IPR2017-01058 Fyfe Declaration
`U.S. Patent 6,434,212
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` ____________
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`GARMIN INTERNATIONAL, INC.
`Petitioner
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`v.
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`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES
`Patent Owner
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`____________
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`IPR2017-01058
`Patent 6,434,212
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`DECLARATION OF DR. KENNETH FYFE
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`U.S. Patent 6,434,212
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` ____________
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`GARMIN INTERNATIONAL, INC.
`Petitioner
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`v.
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`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES
`Patent Owner
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`____________
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`IPR2017-01058
`Patent 6,434,212
` ____________
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`DECLARATION OF DR. KENNETH FYFE
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`I, Kenneth Fyfe, hereby declare the following:
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`IPR2017-01058 Fyfe Declaration
`U.S. Patent 6,434,212
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`I.
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`BACKGROUND AND QUALIFICATIONS
`1. My name is Kenneth Fyfe and I am over 21 years of age and otherwise
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`competent to make this Declaration. I make this Declaration based on facts and
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`matters within my own knowledge and on information provided to me by others.
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`2.
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`I have been retained as an expert in this matter by Counsel for Garmin
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`International, Inc. to provide my independent opinions on certain issues requested
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`by Counsel for Petitioner relating to the accompanying petition for Inter Partes
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`Review of U.S. Patent No. 6,434,212 (“the ‘212 Patent”). My compensation in this
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`matter is not based on the substance of the opinions rendered here.
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`3.
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`I have summarized in this section my educational background, career
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`history, and other relevant qualifications. I have also attached a current version of
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`my curriculum vitae as Appendix A. It lists over 90 articles, conference
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`presentations and technical reports that I have authored or co-authored in these
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`areas. My research has been funded in excess of 2 million dollars by a variety of
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`grants awarded by both federal and provincial governments and from private
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`industry.
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`4.
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`I have been awarded a total of 11 patents in various countries,
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`including the United States, Canada, Germany, France, Great Britain, Finland and
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`Belgium, issued from the period of 1999 to 2006. These patents are primarily in
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`the field of motion analysis and exercise monitoring. My first patent was U.S.
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`Patent No. 5,955,667, entitled “Motion Analysis System.” It issued on September
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`21, 1999, claimed priority to an October 11, 1996 provisional application, and
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`outlined the use of accelerometers to measure the motion of a moving body –
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`namely the foot of a runner. This concept was commercialized by a company that
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`I cofounded (Dynastream Innovations, as mentioned above) and has sold millions
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`of units around the world.
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`5.
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`I am currently working for 4iiii Innovations as the Director of
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`Algorithms, a position I have held since January 2014. Prior to that, I was a
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`professor at the Engineering Transfer Program at MacEwan University in
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`Edmonton, Alberta, Canada, where I had taught since 2010. I am also an adjunct
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`faculty member at the University of Alberta where I worked as a professor in
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`Mechanical Engineering from 1989 to 2003.
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`6.
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`I received my Ph.D. in Mechanical Engineering from the University of
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`Waterloo in 1986 specializing in vibration, acoustics and signal processing. I
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`obtained my Master of Science in Mechanical Engineering from the University of
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`Alberta in 1983 specializing in vibration. My Bachelor of Science in Mechanical
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`Engineering was obtained from the University of Alberta in 1980.
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`7. Between 1986 and 1989, I did post-doctoral research at the Katholieke
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`University of Belgium and worked for a private company, performing vibration,
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`acoustics and signal analysis on automotive, rail and aerospace structures.
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`8.
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`Then in the period from 1989 to 2003, I was employed as a professor
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`in Mechanical Engineering performing teaching, mentoring and research. My
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`research areas of interest included biomedical sensors, motion analysis, and
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`acoustics. During this time, I developed an inertial device to measure the speed and
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`distance of a person walking, jogging or running. This device was a small pod with
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`accelerometers, processor and radio, attached to a shoe, which computes the
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`kinematics of the person and transmits the resulting information to the user. I
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`began development in approximately 1994 and had developed a prototype of the
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`device by approximately 1995.
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`9.
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`I cofounded Dynastream Innovations to commercialize this technology
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`in 1999. In 2003, I left the university to work with Dynastream in product
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`development. In 2006, Garmin purchased Dynastream and I continued to work
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`there until 2007.
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`10.
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`In 2009 and 2010, I worked for the NeuroScience Department at the
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`University of Alberta applying our inertial methodology to assistive technologies.
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`From 2010 to 2013, I worked at MacEwan University as a professor involved in
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`teaching and research in Engineering. Since January 2014, I have been working
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`for 4iiii Innovations developing personal measurement devices that involve inertial
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`sensors and signal processing.
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`11. As part of my work in connection with this proceeding, I have
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`reviewed the following materials:
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`• U.S. Patent 6,434,212 B2 to Pyles (’212 Patent) (EX1001)
`• File History of U.S. Patent 6,175,608 B2 to Pyles (’608 Patent File
`History) (EX1003)
`• File History of U.S. Patent 6,434,212 B2 to Pyles (’212 Patent File
`History) (EX1004)
`• U.S. Patent 5,583,776 to Levi et al. (Levi) (EX1005)
`• PCT Publication WO 87/05229 to Johnson et al. (Johnson) (EX1006)
`• U.S. Patent 4,387,437 to Lowrey (Lowrey) (EX1007)
`• U.S. Patent 5,724,265 to Hutchings (Hutchings) (EX1008)
`• U.S. Patent 6,175,608 to Pyles (’608 Patent) (EX1009)
`• U.S. Patent 4,962,469 to Ono et al. (Ono) (EX1010)
`• Monitoring Physical Activity in Children, Cale, 1993 (Cale) (EX1011)
`• Taking Steps Toward Increased Physical Activity: Using Pedometers to
`Measure and Motivate, Research Digest, Series 3, No. 17 June 2002
`(Research Digest) (EX1012)
`• Letter from James Madison to Thomas Jefferson, August 10, 1788.
`Library of Congress (Letter from Madison to Jefferson) (EX1013)
`• U.S. Patent 694,652 to Kuhn (Kuhn) (EX1014)
`• U.S. Patent 765,992 to Porter (Porter) (EX1015)
`• U.S. Patent 982, 336 to Wimperis (Wimperis) (EX1016)
`• U.S. Patent 2,702,186 to Head et al. (Head) (EX1017)
`• Accelerometery – A Technique for the Measurement of Human Body
`Movements Morris. J. Biomechanics, 1973. Vol. 6. pp. 729-736 (Morris)
`(EX1018)
`• U.S. Patent 3,818,194 to Biro (Biro) (EX1019)
`• U.S. Patent 3,797,010 to Adler et al. (Adler) (EX1020)
`• Electronic Pedometer for Joggers Modla, Andrew A. Popular
`Electronics. August, 1979. pp. 42-43 (EX1021)
`• U.S. Patent 4,371,945 to Karr et al. (Karr) (EX1022)
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`• European Patent Application EP 0119009 A1 to Frederick (Frederick)
`(EX1023)
`• U.S. Patent 5,117,444 to Sutton et al. (Sutton) (EX1024)
`• U.S. Patent 4,771,394 to Cavanagh (Cavanagh) (EX1025)
`• U.S. Patent 6,145,389 to Ebeling et al. (Ebeling) (EX1026)
`• U.S. Patent 4,367,752 to Jimenez et al. (Jiminez) (EX1027)
`• U.S. Patent 5,475,725 to Nakamura (Nakamura) (EX1028)
`• U.S. Patent5,539,706 to Takenaka et al. (Takenaka) (EX1029)
`• U.S. Patent 5,033,013 to Kato et al. (Kato) (EX1030)
`• U.S. Patent 5,891,042 to Sham et al. (Sham) (EX1031)
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`II. LEGAL FRAMEWORK
`A. Obviousness
`12.
`I am a technical expert and do not offer any legal opinions. However,
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`counsel has informed me as to certain legal principles regarding patentability and
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`related matters under United States patent law, which I have applied in performing
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`my analysis and arriving at my technical opinions in this matter.
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`13.
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`I have been informed that a person cannot obtain a patent on an
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`invention if the differences between the invention and the prior art are such that the
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`subject matter as a whole would have been obvious at the time the invention was
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`made to a person having ordinary skill in the art. I have been informed that a
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`conclusion of obviousness may be founded upon more than a single item of prior
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`art. I have been further informed that obviousness is determined by evaluating the
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`following factors: (1) the scope and content of the prior art, (2) the differences
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`between the prior art and the claim at issue, (3) the level of ordinary skill in the
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`pertinent art, and (4) secondary considerations of non-obviousness. In addition, the
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`obviousness inquiry should not be done in hindsight. Instead, the obviousness
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`inquiry should be done through the eyes of a person of ordinary skill in the relevant
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`art at the time the patent was filed.
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`14.
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`In considering whether certain prior art renders a particular patent
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`claim obvious, counsel has informed me that I can consider the scope and content
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`of the prior art, including the fact that one of skill in the art would regularly look to
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`the disclosures in patents, trade publications, journal articles, industry standards,
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`product literature and documentation, texts describing competitive technologies,
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`requests for comment published by standard setting organizations, and materials
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`from industry conferences, as examples. I have been informed that for a prior art
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`reference to be proper for use in an obviousness analysis, the reference must be
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`“analogous art” to the claimed invention. I have been informed that a reference is
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`analogous art to the claimed invention if: (1) the reference is from the same field of
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`endeavor as the claimed invention (even if it addresses a different problem); or (2)
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`the reference is reasonably pertinent to the problem faced by the inventor (even if
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`it is not in the same field of endeavor as the claimed invention). In order for a
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`reference to be “reasonably pertinent” to the problem, it must logically have
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`commended itself to an inventor's attention in considering his problem. In
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`determining whether a reference is reasonably pertinent, one should consider the
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`problem faced by the inventor, as reflected either explicitly or implicitly, in the
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`specification. I believe that all of the references that my opinions in this IPR are
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`based upon are well within the range of references a person of ordinary skill in the
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`art would consult to address the type of problems described in the Challenged
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`Claims.
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`15.
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`I have been informed that, in order to establish that a claimed invention
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`was obvious based on a combination of prior art elements, a clear articulation of
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`the reason(s) why a claimed invention would have been obvious must be provided.
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`Specifically, I am informed that, under the U.S. Supreme Court’s KSR decision, a
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`combination of multiple items of prior art renders a patent claim obvious when
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`there was an apparent reason for one of ordinary skill in the art, at the time of the
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`invention, to combine the prior art, which can include, but is not limited to, any of
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`the following rationales: (A) combining prior art methods according to known
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`methods to yield predictable results; (B) substituting one known element for
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`another to obtain predictable results; (C) using a known technique to improve a
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`similar device in the same way; (D) applying a known technique to a known device
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`ready for improvement to yield predictable results; (E) trying a finite number of
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`identified, predictable potential solutions, with a reasonable expectation of success;
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`(F) identifying that known work in one field of endeavor may prompt variations of
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`it for use in either the same field or a different one based on design incentives or
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`other market forces if the variations are predictable to one of ordinary skill in the
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`art; or (G) identifying an explicit teaching, suggestion, or motivation in the prior
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`art that would have led one of ordinary skill to modify the prior art reference or to
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`combine the prior art references to arrive at the claimed invention.
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`16.
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`I am informed that the existence of an explicit teaching, suggestion, or
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`motivation to combine known elements of the prior art is a sufficient, but not a
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`necessary, condition to a finding of obviousness. This so-called “teaching
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`suggestion-motivation” test is not the exclusive test and is not to be applied rigidly
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`in an obviousness analysis. In determining whether the subject matter of a patent
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`claim is obvious, neither the particular motivation nor the avowed purpose of the
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`patentee controls. Instead, the important consideration is the objective reach of the
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`claim. In other words, if the claim extends to what is obvious, then the claim is
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`invalid. I am further informed that the obviousness analysis often necessitates
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`consideration of the interrelated teachings of multiple patents, the effects of
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`demands known to the technological community or present in the marketplace, and
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`the background knowledge possessed by a person having ordinary skill in the art.
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`All of these issues may be considered to determine whether there was an apparent
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`reason to combine the known elements in the fashion claimed by the patent.
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`17.
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`I also am informed that in conducting an obviousness analysis, a
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`precise teaching directed to the specific subject matter of the challenged claim
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`need not be sought out because it is appropriate to take account of the inferences
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`and creative steps that a person of ordinary skill in the art would employ. The
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`prior art considered can be directed to any need or problem known in the field of
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`endeavor at the time of invention and can provide a reason for combining the
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`elements of the prior art in the manner claimed. In other words, the prior art need
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`not be directed towards solving the same specific problem as the problem
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`addressed by the patent. Further, the individual prior art references themselves
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`need not all be directed towards solving the same problem. I am informed that,
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`under the KSR obviousness standard, common sense is important and should be
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`considered. Common sense teaches that familiar items may have obvious uses
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`beyond their primary purposes.
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`18.
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`I also am informed that the fact that a particular combination of prior
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`art elements was “obvious to try” may indicate that the combination was obvious
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`even if no one attempted the combination. If the combination was obvious to try
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`(regardless of whether it was actually tried) or leads to anticipated success, then it
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`is likely the result of ordinary skill and common sense rather than innovation. I am
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`further informed that in many fields it may be that there is little discussion of
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`obvious techniques or combinations, and it often may be the case that market
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`demand, rather than scientific literature or knowledge, will drive the design of an
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`invention. I am informed that an invention that is a combination of prior art must
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`do more than yield predictable results to be non-obvious.
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`I am informed that for a patent claim to be obvious, the claim must be
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`19.
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`obvious to a person of ordinary skill in the art at the time of the invention. I am
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`informed that the factors to consider in determining the level of ordinary skill in
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`the art include (1) the educational level and experience of people working in the
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`field at the time the invention was made, (2) the types of problems faced in the art
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`and the solutions found to those problems, and (3) the sophistication of the
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`technology in the field.
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`20.
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`I am informed that it is improper to combine references where the
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`references teach away from their combination. I am informed that a reference may
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`be said to teach away when a person of ordinary skill in the relevant art, upon
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`reading the reference, would be discouraged from following the path set out in the
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`reference, or would be led in a direction divergent from the path that was taken by
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`the patent applicant. In general, a reference will teach away if it suggests that the
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`line of development flowing from the reference’s disclosure is unlikely to be
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`productive of the result sought by the patentee. I am informed that a reference
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`teaches away, for example, if (1) the combination would produce a seemingly
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`inoperative device, or (2) the references leave the impression that the product
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`would not have the property sought by the patentee. I also am informed, however,
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`that a reference does not teach away if it merely expresses a general preference for
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`an alternative invention but does not criticize, discredit, or otherwise discourage
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`investigation into the invention claimed.
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`21.
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`I am informed that even if a prima facie case of obviousness is
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`established, the final determination of obviousness must also consider “secondary
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`considerations” if presented. In most instances, the patentee raises these secondary
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`considerations of non-obviousness. In that context, the patentee argues an
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`invention would not have been obvious in view of these considerations, which
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`include: (a) commercial success of a product due to the merits of the claimed
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`invention; (b) a long-felt, but unsatisfied need for the invention; (c) failure of
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`others to find the solution provided by the claimed invention; (d) deliberate
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`copying of the invention by others; (e) unexpected results achieved by the
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`invention; (f) praise of the invention by others skilled in the art; (g) lack of
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`independent simultaneous invention within a comparatively short space of time;
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`(h) teaching away from the invention in the prior art.
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`22.
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` I am further informed that secondary considerations evidence is only
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`relevant if the offering party establishes a connection, or nexus, between the
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`evidence and the claimed invention. The nexus cannot be based on prior art
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`features. The establishment of a nexus is a question of fact. While I understand
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`that the Patent Owner here has not offered any secondary considerations at this
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`time, I will supplement my opinions in the event that the Patent Owner raises
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`secondary considerations during the course of this proceeding.
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`III. OPINION
`A. Background of the Technology
`23.
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`I was asked to briefly summarize the background of the prior art from
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`the standpoint of the knowledge of a person of ordinary skill in the art (which I
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`have expressly defined in Section III.B below) prior to October 1998.
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`24. A pedometer is a mechanical and/or electronic device used to measure
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`exercise in walking, jogging, or running that may use a sensor to count the number
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`of steps taken by a user. See e.g., Ono at 1:5-23; Cale at p. 19 (“2.5 Mechanical
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`Measures”). Most pedometers record and display movement as steps taken, while
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`some also include features to estimate energy expended and/or distance traveled.
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`See e.g., Research Digest at pp. 2-3.
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`25. Pedometers have been known and used for centuries to monitor a
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`user’s exercise. Drawings from the 15th century indicate that Leonardo da Vinci
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`had conceptualized the idea of a pedometer, while working pedometers were
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`available and in use at least as early as the time of President Thomas Jefferson. See
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`e.g., Research Digest at p. 1; Letter from Madison to Jefferson at p. 1.
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`26. Pedometers have been patented in the United States for more than a
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`century. U.S. Patent No. 694,652 to Kuhn (“Kuhn”), which issued in 1902,
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`describes improvements to a mechanical pedometer that is “designed to be carried
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`in the pocket or attached to the person of a pedestrian to register the distance
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`traveled.” Kuhn at 1:9-18. The pedometer described by Kuhn counts the number of
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`steps taken by the user by rotating a toothed disk as each foot strikes the ground.
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`Id. at 2:1-15. The number of steps taken are then displayed to the user via a set of
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`dials with indicating “fingers” representing the tens digit and ones digit of the
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`number of steps counted. Id. at 1:76-100, 2:82-95, Fig. 1.
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`27. Advancements in the field of mechanical pedometers came quickly in
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`the early 20th century, as evidenced by U.S. Patent No. 765,992 to Porter
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`(“Porter”), issued in July 1904. Porter teaches a pedometer for “registering the
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`distance traveled by a pedestrian,” rather than merely displaying a number of steps
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`taken. Porter at 1:25-31. Like the pedometer of Kuhn, Porter’s pedometer
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`advances a toothed “ratchet wheel” plate upon receiving a sufficient jar in order to
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`sense a user’s step. Porter at 1:69-82.
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`28. Porter’s mechanism includes a lever that must momentarily overcome
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`the force of a stopping spring to advance the ratchet wheel, counting each step. Id.
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`at 1:69-97, Fig. 2. The tension of the spring is adjustable, such that the mechanism
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`may be tuned to throw the lever to its limit and back to its initial, normal position
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`once per step. Id. at 2:9-23. Porter acknowledges that this adjustability improves
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`the ability of the pedometer to “accurately register the distance traveled” because
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`“the steps of various people vary.” Id. at 2:23-26. From this, we can see that the
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`concept of improving pedometers such that they may be customized to a particular
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`user was publicly known as early as 1904.
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`29. Future pedometers would be largely based on sensing steps using an
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`inertial sensor called an accelerometer. U.S. Patent No. 982,336 to Wimperis
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`(“Wimperis”), which issued in 1911, describes an accelerometer used to measure
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`the acceleration of vehicles such as automobiles, trains, and ships. Wimperis at
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`lines 1-12. Wimperis envisioned other uses of the sensor and predicted that
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`“[m]any applications of this instrument will occur to the engineer.” Id. at lines 95-
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`96, see also, id. at lines 12-17. In the 1940’s and 50’s, Bell Labs was developing
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`electronic accelerometers using permanent magnets to sense an acceleration of a
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`body made of electrified copper. See, e.g. Head at 1:73-2:7.
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`30. Over the next two decades, electronic accelerometers continued to
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`become smaller and more sophisticated. At least as early as the 1970s, inertial
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`sensors were small enough to measure the motions of smaller moving bodies,
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`including the human body. See, e.g. Morris at p. 729. By this time, advances in the
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`semiconductor industry had produced much smaller (i.e., on the order of ~1cm)
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`and lighter piezoelectric accelerometers, and practitioners were utilizing them to
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`sense and analyze walking patterns of people. Id. at p. 729, p. 731, p. 732, Fig. 2.
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`31. Soon, the use of mechanical pedometers to monitor walking exercise
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`had become so common that a “toy” version for use by children was patented in
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`U.S. Patent No. 3,818,194 to Biro (“Biro”). Biro’s pedometer indicates a number
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`of feet or fraction of mile traversed and provides a hook-like element to hook the
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`pedometer to a belt to allow the device to be releasably affixed to the user’s body.
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`Biro at 1:5-10, 1:51-55, 2:24-30. Biro further teaches means to calibrate the
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`pedometer toy to the individual user. Id. at 6:44-60. Meanwhile, adult pedometers,
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`such as the one taught by U.S. Patent No. 3,797,010 to Adler (“Adler”) began
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`utilizing electronic accelerometers capable of sensing each step taken by an
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`exerciser while walking, running or jogging. Adler at Abstract, 2:66-67, Fig. 2. The
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`device taught by Adler was provided with a belt for releasably attaching the
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`portable electronic “exercise monitoring” device to the user. Id. at 4:30-36, Fig. 1.
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`It has long been well known that straps could be used to releasably attach
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`pedometers to users so as to allow the pedometer to sense movements of the user’s
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`body corresponding to steps.
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`32. By the late 1970’s, electronic versions of pedometers were so well-
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`known that home hobbyists could make their own pedometer using a homemade
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`footswitch and a pocket calculator. See Popular Electronics at pp. 42-43. The
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`simple footswitch was to be wired to the calculator’s “=” key, which operated to
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`“keep an on-going tally of the number of steps taken while walking or jogging.”
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`Popular Electronics at pp. 1-2, left column. A simple conversion could then
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`“determine the number of yards, meters, miles, or kilometers traveled. Id. The
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`home hobbyist was instructed to “measure off a ‘control’ distance and walk or run
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`it” to “find how many steps you take in a given measured distance.” Popular
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`Electronics at p. 2, right column.
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`33.
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`In the mid 1980’s through the early 1990’s, myriad pedometers
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`constituting electronic exercise monitors attached to users were being patented,
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`produced, and sold in a diverse range of shapes and applications. See generally,
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`e.g. Ono at Abstract, 1:64-2:27; Karr at Abstract, 2:29-3:14; Frederick at Abstract,
`
`pp. 3-4; Sutton at Abstract, 1:14-2:17, 3:8-64; Cavanagh at Abstract, 2:33-62.
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`Many, such as Frederick, Sutton, Ebeling, and Cavanagh, required calibration to
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`customize the performance of the device to the particular user as early as 1984. See
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`Frederick at pp. 2, 4; Sutton at 4:12-23; Ebeling at Abstract, 3:11-12; Cavanagh at
`
`3:29-42.
`
`34. Many exercise monitors patented in this era, such as Jiminez,
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`Nakamura, and Takenaka included a pedometer in combination with a heart rate
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`monitor. Jiminez at Abstract, 3:15-19, 4:14-33, 7:16-28, Fig. 2; Nakamura at
`
`Abstract, 1:59-61, 4:37-43; Takenaka at Abstract, 2:3-5, 3:40-48. Each of these
`
`further includes a data processor. Jiminez at 2:38-57, 4:60-63; Nakamura at 3:1-17;
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`Takenaka at 5:47-54. It was natural to persons of ordinary skill in the art to
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`combine heart rate monitors with pedometers because heart rate has long been a
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`well-known metric used to monitor physical activity during exercise; and thus,
`
`persons desiring to track exercise with a pedometer would naturally also be
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`potentially interested in tracking heart rate as well. Thus, contrary to statements
`
`made by the examiner during prosecution of the ‘212 Patent, claims reciting a
`
`pedometer in combination with a heart rate monitor were not novel or non-obvious
`
`as of the October 1998 filing date of the ’212 Patent. EX1003 at 104-105. Instead,
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`it was well known prior to October 1998 to combine heart rate monitors with
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`pedometers so as to provide the user with additional exercise monitoring
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`information. See, e.g. Jiminez at Abstract, 3:15-19, 4:14-33, 7:16-28, Fig. 2;
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`Nakamura at Abstract, 1:59-61, 4:37-43; Takenaka at Abstract, 2:3-5, 3:40-48.
`
`35. A common theme throughout many of the above referenced patents
`
`articles, and inventions is the interdependence of stride rate and stride length, a
`
`natural phenomenon in human mechanics that has long been well known. See, e.g.
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`Porter at 2:9-23; Frederick at p. 2 (“it is known that above a certain speed, stride
`
`length begins to increase as speed increases”); Sutton at 6:9-31; Ono at 5:12-15,
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`5:45-57, 7:11-17; Ebeling at Abstract, 3:56-63, Cale at p. 20 (“…at slower speeds
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`the pedometer tends to underestimate distance walked, while with fast walking or
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`running, distance is overestimated.”). In fact, the disclosure of the ’212 patent itself
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`recognizes portions of the prior art “recognizing the important relationship of stride
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`length and foot speed.” ’212 Patent at 1:33-37. Based on only a cursory search of
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`the literature, journal articles have discussed this well-known natural phenomenon
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`since at least the 1960’s.1 Thus, the dependence of a user’s stride length on stride
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`rate was well-known to skilled artisans long before the filing of the ’212 patent.
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`36.
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`It was also well known prior to October 1998 that because a person’s
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`stride length would vary with stride rate, changes in the user’s stride rate could
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`result in distance estimation errors in pedometers that used a fixed stride length.
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`See, e.g. Frederick at p. 2; Ono at 5:12-15, 5:45-57, 7:11-17; Ebeling at Abstract,
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`3:56-63, Cale at p. 20. Devices were well-known prior to October 1998 that sought
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`to solve this problem of stride length dependence on stride rate through use of
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`manual adjustment of a stride length between a plurality of previously calibrated
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`and stored values, such as between a stride length calibrated for walking and a
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`stride length calibrated for running. See Sutton at 4:12-26, 6:9-31; Cavanagh at
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`3:29-42, 6:65-7:42. As discussed in further detail below in Section III.D, infra, it
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`was further known prior to October 1998 to perform a plurality of calibrations to
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`allow for the automatic variation of stride length with stride rate during use by
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`1 See, e.g., D.W. Grieve, R.J. Gear, (1966), The relationships between length of stride, step frequency,
`time of swing, and speed of walking for children and adults. Ergonomics, 5, pp.379–399; Murray, M.P.,
`R.C. Kory, B.H. Clarkson and S.B. Sepic, (1966), Comparison of free and fast speed walking patterns of
`normal men. American Journal of Physical Medicine, 45(l), pp.8-24; Dillman, C.J. (1975), Kinematic
`analysis of running. Exercise and Sport Science Reviews, 3, pp.193-218.
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`
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`calculating stride length as a function of stride rate. See, e.g., Levi at 2:57-60, 6:6-
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`43, 12:17-44; see also Ebeling at Abstract, 3:56-63, 10:1-11:11.
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`B.
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`Level of Skill of a Person Having Ordinary Skill in the Art
`
`37.
`
`I was asked to provide my opinion as to the level of skill of a person
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`having ordinary skill in the art (“PHOSITA”) of the ‘212 Patent at the time of the
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`claimed invention, which counsel has informed me to assume is October 28, 1998,
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`the filing date of the Parent Application to the ‘212 Patent. In determining the
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`characteristics of a hypothetical PHOSITA of the ’212 Patent at the time of the
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`claimed invention, I was told to consider several factors, including the type of
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`problems encountered in the art, the solutions to those problems, the rapidity with
`
`which innovations are made in the field, the sophistication of the technology, and
`
`the education level of active workers in the field. I also placed myself back in the
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`time frame of the claimed invention, and considered the colleagues with whom I
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`had worked at that time.
`
`38.
`
`In my opinion, a person of ordinary skill in the art of the ‘212 Patent at
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`the time of the claimed invention would have been a person with a bachelor’s
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`degree in mechanical engineering, electrical engineering, or a similar field with at
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`least two years of experience in motion tracking, motion analysis, inertial sensing,
`
`or signal analysis or a person with a master’s degree in mechanical engineering,
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`electrical engineering, or a similar field with a specialization in motion tracking,
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`motion analysis, inertial sensing, or signal analysis. Such a person of ordinary skill
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`in the art would have been capable of understanding the ‘212 patent and the prior
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`art references discussed herein.
`
`39. Based on my education, training, and professional experience in the
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`field of the claimed invention, I am familiar with the level and abilities of a
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