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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`FITBIT, INC. and WAHOO FITNESS, LLC,
`Petitioners,
`
`v.
`
`BLACKBIRD TECH LLC d/b/a BLACKBIRD TECHNOLOGIES,
`Patent Owner.
`__________
`
`Case IPR2017-020121
`Patent 6,434,212 B2
`__________
`
`Record of Oral Hearing
`Held: December 12, 2018
`__________
`
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`
`
`
`1 Wahoo Fitness LLC, which filed a petition in IPR2018-00275, has been
`joined as a petitioner in this proceeding.
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`HARPER BATTS, ESQ.
`CHRISTOPHER PONDER, ESQ.
`Sheppard Mullin Richter & Hampton, LLP
`379 Lytton Avenue
`Palo Alto, CA 94301-1479
`(650) 815-2673
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`WALTER DAVIS, ESQ.
`ALDO NOTO, ESQ.
`Davidson Berquist Jackson & Gowdey, LLP
`8300 Greensboro Drive, Suite 500
`McLean, VA 22102
`(571) 765-7709
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`December 12, 2018, commencing at 2:01 p.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
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`P R O C E E D I N G S
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`JUDGE GIANNETTI: So, let's get started. First of all, welcome to
`everyone.
`We are here for a final hearing in IPR2017-02012, Fitbit v.
`Blackbird Tech, LLC. In this hearing, we also will be addressing a joined
`case, IPR2018-00275, Wahoo Fitness v. Blackbird Tech.
`So, let me start by introducing the panel. I'm Judge Giannetti. I will
`be presiding today. And on the monitors to my left and to my right are my
`colleagues, Judge Zado and Judge Stephens, who are participating in this
`hearing remotely today.
`Let me, next, get the appearances of counsel. Who's appearing today
`for Petitioner?
`MR. BATTS: Good afternoon, Your Honors. Harper Batts from the
`Law Firm of Sheppard Mullin is representing the Petitioner. As to the
`grounds that we are addressing today, I will split my argument with my
`colleague, Mr. Ponder, if the panel wishes to hear any of the constitutionality
`or SAS-related issues. Otherwise, we don't mind addressing them more.
`JUDGE GIANNETTI: Well, I will leave that up to you, but I think I
`speak for the panel when I say we are more interested in hearing about the
`merits of the case today.
`MR. BATTS: Right. Thank you.
`JUDGE GIANNETTI: All right. Mr. Davis, you're appearing again
`
`today?
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`MR. DAVIS: Yes, Your Honor. Good to see you again.
`JUDGE GIANNETTI: All right.
`MR. DAVIS: Good afternoon. Walter Davis from Davidson
`Berquist Jackson & Gowdey on behalf of patent owner Blackbird. With me
`today is Aldo Noto.
`JUDGE GIANNETTI: All right. Thank you very much.
`All right. So, let me just go over some of the procedures we're going
`to be following today. Each side has 60 minutes to present argument.
`Petitioner may reserve time for rebuttal. I assume that both of you will be
`using demonstratives. Both sides will be using demonstratives today. We
`have copies of those, and our remote judges also have them.
`I will point out that demonstratives are not evidence in this case. If
`you want to have something be on the record during this procedure, you
`should make it part of the oral record and not rely on the demonstratives.
`They are aids to argument and not evidence.
`And while we're on the subject of demonstratives, please be careful
`when you are using demonstratives, to point out what slide number you are
`referring to. Our remote judges have the demonstratives and can follow
`along, but you have to give them the number, so that they can do that.
`Finally, we have been having some microphone problems here. So,
`make sure that, when you speak, you are close to the microphones, so that
`not only can I hear you, but also the remote judges.
`Any questions before we get into this? Mr. Batts? Is it Batts?
`MR. BATTS: Batts.
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`No, Your Honor.
`JUDGE GIANNETTI: Batts?
`MR. BATTS: Mr. Batts, and no questions, Your Honor.
`JUDGE GIANNETTI: Okay, Mr. Batts.
`And, Mr. Davis, any questions?
`MR. DAVIS: No, Your Honor.
`JUDGE GIANNETTI: All right. Let me just set the clock here. Do
`you want rebuttal time, Mr. Batts?
`MR. BATTS: Yes, I'd like to reserve 20 minutes, please.
`JUDGE GIANNETTI: Twenty minutes, okay.
`MR. BATTS: May I approach with a copy of the demonstratives?
`JUDGE GIANNETTI: That's fine. You may hand those up. We
`already have copies, but this is helpful. Thank you.
`All right. Let me just take a minute to set the clock.
`All right, Mr. Batts, you may proceed whenever you're ready.
`STATEMENT ON BEHALF OF PETITIONER
`MR. BATTS: Thank you, Your Honor.
`I just want to confirm, good afternoon and good morning.
`Judge Stephens and Judge Zado, can you hear me?
`JUDGE STEPHENS: Yes. Yes, I can.
`JUDGE ZADO: I can hear you as well. Thank you.
`JUDGE GIANNETTI: Okay. We're off to a good start.
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`MR. BATTS: So, we're here, again, on the 212 patent, a challenge
`on the 212 patent. And as a brief background, I'd like to explain, using slide
`No. 2, the procedural history for where we got, how we got here.
`And so, the petition has three grounds for challenging Claims 2, 5,
`and 6 of Amano. The first ground and the second ground are both based
`upon the Amano reference. Ground 1 is the anticipation ground, and
`Ground 2 was an obviousness ground. Ground 1 was not instituted. The
`anticipation ground was not instituted, while the second ground, the
`obviousness ground, in view of Amano, was instituted. And the final
`ground is Kato in view of Amano with respect to Claim 6.
`JUDGE GIANNETTI: I'm going to pause for a minute. I don't see
`the slides up.
`MS. FUERTH: Sorry, Judge, I believe you have the timer set for
`seconds.
`JUDGE GIANNETTI: Oh, okay, so we've got two problems here.
`Let me reset the timer. Okay.
`And I have your demonstratives, Mr. Batts, but usually we project
`them up on the screen. I don't see them. Is there some problem? There we
`go.
`
`MR. BATTS: So, I'll do a brief, I guess, restart.
`JUDGE GIANNETTI: Why don't you start over again, Mr. Batts.
`I'll start the timer.
`MR. BATTS: Okay.
`JUDGE GIANNETTI: And we will take it from there.
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`MR. BATTS: So, as I mentioned, there are three grounds in the
`current petition. The first two grounds are based upon the Amano reference.
`One ground is an anticipation ground. The second ground is an obviousness
`ground in view of Amano. And the third ground with respect to Claim 6 is a
`ground based upon the Kato reference in view of Amano. So, this afternoon
`I plan to split my argument into two. I first plan to address the two Amano
`grounds, followed by the Kato in view of Amano, Ground 3.
`And so, if we look at the challenge claims for the first two grounds,
`which are Claims 2 and 5 -- on slide 3 is one of the sample claims that we
`are challenging -- we will see that there are various elements that we are
`dealing with for Claim 2, but the patent holder, Blackbird, has not
`challenged with respect to Amano's disclosures any of the initial elements.
`So, that the exercise monitoring device having a strap, a step counter, or a
`heart rate monitor, are not disputed. The only dispute that we have with
`respect to Claims 2 and 5 is the final element, and actually only a particular
`aspect of the final element.
`You may recall that the advantage that the purported ability that has
`been claimed for Claims 2 and 5 by Blackbird, is the ability to have a
`varying stride length being considered for the calculations that are being
`performed by the exercise monitoring device. There hasn't been a dispute
`that Amano discloses that. Instead, the focus of the parties' arguments are
`on the first aspect of the last claim, which is a data processor programmed to
`calculate a distance traveled by multiplying a number of steps counted by
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`the step counter by a stride rate -- a stride length. That is the dispute that we
`have.
`
`And really, the dispute, the two arguments that
`Blackbird -- Blackbird has two arguments that they've raised as to why both
`Grounds 1 and 2 should not render the claims unpatentable. And one is that
`Blackbird is arguing Amano doesn't calculate any distance whatsoever. And
`the second argument is that Amano only calculates a speed, and it calculates
`that speed based upon an instantaneous moment, based upon an
`instantaneous step.
`If we look at slide 7, slide 7 is an overview of the institution
`decision. And specifically, it is the section of the institution decision that
`addresses the Amano reference and the Board's decision, the panel's
`decision, not to institute originally on the anticipation ground. You will see
`that the argument that patent holder had made in its POPR was that Amano
`only discloses looking at a detection based upon an immediately preceding
`step or an immediately preceding footfall, not for a distance. And therefore,
`since the panel viewed it as, adopted, appears to have adopted the patent
`owner's argument that Amano only looked at a single step, and a single
`moment in time, and that was a speed determination rather than a distance
`determination.
`Now these arguments are wrong, and I'm going to go through
`precisely why they're wrong. I think what would be actually instructive is to
`start with one of patent owner's slides that they plan to show you today,
`which is patent owner slide No. 9.
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`Just for clarification, do the remote judges have the patent owner's
`slides available?
`JUDGE STEPHENS: Yes, I do. Thank you.
`JUDGE ZADO: Yes. I have them as well. Thank you.
`MR. BATTS: So, patent owner slide 9 shows the argument that they
`are making with respect to Amano. It really is a tortured argument that's
`based upon taking a snippet of Amano and really a misleading viewing and
`reading of Amano based upon what's even less than a single sentence. And
`they highlight in this slide a portion of column 12. That portion of column
`12 says, in steps Sa3, the CPU multiplies the stride length that is stored with
`the pitch that's detected on the immediately preceding step to calculate the
`distance run by the test subject per unit of time.
`Based upon that disclosure, they are arguing that Amano does not
`calculate a distance and that, instead, it only looks at one immediately
`preceding step. But what I would like to do is actually walk through the
`disclosure of Amano because I think the full context of Amano makes clear
`that what is being referred to here is not a step in terms of footfall. It is
`talking about a processing step that Amano has and the steps that Amano has
`in figure 7 that you see. Each one of the bubbles there is a separate step that
`Amano describes, that the steps describe.
`JUDGE GIANNETTI: Let me just step back for a minute, Mr.
`Batts --
`MR. BATTS: Sure.
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`JUDGE GIANNETTI: -- and just talk about Amano in a more
`general sense now. I think one of the points that the patent owners made is
`that Amano is not really the same type of device that they're claiming in the
`patent. Is that accurate?
`MR. BATTS: No. No, it's not, Your Honor.
`JUDGE GIANNETTI: I think the argument is that what Amano is
`concerned about is determining the intensity of particular exercises.
`MR. BATTS: So, Amano certainly, it deals with blood oxygen
`levels for portions of it. If you recall, Amano has over 40 columns of
`disclosure and teachings, and Amano is an exercise, basically, a device that
`is tracking exercise and making measurements based upon exercise.
`JUDGE GIANNETTI: One of the objectives of Amano is to
`determine exercise intensity, is that right?
`MR. BATTS: Yes.
`JUDGE GIANNETTI: And it does that by figuring out the product
`of the distance per unit time; in other words, the speed times the weight of
`the test subject. Is that one thing that it does?
`MR. BATTS: Well, I'd like to get to that point in a little bit, if I
`may, Your Honor.
`JUDGE GIANNETTI: Okay.
`MR. BATTS: Because I think, looking at column 12 --
`JUDGE GIANNETTI: I would like to hear your view on that.
`MR. BATTS: Most definitely. So, I think what would be helpful is
`to look at the column 12, rather than just that snippet, is to look at the
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`broader column 12. If we could go to slide 8 of Petitioner's slides? On the
`right hand side, I have a broader portion of column 12.
`And if you look at column 12 -- and I'm going to walk through a
`description here in a little more depth because I think it's worth the time -- it
`talks about in the context, and you're looking at figure 7, when you're
`looking at this context. It starts, I can start at the first. It says, "First, at step
`Sa1" -- so, step Sa1 -- "the CPU 201 reads out the pulse wave form from the
`pulse detector via the sensor interface and determines the pulse rate." And
`then, in the next paragraph it says, "Next, in step Sa2, the body motion
`signal from body motion detector 104 is processed in the same way as in
`step S9 to detect the pitch of running."
`So, those two paragraphs make clear that Amano is talking about the
`steps of the process, not a step as in an individual user, an individual's step
`when running. When looking at it in that context, the paragraph and the
`sentence that Blackbird is cherry picking --
`JUDGE GIANNETTI: I'm sorry, would you repeat that?
`MR. BATTS: Sure.
`JUDGE GIANNETTI: What did you say? It's not actually --
`MR. BATTS: So, when they say "step," it's like a step of a process.
`JUDGE GIANNETTI: Right.
`MR. BATTS: Step Sa1, step Sa2, step Sa3, which is shown in the
`figure 7. And Blackbird is arguing that, when the next sentence refers to the
`pitch detected on the immediately preceding step, they've argued that, just
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`based upon that word, "immediately preceding step," that we're supposed to
`interpret that as a footfall, as a runner's footstep.
`JUDGE GIANNETTI: Well, I have to say there is some logic to
`that, isn't there? A step is a step.
`MR. BATTS: No, I disagree, Your Honor.
`JUDGE GIANNETTI: You mean it's a step in a process?
`MR. BATTS: Because it's the step in the process, because it says
`immediately before that, in the paragraph immediately before, that Sa2 is the
`step of the process that determines the pitch of running.
`And if we go to column --
`JUDGE GIANNETTI: But what is that? What's box Sa3? Is that
`the exercise intensity that I referred to earlier?
`MR. BATTS: Sorry?
`JUDGE GIANNETTI: Step Sa3 in figure 7.
`MR. BATTS: So, step Sa3. So, step Sa3 --
`JUDGE GIANNETTI: Hold on for a second.
`MR. BATTS: -- is where the calculation takes place of the exercise
`intensity.
`JUDGE GIANNETTI: Multiplies the pitch --
`MR. BATTS: The pitch by the stride length, correct, Your Honor.
`JUDGE GIANNETTI: By the stride length and the weight. Isn't that
`
`right?
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`MR. BATTS: Not immediately.
`JUDGE GIANNETTI: Okay.
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`MR. BATTS: So, if we read that sentence again, it's says you're
`multiplying the pitch by the stride length to calculate the distance run over
`the time period. Okay? And then, it says, this distance run is then
`multiplied by the user's body weight.
`JUDGE GIANNETTI: Okay. So, pitch is in strides per second, in
`the strides per unit time?
`MR. BATTS: Strides per unit of time.
`JUDGE GIANNETTI: And if you multiply that by a length, then
`you still get something that's per unit of time, don't you?
`MR. BATTS: So, Your Honor, what it does is you're still
`determining a distance there, as Amano makes clear in the very next
`sentence by saying, this distance run is then multiplied.
`JUDGE GIANNETTI: But if you multiply those two things
`together, you don't get a distance. You get a rate.
`MR. BATTS: You actually do, Your Honor, because Amano makes
`clear that what it is doing is it is looking at a time window of data. So, in
`column 11 of Amano, it sets forth an explanation for how the body motion
`detector 104 operates and explains that the body motion detector has two
`ways of operating. One way is to look at vertical motion, and for each
`vertical motion, it counts a step, where it has, alternatively, a disclosure of,
`when there's the arm swings, you look at arm swings, and a full range of that
`motion counts as two steps.
`And what Amano explains is that range-of-motion information is
`collected over a period of data. And the example period that's used here at
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`the top of column 12 is 30 seconds. But Amano makes clear in other
`sections, and I think a good example would be -- let's see here. In column
`13, lines 25 to 26, it says, "Note that the time interval for executing the
`calculation display processing is not limited to 30 seconds."
`So, what Amano is doing is it is calculating the distance traveled
`over that time interval. So, you have a distance that would -- so, for
`example, 50 feet over a 30-second time interval, but there's still a distance
`calculation that's taking place there. And Amano makes that clear in the
`very next sentence, that patent owner did not highlight in their
`demonstrative, that talks about the distance run is then multiplied. And
`Amano has additional disclosures making clear that there's a distance
`calculation being performed here.
`JUDGE GIANNETTI: Is the distance calculation being used for
`anything other than to determine the rate?
`MR. BATTS: Well, the distance calculation is then multiplied, as
`you noted. But, going back to your original question, which I said I would
`get to, the distance calculation is then used to be multiplied by the body
`weight to figure out the energy exerted over that run or that time.
`JUDGE GIANNETTI: But isn't there a time factor in that
`calculation also?
`MR. BATTS: Well, there's always going to be a time factor, Your
`Honor, because if I say, "How far did you run?," you always have to know
`what is the context of what you're talking about. What timeframe are you
`talking about for that run?
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`JUDGE GIANNETTI: Not necessarily. You can run the New York
`Marathon and not keep time.
`MR. BATTS: But, then, you know that --
`JUDGE GIANNETTI: Because you're running -- what is it? -- 26
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`miles.
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`MR. BATTS: But, then, you know that -- you answered the question
`by saying it was within the New York Marathon. So, there's a time context
`built into your answer. You have to know whether it was, on the run this
`morning, how far did you run? There's still a time context of this morning
`when I ran. So, you're always going to have some sort of time interval that's
`going to be at play.
`But the point is, if you look at the claim, like Claim 2, for example,
`it's only requiring a distance to be calculated. It doesn't say what distance.
`It just is a distance being calculated, based upon a multiplication of the
`number of steps by the stride length.
`JUDGE GIANNETTI: So, your contention --
`JUDGE STEPHENS: Where is the number of steps?
`MR. BATTS: Sure. So, the number of steps, if you look in column
`11 -- we'll go to slide 8, would be a good example on the lefthand -- or,
`actually, column 11 has -- so, I will start in column 7, which is on slide 8.
`Column 7, line 18, explains the body motion detector of 104.
`JUDGE GIANNETTI: Column 7?
`MR. BATTS: Correct.
`JUDGE GIANNETTI: Okay, line 18. Give me a second.
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`JUDGE STEPHENS: Is that not a different embodiment?
`MR. BATTS: No, it is not, Your Honor.
`JUDGE STEPHENS: Okay, there's only a single embodiment?
`MR. BATTS: Correct, Your Honor.
`JUDGE GIANNETTI: Column 7, line 18?
`MR. BATTS: Line 18 explains the body motion detector that is
`being used by Amano to determine steps, the numbers of steps that are
`occurring. So, the disclosure begins in column 7. They explain that this
`body motion detector is being used, and that the body motion detector
`information is then used in a Fast Fourier Transform, the FFT processing.
`So, it's basically a timed -- a single processing that allows you to remove the
`noise and determine what are the actual footfalls or steps that are being
`calculated.
`And that's what we see in column 11, starting on line 15, is it
`discusses the step S9, which in column 12 it is explained that it is the same
`step as Sa2 on line 13 that we've been talking about.
`JUDGE GIANNETTI: Okay. So, what we are talking about here is
`determining steps per time, pitch, right?
`MR. BATTS: It's talking about steps within a time window or time
`interval.
`JUDGE GIANNETTI: So, it may be measuring time, but it's
`also -- it's using that to determine -- it's measuring the number of steps and
`it's measuring the number, the time period?
`MR. BATTS: Yes.
`
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`JUDGE GIANNETTI: And from that, it's computing the pitch or the
`steps per time?
`MR. BATTS: Correct.
`JUDGE GIANNETTI: Right? I'm with you so far, but I don't see a
`distance yet.
`MR. BATTS: Well, so the distance there is calculated when, over
`this time interval of 30 seconds, you're looking at the data that was collected
`over the 30 seconds, based upon the detection from the body motion detector
`104. And the body motion detector 104, as is explained in column 11, from
`lines 24 to 39, allows you to have two different options for detection, either
`the vertical motion detection or the arm swing motion detection. So, it's
`collecting information regarding your motion, depending on whether your
`detector is on your wrist or somewhere else on the body, the motions for
`what would be a step.
`JUDGE GIANNETTI: Okay.
`MR. BATTS: And Blackbird has not disputed that there's a step
`counter in Amano counting steps. And what happens is that that step
`information for that time interval, which can be 30 seconds or other time
`intervals, is then used in the Fast Fourier Transform to determine the
`information that is in step, what is called step Sa2, which is the pitch.
`JUDGE GIANNETTI: All right. I see that and I'm following you,
`but I still don't see distance. Where's the distance in that?
`MR. BATTS: Well --
`JUDGE STEPHENS: I mean, you're saying it's used for the pitch?
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`JUDGE GIANNETTI: Yes.
`JUDGE STEPHENS: Okay. But, then, where is the number of steps
`counted?
`MR. BATTS: The number of steps counted is what is the
`information that's being conveyed from step -- the body motion detector 104
`into the Fast Fourier Transform.
`JUDGE GIANNETTI: Okay.
`MR. BATTS: So, it's the number of steps counted over the 30-
`second interval.
`JUDGE GIANNETTI: Okay. So, you have the pitch, which is the
`number of steps per unit of time. And then, you have the number of steps.
`But where does that -- how do you get a distance out of that?
`MR. BATTS: So, the distance is when you multiply that information
`by the stride length, because you know from that information you've now
`determined the number of steps over the time interval, and you're
`multiplying the steps by what are the stride lengths of those steps during the
`time interval.
`JUDGE GIANNETTI: And so, you need three components, right?
`You need the number of steps, you need the pitch, and you need the time
`interval to get the distance?
`MR. BATTS: So --
`JUDGE GIANNETTI: Steps per time times distance per step times
`time, those are the three components that you need?
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`MR. BATTS: But their reliance -- I don't know that I necessarily
`agree, Your Honor, because underlying that calculation is you have the
`number of steps within a time interval, and you're multiplying it by a stride
`length to get the information. So, I think what might be instructive is I'd like
`to show you --
`JUDGE GIANNETTI: But that still doesn't get you distance, does
`
`it?
`
`MR. BATTS: It does.
`JUDGE GIANNETTI: How is that?
`JUDGE STEPHENS: So, it's, basically, you're limited to a specific
`time period? And this isn't I'm just going to decide to run and however far I
`run, I run. It's how far did I run in 30 seconds or in a minute.
`MR. BATTS: And that is correct. And Amano teaches that you can
`vary that time interval for when you want the processing to occur for. So, if
`you want a longer time interval, both experts agree here that the longer the
`time interval, the better to get more accurate results. Because the FFT --
`JUDGE STEPHENS: Right, but now you'd have to set the time
`interval ahead of time to figure out the distance I ran during that time
`interval?
`MR. BATTS: The processing has to be determined. You have to
`determine the processing interval for when you want to do a calculation.
`JUDGE GIANNETTI: But is that the kind -- go ahead.
`JUDGE ZADO: I'm looking at column 11 of Amano around line 60
`or so. Because I'm trying to understand what's happening with this pitch
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`detection, because it looks like there's a motion detector and the signal from
`the motion detector is going to be processed using Fast Fourier Transform,
`and there's talk about a peak frequency that's determined, multiplying that
`peak frequency by one-half to obtain the pitch. So, that doesn't sound to me
`like someone is simply sitting there and counting the total number of strides
`and, then, going to multiply that times a stride length. So, can you please
`explain this algorithm of how the pitch is determined?
`MR. BATTS: So, what Fast Fourier is doing here and conducting is
`an analysis of the step count information by the body detector, body motion
`detector 104. And it has to determine what motions are, in fact, steps or
`what motions could be, for example, what I'm doing right now with an arm
`gesture that may not be indicative of a step. So, the Fast Fourier is providing
`a more accurate calculation of what, in fact, the body motion detector is
`counting for steps.
`JUDGE STEPHENS: And so, do you know what Fast Fourier
`Transform is?
`MR. BATTS: It's a signal processing that basically -- it's a signal
`processing their calculation, a processing apparatus that allows you to do a
`time-to-frequency calculation of data that allows you to filter out the signals
`that may not be actual detection of footsteps.
`JUDGE ZADO: Because my understanding is in Fast Fourier
`Transform you take a signal that's in one domain, the time domain, and then,
`you convert it into the frequency domain for frequency detection. Now that
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`you've got your signal in the frequency domain, you can look for peaks and
`that will correspond to your peak frequency.
`But my question really is, you know, what I see here is it says there
`is Fast Fourier Transform processing on the motion signal detected by the
`motion detector.
`MR. BATTS: Uh-hum.
`JUDGE ZADO: And later on, it says that, "The largest pitch is the
`second order harmonic wave component, and a peak frequency thereof is
`detected," and that this peak frequency is multiplied by one-half to obtain
`the pitch. So, what I don't see here is counting the number of, what we
`would call counting a number of strides during those 30 seconds.
`MR. BATTS: So, if you go back to column 7, it's showing that the
`body motion -- it defines the pitch that's during running in line 25, the pitch
`during running. The number of steps per unit time is obtained from the
`results of this processing. So, Amano itself defines the FFT processing as
`calculating the number of steps over the time period.
`And I want to show for context, I'd like to show for context the Pyles
`patent and the Pyles patent's disclosure on this point, the 212 patent that
`we're challenging. And if we go to column 6 of the Pyles patent, starting at
`line 34, it talks about a similar mechanism for determining distance. It talks
`about, starting at line 34, it says, "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."
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`And it goes on to say, at line 43, "As a result of accurately
`calculating distance traveled, the Pedometer 20 also the capability of
`calculating speed and miles per hour, for example, or pace in minutes per
`mile."
`
`So, Amano has a similar disclosure and teaching regarding how you
`would calculate a distance traveled, and that distance traveled has to be
`within the context of a particular timeframe. And that timeframe for
`Amano, as the example in column 12, is 30 seconds, but it can be a different
`timeframe. The information that is being multiplied that's made clear on
`column 12 of Amano, in line 15, is you are multiplying the stride by the
`number of steps within that timeframe, within that time interval for
`processing, and that calculates a distance.
`And then, Amano goes on in the very next sentence to say this
`distance run is then multiplied. So, there is clearly a distance that has been
`calculated by Amano. And Claims 2 and 5 only require a distance to be
`calculated in this manner.
`And I think a disclosure that we can see in Amano --
`JUDGE STEPHENS: That still is per unit time, though, right? I
`mean, the rest of that sentence says it's then multiplied by a wave, and then,
`it comes up with something per minute.
`MR. BATTS: Well, figure 7 makes clear that the steps that are
`shown in figure 7 are a full set of steps that have to take place for a certain
`time window of data. So, every 30 seconds that the runner is running, this
`calculation is triggered to perform a calculation every -- the calculation is
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`triggered to be performed every 30 seconds of a time window of data.
`You're always going to have the time window of data at use, but underlying
`that time window of data is a distance calculation for that time window.
`You ran 50 steps over that 30 seconds. You ran 27 --
`JUDGE STEPHENS: So, it's over time?
`MR. BATTS: It is within a time window. There always
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