Filed on behalf of: Fitbit, Inc.
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`Paper No. ____
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`FITBIT, INC.
`Petitioner
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`v.
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`BODYMEDIA, INC.
`Patent Owner
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`U.S. Patent No. 8,398,546
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`DECLARATION OF DR. MARK A. MUSEN
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`FITBIT EXHIBIT 1002
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION .......................................................................................... 1 
`I. 
`QUALIFICATIONS ....................................................................................... 1 
`II. 
`SUMMARY OF OPINIONS .......................................................................... 5 
`III. 
`IV.  LEVEL OF ORDINARY SKILL IN THE ART ............................................ 6 
`V. 
`BACKGROUND OF THE ’546 PATENT .................................................... 7 
`VI.  EFFECTIVE PRIORITY DATE OF THE ’546 PATENT .......................... 12 
`VII.  CLAIM CONSTRUCTION ......................................................................... 19 
`VIII.  REFERENCES ............................................................................................. 20 
`A.  Mault 089 ........................................................................................... 20 
`B.  Mault 470 ........................................................................................... 24 
`IX.  CERTAIN REFERENCES TEACH OR SUGGEST ALL THE
`CLAIMED FEATURES OF CLAIMS 1–29 OF THE ’546 PATENT ........ 28 
`A.  Ground 1: Mault 089 and Mault 470 Teach or Suggest All the
`Features of Claims 1–29 ..................................................................... 28 
`1. 
`Claim 1 ..................................................................................... 28 
`2. 
`Claim 2 ..................................................................................... 62 
`3. 
`Claim 3 ..................................................................................... 64 
`4. 
`Claim 4 ..................................................................................... 66 
`5. 
`Claim 5 ..................................................................................... 68 
`6. 
`Claim 6 ..................................................................................... 71 
`7. 
`Claim 7 ..................................................................................... 80 
`8. 
`Claim 8 ..................................................................................... 81 
`9. 
`Claim 9 ..................................................................................... 87 
`10.  Claim 10 ................................................................................... 90 
`11.  Claim 11 ................................................................................... 94 
`12.  Claim 12 ................................................................................... 95 
`13.  Claim 13 ................................................................................... 96 
`14.  Claim 14 ................................................................................... 99 
`15.  Claim 15 ................................................................................. 104 
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`X. 
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`16.  Claim 16 ................................................................................. 107 
`17.  Claim 17 ................................................................................. 110 
`18.  Claim 18 ................................................................................. 115 
`19.  Claim 19 ................................................................................. 118 
`20.  Claim 20 ................................................................................. 119 
`21.  Claim 21 ................................................................................. 122 
`22.  Claim 22 ................................................................................. 123 
`23.  Claim 23 ................................................................................. 127 
`24.  Claim 24 ................................................................................. 130 
`25.  Claim 25 ................................................................................. 132 
`26.  Claim 26 ................................................................................. 136 
`27.  Claim 27 ................................................................................. 137 
`28.  Claim 28 ................................................................................. 141 
`29.  Claim 29 ................................................................................. 144 
`CONCLUSION ........................................................................................... 146 
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`I, Mark A. Musen, declare as follows:
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`I.
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`INTRODUCTION
`1.
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`I have been retained by Fitbit Inc. (“Petitioner”) as an independent
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`expert consultant in this proceeding before the United States Patent and Trademark
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`Office regarding U.S. Patent No. 8,398,546 (“the ’546 patent”), which I understand
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`is labeled as Ex. 1001 in this proceeding. I have been asked to consider, among
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`other things, whether certain references teach or suggest the features recited in
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`claims 1–29 of the ’546 patent. My opinions are set forth below.
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`2.
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`I am being compensated at my normal consulting rate for the time I
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`spend on this matter. No part of my compensation is dependent on the outcome of
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`this proceeding or any other proceeding involving the ’546 patent. I have no other
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`interest in this proceeding.
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`II. QUALIFICATIONS
`3.
`I am a Professor of Medicine (Biomedical Informatics) at Stanford
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`University, where I have served on the faculty since 1988.
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`4. My undergraduate degree (1977) and medical degree (1980) are from
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`Brown University. During my time at Brown, I was a research assistant in the
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`Laboratory for Advanced Methods in Biological Data Acquisition, where I
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`programmed computers to control laboratory instruments and to acquire both
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`analog and digital signals from
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`those
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`instruments
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`to perform biological
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`experiments. I subsequently pursued clinical training in Internal Medicine at
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`Stanford University Hospital, and obtained my license to practice medicine (1981)
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`and became certified by the American Board of Internal Medicine (1983).
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`5.
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`In 1983, I entered the graduate program at Stanford University in
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`Medical Information Sciences (now called “Biomedical Informatics”), where I
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`received my Ph.D. in 1988. In graduate school, I took courses in databases,
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`programming languages, artificial intelligence, algorithms and data structures,
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`clinical decision-support systems, decision analysis, and multivariate statistics.
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`My dissertation research concerned new methods for the engineering of clinical
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`decision-support systems, and led to a line of investigation that I have continued
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`into the present time.
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`6.
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`At Stanford, I am the Director of the Stanford Center for Biomedical
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`Informatics Research. The faculty members in the Center teach students and
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`conduct research related to all aspects of the use of information technology in
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`medicine and healthcare—including new methods for analysis of data from
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`electronic health records, new architectures for clinical decision support, new
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`algorithms for interpreting biomedical images, and the use of genomic data to
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`inform clinical diagnosis. Faculty members in the Center also include Stanford
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`physicians responsible for operational aspects of all healthcare information
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`technology—both server-based and mobile—at Stanford Health Care and Stanford
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`Children’s Health.
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`7.
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`In my own research program, I am principal investigator of the Center
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`for Expanded Data Annotation and Retrieval, one of the eleven centers of
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`excellence that the National Institutes of Health (NIH) have supported as part of
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`the Big Data to Knowledge (BD2K) Program since 2014. I chair the BD2K
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`Centers Steering Committee and the BD2K Metadata Working Group. I am also
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`principal investigator of the National Center for Biomedical Ontology, one of the
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`seven National Centers for Biomedical Computing created by the NIH in 2005.
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`8.
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`At Stanford, I teach students in the Biomedical Informatics graduate
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`program. I offer a large classroom-based course entitled, “Modeling Biomedical
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`Systems,” where I teach methods of conceptual modeling, object-oriented design,
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`and the engineering of computing systems that assist users with medical decision
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`making.
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`9.
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`I have just completed a four-year term as a member of the National
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`Advisory Council on Biomedical Imaging and Bio-engineering. In this capacity, I
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`participated in numerous policy discussions regarding programs at the National
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`Institute of Biomedical Imaging and Bio-engineering (NIBIB) of the NIH, where a
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`major thrust is the use of mobile technology to aid healthcare in the developing
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`world. Along with other members of the Council, I provided a second level of peer
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`review for grant applications to the Institute that had already been refereed by
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`national experts in bio-engineering.
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`10.
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`I have received many honors and awards for my research. I have been
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`elected a Fellow of the American College of Medical Informatics (1989); I
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`received the Donald A. B. Lindberg Award for Innovation in Informatics from the
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`American Medical Informatics Association (2006); members of my research team
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`and I received the “Ten Years” Award from the Semantic Web Science
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`Association in 2014. Within the academic medicine community, I have been
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`named a Fellow of the American College of Physicians (1990) and elected to
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`membership in both the American Society for Clinical Investigation (1997) and the
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`Association of American Physicians (2010). I have served as scientific program
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`chair for several international conferences, including the American Medical
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`Informatics Association Annual Symposium (2003), the International Semantic
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`Web Conference (2005), and the International Conference on Knowledge Capture
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`(2011). I am the founding co-editor-in-chief of the journal Applied Ontology.
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`11.
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`I serve as a consultant to the American Medical Association, to the
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`World Health Organization, to other academic organizations, and to industry. My
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`curriculum vitae documents more than 400 scientific publications in journals,
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`books, and peer-reviewed conferences, as well as invited presentations on my work
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`in biomedical information technology at numerous international meetings.
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`12. My C.V. is included as Exhibit 1018.
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`III. SUMMARY OF OPINIONS
`13. All of the opinions contained in this Declaration are based on the
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`documents I reviewed and my knowledge and professional judgment. In forming
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`the opinions expressed in this Declaration, I reviewed the documents mentioned in
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`this Declaration, including the ’546 patent (Ex. 1001), the prosecution file history
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`of U.S. Application No. 10/940,214 (“the ’214 application”) (Ex. 1003), U.S.
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`Patent Publication No. 2001/0049470 to Mault et al. (“Mault 470”) (Ex. 1004),
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`International Application Publication No. WO 01/39089 to Mault (“Mault 089”)
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`(Ex. 1005), U.S. Patent No. 7,689,437 to Teller et al. (“the ’437 patent”) (Ex.
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`1006), U.S. Patent No. 6,605,038 to Teller et al. (“the ’038 patent”) (Ex. 1007), the
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`prosecution file history of U.S. Application No. 09/595,660 (“the ’660
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`application”) (Ex. 1008), the prosecution file history of U.S. Application No.
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`09/602,537 (“the ’537 application”) (Ex. 1009), the prosecution file history of U.S.
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`Application No. 10/638,588 (“the ’588 application”) (Ex. 1010), a comparison of
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`the specification of U.S. Patent No. 8,398,546 to the specification of U.S. Patent
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`No. 6,605,038 (Ex. 1011), and the February 17, 2016 Markman order in Certain
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`Activity Tracking Devices, Systems, and Components Thereof, ITC Inv. 337-TA-
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`963 (Ex. 1015).
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`14. My opinions are additionally guided by my appreciation of how a
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`person of ordinary skill in the art would have understood the claims of the ’546
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`patent at the time of the alleged invention, which I have been asked to assume is in
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`the September 2003 timeframe.
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`15. Based on my experience and expertise, it is my opinion that certain
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`references teach or suggest all the features recited in claims 1–29 of the ’546
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`patent.
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`IV. LEVEL OF ORDINARY SKILL IN THE ART
`16. At the time of the alleged invention, which I have been asked to
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`assume is in the September 2003 timeframe, a person of ordinary skill in the art
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`would have had at least two years of relevant college-level coursework in an
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`engineering field with one to two years of post-education relevant work
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`experience.
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`17.
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`In determining the level of ordinary skill, I have been asked to
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`consider, for example, the types of problems encountered in the art, prior solutions
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`to those problems, the rapidity with which innovations are made, the sophistication
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`of the technology, and the educational level of active workers in the field. Active
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`workers in the field would have had at least several years of college-level
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`coursework in a relevant engineering field, as noted above. Depending on the level
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`of education, it would have taken between 1–2 years for a person to become
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`familiar with the problems encountered in the art and to become familiar with the
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`prior and current solutions to those problems.
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`18.
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`In my capacity as a professor at Stanford University, a large
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`proportion of the students whom I train and supervise would also be considered
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`persons of ordinary skill in the art under the above level of skill during the relevant
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`timeframe.
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`19. A person of ordinary skill in the art in September 2003 would be
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`familiar with the general use of sensors to measure data in a medical or related
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`context, which would include for the purpose of monitoring weight, and with
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`database and computer science concepts relating to the storage and retrieval of
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`those data for processing and analysis. A person of ordinary skill in the art would
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`have at least some experience relating to the use of sensors in wearable medical
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`devices.
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`V. BACKGROUND OF THE ’546 PATENT
`20. The ’546 patent relates to a weight control system for an individual.
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`Ex. 1001 at 1:24–26. The ’546 patent explains that the system is “directed to
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`achieving an optimum energy balance, which is essential to progressing toward
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`weight loss-specific goals.” Id. at 4:21–24. “Weight Manager” software receives
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`information input by the individual including their height, weight, gender,
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`estimated physical activity level. See Ex. 1001 at 22:47–23:2. The software then
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`allows the individual to establish weight-loss goals, include a “current weight, goal
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`weight, [and] goal date to reach the goal weight.” Id. at 23:9–14. Based on this
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`input, the system suggests a “diet and exercise plan,” which may include
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`“appropriate exercises” and “daily meal plans to help the [individual] attain their
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`health and fitness goals.” Id. at 23:27–51.
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`21. Like existing weight-loss programs, the system includes the ability to
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`track caloric consumption by “manual input of consumed food items,” Ex. 1001 at
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`4:56–5:6, and to track energy expenditure using “an apparatus on the body” to
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`continuously monitor various data, which are “uploaded to [a] software platform
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`for determining the number of calories burned, the number of steps taken and the
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`duration of physical activity,” id. at 4:33–43, 4:52–55. This wearable apparatus
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`may include sensors for detecting data that can be used to derive parameters such
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`as the individual’s heart rate, pulse rate, or activity level—which the ’546 patent
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`describes as “data indicative of . . . physiological parameters,” id. at 10:22–30,
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`Table 1—and sensors for detecting data that “relat[e] to activity state or the
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`environment surrounding the individual” and includes data used to determine air
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`quality, ambient temperature, or global positioning of the individual—which the
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`’546 patent describes as “data indicative of . . . contextual parameters,” id. at 13:1–
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`7.
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`22. According to the ’546 patent, the sensors and the methods of
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`generating signal data representative of these physiological parameters using the
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`sensors were “well known.” Id. at 10:35–38. Table 1 of the ’546 patent
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`(reproduced below) provides examples of these physiological parameters and the
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`corresponding sensors used to generate data representative of those parameters.
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`23. Table 2 of the ’546 patent (excerpted below) provides examples of
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`information relating to an individual’s physiological state that can be derived—
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`which is referred to interchangeably as “derived information” or “derived
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`parameters” by the ’546 patent—and the types of physiological parameters that
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`“can be used” to derive such information.
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`24. The ’546 patent provides no specific algorithms or methods for
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`deriving any of the exemplary physiological status data. Rather, the ’546 patent
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`explains that microprocessor 10 “is programmed to derive such information using
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`known methods based on the data indicative of one or more physiological
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`parameters.” Id. at 12:30–34.
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`25. The energy expenditure information collected from the wearable
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`apparatus and the caloric intake information entered by the individual are used to
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`provide feedback regarding the individual’s progress toward weight-loss goals and
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`recommendations for reaching those goals. Ex. 1001 at 5:7–10. This feedback may
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`include suggestions of a new meal plan or new exercise plan. Id. at 35:23–38.
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`These “suggestions may include simple hints,” such as to “visit the gym more, park
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`farther from the office, or log food items more regularly,” id. at 35:50–55, or more
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`targeted messages such as “You’ve been too lazy! I’m ordering you to get out there
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`and exercise more this week,” id. at 38:15–17.
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`VI. EFFECTIVE PRIORITY DATE OF THE ’546 PATENT
`26.
`I have been informed that, in order to gain the benefit of the filing
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`date of an earlier application, each application in the chain leading back to the
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`earlier application must describe all the limitations of the claims of the ’546 patent
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`in sufficient detail that one skilled in the art can clearly conclude that the inventor
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`invented the claimed invention as of the filing date sought.
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`27.
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`I understand that, although the exact terms of the claims need not be
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`used, the specification must contain an equivalent description of the claimed
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`subject matter. I have been informed that this requirement is satisfied with
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`descriptive means such as words, structures, figures, diagrams, formulas, etc., that
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`fully set forth the claimed invention. I understand that the inquiry is not a question
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`of whether one skilled in the art might be able to construct the patentee’s claimed
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`invention from the teachings of the disclosure, but whether the application
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`necessarily discloses that particular claimed invention.
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`28.
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`I understand that the ’214 application that issued as the ’546 patent
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`was filed on September 13, 2004 (Ex. 1003), claims priority to U.S. Provisional
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`Application Nos. 60/502,764 and 60/555,280, and is a continuation-in-part of an
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`application filed on August 11, 2003 (the ’588 application) (Ex. 1010), which itself
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`is a continuation of an application filed on June 23, 2000 (now the ’038 patent)
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`(Exs. 1007 and 1009). The ’038 patent is a continuation-in-part of an application
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`filed on June 16, 2000 (now the ’437 patent) (Exs. 1006 and 1008). I understand
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`that unless the claims of the ’546 patent are supported by disclosure in the ’038 and
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`’437 patents, the claims of the ’546 patent are not entitled to a filing date in the
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`June 2000 timeframe.
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`29.
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`I understand that Petitioner contends that the claims of the ’546 patent
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`rely on support from new matter introduced in the ’214 application (Ex. 1003),
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`which issued as the ’546 patent. I understand that Petitioner contends that the
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`specification and claims as filed of the applications that issued as the ’437 patent
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`(Exs. 1006 and 1008) and the ’038 patent (Exs. 1007 and 1009) (collectively, “the
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`June 2000 applications”) do not include an equivalent description of all the
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`limitations of at least claim 1 of the ’546 patent—from which all other 28 claims in
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`the ’546 patent depend.
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`30.
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`It is my opinion that the June 2000 applications do not contain an
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`equivalent description of a number of limitations of claim 1 of the ’546 patent such
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`that one of ordinary skill in the art can clearly conclude that the patentee invented
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`the claimed invention in the June 2000 timeframe.
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`31. As discussed herein, I understand new matter to be descriptions,
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`figures, etc. that are added to the specification of a later patent that is not included
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`or part of a patent application to which the later patent claims priority. A
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`substantial amount of new matter was added to the specification of the ’546 patent
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`as compared to the ’038 patent. See Ex. 1011 (highlighting all new matter added to
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`specification of the ’546 patent as compared to the specification of the ’038
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`patent). For example, more than 46 of the 60 columns of the specification contain
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`some amount of new matter. See id. at 33–62. More than half of the 60 columns in
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`the specification consist entirely of new matter. See id. Ten of the thirty figures are
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`new matter. See id. at 6–32.
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`32. For example, the June 2000 applications do not contain an equivalent
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`description of the limitation in claim 1 reciting that the processing unit is
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`configured to “(ii) prompt the individual to establish a weight-loss goal” or “(iv)
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`determine weight loss,” Ex. 1001 at 60:23–24 and 60:27. The specification of the
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`’038 patent mentions the individual’s weight several times. See Ex. 1007 at 13:10–
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`12, 14:57–59, 15:46–48, and 15:53–58. However, these mentions of weight relate
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`to either asking for (id. at 13:10–12) or displaying (id. at 15:53–58) the
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`individual’s current weight, and do not provide an equivalent description for a
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`processing unit configured to prompt the individual to establish a weight goal. In
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`other portions of the specification, these mentions of weight relate to using the
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`individual’s current weight to suggest nutritional targets (id. at 14:57–59) or a
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`target caloric intake (id. at 15:46–48), and do not provide an equivalent description
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`for a processing unit configured to determine the individual’s weight-loss. Nor
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`does any original claim as filed in the June 2000 applications recite a limitation
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`providing an equivalent description of a processing unit configured to prompt the
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`individual to establish a weight-loss goal or to determine the individual’s weight
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`loss. See Ex. 1008 at 128–46 and Ex. 1013 at 153–73 (claims as filed for the June
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`2000 applications).
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`33. The issued claims of the ’437 patent recite “a preset physiological
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`status goal.” See Ex. 1006 at 20:65–21:24. In view of the specification of the ’437
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`patent, however, this goal relates to the attainment of a “healthy daily routine” of
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`an individual that “may include any combination of specific suggestions for
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`incorporating proper nutrition, exercise, mind centering, sleep, and selected
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`activities of daily living in the [individual]’s life.” See id. at Ex. 1006 at 15:28–32
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`and Fig. 5. Indeed, it is my opinion that one of ordinary skill in the art would not
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`understand a “physiological status goal” to include weight-loss. This is supported
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`by the specification of the ’437 and ’038 patents, as “weight” is not listed as a
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`“physiological parameter of the individual.” See id. at 4:38–46 and Table 1; Ex.
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`1007 at 4:14–23 and Table 1. Nor is weight listed as a derived parameter. See Ex.
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`1006 at Table 2; Ex. 1007 at Table 2. It is my opinion that, in view of the
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`specifications of the ’437 and ’038 patents, one of ordinary skill in the art would
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`not have understood a “preset physiological status goal” to be an equivalent
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`description for a processing unit configured to prompt the individual to establish a
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`weight-loss goal.
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`34. Further, there is no equivalent description in the June 2000
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`applications of a processing unit configured to provide feedback for an individual’s
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`weight-loss goal by generating a first suggestion to engage in an activity to assist
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`the individual in achieving the weight-loss goal (claim 1.b.iii), generating a second
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`such suggestion if the weight loss is not progressing toward the goal (claim 1.b.v),
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`or basing the second suggestion on a determination of whether the individual
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`complied with the first suggestion related to the individual’s weight-loss goal
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`(claim 1, first “wherein” statement) such that a skilled artisan could clearly
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`conclude that the inventor invented the claimed invention. Indeed, because the
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`June 2000 applications do not provide an equivalent description for a processing
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`unit configured to prompt the individual to establish a weight-loss goal or to
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`determine weight-loss, it is unsurprising that they do not provide an equivalent
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`description for generating suggestions based on a weight-loss goal and a
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`determination of whether the individual complied with suggestions related to the
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`individual’s weight-loss goal.
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`35.
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`In my opinion, the portion of the specification that provides an
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`equivalent description of the limitation of claim 1 reciting a processing unit
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`configured to prompt the individual to establish a weight-loss goal is the following:
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`On the weight goals screen 1025, the user is given the option of
`setting weight loss goals. If the user selects this option, the user will
`be asked to enter the following information to establish these goals:
`current weight, goal weight, goal date to reach the goal weight, the
`target daily caloric intake and the target daily caloric burn rate.
`Ex. 1001 at 23:9–14; Ex. 1003 at 42 (p. 40, lines 16–19 of the specification as
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`filed).
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`36. This is new matter added to the ’214 application that is not part of the
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`specifications or claims as filed of the June 2000 applications. See Ex. 1011 at 44
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`(23:9–14), 105.
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`37.
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`In my opinion, the portions of the specification that provide an
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`equivalent description of the limitation of claim 1 reciting a processing unit
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`configured to determine weight-loss are the following:
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`Fig. 8 is a block diagram illustrating a weight tracking subsystem
`1040 which allows a user to record weight changes over time and
`receive feedback. A user enters an initial weight entry 1045 into the
`weight tracking subsystem 1040. The weight tracking subsystem 1040
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`calculates the percent weight change 1050 since the last time the user
`has made a weight entry.
`Ex. 1001 at 25:36–42; Ex. 1003 at 47 (p. 45, lines 6–9 of the specification as filed).
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`As an alternate embodiment, DCI can be estimated by combining
`measurements of weight taken at different times with estimates of
`energy expenditure. It is known from the literature that weight change
`(measured multiple times under the same conditions so as to filter out
`effects of water retention and the digestive process) is related to
`energy balance and caloric intake as follows: (Caloric Intake–Energy
`Expenditure)/K=weight gain in pounds, where K is a constant
`preferably equal to 3500. Thus, given that an aspect of the present
`invention relates to a method and apparatus for measuring energy
`expenditure that may take input from a scale, the caloric intake of a
`person can be accurately estimated based on the following equation:
`Caloric Intake=Energy Expenditure+(weigh gain in pounds*K). This
`method requires that the user weigh themselves regularly, but requires
`no other effort on their part to obtain a measure of caloric intake.
`Ex. 1001 at 40:4–10 (Table 4) and 58:66–59:1; Ex. 1003 at 74 (Table 4) and 108–
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`09 (pages 106–07 of the specification as filed).
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`38. These sections are all new matter added to the ’214 application that
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`are not part of the specifications or claims as filed of the June 2000 applications.
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`See Ex. 1011 at 52 (40:4–10), 137; id. at 61–62 (58:66–59:14), 171–72.
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`VII. CLAIM CONSTRUCTION
`39.
`I understand that in this proceeding, a claim receives its broadest
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`reasonable construction in light of the specification of the patent in which it
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`appears. I also understand that in these proceedings, any term that is not construed
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`should be given its plain and ordinary meaning under the broadest reasonable
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`construction. I have followed these principles in my analysis below.
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`40.
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`I understand that in a related proceeding, an administrative law judge
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`has construed the term “contextual data of the individual” under its plain and
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`ordinary meaning to be “data relating to an individual’s activity state, environment,
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`surroundings, or location.” Ex. 1015 at 17–22 and 33. I have been instructed to use
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`this construction as the term’s broadest reasonable construction. This construction
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`is consistent with the specification of the ’546 patent. See Ex. 1001 at 10:5–9 and
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`13:1–7. In my opinion, as discussed below in connection with claim 1 in paragraph
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`53, the references discussed in this Declaration teaches “contextual data” under
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`this construction. I have been instructed to interpret all other terms of the ’546
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`patent’s claims under their plain and ordinary meaning under the broadest
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`reasonable construction.
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`VIII. REFERENCES
`A. Mault 089
`41. Mault 089 teaches a weight-control system that includes a portable
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`computing device such as a PDA that is connected to a remote computer system
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`over a communications network. Ex. 1005 at 25:21–26:7. The PDA receives input
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`from the individual, a physical activity sensor, body weight scales, and an indirect
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`calorimeter. Id. See id. at Fig. 1.
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`42. Mault 089 teaches that the PDA includes a software program that
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`includes the functionality of diet logging, and that enables the individual to record
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`consumed food. Id. at 4:22–5:3. The software allows the individual to enter weight
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`loss goals. Id. at 5:4 and 5:8–9. The individual measures their resting metabolic
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`rate (RMR) using, for example, an indirect calorimeter, and enters their RMR into
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`a software program on the PDA. Id. at 5:6–8. The program uses the individual’s
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`entered RMR and weight-loss goal to generate a first suggestion of an assumed
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`level of physical activity and a first suggestion of a level of caloric intake that will
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`assist the individual in achieving their weight loss goals. Id. at 5:9–12. In
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`particular, the system taught by Mault 089 may generate “[a] suggested level of
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`activity related energy expenditure,” which is “converted to a suggested exercise
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`program, for example exercises suggested each day or every few days.” Id. at
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`26:13–15 and Fig. 2.
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`43. During the course of the weight-control program using the weight-
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`control system taught by Mault 089, an “application program on the remote
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`computer (server software) receives the calorie management data from the PDA at
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`intervals, the data comprising caloric intake data, activity data, body weight, and
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`resting metabolic rate of the [individual].” Id. at 26:12–14. Mault 089 teaches that
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`“[t]he server software analyzes the data in relation to the probability of the
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`[individual] meeting weight goals, and provides feedback to the [individual] over
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`the communications network.” Id. at 26:14–16. This feedback is transmitted back
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`to the PDA. Id. at 5:19–21. Mault 089 teaches that the feedback is provided “to the
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`[individual] based on the [individual’s] progress towards health goals, such as
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`weight loss.” Id. at 30:19–20. See id. at Figs. 4–5.
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`44. For example, Mault 089 teaches that “if exercise goals [based on the
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`first suggestion generated by the system] are not met during the first half of the
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`program,” the system can generate a second suggestion in the form of