Infringement via Multiple Product Lines

by Dennis Crouch

Vocalife LLC v., Inc. (Fed. Cir. 2022) (non-precedential)

Vocalife’s patent covers an enhanced microphone system that identifies the location of a target sound source and then uses beamforming to improve sound collection from the target. U.S. Patent No. RE 47,049. The method for locating the sound requires an array of microphones that record relative timing of receiving sounds. The delay is then used to calculate the location and then direct the beamforming operations.

A key element of the claims is thus the requirement of “determining a delay between each of said sound sensors . . . wherein said determination of said delay enables beamforming for said array of sound sensors in a plurality of configurations.” RE47,049, Claim 1.

A jury sided with Vocalife–finding that Amazon induced its customers to infringe through their use of the Echo product and award $5 million in damages.  Judge Gilstrap upheld the verdict–denying Amazon’s renewed motion for Judgement as a Matter of Law (JMOL).  On appeal however, the Federal Circuit has reversed finding that the evidence didn’t prove these key limitations.

Amazon states in its documentation that its echo devices include multiple microphones that enable beamforming.  The problem though is that each echo device has a particular physical arrangement and thus does not meet the requirement that the system works “in a plurality of configurations.”  As explained by Judge Gilstrap: “Amazon argues that, even if the Accused Products determine a delay in the manner Vocalife contends, such is done for a single geometric layout of microphones and not for a plurality of layouts.”  But at trial, Amazon’s own witness explained that the microphone configuration “varies from product-to-product. Anywhere from two to eight microphones are in our products today.”  Vocalife’s expert then testified that the code is designed in a way that it is operable across the various Echo devices–i.e., it works “in a plurality of configurations” as required by the claims.  The same code operates regardless of the configuration.  So, we have a basic  claim construction issue as to whether a single device needs to be capable of working in a plurality of configurations.  Amazon argues that this is answered by claims themselves that state that the approach enables “the said array of sound sensors in a plurality of configurations.”  On the other hand, the patent itself discloses embodiments that appear to use fixed relative sensor locations – as in the microphone array shown below.

Amazon did not appeal the jury verdict directly, but rather the district court’s refusal to grant JMOL whose standard asks whether there was sufficient evidence presented at trial such that a reasonable jury could have ruled in the same way that the actual jury ruled. The jury must be given a strong benefit-of-the-doubt and the courts must take care to avoid “re-examining” any fact tried by the jury since that is prohibited by the U.S. Constitution Seventh Amendment.  The typical approach then looks to the elements that the winning party had to prove in order to win its case and consider whether any elements suffers from a complete absence of evidence. Here though there was some evidence supporting the jury verdict — in that setup, the district court should only grant JMOL when “the facts and inferences point so strongly and overwhelmingly in favor of one party that the court concludes that reasonable jurors could not arrive at a contrary verdict.” Orion IP, LLC v. Hyundai Motor Am., 605 F.3d 967 (Fed. Cir. 2010) (applying Fifth Circuit law).

In its short decision, the Federal Circuit implicitly determined the claim construction question (even though claim construction was not appealed) and determined that  Amazon’s selling of multiple products would not induce infringement. Rather, the court found that infringement evidence must show that “a given Echo device” must enable beamforming “in a plurality of configurations.”  Perhaps the next reissue will be able to fix the claims once again.

= = =

Intervening Rights and Method Claims: As noted above, the patent at issue here is a reissue patent. Reissue involves surrendering the original patent and then going through a new prosecution process that, in this case, involved several amendments to the claims.  The district court found that some of the patentee’s back-claims from prior to the reissue were barred by the doctrine of absolute intervening rights defined by 35 U.S.C. § 252.

[A]ny person . . . who, prior to the grant of a reissue, made, purchased, offered to sell, or used within the United States, or imported into the United States, anything patented by the reissued patent, to continue the use of, to offer to sell, or to sell to others to be used, offered for sale, or sold, the specific thing so made, purchased, offered for sale, used, or imported unless the making, using, offering for sale, or selling of such apply to certain Echo products.

35 U.S.C. 252.  In a cross appeal, the patentee argued that the this provision should not apply in its case because the claims are directed toward a method rather than a product.  “Absolute intervening rights apply only to patented products made, used, or
sold before the issuance of the reissue, and not to processes or methods.” Patentee brief.

The Federal Circuit has not particularly addressed this question of how the intervening rights apply to method or process claims.  On appeal here, the Federal Circuit refused to engage. Its finding of non-infringement rendered the issue moot.


18 thoughts on “Infringement via Multiple Product Lines

  1. 4

    . . . and yet again the CAFC reaches into it’s bag o’ tricks . . . to find for the Big Tech infringer.

    Who says magic isn’t real.

    1. 4.1

      Isn’t the fact they took my BUMPER FENDERS name, giving it TO STUART LEMKE, hiding the DP in their conspiracy deal 08,545,544 Prima Fascie evidence. SO…. now everything they broke in here, everyone they switched documents to conform to their story proof of my charges. I swear my case was on PACER. It went puff, my account went dark.
      I tried to get the attention of the lawyer before he was hired. HIS secretary told me it was already decided…I never had a chance until they forgot to remove the page with the name of my Patent on it.
      If it hadn’t have taken almost 22 years it would be funny. I’m not laughing and neither will all of them. I hope Garland gets the Bumper Fender page.

    2. 4.3

      I concur with Pro Say’s opinion. I guess us muggles can never compete with the magical thinking and analysis of the CAFC which is a natural result of the justices of the CAFC not having a science or technological education as required for patent examiners.

  2. 3

    BTW, “determining a delay between each of said sound sensors . . . wherein said determination of said delay enables beamforming for said array of sound sensors” is how your two ears and your brain determine the general direction a sound is coming from.

    1. 3.1

      “A plot of the response of the microphone array versus frequency and direction of arrival of the sound signals is referred to as a directivity pattern of the microphone array.”

      “The adaptive beamforming unit performs adaptive beamforming 104 by steering the directivity pattern of the microphone array in a direction of the spatial location of the target sound signal, thereby enhancing the target sound signal, and partially suppressing the ambient noise signals. Beamforming refers to a signal processing technique used in the microphone array for directional signal reception, that is, spatial filtering. This spatial filtering is achieved by using adaptive or fixed methods. Spatial filtering refers to separating two signals with overlapping frequency content that originate from different spatial locations.”

      If it’s like beamforming for antennas, you don’t actually move the microphones (or antennas). Instead, you electronically adjust the signals to/from the microphones to create the “beamforming”.

      I don’t think our brains are doing this.

      1. 3.1.1

        Yes, not in the same way, and I was not suggesting your brain as prior art. But here’s an interesting test: you are walking along a trail in the CA foothills listening for bird sounds and you suddenly hear the rattle of a western diamondback. Guess which way your head will suddenly beam toward that sound and ignore the bird sounds?



            What is so weird –borderline psychotic–is the way the anti-patent people say things like it is something our brain does. As if building a machine that does something our brain does somehow invalidates the invention. Just f’ing weird. I think it comes from the stunning ignorance where they think that if the human brain can do it that somehow that makes it easy to do on a computer. You just tell what you want done to a b*tch clerk and they type in the instructions. J. Stevens.


              What is so weird… is the way the anti-patent people say things like it is something our brain does. As if building a machine that does something our brain does somehow invalidates the invention.

              Well, wait a minute. If you invent a machine that does exactly what our brains do, I agree that this should be patentable. You do need, however, to claim the machine in that instance.

              This case involved a method claim. If you claim a method and that method is exactly what a human brain already does, then—even under a sane application of the law—you are setting yourself up for an anticipation problem. I realize that the eligibility issues that would be thrown at you in such a circumstance are kind of whacky, but a method claim that merely claims the same method steps that human brains have been doing for centuries really ought not to be patentable, for simple 102 reasons (public use for more than one year before filing).


                Did you 1g n0re BobM’s post pointing out the distinction (which would also bear on the method claims)…?


                The computer method seldom does what the human brain is doing in the same way Greg.

                The functional steps may be the same but the how is seldom the same.

    2. 3.2

      And by the way they were so quick to hide the counterfeit patent search, the one I was sent,, it was really dated August 26, 1995, a Saturday. After all that switching of counterfeit documents they still have hung themselves out to dry

  3. 2

    “determining a delay between each of said sound sensors . . . wherein said determination of said delay enables beamforming for said array of sound sensors in a plurality of configurations.”

    I haven’t really looked at his beyond the claim language, but this seems to me to be vacuously true. Whatever configuration you have of “sound sensors” I could almost certainly modify the configuration and use the same “determination” to “enable[] beamforming.”

    1. 2.1

      Hi Night, I do not think that you are correct. For example, you can do beamforming for a straight array of equidistant microphone using a single delay value (the same delay between each adjacent microphone). That is not generally true: suppose a microphone is omitted in this configuration, you would need to double the delay between the microphones on both sides of the missing microphone. So the delays determined in one configuration are not generally applicable to any other configuration. Here I think the inventors have derived an algorithm that computes delays (a delay for each microphone) that does not presuppose a particular configuration of the array, that is, the positions of the microphones is not fed to the algorithm.

      Such an algorithm would even work if the microphones are slowly moving relative to one another, but that does not seem to be required in the claim.

      I agree that the CAFC interpretation of the claim limitation seems divorced from the examples in the application. If claim interpretation was before the district court and the CAFC is using the decided interpretation, I do not see a problem with this ruling. However, deciding an interpretation de novo when the interpretation conflicts with the jury finding of infringement does not seem to give enough deference to the jury.

      1. 2.1.1

        Hi PiKa,

        But all it says is a “plurality of configurations”. So two configurations. So in your example could I add one extra microphone and it still works? What about moving the microphones a bit closer to one another?

      2. 2.1.2

        Or could I just add one more microphone with N being the number of microphones?

        I think my challenge to you and the CAFC is give me a method for the “determination” and the configuration and I can figure out one other configuration where the method for the “determination” would work.

        My guess is this is just more foul judicial activism from the CAFC.

  4. 1

    “a plurality of configurations”

    I quickly skimmed through the prosecution history, and interesting to note that the last amendment deleted the word “arbitrary” as the phrase had been “a plurality of arbitrary configurations”.

Comments are closed.