Trials@uspto.gov
`571-272-7822
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`Paper No. 7
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` Entered: September 29, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GARMIN INTERNATIONAL, INC.,
`Petitioner,
`
`v.
`
`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES,
`Patent Owner.
`____________
`
`Case IPR2017-01058
`Patent 6,434,212
`____________
`
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`Paper No. 7
`
`
`
` Entered: September 29, 2017
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GARMIN INTERNATIONAL, INC.,
`Petitioner,
`
`v.
`
`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES,
`Patent Owner.
`____________
`
`Case IPR2017-01058
`Patent 6,434,212
`____________
`
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2017-01058
`Patent 6,434,212
`
`
`I.
`
`INTRODUCTION
`
`Garmin International, Inc. (“Petitioner”) filed a Petition requesting an
`
`inter partes review of claims 1–3 and 5–8 of U.S. Patent No. 6,434,212 B2
`
`(Ex. 1001, “the ’212 patent”) (Paper 1 (“Pet.”)). Blackbird Tech LLC
`
`(“Patent Owner”) filed a Preliminary Response (Paper 4 (“Prelim. Resp.”)).
`
`We have authority to determine whether to institute an inter partes
`
`review under 35 U.S.C. § 314, which provides that an inter partes review
`
`may not be instituted unless the information presented in the petition “shows
`
`that there is a reasonable likelihood that the petitioner would prevail with
`
`respect to at least 1 of the claims challenged in the petition.”
`
`For the reasons set forth below, we institute an inter partes review of
`
`claims 1–3 and 5–8 of the ’212 patent.
`
`
`
`II. BACKGROUND
`
`
`
`Related Matters
`
`The parties advise us that the ’212 patent is at issue in the following:
`
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Garmin
`
`International, Inc., Case No. 16-CV-689 (D. Del.),
`
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Fitbit, Inc., Case
`
`No. 16-CV-683 (D. Del.),
`
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Aliphcom d/b/a
`
`Jawbone, Case No. 16-CV-684 (D. Del.),
`
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Sony Corp. et al,
`
`Case No. 16-CV-685 (D. Del.),
`
`2
`
`
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`IPR2017-01058
`Patent 6,434,212
`
`
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Timex Group
`
`USA, Inc., Case No. 16-CV-686 (D. Del.),
`
`Blackbird Tech LLC d/b/a Blackbird Technologies v. TomTom, Inc.,
`
`Case No. 16-CV-687 (D. Del.), and
`
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Wahoo Fitness,
`
`Inc., Case No. 16-CV-688 (D. Del.)
`
`(Pet. 60–61; Paper 4, 2).
`
`
`
`The ’212 Patent (Ex. 1001)
`
`The ’212 patent, entitled “Pedometer,” relates to a “pedometer having
`
`improved accuracy by calculating actual stride lengths of a user based on
`
`relative stride rates” (Ex. 1001, Abstract). More particularly, the patent
`
`relates to “pedometers having a waist mounted stride-counting device and
`
`transmitter, and a wrist-mounted receiver and display” (id. at 1:9–11). The
`
`device calculates a distance walked or run based on converting a base stride
`
`length and a base stride rate to an actual stride length and using that to
`
`calculate distance traveled (id. at 1:12–17).
`
`Specifically, a step counter which is an inertia device, counts the
`
`number of steps a user takes (id. at 3:7–8). A data processor includes a data
`
`archive that stores historic data on stride length and pace and closed loop or
`
`fuzzy logic programming that continually or periodically replaces the base
`
`stride rate and length with recently calculated stride rates and lengths (id. at
`
`3:39–47).
`
`The pedometer of the ’212 patent may optionally require the user to
`
`operate a “sampling mode” (id. at 3:56–57). In this mode, a user walks or
`
`3
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`IPR2017-01058
`Patent 6,434,212
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`runs a predetermined distance with the distance then divided by the number
`
`of strides counted (id. at 3:58–62). The result is the average stride length,
`
`which is stored in the data archive as the “Base Stride Length” (id. at 3:62–
`
`64). The data processor further divides the number of strides by the time of
`
`the run or walk to calculate a “Base Stride Rate” (id. at 3:65–67). According
`
`to the ’212 patent, using a fixed average stride length does not account for
`
`changes in the user’s pace or improved performance (id. at 4:19–29). To
`
`correct for this, a “Use Mode” is activated that causes the data processor to
`
`calculate an “Actual Stride Rate” (id. at 4:30–33). The “Actual Stride Rate”
`
`is calculated periodically, based on data from the stride counter and the
`
`clock (id. at 4:30–36). An “Actual Stride Length” is calculated by
`
`determining a percentage change between the Actual Stride Rate and the
`
`Base Stride Rate (id. at 4:36–38). More specifically, the Actual Stride
`
`Length is calculated by:
`
`Actual Stride Length=Base Stride Length + Base Stride Length
`*(((Actual Stride Rate-Base Stride Rate)N)/Base Stride Rate)
`
`Where: N=1 When Actual Stride Rate is less than or equal to
`Base Stride Rate multiplied by 1.02, and N=3 When Actual
`Stride Rate is greater than Base Stride Rate multiplied by 1.02,
`although other N values in the range of one to three can be used
`
`(id. at 4:50–58). To further improve accuracy, an N value is derived for the
`
`user by using a number of samples to establish Stride Length and N (id. at
`
`5:1–6:9).
`
`Once the actual stride length is calculated for a given period of
`time, the value can be multiplied by the number of strides in that
`period to obtain a total distance for that period to be stored in a
`data archive file for that particular walk or run and added to other
`
`4
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`IPR2017-01058
`Patent 6,434,212
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`
`actual stride lengths or distances for other periods in which stride
`length was calculated
`
`(id. at 6:34–38).
`
`
`
`Illustrative Claim
`
`The ’212 patent has four independent claims, claims 1, 2, 5, and 6,
`
`and dependent claims 3, 4, 7, and 8 which depend from claims 2 and 6,
`
`respectively (Ex. 1001, Claims). Claim 1, reproduced below, is illustrative
`
`of the claims.
`
` 1. An exercise monitoring device comprising:
`
`a strap for releasably securing the exercise monitoring
`device to a user;
`
`a step counter joined to the strap;
`
`a heart rate monitor joined to the strap; and
`
`a data processor programmed to calculate a distance traveled by
`multiplying a number of steps counted by the step counter by a
`stride length that varies according to a rate at which steps are
`counted.
`
`
`
`III. ANALYSIS
`
`
`
`Prior Art Relied Upon
`
`Petitioner relies upon the following references (Pet. 7–8):
`
`
`
`References
`
`Patent Number
`
`Exhibit
`
`Levi, et. al., (hereinafter, “Levi”)
`
`US 5,583,776
`
`1005
`
`Johnson, et. al., (hereinafter, “Johnson”) WO 87/05229
`
`1006
`
`5
`
`
`
`IPR2017-01058
`Patent 6,434,212
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`
`References
`
`Patent Number
`
`Exhibit
`
`Lowrey et. al., (hereinafter, “Lowrey”)
`
`US 4,387,437
`
`1007
`
`Hutchings
`
`
`
`US 5,724,265
`
`1008
`
`Petitioner also relies on the Declaration of Kenneth Fyfe, PhD. (Ex.
`
`1002) (hereinafter “Fyfe Decl.”).
`
`
`
`The Asserted Grounds of Unpatentability
`
`Petitioner challenges the patentability of the remaining claims of the
`
`’212 patent on the following grounds (Pet. 7–8):
`
`Claim(s)
`
`Basis
`
`References
`
`1, 2, and 5 § 103(a)
`
`Levi and Johnson
`
`3
`
`6–8
`
`6–8
`
`§ 103(a)
`
`Levi, Johnson, and “Knowledge of One of
`
`Ordinary Skill in the Art” or Lowrey
`
`§ 103(a)
`
`Levi and Johnson
`
`§ 103(a)
`
`Levi, Johnson,1 and “Knowledge of One of
`
`Ordinary Skill in the Art” or Hutchings
`
`
`
`1 Petitioner omits Johnson from this ground (Pet. 8); however, in the detailed
`discussion (Pet. 52), Petitioner relies on Johnson in asserting the
`unpatentability of claims 6–8. Thus, we treat claims 6–8 as being
`challenged under Levi, Johnson, and “Knowledge of One of Ordinary Skill
`in the Art” or Hutchings for this ground.
`6
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`IPR2017-01058
`Patent 6,434,212
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`
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`Claim Construction
`
`In an inter partes review, the Board interprets claim terms in an
`
`unexpired patent according to the broadest reasonable construction in light
`
`of the specification of the patent in which they appear (37 C.F.R.
`
`§ 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142
`
`(2016)). Under that standard, and absent any special definitions, we give
`
`claim terms their ordinary and customary meaning, as would be understood
`
`by one of ordinary skill in the art at the time of the invention (In re
`
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007)). Additionally,
`
`any special definitions for claim terms must be set forth with reasonable
`
`clarity, deliberateness, and precision (In re Paulsen, 30 F.3d 1475, 1480
`
`(Fed. Cir. 1994)).
`
`Petitioner proposes specific constructions for numerous claim terms
`
`and requests “all claim terms not specifically discussed below should be
`
`given their broadest reasonable construction in light of the specification”
`
`(Pet. 11–17).
`
`In view of our analysis, we determine that no claim terms require
`
`express construction at this stage (see Vivid Techs., Inc. v. Am. Sci. & Eng’g,
`
`Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (Only terms which are in
`
`controversy need to be construed, and only to the extent necessary to resolve
`
`the controversy)).
`
` Level of Ordinary Skill in the Art
`
`The level of skill in the art is a factual determination that provides a
`
`primary guarantee of objectivity in an obviousness analysis (Al-Site Corp. v.
`
`7
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`
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`IPR2017-01058
`Patent 6,434,212
`
`VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999) (citing Graham v. John
`
`Deere Co., 383 U.S. 1, 17–18 (1966); Ryko Mfg. Co. v. Nu-Star, Inc., 950
`
`F.2d 714, 718 (Fed. Cir. 1991))).
`
`Petitioner asserts that a person of ordinary skill in the art at the time of
`
`the invention would have had “[(1)] a bachelor’s degree in mechanical
`
`engineering, electrical engineering, or a similar field with at least two years
`
`of experience in motion tracking, motion analysis, inertial sensing, or signal
`
`analysis or [(2)] . . . a master’s degree in mechanical engineering, electrical
`
`engineering, or a similar field with a specialization in motion tracking,
`
`motion analysis, inertial sensing, or signal analysis” (Pet. 11).
`
`Patent Owner does not appear to dispute the educational level or
`
`experiential aspects of Petitioner’s definition, but emphasizes “[a]lthough
`
`degrees in electrical engineering or mechanical engineering are broadly
`
`applicable, the specific experience (i.e. motion tracking, motion analysis,
`
`inertial sensing, or signal analysis) of one having ordinary skill in the art is
`
`related to the field of exercise monitoring” (Prelim. Resp. 10 (citing Pet. 10–
`
`11; Fyfe Decl. 3)). Patent Owner contends such a person of ordinary skill in
`
`the art need not have “particular experience or expertise in ‘navigational
`
`systems’” (id.).
`
`At this stage in the proceeding, we determine that Petitioner’s
`
`description of a skilled artisan as possessing (1) a bachelor’s degree in
`
`mechanical engineering, electrical engineering, or a similar field with at
`
`least two years of experience in motion tracking, motion analysis, inertial
`
`sensing, or signal analysis or (2) a person with a master’s degree in
`
`mechanical engineering, electrical engineering, or a similar field with a
`
`8
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`IPR2017-01058
`Patent 6,434,212
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`specialization in motion tracking, motion analysis, inertial sensing, or signal
`
`analysis, is supported by the current record. For purposes of this Decision,
`
`therefore, we adopt this portion of Petitioner’s description.
`
`We note also that the applied prior art reflects the appropriate level of
`
`skill at the time of the claimed invention (see Okajima v. Bourdeau, 261
`
`F.3d 1350, 1355 (Fed. Cir. 2001)).
`
` Obviousness of Claims 1, 2, and 5 over Levi and Johnson
`
`Petitioner contends that claims 1, 2, and 5 are obvious over the
`
`combination of Levi and Johnson (Pet. 17–37). Petitioner provides
`
`supporting testimony from its expert, Dr. Kenneth Fyfe (Fyfe Decl.). Patent
`
`Owner contends that Levi is not in the same field of endeavor as the ’212
`
`patent, and Petitioner has not provided sufficient motivation to combine Levi
`
`and Johnson (Prelim. Resp. 13–22). Patent Owner also contends that
`
`Petitioner has not shown the asserted combination teaches the “calibration”
`
`step of claims 2 and 5 (Prelim. Resp. 24–33).
`
`1. Levi (Ex. 1005)
`
`Levi is a patent entitled “Dead Reckoning Navigational System Using
`
`Accelerometer to Measure Foot Impacts.” Levi is directed to an electronic,
`
`portable navigational method and system that use radionavigational data and
`
`dead reckoning for foot navigation (Ex. 1005, 1:8–11). According to Levi,
`
`[t]he term “dead reckoning” (DR) refers to a position solution
`that is obtained by measuring or deducing displacements from a
`known starting point in accordance with motion of the user. Two
`types of DR
`are known:
`inertial navigation
`and
`compass/speedometer
`
`9
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`IPR2017-01058
`Patent 6,434,212
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`(id. at 2:13–17). Levi teaches incorporation of DR functions through use of
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`a digital electronic compass with a silicon pedometer and a barometric
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`altimeter, with Global Positioning System (GPS) position information and
`
`digital maps to arrange an integrated navigation system that “provides
`
`advantages during GPS outages” (id. at 1:60–64, 2:5–11). Specifically,
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`during GPS outages, “DR continuously tracks the user’s position without
`
`references to external aids or signals” (id. at 2:12–14).
`
`Levi teaches the frequency of a user’s footsteps is used in determining
`
`the size of footsteps taken by the user (id. at 2:57–60). A silicon
`
`accelerometer, mounted or attached to the user, senses harmonic motions
`
`and impact accelerations that result from walking or running, and thus,
`
`provides acceleration data indicative of footsteps (id. at 3:13–20). Levi
`
`further teaches three different algorithms: peak detection algorithm,
`
`frequency measurement algorithm, and dynamic step size algorithm to be
`
`used (id. at 4:29, 5:20, 6:6).
`
`The peak detection algorithm “allows determination of distance
`
`directly by a scale factor” (id. at 4:30–31). In the peak detection algorithm,
`
`accelerometer samples are taken and from each sample, it is determined if a
`
`peak over a threshold, exists –– thus, indicating a step (id. at 4:36–60, 5:9–
`
`11, Fig. 4). The frequency measurement algorithm is performed “primarily
`
`to obtain step size” because “[s]tep size is related to frequency (id. at 5:21–
`
`23, Fig. 5).
`
`In the dynamic step size algorithm “[a]s a user walks, faster, both the
`
`step size and the frequency of steps increase. This can be simply modeled as
`
`a linear fit to observed data at different walking speeds” (id. at 6:6–9, Fig.
`
`10
`
`
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`IPR2017-01058
`Patent 6,434,212
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`5). The step size is initialized from stored default values, particular to an
`
`individual person, generated during a calibration process (id. at 6:22–28,
`
`Fig. 7, step 701).
`
`2. Johnson (Ex. 1006)
`
`Johnson is an International application published under the Patent
`
`Cooperation Treaty, entitled “Device for Use by Sportsmen and
`
`Sportswomen” (Ex. 1006). Johnson is directed to a device, preferably
`
`adapted to be strapped to the wrist (id. at Abstract, 4:9–11). The device in
`
`Johnson can count paces run and can calculate distance covered and mean
`
`speed (id.). Johnson’s device additionally “may incorporate sensing means
`
`for sensing physiological quantities such as the heart rate of the wearer” (id.
`
`at 6:20–21).
`
`3. Analysis
`
`As we noted above, Petitioner contends that each element of claims 1,
`
`2, and 5 is met by the combination of Levi and Johnson, providing an
`
`element-by-element analysis identifying where each element is found (Pet.
`
`17–36 (claim 3), 27 (claim 12)). Petitioner also provides supporting
`
`testimony from its expert, Dr. Fyfe (Fyfe Decl. ¶¶ 52–65, 70–73). Patent
`
`Owner responds that Levi is not in the same field of endeavor as the ’212
`
`patent, Petitioner has not provided sufficient motivation to combine Levi and
`
`Johnson, and Petitioner has not shown Levi and Johnson teach a “plurality of
`
`calibrations,” as recited in claims 2 and 5 (Prelim. Resp. 13–22, 24–33). We
`
`have reviewed Petitioner’s arguments and evidence and find Petitioner has
`
`persuaded us, based on the record before us, that Levi is analogous art and
`
`11
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`IPR2017-01058
`Patent 6,434,212
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`an ordinarily skilled artisan would have been motivated to combine the
`
`teachings and suggestions of Levi and Johnson. Accordingly, we are
`
`persuaded that Petitioner has shown a reasonable likelihood that claims 1, 2,
`
`and 5 are unpatentable as obvious over the combination of Levi and
`
`Johnson. We highlight the following.
`
`a. Analogous Art
`
`Petitioner asserts Levi is analogous prior art to the ’212 patent
`
`because both the ’212 patent and Levi “relate to pedometers that count the
`
`number of steps taken to calculate distance traveled” and thus, “Levi is in
`
`the same field of endeavor as and is reasonably pertinent to the claimed
`
`invention [of] the ’212 Patent” (Pet. 22 (citing Fyfe Decl. ¶ 73)).
`
`Patent Owner contends Petitioner fails to show Levi and the ’212
`
`patent are from the same field of endeavor and specifically, contends
`
`Petitioner mischaracterizes Levi and the ’212 patent as both relating to
`
`“pedometers that count the number of steps taken to calculate distance
`
`travelled” (Prelim. Resp. 14–15 (citing Pet. 22)). Patent Owner asserts
`
`although the ’212 patent “‘relates generally to pedometers’ in the context of
`
`exercise monitoring devices,” Levi is directed to the field of navigational
`
`systems and “in particular, to electronic, portable navigation systems that
`
`use radionavigational data and dead reckoning for foot travel” (id. at 15
`
`(citing Levi, 1:7–11)). Patent Owner asserts Petitioner has not explained
`
`why navigational systems are in the same field as that of the ’212 patent ––
`
`exercise monitoring devices. According to Patent Owner, navigational
`
`systems and exercise monitoring devices are not from the same field of
`
`12
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`IPR2017-01058
`Patent 6,434,212
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`endeavor because “[n]avigational systems determine the geographic location
`
`of a user to help the user find his or her way” and “[e]xercise monitoring
`
`devices . . . monitor users’ physical activity” which may include distance
`
`determination without regard to the user’s geographical location (id. at 15–
`
`16).
`
`Patent Owner further argues Petitioner fails to establish Levi is
`
`reasonably pertinent to problems addressed by the ’212 patent (Prelim. Resp.
`
`16). In particular, Patent Owner contends Petitioner has not identified
`
`problems addressed by either the ’212 patent or Levi, citing only a portion of
`
`Levi’s description of its system (id. (citing Frye Decl.¶ 73)). Petitioner,
`
`Patent Owner asserts, provides “a single conclusory statement” ––“Levi is in
`
`the same field of endeavor as and is reasonably pertinent to the claimed
`
`invention as [sic] the ’212 Patent” –– which is “insufficient to carry
`
`Petitioner’s burden” (Prelim. Resp. 17 (citing Pet. 22)). Patent Owner
`
`contends the ’212 patent “recognizes a need to improve pedometer distance
`
`calculations, among other exercise monitoring facilities such as heart rate
`
`monitoring, in order to monitor the user’s physical activity levels more
`
`accurately” (id.). In contrast, Patent Owner contends, Levi addresses
`
`problems related to navigation and specifically, “relates to providing
`
`additional navigational capability –– i.e., more information about the user’s
`
`position –– in the absence of radionavigational data from satellites” and not
`
`distance determinations (id. at 18). As a result, Patent Owner argues, “Levi
`
`would not have commended itself to the inventor because Levi relates to
`
`improving navigation systems and specifically, to improving dead reckoning
`
`determinations in the context of such systems”; Petitioner has not shown an
`
`13
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`IPR2017-01058
`Patent 6,434,212
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`ordinarily skilled artisan “in the art of exercise monitoring equipment would
`
`know what dead reckoning is” (id. at 19).
`
`“Two separate tests define the scope of analogous prior art: (1)
`
`whether the art is from the same endeavor, regardless of the problem
`
`addressed and, (2) if the reference is not within the field of the inventor’s
`
`endeavor, whether the reference still is reasonably pertinent to the particular
`
`problem with which the inventor is involved” (In re Bigio, 381 F.3d 1320,
`
`1325 (Fed. Cir. 2004)).
`
`Here, based on the record before us, Petitioner has persuaded us that
`
`Levi is from the same field of endeavor as the ’212 patent ––pedometers that
`
`count the number of steps taken to calculate distance traveled (see Pet. 20).
`
`Levi is directed to a pedometer that, in pertinent part, adjusts step size
`
`according to step frequency in order to estimate distance traveled by a user
`
`(Ex. 1005, 6:6–43). Levi states “[t]he present invention for a ground
`
`speed/distance sensor is an improvement over a common hiker’s pedometer”
`
`and “[t]he present invention analyzes the frequency of a user’s footsteps to
`
`aid in determining the size of footsteps taken by the user” (Ex. 1005,
`
`Abstract, 2:57–60, 2:65–67). Similarly, the ’212 patent is directed to a
`
`pedometer and specifically, a pedometer that calculates actual stride lengths
`
`of a user based on relative stride rates (Ex. 1001, Abstract). Based on the
`
`record before us, we are persuaded that both the ’212 patent and Levi are
`
`from the same field of endeavor –– pedometers or devices that include or
`
`rely on pedometers –– and further, Levi is pertinent to the particular problem
`
`with which the inventor is involved –– accurate distance measurement.
`
`Levi’s specific use of “radionavigational data” and “dead reckoning” for
`
`14
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`IPR2017-01058
`Patent 6,434,212
`
`foot navigation in its pedometers does not persuade us of a different result.
`
`Thus, we are persuaded by Petitioner’s arguments with respect to this issue.
`
`b. Motivation to combine Levi and Johnson
`
`Petitioner asserts an ordinarily skilled artisan would have found it
`
`obvious to combine the pedometer of Levi with Johnson’s heart rate monitor
`
`“for the desirable advantage of being able to provide additional training
`
`information to the user in the form of heart rate, in addition to other training
`
`information, such as distance traveled and pace” (Pet. 23 (citing Fyfe Decl.
`
`¶ 72)). Petitioner further contends the ’212 patent “acknowledges in its
`
`Background of the Invention, combined pedometers and heart rate monitors
`
`were known in the prior art” (Pet. 23 (citing Ex. 1001, 1:66–2:2)). Thus,
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`Petitioner argues, combining “a heart rate monitor for its well-known
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`purpose of displaying heart rate with a pedometer for measuring stride rate
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`and calculating distance,” was known in the prior art and well within the
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`skill of an ordinarily skilled artisan (id. at 24 (citing Fyfe Decl. ¶ 70)).
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` Patent Owner contends Petitioner has failed to articulate a proper
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`motivation to combine the teaching of Levi and Johnson (Prelim. Resp. 19).
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`More specifically, Patent Owner asserts Johnson teaches a wrist-mounted
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`stop watch for swimmers, not “a pedometer combined with a heart rate
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`monitor,” as asserted by Petitioner (Prelim. Resp. 20). According to Patent
`
`Owner, Johnson has a single sentence ––“[t]he device may incorporate
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`sensing means for sensing physiological quantities such as the heart rate of
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`the wearer, and may have a facility for calculating and displaying … total
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`paces or distance covered” (id. (citing Ex. 1006, 6:20–23)). Patent Owner
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`argues Petitioner’s reasoning to combine the pedometer of Levi with the
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`heart rate monitor of Johnson is flawed because “Levi is not a pedometer
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`and Johnson is not a heart rate monitor”; therefore, Patent Owner contends,
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`Petitioner’s motivation for the combination is based on mischaracterizations
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`(id. (citing Pet. 23)). According to Patent Owner, the “pedometer and
`
`distance calculating aspects of Levi are ancillary, and entirely in service to
`
`Levi’s navigational goals” (id.). Thus, Patent Owner asserts, an ordinarily
`
`skilled artisan would have “no reason to add exercise monitoring facilities,
`
`such as a heart rate monitor,” to the system of Levi and no reason to add
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`navigation capabilities to “an exercise monitoring device for use in bounded
`
`areas like swimming pools or running tracks” (id. at 21).
`
`
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`Based on the record before us, at this stage of the proceeding, we find
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`Petitioner has articulated reasoning with some rational underpinnings
`
`sufficient to support its obviousness challenge. Specifically, we are
`
`persuaded Johnson teaches combining a heart monitor with a pedometer
`
`because Johnson states “[t]he device [for use by sportsmen and
`
`sportswomen] may incorporate sensing means for sensing physiological
`
`quantities such as the heart rate of the wearer . . . as well as . . . total paces or
`
`distance covered” (Ex. 1006, 6:20–24). Moreover, the ’212 patent itself
`
`describes that a pulse meter with a pedometer was well known (Ex. 1001,
`
`1:66–2:2). Therefore, based on the record before us, we are persuaded that
`
`an ordinarily skilled artisan would have found it obvious to combine the
`
`pedometer of Levi with the heart rate monitor of Johnson to provide
`
`additional training information to a user.
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`16
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`Patent Owner does not proffer any additional arguments with respect
`
`to claim 1.
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`Upon reviewing the record developed thus far, we are persuaded that
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`Petitioner has demonstrated a reasonable likelihood of prevailing on the
`
`challenge to claim 1 for obviousness over Levi and Johnson.
`
`c. “a plurality of calibrations” – claims 2 and 5
`
`With respect to claims 2 and 5, in addition to the arguments noted
`
`above (see supra Sections E.3.a–b), Patent Owner contends Petitioner has
`
`not shown Levi and Johnson teach a “plurality of calibrations,” as recited in
`
`claims 2 and 5 (Prelim. Resp. 24–33).
`
`Petitioner asserts Levi teaches “wherein the stride length is
`
`determined with reference to a plurality of calibrations that each calculate a
`
`stride length as a function of a known stride rate,” as recited in claim 2 (Pet.
`
`32–34) and “a data processor . . . further programmed to derive the stride
`
`length from a range of stride lengths calculated from a range of
`
`corresponding stride rates calculated from a plurality of calibration
`
`samples,” as recited in claim 5 (Pet. 35–37). According to Petitioner, Levi
`
`teaches performing “a plurality of calibrations using a plurality of sample
`
`runs,” pointing to Levi’s Figure 5, as annotated by Petitioner (id. at 32
`
`(citing 6:7–15, 7:37–52)).
`
`Petitioner also points to claim 14 of Levi as disclosing the process,
`
`and specifically the steps of “generating ‘a slope m of a step-size versus
`
`step-frequency calibration curve’” and
`
`subsequently determining a new step size using a function that
`adds the default step size; and a product of both the slope of the
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`17
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`step-size versus step-frequency calibration curve and a
`difference between “the default frequency and the generated step
`frequency
`
`(Pet. 33–34 (citing Ex. 1005, 12:25–41)).
`
`Figure 5, which illustrates the relationship between frequency of a
`
`user’s steps and step size, is shown with Petitioner’s annotations.
`
`
`
`(Pet. 21 (reproducing Ex. 1005, Fig. 5, with annotations)). Figure 5
`
`illustrates the linear function between step size and steps per second (id.).
`
`Petitioner explains a linear function is a fit between two
`
`“calibrations,” A and B, having slope m (Pet. 33 (citing Fyfe Decl. ¶ 57)).
`
`Petitioner’s expert, Dr. Fyfe, thus testifies an ordinarily skilled artisan would
`
`have understood Levi as teaching “stride length is determined with reference
`
`to a plurality of calibrations that each calculate a stride length as a function
`
`18
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`of a known stride rate’” (Fyfe Decl. ¶ 62). More specifically, according to
`
`Dr. Fyfe, an ordinarily skilled artisan “would have understood that the point
`
`annotated . . . as point C[,] represents an example of how the function
`
`relating step size to step rate derived from the calibration data points A and
`
`B is subsequently used to calculate a stride length according to a measured
`
`stride rate” (id. ¶ 61 (citing Ex. 1005, Fig. 5)). Dr. Fyfe further opines “[t]he
`
`calibrations displayed in Figure 5 would have been understood by a
`
`PHOSITA [(Person Having Ordinary Skill in the Art)] to constitute a
`
`plurality of calibration samples deriving stride length from corresponding
`
`stride rates” (Fyfe Decl. ¶ 57). Based on Dr. Fyfe’s testimony, Petitioner
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`additionally contends an ordinarily skilled artisan would have found it
`
`obvious to perform a plurality of such calibrations, because “performing
`
`multiple calibrations over more stride lengths and stride rates would have
`
`beneficially enhanced the accuracy of the actual stride length determination
`
`and, hence, also the resulting distance calculation of the pedometer” (Pet. 34
`
`(citing Fyfe Decl. ¶ 64)).
`
`In response, Patent Owner contends Levi and the ’212 patent address
`
`different needs and solve different problems (Prelim. Resp. 25–26). We
`
`have addressed these same arguments above with respect to Patent Owner’s
`
`non-analogous art arguments.
`
`Patent Owner additionally contends the sole calibration process
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`disclosed in Levi, which is not relied on by Petitioner, treats step size as an
`
`input for a one-time process for calibration of the dead reckoning sensors
`
`which include “both the compass and ground speed/distance sensor as
`
`integrated with the digital mapping system” (id. at 27 (citing Ex. 1005, 9:53–
`
`19
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`57)). Patent Owner asserts Petitioner has modified Figure 5, “reimagining”
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`Levi’s disclosure, and adding “its own, unsupported, commentary to
`
`supplement the actual description from Levi” (id. at 28–30). Patent Owner
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`further argues that Figure 5 of Levi, on which Petitioner relies, “illustrates
`
`the relationship between frequency of a user’s step and step size” and not “a
`
`plurality of calibrations relating step[] size (stride length) to step frequency
`
`(stride rate)” (id. at 28 (citing Ex. 1005, 2:34–35)).
`
`Initially, we note the ’212 patent does not define explicitly the term
`
`“calibration,” and neither Petitioner nor Patent Owner provides a proposed
`
`construction. However, the ’212 patent describes, in its background, that it
`
`was known to have a pedometer and calibration method with two calibration
`
`modes: (1) a user stores the number of strides taken to travel a
`
`predetermined distance, and (2) comparing actual steps taken for a second
`
`distance, with steps in memory and incrementing a current trip memory (Ex.
`
`1001, 1:56–65). The ’212 patent further teaches that in “old devices,”
`
`recalibration was required to get an accurate reading; and recalibration may
`
`be necessary if a user’s running and or walking style changes, “by repeating
`
`the three samples every 3 to 6 months” (id. at 6:14–18). The ’212 patent
`
`does not describe an example of “calibration” that would require
`
`determining the stride length with reference to a plurality of calibrations that
`
`each calculate a stride length as a function of a known stride rate.
`
`As noted in the Petition (Pet. 18–21), Levi teaches that Figure 5
`
`“illustrates the relationship between frequency of a user’s step and step size
`
`(Ex. 1005, 2:34–35). Levi describes
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`20
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`[a]s a user walks faster, both the step size and the frequency of
`steps increases. This can be simply modeled as a linear fit to
`observed data at different walking speeds. Looking at the
`calibration data shown in FIG. 5, as the number of steps increases
`from 1.7 to 2.1 steps per second, for example, the step size
`increases from 0.72 meters (2.36 feet) to 0.90 meters (2.95 feet).
`
`(Pet. 20 (citing Ex. 1005, 6:7–15)). Figure 5 describes m as the slope of the
`
`line created in plotting step size vs steps per second (id. at 21 (citing Ex.
`
`1005, Fig. 5)). Levi further teaches adjusting step size according to the step
`
`frequency through use of a dynamic scaling algorithm (Ex. 1005, 6:15–20).
`
`In Levi, the default step size (default stride length) is originally set to an
`
`initialized value S0 and a new step size is calculated by:
`
`S=S0+m * (f-f0)
`
`where S0 is the initial step size, m is the slope of a step-size versus step-
`
`frequency calibr
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