UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Under Armour Inc.
`
`Petitioner
`
`V.
`
`adidas AG,
`Patent Owner
`
`Case No. IPR2015—00698
`
`Patent No. 8,092,345
`
`DECLARATION OF WILLIAM R. MICHALSON, PH.D.
`
`Bradium Technologies LLC - patent owner
`
`Exhibit 2076
`
`
`
`Microsoft Corporation - petitioner
`|PR2016-00449
`
`1
`
`Patent Owner adidas AG
`Exhibit 2002 ~ Page 1 of 81
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Under Armour Inc.
`
`Petitioner
`
`V.
`
`adidas AG,
`Patent Owner
`
`Case No. IPR2015—00698
`
`Patent No. 8,092,345
`
`DECLARATION OF WILLIAM R. MICHALSON, PH.D.
`
`Bradium Technologies LLC - patent owner
`
`Exhibit 2076
`
`
`
`Microsoft Corporation - petitioner
`|PR2016-00449
`
`1
`
`Patent Owner adidas AG
`Exhibit 2002 ~ Page 1 of 81
`
`
`
`I, William R. Michalson, declare as follows:
`
`I.
`
`Introduction
`
`1.
`
`I have prepared this Declaration for consideration by the Patent Trial
`
`and Appeal Board in connection with the above—referenced inter partes review
`
`proceeding.
`
`2.
`
`I am over eighteen years of age, and I would otherwise be competent
`
`to testify as to the matters set forth herein if I am called upon to do so.
`
`3.
`
`I have written this Declaration at the request of and have been retained
`
`by Kilpatrick Townsend & Stockton LLP, which represents Patent Owner adidas
`
`AG.
`
`4.
`
`I am being paid for my work in this matter at the rate of $425.00 per
`
`hour, plus reimbursement of reasonable expenses. My compensation does not
`
`depend on the outcome of this matter and I have no financial
`
`interest in that
`
`outcome.
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`5.
`
`I have been asked to provide my opinion as to the validity of United
`
`States Patent No. 8,092,345 (the ‘"345 patent”). Specifically, I have been asked to
`
`evaluate the Validity of claims 1-3, 6-11, l5—17, and 20 ofthe ‘345 patent.
`
`2
`
`Patent Owner adidas AG
`Exhibit 2002 ~ Page 2 of 81
`
`
`
`recording device with very little or no processing power. However, the device
`
`preferably includes some type of processor such as CPU 30 for processing and
`
`controlling the various signals.” Ex. 1004 at 7:53-58. Thus, Petitioner has not, and
`
`cannot establish that incorporating the database structure of DeLorme into the
`
`portable device of Mault, such that the device was capable of making the claimed
`
`data tagging manipulations of Claims 6, 7 and 8 of the ‘345 patent would have
`
`been nothing more than a “non-consequential design choice.” Ex. 1003 at 11 67.
`
`71.
`
`For
`
`these reasons,
`
`it
`
`is my opinion that Petitioner has not
`
`demonstrated that the combination of Mault and DeLorme would render claims 6
`
`obvious. Accordingly, instituted claims 6, and claims 7 and 8 which depend on
`
`claim 6, are patentable over the combination of Mault and DeLorme.
`
`B.
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`Petitioner Ignores Evidence of Secondary Considerations
`
`72.
`
`Petitioner has challenged the patentability of claims 1-3, 6-11, 15-17,
`
`and 20 on obviousness grounds. However, Petitioner has made no effort to address
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`key
`
`secondary
`
`considerations of non-obviousness
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`that
`
`demonstrate
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`the
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`patentability of the Instituted Claims. Namely, it is my opinion that Petitioner
`
`ignores evidence demonstrating the commercial success of products that embody
`
`the claimed invention,
`
`including products sold by Petitioner. Additionally,
`
`Petitioner ignores industry praise of these products that further underscores the
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`patentability of the Instituted Patents.
`
`35
`
`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
`
`a defense. of obviousness.
`
`I have been informed that
`
`these “secondary
`
`considerations” may include, among others,
`
`(1) commercial success of the
`
`invention; (2) a long-felt but unsolved need for the invention; (3) failure of others
`
`to make the invention; (4) teaching away from the invention; (5) initial skepticism
`
`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.
`
`I
`
`understand that each of these considerations may form an independent basis for
`
`non-obviousness of a patent.
`
`74.
`
`The first secondary consideration of non—obviousness that I conclude
`
`supports the patentability of the Instituted Claims consists of evidence of
`
`commercial success.
`
`I understand that commercial success of products that
`
`embody the invention indicates that the patented invention was not obvious, so
`
`long as there is a nexus between the commercial success of a product and the
`
`patented features.
`
`I have reviewed the Declaration of Dr. Mark T. Jones, as well as
`
`publicly available information regarding MapMyFitness mobile applications.
`
`It is
`
`my conclusion that the commercial success of these mobile applications supports a
`
`finding that the Instituted Claims are not obvious.
`
`75.
`
`The first secondary consideration of non—obviousness supporting the
`
`patentability of the Instituted Claims consists of evidence of commercial success of
`
`36
`
`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
`
`MapMyFitness suite of mobile applications and associated websites sold by
`
`Petitioner. MapMyFitness,
`
`Inc.
`
`(“MMF”), headquartered in Austin, Texas,
`
`launched in 2007. See MapMyFitness, About Us, Ex. 2005. Reaching a total of 30
`
`million users in 2014, MMF allows users to map, record, and share their exercise
`
`routes
`
`and workouts
`
`through its
`
`consumer brands
`
`such as MapMyRun,
`
`MapMyRide, and MapMyWalk, among others.
`
`Id.
`
`In comparison, research
`
`compiled by Running USA estimates the total number of runners in the United
`
`States to be 54 million. Running USA, 2014 State of the Sport — Part II: Running
`
`Industry Report, Ex. 2006. MMF specializes in building a fitness community by
`
`providing interactive tools to make fitness social.
`
`Id.
`
`lVIMF’s platform enables
`
`users to find local routes, courses, groups, and events; and offers an application
`
`that provides real—time fitness utilizing the GPS capabilities in smartphones for
`
`workouts, as well as enables users to follow the route on an interactive map, while
`
`logging time, distance,
`
`speed, pace, elevation, and calories burned.
`
`See
`
`Bloomberg, Company Overview of MapMyFitness, Inc., Ex. 2007.
`
`In December
`
`2013, Under Armour acquired MIVHJ for $150 Million. See Under Armour, Inc.
`
`SEC Form 10—K, for the fiscal year ended December 31, 2013, Ex. 2008 at page
`
`31.
`
`37
`
`Patent Owner adidas AG
`Exhibit 2002 - Page 37 of 81
`
`
`
`76.
`
`In my opinion, the commercial success of the MMF suite of products
`
`is plainly demonstrated by the number of MMF users and Under Armour’s
`
`purchase of MMF. Further, at least one third—pa1'ty analyst has noted that Under
`
`Armour’s acquisition of l\/IMF has and “Will continue to enhance the Under
`
`Armour brand’s relationship with athletes.” See Sterne Agee Company Report,
`
`“Under Armour Inc.: 2Q15 Preview,” (July 14, 2015), Ex. 2009.
`
`77.
`
`It is my opinion that the commercial success enjoyed by MMF is
`
`attributable to the features covered by the asserted claims. As shown in Dr. Jones’
`
`Declaration, the MMF products embody at least the claims of Instituted Claims 1,
`
`6, 7, 8, 9, 10, and 20. See also, Jones Decl. at 1] 28, pp. 11-30.
`
`78.
`
`I understand from Dr. Jones that the other l\/[MP mobile applications
`
`contain the same functionality with respect to the claims of the ‘345 patent. See
`
`Jones Decl. at 1[ 27. Additionally, I understand the MMF mobile applications
`
`generally have the same functionality for Android and iOS with respect to the
`
`claims of the ‘345 patent.
`
`Id. The one distinction is that only MVP users of the
`
`Android versions of the applications can use the in-app camera functionality.
`
`79.
`
`In my opinion, the nexus between the claims of the ‘345 patent and
`
`MapMyFitness’s commercial success is underscored by the fact that the ‘345
`
`patent claims are implicated by the social media functions of the MapMyFitness
`
`products. As detailed above, MapMyFitness users have the ability to save
`
`38
`
`Patent Owner adidas AG
`Exhibit 2002 - Page 38 of 81
`
`
`
`workouts (journal entries) with pictures linked to the workout. The user can then
`
`share the workout via social media including Via Twitter, Facebook, and in the
`
`Activity Feed of the MapMyFitness apps.
`
`80.
`
`Such social media traffic is an important driver for MapMyFitness’s
`
`commercial success.
`
`In an article dated January 20, 2014, Chris Glode, then
`
`MapMyFitness’s General Manager who is now the Vice President of the Digital
`
`Group for Under Armour Connected Fitness, acknowledged the importance of
`
`social media posts to MapMyFitness’s success. “Certainly there’s a lot of users
`
`who are very open about their fitness and they do want to share it on Facebook and
`
`Twitter, and that’s something we’ve always allowed —- in fact it’s been a big
`
`source of new traffic for us.” MobiHea1thNews, “MapMyFitness Activity Feed
`
`Enables Social Sharing Across Devices”, Ex. 2017. Mr. Glode’s statements make
`
`sense in View of industry research regarding how users become aware of new
`
`mobile applications. According to the report “Mobile App Marketing Insights:
`
`How Consumers Really Find and Use Your Apps,” 52 percent of users in a survey
`
`conducted by Google stated that they first became aware of smartphone apps
`
`through friends, family, and colleagues. Ex. 2018 at 10. Further, a study by
`
`Adobe Digital Index entitled “Social Intelligence Report” found that “posts with
`
`images provide the highest engagement rate.” Ex. 2019 at 7.
`
`39
`
`Patent Owner adidas AG
`Exhibit 2002 - Page 39 of 81
`
`
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`81.
`
`In sum, MapMyFitness has been a highly successful product, as
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`plainly demonstrated by its
`
`large number of users. MapMyFitness’s own
`
`employees have acknowledged that the sharing of information on social media
`
`about a user’s workouts, including posts with pictures associated with the workout,
`
`has been a key driver of MapMyFitness’s success. Such sharing via social media
`
`plainly embodies and practices the claims of the ‘345 patent. Accordingly, I
`
`conclude that the commercial success of MapMyFitness further supports a finding
`
`of non-obviousness for Instituted Claims 1, 6, 7, 8, 9, 10, and 20.
`
`82.
`
`Finally,
`
`I understand that praise of the invention or a product
`
`embodying the invention by those in the relevant
`
`industry indicates that the
`
`invention was not obvious.
`
`It is my opinion that industry praise of the MMF
`
`applications further supports my conclusion that the Instituted Claims are non-
`
`obvious.
`
`83.
`
`Running Shoes Guru lists MapMyRun as one of the 10 Best Running
`
`Apps for Android for 2015. Ex. 2020. The article highlights social media features,
`
`noting the fact that “[t]he app can be also connected to Facebook and Twitter so
`
`you can post workout updates to your favorite social media site allowing your
`
`friends to check up on your progress and give you a much—needed pat in [sic] the
`
`back for a job Well done.” Id.
`
`It also notes that “MapMyRun supports integration
`
`with other fitness trackers and heart rate sensors so you can expand the run metrics
`
`40
`
`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
`
`claims are embodied by social media posts about workout journal entries that
`
`include pictures.
`
`84.
`
`I\/IMF itself has also represented that “MMF has received frequent
`
`attention and praise from major media outlets and others in the technology industry
`
`since its inception. MMF, for example, was featured in INC magazine in 2006,
`
`and was spotlighted by Apple in advertising that appeared in the NY Times, USA
`
`Today, and Wall Street Journal
`
`in 2008. MapMyRun was selected as one of
`
`TIME’s ‘top 50 Websites of 201 1,’ the MapMyRun iPhone application was named
`
`one of TIMES ‘50 iPhone Apps of 2012,’ and in 2013 MapMyRun was named the
`
`Best Lifestyle Mobile App at the 17th annual Webby Awards.” adidas AG 12.
`
`Under Armour, Inc. and MapMyFimess, Inc, Case No. 14-cv-130 (D. Del.) D.I.
`
`170 ii 227, Ex. 2021.
`
`85.
`
`It is my opinion that the praise l\/IMF has received, all of which
`
`highlights features infringed, enabled,
`
`implicated, or contributed to by the
`
`Instituted Claims provides further evidence rebutting Petitioner’s obviousness
`
`arguments.
`
`86.
`
`The above secondary considerations provide additional support for my
`
`conclusion that all of the Institutecl Claims are non-obvious.
`
`41
`
`Patent Owner adidas AG
`Exhibit 2002 - Page 41 of 81
`
`
`
`X.
`
`Conclusion
`
`87. As detailed above,
`
`it
`
`is my opinion that the lnstituted Claims are
`
`patentable over the combination Mault in View of DeLorrne.
`
`88.
`
`I hereby declare that statements made herein of my own knowledge
`
`are true and that all statements made on information and belief are believed to be
`
`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.
`
`89.
`
`I declare under penalty of perjury that the foregoing is true and
`
`correct.
`
`Executed onNovember 19, 2015
`
`"\
`
`William R. Michalson, Ph.D.
`
`42
`
`Patent Owner adidas AG
`Exhibit 2002 - Page 42 of 81
`
`
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