QSC Audio Products, LLCv.Crest Audio, Inc.

Patent Trial and Appeal Board

May 1, 2015

08558344 (P.T.A.B. May. 1, 2015)

Trials@uspto.gov Paper 41
571-272-7822 Entered: May 1, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

QSC AUDIO PRODUCTS, LLC,
Petitioner,

v.

CREST AUDIO, INC.,
Patent Owner.
____________

Case IPR2014-00131
Patent 5,652,544
____________

Before MIRIAM L. QUINN, GLENN J. PERRY, and BRYAN F. MOORE,
Administrative Patent Judges.

MOORE, Administrative Patent Judge.

FINAL WRITTEN DECISION
Inter partes review
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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I. INTRODUCTION
Petitioner, QSC Audio Products, LLC (“QSC” or “Petitioner”), filed a
Corrected Petition (Paper 6, “Pet.”) to institute an inter partes review of
claims 1–15, 18–21, and 23–26 of U.S. Patent No. 5,652,544 (Ex. 1001, “the
’544patent”) pursuant to 35 U.S.C. §§ 311–319. Petitioner indicates that the
’544 patent is being asserted in Crest Audio, Inc. v. QSC Audio Products,
LLC, No. 3:13-CV610 DPJ-FKB, filed in the United States District Court for
the Southern District of Mississippi, Jackson Division, on September 7,
2013. Pet. 1; Paper 12, 2.
On May 6, 2014 we instituted review as to claims 1–15, 18–21, and
23–26 of the ’544 patent and instituted trial on the grounds of
unpatentability as set forth below. Paper 16, “Dec. on Inst.”
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Claims Grounds Reference
Claims 1–6, 9–13, 15,
and 19
§ 103 Sudo1 and Porambo2
Claims 1–6, 9–13, 15,
19, 21, and 25
§ 103 Sudo and Krokstad3
Claims 7, 20, 21, 23,
24, 25, and 26
§ 103 Sudo, Porambo, and
APA4
Claims 7, 24, and 26 § 103 Sudo, Krokstad, and
APA
Claim 8 § 103 Sudo, Porambo, and
TMS3205
Claim 8 § 103 Sudo, Krokstad, and
TMS320
Claims 14 and 18 § 103 Sudo, Krokstad, and
Porambo

Patent Owner, Crest Audio, Inc. (“Crest” or “Patent Owner”)
responded to the Petition (Paper 23, “PO Resp.”), Petitioner replied (Paper
29, “Reply”) to Patent Owner’s response. Oral Argument was held on
January 27, 2015. Paper 40, “Tr.”
The Board has jurisdiction under 35 U.S.C. § 6(c). In this Final
Written Decision, issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R.
§ 42.73, we determine Petitioner has demonstrated by a preponderance of
the evidence that the following claims for which trial was instituted, claims

1 US 5,822,775, issued Oct. 13, 1998 (Ex. 1005, “Sudo”).
2 US 5,450,624, issued Sept. 12, 1995 (Ex. 1006, “Porambo”).
3 WO 91/08654, published June 13, 1991 (Ex. 1007, “Krokstad”).
4 The Admitted Prior Art (“APA”) includes ’544 patent description at
column 5, lines 46–55.
5 TEXAS INSTRUMENTS TMS320 SECOND GENERATION DIGITAL
SIGNAL PROCESSORS, 1–67 (1991) (Ex. 1008, “TMS320”)
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1–15, 18, 19, 21, and 24–26, are unpatentable. We determine that claims 20
and 23 have not been shown to be unpatentable.
II. THE ’544 PATENT (Ex. 1001)
The ’544 patent is directed to an audio amplifier with a digital signal
processor (DSP) in the amplifier. An amplifier programmer is connected
removably to the amplifier to allow the signal processing functions and/or
parameters to be changed or modified without changing the signal
processing circuit elements themselves. Ex. 1001, 2:48–58. Programming
information can be input from portable programmer 200 through connector
300 and programming port 120 to control circuit 158. Id. at 6:41–47. “This
programming information may comprise signal processing function
programs and program data for defining function parameters, parameter
modification requests, new parameters, and other suitable control
information.” Id. Control circuit 158 may comprise a programmable
microprocessor that serves as an interface between the portable programmer
and signal processing circuit 154. Id. at 6:48–51. The control circuit and
signal processing circuit of the amplifier may be formed by a digital signal
processor. Id. at 6:51–55. If a digital signal processor is provided in
amplifier 100, both signal processing functions and function parameters may
be changed by inputting control information from portable programmer 200
to amplifier 100. Id. at 6:48–54. Independent claim 1 is reproduced below
and is illustrative of the claimed subject matter.
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1. An amplifier comprising:

an input port for receiving an input signal;

a signal processing circuit comprising a digital
signal processor capable of receiving at least one
of a signal processing function and a signal
processing function parameter, wherein the signal
processing circuit receives the input signal from
the input port and modifies the input signal;

a power amplifier for amplifying the modified
input signal received from the signal processing
circuit and outputting an amplified signal to an
output device;

an external programmer; and

a programming signal input port for receiving at
least one programming signal from the external
programmer, the external programmer being
removably connectable to the programming signal
input port for modifying at least one of a signal
processing function and a signal processing
function parameter defined in said signal
processing circuit.

IV. ANALYSIS OF CLAIM CHALLENGES
A. Level of Ordinary Skill
Petitioner asserts that a person of ordinary skill in the art would have
had the following education and experience: Master of Science degree in
Electrical Engineering and at least some practical experience with the design
and testing of electronic amplifiers. Ex. 1003 ¶ 8. Patent Owner’s declarant
generally agrees with the above assertion, but quantifies the practical
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experience, asserting that a person of ordinary skill in the art would have the
one year of experience with the “actual” design and testing of electronic
amplifiers. Ex. 2001 ¶¶ 22–23.
We determine the obviousness issues guided by the evidence of the
level of ordinary skill in the art presented by the references themselves. See
Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001). From the
Porambo reference, which Patent Owner does not contest is in the field of
endeavor of the invention in question, we understand that the level of
ordinary skill in the art, at a minimum, pertains to audio amplifiers and the
incorporation of DSPs in audio amplifiers. See Ex. 1006, Abstract
(describing the features of the audio amplifiers and DSPs at issue in
Porambo).
B. Dr. Ellis’s Qualification to Provide Expert Opinions
Patent Owner argues that Petitioner’s declarant, Dr. Ellis, is not
qualified to perform as an expert in this case because of his alleged lack of
experience designing audio amplifiers (PO. Resp. 14–16) and the alleged
short amount of time he spent reviewing this case (PO. Resp. 17–18). Patent
Owner argues that, unlike Dr. Ellis, its declarant Bob Cordell has significant
practical experience designing audio power amplifiers at the time of the
invention of the ’544 patent. Ex. 2001 ¶¶ 3, 4, 22.
As to his audio amplifier experience, Dr. Ellis completed a Master of
Science degree in Electrical Engineering with numerous years of experience
as a research assistant researching audio signal processing, sound synthesis
and analysis. Ex. 1004, 1. Dr. Ellis stated during his deposition that,
although he is an expert in digital signal processing (IPR2014-00129, Ex.
2002, 154:15–16), he has experience in the design of amplifiers from his
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undergraduate education. Id. at 124:7–20. Dr. Ellis designed and tested
microphone amplifiers as a post-doctoral student at the Computer Science
Institute at Berkeley, id. at 111:13–113:4, and currently is designing
amplifiers that can drive speakers with the goal of incorporating these into
his professional work. Id. at 120:4–121:12. We also note, as discussed
above, the field of the ’544 Patent invention is related to audio amplifiers
generally and the incorporation of DSPs. We find that although Dr. Ellis is
less experienced than Mr. Cordell in the area of amplifier design, he is
qualified sufficiently to testify about audio amplifiers as they relate to DSPs.
Patent Owner also argues that Dr. Ellis must himself be a person of
ordinary skill in the art. PO Resp. 15–16. Patent Owner’s arguments are
unpersuasive, because, to testify as an expert under FRE 702, a person need
not be a person of ordinary skill in the art, but rather “qualified in the
pertinent art.” Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356,
1363–64 (Fed. Cir. 2008); see SEB S.A. v. Montgomery Ward & Co., 594
F.3d 1360, 1372–73 (Fed. Cir. 2010); Mytee Prods., Inc. v. Harris Research,
Inc., 439 Fed. App’x 882, 886–87 (Fed. Cir. 2011) (non-precedential)
(upholding admission of the testimony of an expert who “had experience
relevant to the field of the invention,” despite admission that he was not a
person of ordinary skill in the art). As noted above, Dr. Ellis is qualified in
the pertinent art.
Finally, Patent Owner argues that Dr. Ellis spent an unreasonably
short amount of time reviewing this case before providing his opinion, i.e.,
only ten hours. PO Resp. 17–18. We find that the amount of time Dr. Ellis
chose to spend with the case likely is based on his experience with the
subject matter and the difficulty of the subject matter. Thus, we are not
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persuaded by Patent Owner’s argument that the time spent on the proffered
opinion affects the weight we give his opinions.
C. Claim Construction
In an inter partes review, claim terms in an unexpired patent are given
their broadest reasonable construction in light of the specification of the
patent in which they appear. 37 C.F.R. § 42.100(b). Under the broadest
reasonable construction standard, claim terms are given their ordinary and
customary meaning, as would be understood by one of ordinary skill in the
art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
F.3d 1249, 1257 (Fed. Cir. 2007). Any special definition for a claim term
must be set forth with reasonable clarity, deliberateness, and precision. In re
Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
1. at least one of a signal processing function and a
signal processing function parameter

As to the claim term “at least one of a signal processing function and a
signal processing function parameter,” Patent Owner argues that the use of
the phrase “at least one of” in the independent claims indicates that the DSP
has to be capable of receiving a processing function and signal processing
function parameters. PO Resp. 19.
The Specification notes that “programming information may comprise
signal processing function programs and program data for defining function
parameters.” Ex. 1001, 6:43–45. Thus, the Specification suggests that both
the functions and parameters are transmitted to the DSP. Additionally, the
Federal Circuit, when faced with similar claim language, determined that the
phrase “at least one” followed by a list of categories separated by “and”
rather than “or” suggests a conjunctive list in which each one of the
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members of the list is necessary to satisfy the claim. SuperGuide Corp. v.
DirecTV Enters., Inc., 358 F.3d 870, 885–86 (Fed. Cir. 2004) (“A common
treatise on grammar teaches that ‘an article of a preposition applying to all
the members of the series must either be used only before the first term or
else be repeated before each term.’” (quoting William Strunk, Jr. & E.B.
White, The Elements of Style 27 (4th ed. 2000)). SuperGuide points out that
each term in the list embraces a different category, each of which must take
on a chosen value: “Every disclosed embodiment teaches that the user must
choose a value for each designated category.” Id. at 887. That is the case
here where functions have associated parameters.
For the above reasons, consistent with the plain English meaning and
the Specification, we construe “at least one of a signal processing function
and a signal processing function parameter” to require that both a signal
processing function and a signal processing parameter must be present in the
prior art to meet that claim limitation.
2. programming information from at least one of the
input device and a control circuit of the amplifier
As to the claim term “programming information from at least one of
the input device and a control circuit of the amplifier,” Patent Owner argues
that the term should be construed similarly to the term “at least one of an
algorithm which defines at least one signal processing function and signal
processing function parameters,” and require that both an input device and a
control circuit be present to meet the claim limitation. PO Resp. 19–20.
Patent Owner does not cite to any support in the Specification for its
reading of this claim term. As noted above, under SuperGuide, the plain
meaning of “at least one of A and B” is “at least one of A and at least one of
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B.” However, SuperGuide points out that the specification involved there
does not enlarge the scope of the plain meaning, and reasons that each term
in the list embraces a different category, each of which must take on a
chosen value. Id. at 887 (“Importantly, the flow chart uses a conjunctive
criteria list, i.e., the system’s user must choose at least one value for each
designated criteria, or the logic would be inoperable.”).
Accordingly, SuperGuide has been distinguished on the basis that the
normal conjunctive meaning does not apply when the specification or claims
imply a broader meaning. See Joao v. Sleepy Hollow Bank, 348 F. Supp. 2d
120, 124 (S.D.N.Y. 2004) (a conjunctive reading of the phrase, “‘wherein
the banking transaction is at least one of a clearing transaction, a check
clearing transaction, an account charging transaction, and a charge-back
transaction,’” would be nonsensical because a single banking transaction
cannot be all four).
The ’544 Specification describes two alternative modes of operation
for the controller in the programmer. In a first mode, a microprocessor in
the controller receives programming information from a keypad. Reply 9
(Ex. 1001, 3:37–60). In a second mode, the user can select a “reading
mode” where the microprocessor receives parameters from the signal
processor. Reply 9 (citing Ex. 1001, 4:12–34). The Specification does not
require—or even suggest—that the microprocessor must receive
programming information from both sources to program the DSP. Reply 9.
On the record before us, consistent with the Specification, we construe
“programming information from at least one of the input device and a
control circuit of the amplifier” to require that either an input device OR a
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control circuit, but not necessarily both, must be present in the prior art to
meet that claim limitation.
3. performance characteristics
As to the claim term “performance characteristics,” Patent Owner
argues that the term should be construed to mean “‘any variable data relating
to the behavior of the signal processing circuit, including signal processing
functions and/or signal processing function parameters.’” PO Resp. 21.
Patent Owner argues the Specification describes “control signals [sent] to
the signal processing circuit to modify the performance characteristics of
various control elements of the signal processing circuit.” PO Resp. 21 (Ex.
1001 (the ’544 Patent), 7:61-63). According to Patent Owner, because the
performance characteristics are modified, the data for the performance
characteristics must be variable. PO Resp. 21. Additionally, Patent Owner
argues the word “performance” implies a state of a behavior that is dynamic.
Id. We disagree. The fact that a characteristic can be modified means that
its value can be changed at least once, but not that it is dynamically
changing, as suggested by Patent Owner. We decline to limit the term
performance characteristics as suggested by Patent Owner.
D. Claims 1–6, 9–13, 15, 19, 21, and 25 – Obviousness over
Sudo and Krokstad (Ex. 1007)

Petitioner argues that claims 1–6, 9–13, 15, 19, 21, and 25 are
unpatentable under 35 U.S.C. § 103(a) over Sudo and Krokstad. Pet. 24–27,
29–36, 42–49, 51, 54, 57–58. Sudo teaches a digital signal processor that
receives an input audio signal on an input port and performs a digital signal
process on the input audio signal according to a programmed digital signal
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processing function (program) and associated parameters (coefficients) in
order to modify the input signal to provide a desired sound field. Ex. 1005,
3:35– 4:5. Microcomputer 20 that operates to program DSP 2 is connected
to DSP 2 through interface 19. Id. If a user selects a key representing a
different sound field on the keyboard, microcomputer 20 reads out the
processing program corresponding to the selected sound field control key
and the corresponding coefficients, and transfers this data to the DSP
through interface 19. Id. at 3:61–4:24. Krokstad discloses a DSP-controlled
amplifier for use in a hearing aid. Ex. 1007, Abstract. Krokstad further
discloses that the DSP can provide signals to a power amplifier if needed.
Id. at 18, Fig. 4d. In Krokstad, a personal computer is used to program the
DSP with different functions and parameters that are optimized for each
particular user. Id. at 21. The computer is removably connectable to the
amplifier and DSP via an RS232 port. Id. at 21, Fig. 5a.
1. Claim 1
Below we discuss independent claim 1 from which all other claims
challenged in this ground depend. Claim 1 recites an input port for receiving
an input signal. Sudo teaches DSP 2 has an input port connected to A/D
converter 1. Ex. 1005, Fig. 1. Petitioner has shown by a preponderance of
the evidence that Sudo discloses this limitation.
Claim 1 recites “a signal processing circuit comprising a digital signal
processor capable of receiving at least one of a signal processing function
and a signal processing function parameter, wherein the signal processing
circuit receives the input signal from the input port and modifies the input
signal.”
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Petitioner asserts that Sudo’s disclosure of interface 19, which
receives a program and coefficients, meets this limitation. Pet. 25 (citing
Ex. 1005, col. 4, ll. 1–5, 8–16). Petitioner has shown by a preponderance of
the evidence that Sudo discloses this limitation.
In addition, claim 1 recites “a power amplifier for amplifying the
modified input signal received from the signal processing circuit and
outputting an amplifier signal to an output device.” Petitioner asserts that
Krokstad’s disclosure of a power amplifier meets this limitation. Pet. 26
(citing Ex. 1007, 18, ll. 17–22). Petitioner has shown by a preponderance of
the evidence that Krokstad discloses this limitation.
Claim 1 further recites “a programming signal input port for receiving
at least one programming signal from the external programmer” and an
“external programmer . . . being removably connectable to the programming
signal input port for modifying at least one of a signal processing function
and a signal processing function parameter defined in said signal processing
circuit.” Petitioner asserts that Sudo’s interface 19 that receives
programming signals from microcomputer 20 meets a portion of this
limitation. Pet. 26. The signal received from microcomputer 20 modifies
functions (sound field of hall 1 or hall 2) and parameters (coefficient data).
Id. (citing Ex. 1005, 3:61–4:17). As discussed below in Section IV. H., we
find that Sudo does not disclose a removable connection. Nonetheless,
Petitioner asserts that Krokstad’s removable connection to a personal
computer meets the other portion of this limitation. Pet. 26–27 (citing Ex.
1007, 21). Thus, on the record before us, Petitioner has shown by a
preponderance of the evidence that Krokstad discloses this limitation.
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Petitioner argues that a person of ordinary skill in the art would have
been motivated to program the DSP of Sudo with a programmer that is
connected via a removable connection such as the RS232 port shown in
Krokstad, “in order to allow the programmer to be easily connected to or
disconnected from the DSP or to allow a general purpose computer that
could be used for other tasks to be used in programming the DSP.” Pet 25;
see Ex. 1003 ¶¶ 36–37. Thus, Petitioner has provided sufficient rationale to
combine Sudo and Krokstad.
Patent Owner argues that “Petitioner’s . . . analysis [] ignores the
numerous technical hurdles that would prevent the connection between the
DSP and microcomputer in Sudo being modified to include the RS232
interface of Krokstad.” PO Resp. 34. Patent Owner first argues that a
person of ordinary skill would not modify Sudo to include a removable
programmer because of speed constraints in Sudo. PO. Resp. 34–35. Patent
Owner argues that Petitioner’s declarant, Dr. Ellis, admits that the RS232
connection is not suitable if used as the interface to the microcomputer in
Sudo. PO Resp. 35–36 (citing Ex. 2002, 180:24–181:13. Thus, Patent
Owner argues, it would not have been obvious to modify Sudo to
incorporate the RS232 interface of Krokstad because it would render Sudo
unsuitable for its intended purpose. PO Resp. 36 (citing In re Gordon, 733
F.2d 900, 902 (Fed. Cir. 1984). We disagree.
Patent Owner does not assert that a removable connection itself is
incompatible with Sudo. Rather Patent Owner asserts that the specific
connections used by Krokstad are incompatible with Sudo. See PO Resp.
36. Patent Owner misses the point. The obviousness inquiry does not ask
“whether the references could be physically combined but whether the
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claimed inventions are rendered obvious by the teachings of the prior art as a
whole.” In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc); see also
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is
not whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference; . . . . Rather, the test
is what the combined teachings of the references would have suggested to
those of ordinary skill in the art.”)
The Supreme Court has made clear that we apply “an expansive and
flexible approach” to the question of obviousness. KSR Int'l Co. v. Teleflex
Inc., 550 U.S. 398, 415 (2007).
Often, it will be necessary for a court to look to interrelated
teachings of multiple patents; the effects of demands known to
the design community or present in the marketplace; and the
background knowledge possessed by a person having ordinary
skill in the art, all in order to determine whether there was an
apparent reason to combine the known elements in the fashion
claimed by the patent at issue.

Id. at 418. As the Supreme Court recognized, in many cases a person of
ordinary skill “will be able to fit the teachings of multiple patents together
like pieces of a puzzle,” recognizing that a person of ordinary skill “is also a
person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 420–21.
Both parties’ declarants agree that Sudo’s high-speed connection could be
implemented using a PCI bus, which is a removable connection. Ex. 2002,
178:10–17; Ex. 1012, 93:1–94:19. Thus, given the motivation to create a
removable connection, such as the one disclosed in Krokstad, we are
persuaded that implementation of that connection in Sudo would not render
it unsuitable for its intended purpose.
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Thus, for the reasons stated above, Petitioner has shown by a
preponderance of the evidence that Krokstad and Sudo teach this limitation.
In view of the above, we are persuaded that Petitioner has shown by a
preponderance of evidence that claim 1 would have been obvious based on
Sudo and Krokstad.
2. Claim 2
Claim 2 recites the operation of the control circuit. Specifically, this
claim requires the control circuit to receive the programming signal and
convert the programming signal to a control signal to be sent to the signal
processing circuit for modifying at least one of the signal processing
function and the signal processing function parameter defined in the signal
processing.
Krokstad describes a control circuit (control unit (CU)) that converts a
programming signal received from a personal computer into control signals
that modify (reprogram) the signal processing functions and parameters
defined by the signal processing circuit. Pet. 29–30; Ex. 1007, 21:18–23.
Based on the foregoing, we are persuaded that Krockstad discloses the
limitations recited in claim 2. In view of the above, we are persuaded that
Petitioner has shown by a preponderance of evidence that claim 2 would
have been obvious based on Sudo and Krokstad.
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3. Claim 3
Claim 3 recites that the digital signal processor includes a storage
device. Specifically, this claim requires storing at least one of the signal
processing function and the signal processing function parameter produced
by the control circuit.
The DSP in Sudo has memories for storing a programming function
(program RAM 14) and signal processing function parameters (coefficient
data RAM 9). Pet. 31–32; Ex. 1005, Fig. 1.
Based on the foregoing, we are persuaded that Sudo discloses the
limitations recited in claim 3. In view of the above, we are persuaded that
Petitioner has shown by a preponderance of evidence that claim 3 would
have been obvious based on Sudo and Krokstad.
4. Claim 4
Claim 4 recites that the control circuit comprises a programmable
microprocessor. “Krokstad shows the use of a control unit (CU) that
receives the programming signals and transmits them to the memories of the
DSP to change the function and parameters of the DSP.” Pet. 33; Ex. 1007,
21:1–5. Petitioner asserts that “[a] person of ordinary skill in the art would
have recognized that the control unit of Krokstad would be implemented as a
programmable microprocessor.” Pet. 33; see Ex. 1003 ¶ 20.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 4. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 4 would have been obvious based on Sudo and Krokstad.
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5. Claim 5
Claim 5 recites a “storage device for storing at least one programming
signal. Krokstad discloses a DSP having a number of storage devices
(RAM3–RAM6) for storing programming signals.” Pet. 34–35; Ex. 1007,
20:9–16, Fig. 5a. Petitioner argues that “[a] person of ordinary skill in the
art would have considered the use of a storage device for storing
programming signals to have been obvious in view of Sudo as a convenient
way to store the programming signals in the DSP.” Pet. 35; Ex. 1003 ¶ 51.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 5. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 5 would have been obvious based on Sudo and Krokstad.
6. Claim 6
Claim 6 recites “an amplifier housing where the signal processing
circuit and power amplifier are located in the amplifier housing. Krokstad
discloses a DSP-controlled amplifier where the components are located in an
amplifier housing.” Pet. 36; Ex. 1006, 8:7–8. Petitioner contends that “[i]n
Krokstad, the digital to analog converter is a high output converter to avoid
need for a power amplifier.” Pet. 36. “However, Krokstad indicates that if a
power amplifier is required, one could be used in the output stage and
connected to the output of the digital to analog converter as shown in Figure
4d.” Pet. 36; Ex. 1006, 18:17–22.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 6. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 6 would have been obvious based on Sudo and Krokstad.
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7. Claim 9
Claim 9 recites that the external programmer include an input/output
port, data input device and a controller. Sudo teaches these features. Pet.
41–42.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 9. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 9 would have been obvious based on Sudo and Krokstad.
8. Claim 10
Claim 10 recites
[T]hat the external programmer include a display screen for
displaying input programming information and information
read by the controller. Krokstad discloses a DSP controlled
amplifier that is programmed with a personal computer and it
was well known that personal computers include display
screens that could display input programming information and
information read by the personal computer. Therefore, a person
of ordinary skill in the art would have considered the use of a
display screen to have been obvious.

Pet. 43–44; Ex. 1003 ¶ 63.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 10. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 10 would have been obvious based on Sudo and Krokstad.
9. Claim 11
Claim 11 recites that the external programmer further comprises a
storage device for storing the input programming information and previously
selected control signals. Sudo discloses that microcomputer 20 includes a
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ROM that stores the programs and coefficients used for programming the
DSP. Pet. 44; Ex. 1005, 3:63–67. In addition, Sudo teaches that it was well
known to update the DSP settings when a desired sound field is switched.
See Ex. 1005, 1:37–40.
[A] person of ordinary skill in the art would have considered it
obvious in light of Sudo to store previously entered control
signals in the storage memories in order to determine when the
user has made a switch in a desired sound field and it was time
to download a new program to the DSP.

Pet. 44–45; Ex. 1003 ¶¶ 65–66.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 11. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 11 would have been obvious based on Sudo and Krokstad.
10. Claim 12
Claim 12 recites that the data input device has a plurality of keys.
Krokstad describes that the DSP is programmed with a personal computer
(Ex. 1007, 21:8–23) and that it is well known that personal computers
include keyboards having a plurality of keys. Pet. 46; Ex. 1003 ¶¶ 68–69.
“Therefore, a person of ordinary skill in the art would have considered the
use of a data input device with a plurality of keys as disclosed by Krokstad
to have been an obvious way of entering data into the external programmer.”
Pet. 46; Ex. 1003 ¶¶ 68–69.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 12. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 12 would have been obvious based on Sudo and Krokstad.
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11. Claim 13
Claim 13 recites that the controller of the external programmer
comprises a microprocessor that receives programming information from at
least one of an input device and a control circuit of the amplifier. Krokstad
describes that the DSP is programmed with a personal computer (Ex. 1007,
21:8–23) and it is well known that personal computers may include
keyboards having a plurality of keys. “Therefore, a person of ordinary skill
in the art would have considered the use of a data input device with a
plurality of keys as disclosed by Krokstad to have been an obvious way of
entering data into the external programmer.” Pet. 46; Ex. 1003 ¶¶ 68–69.
Patent Owner’s argument regarding this claim is based on its narrow claim
construction which we did not adopt.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 13. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 13 would have been obvious based on Sudo and Krokstad.
12. Claims 15 and 19
Claims 15 and 19 recite that the (external) programmer is a standard
computer. Krokstad describes that the DSP is programmed with a personal
computer. Ex. 1007, 21:8–23.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claims 15 and 19. In view of the above, we
are persuaded that Petitioner has shown by a preponderance of evidence that
claims 15 and 19 would have been obvious based on Sudo and Krokstad.
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13. Claim 21
Claim 21 recites that the DSP receives and stores a combination of at
least two signal processing functions. Petitioner notes that Krokstad discloses
a DSP in an amplifier that is programmed to provide at least three signal
processing functions including compression, equalization and pre-
compensation. Ex. 1007, 20:1–2. Petitioner asserts
A person of ordinary skill in the art would have considered
programming a DSP in an amplifier to perform at least two
signal processing functions to have been obvious in view of
Krokstad as a way to achieve more than one desired audio
effect with a single digital signal processor without having to
provide additional circuitry.

Pet. 54; Ex. 1003 ¶¶ 95–98. We agree with Petitioner.
The ’544 Patent incorporates by reference U.S. Patent ApplicationNo.
08/546,839, which later issued as U.S. Patent No. 5,652,542. Ex. 1001,
3:11–12. Patent Owner notes that the ’544 Patent states “‘it is often
necessary or desirable to change the signal processing function or even
combine several different signal processing functions in the signal
processing circuit. This is not possible with conventional amplifiers.’” PO
Resp. 38–39; Ex. 2004, 2:62–65. Patent Owner asserts “[t]his description
makes it clear that the claim element as [sic] issue requires at least two
functions being combined.” PO Resp. 39; Ex. 2001 ¶ 125. Patent Owner’s
declarant states that two functions can be combined to form a new function.
Ex. 2001 ¶ 125.
The cited portion relied on by Patent Owner, however, does not
describe such a new combined function and nowhere in the Specification is
such a combination described. We find a broad reading of this limitation
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supports that at least two functions are received and stored in together not
combined as a new function and then received and stored.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 21. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 21 would have been obvious based on Sudo and Krokstad.
14. Claim 25
Claim 25 recites “that the DSP receives and stores at least one of a
signal processing function and a signal processing function parameter for a
compression function. Krokstad discloses a DSP in an amplifier that is
programmed to receive and store a compression function and parameters.”
Pet. 57–58; Ex. 1007, 20:1–16.
Based on the foregoing, we are persuaded that Sudo and Krokstad
teach the limitations recited in claim 25. In view of the above, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 25 would have been obvious based on Sudo and Krokstad.
15. Summary
Upon review of Petitioner’s analysis and supporting evidence and
Patent Owners analysis and supporting evidence, we are persuaded that
Petitioner has shown by a preponderance of evidence that claims 1–6, 9–13,
15, 19, 21, and 25 would have been obvious over Sudo and Krokstad.
E. Claims 7, 24, and 26 – Obviousness over Sudo, Krokstad,
and APA
Petitioner argues that claims 7, 24, and 26 are unpatentable under
35 U.S.C. § 103(a) over Sudo, Krokstad, and APA. Pet. 38–39, 56–57, 59.
APA refers to the’544 patent’s disclosure, inter alia, that amplifiers having a
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plurality of control knobs for controlling gain, volume, an equalizer circuit, a
level threshold, etc., on a control panel of the amplifier were “conventional”
or well known in the art. See Ex. 1001, 5:46–55.
Claim 7 recites a control panel, wherein said programming signal
input port is provided on the control panel. As noted above, APA teaches
that it was well known in the art to include controls for modifying an
amplifier on a control panel. Pet. 38; Ex. 1001 5:50–54. Patent Owner
argues that in Sudo the control panel is keyboard 21, and, thus, it would not
be obvious to combine interface 19 with the keyboard because the system
would not be able to operate in that configuration. PO Resp. 41–42.
Petitioner asserts that the issue is whether interface 19 would be
placed on the APA control panel. Reply 7. We agree with Petitioner. A
person of ordinary skill would have considered putting interface 19 of Sudo
or the RS232 port of Krokstad on the control panel of the admitted prior art
amplifier as an obvious way to group the input controls for the amplifier.
Pet. 38; Reply 6; Ex. 1003 ¶ 56.
Claim 24 recites that the DSP receives and stores at least one of a
signal processing function and a signal processing function parameter for an
equalizing function. Krokstad discloses a DSP in an amplifier that is
programmed to receive and store an equalizing function and parameters. Ex.
1007, 20:1–16. APA also indicates that this function was known to be
provided in an amplifier. Pet. 55; Ex. 1001, 5:52.
Claim 25 recites that the DSP receives and stores at least one of a
signal processing function and a signal processing function parameter for a
compression function. Krokstad discloses a DSP in an amplifier that is
programmed to receive and store a compression function and parameters.
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Ex. 1007, 20:1–16. APA also indicates that this function was known to be
provided in an amplifier. Pet. 55; Ex. 1001, 5:52.
Petitioner also asserts that a person of ordinary skill in the art would
have considered “the placement of a programming signal input port [of the
type shown by Krokstad] on a control panel that included other knobs, etc.,
for the amplifier [as known from the APA] to be an obvious way to
conveniently group the inputs to the amplifier.” Id. at 38–39 (citing Ex.
1003 ¶ 56). Thus, we are persuaded the Petitioner has provided sufficient
rationale to combine Sudo, Krokstad, and APA. Upon review of Petitioner’s
analysis and supporting evidence and Patent Owners analysis and supporting
evidence, we are persuaded that Petitioner has shown by a preponderance of
evidence that claims 7, 24, and 26 would have been obvious over Sudo,
Krokstad, and APA.
F. Claim 8 – Obviousness over Sudo, Krokstad, and TMS320
Petitioner argues that claim 8 is unpatentable under 35 U.S.C.
§ 103(a) over Sudo, Krokstad, and TMS320. Pet. 40–41. TMS320 discloses
non-volatile memories (ROM and EPROM) in a DSP. See Ex. 1008, 6.
Claim 8 recites “a non-volatile storage means for storing a set [sic]
performance characteristics.” TMS320’s disclosure of non-volatile memory
meets this limitation. Pet. 40–41. Patent Owner’s argument regarding this
limitation is based on its proposed narrow interpretation of the claim, which
we did not adopt. PO Resp. 45–48.
“A person of ordinary skill in the art would have considered the use of
a non-volatile [storage means (memory)] in a DSP to have been obvious in
light of the TMS320 Data Sheet as a convenient way to allow the DSP to
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retain stored performance characteristics in the event that power was
removed from the device.” Pet. 40–41 (citing Ex. 1003 ¶¶ 58–59). Thus,
we are persuaded that Petitioner has provided sufficient rationale to combine
Sudo, Krokstad, and TMS320. Upon review of Petitioner’s analysis and
supporting evidence and Patent Owner’s analysis and supporting evidence,
we are persuaded that Petitioner has shown by a preponderance of evidence
that claim 8 would have been obvious over Sudo, Krokstad, and TMS320.
G. Claims 14 and 18 – Obviousness over Sudo, Porambo, and
Krokstad
Petitioner argues that claims 14 and 18 are unpatentable under
35 U.S.C. § 103(a) over Sudo, Porambo, and Krokstad. Pet. 48–51.
Claim 14 recites “the controller comprises a connector for removably
connecting the programmer to the amplifier.” Petitioner asserts that “[a]
person of ordinary skill in the art would have understood that the personal
computer would include a connector that removably connects with the
RS232 port [of Krokstad]” to allow disconnection of the computer. Pet. 48
(citing Ex. 1003 ¶¶ 76–78). Upon review of Petitioner’s analysis and
supporting evidence and Patent Owner’s analysis and supporting evidence,
the preponderance of evidence establishes that claim 14 would have been
obvious over Sudo, Porambo, and Krokstad.
Claim 18 recites that “said amplifier executes operation according to
said at least one of a signal processing function and a signal processing
function parameter after said external programmer is disconnected from said
amplifier.” Petitioner asserts that “[t]he amplifier [of Krokstad] clearly is
designed to operate after the programming computer is removed from the
RS232 port because a hearing aid would not be very useful if the wearer had
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to carry around the personal computer used to program it.” Pet. 50–51.
Based on the evidence presented in this proceeding, we are persuaded by
Petitioner’s argument. Upon review of Petitioner’s analysis and supporting
evidence and Patent Owner’s analysis and supporting evidence, we are
persuaded that Petitioner has shown by a preponderance of evidence that
claim 18 would have been obvious over Sudo, Porambo, and Krokstad.
H. Claims 1–6, 9–13, 15, and 19 – Obviousness over Sudo (Ex.
1005) and Porambo (Ex. 1006)

Petitioner argues that claims 1–6, 9–13, 15, and 19 are unpatentable
under 35 U.S.C. § 103(a) over Sudo and Porambo. Pet. 21–24, 27–28, 30–
36, 41–47, 49, and 51. Porambo teaches connecting the outputs of a DSP in
a DSP-controlled audio system to power amplifier 34 and speaker load
(speakers 16, 18, 20, 22). See Ex. 1006, fig. 1.
Below we discuss independent claim 1 from which all other claims
challenged in this ground depend. Claim 1 recites “external programmer
being removably connectable to the programming signal input port.”
Petitioner asserts that Sudo’s microcomputer 20 “is removably connectable
to the programming signal input port [because one c]ould disconnect the
microcomputer 20 from the interface 19).” Pet. 24 (citing Ex. 1003 ¶ 13).
Petitioner’s declarant, Dr. Ellis, testified that the “fact that the
microcomputer 20 is shown connected to the DSP through the interface 19
suggests that the microcomputer 20 is not hardwired to the DSP but is
connected via some sort of removable connection.” Ex. 1003 ¶ 13.
Nonetheless, Petitioner admitted at oral argument that Sudo does not
describe expressly a removable connection and “that within the four corners
of Sudo and Porambo, those two documents do not, in and of themselves,
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teach removability[.]” Tr. 86:17–25; 113:1–8. Patent Owner argues that
“there is no disclosure in Sudo showing or suggesting that the
microcomputer 20 is removably connectable to the DSP 2.” PO Resp. 22;
Ex. 2001 ¶¶ 36–40, 85–88. Petitioner states that “both Dr. Ellis and Mr.
Cordell agree that Sudo’s high-speed connection could be implemented
using a PCI bus [and a] PCI bus satisfies Sudo’s speed requirement, and is,
by definition, a removable connection.” Reply 3 (citing Ex. 2002, 178:10–
17; Ex. 1012, 93:1–94:19). We find that this PCI solution addressed by the
declarants, but not disclosed in Sudo, although relevant to certain issues
discussed above, does not show the Sudo teaches or suggests a removable
connection. Tr. 86:17–25; 113:1–8. In addition, unlike the arguments
presented regarding the combination of Krokstad and Sudo, in the present
ground relying on Porambo, there is no assertion that Porambo teaches a
removable connection. Thus, we are not persuaded that Petitioner has
shown sufficient evidence that an ordinarily skilled artisan would have
understood Sudo’s connection to be removable, as recited in claim 1.
Upon review of Petitioner’s analysis and supporting evidence and
Patent Owner’s analysis and supporting evidence, we are persuaded that
Petitioner has failed to show by a preponderance of evidence that claim 1
would have been obvious over Sudo and Porambo. Thus, we are persuaded
that Petitioner also has failed to show by a preponderance of evidence that
claims 2–6, 9–13, 15, and 19, which depend ultimately from claim 1, would
have been obvious over Sudo and Porambo. Pet. 27, 28, 30–36, 41–47, 49,
51.
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I. Claims 7, 20, 21, 23, 24, 25, and 26 – Obviousness over
Sudo, Porambo, and APA

Petitioner argues that claims 7, 20, 21, 23, 24, 25, and 26 are
unpatentable under 35 U.S.C. § 103(a) over Sudo, Porambo, and APA. Pet.
37–38, 52–59. Given that we find that claim 1 would not have been obvious
over Sudo and Porambo, we find that Petitioner also has failed to show
unpatentability over Sudo, Porambo, and APA of claims 7, 20, 21, 23, 24,
25, and 26, which depend ultimately from claim 1. Pet. 27, 28, 30–36, 41–
47, 49, 51. We note in this regard that the APA fails to cure the deficiency
in the combination of Sudo and Porambo.
J. Claim 8 – Obviousness over Sudo, Porambo and TMS320
(Ex. 1008)

Petitioner argues that claim 8 is unpatentable under 35 U.S.C.
§ 103(a) over Sudo, Porambo, and TMS320. Pet. 39–40. Given that we find
that claim 1 would not have been obvious over Sudo and Porambo, we find
that Petitioner has also failed to show unpatentability over Sudo, Porambo,
and TMS320 of claim 8, which depends ultimately from claim 1. Pet. 27,
28, 30–36, 41–47, 49, 51. We note in this regard that TMS320 fails to cure
the deficiency in the combination of Sudo and Porambo.
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V. CONCLUSIONS
For the reasons set forth above, we are persuaded that Petitioner has
shown by a preponderance of the evidence that:
1. claims 1–6, 9–13, 15, 19, 21, and 25 are unpatentable under
35 U.S.C. § 103 over Sudo and Krokstad;
2. claims 7, 24, and 26 are unpatentable under 35 U.S.C. § 103 over
Sudo, Krokstad, and APA;
3. claim 8 is unpatentable under 35 U.S.C. § 103 over Sudo,
Krokstad, and TMS320; and
4. claims 14 and 18 are unpatentable under 35 U.S.C. § 103 over
Sudo, Krokstad, and Porambo;

We further conclude that claims 20 and 23 have not been shown to be
unpatentable by a preponderance of the evidence.
VI. ORDER
Accordingly, it is
FURTHER ORDERED that claims 1–15, 18, 19, 21, and 24–26, of
U.S. Patent 5,652,544 have been shown to be unpatentable;
FURTHER ORDERED that claims 20 and 23 of the ’544 patent have
not been shown to be unpatentable; and
FURTHER ORDERED that because this is a Final Written Decision,
parties 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:

Rodney C. Tullett
Chun M. Ng
Kaustav Das
Grant E. Kinsel
PERKINS COIE LLP
RTullett@perkinscoie.com
CNg@perkinscoie.com
KMDas@perkinscoie.com
GKinsel@perkinscoie.com
patentprocurement@perkinscoie.com

FOR PATENT OWNER:

N. Andrew Crain
Robert Gravois
Kenneth Knox
THOMAS | HORSTEMEYER, LLP
andrew.crain@thomashorstemeyer.com
robert.gravois@thomashorstemeyer.com
kenny.knox@thomashorstemeyer.com