, which Tiete teaches can
configure the SoundCompass and request a measurement, can configure the
number of discrete angles for the beamforming and otherwise configure
SoundCompass for measurements. Id. ¶ 88; Opp. 22 (citing Ex. 1005, 1919,
1920, 1926; Ex. 1144 ¶¶ 88–89).
Patent Owner asserts Tiete fails to disclose the recited “external
control device” because Tiete discloses “a sound source localization device
(e.g., for pointing to a noise source) with a ‘host platform.’” PO Reply 11
(citing Ex. 2032 ¶¶ 37–41). Patent Owner does not explain why we should
find, based on this alleged distinction between Tiete and the ’493 patent, that
Tiete fails to teach the “external control device.” Dr. Vipperman elaborates,
stating that it is “not surprising” that Tiete does not disclose a host platform
controlling beamforming function on the grounds that Tiete is directed to a
fundamentally different technique (e.g., sound source localization) than the
’493 patent (e.g., sound pickup for external communications or
reproduction). Ex. 2032 ¶ 40. We find Patent Owner’s and Dr.
Vipperman’s testimony unavailing for the following reasons.
Petitioner and Dr. Begault specifically assert Tiete’s host platform can
configure the number of discrete angles for the beamforming and otherwise
configure SoundCompass for measurements. Pet. Opp. 22 (citing Ex. 1005,
1919, 1920, 1926; Ex. 1144 ¶¶ 88–89). Patent Owner’s arguments fail to
adequately address this assertion. Patent Owner’s declarant, Dr. Vipperman
states, incorrectly, that Dr. Begault acknowledges Tiete’s host platform “at
most can” request a measurement. Ex. 2032 ¶ 39 (citing Ex. 1144 ¶ 89).
Contrary to Dr. Vipperman’s assertion, Dr. Begault expressly cites to Tiete’s
disclosure that the host platform “can configure the SoundCompass and
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request a measurement.” Ex. 1144 ¶ 89 (quoting Ex. 1005, 1926) (emphasis
added).
Dr. Vipperman also testifies the “orientation of the sensor” referenced
in Dr. Begault’s declaration is performed not by the host platform, and that
the host platform therefore does not control the directionality of audio
signals as asserted by Dr. Begault. Ex. 2032 ¶ 39. In support of his
testimony that Tiete’s host platform does not control the orientation of the
sensor, Dr. Vipperman asserts that Tiete discloses that an inertial
measurement unit (IMU) controls the orientation of the sensor. Id. Contrary
to Dr. Vipperman’s testimony, Tiete does not disclose the IMU controlling
sensor orientation. Tiete explains the IMU determines, but does not state
that it controls, the orientation of the microphone sensor orientation.
Ex. 1005, 1923. Rather, the IMU is described in Tiete as a sensor mounted
on to the PCB that detects when SoundCompass has been moved or
repositioned. Id. at 1924. Therefore, we find that Tiete, at best, indicates
the IMU provides sensed data to a controller, wherein the data is used to
determine sensor orientation. We are unpersuaded by Patent Owner’s
argument that an inertial magnetic sensor would have been used as a
controller.
(3) Substitute Claim 42
Petitioner contends that proposed substitute claim 42 is unpatentable
as obvious over Tiete, Chan, Chou, Firoozabadi, Lai, and Hald. Pet.
Opp. 24–25. Proposed substitute claim 42 amends claim 2 to change its
dependency from claim 1 to proposed substituted claim 41. Mot. Amend
App’x 1. For the reasons we discussed above for challenged claim 2 and
proposed substitute claim 41, Petitioner has shown proposed substitute
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claim 42 is unpatentable as obvious over Tiete, Chan, Chou, and
Firoozabadi. Petitioner appears to introduce Hald and Lai due to Patent
Owner’s proposed construction of the term “rotationally offset” “to mean
that across the concentric, nested rings, ‘no more than any two microphones
are axially aligned.’” PO Resp. 16. Petitioner argues Lai teaches
harmonically nested rings in which “no more than two microphones are
axially or radially aligned.” Pet. Opp. 24 (citing Ex. 1067, Fig. 1; Ex. 1043
¶¶ 171–173). Petitioner also argues that Hald discloses an example of
rotationally offset rings, where the rotational offset necessarily results in
each positon of a microphone in the line of the array being the same distance
from the center, creating a ring. Id. at 25 (citing Ex. 1072, 5; Ex. 1043
¶¶ 184–186).
As we discussed in our claim construction analysis above, we do not
adopt Patent Owner’s construction of the term “rotationally offset from each
other.” See supra Section II.D. Accordingly, Petitioner need not show that
across the concentric, nested rings, no more than any two microphones are
axially aligned, and we determine Petitioner has shown proposed substitute
claim 42 is unpatentable as obvious over Tiete, Chan, Chou, Firoozabadi,
Lai, and Hald.
(4) Conclusion
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has shown, by a preponderance of the
evidence that,
1) substitute claims 41–45, 47–53, 68–71, 73, and 76–80 are
unpatentable as obvious over Tiete, Chan, Chou, and Firoozabadi;
2) substitute claims 54 and 75 are unpatentable as obvious over Tiete,
Chan, Chou, Firoozabadi, and Sawa;
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3) substitute claim 55 is unpatentable as obvious over Tiete, Chan,
Chou, Firoozabadi, and Beaucoup;
4) substitute claim 72 is unpatentable as obvious Tiete, Chan, Chou,
Firoozabadi, and Meyer; and
5) substitute claim 42 are unpatentable as obvious over Tiete, Chan,
Chou, Firoozabadi, Lai, and Hald.
As we discussed above, we do not reach the issue of whether
proposed substitute claims 46 and 74 have been shown to be unpatentable,
because the contingency for Patent Owner’s Motion has not been reached.
b) Substitute Claim 56
Proposed substitute claim 56 depends from proposed substitute
claim 41, and replaces challenged claim 16 which depends from claim 1.
Proposed substitute claim 56 has been amended to add “wherein each of the
plurality of peripheral PCBs has an identical configuration of a respective
subset of the plurality of microphones.” Mot. Amend App’x 4–5.
Petitioner contends this proposed substitute claim is obvious in view
of Tiete, Chan, Chou, Firoozabadi, and McElveen. Pet. Opp. 23. Petitioner
argues McElveen teaches that “each of the plurality of peripheral PCBs has
an identical configuration of a respective subset of the plurality of
microphones.” Id. We are persuaded by Petitioner’s argument because
Figure 2 of McElveen shows that each PCB has an identical configuration of
microphones. Ex. 1015, Fig. 2. Dr. Vippermann confirms this is the case.
Pet. Opp. 23 (citing Ex. 1052, 85:16–22). Dr. Begault asserts that a skilled
artisan would have modified the single PCB with the harmonically nested
rings of Tiete, Chan, Choo, and Firoozabadi to include the modular
configuration of McElveen for the benefits described both in McElveen and
Christensen. Ex. 1144 ¶¶ 98–107; Pet. Opp. 23. We credit Dr. Begault’s
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assertion, because providing such a modification would have resulted in a
modular circuit board and modularity is widely adapted because of its ease
of manufacturing, repair, scaling, lowering cost, etc., as taught by McElveen
and Christensen. Pet. Opp. 23 (citing Ex. 1144 ¶¶ 98–107; Ex. 1015 ¶ 51,
Ex. 1013, 2:27–36).
Patent Owner asserts that neither McElveen nor Christensen discloses
peripheral PCBs, let alone peripheral PCBs with an “identical configuration”
of a subset of the microphones on one of the concentric, nested rings. PO
Reply 12 (citing Ex. 2032 ¶ 44). According to Patent Owner, McElveen
discloses attaching multiple PCBs together with no arrangement forming a
ring, and Christensen fails to disclose PCBs at all. Id. To support its
argument, Patent Owner relies on the Second Supplemental Declaration of
Dr. Vipperman, which, in turn, relies on the [first] supplemental declaration
of Dr. Vipperman. Ex. 2032 (citing Ex. 2029 ¶¶ 59–67). Dr. Vipperman
asserts that Tiete, Chan, and Sawa each fail to disclose a “plurality of
peripheral PCB’s” surrounding a “central” PCB for the same reasons
discussed in his original declaration addressing challenged claims 16 and 35.
Ex. 2020 ¶¶ 61–63. For the same reasons we discussed above for challenged
claims 16 and 35, we find Dr. Vipperman’s testimony to be unavailing.
Supra Sec. II.E.12.c.9. Dr. Vipperman also asserts McElveen does not
provide a motivation to transform Tiete’s monolithic PCB into the “central”
and “peripheral” architecture recited in challenged claim 16 and proposed
substitute claim 56 for the reasons explained in his original declaration
addressing challenged claim 16. Ex. 2020 ¶¶ 64–66. For the same reasons
we discussed above for challenged claims 16 and 35, we find Dr.
Vipperman’s testimony to be unavailing. Supra Sec. II.E.12.c.9.
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For the foregoing reasons, having reviewed the fully developed trial
record, we determine that Petitioner has shown, by a preponderance of the
evidence, proposed substitute claim 56 is unpatentable as obvious over
Tiete, Chan, Chou, Firoozabadi, and McElveen.
c) Substitute Claims 57–67
Proposed substitute claim 57 amends challenged claim 17 by adding
the phrase “arranged in a self-similar configuration” after “an array
microphone comprising a plurality of microphones,” by including the phrase
“and fully encase the” after “a housing configured to support” and before
“the array microphone,” and by adding the limitations “wherein the sound-
permeable screen covers from view the plurality of microphones; and
wherein the housing further comprises side rails that secure the front face of
the housing to a second face of the housing.” Mot. Amend App’x 5.
Proposed substitute claims 58–67 depend either directly or indirectly from
proposed substitute claim 57 and, therefore, include the subject matter of
proposed substitute claim 57. For the reasons that follow, we determine
Petitioner has not demonstrated, by a preponderance of the evidence, that
proposed substitute claims 57–67 are unpatentable.
(1) Indefiniteness
Petitioner contends the term “self-similar” renders proposed substitute
claims 57–67 indefinite. According to Petitioner, the term “self-similar” is
not a specific term of art from acoustics or microphone design, and its
meaning within the specification of the ’493 patent is ambiguous. Pet.
Opp. 2–3. Accordingly, it appears Petitioner’s argument is not that the term
“self-similar” is indefinite outside the context of the ’493 patent, but rather is
that the term is indefinite when viewed in the context of the ’493
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Specification. Id. Petitioner’s declarant, Dr. Begault, testifies that in the
’493 patent the term “self-similar” is “equated or contrasted with” a “fractal-
like configuration,” arguing “the ’493 [p]atent does not explain how close to
a fractal is ‘fractal-like.’” Ex. 1043 ¶¶ 155, 157.
We are not persuaded that the ’493 patent’s disclosure of “a plurality
of microphone transducers selectively positioned in a self-similar or fractal-
like configuration, or constellation,” Ex. 1001, 3:66–4:1, creates ambiguity
as to the term “self-similar.” Even if we were to find this disclosure equates
or contrasts the term “self-similar” with the term “fractal-like,” Dr. Begault
acknowledges the term self-similar does not have precisely the same
meaning as fractal. Ex. 1043 ¶ 162. As such, a disclosure that something
self-similar is fractal-like does not necessarily alter, or create ambiguity as
to, the meaning of the term “self-similar,” but rather acknowledges there are
similarities between self-similar patterns and fractal-like patterns.
Dr. Begault opines that the term “‘self-similar’ is not a specific term
of art from acoustics or microphone design (Ex. 1043 ¶ 157); however, the
term appears to have had a well-known meaning. We do not discern any
indication the ’493 patent intended to deviate from such meaning. For
example, “self-similarity” is defined in Merriam-Webster’s Collegiate
Dictionary as “the quality or state of having an appearance that is invariant
upon being scaled larger or smaller.” Ex. 3003, 1129. Also, the New
Oxford American Dictionary defines “self-similar” as “similar to itself at a
different time, or to a copy of itself on a different scale.” Ex. 3004, 1586.20

20 In our Preliminary Guidance regarding Patent Owner’s first Motion to
Amend, we entered into the record the dictionary definitions of “self-
similar” discussed above, and we encouraged the parties to enter into the
record evidence and argument regarding the meaning of the term “self-
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Dr. Begault arrives at a similar understanding, testifying the simplest
meaning of “self-similar” “refers to an object that is exactly or
approximately similar to a part of itself (i.e., the whole has the same shape as
one or more parts, which is also a characteristic of a fractal).” Ex. 1043
¶ 157 (emphasis omitted). Accordingly, we agree with Patent Owner that a
skilled artisan would have understood the ’493 patent’s Specification to be
describing “self-similar” such that it may include fractal-like, configurations
or constellations, PO Reply 2, but that the Specification is not adopting a
special meaning for this term or creating ambiguity.
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has not shown, by a preponderance of the
evidence, that proposed substitute claims 57–67 are unpatentable as
indefinite.
(2) Obviousness over Graham (Ex. 1011), alone or combined with other
references, and Obviousness over the Graham Patent (Ex. 1040)
Petitioner contends: 1) proposed substitute claims 57–59 are
unpatentable as obvious over Graham (Ex. 1011) 21; 2) proposed substitute
claims 57–59 are unpatentable as obvious over the Graham Patent
(Ex. 1040); 3) proposed substitute claim 60 is unpatentable as obvious over

similar,” including for example extrinsic evidence such as dictionary
definitions of the term, as allowed by the rules governing this proceeding.
Paper 55, 17. However, Petitioner did not address these definitions or
introduce any additional definitions along with its Opposition to the Revised
Motion to Amend.
21 Petitioner refers to Graham (Ex. 1011) as the “Graham Publication” in the
Opposition to Patent Owner’s Revised Motion to Amend, in order to
distinguish this reference from other related Graham references. We refer to
Ex. 1011 as “Graham,” to be consistent with the Petition.
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Graham and Bruey; and 4) claims 61–67 are unpatentable as obvious over
Graham, Bruey, Herman, and Santiago. Pet. Opp. 6–19.
As we noted above, proposed substitute claim 57 recites “wherein the
housing further comprises side rails that secure the front face of the housing
to a second face of the housing.” Mot. Amend App’x 5 (emphasis added).
Petitioner contends that we should interpret “side rails that secure the front
face of the housing to a second face of the housing” as a side of a structure
that attaches the front face to the second face. Pet. Opp. 5–6 (citing
Ex. 1144 ¶ 15). Dr. Begault explains “[s]ide rails are mentioned four times
in the ’493 [p]atent and are illustrated in some figures.” Ex. 1144 ¶ 13
(citing Ex. 1001, 5:30–33, 6:14–18, 6:55–58, 6:66–67, Figs. 3–4). He
testifies that the examples of side rails in the ’493 patent are illustrative, but
nothing in the ’493 patent requires a particular form of side rails. Id.
Although the ’493 patent does not require a particular form of side rail,
proposed substitute claim 57 recites “side rails that secure the front face of
the housing to a second face of the housing.” The Specification does not
define the claim recitation at issue, and we, therefore, accord the phrase
“side rails that secure the front face of the housing to a second face of the
housing” its ordinary and customary meaning. We discern nothing in the
’493 patent to support Petitioner’s proposal that we replace the words at
issue in proposed substitute claim 57 with the new words in Petitioner’s
construction.
Petitioner asserts that Graham discloses side rails of a housing that
secure the front face to the second face of the housing. Pet. Opp. 11–12
(citing Ex. 1144 ¶¶ 40–52). In support of this assertion, Petitioner provides
an illustration created by Dr. Begault showing side rails, but as Patent
Owner points out, this is not a figure from Graham, and does not show a side
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rail that secures the front face of the housing to the second face of the
housing in the manner required by proposed substitute claim 57. PO
Reply 7 (citing Ex. 2033, 59:16–20). Dr. Begault acknowledged during his
deposition that the figure he created does not specify how the side rails
secure to a front face, and testified further that “you can imagine any
possible means by which the side rails could be attached to the front.” Id.
(citing Ex. 2033, 59:16–20). Petitioner and Dr. Begault argue, nonetheless,
that frames and sides of housings that secure a front and back were well
known, as described in Kulicke (Ex. 1122), Zelbacher (Ex. 1123),
Oberbroeckling (Ex. 1124), Stewart (Ex. 1126), aluminum Pomona boxes,
hobby boxes for PCBs, return air filter grilles for drop ceilings, and Sawa’s
main casing. Pet. Opp. 12 (citing Ex. 1144 ¶¶ 43–52). According to Dr.
Begault, “[t]here is nothing innovative or unique about a fully enclosed
enclosure, and there is nothing innovative about a ‘side rail’ used as a clip or
ledge to hold inner membranes or other surfaces or to connect to a front face
to a rear face.” Pet. Sur-reply 7 (citing Ex. 1144 ¶¶ 41–42). Petitioner
argues it would have been obvious, therefore, to modify the housing in
Graham to use such well-known structures to affix the rear panel. Pet.
Opp. 12. Patent Owner argues that Dr. Begault fails to explain why or how
a skilled artisan would have modified Graham in view of the numerous
references describing housings and frames. PO Reply 7.
Although Dr. Begault cites numerous references describing frames
and housings, we agree with Patent Owner that Dr. Begault does not explain
sufficiently why a skilled artisan would have been motivated to apply these
teachings to Graham, nor does he explain how they would have been applied
to Graham. Id. Graham discloses securing microphone array 116 to the
back side of ceiling tile 264 using hooks 272. Ex. 1011 ¶ 54, Fig. 2H.
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Graham discloses further that microphone array 116 may be appropriately
assembled together with ceiling tile 264 using various fasteners known in the
art, related art, or developed later. Id. ¶ 54. Dr. Begault does not address
how or why Graham would have been modified to use, instead of fasteners,
a frame and/or housing with side rails that secure.
Despite the well-known teachings Dr. Begault cites, for the reasons
discussed above, we find that Dr. Begault does not sufficiently develop the
reasoning as to why and how, in light of these teachings, Graham would
have been modified to include this feature. The Board generally may not
further develop Petitioner’s ground of unpatentability against a proposed
substitute claim in a motion to amend. Hunting Titan, Paper 67 at 4, 25
(concluding the Board only in rare circumstances may raise a ground of
unpatentability that a petitioner did not advance or sufficiently develop,
against a substitute claim in a motion to amend).
For the foregoing reasons, having reviewed the fully developed trial
record, we determine Petitioner has not shown, by a preponderance of the
evidence, that proposed substitute claim 57 is unpatentable as obvious over
Graham. By virtue of their dependency from proposed substitute claim 57,
proposed substitute claims 58–67 include the same “wherein the housing
further comprises side rails that secure the front face of the housing to a
second face of the housing” limitation. For the same reasons we discussed
above, we also determine Petitioner has not shown, by a preponderance of
the evidence, that: 1) proposed substitute claims 58 and 59 are unpatentable
as obvious over Graham, and 2) proposed substitute claim 60 is unpatentable
as obvious over Graham and Bruey; and 3) claims 61–67 are unpatentable as
obvious over Graham, Bruey, Herman, and Santiago. Also, for the same
reasons we discussed above, Petitioner has not shown claims 57–59 are
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unpatentable as obvious over the Graham Patent. Petitioner argues that the
Graham Patent discloses “the same subject matter” as Graham, and argues
that the Graham Patent discloses an acoustically transparent tile, but
Petitioner does not provide any additional argument that addresses why the
claimed “side rail” would have been obvious. Pet. Opp. 14–15. Therefore,
we also determine Petitioner has not shown, by a preponderance of the
evidence, that proposed substitute claims 57–59 are unpatentable as obvious
over the Graham Patent.
4. Conclusion
For the foregoing reasons, Patent Owner’s Motion is not reached as to
proposed substitute claims 46 and 74, is denied as to proposed substitute
claims 41–45, 47–56, 68–73, 75–80, and 68–80, and is granted as to
proposed substitute claims 57–67.
III. CONCLUSION
In summary:
Claims

35
U.S.C. §
Reference(s)/Basis Claims
Shown
Unpatentable
Claims
Not shown
Unpatentable
1–7, 9–13,
28–31, 33,
34, 37–40
§ 103 Tiete, Chan 1–5, 7, 9–13,
28–31, 33,
37–40
6, 34
8, 36 § 103 Tiete, Chan, Chou 8, 36
14, 16, 35 § 103 Tiete, Chan, Sawa 14, 16, 35
15 § 103 Tiete, Chan,
Beaucoup
15
32 § 103 Tiete, Chan, Meyer 32
17, 18, 21,
23–26
§ 103 Graham 17, 18, 21,
23–26

19, 20 § 103 Graham, Sawa 19, 20
22 § 103 Graham, Berry 22
27 § 103 Graham, Beaucoup 27
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Motion to Amend Outcome Claims
Substitute Claims Proposed in the Amendment 41–80
Substitute Claims: Motion to Amend Granted 57–67
Substitute Claims: Motion to Amend Denied 41–45, 47–56, 68–73, 75–
80
Substitute Claims: Not Reached 46, 74

IV. ORDER
In consideration of the foregoing, it is hereby
ORDERED that Petitioner has demonstrated by a preponderance of
the evidence that claims 1–5, 7–33, and 35–40 of U.S. Patent
No. 9,565,493 B2 are unpatentable;
FURTHER ORDERED that Petitioner has not demonstrated by a
preponderance of the evidence that claims 6 and 34 of U.S. Patent
No. 9,565,493 B2 are unpatentable;
FURTHER ORDERED that Patent Owner’s Revised Motion to
Amend (Paper 57) is granted-in-part;
FURTHER ORDERED that Petitioner’s Motion to Exclude
(Paper 76) is dismissed;
FURTHER ORDERED that Patent Owner’s Motion to Exclude
(Paper 77) is denied-in-part and dismissed-in-part;
FURTHER ORDERED that Patent Owner’s Unopposed Motion to
Seal (Paper 34) is granted;
FURTHER ORDERED that Petitioner’s Motion to Seal (Paper 50) is
granted; and
Overall
Outcome
1–5, 7–33,
35–40
6, 34
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FURTHER ORDERED that, because this is a Final Written Decision,
any party to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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For PETITIONER:

Matthew Phillips
mphillips@lpiplaw.com

Kevin Laurence
klaurence@lpiplaw.com

Derek Meeker
dmeeker@lpiplaw.com

For PATENT OWNER:

Erika Arner
erika.arner@finnegan.com

Elliot Cook
elliot.cook@finnegan.com

Alexander M. Boyer
alexander.boyer@finnegan.com