[00:00:00] Speaker 02:
The next case for argument is Koss Corporation versus the Dahl 22-2091.

[00:00:39] Speaker 00:
Thank you may please the court again, I represent cost corporation and this is an appeal from Consolidated final written decisions from the p-tab again related to Related patents all from the common specification the two patterns of a common specification and actually common to the 155 and 024 934 patents talked about a little bit and

[00:01:04] Speaker 00:
These two patents, the 325 and 982, relate to true wireless earphones.

[00:01:10] Speaker 00:
Both earphones are wireless.

[00:01:12] Speaker 00:
They're not physically connected when they're worn by a user.

[00:01:16] Speaker 00:
The claims of the 325 patent focus on a particular form factor, which is a wireless earphone with an ear hook that goes over the user's ear to hold it in place.

[00:01:28] Speaker 00:
With the 982 patent, there's a different type of form factor.

[00:01:33] Speaker 00:
part extending down, which we call the elongated portion that extends downwardly.

[00:01:38] Speaker 00:
So I'd like to start with a 3-2-5 pattern, the decision there by the P tab, and the key claim is claim one.

[00:01:44] Speaker 00:
Claim one recites generally a body portion, an earbud extending from the body portion, and a hanger bar on top of the user's ear.

[00:01:53] Speaker 00:
And the key piece of... Can I just ask you...

[00:02:00] Speaker 02:
The 3251 is caught up in this mootness issue, too, but the 982 is not.

[00:02:06] Speaker 02:
Even if we disagree with you implying the other stuff on moot, we still have to go to the merits of the 982.

[00:02:12] Speaker 00:
I believe that's correct.

[00:02:13] Speaker 00:
I believe we did not assert a 982 petting against plantronics.

[00:02:18] Speaker 02:
OK.

[00:02:18] Speaker 02:
Well, you can argue whichever one you want on the merits, but I would suggest you direct your comments to the 982, since clearly we have to address that one on the merits.

[00:02:30] Speaker 00:
at the ninety-two pat is the one where others at family spending portion body portion so for many to have you are you only contesting the board's finding reasonable expectation success not the prior discloses every limitation in claim one that's correct yes there's no substantial evidence to support the board's finding because it's based on

[00:02:56] Speaker 00:
petitioner's expert, and our view is his expert opinion did not arise to the level of substantial evidence.

[00:03:04] Speaker 00:
The skill level for Fizita, in this case, was somebody with expert in wireless communications.

[00:03:13] Speaker 00:
It had nothing to do with earphone design.

[00:03:15] Speaker 00:
These patents are related to earphone form factors.

[00:03:19] Speaker 00:
When we deposed petitioner's expert, he didn't

[00:03:26] Speaker 00:
And our view gave inadequate answers as to how these earphones operate, what design considerations would go into making an earphone like this.

[00:03:32] Speaker 00:
And he has superior skills to the baseline physita, who doesn't even have any background experience designing headphones.

[00:03:41] Speaker 00:
So in our view, it was wrong for the board to rely on, there's no substantial evidence

[00:03:48] Speaker 04:
My understanding of some of that depth testimony was more so that the expert was asking to review certain references in order to be able to answer the questions.

[00:03:57] Speaker 04:
Is my understanding incorrect in terms of how that depth questions and answers went down?

[00:04:03] Speaker 00:
The reference was the key reference.

[00:04:05] Speaker 00:
It was Rosner and Hankey.

[00:04:07] Speaker 00:
But we weren't asking about other references.

[00:04:10] Speaker 00:
I mean, Rosner, it's an earphone that has transducers.

[00:04:13] Speaker 00:
We asked them, what type of transducers would you know?

[00:04:16] Speaker 00:
How do transducers work?

[00:04:18] Speaker 00:
There were no explanations as to that.

[00:04:22] Speaker 00:
They asked how a wireless earphone, how Rosner's particular wireless earphone processes incoming data streams that are coming in wirelessly.

[00:04:31] Speaker 00:
And these are all problems that a person with an ordinary skill would need to solve in order to come up with claim one.

[00:04:37] Speaker 04:
Well, then let me just make sure I get this clarified.

[00:04:40] Speaker 04:
Other than your concerns about Dr. I think it's Cooperstock's answers to your questions of the deposition, do you have any other arguments why a skilled artist would not have a reasonable expectation of success?

[00:05:05] Speaker 00:
And I think all the reasons are wrapped up in that.

[00:05:07] Speaker 00:
That's the overarching reason you gave.

[00:05:09] Speaker 03:
That's definitely a fact finding, right?

[00:05:14] Speaker 03:
That the board would make whether they thought that his testimony could be believed or not?

[00:05:18] Speaker 00:
Correct.

[00:05:20] Speaker 03:
And so that's something we would review for substantial evidence, right?

[00:05:24] Speaker 00:
Correct.

[00:05:25] Speaker 00:
But the TQ Delta case, and there's other cases like it, talk about how

[00:05:33] Speaker 00:
An inadequate expert opinion or a conclusory expert opinion does not rise to the level of substantial evidence.

[00:05:39] Speaker 03:
But it's not your view that it's conclusory.

[00:05:42] Speaker 03:
It's your view that through his deposition testimony, he showed the lack of knowledge.

[00:05:47] Speaker 03:
So the PTO as the fact finder should say, you know, his deposition showed that he really doesn't know what he's talking about.

[00:05:55] Speaker 03:
So therefore, we're not going to believe him, right?

[00:05:58] Speaker 00:
That's our position, but I think that kind of shows that the opinion he gave was conclusive or speculative or not well-grounded, and therefore doesn't rise to the level of substantial evidence.

[00:06:17] Speaker 00:
The other patent in this case was a 325 patent, and there the key paragraph was Rosner's paragraph 30,

[00:06:24] Speaker 00:
which talks about three different types of earphones, talks about canal phones which go in the ear canal, talked about earbuds which go in the inner ear, and talked about over-the-ear earphones.

[00:06:41] Speaker 00:
And our patent, this claim, the 325 patent is limited to earbuds, which Rosenberg says go in the ear.

[00:06:49] Speaker 00:
Rosenberg talks about securing mechanisms that help

[00:06:52] Speaker 00:
secure earphones on the ear, but in our view, paragraph 30 of Rosner equates on the ear to over the ear earphones, and the law, or the evidence in the case was that over the earphones do not include ear buds, which are claim one of the 325 patented sites.

[00:07:10] Speaker 00:
So therefore, the securing mechanisms of the ear loop and the ear clip disclosing Rosner are only applied to the over the ear.

[00:07:19] Speaker 00:
type headphones, the board found that Rosener expressly describes and expressly teaches earbuds with hanger bars.

[00:07:30] Speaker 00:
I just don't think that's in there in paragraph 30.

[00:07:34] Speaker 00:
And when the board found that Rosener's paragraph 30 allegedly describes these things, it was able to, it didn't have to weigh the expert evidence on whether

[00:07:49] Speaker 00:
The petitioner's argument as to why you would add the ear clips to an ear guard would work.

[00:07:55] Speaker 00:
And I think once you look at the expert evidence, it's decidedly in our favor.

[00:08:00] Speaker 00:
But the board never got to that opinion because it found that Rosenberg especially describes these things.

[00:08:07] Speaker 00:
But I don't think that's in there in paragraph 30.

[00:08:21] Speaker 00:
The board, the petitioner made a modified version of Figure 5 of the Rosener patent.

[00:08:28] Speaker 00:
The board said that was representative of the petitioner's argument.

[00:08:33] Speaker 00:
But the petition never said it was representative.

[00:08:35] Speaker 00:
It was the only evidence presented in the petition and in the case.

[00:08:39] Speaker 00:
It was the only thing Koss had to rebut.

[00:08:42] Speaker 00:
And we rebutted it with expert evidence from our expert, Blair, who explained why the

[00:08:50] Speaker 00:
The setup or the configuration of the form factor in the modified figure five would not have worked.

[00:09:01] Speaker 00:
So if there's any questions, I'll reserve the remainder of my time.

[00:09:04] Speaker 02:
Thank you.

[00:09:06] Speaker 02:
Mr. Forman.

[00:09:19] Speaker 01:
May it please the court, on the 982 patent, the board relied on evidence in the record, including Dr. Guberstock's testimony that

[00:09:31] Speaker 01:
that there would have been a reasonable expectation of success in making the claimed earphone.

[00:09:41] Speaker 01:
Koss doesn't really attack that at all.

[00:09:42] Speaker 01:
They're just focused on these questions that they asked him at a deposition that are really irrelevant to the subject matter of the patent.

[00:09:50] Speaker 01:
So they were asking him specific questions about individual components within the earbud, such as the transducer,

[00:09:58] Speaker 01:
the analog to digital converter, et cetera.

[00:10:03] Speaker 01:
And rightly, he didn't feel comfortable answering those questions because that was way beyond the scope of this case.

[00:10:11] Speaker 01:
And so this case was really about taking these components, which existed well before

[00:10:16] Speaker 01:
the 982 patent and putting them together in a package that would be both lightweight and compact.

[00:10:25] Speaker 02:
But if he didn't understand how these individual components work for what they were, how could he apply on

[00:10:32] Speaker 02:
I don't think he said that he didn't understand how they worked.

[00:10:39] Speaker 01:
He was just he was very hesitant to answer questions during his deposition that were beyond the scope of what he had put in his expert report.

[00:10:50] Speaker 01:
While he may not have shared all this information during his deposition, I think one look at the Hanke reference, which is one of the references in this case, should dispel any concern that there wouldn't have been a reasonable expectation of success.

[00:11:07] Speaker 01:
Hanke includes 50 plus figures showing every detail about how one of ordinary skill would have designed an earbud.

[00:11:18] Speaker 01:
It goes into great detail about how one of ordinary skill would take a regular circuit board and convert that to a flexible circuit board.

[00:11:30] Speaker 01:
And how you would fit that flexible circuit board inside the earphone I mean, it's it's it's got a level of detail that goes way beyond anything in the 982 patent so The board found that that You know the 982 patent doesn't explain any of any of this stuff in any great detail so It's it should be understood that one of border skill would know this information sufficiently to build that problem

[00:12:00] Speaker 04:
I assume that you agree that, at least with respect to the appeal that involves the 325, that there would be a mootness problem here.

[00:12:12] Speaker 04:
But I don't know if you wanted to speak to that.

[00:12:14] Speaker 01:
We didn't take a position on the issue.

[00:12:16] Speaker 01:
We're aware that Bo has filed this motion to dismiss.

[00:12:19] Speaker 01:
But I don't think the office wanted to give it

[00:12:27] Speaker 02:
Can I ask you a hypothetical?

[00:12:29] Speaker 02:
Sure.

[00:12:29] Speaker 02:
If we find that the embolidity finding by the distal corpus spinal and binding, then that would affect the 325 here, wouldn't it?

[00:12:41] Speaker 01:
Correct.

[00:12:41] Speaker 01:
I agree with that.

[00:12:42] Speaker 01:
And on the 325, the only factual issue is whether the Rosener reference discloses an in-ear earbud with a curved hanger bar.

[00:12:53] Speaker 01:
And the board read the reference, and the reference reasonably discloses that limitation.

[00:13:02] Speaker 01:
And so under substantial evidence, as long as the board's conclusion on what Rosener discloses is plausible, this court should affirm.

[00:13:12] Speaker 01:
Happy to answer any questions.

[00:13:17] Speaker 01:
Thank you.

[00:13:29] Speaker 00:
Thank you again.

[00:13:30] Speaker 00:
The 982 patent does relate to wireless earphones.

[00:13:33] Speaker 00:
So the earphones have to process incoming data streams in order to decode them and play them.

[00:13:38] Speaker 00:
And it has to fit a transducer in the body of the earphone in order to play the sound audibly.

[00:13:43] Speaker 00:
So these are all important concepts to designing an earphone, a wireless earphone.

[00:13:48] Speaker 00:
And these are concepts that Dr. Cooperstock had a difficult time answering.

[00:13:54] Speaker 00:
My colleague is correct that Hankey is very thorough.

[00:13:56] Speaker 00:
But Hankey is not about TWS earbuds.

[00:13:59] Speaker 00:
Hankey is about a single earphone.

[00:14:03] Speaker 00:
Third, on the 982 pad, and although my colleague didn't mention it, it's kind of what I think he was talking about, how the 982 pad doesn't have the disclosures that would make it enabling.

[00:14:14] Speaker 00:
over and above what Rosner discloses, but in fact it does.

[00:14:17] Speaker 00:
The 982 patent, I believe it's at column six, talks about using an SOC to combine all the electronics into a small, single integrated circuit to fit in a small form factor.

[00:14:30] Speaker 00:
The patent even says it's conducive to miniaturization.

[00:14:33] Speaker 00:
There's no teaching like that in Rosner.

[00:14:38] Speaker 00:
Going back to the 325 patent,

[00:14:41] Speaker 00:
It's not plausible that you could read paragraph 30 of Rosner and say it teaches an earphone with an earbud that has an ear hook.

[00:14:51] Speaker 00:
Paragraph 30 clearly connects securing mechanisms to keep the earphone on the ear and earbuds go in the ear.

[00:15:02] Speaker 00:
So with that, if there's any questions.