throbber
UNITED STATES PATENT AND TRADEMARK OFFICE
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`———————
`
`
`
`FITBIT, INC.,
`Petitioner,
`
`v.
`
`LOGANTREE LP,
`Patent Owner
`
`———————
`
`
`
`PETITION FOR INTER PARTES REVIEW
`
`OF
`
`U.S. PATENT NO. 6,059,576
`
`
`
`
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`
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`

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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`TABLE OF CONTENTS
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`I.
`
`INTRODUCTION ............................................................................................. 1
`
`II. MANDATORY NOTICES ............................................................................... 2
`
`A. Real Party-in-Interest................................................................................ 2
`
`B. Related Matters ......................................................................................... 2
`
`C. Lead and Back-up Counsel and Service Information .............................. 2
`
`III. GROUNDS FOR STANDING .......................................................................... 3
`
`IV. THE ’576 PATENT ........................................................................................... 3
`
`A. Overview of the ’576 Patent ..................................................................... 3
`
`B. Prosecution History .................................................................................. 6
`
`C. Claim Construction ................................................................................... 8
`
`1.
`
`2.
`
`“movement sensor” (Claims 108 and 137) ...................................... 8
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`“self-contained” (Claims 20, 108, 110, 114, 128, 130, and
`134) ................................................................................................. 10
`
`V. RELIEF REQUESTED AND THE REASONS FOR THE REQUESTED
`RELIEF ....................................................................................................................12
`
`VI. IDENTIFICATION OF CHALLENGES ........................................................13
`
`A. Challenged Claims and Statutory Grounds for Challenges.................... 13
`
`B. The Challenges Presented in This Petition are Neither Cumulative
`Nor Redundant ........................................................................................ 14
`
`VII. IDENTIFICATION OF HOW THE CLAIMS ARE UNPATENTABLE ......16
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`A. Challenge #1: Claims 20, 25, 105, 113, 135-137 are invalid under 35
`U.S.C. § 103 over Vonk in view of Zealear ........................................... 16
`
`1.
`
`2.
`
`Summary of Vonk .......................................................................... 16
`
`Summary of Zealear ....................................................................... 18
`
`3. Reasons to Combine Vonk and Zealear ......................................... 19
`
`4. Detailed Analysis ........................................................................... 22
`
`B. Challenge #2: Claims 20, 25, 26, 104, 105, 108, 110, 113, 114, 118,
`119, 123, 125, 128-132, 134, 135, and 138 are invalid under 35
`U.S.C § 103 over Gesink in view of Dougherty .................................... 32
`
`1.
`
`2.
`
`Summary of Gesink ........................................................................ 32
`
`Summary of Dougherty .................................................................. 36
`
`3. Reasons to Combine Gesink and Dougherty ................................. 39
`
`4. Detailed Analysis ........................................................................... 43
`
`C. Challenge #3: Claim 124 is invalid under 35 U.S.C § 103 over
`Gesink in view of Dougherty and Edwards ........................................... 66
`
`1.
`
`2.
`
`Summary of Gesink and Dougherty ............................................... 66
`
`Summary of Edwards ..................................................................... 67
`
`3. Reasons to Combine Gesink and Edwards .................................... 67
`
`4. Detailed Analysis ........................................................................... 69
`
`VIII. CONCLUSION ................................................................................................73
`
`
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`iii
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`
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`I.
`
`INTRODUCTION
`
`U.S. Patent No. 6,059,576 (“the ’576 Patent,” FTBT-1001) is generally
`
`directed to monitoring an individual’s motion with a portable electronic device.
`
`The ’576 Patent issued with 29 claims covering the portable device, a system
`
`including the device, and a method of using the device. Almost fourteen years after
`
`issuance, however, Patent Owner requested reexamination of the ’576 Patent in
`
`order to add over 150 new dependent claims. During the course of reexamination,
`
`the original independent claims were deemed unpatentable, forcing Patent Owner
`
`to add additional limitations to each. These added limitations—directed to
`
`detecting whether body motion meets a threshold—were well-known to persons of
`
`ordinary skill in the art before the earliest alleged priority date of the ’576 patent.
`
`In fact, the ’576 Patent itself acknowledges that it was previously known for
`
`portable electronic devices to detect when a human exceeds “a predetermined
`
`angle of flexion or extension.” FTBT-1001, 1:39-41. Additionally, U.S. Patent No.
`
`5,293,879 (FTBT-1011, “Vonk”) describes a wrist-based tremor detection device
`
`that differentiates tremors from normal arm motion based upon user-defined
`
`criteria. Moreover, U.S. Patent No. 5,803,740 (FTBT-1013, “Gesink”) describes a
`
`wearable electronic device that detects walking motion and determines if a user’s
`
`heading exceeds a user-defined veer amount. Both Vonk and Gesink, in
`
`combination with respective secondary references disclose every element of the
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`method recited in the ’576 Patent.
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`Accordingly, the evidence in this petition demonstrates that claims 20, 25,
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`26, 104, 105, 108, 110, 113, 114, 118, 119, 123-125, 128-132, and 134-138 of the
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`’576 Patent are unpatentable under (pre-AIA) 35 U.S.C. § 103. Fitbit, Inc.
`
`(“Petitioner”) therefore respectfully requests that these claims be held invalid and
`
`cancelled.
`
`II. MANDATORY NOTICES
`
`A. Real Party-in-Interest
`
`The real party-in-interest is Fitbit Inc.
`
`B. Related Matters
`
`As of the filing date of this petition, the ’576 Patent has been asserted in
`
`LoganTree LP v. FitBit Inc., Case No. 2:15-cv-01575 (“related litigation”), which
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`was filed in the Eastern District of Texas on October 2, 2015 and transferred to the
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`Northern District of California on May 5, 2016, Case No. 3:16-cv-02443.
`
`Additionally, due to word count limitations and given the voluminous number of
`
`dependent claims asserted in the related litigation, Petitioner is concurrently filing
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`a second IPR petition challenging claims of the ’576 Patent.
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`C. Lead and Back-up Counsel and Service Information
`
`Lead Counsel
`Andrew S. Ehmke
`HAYNES AND BOONE, LLP
`
`
`Phone: (214) 651-5116
`Fax: (214) 200-0853
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`2
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`2323 Victory Ave. Suite 700
`Dallas, TX 75219
`
`Back-up Counsel
`Scott T. Jarratt
`HAYNES AND BOONE, LLP
`2323 Victory Ave. Suite 700
`Dallas, TX 75219
`
`Phone: (972) 739-8663
`Fax: (214) 200-0853
`scott.jarratt.ipr@haynesboone.com
`USPTO Reg. No. 70,297
`
`Please address all correspondence to lead and back-up counsel. Petitioner
`
`andy.ehmke.ipr@haynesboone.com
`USPTO Reg. No. 50,271
`
`
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`consents to electronic service via email.
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`III. GROUNDS FOR STANDING
`
`Petitioner certifies that the ’576 Patent is eligible for inter partes review and
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`that Petitioner is not barred or estopped from requesting inter partes review
`
`challenging the patent claims on the grounds identified in this petition. Petitioner
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`waived service in the related litigation and Patent Owner filed the “Waiver of
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`Service Summons” on November 12, 2015 (see FTBT-1020 at 1), which is not
`
`more than one year before the filing of this Petition. See, e.g., The Scotts Co. LLC
`
`v. Encap, LLC, IPR2013-00110, Paper 12 at 2-3 (PTAB 2013). Petitioner has not
`
`filed a civil action challenging the validity of any claim of the ’576 Patent.
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`IV. THE ’576 PATENT
`
`A. Overview of the ’576 Patent
`
`The ’576 Patent is generally directed to an “electronic device, system and
`
`method to monitor and train an individual on proper motion during physical
`
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`movement.” FTBT-1001, Abstract. Because physical movement is a much-studied
`
`aspect of the human condition, the ’576 Patent recognizes that “a variety of
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`sensing, monitoring, and notification devices” have been previously created “[i]n
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`order to study and better understand safe human movement.” Id. at 1:18-21. Such
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`known devices could “quantitatively determine a range of motion of a human joint
`
`in angular degrees” and “provide a warning to the wearer through an audible alarm
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`or flashing light . . . when a predetermined angle of flexion or extension has been
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`exceeded.” Id. at 1:30-41. Accordingly, the ’576 Patent acknowledges that it was
`
`previously well-known to determine whether human motion exceeds a threshold
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`and, if so, provide a notification.
`
`The independent claims of the ’576 Patent generally recite similar subject
`
`matter. Independent claim 1 recites a “portable, self-contained device for
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`monitoring movement of body parts during physical activity,” claim 13 recites a
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`system including the portable device, and claim 20 recites a method of using the
`
`portable device.
`
`The ’576 Patent’s specification describes a “self-contained movement
`
`measuring device 12” with a “movement sensor 13.” FTBT-1001, 3:32-50. The
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`movement sensor 13 is illustrated as being both together with the other
`
`components of the device (Figs. 2A, 2B) and also as being “separate from the
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`remaining components 15 of the device 12” (Fig. 2C). Id. Figs. 2B and 2C are
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`annotated below based on the description in the specification:
`
`Self-contained
`movement
`measuring device 12
`
`Self-contained
`movement
`measuring device 12
`including chest
`sensor
`
`FTBT-1001, Figs. 2B, 2C (annotated); FTBT-1005, ¶25
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`
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`According to the specification, the movement sensor “detects movement and
`
`measures associated data such as angle, speed, and distance” and, in particular,
`
`measures “angular velocity of physical movement for subsequent interpretation.”
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`FTBT-1001, 4:38-45, 2:40-41. In various embodiments, the movement sensor may
`
`be an “accelerometer which is capable of detecting angles of movement in multiple
`
`planes” or “multiple accelerometers each capable of measuring angles of
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`movement in only one plane.” Id. at 4:38-48.
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`The ’576 Patent further explains that the “movement sensor 30 is
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`electronically connected to a microprocessor 32 which receives the signals
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`generated by the movement sensor 30 for analysis and subsequent processing.” Id.
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`at 4:52-55. Once the microprocessor has received and analyzed the movement data,
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`the microprocessor responds based on “user-programmable configuration
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`information” such as “an event threshold.” FTBT-1001, 4:40-65, 5:67-6:9. For
`
`example, the device may include several types of indicators (visual, audible,
`
`vibration-based) that are “activated to notify the wearer when a predetermined
`
`angle of motion has been exceeded.” Id. at 4:4-25.
`
`According to the ’576 Patent, the data collected by the movement
`
`measurement device may be downloaded to an external computer. FTBT-1001,
`
`8:31-34. And, “[o]nce the data from the device 12 has been downloaded to the
`
`computer 16, software running on the computer 16 is used to interpret the data and
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`produce a number of reports and histories.” Id. at 8:40-43.
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`As shown in this Petition, it was well-known before the ’576 Patent to (i)
`
`measure body movement with a portable device, (ii) provide an alert if the body
`
`movement exceeded a user-defined threshold, and (iii) download the collected
`
`movement data to an external computer
`
`B. Prosecution History
`
`The ’576 Patent issued from U.S. App. Ser. No. 08/976,228. During
`
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`prosecution, each of the three independent claims were amended to describe the
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`measuring device as a “portable, self-contained” device capable of measuring data
`
`associated with “unrestrained movement in any direction.” FTBT-1002 at 40-42.
`
`Responsive to these amendments, the Examiner allowed the pending 29 claims. Id.
`
`at 29.
`
`Fourteen years after issuance of the ‘576 Patent, Patent Owner filed a
`
`request for reexamination in an attempt to add 129 new claims without disturbing
`
`the original 29 claims. FTBT-1004 at 438-543. The reexam request was based
`
`upon prior art that, according to Patent Owner, raised a substantial new question of
`
`patentability yet did not teach every element of the independent claims. See, e.g.,
`
`id. at 494, 499, 502. Patent Owner’s attempt to confirm the patentability of the
`
`original claims was unsuccessful, however, as the Examiner found that the cited
`
`prior art taught every limitation of the independent claims, including the “portable,
`
`self-contained” and “unrestrained movement in any direction” features. Id. at 246-
`
`300. In response, the Patent Owner amended the independent claims to include the
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`limitations “detecting a first user-defined event …” and “storing first event
`
`information ….” Id. at 34-39. Notably, as part of these amendments, Patent Owner
`
`added an additional 27 new claims beyond the 129 new claims presented in the
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`reexam request, bringing the total number of new claims to 156. Id. at 168-206.
`
`The reexamination resulted in a reexamination certificate with 185 claims (see
`
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`FTBT-1003). The claims analyzed in this Petition are those found in the
`
`reexamination certificate.
`
`C. Claim Construction
`
`This petition presents claim analysis in a manner that is consistent with the
`
`broadest reasonable construction in light of the specification. See 37 C.F.R. §
`
`42.100(b). Under the broadest reasonable construction, claim terms are given their
`
`ordinary and accustomed meaning as would be understood by one of ordinary skill
`
`in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
`
`F.3d 1249, 1257 (Fed. Cir. 2007). Also, because the claim constructions proposed
`
`herein are based on the broadest reasonable construction, they do not necessarily
`
`apply to other proceedings that use different claim construction standards. See
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`Samsung Elecs Co. v. Virginia Innovation Sci., Inc., IPR2013-00569, Paper 9 at 2
`
`(PTAB 2013). For terms not addressed below, Petitioner submits that no specific
`
`construction is necessary for this proceeding.1
`
`1.
`
`“movement sensor” (Claims 108 and 137)
`
`
`1 Petitioner does not concede that any term not construed herein meets the statutory
`
`requirements of 35 U.S.C. § 112, or that the challenged claims recite patentable
`
`subject matter under 35 U.S.C. § 101.
`
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`The broadest reasonable interpretation of “a movement sensor” encompasses
`
`one or more movement sensors that together are capable of performing the
`
`functionality recited in the claims. See FTBT-1005, ¶34. First, dependent claim
`
`170, which depends from claim 13, recites “wherein said movement sensor
`
`comprises at least one accelerometer.” Because this dependent claim recites that
`
`the “movement sensor” can comprise more than one sensor, the recitation of “a
`
`movement sensor” in the independent claim cannot be limited to a single
`
`movement sensor.
`
`Second, the specification of the ’576 Patent contemplates utilizing multiple
`
`movement sensors in a portable movement measuring device: “Alternatively,
`
`multiple accelerometers, each capable of measuring angles of movement in only
`
`one plane, may be oriented within the device 12 so that movement in multiple
`
`planes may be detected.” FTBT-1001, 4:41-48. This description is consistent with
`
`dependent claim 170, which recites using “at least one accelerometer.”
`
`Third, the reexamination file history confirms that the broadest reasonable
`
`interpretation of “a movement sensor” encompasses one or more movement
`
`sensors. Specifically, in the Patent Owner-filed reexamination request, Patent
`
`Owner argued to the Patent Office that a plurality of sensors in a prior art reference
`
`(U.S. Patent No. 5,636,146 to Flentov) together disclose the “movement sensor” in
`
`the claims. See FTBT-1004, pp. 491-99; FTBT-1005, ¶¶36-37. In the Office
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`Action following the reexamination request, the Examiner agreed. See FTBT-1004,
`
`pp. 248, 250-51; FTBT-1005, ¶38.
`
`Accordingly, the broadest reasonable interpretation of “a movement sensor”
`
`encompasses one or more movement sensors. See FTBT-1005, ¶¶34-39.
`
`2.
`
` “self-contained” (Claims 20, 108, 110, 114, 128, 130, and 134)
`
`The ’576 Patent does not set forth an explicit definition of “self-contained”
`
`when used as an adjective modifying “device.” But, based on the claims,
`
`specification, and reexamination file history, the broadest reasonable interpretation
`
`of a “self-contained” device at least encompasses a device whose components are
`
`arranged at different locations around an individual’s body and not contained
`
`within a single housing. FTBT-1005, ¶41.
`
`First, dependent claim 6 (which depends from claim 1) recites:
`
`6. The device of claim 1 wherein said movement sensor is housed
`
`separately from said microprocessor.
`
`Because this dependent claim recites that the movement sensor of the device
`
`is housed separately from the microprocessor, the “self-contained” device of the
`
`independent claim cannot be limited to a device with all components within the
`
`same housing.
`
`Second, as discussed above, the specification describes an embodiment of
`
`the “self-contained movement measuring device 12,” shown in Fig. 2C (annotated
`
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`10
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`below), in which some components device are “separate from the remaining
`
`components 15 of the device 12” and are not contained within a single housing.
`
`FTBT-1001, 3:47-57 (emphasis added); see also id. at 3:52-62 (noting that a
`
`separate “movement sensor 13 can be placed anywhere on the individual’s body”
`
`because doing so “gives additional flexibility in the use of the device 12.”)
`
`Self-contained device 12
`includes components arranged
`at different locations around
`individual’s body
`
`
`
`
`
`FTBT-1001, Fig. 2C (annotated);
`FTBT-1005, ¶43.
`
`
`
`Third, the reexamination file history confirms this understanding of the
`
`broadest reasonable interpretation. Specifically, Patent Owner argued in its
`
`reexamination request—and the Patent Office agreed—that the “self-contained”
`
`device limitation of claims 1, 13, and 20 was met by a movement measuring device
`
`(reproduced below) whose components are arranged at different locations around
`
`
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`11
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`an individual’s body, and not contained within a single housing. See FTBT-1004,
`
`pp. 505-24, 251-254; FTBT-1005, ¶¶45-46.
`
`Device that includes components
`disposed at different locations
` around individual’s body
`
`FTBT-1016, Fig. 2 (annotated); FTBT-1005, ¶45
`
`
`
`Accordingly, the broadest reasonable interpretation of a “self-contained”
`
`device at least encompasses a device whose components are arranged at different
`
`locations around an individual’s body and not contained within a single housing.
`
`See FTBT-1005, ¶40-47.
`
`RELIEF REQUESTED AND THE REASONS FOR THE
`V.
`REQUESTED RELIEF
`
`Petitioner asks that the Board review the accompanying prior art and
`
`analysis, institute a trial for inter partes review of claims 20, 25, 26, 104, 105, 108,
`
`
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`12
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`110, 113, 114, 118, 119, 123-125, 128-132, and 134-138 of the ’576 Patent, and
`
`cancel those claims as invalid.
`
`As explained below and in the declaration of Petitioner’s expert, Dr. Joseph
`
`Paradiso, the concepts described and claimed in the ’576 Patent were not novel.
`
`This petition explains where each element of the challenged claims is found in the
`
`prior art and why the claims would have been obvious to a person of ordinary skill
`
`in the art (“POSITA”) before the earliest claimed priority date of the ’576 Patent.
`
`VI.
`
`IDENTIFICATION OF CHALLENGES
`
`A. Challenged Claims and Statutory Grounds for Challenges
`
`This petition challenges the validity of claims 20, 25, 26, 104, 105, 108, 110,
`
`113, 114, 118, 119, 123-125, 128-132, and 134-138 of the ’576 Patent on three
`
`grounds:
`
`Claims
`Challenge
`Challenge #1 20, 25, 105,
`113, 135-137
`
`Challenge #2 20, 25, 26, 104,
`105, 108, 110,
`113, 114, 118,
`119, 123, 125,
`128-132, 134,
`135, 138
`
`Ground
`35 U.S.C. § 103 over U.S. Patent No. 5,293,879
`to Vonk in view of U.S. Patent No. 4,817,628 to
`Zealear
`35 U.S.C. § 103 over U.S. Patent No. 5,803,740
`to Gesink in view of U.S. Patent No. 5,027,824
`to Dougherty
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`
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`13
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`Challenge #3 124
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`35 U.S.C. § 103 over Gesink in view of
`Dougherty and U.S. Patent No. 4,945,477 to
`Edwards
`
`
`Vonk (FTBT-1011)
`U.S. Patent No. 5,293,879 to Vonk issued March 15, 1994, and is thus prior
`
`art at least under 35 U.S.C. § 102(b).
`
`Zealear (FTBT-1012)
`U.S. Patent No. 4,817,628 to Zealear issued April 4, 1989, and is thus prior
`
`art at least under 35 U.S.C. § 102(b).
`
`Gesink (FTBT-1013)
`U.S. Patent No. 5,803,740 to Gesink was filed April 22, 1997 and issued
`
`September 8, 1998, and is thus prior art at least under 35 U.S.C. § 102(e).
`
`Dougherty (FTBT-1008)
`U.S. Patent No. 5,027,824 to Dougherty issued July 2, 1991, and is thus
`
`prior art at least under 35 U.S.C. § 102(b).
`
`Edwards (FTBT-1014)
`U.S. Patent No. 4,945,477 to Edwards issued July 31, 1990, and is thus prior
`
`art at least under 35 U.S.C. § 102(b).
`
`B. The Challenges Presented in This Petition are Neither Cumulative Nor
`Redundant
`
`The reexam certificate for the ‘576 Patent includes 185 claims. Of these 185
`
`claims, Patent Owner has asserted 30 in the related litigation. See FTBT-1023 at 1.
`
`Although Petitioner challenges only the asserted claims (and the non-asserted
`14
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`claims from which they depend), two petitions were necessary to adequately cover
`
`them all given the word count limitations and the large number of non-redundant
`
`dependent claims. In that regard, when a patent includes a voluminous number of
`
`claims, the “Petitioner is entitled to more than the usual latitude in challenging
`
`such a patent.” Ford Motor Co. v. Paice LLC, et. al., IPR2015-00800, Paper 12 at
`
`28 (PTAB Oct. 27, 2015).
`
`Additionally, the challenges in this Second Petition are not redundant to the
`
`challenges in the First Petition. Specifically, each challenge across both petitions is
`
`directed to at least one claim of the ‘576 Patent that is not addressed in any other
`
`challenge. For example, independent claims 1 and 13 and their dependents are only
`
`challenged once in the First Petition. Further, although claim 20 is challenged three
`
`times across the First Petition and this Second Petition, each of the three challenges
`
`exclusively addresses at least one of claim 20’s dependent claims due to the
`
`diverse subject matter of the dependent claims. The Board has found it proper to
`
`consider multiple challenges in such circumstances. See IPR2015-00800, Paper 12
`
`at 28-29 (“Where a dependent claim is challenged, we see no reason not to
`
`consider a challenge of the independent claim from which it depends over the same
`
`prior art, even if the independent claim has already been challenged elsewhere.”).
`
`Accordingly, Petitioner respectfully submits that the challenges presented in
`
`this Second Petition are neither cumulative nor redundant to the challenges in the
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`First Petition, and therefore requests that the Board institute on all challenges.
`
`VII.
`
`IDENTIFICATION OF HOW THE CLAIMS ARE UNPATENTABLE
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`A. Challenge #1: Claims 20, 25, 105, 113, 135-137 are invalid under 35
`U.S.C. § 103 over Vonk in view of Zealear
`
`1.
`
`Summary of Vonk
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`Like the ’576 Patent, Vonk describes a wearable body motion measurement
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`device. Specifically, Vonk is directed to a “miniaturized wristwatch-type device”
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`for “monitoring tremors in the limb of a patient.” FTBT-1011, 2:7-10, 2:24-25.
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`The wristwatch-like device includes an “accelerometer” configured for “detecting
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`limb movements and for generating movement signals representative thereof.” Id.
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`at 2:26-28. Along with the accelerometer, Vonk’s device includes “hardware and
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`software for processing the accelerometer output, as well as memory storage for
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`holding algorithm software and stored data obtained from the accelerometer.” Id. at
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`3:18-21. For example, Fig. 3 of Vonk illustrates that its device includes, among
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`other things, a “microcontroller,” memory in the form of an “EEprom,” and a “real
`
`time clock” (see id. at 6:1-33):
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`16
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`Accelerometer
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`Microcontroller
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`Real time clock
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`Memory
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`FTBT-1011, Fig. 3 (annotated); FTBT-1005, ¶51
`
`
`
`As movement signals are collected by the wristwatch-like device, Vonk
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`teaches that “tremor signals are reliably discriminated from other activity signals.”
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`FTBT-1011, Abstract. This is accomplished through the use of programmable
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`“processing variables” that define whether a movement signal represents a tremor
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`or other non-tremor activity. Id. at 3:40, 2:28-30. To that end, Vonk’s method
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`includes “establishing frequency and duration criteria applicable to the movements
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`of a tremor to be detected.” Id. at 8:61-62. The programmed frequency and
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`duration criteria are applied to an algorithm that determines whether detected
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`movement signals represent a tremor. FTBT-1011, 4:44-5:21. If the
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`microcontroller in the device determines that a tremor has been detected, then
`
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`17
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`“data relating to tremor identification, detected amplitude information, and time of
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`tremor” are stored in the EEprom memory. Id. at 7:1-4; see also id. at 8:14-16
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`(claiming “time means for generating and storing time signals corresponding to the
`
`time of detected tremors.”).
`
`To the extent Vonk does not explicitly teach that the accelerometer inside of
`
`its wristwatch-like device measures movement “in any direction,” it was well-
`
`known to utilize accelerometers that measure motion along three axes to detect
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`tremors before the earliest alleged priority date of the ’576 Patent, as evidenced by
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`Zealear described below. FTBT-1005, ¶55.
`
`2.
`
`Summary of Zealear
`
`Like Vonk, Zealear contemplates “evaluation of patients with involuntary
`
`tremors” with “a portable device.” FTBT-1012, 12:38-39, 12:7-9, 3:54, 14:45-54.
`
`Zealear’s portable device includes a “small accelerometer sensor 20” that
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`“measures the acceleration of a body part during movement.” Id. at 12:7-13.
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`Zealear further explains that “sensor 20 can be placed anywhere on the body and
`
`can measure force along one, two or three axes of three-dimensional space.” Id. at
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`12:51-53. A person of ordinary skill in the art would understand that an
`
`accelerometer that measures force along three axes is capable of measuring
`
`movement “in any direction.” FTBT-1005, ¶56. Zealear teaches that when the
`
`“sensor 20 [is] placed on a digit, the frequency of tremor in these patients can be
`
`
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`18
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`

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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`evaluated.” FTBT-1012, 14:53-54. Advantageously, “[s]ince sensor 20 has
`
`negligible mass and is easy to attach, the device is versatile and can monitor
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`movement of most muscles, extremities, or digits of the body depending upon the
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`clinical or experimental condition being examined.” Id. at 12:17-21.
`
`3.
`
`Reasons to Combine Vonk and Zealear
`
`For the reasons set forth below, one of ordinary skill in the art would have
`
`been motivated to combine the teachings of Vonk and Zealear in order to produce
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`the obvious, beneficial, and predictable result of Vonk’s wearable tremor detection
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`device having a sensor capable of measuring force along three axes—i.e., in any
`
`direction. FTBT-1005, ¶57.
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`First, one of ordinary skill in the art when considering the teachings of Vonk
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`would have also considered the teachings of Zealear, as they both describe portable
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`devices that detect tremors with accelerometers. FTBT-1005, ¶58. A person of
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`ordinary skill in the art looking to improve upon an accelerometer-based tremor-
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`detecting device would typically refer to literature describing other similar devices.
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`Id. As such, when evaluating the teachings of Vonk, one of ordinary skill in the art
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`would have naturally considered the teachings of Zealear. Id.
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`Second, modifying Vonk’s tremor detection device to include an
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`accelerometer that detects motion along three axes would have been predictable to
`
`a person of ordinary skill for a number of reasons. Most notably, as evidenced by
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`19
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`
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`Zealear and others in the embedded sensor arts, persons of ordinary skill in the art
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`were already utilizing triaxial accelerometers to evaluate tremors in portable
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`devices. FTBT-1005, ¶59. For example, in addition to Zealear described above,
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`International Publication WO 97/39677 to Lim describes a “portable device” for
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`“measuring a tremor in an extremity of the patient, such as the patient’s wrist,
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`hand, or foot.” FTBT-1017, Abstract, 4:25-33. Lim’s device utilizes “a light
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`weight, three axis accelerometer capable of measuring tremor at wrist 58 and
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`producing analog signals representative of the tremor.” Id. at 8:34-36.
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`Third, not only would modifying Vonk’s device to utilize a triaxial
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`accelerometer have been predictable, but it would have also been relatively
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`straightforward given the commercial availability and characteristics of triaxial
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`accelerometers in 1997. FTBT-1005, ¶60. For example, when explaining that “[i]t
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`may be necessary to use a biaxial or triaxial accelerometer” to obtain accurate
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`assessments, Zealear notes that these “types of accelerometers are commercially
`
`available.” FTBT-1012, 6:17-32; see also FTBT-1017, 8:36-38 (noting that a
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`“three axis accelerometer capable of measuring tremor at wrist” is “commercially
`
`available”). Further, Endevco—the same manufacturer that makes the
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`accelerometer mentioned in Vonk (5:22-32)—also makes a triaxial accelerometer
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`called the Model 23 that is “the world’s smallest triaxial piezoelectric
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`accelerometer.” FTBT-1018 at 1.
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`20
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`Petition for Inter Partes Review of U.S. Patent No. 6,059,576
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`Further, one of ordinary skill in the art would have been motivated to utilize
`
`a triaxial accelerometer in Vonk’s device because the capability to detect tremor
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`motion in any direction would advance Vonk’s stated goal of “discriminat[ing]
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`tremor-derived signals from … non-tremor signals” in order to “obtain accurate
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`tremor histories.” FTBT-1011, 1:14-15, 2:4-5; FTBT-1005, ¶61. Specifically,
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`Vonk teaches that its wristwatch-type device is meant for “ambulatory
`
`monitoring”—that is, monitoring of individuals whose motion is generally
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`uninhibited. FTBT-1011, 2:7-10. A triaxial accelerometer in Vonk’s device would
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`be capable of detecting the full range of motion expected of ambulatory
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`individuals. FTBT-1005, ¶61. As such, movement along any of the three
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`orthogonal axes would be captured, reducing the chance that a tremor would be
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`unnoticed or misidentified. Id. More complete movement data would increase
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`Vonk’s chances of “discriminat[ing] tremor-derived signals from … non-tremor
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`signals” and obtaining more accurate tremor histories. FTBT-1005, ¶61; FTBT-
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`1011, 1:14-15. Additionally, one of ord

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