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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______
`
`TOMTOM, INC.,
`Petitioner,
`
`v.
`
`BLACKBIRD TECH LLC d/b/a/ BLACKBIRD TECHNOLOGIES,
`Patent Owner.
`____________
`
`Case IPR2017-02023
`Patent 6,434,212 B2
`____________
`
`Record of Oral Hearing
`Held: December 11, 2018
`____________
`
`
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
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`
`
`DIPU A. DOSHI, ESQUIRE
`MEGAN WOOD, ESQUIRE
`Blank Rome, LLP
`1825 Eye Street, N.W.
`Washington, D.C. 20006
`
`Case IPR 2017-02023
`Patent 6,434,212 B2
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONR:
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`
`
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`
`
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` BEHALF OF THE PATENT OWNER:
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`WALTER DAVIS, ESQUIRE
`
`
`ALDO NOTO, ESQUIRE
`
`
`Davidson Berquist Jackson & Gowdey
`
`
`8800 Greensboro Drive, Suite 500
`
`
`McLean, VA 22102
`
`
`The above-entitled matter came on for hearing on Tuesday, December
`11, 2018, commencing at 1:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia, before Chris Hofa, Notary
`Public.
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE GIANNETTI: So welcome to the Patent Trial and
`
`
`Appeal Board. We have one case on for argument today, case 2017-02023
`which is Tomtom Inc., v. Blackbird Technologies. Let me begin by
`introducing the panel. I'm Judge Giannetti and I will be presiding at today's
`hearing. On the screen to my left, on the left portion of the screen, we have
`Judge Zado and to the right we have Judge Stephens. So with that, let me
`get the appearances of counsel. Who is appearing today for the Petitioner?
`
`
`MR. DOSHI: For Petitioner, Your Honor, Dipu Doshi and
`Megan Wood from Blank Rome.
`
`
`JUDGE GIANNETTI: Okay, Mr. Doshi, thank you. Will you
`be making the presentation, Mr. Doshi?
`
`
`MR. DOSHI: Yes, Your Honor.
`
`
`JUDGE GIANNETTI: Okay. And for the Patent Owner.
`
`
`MR. DAVIS: Good afternoon, Your Honor. Walter Davis and
`with me is Aldo Noto with Davidson & Berquist on behalf of the Patent
`Owner Blackbird.
`
`
`JUDGE GIANNETTI: Okay, Mr. Davis.
`
`
`MR. DAVIS: And I'll be making the presentation.
`
`
`JUDGE GIANNETTI: Okay, Mr. Davis. So let me just go
`over the ground rules. Each side has 45 minutes to present argument and
`Petitioner may reserve rebuttal time and you can tell me how much rebuttal
`time you want at the beginning of your presentation. I'll give you warning
`when you reach that point.
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`I want to mention, I see both sides have demonstratives. The
`
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`demonstratives are not part of the record of this hearing so if you want
`something in the record for the hearing please include it in your oral
`presentation and --
`
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`UNIDENTIFIED SPEAKER: I think your mike is turned off.
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`JUDGE GIANNETTI: It's green.
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`UNIDENTIFIED SPEAKER: It's green? Okay.
`
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`JUDGE GIANNETTI: Yes. Can you hear, remote judges can
`you hear me? Judge Stephens, can you hear, Judge Stephens? Judge Zado?
`I think there's something wrong with our sound system. Let's take a pause.
`
`
`(Pause.)
`
`
`JUDGE GIANNETTI: All right. So we have two remote
`judges. When you use your demonstratives, please be sure to give us the
`slide number that you're on so our remote judges can follow along and
`please, in view of our sound problems here, please make sure that when you
`are speaking you are near the microphone so that everyone can hear you. I
`can hear you here but our remote judges are dependent upon our sound
`system which seems to be acting up a little bit today, so please speak into the
`microphone when you make your presentations. Any questions before we
`begin from the Petitioner?
`
`
`MR. DOSHI: Your Honor, we have copies of the
`demonstratives. I don't know if you want these.
`
`
`JUDGE GIANNETTI: Well if you'd like to hand me a copy,
`that's fine. Our remote judges have the copy that you sent by email.
`
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`MR. DOSHI: May I approach?
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`Patent 6,434,212 B2
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`JUDGE GIANNETTI: Yes certainly. Okay, thank you. Any
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`questions from Patent Owner? Mr. Davis?
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`MR. DAVIS: No, Your Honor.
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`JUDGE GIANNETTI: All right. I think we're ready to begin.
`Mr. Doshi, you may proceed when you are ready.
`
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`MR. DOSHI: Thank you, Your Honor.
`
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`JUDGE GIANNETTI: First of all, do you want to reserve time
`for rebuttal?
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`MR. DOSHI: Yes, 10 minutes please.
`
`
`JUDGE GIANNETTI: Ten minutes, okay. You may proceed.
`
`
`MR. DOSHI: Good afternoon, may it please the Board. My
`name is Dipu Doshi from Blank Rome for Petitioner Tomtom, Inc.
`
`
`JUDGE GIANNETTI: Mr. Doshi, I think you're going to have
`to speak up.
`MR. DOSHI: Sure, I'll do my best.
`
`
`JUDGE GIANNETTI: I want to make sure everyone hears
`
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`your argument.
`
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`MR. DOSHI: I'm typically soft spoken so I apologize. I will
`try to enunciate.
`
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`JUDGE GIANNETTI: This is not the time to be soft spoken.
`
`
`MR. DOSHI: Thank you, Your Honor. So we are here for the
`212 patent, claims 1 through 8 of the 212 patent are nothing more than the
`obvious combination of the prior art references that Petitioner relies on in its
`petition. Jimenez is the base reference and that discloses a pedometer
`having a strap, a step counter and a heartrate monitor.
`
`
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`Case IPR 2017-02023
`Patent 6,434,212 B2
`
`Levi and Ebeling each disclose the relationship between stride
`
`
`length and stride rate and have a microprocessor that is capable of
`calculating distance in a more accurate fashion by taking into consideration
`the relationship between stride rate and stride length and that's shown here
`on slide 2, and at the top you can see as -- and this is from Levi -- as a user
`walks faster both the step size and the frequency of steps increase and so it
`was well known in the art by the time of the filing of the 212 patent that
`stride length and stride rate vary in almost a linear relationship. As the stride
`rate goes up, the stride length goes up and Levi accounts for that in its
`disclosure and shows that the distance can be more accurately calculated if
`the user of the pedometer is running at a slower pace or at a faster pace it can
`account for the distance.
`
`
`Jimenez is disclosed as the structural components of the
`pedometer and in particular it has a transmitter and receiver which is at issue
`here in this proceeding because if it didn't have transmitters and receivers it
`would not be able to transmit the step count and the microprocessor would
`not be able to receive that step count and without that communication it
`could not properly calculate the distance.
`
`
`So I'm going to jump over to slide 10 and here we have a figure
`from Jimenez, it's figure 10 on slide 10 and that can be read in conjunction
`with Mr. Blackadar, Petitioner's expert, his testimony during cross-
`examination in which he identifies the components and opines that the 157-
`158 box that I've just highlighted in red is the step counter and that transmits
`a signal to 146 which is the one shot. Because the signal coming from 157-
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`158 is bouncy, according to Mr. Blackadar, the one shot cleans it up,
`processes it and then sends it or transmits it out where it says ped gate.
`
`
`JUDGE GIANNETTI: Counsel, let me ask you something.
`
`
`MR. DOSHI: Sure.
`
`
`JUDGE GIANNETTI: I know your contention is that the one
`shot, the monostable multivibrator, is a transmitter, is that your position?
`
`
`MR. DOSHI: That's the position.
`
`
`JUDGE GIANNETTI: Do you have any accepted reference
`that refers to a monostable multivibrator as a transmitter?
`
`
`MR. DOSHI: There's nothing in the record, Your Honor, but
`the way we --
`
`
`JUDGE GIANNETTI: Do you think a person of ordinary skill
`in the art would call a monostable multivibrator a transmitter?
`
`
`MR. DOSHI: Mr. Blackadar is a person of ordinary skill in the
`art and he refers to it as a component that transmits the signal that's coming
`from the step counter and there's --
`
`
`JUDGE GIANNETTI: Well it may transmit the signal but
`doesn't a transmitter have, in the art of electrical engineering, doesn't it have
`a certain meaning that would be understood by engineers?
`
`
`MR. DOSHI: Well if we look at the 212 patent certainly has --
`it's broadly, it has to be construed broadly, the term transmitter and receiver
`-- and if we look at it it says that it's a component that transmits raw data,
`other data, and if we jump to slide 7.
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`JUDGE GIANNETTI: So show me where in the patent you are
`
`
`relying on to suggest or to teach that a one shot that might be a monostable
`multivibrator would be a transmitter.
`
`
`MR. DOSHI: It's a mouthful.
`
`
`JUDGE GIANNETTI: Yes, it is.
`
`
`MR. DOSHI: So the 212 patent doesn't provide much structure
`or much information on what a transmitter and/or a receiver is. What it says
`is that it's a transmitter that transmits either raw data or calculated distance,
`pace, et cetera, to a wrist mounted display unit receiver 40 and I'm reading
`from slide 7, that is an excerpt from the 212 patent. There's a slight typo on
`the slide --
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`right?
`MR. DOSHI: Correct.
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`JUDGE GIANNETTI: Two of them actually, in the title and in
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`the citation. I think that should be the 212 patent, right?
`
`
`MR. DOSHI: That is the 212 patent, correct.
`
`
`JUDGE GIANNETTI: Yes.
`
`JUDGE GIANNETTI: Where are you? In column 7?
`MR. DOSHI: Column 3.
`JUDGE GIANNETTI: Column 3.
`MR. DOSHI: Slide 7.
`JUDGE GIANNETTI: Okay. Slide 7.
`MR. DOSHI: It says Jimenez but it's actually the 212 patent.
`JUDGE GIANNETTI: Yes. There's a typo in your slide there,
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`MR. DOSHI: And so if we look at this it doesn't tell you what
`
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`the transmitter is, it doesn't have a structural component to it and if I go
`backwards to slide 6 --
`
`
`JUDGE STEPHENS: Does that not in the preceding paragraph
`discuss that it's an Rf telemetric signal transmitter and that it should be a
`certain distance away from the receiver?
`
`
`MR. DOSHI: Right. So Patent Owner's position is that it is
`limited to an Rf telemetric signal transmitter or a wireless or wired digital
`transmitter. But those are preferred embodiments that Patent Owner is
`trying to read into the claim limitations. The claim limitations simply say
`that it's a transmitter that transmits a signal, and in our view, Jimenez has
`that component which is a transmitter that transmits a signal.
`
`
`JUDGE GIANNETTI: But not wireless though in Jimenez, is
`it?
`MR. DOSHI: It is not and what I'm saying is that the
`
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`transmitter in Jimenez meets the claim limitation because the claim can't be
`limited to the Rf telemetric signal transmitter or the wired or wireless digital
`transmitter.
`JUDGE GIANNETTI: Well but it might be limited to a
`
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`wireless transmitter of some sort. Isn't that suggested by the context here?
`You wouldn't have a wire here, would you in this patent?
`
`
`MR. DOSHI: I'm sorry?
`
`
`JUDGE GIANNETTI: Sorry. The transmitter, you wouldn't
`have a wire running in this transmitter. I mean this is a device that you wear
`on your wrist like a smart watch.
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`Patent 6,434,212 B2
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`MR. DOSHI: Are we talking about the 212 patent?
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`JUDGE GIANNETTI: Yes.
`
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`MR. DOSHI: So the 212 patent says that it can be wireless or
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`wired and it could be an Rf telemetric signal and these are preferred
`embodiments because it starts out with preferably an Rf telemetric signal
`transmitter. Alternatively --
`
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`JUDGE GIANNETTI: Well that would be wireless, right?
`
`
`MR. DOSHI: Correct. But then it says alternatively the
`transmitters are wireless or wired digital transmitter, so these are just
`examples that are referenced --
`
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`JUDGE GIANNETTI: With a coding function to limit or
`eliminate interference with other similar devices, and that doesn't describe a
`monostable multivibrator, does it?
`
`
`MR. DOSHI: No. But those are examples.
`
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`JUDGE GIANNETTI: I see.
`
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`MR. DOSHI: That's our position, is that these are just
`examples of what the transmitter could be and we can't limit it to these three
`different components, these three structures.
`
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`JUDGE GIANNETTI: But certainly the term transmitter
`has to be considered in light of the specification, doesn't it?
`
`
`MR. DOSHI: Absolutely. But there's nothing to limit the
`transmitter to just these three components. These are examples and these are
`preferred embodiments of what transmitters could be used in the 212 patent
`and if we look at the claims --
`
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`JUDGE GIANNETTI: So --
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`Patent 6,434,212 B2
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`MR. DOSHI: Sorry.
`
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`JUDGE GIANNETTI: -- other than your expert's testimony is
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`there anything in the record that identifies a monostable multivibrator as a
`transmitter?
`MR. DOSHI: Well it transmits a signal. It certainly takes the
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`signal from the step counter and cleans it up and processes it.
`
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`JUDGE GIANNETTI: That wasn't quite my question. What I
`want to know is there anything in the record that refers to a monostable
`multivibrator as a transmitter, other than your expert's testimony, that refers
`to it as a transmitter?
`
`
`MR. DOSHI: Not a multivibrator -- no.
`
`
`JUDGE GIANNETTI: Okay. Thank you.
`
`
`MR. DOSHI: Not a monostable multivibrator. But again our
`position is that these are just examples and what we were looking for in
`Jimenez is a component that transmits a signal that is indicative of a step
`counter and that transmitter is that --
`
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`JUDGE ZADO: Counsel?
`
`
`MR. DOSHI: Sure.
`
`
`JUDGE ZADO: Can you point to me again where in Jimenez,
`because I don't see the word transmission at all in Jimenez and I know that
`Petitioner's not exactly arguing that Jimenez calls it a transmitter, but I'm
`looking for example at column 18 of Jimenez around line 59 that talks about
`a one shot just, you know, offering time signals for a number of steps, but
`can you point to where in Jimenez the disclosure describes -- what
`disclosure are you relying on in Jimenez to say that it's a transmitter?
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`Patent 6,434,212 B2
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`MR. DOSHI: We're relying on the fact that it's accepting the
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`step count signal and Mr. --
`
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`JUDGE ZADO: Can you show me where that is though? I
`really just want to see the column, the line numbers that are being relied on.
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`MR. DOSHI: Sure. I'll have my co-counsel look for that.
`
`
`JUDGE ZADO: Okay. Thank you. Whenever you're ready to
`point to that.
`
`
`JUDGE GIANNETTI: You can proceed with your argument
`and answer Judge Zado's question before you sit down.
`
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`MR. DOSHI: Okay. Thank you.
`
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`JUDGE GIANNETTI: Is that okay, Judge Zado?
`
`
`JUDGE ZADO: Yes, yes, that's fine. Thank you.
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`JUDGE GIANNETTI: Okay, fine. They're doing some
`research here and you'll have an answer before they finish their argument.
`
`
`MR. DOSHI: Thank you, Your Honor. So our position is that
`it is a transmitter in the broad sense that it transmits a signal to the
`microprocessor. The microprocessor then accepts that and I am jumping
`ahead to slide 14 which is figure 10 of Jimenez, and as Mr. Blackadar
`testified the microprocessor receives the signal and that signal qualifies as a
`step. Basically it's saying here the one shot is saying to the microprocessor
`here's a step, the microprocessor is taking it in and saying okay, this is a
`step. It's receiving that information and then sending it to the
`microprocessor where the distance calculation would take place and our
`position is that it is a transmitter and receiver discussed and disclosed by
`Jimenez.
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`Okay. So looking at line 59 to column 19, line 1. The
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`microcomputer responds to the number of steps and time signals
`respectively applied to input terminals L4 and L8, and those are the receivers
`that Mr. Blackadar points to and that we rely on in the petition. They're of a
`one shot and time oscillator 316, so 146 is the one shot we were discussing
`earlier. So the number of steps --
`
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`JUDGE GIANNETTI: I'm sorry. You're responding to Judge
`Zado's question; is that right?
`
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`MR. DOSHI: Yes, yes.
`
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`JUDGE GIANNETTI: Okay. Thank you.
`
`
`MR. DOSHI: Sorry. Judge Zado, I'm responding to your
`question about where in the specification it discusses the receipt and
`transmittal of the step count.
`
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`JUDGE ZADO: Thank you.
`
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`MR. DOSHI: So I'm looking at 18:59 to 19:1. Okay.
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`JUDGE ZADO: So you're looking at 18:59 through --
`
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`MR. DOSHI: Column 19, line 1.
`
`
`JUDGE ZADO: Okay. Thank you.
`
`
`MR. DOSHI: Sure So from this Mr. Blackadar comments and
`opines that this is where the transmission and receipt of the step count is
`taking place and therefore qualifies as a transmitter and receiver, and we
`have his testimony but I won't go into too much of that.
`
`
`So it's our position that Jimenez teaches all of the structural
`components and that Levi then has a microprocessor that is capable of
`calculating distance in a more accurate manner. I am on slide 2 but prior to
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`Patent 6,434,212 B2
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`going to slide 2, Levi says that since step size directly affects the estimated
`DR distance, the presently preferred embodiment adjust step size according
`to the step frequency, and I'm reading from column 6 lines 7 through 9.
`
`
`So what he does is he models a linear fit to the observed data at
`different walking speeds as you can see on slide 2 which is an excerpt from
`Levi and looking at the calibration data shown in figure 5 as the number of
`steps increases from 1.7 to 2.1 steps per second, for example, the step size
`increases from .72 meters to .9 meters and this is graphically shown in figure
`5 which I've put on slide 3 and you can see that the user is walking at
`different speeds, different steps per second as referred to by Levi or stride
`rate as referred to in the 212 patent and as we can see as the steps per second
`goes up, the step size increases and then from .72 to .9 meters and then he
`has a data point in between.
`
`
`JUDGE GIANNETTI: So, now as I understand the operation
`of this calibrating in Levi, the values of S0 and f0 are set for a particular
`user; is that right?
`
`
`MR. DOSHI: So --
`
`
`JUDGE GIANNETTI: I think that's the way it described it.
`
`
`MR. DOSHI: Are you summarizing Patent Owner's argument?
`I'm sorry.
`JUDGE GIANNETTI: No, I'm just asking you what your
`
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`understanding is and whether it agrees with mine.
`
`
`MR. DOSHI: Right. So the dispute lies in the construction of
`calibration and whether that requires the specific phrase for a particular user.
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`Patent 6,434,212 B2
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`JUDGE GIANNETTI: I think at this point what I'm after is that
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`we have a shared understanding of how Levi works.
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`MR. DOSHI: Yes.
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`JUDGE GIANNETTI: And then I'll give you an opportunity to
`explain why it meets the requirements of the claim.
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`MR. DOSHI: Sure. I was actually going to get to that. So step
`701 here, the configuration is particular to the individual person using the
`system and is generated during the calibration process. So in our view, even
`if we were to construe the claim to include the phrase for a particular user
`Levi certainly meets that limitation because the configuration or the
`calibration process is for the individual person using the system and as Levi
`says, it's generated during the calibration process.
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`JUDGE GIANNETTI: Well let's just probe that a little bit.
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`MR. DOSHI: Sure.
`
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`JUDGE GIANNETTI: S0, f0 and m are set during the
`calibration process, that's what the patent says, right?
`
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`MR. DOSHI: Correct.
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`JUDGE GIANNETTI: For a particular user.
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`MR. DOSHI: Correct.
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`JUDGE GIANNETTI: And then those values stay at those
`values until the device is recalibrated; is that correct? For a different user.
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`MR. DOSHI: For the same user.
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`JUDGE GIANNETTI: Do those values change --
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`MR. DOSHI: Do those values change --
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`JUDGE GIANNETTI: -- for a particular user?
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`MR. DOSHI: Upon calibration those values would change.
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`JUDGE GIANNETTI: So if I were to calibrate the device and
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`then, after it's calibrated, it uses the curve that's shown in figure 5 to make
`adjustments to step size and steps per second based upon how fast the user is
`walking or running; is that correct?
`
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`MR. DOSHI: So we have this calibration, right, and so we
`have the S0 plus m. Now your question was does it change. So figure 9
`allows for an adjustment to S0 in terms of some type of recalibration based
`on that math.
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`JUDGE GIANNETTI: But that isn't what's shown in this figure
`though, is it?
`
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`MR. DOSHI: That's correct. That's right.
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`JUDGE GIANNETTI: This figure shows using those initial
`values of S0 and f0, how the steps per second and the step size are calculated
`using m also, right?
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`MR. DOSHI: Correct. That's right.
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`JUDGE GIANNETTI: And so those would be set for a
`particular user and then this curve would be used to adjust those values
`based upon how fast the user was walking or running, right?
`
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`MR. DOSHI: I see the question. So if the user is running faster
`the stride length or the step size would increase and then based on the
`calibration curve, right?
`
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`JUDGE GIANNETTI: Right. So isn't the calibration the
`setting of the values m, S0 and f0; isn't that the calibration described in this
`patent?
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`Patent 6,434,212 B2
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`MR. DOSHI: Yes.
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`JUDGE GIANNETTI: It describes it as a calibration.
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`MR. DOSHI: It does, yes.
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`JUDGE GIANNETTI: And the recalibration takes place when
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`those values have changed for a different user.
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`MR. DOSHI: Or for the same user if the user has improved in
`their conditioning or in their running as Mr. Blackadar testifies to, yes. I
`mean the answer to your question is yes (indiscernible.)
`
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`JUDGE GIANNETTI: And how would that take place?
`Would they press a button or something, how would they choose this
`calibration mode in Levi?
`
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`MR. DOSHI: Yes. There'd probably be a recalibration mode, a
`recalibration button. That's typical.
`
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`JUDGE GIANNETTI: Okay. Is this operation contested? I
`mean I didn't see that in the papers. I know the implications of it are
`challenged but is there agreement between the parties on how this device
`works?
`MR. DOSHI: I'll have to --
`
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`JUDGE GIANNETTI: Well I'll ask --
`
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`MR. DOSHI: Yes, I think you have to ask them.
`
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`JUDGE GIANNETTI: Are you aware -- let's put it this way --
`
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`are you aware of any disagreement about how (indiscernible)?
`
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`MR. DOSHI: Well so let's go back to slide 3, which is figure 5
`of Levi. The dispute here is whether there is one slope for a particular
`individual or if there are multiple slopes that the device then matches the
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`user to. So if you look at paragraph 56 of Patent Owner's expert's
`declaration he states that there are multiple slopes and that as a user is
`running, the device will calibrate the user to one of those multiple slopes,
`and he also conflates -- as best as I understand -- conflates that with multiple
`users set in that calibration slope and so there's a little bit of confusion, at
`least from my perspective, on whether this is set for a particular individual
`or whether there are multiple slopes that the individual is then matched up
`with.
`JUDGE GIANNETTI: But Petitioner's position is that there is
`
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`one slope until the device is recalibrated; is that correct?
`
`
`MR. DOSHI: There is one slope until the device is recalibrated
`but there is also an adjustment that can be made in the recalibration process
`of figure 9. So there's a new step size that is adjusted for in figure 9 that we
`talk about with respect to claims 3 and (indiscernible.)
`
`
`JUDGE GIANNETTI: But using the same slope?
`
`
`MR. DOSHI: Correct, right. Correct.
`
`
`JUDGE STEPHENS: So where exactly is the plurality of
`calibrations then?
`
`
`MR. DOSHI: The plurality of calibrations would be the
`calibration at 1.7, the calibration at 2.1 and the calibration in between.
`
`
`JUDGE STEPHENS: So the various points here that you're
`calling the plurality, each of them is a calibration.
`
`
`MR. DOSHI: Correct.
`
`
`JUDGE GIANNETTI: The Levi patent talks about the
`calibration as the setting of the values as S0, f0 and m, doesn't it?
`
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`MR. DOSHI: Sorry?
`
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`JUDGE GIANNETTI: When Levi talks about calibration he's
`
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`talking about setting of those values.
`
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`MR. DOSHI: Right. But that's how the 212 patent is also
`talking about in column 5, it talks about having runners run at different
`speeds and that would be the calibration. So they're at different points,
`plurality of --
`
`
`JUDGE GIANNETTI: So you say that in the context of the
`patent, the 212 patent, that the changing of the values, the adjustment of the
`values as S0 and f0 using the slope m, those would be recalibrations.
`
`
`MR. DOSHI: Those would be calibrations.
`
`
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`JUDGE GIANNETTI: Those would be calibrations.
`
`
`MR. DOSHI: They would be calibrations, yes, plurality of
`calibrations.
`
`
`JUDGE GIANNETTI: Okay. So there's a calibration when
`those initial values are set, would you agree with that? It's in Levi. There's a
`calibration when the initial values are set.
`
`
`MR. DOSHI: Page 48 of the petition we state that the plurality
`of calibrations is the step sizes or stride lengths based on plurality calibration
`and step 705 which states that the new step size is calculated by S = S0 + m
`x (f-f0).
`JUDGE GIANNETTI: It's the process that's on the slide 4, step
`
`
`701. You would characterize that as a calibration?
`
`
`MR. DOSHI: Correct.
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`JUDGE GIANNETTI: And then there would be further
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`calibrations using that data as the runner or the walker progressed in figure
`5; is that correct?
`
`
`MR. DOSHI: That is correct.
`
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`JUDGE GIANNETTI: That is your position?
`
`
`MR. DOSHI: That is.
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`JUDGE GIANNETTI: All right.
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`
`JUDGE ZADO: So counsel, I'm looking at figure 5 of Levi and
`I'm just trying to figure out why it is that the slope isn't the calibration
`because in reading the 212 patent and I'm looking even at Levi's description
`of figure 5 it seems that even though the different points, you know, there
`are at least two points you need to do a linear fit, those two points of data in
`order to calibrate the device, but it seems to me that the slope is actually the
`calibration and it tells you is the relationship as between the stride length and
`the frequency, but I'm just trying to figure out why isn't the slope the
`calibration and what in the record supports that these data points are actually
`a calibration as opposed to just data points?
`
`
`MR. DOSHI: So going back to slide 4, so the calibration
`process and it says three constants are saved as S0, f0, and m, so this would
`be the calibration process in terms of having the runner -- and let me see if I
`can go back here -- so we see here on slide 2 that looking at the calibration
`data shown in figure 5 as the number of steps increases from 1.7 to 2.1 steps
`per second, for example, the step sizes increase from .72 meters to .9 meters
`and it's saying that the data is shown in figure 5 and then this is a simple
`linear model that's being applied to that.
`
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`Case IPR 2017-02023
`Patent 6,434,212 B2
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`JUDGE STEPHENS: So what are you pointing at in the 212
`
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`patent as being calibration and the plurality of calibrations?
`
`
`MR. DOSHI: That's in column 5. So at column 5 it says that
`after a proper warm up the user completes a sample run or walk on the track
`at normal pace, et cetera, et cetera. So it's saying that here's S1 and
`following completion of the first run, so here it's saying you're doing
`different walks at different speeds and that's very much like the Levi
`reference where figure 5, and again it's on slide 3, where you're having the
`user walk at different walking speeds and measuring their step size as you do
`that.
`JUDGE ZADO: Well even here I'm still coming out on the side
`
`
`that it looks like figure 5 of Levi is just one calibration, that one slope, one
`linear fit is one calibration and then another calibration would be doing
`another linear fit or another slope and that's what it look like is perhaps
`happening in Levi with what you've just identified as the one slope or one
`linear fit is just one calibration, it's not a plurality of calibrations.
`
`
`MR. DOSHI: Well it's a plurality of runs and you're calibrating
`the different points. In other words, 2.1 at .9 you're drawing a line through it
`and you're having the user do it multiple times, or over a greater distance
`and so you're pulling all that together into the slope.
`
`
`JUDGE GIANNETTI: I'm having trouble -- I'm sorry, go
`ahead, Judge Stephens.
`
`
`JUDGE STEPHENS: So basically you're saying that each of
`these points is equivalent to the sampling points S1 and S2, S3. So, for
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`example, S1 would be at the 1.7 and S3 might be at the 2.1, or S2 might be
`at the 2.1?
`MR. DOSHI: That's correct, right. Correct.
`
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`JUDGE ZADO: Okay. And then so taking that further then, I
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`understand your argument to be that in the 212 patent the runner for the first
`sample S1 will run at one pace and that's, according to Petitioner, that's one
`calibration and then the runner will run at a second pace for the S2 sample
`and that's the second calibration, and then the runner will run at a third pace
`and then that's the S3 sample and then that's a third calibration? Is that
`Petitioner's argument?
`
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`MR. DOSHI: Yes.
`
`
`JUDGE ZADO: Okay. Thank you.
`
`
`MR. DOSHI: So that's Levi and I want to jump to now slide 21
`which is Ebeling. Ebeling also -- and I understand I only have five minutes
`so I'll make this quick -- Ebeling also discloses the calibration in the stride
`rate and stride length. Ebeling provides a pedometer which accurately
`measures the distance trave
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