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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Under Armour Inc.
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`Petitioner
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`V.
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`adidas AG,
`Patent Owner
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`Case No. IPR2015—00698
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`Patent No. 8,092,345
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`DECLARATION OF WILLIAM R. MICHALSON, PH.D.
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`Exhibit 2076
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`Bradium Technologies LLC - patent owner
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`Microsoft Corporation - petitioner
`|PR2016-00448
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`1
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`Patent Owner adidas AG
`Exhibit 2002 ~ Page 1 of 81
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`I, William R. Michalson, declare as follows:
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`I.
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`Introduction
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`1.
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`I have prepared this Declaration for consideration by the Patent Trial
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`and Appeal Board in connection with the above—referenced inter partes review
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`proceeding.
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`2.
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`I am over eighteen years of age, and I would otherwise be competent
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`to testify as to the matters set forth herein if I am called upon to do so.
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`3.
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`I have written this Declaration at the request of and have been retained
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`by Kilpatrick Townsend & Stockton LLP, which represents Patent Owner adidas
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`AG.
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`4.
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`I am being paid for my work in this matter at the rate of $425.00 per
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`hour, plus reimbursement of reasonable expenses. My compensation does not
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`depend on the outcome of this matter and I have no financial
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`interest in that
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`outcome.
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`5.
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`I have been asked to provide my opinion as to the validity of United
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`States Patent No. 8,092,345 (the ‘"345 patent”). Specifically, I have been asked to
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`evaluate the Validity of claims 1-3, 6-11, l5—17, and 20 ofthe ‘345 patent.
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`2
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`Patent Owner adidas AG
`Exhibit 2002 ~ Page 2 of 81
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`recording device with very little or no processing power. However, the device
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`preferably includes some type of processor such as CPU 30 for processing and
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`controlling the various signals.” Ex. 1004 at 7:53-58. Thus, Petitioner has not, and
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`cannot establish that incorporating the database structure of DeLorme into the
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`portable device of Mault, such that the device was capable of making the claimed
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`data tagging manipulations of Claims 6, 7 and 8 of the ‘345 patent would have
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`been nothing more than a “non-consequential design choice.” Ex. 1003 at 11 67.
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`71.
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`For
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`these reasons,
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`it
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`is my opinion that Petitioner has not
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`demonstrated that the combination of Mault and DeLorme would render claims 6
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`obvious. Accordingly, instituted claims 6, and claims 7 and 8 which depend on
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`claim 6, are patentable over the combination of Mault and DeLorme.
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`B.
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`Petitioner Ignores Evidence of Secondary Considerations
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`72.
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`Petitioner has challenged the patentability of claims 1-3, 6-11, 15-17,
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`and 20 on obviousness grounds. However, Petitioner has made no effort to address
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`key
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`secondary
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`considerations of non-obviousness
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`that
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`demonstrate
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`the
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`patentability of the Instituted Claims. Namely, it is my opinion that Petitioner
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`ignores evidence demonstrating the commercial success of products that embody
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`the claimed invention,
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`including products sold by Petitioner. Additionally,
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`Petitioner ignores industry praise of these products that further underscores the
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`patentability of the Instituted Patents.
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`35
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`Patent Owner aclidas AG
`Exhibit 2002 - Page 35 of 81
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`73. As noted above, I understand that certain factors may be used to rebut
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`a defense. of obviousness.
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`I have been informed that
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`these “secondary
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`considerations” may include, among others,
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`(1) commercial success of the
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`invention; (2) a long-felt but unsolved need for the invention; (3) failure of others
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`to make the invention; (4) teaching away from the invention; (5) initial skepticism
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`by experts; (6) subsequent professional praise in the industry; (8) acquiescence of
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`others in the industry that the patent is valid through licensing, and (9) copying.
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`I
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`understand that each of these considerations may form an independent basis for
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`non-obviousness of a patent.
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`74.
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`The first secondary consideration of non—obviousness that I conclude
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`supports the patentability of the Instituted Claims consists of evidence of
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`commercial success.
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`I understand that commercial success of products that
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`embody the invention indicates that the patented invention was not obvious, so
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`long as there is a nexus between the commercial success of a product and the
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`patented features.
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`I have reviewed the Declaration of Dr. Mark T. Jones, as well as
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`publicly available information regarding MapMyFitness mobile applications.
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`It is
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`my conclusion that the commercial success of these mobile applications supports a
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`finding that the Instituted Claims are not obvious.
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`75.
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`The first secondary consideration of non—obviousness supporting the
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`patentability of the Instituted Claims consists of evidence of commercial success of
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`36
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`Patent Owner adidas AG
`Exhibit 2002 - Page 36 of 81
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`products that embody the Instituted Claims. One such set of products is the
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`MapMyFitness suite of mobile applications and associated websites sold by
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`Petitioner. MapMyFitness,
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`Inc.
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`(“MMF”), headquartered in Austin, Texas,
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`launched in 2007. See MapMyFitness, About Us, Ex. 2005. Reaching a total of 30
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`million users in 2014, MMF allows users to map, record, and share their exercise
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`routes
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`and workouts
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`through its
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`consumer brands
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`such as MapMyRun,
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`MapMyRide, and MapMyWalk, among others.
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`Id.
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`In comparison, research
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`compiled by Running USA estimates the total number of runners in the United
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`States to be 54 million. Running USA, 2014 State of the Sport — Part II: Running
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`Industry Report, Ex. 2006. MMF specializes in building a fitness community by
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`providing interactive tools to make fitness social.
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`Id.
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`lVIMF’s platform enables
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`users to find local routes, courses, groups, and events; and offers an application
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`that provides real—time fitness utilizing the GPS capabilities in smartphones for
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`workouts, as well as enables users to follow the route on an interactive map, while
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`logging time, distance,
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`speed, pace, elevation, and calories burned.
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`See
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`Bloomberg, Company Overview of MapMyFitness, Inc., Ex. 2007.
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`In December
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`2013, Under Armour acquired MIVHJ for $150 Million. See Under Armour, Inc.
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`SEC Form 10—K, for the fiscal year ended December 31, 2013, Ex. 2008 at page
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`31.
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`37
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`Patent Owner adidas AG
`Exhibit 2002 - Page 37 of 81
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`76.
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`In my opinion, the commercial success of the MMF suite of products
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`is plainly demonstrated by the number of MMF users and Under Armour’s
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`purchase of MMF. Further, at least one third—pa1'ty analyst has noted that Under
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`Armour’s acquisition of l\/IMF has and “Will continue to enhance the Under
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`Armour brand’s relationship with athletes.” See Sterne Agee Company Report,
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`“Under Armour Inc.: 2Q15 Preview,” (July 14, 2015), Ex. 2009.
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`77.
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`It is my opinion that the commercial success enjoyed by MMF is
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`attributable to the features covered by the asserted claims. As shown in Dr. Jones’
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`Declaration, the MMF products embody at least the claims of Instituted Claims 1,
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`6, 7, 8, 9, 10, and 20. See also, Jones Decl. at 1] 28, pp. 11-30.
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`78.
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`I understand from Dr. Jones that the other l\/[MP mobile applications
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`contain the same functionality with respect to the claims of the ‘345 patent. See
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`Jones Decl. at 1[ 27. Additionally, I understand the MMF mobile applications
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`generally have the same functionality for Android and iOS with respect to the
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`claims of the ‘345 patent.
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`Id. The one distinction is that only MVP users of the
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`Android versions of the applications can use the in-app camera functionality.
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`79.
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`In my opinion, the nexus between the claims of the ‘345 patent and
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`MapMyFitness’s commercial success is underscored by the fact that the ‘345
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`patent claims are implicated by the social media functions of the MapMyFitness
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`products. As detailed above, MapMyFitness users have the ability to save
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`38
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`Patent Owner adidas AG
`Exhibit 2002 - Page 38 of 81
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`workouts (journal entries) with pictures linked to the workout. The user can then
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`share the workout via social media including Via Twitter, Facebook, and in the
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`Activity Feed of the MapMyFitness apps.
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`80.
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`Such social media traffic is an important driver for MapMyFitness’s
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`commercial success.
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`In an article dated January 20, 2014, Chris Glode, then
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`MapMyFitness’s General Manager who is now the Vice President of the Digital
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`Group for Under Armour Connected Fitness, acknowledged the importance of
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`social media posts to MapMyFitness’s success. “Certainly there’s a lot of users
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`who are very open about their fitness and they do want to share it on Facebook and
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`Twitter, and that’s something we’ve always allowed —- in fact it’s been a big
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`source of new traffic for us.” MobiHea1thNews, “MapMyFitness Activity Feed
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`Enables Social Sharing Across Devices”, Ex. 2017. Mr. Glode’s statements make
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`sense in View of industry research regarding how users become aware of new
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`mobile applications. According to the report “Mobile App Marketing Insights:
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`How Consumers Really Find and Use Your Apps,” 52 percent of users in a survey
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`conducted by Google stated that they first became aware of smartphone apps
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`through friends, family, and colleagues. Ex. 2018 at 10. Further, a study by
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`Adobe Digital Index entitled “Social Intelligence Report” found that “posts with
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`images provide the highest engagement rate.” Ex. 2019 at 7.
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`39
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`Patent Owner adidas AG
`Exhibit 2002 - Page 39 of 81
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`81.
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`In sum, MapMyFitness has been a highly successful product, as
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`plainly demonstrated by its
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`large number of users. MapMyFitness’s own
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`employees have acknowledged that the sharing of information on social media
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`about a user’s workouts, including posts with pictures associated with the workout,
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`has been a key driver of MapMyFitness’s success. Such sharing via social media
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`plainly embodies and practices the claims of the ‘345 patent. Accordingly, I
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`conclude that the commercial success of MapMyFitness further supports a finding
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`of non-obviousness for Instituted Claims 1, 6, 7, 8, 9, 10, and 20.
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`82.
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`Finally,
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`I understand that praise of the invention or a product
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`embodying the invention by those in the relevant
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`industry indicates that the
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`invention was not obvious.
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`It is my opinion that industry praise of the MMF
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`applications further supports my conclusion that the Instituted Claims are non-
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`obvious.
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`83.
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`Running Shoes Guru lists MapMyRun as one of the 10 Best Running
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`Apps for Android for 2015. Ex. 2020. The article highlights social media features,
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`noting the fact that “[t]he app can be also connected to Facebook and Twitter so
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`you can post workout updates to your favorite social media site allowing your
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`friends to check up on your progress and give you a much—needed pat in [sic] the
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`back for a job Well done.” Id.
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`It also notes that “MapMyRun supports integration
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`with other fitness trackers and heart rate sensors so you can expand the run metrics
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`40
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`Patent Owner adidas AG
`Exhibit 2002 - Page 40 of 81
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`that you can collect with each workout.” Id. As noted above, the ‘345 patent
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`claims are embodied by social media posts about workout journal entries that
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`include pictures.
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`84.
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`I\/IMF itself has also represented that “MMF has received frequent
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`attention and praise from major media outlets and others in the technology industry
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`since its inception. MMF, for example, was featured in INC magazine in 2006,
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`and was spotlighted by Apple in advertising that appeared in the NY Times, USA
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`Today, and Wall Street Journal
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`in 2008. MapMyRun was selected as one of
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`TIME’s ‘top 50 Websites of 201 1,’ the MapMyRun iPhone application was named
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`one of TIMES ‘50 iPhone Apps of 2012,’ and in 2013 MapMyRun was named the
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`Best Lifestyle Mobile App at the 17th annual Webby Awards.” adidas AG 12.
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`Under Armour, Inc. and MapMyFimess, Inc, Case No. 14-cv-130 (D. Del.) D.I.
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`170 ii 227, Ex. 2021.
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`85.
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`It is my opinion that the praise l\/IMF has received, all of which
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`highlights features infringed, enabled,
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`implicated, or contributed to by the
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`Instituted Claims provides further evidence rebutting Petitioner’s obviousness
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`arguments.
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`86.
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`The above secondary considerations provide additional support for my
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`conclusion that all of the Institutecl Claims are non-obvious.
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`41
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`Patent Owner adidas AG
`Exhibit 2002 - Page 41 of 81
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`X.
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`Conclusion
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`87. As detailed above,
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`it
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`is my opinion that the lnstituted Claims are
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`patentable over the combination Mault in View of DeLorrne.
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`88.
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`I hereby declare that statements made herein of my own knowledge
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`are true and that all statements made on information and belief are believed to be
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`true; and further that these statements were made with the knowledge that willful
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`false statements and the like so made are punishable by fine or imprisonment, or
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`both, ‘under Section 1001 of Title 18 of the United States Code.
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`89.
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`I declare under penalty of perjury that the foregoing is true and
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`correct.
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`Executed onNovember 19, 2015
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`"\
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`William R. Michalson, Ph.D.
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`42
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`Patent Owner adidas AG
`Exhibit 2002 - Page 42 of 81
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