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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE, INC.
`Petitioner
`v.
`UNILOC 2017 LLC
`Patent Owner
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`IPR2018-00294
`PATENT 6,736,759
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`PATENT OWNER’S REQUEST FOR
`REHEARING UNDER 37 C.F.R. § 42.71(D)
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`IPR2018-00294
`U.S. Patent 6,736,759
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`In response to the Final Written Decision entered April 12, 2019 (Paper 20)
`and pursuant to 37 CFR § 42.71(d), Patent Owner hereby respectfully requests a
`rehearing and reconsideration by the Patent Trial and Appeal Board of its Final
`Written Decision (“FWD”).
`I.
`APPLICABLE STANDARDS
`“A party dissatisfied with a decision may file a request for rehearing, without
`prior authorization from the Board.” 37 C.F.R. §42.71(d). “The request must
`specifically identify all matters the party believes the Board misapprehended or
`overlooked, and the place where each matter was previously addressed in a motion,
`an opposition, or a reply.” Id. The Board reviews a decision for an abuse of
`discretion. 37 C.F.R. §42.71(c).
`II. ARGUMENT
`The Board’s Final Written Decision misapplies the Federal Circuit
`construction of “displaying real-time data” to mean “displaying data without
`intentional delay, given the processing limitations of the system and the time
`required to accurately measure the data.” The Board bases its conclusion on the
`factually incorrect and legally inapposite finding that “the only delay in Fry’s display
`of GPS data is due to system processing.” FWD at 20. The suggestion that no system
`processing, however unrelated to the claim language, can ever amount to the form
`of “intentional delay” proscribed by the Federal Circuit is incorrect.
`The disclosure in Fry that the Board dismisses as mere “system processing”
`is in fact intentional delay caused by executing additional process steps unrelated to
`computing and displaying the “data” as claimed. See Paper 9 (Resp.) at 5-11. Claim
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`1
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`IPR2018-00294
`U.S. Patent 6,736,759
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`1 recites the claimed “data” in the specific context of “data provided by said
`electronic positioning device and said physiological monitor.” In other words, the
`“data” that must be displayed in “real time” (i.e., “without intentional delay”) is
`specifically claimed as that which is provided by “said electronic positioning device
`and said physiological monitor.” Accordingly, unrelated system processing that
`would intentionally delay displaying the specifically-claimed “data” cannot
`reasonably be dismissed as “processing limitations of the system and the time
`required to accurately measure the data” as claimed. See Paper 9 (Resp.) at 5-11.
`Intentional delay would arise, for example, by dedicating additional process
`cycles to servicing other sensors that provide data other than that “provided by said
`electronic positioning device and said physiological monitor.” Such unrelated
`processing is not fairly characterized as either “processing limitations of the system”
`or “the time required to accurately measure the [specifically-claimed] data”. It must
`therefore be considered intentional delay and hence outside the scope of the claim
`language. Therein lies a fundamental flaw in the Petition that the Board appears to
`have misunderstood or overlooked in its Final Written Decision.
`The passage of the ’759 patent cited by the Board only confirms this
`interpretation and further highlights deficiency of the Petition. See FWD at 22 (citing
`EX1001 at 16:19-38). The Board observes that “the ’759 patent discloses that the
`electrical signal sent to the display unit can include data from the electronic
`positioning device (location, altitude, velocity, pace, distance traveled, and heading)
`and data from the physiological monitor (blood oxygen level and heart rate).” FWD
`at 22. This description of the specific data displayed in real time reflects the claim
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`IPR2018-00294
`U.S. Patent 6,736,759
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`language in question. The only data disclosed concerns that which is provided by
`the electronic position device data and physiological monitor.
`Unlike the ’759 patent, Fry intentionally delays displaying the “GPS and heart
`rate” data that Petitioner points to as allegedly satisfying the claim language. Paper
`12 (Reply) at 8. The Petition focuses on Figure 3 of Fry (reproduced below). Figure
`3 itself and its corresponding description confirm that Fry intentionally delays the
`display of the “GPS and heart rate” data Petitioner relies upon.
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`3
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`IPR2018-00294
`U.S. Patent 6,736,759
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`EX1004 (Fry), Figure 3.
`At a minimum, Fry discloses its block 350 requires dedicating additional
`process cycles to scanning for data that is not accurately characterized as being
`provided by either an “electronic positioning device” or a “physiological monitor.”
`EX1004 at Figure 3, 6:28-31. Consequently, execution of block 350 intentionally
`delays updating the display with the previously stored “GPS and heart rate” data
`Petitioner attempted to map onto the claim language. Id.; Paper 12 (Reply) at 8. Fry
`itself justifies and explains this intentional delay by stating that updating the display
`(at block 360) is the “least critical function.” EX1004 at 6:32−33; see also EX2001
`¶¶ 20-22.
`In describing Figure 3, Fry makes explicit distinctions between the data
`provided by GPS sensor (at block 330) and the distinct data provided by the less
`time-critical sensors (at block 350). EX1004 at 6:1-41. To be clear, Fry does not
`describe the less time-critical sensors as including either an electronic positioning
`device or a physiological monitor, much less exclusively constituting such sensors.
`On the contrary, Fry uses the name “less time-critical sensors” to distinguish these
`sensors, in part, in that they are not time sensitive and they do not provide either
`GPS coordinate data or physiological data. Id.
`Fry further distinguishes block 350 by illustrating and describing it as simply
`scanning the “less time-critical sensors” for data each sensor currently holds, without
`requiring performing any calculations on that data, such as time-derivative
`calculations. See EX1004 at Figure 3 (distinguishing block 350 in that it is followed
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`IPR2018-00294
`U.S. Patent 6,736,759
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`by only a store step 354, as opposed to both compute and store steps) and 6:28-31.
`Dr. Easttom offering the following testimony on this point:
`
`[W]hat Fry is describing is that the other scans [at block 350]
`don’t require a calculation. You just scan and get a value. And
`the examples he gives would fall into that category. For example,
`a compass heading, there’s not a calculation. I just detect my
`compass heading.
`EX1027 at 49:23-50:3. Petitioner’s declarant, Dr. Fyfe, offers no testimony
`whatsoever concerning Fry’s block 350 and he does not specifically address those
`distinct sensors or the data they contain.
`The only description Fry offers of the sensors scanned in block 350 further
`highlights the distinction:
`
`These include internal electronic compass heading, weather
`sensors and so forth, which do not change on a time-critical or
`even periodic basis. Thus, in these cases, the sensors are simply
`scanned after time-critical interrupts are first serviced.
`EX1004 at 6:29-33.1 None of these examples expressly or inherently concern either
`GPS or heart rate data; and the description confirms that block 350 does not involve
`performing any calculation on data stored in previous process steps (e.g., 338 and
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` 1
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` Fry’s use of the word “heading” in connection with an “internal electronic
`compass” should not be confused with the word “heading” calculated, instead, by
`time-critical interpolation of GPS coordinate data. Anyone who has held a compass
`would recognize that compass heading changes merely by rotating in place, even
`without changing geolocation. Thus, as explained by Dr. Easttom’s unrebutted
`testimony above, the time-independent compass heading described in Fry is simply
`scanned without further calculation. EX1027 at 49:23-50:3; see also EX1004 at
`6:29-33 (confirming the same). This is distinguishable from calculating a heading
`using multiple time-critical points of GPS coordinate data.
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`IPR2018-00294
`U.S. Patent 6,736,759
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`346). Petitioner advanced no argument or evidence during trial to conclude
`otherwise. This further confirms that execution of block 350 intentionally delays
`updating the display with the previously stored data Petitioner attempted to map onto
`the claim language. Id.
`Accordingly, it would be inaccurate to characterize block 350 of Fry as merely
`“system processing” attributable to “data provided by said electronic positioning
`device and said physiological monitor.” Rather, the execution of block 350 results
`in the very “intentional delay” proscribed by the Federal Circuit’s construction.
`With the benefit of Patent Owner’s Response, Petitioner appeared to
`recognize that at least Fry’s block 350 kills the mapping applied in the Petition
`because its execution internationally delays updating the display with the alleged
`“GPS and heart rate” data. Petitioner’s counsel signaled this concern by trying to get
`Dr. Easttom to testify on cross examination that Figure 3 illustrates block 350 as a
`step that may be skipped altogether (presumably to fill the void of Dr. Miller’s
`declaration, which makes no mention of Fry’s block 350). See EX1027 at 60:24-
`61:8. Dr. Easttom refuted such an interpretation. Id.
`Dr. Easttom further explained that Fry’s Figure 3 is a flowchart that makes
`conventional use of “brackets” for reference nos. 310, 330 and 340. He testified that
`a person of ordinary skill in the art would understand that the brackets “indicate that
`you have to ask a question and proceed in a different direction based on the output
`of that question.” EX1027 at 92:1-16. He also testified that a person of ordinary skill
`would recognize that Fry’s flowchart of Figure 3 makes conventional use of “square
`boxes” (e.g., block 350) to indicate that the corresponding processing is “not an
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`IPR2018-00294
`U.S. Patent 6,736,759
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`option” and that “[y]ou’re simply going to do those things.” Id. Accordingly, the
`intentional delay caused by executing block 350 occurs every time the flowchart of
`Figure 3 is executed. Id. at 93:5-7. There is no controverting expert testimony on any
`of these points.
`The Board appears to have either overlooked or misunderstood at least this
`record evidence and the corresponding argument previously presented by Patent
`Owner. See, e.g., Paper 9 at 5-11.
`Petitioner has the burden of proof here, yet its Reply makes no mention of
`Fry’s block 350 or Dr. Easttom’s testimony concerning the same. Petitioner’s
`rebuttal essentially is that the claim language does not exclude intentionally delaying
`the display of the claimed “data provided by said electronic positioning device and
`said physiological monitor”, so long as the intentional delay involves additional
`process cycles executed to service virtually any number of any other types of sensory
`data. This renders the “without intentional delay” aspect of the construction a nullity,
`particularly given that the Federal Circuit couched its construction in terms of the
`claimed “data” (as opposed to any data in general).
`Petitioner further underscores this deficiency by faulting Patent Owner and its
`expert for “focus[ing] on the question of ‘real-time’ from the perspective of the
`processing system[.]” But the Federal Circuit did the same by objectively
`characterizing “intentional delay” as taking into account “the processing limitations
`of the system and the time required to accurately measure the data”, as opposed to
`some subjective perception or intent of the user. By misplacing the proper
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`IPR2018-00294
`U.S. Patent 6,736,759
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`perspective Petitioner confirms it misunderstood the Federal Circuit construction.
`The Board appears to have been misled into adopting such a theory.
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`II. CONCLUSION
`In view of the foregoing, Patent Owner respectfully requests that the Board
`grant a rehearing and reconsider its Final Written Decision.
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`
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`Date: May 13, 2019
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`Respectfully submitted,
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`By: /s/ Brett A. Mangrum
`Brett A. Mangrum; Reg. No. 64,783
`Attorney for Patent Owner
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`IPR2018-00294
`U.S. Patent 6,736,759
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing was served electronically on
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`counsel of record for Petitioner.
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`Date: May 13, 2019
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`Respectfully submitted,
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`By: /s/ Brett A. Mangrum
`Brett A. Mangrum; Reg. No. 64,783
`Attorney for Patent Owner
`
`i
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