ClearOne, Inc. v Shure Acquisition Holdings, Inc - [2021] APO 50

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
ClearOne, Inc. v Shure Acquisition Holdings, Inc. [2021] APO 50
Patent Application: 2016254056

Title:Array microphone system and method of assembling the same

Patent Applicant: Shure Acquisition Holdings, Inc.

Opponent:ClearOne, Inc.

Delegate:R Subbarayan

Decision Date: 06 December 2021

Hearing Date: Written submissions filed on 8 May 2021

Catchwords: PATENTS – opposition to grant of patent – heard by written submissions – applicant chose not to file written submissions – whether claims are novel – whether claims are inventive – mosaic of documents – whether claims are clear – none of the grounds raised by the opponent made out – claims are clear, novel and inventive – new ground of lack of support brought in under Section 60(3) of the Act – claim 13 lacks support – opportunity to amend – no costs awarded

Representation: Patent attorney for the applicant: Michael Buck IP
Patent attorney for the opponent: Spruson & Ferguson

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE

Patent Application: 2016254056

Title:Array microphone system and method of assembling the same

Patent Applicant: Shure Acquisition Holdings, Inc.
Date of Decision: 06 December 2021
DECISION

None of the grounds relied upon by the Opponent have been made out. However, I find that claim 13 lacks support.
I allow the Applicant a period of two (2) months from the date of this decision to propose amendments that would overcome my adverse findings in relation to lack of support.
I make no award of costs.
REASONS FOR DECISION
BACKGROUND

Patent application 2016254056 in the name of Shure Acquisition Holdings, Inc (the Applicant) was filed on 28 April 2016 as a PCT application (PCT/US2016/029751) and claims an earlier priority date of 30 April 2015. Following examination, it was advertised as having been accepted on 12 March 2020. Grant of the patent has been opposed under section 59 of the Patents Act 1990 by ClearOne, Inc. (the Opponent).
The Opponent filed a Statement of Grounds and Particulars (SGP) together with a number of supporting documents on 10 September 2020.
The Opponent then filed their evidence in support of the opposition on 10 December 2020.
The Applicant advised that they would not be filing any evidence in answer.
As the parties wished to be heard through written submissions, the Commissioner set a timetable for the filing of written submissions.
The Opponent filed their written submissions in support (OS) on 12 May 2021.
The Applicant advised on 8 June 2021 that they would not be filing any written submissions in answer.
THE EVIDENCE
The Opponent’s evidence in support comprises the following:
·Declaration by Durand R. Begault, Ph.D., dated 9 December 2020, including exhibits EIS-1 to EIS-20 (Begault).
·Declaration by Bradley T. Postma dated 10 December 2020, including exhibit EIS-21.
Dr Begault has been Director of the Audio Forensic Center with Charles M. Salter Associates based in San Francisco, since 1996. He has considerable experience in audio technology including electro-acoustical test and measurement, audio and video recording authentication, analysing audibility of speech, analysing digital recordings and enhancement of speech in noisy recordings. He has also been a research scientist at NASA Ames Research Center since 1988, where he conducts research in audio technology including psychoacoustics, spatial hearing, speech intelligibility, room acoustic analysis and simulation, audio-haptic and audio-visual interaction, and communications and warning systems. He has provided an opinion on the state of the art and an assessment of the novelty and inventiveness of the claimed invention with respect to certain prior art.
Dr Postma is the patent attorney for the Opponent and has filed as evidence an inter partes
review decision of the US Patent Office dated 14 August 2020. He has not provided any expert evidence.
APPLICABLE LAW
The Application was filed after 15 April 2013 and is governed by the Patents Act 1990 (the Act) and Patents Regulations 1991 as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012. Thus, the standard of proof that applies in the present case is the balance of probabilities. Under subsection 60(3A) of the Act, if I am satisfied, on the balance of probabilities, that a ground of opposition to the grant of a patent exists, I may refuse the application.
SPECIFICATION
The present invention relates to “an array microphone capable of fitting into a ceiling tile of a drop ceiling and providing 360-degree audio pickup with an overall directivity index that is optimized across the voice frequency range”.[1] In particular, it relates to microphones used in conferencing environments, such as boardrooms and video conferencing settings, for capturing sound from human participants and other audio sources.
[1] Specification at [0002]
The specification notes that common microphone arrangements for conferencing environments have various drawbacks. For example, microphones placed on tables can “detect undesirable noise, such as pen tapping or paper shuffling” and can also be “covered or obstructed, such as by paper, cloth, or napkins, so that the sound is not properly or optimally captured”.[2]
[2] Specification at [0004]
Another known arrangement is a shotgun microphone arrangement that can detect the sound from a particular audio source and direct the microphone at the audio source. This, however has problems associated with determining the “direction to point a shotgun microphone to optimally detect the sound coming from its audio source” and that “even then, audio detection may be less than optimal if the audio source moves in and out of a pickup range of the microphone (e.g., if the human speaker shifts in his/her seat while speaking)”.[3]
[3] Specification at [0005]
Also known are microphones “mounted to a ceiling or wall of the conference room to free up table space and provide human speakers with the freedom to move around the room”, but these “require complex installation” and “have their own audio pickup challenges due to a closer proximity to loudspeakers and HV AC systems, a further distance from audio sources, and an increased sensitivity to air motion or white noise”.[4]
[4] Specification at [0006]
The specification states the present invention seeks to address these concerns.
[0007] …. More particularly, there is an opportunity for systems including an array microphone that is unobtrusive, easy to install into an existing environment, and can enable the adjustment of the microphone array to optimally detect sounds from an audio source, e.g., a human speaker, and reject unwanted noise and reflections.
The present invention provides an array microphone that is “capable of fitting into a ceiling tile of a drop ceiling and providing 360-degree audio pickup with an overall directivity index that is optimized across the voice frequency range”.[5]
[5] Specification at [0002]
A summary of the invention in given as follows:
“In accordance with a first aspect of the invention, there is provided an array microphone system comprising: a substrate; and a plurality of microphones arranged, on the substrate, in a number of concentric, nested rings of varying sizes, each ring comprising a subset of the plurality of microphones positioned at predetermined intervals along a circumference of the ring, wherein the rings are harmonically nested and are rotationally offset from each other relative to a central axis of the substrate”.[6]
[6] Specification at [0009]
The specification then notes that the term ring as used in the specification should be given a fairly broad meaning.
“As used herein, the term “ring” may include any type of circular configuration (e.g., perfect circle, near-perfect circle, less than perfect circle, etc.), as well as any type of oval configuration or other oblong loop”.[7]
[7] Specification at [0048]
The specification then provides a description of certain embodiments of the invention with reference to figures 1-12 of which figures 3, 5 and 9 are reproduced below.
Figure 3 shows a microphone array assembly 100 comprising a microphone array 104 encased in a substrate. The substrate includes a sound-permeable grill 108, a back panel 110 and a membrane 111 sandwiched between the grill and back panel. The substrate can be in the form of a ceiling tile that can be used in place of a standard ceiling tile of a drop ceiling.
The microphone array 104 shown in figure 5 comprises a plurality of microphones 106 mounted on a central printed circuit board (PCB) 107a and one or more peripheral PCBs 107b positioned around the central PCB. The plurality of microphones 106 includes a central microphone 106a positioned at a central point of the central PCB 107a and the remaining microphones 106b arranged in a number of nested concentric rings surrounding the central microphone 106a, with the microphones in each ring being positioned at predetermined intervals along the circumference of the ring, based on the diameter of the ring and the number of microphones.
The specification notes that “The predetermined interval or spacing between neighboring microphones 106b within a given ring can depend on a size or diameter of the ring, a number of microphones 106b included in the subset assigned to that ring, and/or a desired sensitivity or overall sound pressure for the microphones 106b in the ring”.[8]
[8] Specification at [0049]
Also, according to the specification, the “number of rings included in the microphone array, a
diameter of each ring, and/or the radial distance between neighboring rings can vary depending
on the desired frequency range over which the array microphone is configured to operate and
[9] Specification at [0053]
what percentage of that range will be covered by each ring”.[9]
The specification notes that the arranging of the microphones 106 in concentric, circular rings of varying sizes “allows the array microphone to have equivalent beamwidth performance at any given look angle in a three-dimensional (e.g., X-Y-Z) space”[10] and will “avoid undesired pickup patterns (e.g., due to grating lobes) and accommodate a wide range of audio frequencies”[11]. Consequently, the array microphone of the present invention “can provide a more consistent output than array microphones with linear, rectangular, or square constellations”.[12]
[10] Specification at [0028]
[11] Specification at [0048]
[12] Specification at [0028]
The specification also notes that “Increasing the number of microphones 106 and a microphone density of the rings (e.g., due to nesting of the rings) can help remove grating lobes and thereby, produce an improved beamwidth with a near constant frequency response across all frequencies within the preset range”[13] and “can strengthen the main lobe of a given beam and thereby, reduce the ratio of side lobe sensitivity to main lobe sensitivity”.[14]
[13] Specification at [0049]
[14] Specification at [0054]
The specification notes that the rings can be positioned at various radial distances from the central microphone “to form a nested configuration that can handle progressively lower audio frequencies, with the outermost ring being configured to optimally operate at the lowest frequencies in the predetermined operating range” and that “Using harmonic nesting techniques, the concentric rings can be used to cover a specific frequency bands within a range of operating frequencies”[15]. For example, if the microphone array is to cover an operational frequency range of 100 hertz (Hz) to 10 kilohertz (kHz), each ring would be configured to provide coverage of a different octave or frequency band within this range, with the frequency band progressively increasing from the outer ring to the inner ring (e.g., 100 Hz, 200 Hz, 400 Hz, 800 Hz, 1600 Hz, 3200 Hz and 6400 Hz).
[15] Specification at [0048]
According to the invention, the microphone rings are also rotationally offset from each other in order to provide improved directivity of the microphone array as shown in figure 9.
“Further, each concentric ring within the constellation of microphones can have a slight, rotational offset from every other ring in order to minimize side lobe growth, giving the array microphone lower side lobes than existing arrays with co-linearly positioned elements. This offset configuration can also tolerate further beam steering, which allows the array to cover a wider pick up area”.[16]
“In embodiments, the rings 910-922 may be at least slightly rotated relative to a central axis 930 that passes through a center of the array (e.g., the central microphone 902) in order to optimize the directivity of the microphone array. In such cases, the microphone array can be configured to constrain microphone sensitivity to the main lobes, thereby maximizing main lobe response and reducing side lobe response. In some embodiments, the rings 910-922 can be rotationally offset from each other, for example, by rotating each ring a different number of degrees, so that no more than any two microphones 906 are axially aligned. For example, in microphone arrays with a smaller number of microphones, this rotational offset may be beneficial to reduce an undesired acoustic signal pickup that can occur when more than two microphones are aligned. In other embodiments, for example, in arrays with a large number of microphones, the rotational offset may be more arbitrarily implemented, if at all, and/or other methods may be utilized to optimize the overall directivity of the microphone array”.[17]
[16] Specification at [0028]
[17] Specification at [0055]
The microphones used in the array are preferably “micro-electrical mechanical system (MEMS)
microphones, which allows for a greater microphone density and improved rejection of
[18] Specification at [0029]
vibrational noise, as compared to existing arrays”.[18]
A control box that is mounted on the back panel 110 houses an audio processor including a PCB 116 that is electrically coupled to the microphones in each of the concentric ring arrangement in order to process audio signals from these microphones and to produce a corresponding audio output.
The audio processor can be configured by suitable programming to “enable adjustment of parameters of the microphone array 1034, such as directionality, gain, noise suppression, pickup pattern, muting, frequency response, etc”.[19]
[19] Specification at [0065]
An audio mixer can also be provided to continuously monitor the received audio signals from each microphone in the microphone array, select the best lobe for a given human speaker and “automatically position or steer the selected lobe directly towards the human speaker, and output
an audio signal that emphasizes the selected lobe while suppressing signals from the other audio
[20] Specification at [0065]
sources”.[20]
The accepted specification ends with 20 claims that are as follows:
1. An array microphone system comprising:
a substrate; and
a plurality of microphones arranged, on the substrate, in a number of concentric, nested rings of varying sizes, each ring comprising a subset of the plurality of microphones positioned at predetermined intervals along a circumference of the ring, wherein the rings are harmonically nested and are rotationally offset from each other relative to a central axis of the substrate.
2. The array microphone system of claim 1, wherein the rings are positioned at different, harmonically-related radial distances from a central point of the central axis to form the harmonically nested configuration.
3. The array microphone system of either claim 1 or claim 2, wherein the plurality of microphones are micro-electrical mechanical system (MEMS) microphones.
4. The array microphone system of claim 2, wherein each of the concentric, nested rings forms a circle.
5. The array microphone system of claim 2, wherein the radial distance of each ring is determined based on a lowest operating frequency assigned to the subset of microphones included in the ring.
6. The array microphone system of any one of the preceding claims, wherein the number of concentric, nested rings is seven.
7. The array microphone system of any one of the preceding claims, wherein the plurality of microphones includes at least 113 microphones.
8. The array microphone system of claim 1, wherein each ring comprises a predetermined number of microphones, the predetermined number being selected from a group consisting of numbers that are multiples of an integer greater than one.
9. The array microphone system of any one of the preceding claims, further comprising a processor electrically coupled to the substrate and configured to receive audio signals captured by each of the plurality of microphones and to generate an output based on the received signals.
10. The array microphone system of claim 9, wherein the processor is configured to simultaneously generate multiple audio outputs based on the received audio signals.
11. The array microphone system of any one of the preceding claims, further comprising an external indicator coupled to the substrate and configured to indicate an operating mode of the array microphone system.
12. The array microphone system of any one of the preceding claims, wherein the substrate comprises a central printed circuit board (PCB) and a plurality of peripheral printed circuit boards (PCBs) radially positioned around, and electrically connected to, the central PCB, at least one of the number of concentric, nested rings being positioned on the plurality of peripheral PCBs.
13. A method of assembling an array microphone, comprising:
arranging a first plurality of microphones to form a first configuration on a substrate;
arranging a second plurality of microphones to form a second configuration on the substrate, the second configuration concentrically surrounding the first configuration;
rotating at least one of the first and second configurations relative to a central axis of the array microphone; and
electrically coupling each of the first and second pluralities of microphones to an audio processor for processing audio signals captured by the microphones,
wherein the first and second configurations are harmonically nested.
14. The method of claim 13, wherein each of the first and second configurations comprises a number of concentric rings positioned at different, harmonically-related radial distances from a central point of the substrate to form a harmonically nested configuration.
15. The method of claim 14, wherein arranging the first plurality of microphones includes for each of the number of concentric rings, arranging a subset of the first plurality of microphones at predetermined intervals along a circumference of the ring.
16. The method of claim 14, wherein the first configuration further comprises the central point of the substrate, and arranging the first plurality of microphones includes arranging at least one of the first plurality of microphones at the central point.
17. The array microphone system of claim 1, further comprising at least one microphone arranged at a central point of the central axis.
18. The array microphone system of claim 1, wherein each ring is rotationally offset from the central axis by a different number of degrees.
19. The array microphone of claim 8, wherein the integer is an odd number.
20. The method of claim 13, wherein each ring is rotationally offset from the central axis by a different number of degrees.
CLAIM CONSTRUCTION AND CLARITY
The correct approach to the construction of claims was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70, 81 IPR 228 at [118] – [120]:
“the words in a claim should be read through the eyes of the skilled addressee in the context in which they appear ... while the claims define the monopoly claimed in the words of the patentee's choosing, the specification should be read as a whole ... it is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification ... terms in the claim which are unclear may be defined or clarified by reference to the body of the specification”

I also note what Middleton J said in Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214, 100 IPR 451 at [139]:
“It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense. The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent. From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date.”
The requirement for clarity is understood to be satisfied if there would be “no difficulty in a third party ascertaining whether or not what he proposes to do falls within the ambit of the claim” (Monsanto Co v Commissioner of Patents (1974) 48 ALJR 59). While it is certainly possible to apply an overly meticulous, semantic analysis and come up with words or short phrases which are, strictly speaking, not perfect, I note it was said in Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2008] FCAFC 121, 77 IPR 229 at [81]:
“Lack of precise definition in claims is not fatal to their validity, so long as they provide a workable standard suitable to their intended use.”
The Opponent has submitted that some of the terms in the claims lack clarity and that this affects the construction of the claims. I will consider the issues identified by the Opponent.
Ring
The Opponent has submitted as follows:
“Claims 1, 2, 5-6, 8, 12, 14-16, 18 and 20 lack clarity as they refer to “ring.” It is unclear in claims 1-2 whether a ring is circular, elliptical or some other ring-like shape. Claim 4 amplifies this ambiguity by implying that “ring” in other claims may be non-circular. Claim 4 recites that “each of the concentric, nested rings forms a circle.” EIS-1 at 34. Thus, rings in other claims may not be a circle.
The claims’ recitation of “a circumference of the ring” also creates additional ambiguity; for example, the ring’s circumference may be elliptical or any other ring-like shape. This ambiguity is compounded by the specification’s failure to disclose any non-circular rings”.[21]
[21] OS at [121] – [122]
Firstly, I would note that the reference to a ring is not a reference to a physical ring or even a circle drawn on a surface, but rather refers to the notional shape in which microphones are placed. As mentioned earlier, the specification notes that “As used herein, the term "ring" may include any type of circular configuration (e.g., perfect circle, near-perfect circle, less than perfect circle, etc.), as well as any type of oval configuration or other oblong loop”[22]. Clearly, the specification does not limit the scope of the term ‘ring’ to only a perfect circle. Hence unless a claim specifically defines the ring as being circular (e.g. claim 4), this term should be considered more broadly in line with the aforementioned definition in the body of the specification. This term is clear.
[22] Specification at [0048]
It follows that a similar construction should be given to the phrase ‘a circumference of the ring’.
Positioning of the microphones
The Opponent has submitted as follows:
“Claims 1 and 15 lack clarity as they refer to “microphones [positioned] at predetermined intervals along a circumference of the ring.” It is unclear whether the intervals are the same or different in relationship to one another, or how these intervals are measured or defined (e.g., between adjacent microphones), etc”.[23]
[23] OS at [123]
Claim 1 defines “….each ring comprising a subset of the plurality of microphones positioned at predetermined intervals along a circumference of the ring…”.
Predetermined means “to determine, decide or establish in advance” (The Free Dictionary). Therefore, in relation to claim 1, it means that the interval or gap between the plurality of microphones positioned along the circumference of a ring has been determined or established in advance. While the claim does not specify how this interval is predetermined, the description does provide guidance in this regard.
“The predetermined interval or spacing between neighboring microphones 106b within a given ring can depend on a size or diameter of the ring, a number of microphones 106b included in the subset assigned to that ring, and/or a desired sensitivity or overall sound pressure for the microphones 106b in the ring”.[24]
[24] Specification at [0049]
In my view, the person skilled in the art would readily understand that the microphones are spaced apart on the circumference of the ring by an interval or gap that is to be predetermined based on one or more factors such as those that are mentioned in the description. This term in the claims does not lack clarity. I do however note that given that there is no further qualification of the ‘predetermined interval’ in the claim, this term is to be given an interpretation that is not necessarily limited to only those factors specifically mentioned in the description.
Central axis of the substrate
The Opponent has submitted that “Claims 1 and 2 lack clarity as they refer to a “central axis of the substrate” and it is unclear whether this axis is coplanar with the substrate or perpendicular to it”.[25]
[25] OS at [124]
The Opponent’s basis for a construction in which the central axis is coplanar with the substrate is solely based on figure 9 which shows an axis 930 which according to the description is the central axis.
While I accept that the axis 930 as depicted in this figure may suggest that the axis lies within the plane of the substrate, when the specification is read in a common sense manner, in my view, it would be quite apparent to the skilled addressee that the central axis 930 which is described as “a central axis 930 that passes through a center of the array (e.g., the central microphone 902)”[26], is an axis that is perpendicular to the plane of the substrate. For instance, the description notes in the same paragraph that the rings can be rotationally offset from each other by rotating each ring a different number of degrees about the central axis so that no more than any two microphones are axially aligned. This is only possible when the central axis is perpendicular to the plane of the substrate. Any ambiguity regarding the orientation of the central axis can be readily resolved. The claims do not lack clarity in this regard.
[26] Specification at [0055]
Rotationally Offset
Claim 1 defines that the concentric rings are ‘rotationally offset from each other’. Although the Opponent did not raise any lack of clarity with this feature, I think it is important to construe this phrase.
The relevant passages in the description that refer to this feature are as follows:
“[0028] …..Further, each concentric ring within the constellation of microphones can have a slight, rotational offset from every other ring in order to minimize side lobe growth, giving the array microphone lower side lobes than existing arrays with co-linearly positioned elements. This offset configuration can also tolerate further beam steering, which allows the array to cover a wider pick up area”[27].
“[0055] In embodiments, the rings 910-922 may be at least slightly rotated relative to a central axis 930 that passes through a center of the array (e.g., the central microphone 902) in order to optimize the directivity of the microphone array. In such cases, the microphone array can be configured to constrain microphone sensitivity to the main lobes, thereby maximizing main lobe response and reducing side lobe response. In some embodiments, the rings 910-922 can be rotationally offset from each other, for example, by rotating each ring a different number of degrees, so that no more than any two microphones 906 are axially aligned. For example, in microphone arrays with a smaller number of microphones, this rotational offset may be beneficial to reduce an undesired acoustic signal pickup that can occur when more than two microphones are aligned. In other embodiments, for example, in arrays with a large number of microphones, the rotational offset may be more arbitrarily implemented, if at all, and/or other methods may be utilized to optimize the overall directivity of the microphone array”[28]. (emphasis added)
“[0079] In some embodiments, the method 1200 can include, at step 1214, rotating at least one of the first, second, and third fourth configurations relative to a central axis (e.g., the central axis 930) of the array microphone so that the configurations are at least slightly rotationally offset from each other, to improve the overall directivity of the array microphone….”[29].
[27] Specification at [0028]
[28] Specification at [0055]
[29] Specification at [0079]
While the claim defines that the concentric rings are offset from each other, as noted earlier the rings are just notional rings in the figures to illustrate the circular arrangement of the microphones. Therefore, it would be clear to the skilled addressee that the reference to rings being offset in the claims and in the description is actually a reference to the microphones in any one of the notional rings being offset relative to the microphones in the other notional rings.
In the first passage that I have identified above, there is a reference to each concentric ring within the constellation of microphones having a slight, rotational offset from every other ring, suggesting that every microphone has to be rotationally offset from every other microphone. However, from the second passage that I have identified above, it is clear that the specification notes that the requirement for microphones to be rotationally offset will be met as long as no more than 2 microphones are axially aligned with the centre of the array. I construe this to mean that no more than 2 microphones are on a line that passes through the centre of the array, or in other words on a radial line. While the specification uses the term ‘axially aligned’, in my view it is probably more aptly defined as ‘radially aligned’. This is the construction that I will therefore adopt for this term in the claim 1.
Claim 13, the other independent claim, is a method claim that is worded differently to claim 1 in respect of this feature. The relevant definition is as follows:
“….rotating at least one of the first and second configurations relative to a central axis of the array microphone;…”.
The Opponent has submitted that claim 13 describes a physical rotation of concentric configurations rather than a prescriptive statement regarding the placement of the microphones such that they are rotationally offset.[30]
[30] OS at [126]
I agree that there is some lack of clarity in relation to this definition in this claim. This is further compounded by the fact that this claim, unlike claim 1, does not define how the microphones in each configuration are arranged, such as whether they are placed in rings or some other shape or how many rings there are. Hence while it is possible to place the microphones in first and second concentric configurations and then physically rotate about the central axis one of the first and second configurations with respect to the other configuration, there is no further requirement that this should lead to the microphones in the first configuration to be rotationally offset from the microphones in the second configuration. However, such a construction would lead to an outcome that is quite meaningless as the rotation of one of the configurations would have served no purpose. Hence it is appropriate in this circumstance to have regard to the description to understand what is sought to be defined by this definition in claim 13. By doing so, it is readily apparent that the purpose of the rotation is to make the microphones of the first configuration to be rotationally offset from the microphones of the second configuration in order to improve the directivity of the array and that this requirement will be met if no more than two microphones are radially aligned. In other words, the skilled addressee would give this term in claim 13, the same construction as they did in claim 1.
Harmonically nested
As mentioned earlier, the description states that using harmonic nesting techniques, the concentric rings can be used to cover specific frequency bands within a range of operating frequencies and that each ring would be configured to provide coverage of a different octave or frequency band within this range, with the frequency band progressively increasing from the outer ring to the inner ring.
Dr Begault has stated that the “concept of ‘harmonic nesting’ involves different sets of microphone arrays optimized towards a particular frequency range” and that the concept of subarrays optimized to a specific frequency range in one octave relationships “is referred to as a ‘harmonically nested’ array due to the octave relationships”.[31]
[31] Begault at [45] – [46]
It is clear that Dr Begault’s understanding of this term is in accordance with what is mentioned in the description. This is the construction that I will therefore give to this term in the claims.
Claim 14
The Opponent submits that claim 14 lacks clarity as it refers “to ‘a number of concentric rings’ within first and second configurations without disclosing whether or not each ring or any subset of rings is at a ‘harmonically-related radial distances from a central point of the central axis’. It is
unclear how the radial distances are related, how harmonics affect the relationships of the radial
[32] OS at [125]
distances, and/or to what degree the radial distances of rings are related to the two configurations”.[32]
I am not convinced that this claim lacks clarity. Having defined in claim 13 that a first plurality of microphones are arranged in a first configuration and a second plurality of microphones are arranged in a second configuration that concentrically surround the first configuration, dependent claim 14 then further defines that “each of the first and second configurations comprises a number of concentric rings positioned at different, harmonically-related radial distances from a central point of the substrate to form a harmonically nested configuration”. In my view, when this claim is read in context, it would be clear to the skilled addressee that each of the concentric rings of the first and second configurations are positioned at harmonically related radial distances from the central point of the substrate. Even if there was any ambiguity as to whether each ring or a subset of the rings is meant, this could be resolved by having recourse to the body of the specification.
I also see no need for the claim to elaborate how the radial distances are related or how harmonics affect the relationship of the radial distances as long as the skilled addressee would understand what the relationship is. Dr Begault is clearly of the view that this would be known to a skilled addressee.
“57. To summarize, a POSITA would begin by taking into account the lowest frequency of an octave that is assigned to each ring to determine its radius. For example, to successfully beamform a frequency octave such as 400-800 Hz, a ring of microphones would be specified with a diameter set to approximately 2x the wavelength of 400 Hz. Recognizing that a beamforming system necessarily has a directivity figure-of-merit over the operable frequency range, that directivity figure-of-merit must be met across the octave, including the lowest frequency of that octave. As described above, the diameter of a ring directly affects the directivity at lower frequencies. Thus, the ring diameter would be selected to meet or exceed the directivity figure-of-merit at the lowest operating frequency, and the diameter of a ring of microphones to would be based on lowest frequency of an octave associated with a ring”.[33]
[33] Begault at [57]
Claim 14 does not lack clarity.
Claim 16
The Opponent has submitted that claim 16 lacks clarity because it is unclear what is “the central point of the substrate” and also it is unclear what is meant by “arranging at least one of the
first plurality of microphones at the central point”.[34]
[34] OS at [127]
Again, I fail to see any lack of clarity that cannot be readily resolved when the claim is read in context. All that claim 16 defines is that the substrate has a central point about which the first and second configurations are concentrically placed and that one of the plurality of microphones of the first configuration is placed at this central point. Claim 16 does not lack clarity.
Claim 20
The Opponent has submitted that claim 20 which is dependent on claim 13 lacks clarity as it refers to “each ring”, but there is no antecedent for “each ring” in claim 13 and it is further unclear what is “rotationally offset from the central axis by a different number of degrees”.[35]
[35] OS at [128]
I agree that claim 20 strictly lacks clarity because of the lack of antecedence for the term ‘each ring’ when dependent on claim 13. However, I am of the view that this is an obvious mistake and that the skilled addressee would readily understand that the reference to the dependency from claim 13 is actually a reference to a dependency from claim 14. The claim does not lack clarity in this regard.
In relation to the rotationally offset feature, as I have discussed earlier in relation to claim 13, it would be clear to a skilled addressee that the reference to the configurations being rotated is a reference to the microphones in each configuration being rotationally offset from the microphones in the other configuration. Similarly, it would be readily understood by the skilled addressee that the reference to the rings being rotationally offset by a different number of degrees is a reference to the microphones in each of these rings being rotationally offset from the microphones in the other rings with the proviso of having no more than two microphones being in radial alignment. The claim does not lack clarity in this regard.
NOVELTY
The general test for lack of novelty is the reverse infringement test. The classic formulation of this test is that given by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 at [20], 137 CLR 228 at 235:
“The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement”.
This test is satisfied if the alleged anticipation discloses all the essential features of the invention as claimed (see Nicaro Holdings Pty Ltd v Martin Engineering Co [1990] FCA 40; (1990) 91 ALR 513 at 517). In order to meet this requirement, the prior art must “contain clear and unmistakeable directions to do what the patentee claims to have invented” (The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited [1972] RPC 457 at 486).
In AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99, the full Federal Court held:
"Sufficiency of disclosure is a cardinal anterior requirement in the analysis of whether a prior art document anticipates a claimed invention. It is only after the stage of assessing the sufficiency of disclosure which involves a determination about whether a prior document has ‘planted the flag’ as opposed to having provided merely ‘a signpost, however clear, upon the road’ or, perhaps, something less that the notion of reverse infringement comes into play as the final and resolving step of the required analysis. It is not the first step of the required analysis; nor is it the only step".
Novelty Consideration
The Opponent has relied on three documents in support of their contention that the claimed invention is not novel.
D1 (Tiete et al)
D1 is an article titled “SoundCompass: A Distributed MEMS Microphone Array-Based Sensor for Sound Source Localization,” and generally describes “an acoustic sensor capable of measuring sound intensity and directionality”. The sensor “points to the direction of the loudest sound sources, while measuring the total sound pressure level (SPL)”. It comprises a microphone array that uses beamforming techniques to “performs a 360° sound power scan” and “measure the directionality of its surrounding sound field”. The primary application of the SoundCompass is for noise pollution mapping in urban environments. However, I note that the claimed invention is broad enough to include both indoor and outdoor environments.

D1 has a planar microphone array geometry consisting of 52 digital MEMS microphones arranged in four concentric rings on a printed circuit board of 20 cm diameter. The arrangement is shown in Figure 5 that is reproduced below.
In relation to this array, D1 notes as follows:
“This array is capable of performing spatial sampling of the surrounding sound field by using beamforming techniques. Beamforming focuses the array in one specific direction or orientation, amplifying all sound coming from that direction and suppressing sound coming from other directions”.
Clearly D1 discloses an array microphone system comprising a substrate, a plurality of microphones arranged, on the substrate, in a number of concentric, nested rings of varying sizes, each ring comprising a subset of the plurality of microphones positioned at intervals along a circumference of the ring. While not explicitly mentioned, it is also clear from this figure that the microphones in each ring are spaced at equal intervals and given that there are 52 microphones arranged in 4 concentric rings, I am satisfied that the feature of the microphones in each ring being positioned at predetermined intervals is disclosed in D1.
In relation to the feature of the microphones being rotationally offset, it is clear from figure 5 of D1, that most of the microphones in each of the rings are rotationally offset from microphones of the other rings, although there appear to be some microphones that could be in radial alignment, such as the two microphones in rings 2 and 4 that lie along the horizontal diametric axis. However no more than two microphones appear to be in radial alignment, satisfying the requirement for the microphones to be radially offset.
In relation to the feature of the microphones being harmonically nested, Dr Begault does not identify where this disclosure is present in D1 but has merely stated that harmonic nesting is a well-known concept involving nesting of beamforming microphones and that this is recognized in multiple references mentioned in the SGP.
Just because harmonic nesting may be a well-known concept that does not mean that this feature is disclosed in D1. I can find no disclosure in D1 that the microphones in each of the concentric rings are harmonically nested. This feature is therefore not disclosed in D1.
Claims 1 and 13 are therefore novel over D1 as the feature of harmonic nesting is not disclosed in D1.
D2 – US 8213634 (Daniel)
D2 is directed to a modular directional audio system comprising a microphone array mounted on a substrate “for many different, challenging environments such as indoor, outdoor, automobile and portable (body-carried or -worn), which experience a variety of bothersome conditions, such as wind, sand, dust, precipitation, radio frequency (RF) interference (e.g. from mobile communications), extreme temperatures, and acoustic noises”. The preferred embodiment that is described in detail relates to a microphone array in which the plurality of microphones are arranged in a rectangular grid. However, it also briefly mentions that “According to another aspect of the invention, a directional microphone system consisting of as few as one tile that has non-uniform inter-microphone spacing, such as spiral, logarithmic, concentric circle, or random arrangement as examples” (emphasis added). The logarithmic spiral arrangement is illustrated in figure 7 that is reproduced below.
The Opponent has submitted that it is clear from this figure that the microphones are also arranged in concentric circles that are rotationally offset as can be seen in the following annotated figure where the concentric rings are shown by the three circles.
They have also submitted that the concentric rings are in a harmonic relationship because, for example, the middle ring annotated in red is twice the distance from the centre of the inner ring annotated in red.
In relation to the disclosure of figure 7, apart from stating that the microphones are arranged in a logarithmic spiral configuration, no further details are provided. There is no explicit teaching that the corresponding microphones in each of the logarithmic spirals also form concentric rings as submitted by the Opponent. While I accept that this is an inevitable outcome of the logarithmic spiral arrangement, it would appear from the circuitry shown in this figure that the microphones in each of the spiral arms form a sub-array of microphones and not the microphones in each of the notional rings identified by the Opponent. How each of these sub-arrays functions in terms of beamforming and whether corresponding microphones in each of the arms covers a specific frequency range is unclear. The distances between the notional rings as measured from the annotated figure can hardly be said to be even suggestive of harmonic nesting in the way that I have construed this term, let alone a clear and unmistakeable teaching as required to establish lack of novelty. The feature of harmonic testing is not disclosed.
In relation to the reference in column 5 to the possibility of the microphones being arranged in an array of concentric circles, while there is no further elaboration or drawing of such an arrangement, I am satisfied that a skilled addressee would have no difficulty in understanding or implementing this alternate microphone arrangement of D2. However, there is no further teaching that, with the concentric circle arrangement, the microphones in each of the concentric circles are rotationally offset or that they are harmonically nested. While the microphones in the logarithmic spiral array are rotationally offset, the microphones in the rectangular grid are clearly not and hence there is no basis to infer that the microphones in the concentric circle arrangement would necessarily be rotationally offset.
Claims 1 and 13 do not lack novelty over D2.
D3 (Arnold et al)
D3 is an article titled “A directional acoustic array using silicon micromachined piezoresistive microphones” and is directed to an acoustic array system designed for the measurement of aircraft noise in a wind tunnel. The array comprises MEMS microphones arranged in 4 concentric rings with radii 1.80, 1.94, 3.60, and 3.89 in., each having four microphones. This is shown in figure 4 that is reproduced below:
D3 notes that this layout has been chosen “not to optimize a particular array geometry”, but because it is “similar to Cluster 3 in NASA’s small aperture directional array (SADA)” thereby “allowing for a comparison to previously published results”.
While this figure may appear to show only two concentric rings, the annotated figure provided by the Opponent and reproduced below shows 4 concentric rings.
It is also clear that adjacent rings are rotationally offset in that microphones in adjacent rings are not axially aligned, but microphones in the first and third rings and the microphones in the second and fourth rings are aligned. However, as no more than two microphones are radially aligned, the requirement of claims 1 and 13 in not having more than two microphones aligned is satisfied by D3.
The Opponent has also submitted that these concentric rings are harmonically nested because the four concentric rings have radii 1.80, 1.94, 3.60, and 3.89 inches and this means “the microphones on first and third rings are harmonically related in terms of the lowest operating frequency being in an octave relationship (the third ring is double the diameter of the first ring), and similarly for the second and fourth rings” or alternatively this is inherently disclosed as harmonic nesting of beamforming microphone arrays is a well-known concept.
I do not find this submission persuasive. Harmonically nested in the manner that I have construed requires that the microphones in adjacent rings are configured to cover frequencies that are harmonically related, i.e in terms of octaves. There is no teaching or suggestion in D3 that the microphones in the first and third rings or the second and fourth rings are harmonically related as asserted by the Opponent. The evidence does not satisfy me that doubling the diameter of the rings inherently leads to the microphones in these rings to be harmonically nested. I note that even in figure 9 of the opposed application where seven rings are stated to be harmonically nested, the radial distances between adjacent rings do not appear to follow any particular mathematical relationship as sought to be asserted by the Opponent. Even if the Opponent is right on this point, it is only the pairs comprising the first and the third rings and the second and the fourth rings that share this radial/harmonic relationship and not all of the four rings as required for the claimed invention. The feature of harmonic nesting is not disclosed by D3.
The claimed invention does not lack novelty over the disclosure of D3.
INVENTIVE STEP
The statutory basis for inventive step is set out at s7(2) and s7(3) of the Act, and is reproduced below:
(2) For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed (whether in or out of the patent area) before the priority date of the relevant claim, whether that knowledge is considered separately or together with the information mentioned in subsection (3).
(3) The information for the purposes of subsection (2) is:
(a) any single piece of prior art information; or
(b) a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined.
The test for obviousness is whether it would have been a matter of routine to proceed to the claimed invention.
“The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not.” (Aicken J in Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd [1981] HCA 12 at [45]; 148 CLR 262 at 286)
The High Court in Aktiebolaget Hässle v Alphapharm Pty Ltd [2002] HCA 59 (Alphapharm) at [51] - [53] also approved the approach taken in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157 at 187 in which Graham J had posed the reformulated Cripps question:
“Would the notional research group at the relevant date in all the circumstances directly be led as a matter of course to try [the claimed invention] in the expectation that it might well produce a useful [desired result]?”
Where the invention lies in a combination of integers, the question is not whether each individual integer was obvious but rather whether the combination as a whole was obvious when compared to the prior art base. In Alphapharm the High Court stated at [41]:
“The claim is for a combination, the interaction between the integers of which is the essential requirement for the presence of an inventive step. It is the selection of the integers out of ‘perhaps many possibilities’ which must be shown by Alphapharm to be obvious, bearing in mind that the selection of the integers in which the invention lies can be expected to be a process necessarily involving rejection of other possible integers.”
In relation to what level of inventiveness is required to sustain a patent, the Full Federal Court in Garford Pty Ltd v Dywidag Systems International Pty Ltd [2015] FCAFC 6 stated as follows at [44]:
“The inventiveness required to sustain a patent for a claimed invention is quite small. A “scintilla” of inventiveness is all that is required: Alphapharm at [195]. However, there must still be “some difficulty overcome, some barrier crossed” (per Lockhart J in RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd [1989] FCA 57; (1989) 25 FCR 565 at 574) or some contribution to the art “beyond the skill of the calling” (Allsop Inc v Bintang Ltd [1989] FCA 297; (1989) 15 IPR 686 at 701)”.
Guidance in relation to establishing lack of inventive step based on a combination or mosaic of documents is provided by the High Court in Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Limited (1980) HCA9; 144 CLR 253;
“116. In the case of alleged lack of an inventive step the question of making a mosaic must operate (if at all) in a very different matter. An allegation of want of inventive step is not made out by saying you may take one or two, or twenty-one or twenty-two, prior publications and then select from them appropriate extracts or pieces of information, which will add up to the invention claimed and so demonstrate that it was obvious. So to proceed is to mistake the nature of an invention and the nature of the objection of obviousness. The question is, is the invention itself obvious, not whether a diligent searcher might find pieces from which there might have been selected the elements which make up the patent. If this were not so, there could never be a valid patent for a new combination of old integers. The proper question is not whether it would have been obvious to the hypothetical addressee who was presented with an ex post facto selection of prior specifications that elements from them could be combined to produce a new product or process. It is rather whether it would have been obvious to a non-inventive skilled worker in the field to select from a possibly very large range of publications the particular combination subsequently chosen by the Opponent in the glare of hindsight and also whether it would have been obvious to that worker to select the particular combination of integers from those selected publications. In the case of a combination patent the invention will lie in the selection of integers, a process which will necessarily involve rejection of other possible integers. The prior existence of publications revealing those integers, as separate items, and other possible integers does not of itself make an alleged invention obvious. It is the selection of the integers out of, perhaps many possibilities, which must be shown to be obvious”. (at p293)
“117. It is in relation to this process that the misuse of hindsight is most common. When once an idea or an object or a process or a combination, admittedly novel, has been published, it is very easy to say after perhaps months of search and study in the Patent Office and the public libraries that the integers into which the patent might be dissected could be found scattered amongst the prior documents by a person who already knew the solution to the problem and therefore knew what to look for and what to discard. But that process does not demonstrate lack of an inventive step. The opening of a safe is easy when the combination has been already provided”. (at p293)
“122. It may be noted that even in England where the process of making a mosaic out of prior publications is regarded as permissible under the Patents Act 1949 it is still necessary that the mosaic must be one which "can be put together by an unimaginative man with no inventive capacity" - see per Lord Reid in Technograph Printed Circuits Ltd. v. Mills and Rockley (Electronics) Ltd. (1972) RPC 346, at p 355”. (at p294)
The Office Manual of Practice and Procedure (MPP) notes at 2.5.2.5.5A that in deciding whether two or more documents can be combined, regard should be given to the following:
•whether the skilled worker, while deemed to be aware of and to have carefully read all the documents, would have appreciated the relevance of the documents to the problem.
•whether the nature and content of the documents are such as to make it likely that the person skilled in the art would combine them. For example is there some suggestion or motivation either in the references themselves, or in the knowledge generally available to the person skilled in the art, to modify the reference or to combine reference teachings.
•whether the documents come from similar or different technical fields – would the problem have prompted a search in those technical fields?
•whether the art would have taught away from a particular solution or combination at the priority date.
Problem To Be Addressed
The Opponent has not provided any submissions on what they consider to be the problem that the claimed invention seeks to address. As noted earlier, the specification discusses shortcomings with known ceiling mounted microphones such as requiring “complex installation” and “audio pickup challenges due to a closer proximity to loudspeakers and HVAC systems, a further distance from audio sources, and an increased sensitivity to air motion or white noise” and that the object of the invention is to provide a microphone system that is “capable of fitting into a ceiling tile of a drop ceiling and providing 360-degree audio pickup with an overall directivity index that is optimized across the voice frequency range”. However, it is not clear from the specification how issues such as sensitivity to air motion or white noise or proximity to loudspeakers or HVAC systems have been addressed by the claimed invention.
The specification also notes that the object of the invention is to provide “an array microphone that is unobtrusive, easy to install into an existing environment, and can enable the adjustment of the microphone array to optimally detect sounds from an audio source, e.g., a human speaker, and reject unwanted noise and reflections”.
Given that the claims make no reference to conference or even indoor environments, in my view, the above-mentioned object of the invention is a better representation of what the claimed invention is trying to address rather than trying to frame the object of the invention in terms of the problems that the specification notes with respect to microphones for conference environments.
Hence for the purpose of assessing the inventive step using the problem/solution approach, the problems that the claimed invention seeks to address relate to ease of installation, the ability to optimally detect sounds from an audio source such as human voice and the ability to reject unwanted noise.
Common General Knowledge (CGK)
Common general knowledge was discussed by Aickin J in Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Limited (1980) HCA9; 144 CLR 253:
"The notion of common general knowledge itself involves the use of that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade in considering the making of new products, or the making of improvements in old, and it must be treated as being used by an individual as a general body of knowledge".
Such knowledge is not limited to what is memorised but may include publications of technical and detailed information that the skilled worker would habitually consult (Aktiebolaget Hassle and Astra Pharmaceuticals Pty Limited v Alphapharm Pty Ltd 51 IPR 375, at paragraph [73]).
However as stated by Luxmoore J in British Acoustic Films Ltd v Nettlefold Productions (1936) 53 RPC 221 at 250 and cited with approval in Aktiebolaget Hässle v Alphapharm Pty Ltd
[1999] FCA 628 at 39:
"……it is not sufficient to prove common general knowledge that a particular disclosure is made in an article, or a series of articles, in a scientific journal, no matter how wide the circulation of that journal may be, in the absence of any evidence that the disclosure is accepted generally by those who are engaged in the art to which the disclosure relates. A piece of particular knowledge as disclosed in a scientific paper does not become common general knowledge merely because it is widely read, and still less merely because it is widely circulated. Such a piece of knowledge only becomes common general knowledge when it is generally known and accepted without question by the bulk of those who are engaged in the particular art; in other words, when it becomes part of their common stock of knowledge relating to the art."

The Opponent relies on the evidence of Dr Begault to assert that certain features of microphone arrays were common general knowledge in the art at the priority date. While Dr Begault’s evidence is uncontroverted, I note that Dr Begault’s evidence does not comprise a separate section that specifically relates to the common general knowledge in the art at the priority date. Instead, it only contains a section titled “State of the Art’ at the Time of the ’056 Application” and within this section he mentions certain features or techniques were “well known” or “recognized” or “widely used”, but does not explicitly identify which of these features or techniques were part of the common general knowledge of the skilled addressee in the art. Furthermore, it appears that he has provided his opinions after he had read the opposed application and all of the prior art relied upon by the Opponent.
I will now discuss whether the feature of “harmonic nesting” which is one of the key features not disclosed in the prior art relied upon for the ground of novelty, was part of the common general knowledge at the priority date.
Harmonic nesting of microphones
The Opponent has submitted that, according to Dr Begault, the concept of harmonic nesting of microphones in a microphone array is a well-known concept in the art and that he has supported this assertion with reference to some of the prior art relied upon in this opposition.
Dr Begault has provided his opinions on this concept at paragraphs 44-57 of his declaration. Following are some of the relevant observations from his declaration.
“The concept of ‘harmonic nesting’ involves different sets of microphone arrays optimized towards a particular frequency range. Multiple texts have recognized and explained the principals and benefits of harmonic nesting”. [46]
“By “nesting” one circular array with a smaller diameter within another array, one can increase the number of microphones to help defer spatial aliasing at the upper end of the frequency range and concurrently increase the directional capability at the lower end of the frequency range. Nested rings can be arranged to accommodate particular frequency ranges, including human speech”. [60(f)]
“….harmonic nesting of beamforming microphone arrays is a well-known concept (e.g., D3 (EIS-6), D5 (EIS-8), D6 (EIS-9), D15 (EIS-18)), with each of more than one array tailored to a specific frequency range’. [116]
“Harmonic nesting is a well-known concept involving nesting of beamforming microphone. In the book ‘Wideband Beamforming: Concepts and Techniques’ By Wei Liu, Stephan Weiss WILEY, 2010 (D15, EIS-18), harmonic nesting is described as a ‘widely used method…. in order to step towards frequency invariance, whereby for a number of frequency bands, different subarrays with appropriate apertures and sensor spacings are operated (Hixon and Au, 1970; Smith, 1970; Van Trees, 2002; Weiss et al., 2002). [page 55]
“Multiple references have recognized and explained the principles and benefits of harmonic nesting. ‘Most techniques are based on the idea that at different frequencies, a different array should be used that has total size and intersensory spacing appropriate for that particular frequency. An example of this idea is the use of harmonically-nested subarrays. . .’ Brandstein (D8, EIS-11) at 4-5. ‘Accounting for the wideband nature of speech and audio signals, nested arrays are often employed using different sets of sensors for different frequency bands to approximate a constant ratio between aperture width and signal wavelength.’ Id. at 290. ‘The harmonic nesting approach is to cover a large frequency range by implementing several subarrays, each designed for a smaller frequency range, typically an octave.’ Chou (D5, EIS-8) at 2995”. [page 55]
Interestingly, Dr Begault never asserts that harmonic nesting is a concept that he is very familiar with, or that it is something that would have been part of the common general knowledge of the person skilled in this art. He merely relies on statements in various publications such as Liu, Brandstein and Chou that mention this as a widely used method. As noted by the authorities, the mention of a concept in publications or even text books, is not sufficient to establish that that concept is common general knowledge without further evidence from practitioners in the art that it formed part of their background knowledge. While I am satisfied that Dr Begault’s qualifications and experience would make him well suited to represent the person skilled in this art, he does not explicitly provide this further evidence that this was a concept that he, or other persons skilled in the art, were so familiar with that it had become part of their background knowledge. I further note that, even in their written submissions, the Opponent relies on a document for the disclosure of the feature of harmonic nesting rather than common general knowledge to support the ground of lack of inventive step, again suggesting that this feature was not common general knowledge at the priority date.
I am consequently not satisfied that Dr Begault’s evidence clearly establishes that the feature of “harmonic nesting” of microphones in a microphone array was part of the common general knowledge of the person skilled in the art at the earliest priority date of the opposed application.
I also note that the concept of harmonic nesting that is described in the texts referred to by Dr Begault, is not restricted to concentric rings as in the claimed invention. This concept includes within its scope, microphone arrays in which the sub-arrays are superimposed rather than being spaced apart and also the sub-arrays can be linear rather than circular.
Inventive Step Consideration
The Opponent has submitted that the claimed invention lacks an inventive step in light of the combined disclosures of certain prior art documents. I will now consider each of these combinations.
D1 (Daniel), D2 (Tiete) or D3 (Arnold) in view of D15 (Liu et al)
The Opponent has submitted that the claimed invention lacks inventive step in light of the disclosures of D1, D2 or D3 when combined with the disclosure of D15. D15 has been relied upon for the disclosure of the feature of harmonic nesting of the microphones in the array.
In support of this contention, the Opponent relies on the evidence of Dr Begault who has stated as follows:
“As described above, claims 1, 3, 4, 6, 7, 8, 9, 10, 11, 13, 15, 18, 20 lack novelty over one or more of Daniel, Tiete, or Arnold. The modification of the disclosures of those references to include harmonically nested rings or configurations of microphones would be obvious in view of Liu. Liu discloses that ‘harmonic nesting is described as a “widely used method…. in order to step towards frequency invariance, whereby for a number of frequency bands, different subarrays with appropriate apertures and sensor spacings are operated (Hixon and Au, 1970; Smith, 1970; Van Trees, 2002; Weiss et al., 2002)’. Liu at 143. The configurations of Daniel, Tiete, or Arnold would be modified to include harmonic nesting to achieve the octave-independent spatial resolution described by Liu. Id. Accordingly, one skilled in the art would modify the concentric ring configurations of Daniel, Tiete, or Arnold to have a harmonically nested concentric ring configuration”.[36]
[36] Begault at [178]
D15 is an extract from Chapter 5 of the Book “Wideband Beamforming Concepts and Techniques”. The relevant disclosure is as follows (with my emphasis):
“In order to achieve a frequency independent response, many methods have been proposed in the past. Harmonic nesting is a widely used method in order to step towards frequency invariance, whereby for a number of frequency bands, different subarrays with appropriate apertures and sensor spacings are operated (Hixson and Au, 1970; Smith, 1970; Van Trees, 2002; Weiss et al., 2002;). This method can be based on frequency bin processing (Hixson and Au, 1970; Smith, 1970; Van Trees, 2002) or a decomposition into octave bands by means of filter banks (Weiss et al., 2002). Subsequently, each octave band or group of frequency bins lying within one octave draw their inputs from one specific subarray. While the resulting beampattern is octave-independent, the spatial resolution within each octave band is still dependent on frequency”.
5.4 Frequency Invariant Beamforming for Circular Arrays
In Sections 5.2 and 5.3, the focus of the design is on uniformly spaced linear arrays,
rectangular arrays and cubic (the three dimensions may not be the same) arrays. In this section, we discuss an approach proposed for the design of FIBs based on uniformly spaced circular arrays (Chan and Pun, 2002). This design can be extended to concentric circular arrays (Chan and Chen, 2005, 2007; Chen et al., 2007) and concentric spherical arrays (Chan and Chen, 2006; Chen and Chan, 2007).
A third solution is to employ multiple-ring circular arrays or concentric circular arrays (Chan and Chen, 2007; Di Claudio, 2005), as shown in Figure 5.36 with two rings as an example. These two sets of circular arrays may have different number of sensors.
It is clear that Liu discloses harmonic nesting of microphones in circular arrays including concentric circular arrays, with each sub-array being configured for different frequencies based on octaves as one of the means for attaining frequency invariance in microphone arrays.
In order to establish that each of the independent claims lacks an inventive step based on a combination of D1, D2 or D3 with Liu, I need to be satisfied that the person skilled in the art would have been motivated to incorporate this disclosure of Liu in the teachings of D1, D2 or D3.
D1 and Liu
As discussed earlier, D1 describes an acoustic sensor for performing a 360° sound power scan to measure the directionality of its surrounding field. The concentric ring microphone array uses beamforming to focus the array in one specific direction, amplifying all sound coming from that direction and suppressing sound coming from other directions. The only feature of claims 1 and 13 that is not disclosed in D1 is that of harmonic nesting of the concentric rings. Dr Begault is of the view that the skilled addressee would be motivated to modify the teaching of D1 to include harmonic nesting in order to achieve the octave-independent spatial resolution described by Liu.
I am not convinced. The primary application of D1 is for outdoor environments where multiple sound sources may be present and D1 explicitly notes that sound localization techniques used in conference environments may not be applicable in outdoor situations where sound sources are blindly detected and located.
“The SoundCompass has been designed to sample the directionality of the sound field of an urban environment where multiple sound sources of different characteristics might be present. Functioning as part of a distributed network of microphone arrays, the directionality data it produces must be fused fast enough to produce a near real-time sound map of an urban area. While our data fusion technique is partly based on the work done by Aarabi and DiBiase, all of the localization techniques and array technologies presented above are too domain specific to be applicable in our domain. Therefore, the SoundCompass differentiates itself from these solutions by using a circular Microelectromechanical systems or MEMS-microphone array combined with an SRP-based data fusion technique to locate sound sources in a new application domain: noise pollution mapping through environmental sensor networks”.[37]
[37] D1 at page [1922]
There is nothing in D1 itself, or in the evidence of Dr Begault to suggest that frequency invariance is an issue or even desirous with SoundCompass given its primary application and that the skilled addressee would therefore try and address this. Even if it was an issue, it is clear from some of the evidence that harmonic nesting is not the only way to address this. There is also no express cross-reference in D1 to Liu or to any other document pertaining to harmonic nesting. I therefore fail to see the motivation for a skilled addressee to incorporate the concept of harmonic nesting disclosed in Liu in the teaching of D1. Furthermore, even if I were to consider that the problem relates to microphone arrays for a conference environment, I am not convinced that the skilled addressee would consider the teaching of D1 relevant to conference environments given the specific statements in D1 regarding the domain specificity of different microphone array applications. Also given that Dr Begault had knowledge of the claimed invention before giving his opinion, I cannot rule out that there may have been an element of ex-post facto analysis in Dr Begault’s analysis.
The claimed invention does not lack an inventive step over D1 and Liu.
D2 and Liu
As noted earlier, D2 relates to a microphone array for use in a variety of environments such as indoor, outdoor, automobile and portable, but there is no specific reference to the use in conference room environments. The main preferred embodiment that is described in detail relates to a microphone array in which the plurality of microphones are arranged in a rectangular grid, but then also illustrates an alternative arrangement in which the microphones are arranged in logarithmic spirals. Hence, these are the two arrangements that is taught by D2. While there is a reference to concentric rings, as I noted earlier, there is no further elaboration of this arrangement in the description or the figures and I can see no reason for the skilled addressee to prefer this arrangement over the rectangular grid or the logarithmic spirals.
There is no express cross-reference in D2 to Liu or any other document that teach harmonic nesting. Also, given the application of the array of D2 to a variety of environments, there is no suggestion in D2 that harmonic nesting would be advantageous. Furthermore, as discussed earlier, with the logarithmic spiral arrangement, while the microphones would also inherently form concentric rings, the circuitry strongly suggests that it is the microphones in each of the spiral arms that form a sub-array and not the microphones in the notional concentric rings.
I can find no motivation for a skilled addressee, faced with the stated problem, to have as a matter of course, used the logarithmic arrangement of D2 and modified the spiral arm arrangement to a concentric ring arrangement and then harmonically nested them as disclosed in Liu, in the expectation that it would provide an improved microphone array.
It follows that I am not satisfied that the claimed invention lacks an inventive step in light of D2 and Liu.
D3 and Liu
D3 is a microphone array for the measurement of aircraft noise in a wind tunnel. There is no suggestion that it is also useful in other environments such as conference environments. There is no express cross-reference in D3 to Liu, or to any other document that teaches harmonic nesting of a concentric ring microphone array. As I discussed earlier, there is no explicit disclosure that the microphones in the first and third rings, and the microphones in the second and fourth rings, are harmonically related. While Dr Begault has stated that the configurations of D3 “would be modified to include harmonic nesting to achieve the octave-independent spatial resolution described by Liu”, he provides no motivation for the skilled addressee to have as a matter of course combined these two documents. Also, given that Dr Begault had knowledge of the claimed invention before giving his opinion, I cannot rule out an element of ex-post facto analysis in Dr Begault’s analysis.
It follows that I am not satisfied that the claimed invention lacks an inventive step in light of D3 and Liu.
D1 (Tiete) in view of D4 (EIS-7/Chan) and D5 (Chou)
The Opponent has also submitted that claims 1-9, 13-15, and 18-20 are obvious over D1 in combination with D4 and Chou D5.
The Opponent has submitted that although D1 does not explicitly state that the microphones in each of the concentric rings are positioned at ‘predetermined intervals’, this can be clearly inferred from figures 1 and 5 of D1. Alternatively, the feature of ‘predetermined interval’ is explicitly disclosed in D4 and “a skilled person would have been motivated to position the
microphones at predetermined intervals on each ring” as taught by D4 in the arrangement of D1.
I have already found that this feature is disclosed in D1 and hence I do not see the need to combine D1 with D4 for this purpose. So, the relevant question is whether it would have been obvious to combine D1 and D5 and if so whether the claimed invention would be obvious in light of this combined disclosure.
D5 is an article titled “Frequency-Independent Beamformer With Low Response Error” by Thomas Chou. It discloses a method of obtaining a frequency invariant beamformer by combining harmonic nesting with filter and sum beamforming.
Some of the relevant passages are as follows:
“The harmonic nesting approach is to cover a large frequency range by implementing several subarrays, each designed for a smaller frequency range, typically an octave.
The subarrays are physically superimposed, and their outputs are electronically summed. This log periodic structure is more economical than a single uniformly
spaced array, since element count is logarithmically rather than linearly related to ratio of highest to lowest operating frequencies.
Figure 2 shows the transducer geometry used in the four-octave beamformer implemented in this work. Note the additional economization in that some elements are shared among subarrays.

2.1. Filter-and-sum beamforming
The harmonic nesting just described reduces a broadband beamforming problem to a set of octave beamforming problems. The frequency-variations within the octave are then controlled by the frequency-dependent element weights implemented by a filter-and-sum beamformer structure, as shown in Figure 3”.[38]
[38] D5 at pages [2995] – [2996]
Dr Begault has submitted as follows:
187. Although Chou disclosed a linear configuration, a skilled artisan would have known that these harmonic nesting principles were applicable to a circular nested array like those disclosed in Chan and Tiete. Skilled artisans would have known to overlay the harmonic subarrays to obtain a “composite array” shown in Chou (D5, EIS-8 at 2995, Fig. 2), or to join the ends of the linear subarrays to form circular subarrays like those taught in Chan and Tiete (D4, EIS-7 at 167).
188. Persons of ordinary skill would have been motivated to modify Tiete and Chan with Chou’s teachings with a reasonable expectation of success. Harmonic nesting was a well-known technique for arrays to cover a larger frequency range by using subarrays, each covering a smaller frequency range such as an octave. D5, EIS-8 at 2995; see also D8, EIS-11 at 4-5 (“An example of this idea is the use of harmonically-nested subarrays…. The idea of harmonic nesting is to reduce the beampattern variation to that which occurs within a single octave.”). Because harmonic nesting used composite nested arrays that can share microphones, persons of ordinary skill in the art would have been motivated to use this more efficient design.
189. Harmonic nesting adds an additional benefit of proportionally breaking up the array into frequency bands that translate into a more economical arrangement of the microphones using scaled frequency apertures along the subarrays. This scaled aperture microphone arrangement of proportional frequency bands also provided the additional benefit of better control over the beam gain pattern. A person of skill in the art would have made this modification with a reasonable expectation of success by adjusting the spacing of Tiete and Chan’s microphones in the circular subarrays to be harmonically nested.
I do not find Dr Begault’s opinions persuasive. As reasoned earlier, in relation to the combination of D1 and Liu, there is nothing in D1 itself or in the evidence of Dr Begault to suggest that frequency invariance is an issue or even desirous with SoundCompass given its primary application for outdoor use and even if it was, harmonic nesting is not the only way to address this. There is also no express cross-reference in D1 to D5 or to any other document pertaining to harmonic nesting.

While D5 does disclose the concept of harmonic nesting, as acknowledged by Dr Begault, D5 discloses this concept in the context of a composite linear microphone array. While the array has four sub-arrays to cover four different octaves, the sub-arrays are physically superimposed to form the composite array. The sub-arrays are not spaced apart in parallel relationship as one may initially think from looking at the figure. The final array is the composite array that is shown in the bottom of the figure. While Dr Begault opines that the skilled addressee would have known to join the ends of the linear subarrays to form concentric circular subarrays like those in D1 with a reasonable expectation of success, I am not convinced. The teaching in D5 is for a composite linear array with the sub-arrays physically superimposed, whereas D1 discloses a circular array with microphones placed in concentric rings. The move from a composite linear array harmonic nesting where the sub-arrays are physically superimposed to a concentric ring array harmonic nesting in which the sub-arrays are concentrically spaced apart could hardly be called a matter of routine. Also, given that Dr Begault had knowledge of the claimed invention before giving his opinion, I cannot rule out that an element of ex-post facto analysis may have crept into Dr Begault’s analysis.
I am not satisfied that the claimed invention is obvious in light of D1 when combined with D5.
Summary in relation to Inventive Step
None of the particulars in relation to the ground of inventive step have been made out. None of the claims lack an inventive step.
SUPPORT
Section 60(3) of the Act allows the Commissioner, in deciding a case, “to take into account any ground on which the grant of a standard patent may be opposed, whether relied upon by the Opponent or not”.
Although lack of support is not one of the grounds of opposition relied on by the Opponent, during the course of writing this decision, I formed the preliminary view that arrangement of the microphones of the array in concentric rings that are nested within one another is part of the technical contribution of the invention, but as independent claim 13 does not include this concentric ring limitation, it is broader than is justified by the contribution to the art hence lacks support.
I therefore invited the parties to make submissions addressing this ground. The Applicant chose not to respond which is not surprising given their decision to not take part in the hearing. The Opponent responded that they agree with my preliminary view on lack of support.
Subsection 40(3) requires that the claim(s) must be supported by matter disclosed in the specification. Burley J explored the requirement of support in Merck Sharp & Dohme Corporation v Wyeth LLC (No 3) [2020] FCA 1477 at [546]- [547]:
“In CSR Building Products Ltd v United States Gypsum Company [2015] APO 72, Dr S D Barker adopted the summary provided by Aldous J in Schering Biotech at 252 – 253, which has been often followed in the United Kingdom (emphasis added):
...to decide whether the claims are supported by the description it is necessary to ascertain what is the invention which is specified in the claims and then compare that with the invention which has been described in the specification. Thereafter the court’s task is to decide whether the invention in the claims is supported by the description. I do not believe that the mere mention in the specification of features appearing in the claim will necessarily be a sufficient support. The word “support” means more than that and requires the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed.
That approach encapsulates broadly the claim support obligation under s 40(3). To it may be added the requirement that the technical contribution to the art must be ascertained. Where it is a product, it is that which must be supported in the sense that the technical contribution to the art disclosed by the specification must justify the breath of the monopoly claimed”.
In CSR Building Products Limited v United States Gypsum Company [2015] APO 72, the delegate Dr Barker formulated the following test in order to determine whether a claim is supported by the description.
·Construe the claims to determine the scope of the invention as claimed,
·Construe the description to determine the technical contribution to the art, and
·Decide whether the claims are supported by the technical contribution to the art.
The Technical Contribution to the Art
It is clear from a fair reading of the specification as a whole, that the technical contribution of the
invention lies in the arrangement of the microphones of the array in concentric rings that are nested within one another, with the microphones in each ring being rotationally offset and also being harmonically nested in relation to the frequencies that they are configured to handle.
The specification clearly highlights the benefits the advantages of the concentric ring arrangement in the passages below:
“[0028] In embodiments, this physical configuration can be achieved by arranging the microphones in concentric rings, which allows the array microphone to have equivalent beamwidth performance at any given look angle in a three-dimensional (e.g., X-Y-Z) space. As a result, the array microphone described herein can provide a more consistent output than array microphones with linear, rectangular, or square constellations”.
“[0048] More specifically, in embodiments, the microphones 106 can be arranged in concentric, circular rings of varying sizes, so as to avoid undesired pickup patterns (e.g., due to grating lobes) and accommodate a wide range of audio frequencies…”.
All of the embodiments that are described and depicted in the drawings also disclose only concentric ring arrangements. While paragraph [0059] would appear to contemplate “other configuration shapes, such as, for example, ovals, squares, rectangles, triangles, pentagons, or other polygons”, there is no further elaboration or depiction of such other shapes. Moreover, the requirement for the microphones in each configuration to be rotationally offset, would also appear to support the requirement for a circular array.
In my view, the microphones being arranged in concentric rings is clearly part of the technical contribution to the art of the invention described.
Claim 1 defines “a plurality of microphones arranged, on the substrate, in a number of concentric,
nested rings of varying sizes”, consistent with this technical contribution.
Independent claim 13 however is worded differently. The relevant definition in the claim is as follows:
“arranging a first plurality of microphones to form a first configuration on a substrate;
arranging a second plurality of microphones to form a second configuration on the
substrate, the second configuration concentrically surrounding the first configuration;
rotating at least one of the first and second configurations relative to a central axis of the array microphone;”
While the requirement of the second configuration to concentrically surround the first configuration clearly imports the limitation that the first and second configurations share the same centre, there is no further requirement that these two configurations should be in the form of a circle or ring. They could well be other shapes like square, rectangle or other polygons and still share a common centre. In my view, this makes the claims extend beyond the technical contribution to the art of the microphones being arranged in rings. Claim 13 therefore lacks support in the body of the specification.
CONCLUSION
None of the grounds relied upon by the Opponent have been made out. However, I find that claim 13 lacks support.
I allow the Applicant a period of two (2) months from the date of this decision to propose amendments that would overcome my adverse findings in relation to lack of support.
COSTS
The opposition is unsuccessful based on the grounds raised by the Opponent. I would normally therefore award costs against the Opponent. However, the ground of lack of support would not have come to light in the absence of the opposition. Furthermore, the Applicant has not sought costs in this matter. Hence, I am not making any award of costs in favour of the Applicant.
R Subbarayan
Delegate of the Commissioner of Patents