UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Charles E. Bullock
`
`Administrative Law Judge
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`
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`
`
`In the Matter of
`CERTAIN NOISE CANCELLING
`HEADPHONES
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`)
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`Investigation No. 337-TA-626
`
`Dr. Marshall Buck
`Direct Witness Statement
`
`
`Question No. 1. Please state your name for the record.
`
`
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`Marshall Buck.
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`Question No. 2. Are you currently employed?
`
`
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`Yes, by Psychotechnology, Inc.
`
`Question No. 3. What does Psychotechnology do?
`
`- Psychotechnology is a company I founded that conducts design,
`development and research into audio equipment and methods,
`including electronics, software, and electro-acoustical
`transducers.
`
`Question No. 4. What is your position at Psychotechnology?
`
`
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`- I am the President and Chief Technical Officer
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`Question No. 5. What duties does that position entail?
`
`
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`- I contract with clients and perform consulting services in the field of
`audio engineering and acoustics. I maintain a state of the art
`
`EXHIBIT RX-137
`
`
`WASHINGTON, D.C.
`
`Before the Honorable Charles E. Bullock
`
`Administrative Law Judge
`
`
`
`
`
`
`
`In the Matter of
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`
`
`
`
`
`
`
`)
`)
`)
`
`Investigation No. 337-TA-626
`
`Dr. Marshall Buck
`Direct Witness Statement
`
`
`Question No. 1. Please state your name for the record.
`
`
`
`Marshall Buck.
`
`Question No. 2. Are you currently employed?
`
`
`
`Yes, by Psychotechnology, Inc.
`
`Question No. 3. What does Psychotechnology do?
`
`- Psychotechnology is a company I founded that conducts design,
`development and research into audio equipment and methods,
`including electronics, software, and electro-acoustical
`transducers.
`
`Question No. 4. What is your position at Psychotechnology?
`
`
`
`- I am the President and Chief Technical Officer
`
`Question No. 5. What duties does that position entail?
`
`
`
`- I contract with clients and perform consulting services in the field of
`audio engineering and acoustics. I maintain a state of the art
`
`EXHIBIT RX-137
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`measurement laboratory for measuring electronic and acoustic
`devices.
`
`Question No. 6. How long have you held your position at Psychotechnology?
`
`
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`- Since 1982, when I incorporated the firm.
`
`Question No. 7. Who are some of the clients of Psychotechnology?
`
`-Psychotechnology has been hired to perform engineering design and/or
`testing services in acoustics for a number of companies including JBL PRO,
`Gibson Labs, American Technology Corp, Epson America, MXL, Telex,
`Wisdom Audio, Line 6, and a prominent South Korean electronics company.
`
`Question No. 8. What sort of services have you provided to those clients?
`
`- I have designed speakers and transducers, designed test systems for
`audio components, analyzed speaker-related design problems,
`designed microphones, conducted computer programming directed to
`acoustic modeling, constructed acoustic models, and otherwise
`engaged in the functions necessary to engineer audio components and
`solve the client’s problems.
`
`Question No. 9. Were you employed before you started Psychotechnology?
`
`-yes, prior to Psychotechnology, I was employed by the University of
`California, and Cerwin-Vega.
`
`Question No. 10. When did you work for Cerwin-Vega?
`
`-1976-1990
`
`Question No. 11. What was your position at Cerwin-Vega?
`
`-I started as a part time consultant to do research on the effects of low
`frequency sound and infrasound, and its application to assist the
`nearly deaf. Over time I took on more and more responsibility,
`assuming the roles of VP Acoustic Engineering and VP of
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`Quality Control. I also wrote much of the collateral material for
`loudspeaker brochures and marketing efforts.
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`Question No. 12. What duties and responsibilities did you have at Cerwin-
`Vega?
`
`-I was responsible for the design, development, and testing of more
`than 150 loudspeaker products. I specified and installed
`acoustic test facilities including anechoic chambers for both
`engineering and production line duties. The product line was
`very broad and included consumer, professional, and
`automotive systems.
`
`Question No. 13. Did you work for Harman International?
`
`-Yes, from 1991-1997.
`
`Question No. 14.
`
` What was your position at Harman?
`
`- Chief Acoustic Engineer of the Harman Advanced Technology
`Group, Chief of Technical Resources for Audio Measurements, and
`VP Engineering for Audio for Computers.
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`Question No. 15. What duties and responsibilities did you have at Harman?
`
`- As Chief Acoustic Engineer in the HAT Group, I was engaged in
`designing active noise and vibration control transducers for
`automotive and aircraft applications. As Chief of Technical
`Resources, I developed loudspeaker measurement facilities and
`processes, including the two automated loudspeaker positioning
`systems used for double blind listening tests. As VP Engineering for
`Audio for Computers I managed a group of 12 engineers and
`technicians that designed a range of PC speaker systems for large
`volume production, including the 20 mm Odyssey driver used by the
`iMac and top of the line Yamaha laptops.
`
`Question No. 16. Did you do any design work of audio drivers at Harman?
`
`- Yes, I was in charge of designing high temperature drivers for use in
`an Active Noise Reduction (ANR) muffler system, as well as
`many drivers for use in computer systems. I also assisted in the
`design and testing of a high power air modulator driver
`designed to deliver 1500 acoustic watts, and which was targeted
`for ANR of locomotive engines.
`
`Question No. 17. Did you have any occasion to work with Active Noise
`Reduction technology in any of your previous work experience?
`
`- Yes, at Harman I was Chief Acoustic Engineer in the HAT Group
`which was engaged in designing active noise and vibration
`control transducers for automotive and aircraft applications.
`
`Question No. 18. Are you the named inventor in any US Patent?
`
`-Yes, there are five patents on which I am a named inventor, all of which
`concern speakers. My first patent is for a coaxial loudspeaker system, US
`4283606 issued 08/11/1981. I also invented a design patent Grille assembly
`for a coaxial loudspeaker, US D278432 from 4/16/85. Next, I invented a
`multiple sound transducer system utilizing an acoustic filter to reduce
`distortion, US 4619342 from 10/28/1986. I also co-invented an emulated
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`guitar loudspeaker, US 4937874, 06/26/1990. Next, I created a Dual Range
`Horn with Acoustic Crossover, US 7,392,880. I also invented a Tunable
`Muffler that is set forth in a patent application Serial No. 60/840,639.
`
`Question No. 19. What is your educational background
`
`- I studied engineering and physics at the California Institute of
`Technology, transferred to UCLA and ultimately received a
`Ph.D. in Psychology in 1972, where I studied perception,
`psychophysics, statistics, human information processing, and
`neuroelectrical substrates of behavior.
`
`Question No. 20. Is your Ph.D. degree in Psychology related to acoustics?
`
`-Yes, my Ph.D. degree concerns the way humans perceive sound,
`sound processing by the brain, the chemical and mechanical
`processes of turning physical pressure waves (sound) into
`electrochemical signals in the brain.
`
`Question No. 21. Do you have any other experience in the area of acoustics?
`
`- Yes, I have been actively involved in the Audio Engineering
`Society since 1972 and was its President in 1990-1991. My efforts
`included contributing to standards being developed in loudspeaker
`test and specification, as well as chairing the Executive Committee
`and the Board of Governors. I also wrote and presented a variety of
`technical papers, and chaired a convention.
`
`- During my thirty plus years as a professional audio engineer, I
`have studied a large number of relevant topics using books and
`technical papers. I have developed acoustic test methods and built
`custom equipment to assist in the accurate characterization of
`electroacoustic transducers of all types.
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`Question No. 22. Do you belong to any professional organizations
`
`-Yes, the Audio Engineering Society, the Acoustical Society of
`America, the Society of Automotive Engineers, and the
`Institute of Electrical and Electronic Engineers.
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`
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`Question No. 23. Outside of this matter, have you ever been hired as an expert
`witness before?
`
`-No
`
`Question No. 24. Who hired you in this case?
`
`-Jackie Green of Audio-Technica US was looking for an acoustical
`engineer as an expert in this case, and Jackie hired me at the
`recommendation of Richard Small.
`
`Question No. 25. What were you asked to do in this matter?
`
`-I was asked to analyze the Bose patents at issue in this case, review
`and test the Audio-Technica ATH-ANC7 headphones, review
`and test prior art headphones, find relevant prior art, to form an
`opinion on whether Bose’s patents were valid, and to consider
`and determine whether the ATH-ANC7 had the elements
`claimed in Bose’s patents in this case.
`
`Question No. 26. Did you prepare an expert report in this case?
`
`-I prepared 3 reports: an opening expert report, a rebuttal report, and a
`supplemental report
`
`Question No. 27. Showing you what has been marked as Exhibit RX-146, can
`you identify this document?
`
`-That is my initial expert report dated May 28, 2008, and my signature
`appears on page 26.
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`Question No. 28. Turning your attention to Pages 29-32, titled “Appendix 2”
`of your initial expert report dated May 28, 2008, which Appendix is marked
`separately as Exhibit RDX-37C. What is this Appendix 2?
`
`-This is a list of the references and materials I considered in forming
`my opinions in this case.
`
`Question No. 29. Did you prepare this list?
`
`
`
`
`-Yes
`
`Question No. 30. What types of references and materials did you consider in
`forming your opinions in this case?
`
`-I had a number of different resources to consider as part of my
`analysis. I was given a number of older Audio-Technica
`headphones from as far back as 20 years ago. I also considered
`various patents and other publications relating to headphones
`and ANR, including old Bose patents and the patents at issue in
`this case. I also considered a number of texts and publications
`about headphones, testing methods for transducers, and related
`materials as shown in Appendix 2 to my Initial Expert Report.
`
`Question No. 31. If you would turn your attention to Appendix 3 of your initial
`expert report, which is marked separately as Exhibit RDX-37C, pages 33-37.
`What is this document?
`
`-This is my Curriculum Vitae, showing a summary of my experience,
`skills, publications, and patents of which I am a listed inventor.
`
`Question No. 32. Does Appendix 3 (Exhibit RDX-37C) accurately reflect your
`experience, skills, publications, and patents of which you are a listed
`inventor?
`
`-Yes, with one update: The Dual Range Horn patent has now issued as
`US 7,393,880
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`Question No. 33. Showing you what has been marked as Exhibit RX-150, can
`you identify this document?
`
`-That is my rebuttal expert report dated May 28, 2008, and my signature
`appears on page 23.
`
`Question No. 34. Showing you what has been marked as Exhibit RX-147C,
`can you identify this document?
`
`-That is my supplemental expert report, where I analyzed additional prior art
`ANR headphones from ANVT called the NQ100. I had searched for such
`headphones throughout my engagement by Audio-Technica but could not
`find any such headphones until I was finally able to get a physical ANVT
`NQ100 on June 2, 2008. My signature appears on page 9 of my
`supplemental report.
`
`Question No. 35. With regard to your three reports, Exhibits RX-146, RX-150,
`and RX-147C, did you author these reports?
`
`-Yes
`
`Question No. 36. Do the three reports, Exhibits RX-146, RX-150, and RX-
`147C accurately reflect your tests, results, and opinions in this case?
`
`-Yes
`
`Question No. 37. Generally speaking, what are the contents of your expert
`reports?
`
`-My reports contain my analysis of prior art headphones from Audio-
`Technica and ANVT headphones, analysis of prior art literature,
`testing methods I used to test prior art headphones, results of my tests,
`analysis and tests of the accused ATH-ANC7 headphone, and my
`conclusions relating to Bose’s patents here in light of my analysis.
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`Question No. 38. As part of forming an opinion in this case, did you examine
`any physical headphones?
`
`-Yes, I examined a number of prior art and current models. I
`reviewed the ATH-908, ATH-909, ATH-910, ATH-910 PRO, ATH-
`911, AP1300, AP1400, ATH-ANC7, the ANVT NQ100 and Bose’s
`QC2. I performed testing on many of these headphones.
`
`Question No. 39. Are you familiar with the Bose patents at issue in this
`matter?
`
`-Yes
`
`Question No. 40. I would first direct your attention to the 6,597,792 patent
`(Exhibit JX-2), which I will refer to as the “‘792 patent.” Have you read this
`patent?
`
`-Yes
`
`Question No. 41. What is your understanding of which claims are at issue in
`this matter in the ‘792 patent.
`
`-Based upon the Notice of Investigation I read, I understand that
`
`Claim 1 and Claim 2 have been asserted by Bose in this matter.
`
`Question No. 42. Let’s start with Claim 1 of the ‘792 patent. As a general
`matter, in your opinion, what subject is Claim 1 of the ‘792 patent directed
`to?
`
`-Claim 1 relates to a headphone with a cushion that has certain physical
`characteristics.
`
`Question No. 43. As part of your analysis for this case, did you form any
`opinion about Claim 1 from the ‘792 patent?
`
`-Yes, I concluded that prior art headphones sold by Audio-Technica at
`least as early as 1988 had all the elements claimed in Claim 1 of
`the ‘792 patent. It is my understanding that Claim 1 of the ‘792
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`patent is invalid because prior art headphones having all the
`elements of Claim 1 were offered for sale more than 1 year
`before the application that resulted in the ’792 patent was filed.
`
`Question No. 44. How did you go about forming your opinion regarding Claim
`1 of the ‘792 patent?
`
`-I reviewed the ‘792 patent, reviewed the prior art, and designed and
`conducted various tests on headphones to form my opinion.
`
`Question No. 45. I would direct your attention to Exhibit JX-2 (the ‘792
`patent). What does Claim 1 of the ‘792 patent require?
`
`-Claim 1 requires: A headset comprising, an earcup having a front
`opening adapted to be adjacent to the ear of the user, a driver
`inside said earcup, a cushion around the periphery of said front
`opening formed with an ear opening constructed and arranged
`to accommodate the ear of a user and formed with a plurality of
`openings around said opening constructed and arranged to
`acoustically add the volume of said cushion to the volume of
`said earcup and enhance passive attenuation.
`
`Question No. 46. What testing and examination did you do of the prior art
`Audio-Technica headphones?
`
`-I examined various physical Audio-Technica prior art
`headphones that had been provided to me by counsel, who also
`informed me of the dates these headphones had been offered for
`sale. I looked at the basic construction of the headphones and
`the cushions on the headphones to compare the features of the
`prior art headphones with the claims of the ‘792 patent.
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`Question No. 47. What specific prior art Audio-Technica headphones did you
`determine were relevant to Claim 1 of the ‘792 patent?
`
`-After a review of all the headphones Audio-Technica gave me, I
`concluded that the ATH-908 (Exhibit RPX-8), ATH-909 (Exhibit
`RPX-9), ATH-910 (Exhibit RPX-10), and ATH-911 (Exhibit RPX-
`10
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`12) were most relevant to the ‘792 patent. Photographs of the various
`Audio-Technica physical headphones and their cushions are shown
`below:
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`ATH-908 (Exhibit RPX-8)
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`On Sale in US 1990
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`ATH-909 (Exhibit RPX-9)
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`On Sale in US 1988
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`ATH-910 (Exhibit RPX-10)
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`On Sale in US 1988
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`ATH-911 (Exhibit RPX-12)
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`On Sale in US 1988
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`Question No. 48. How did you determine that the headphones you just
`referenced were most relevant to the ‘792 patent?
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`-A visual inspection of the ATH-908 (Exhibit RPX-8), ATH-909
`(Exhibit RPX-9), ATH-910 (Exhibit RPX-10), and ATH-911
`(Exhibit RPX-12C), indicated that these headphones appeared
`to have all the elements described in Claim 1 of the ‘792 patent.
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`Question No. 49. Did you perform any testing or analysis of the headphones
`you mentioned (ATH-908 (Exhibit RPX-8), ATH-909 (Exhibit RPX-9),
`ATH-910 (Exhibit RPX-10), and ATH-911 (Exhibit RPX-12C), to
`determine whether these headphones met all the elements of Claim 1 of the
`‘792 patent?
`
`-Yes, I conducted testing directed to determining whether the cushions on
`those headphones acoustically added the volume of the cushion to the
`volume of the earcup to enhance passive attenuation as Claim 1
`discusses.
`
`Question No. 50. Before we get into the specific tests you conducted, I would
`direct your attention to the ATH-910 (Exhibit RPX-10), and I am going to
`ask you to visually point out where each element from the ‘792 patent
`appears in the ATH-910 headphone. First, in your opinion, is the ATH-910
`a “headset” as contemplated by Claim 1of the ‘792 patent?
`
`
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`-Yes, the ATH-910 is obviously a set of headphones, which is what
`claim 1 of the ‘792 patent appears directed to when it speaks of a
`“headset.” Visual examination of the ATH-910 (Exhibit RPX-10)
`confirms that the ATH-910 is a set of headphones, as shown below:
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`Headset
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`Photograph of ATH-910 (Exhibit RPX-10)
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`Question No. 51. Claim 1 references a “driver inside said earcup,” so let me
`first ask you what is a driver?
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`-A “driver” is a transducer that converts electrical signals into sound, a
`necessary part of any headphone.
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`Question No. 52. Does the ATH-910 (Exhibit RPX-10) have a driver inside an
`earcup?
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`Yes, the ATH-910 has a driver inside an earcup. I have identified the
`driver in the earcup of ATH-910 in the photograph from the ATH-910
`below:
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`earcup
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`driver
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`Photograph of ATH-910 (Exhibit RPX-10)
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`Question No. 53. Claim 1 next speaks of “an earcup having a front opening
`adapted to be adjacent to the ear of the user.” Are these elements present in
`the ATH-910 (Exhibit RPX-10), and if so please identify those elements.
`
`-The ATH-910 also has an earcup with a front opening that is adjacent to the
`ear of a user. I have identified these elements in the photograph of the
`ATH-910 below:
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`earcup
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`Ear
`opening
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`Front
`Opening
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`cushion
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`Photograph of ATH-910 (Exhibit RPX-10)
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`Question No. 54. Moving to the next element in Claim 1, could you please
`point out on the ATH-910 (RPX-10) the presence or absence of “a cushion
`around the periphery of said front opening formed with an ear opening
`constructed and arranged to accommodate the ear of a user and formed with
`a plurality of openings around said opening”?
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`-Yes, the ATH-910 (RPX-10) also has such a cushion which is shown in the
`photograph of the ATH-910 below:
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` cushion
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`ear opening
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`plurality of openings
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`Photograph of ATH-910 (Exhibit RPX-10)
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`Question No. 55. We discussed in some detail the Audio-Technica ATH-910
`(Exhibit RPX-10) and whether it contained certain elements in Claim 1 of
`the ‘792 patent. Did you visually examine any other Audio-Technica prior
`art headphones to determine whether they had the same elements of the
`ATH-910?
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`-Yes, I also examined the ATH908, 909, 910PRO, and 911.
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`Question No. 56. Did you form an opinion as to whether the ATH-908 (Exhibit
`RPX-8), ATH-909 (Exhibit RPX-9), ATH-910 PRO (Exhibit RPX-4C), or
`ATH-911 (Exhibit RPX-12C) products had the elements referenced in Claim
`1 of the ‘792 patent?
`
`-Yes, I concluded that all the units you referenced, the ATH-908,
`ATH-909, ATH-910PRO, and ATH-911, had the same features I
`discussed in connection with Claim 1 of the ‘792 patent.
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`Question No. 57. Which features of Claim 1 of the ‘792 patent did you identify
`in the ATH-908 (Exhibit RPX-8), ATH-909 (Exhibit RPX-9), ATH-
`910PRO (RPX-4C) and ATH-911 (Exhibit RPX-12C) products?
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`-All of these headphones have the same features found in the ATH-
`910 including the earcup having a front opening adapted to be
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`adjacent to the ear of the user, a driver inside said earcup, a cushion
`around the periphery of said front opening formed with an ear opening
`constructed and arranged to accommodate the ear of a user and
`formed with a plurality of openings.
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`Question No. 58. Were there any differences between the ATH910 (Exhibit
`RPX-10) and the other units you just referenced?
`
`-Yes, there were some differences. The headphones were all very
`similar with similar drivers, earcups, etc., but there were differences in
`the patterns and sizes of openings used in the cushions of the various
`headphones. The differences in the openings are shown in
`photographs below:
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`ATH-909 Cushion
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`ATH-911 Cushion
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`ATH-908 Cushion
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`ATH-910PRO
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`(RPX-9)
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`(RPX-12C)
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`(RPX-8)
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`(RPX-4C)
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`Question No. 59. I would direct your attention to the final element of Claim 1
`of the ‘792 patent, namely whether the “plurality of openings” in the
`cushions of the headphones acoustically added the volume of the cushion to
`the volume of the earcup and enhanced passive attenuation. Before I ask for
`your opinion, what does it mean to acoustically add the volume of a cushion
`to a volume of an earcup?
`
`-A cushion takes up a certain physical volume based upon its physical
`geometry. Acoustically adding the volume of the cushion to the
`volume of the earcup means that the interior volume of the cushion is
`acoustically added to the volume of the earcup so that the earcup
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`volume appears larger to the driver of the headphone. This would not
`be the case if the cushion were made of a hard substance, such as
`closed cell foam.
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`Question No. 60. Did you conclude that the cushions of Audio-Technica prior
`art headphones acoustically added the volume of the cushion to the volume
`of the earcup?
`
`-Yes, I did conclude that all but one of the cushions of Audio-
`Technica prior art headphones with a plurality of openings in the
`cushion (including the ATH-910) acoustically added all the volume of
`the cushion to the volume of the earcup and enhanced passive
`attenuation.
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`Question No. 61. How did you come to that conclusion?
`
`-I performed tests specifically designed to ascertain whether these
`features were present in the cushions of the headphones.
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`Question No. 62. What tests did you perform to determine whether prior art
`cushions had the features of acoustically adding the volume of the cushion to
`the volume of the earcup?
`
` - I followed the techniques described in “Testing Loudspeakers” by
`Joe D’Appolito to make these measurements.
`
`-I started with an empty container with a volume of 900 cubic
`centimeters. I then took a driver from the ANC-7 product and
`removed some damping elements in order to give my tests better
`resolution. The driver was sealed into a baffle and the baffle sealed
`with grease to the face of the container. Next, I followed the “Testing
`Loudspeakers” procedure and made measurements of the resonant
`frequency and the damping characteristics of the container. This gave
`me a baseline measurement of the compliance of the sealed container,
`which I could then compare to the container with each cushion placed
`inside.
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`-I then added the cushions one at a time to my test container, resealed
`the driver, and again performed the “Testing Loudspeakers”
`procedure to measure the resonant frequency and dampening
`characteristics of the container with the cushion added. I wanted to see
`if the cushions would add their compliance to the interior volume of
`the container, or whether they would reduce the effective volume of
`the container.
`
`-An initial test was made of the volume of the ATH-910 cushion in
`my Opening Expert Report, showing that the cushions did add
`compliance to the container. I was able to subsequently improve the
`test setup by adding a pressure equalizing capillary tube that equalized
`pressure in the sealed container that arose when I sealed the driver to
`the container. I also repeated each test ten times and used the average
`of each of the parameters measured. Using the improved test, I tested
`six prior art cushions and the ATH-ANC-7 cushion.
`
`Question No. 63. What were the results from your compliance testing of the
`cushions from the Audio-Technica prior art headphones ATH-908 (Exhibit
`RPX-8), ATH-909 (Exhibit RPX-9), ATH-910 (Exhibit RPX-10), ATH-
`910PRO (Exhibit RPX-4C), ATH-911 (Exhibit RPX-12C), and others?
`
`-My tests indicated that all except one of the cushions did add the
`volume of the cushion to the volume of the earcup. In fact, all but the
`ATH-909 added more than their volume to the volume of the earcup.
`
`Question No. 64. Did your testing generate specific data that back up your
`conclusions about prior art cushions and adding the volume of the cushion to
`the volume of the earcup and enhancing passive attenuation?
`
`-Yes, the data generated by my tests is summarized in Exhibit RDX-52C,
`shown below:
`
`
`
`
`
`
`
`18
`
`
`
`
`
`
`
`Cushion
`Model
`
`Prior
`Art
`
`Description
`
`Volume
`Increase
`(ratio)
`
`Effective
`new volume
`cc
`
`1.020
`
`1.051
`
`918
`
`946
`
`0.996
`
`865
`
`1.017
`
`915
`
`1.034
`
`931
`
`1.021
`
`919
`
`911
`
`ATH-910
`
`ATH-911
`
`ATH-909
`
`Y
`
`Y
`
`Y
`
`ATH-908
`
`Y
`
`ATH--610
`
`Y
`
`ATH-910 Pro Y
`
`Large, many small
`interior perf holes
`
`Large, cloth face,
`mesh interior
`
`Fuzzy cloth cover,
`interior has many
`small holes
`
`Mesh cloth cover,
`interior has many
`small perf holes in
`plastic film.
`
`Leatherette cover,
`interior has 8 small
`3mm diam holes
`
`Large, numerous
`interior holes, soft
`white foam
`
`ANC-7
`
`N
`
`Small, mesh interior 1.012
`
`
`
`Question No. 65. Could you please explain what the table you created in
`Exhibit RDX-52C shows?
`
`-For each of the cushions on the Audio-Technica headphones
`(identified in the left most column), I first noted whether the cushion
`was on a unit offered for sale more than a year before the ‘792 patent
`
`
`
`
`
`
`
`19
`
`
`
`
`
`was filed. All of the cushions listed were “prior art” in this sense
`except the ANC-7, which is the accused product at issue here.
`
`-The third column is my written description of the physical
`appearance of the cushions.
`
`-the fourth column shows that when the cushion was added to my test
`setup, how much the cushion increased the compliance of the cavity I
`was measuring.
`
`-The last column (on the far right) shows a measure of how large the new
`cavity with the cushion now appeared to the driver, where the reference
`without the cushion was 900cc (the volume of the container before I added
`the cushion to it).
`
`-As I indicated, all but one prior art cushion added overall compliance, such
`that the cavity appeared larger to the driver than without the cushion present.
`The one prior art cushion that did not add overall compliance to the system
`(the ATH-909) still added most of its volume as compliance to the system.
`
`Question No. 66. You mentioned earlier that you determined that the prior art
`Audio-Technica cushions you tested also enhanced passive attenuation.
`What is the basis for this conclusion?
`
`-First, I read the patent itself, which states that if the underlying foam
`material in a cushion is exposed “the effective volume of the earcup is
`significantly increased to embrace the volume occupied by cushion 15
`and thereby increase passive attenuation and provides additional
`damping to help smooth the audio response at the ear and control
`stability with the headset off the head.” (Exhibit JX-2 at column 3
`lines 20-26).
`
`-As one who knows transducer design, I understand the quote from Bose’s
`patents to mean that exposing the underlying foam in a headphone cushion
`will “increase passive attenuation and provides additional damping to help
`smooth the audio response at the ear.” Because the ATH-910 cushion has
`considerable surface area of foam exposed to the inside cavity of the
`headphone, the exposure of such open cell foam will have the effects of
`
`
`
`
`
`
`
`20
`
`
`
`
`
`increasing passive attenuation and providing additional damping in a
`headphone according to the teachings of the Bose patent.
`
`Question No. 67. Are there any other reasons for your conclusion that the prior
`art Audio-Technica cushions you tested also enhanced passive attenuation?
`
`- Open cell foam materials used in cushion design are known in acoustics
`to absorb sound, which is a way of enhancing passive attenuation.
`
`-Also, the foam inside the ATH-910 cushion is an open-cell foam of a
`type that has a density and acoustic flow resistance that
`enhances attenuation and absorption, which does increase
`passive attenuation.
`
`Question No. 68. Are there particular prior art references that show open cell
`foam that can be used for cushions that enhance passive attenuation?
`
`-Yes, there is a Bose patent that shows open cell foam used as cushions that
`enhances passive attenuation.
`
`Question No. 69. I am going to show you what has previously been marked as
`Exhibit JX-14. Do you recognize this exhibit?
`
`-Yes, this is the patent from Bose I just mentioned (4,455,675). It
`describes the known properties of open cell foam material which is
`used in cushions:
`
`--“a typical material for headphone cushion 15 is a slow recovery
`open cell polyurethane foam.” (Col.3:4-5)
`
`--“Open cell high flow resistance material offers the mechanical
`advantages … while providing the acoustical advantages of
`closed cell material in significantly attenuating spectral
`components above a predetermined frequency.” (Col.3:10-15)
`
`
`
`
`
`
`
`21
`
`
`
`
`
`Question No. 70. I would now direct your attention to Claim 2 of Bose’s ‘792
`patent (Exhibit JX-2). As a general matter, what subject is Claim 2 of the
`‘792 patent directed to in your opinion?
`
`-Claim 2 relates to a headphone cushion described in Claim 1,
`combined with various known components of active noise reduction
`technology.
`
`Question No. 71. What is the language used by Claim 2 of the ‘792 patent?
`
`-Claim 2 of the ‘792 patent provides: A headset in accordance with
`claim 1 and further comprising, a microphone inside said earcup
`adjacent to said driver, and active noise reducing circuitry
`intercoupling said microphone and said driver constructed and
`arranged to provide active noise reduction, whereby said cushion with
`said plurality of openings is further constructed and arranged to
`furnish additional damping to help smooth the audio response at the
`ear of a user and control stability with the headset off the head.
`
`Question No. 72. As part of your analysis for this case, did you form any
`opinion about the elements of Claim 2 from the ‘792 patent?
`
`-Yes, I conclude that prior art ANR headphones sold by ANVT in
`1994 (the NQ100) had all the elements claimed in Claim 2 of the ‘792
`patent more than a year before Bose filed the application for the ‘792
`patent.
`
`- I also conclude that it would be obvious for one skilled in the art to
`combine the prior art cushions from Audio-Technica’s ATH-910, 908,
`909, and 911 models that I discussed in connection with Claim 1 with
`the other elements of ANR that were known in the art at the time the
`application was filed.
`
`
`
`
`
`
`
`22
`
`
`
`
`
`Question No. 73. With regard to the first part of your opinion where you
`identified the ANVT NQ100, what is the ANVT NQ100?
`
`-The ANVT is an ANR headphone from a company called Active
`Noise and Vibration Technologies (ANVT) that was sold back in
`1994.
`
`Question No. 74. Directing your attention to Exhibit RPX-1, what is this
`exhibit?
`
`-Exhibit RPX-1 is the physical ANVT NQ100 noise cancelling headphone.
`
`Question No. 75. You mentioned that the ANVT NQ100 was from 1994. How
`do you know this?
`
`-I worked at Harman International in 1994 and we purchased some
`ANVT NQ100 units at an auction. I attended the auction and was
`present when the units were purchased for Harman in 1994.
`
`Question No. 76. I am going to show you what is marked as Exhibit RX-41.
`Do you recognize this exhibit?
`
`-Yes, this is documentation from the auction where we bought the
`ANVT NQ100 on behalf of Harman back in 1994.
`
`Question No. 77. Where did you obtain Exhibit RX-41?
`
`-I had been trying to locate prior art ANR headphones throughout my
`retention by Audio-Technica in this case. On June 2, 2008, I was
`finally able to obtain the NQ100 headphones from a former colleague
`of mine at Harman who had kept the units. My former colleague also
`gave me his files from Harman that contained the documents in
`Exhibit RX-41.
`
`
`
`
`
`
`
`23
`
`
`
`
`
`Question No. 78. Do you know when the auction took place?
`
`-Page AT0133718 of Exhibit RX-41 indicates the auction was held on
`September 27, 1994.
`
`Question No. 79. Did you attend the September 27, 1994 auction?
`
`-Yes, I was there when the ANVT NQ100 units were purchased for
`Harman.
`
`Question No. 80. You mentioned that you reviewed the ANVT NQ100 as part
`of forming an opinion in this case. What analysis did you do of the NQ-100
`(Exhibit RPX-1)?
`
`-I examined the NQ100 to find out if it had the physical attributes
`referenced in Claim 2 of the ‘792 patent, then I performed some tests
`on the cushions of the NQ100 patent to determine if the cushions to
`had
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