UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________________
`
`APPLE INC.,
`Petitioner
`
`v.
`
`UNILOC LUXEMBOURG S.A.
`Patent Owner
`
`_______________________
`
`Patent No. 6,736,759
`_______________________
`
`DECLARATION OF DR. KENNETH FYFE
`
`IPR2018-00294
`Apple Inc. EX1002 Page 1
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`
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`_______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________________
`
`APPLE INC.,
`Petitioner
`
`v.
`
`UNILOC LUXEMBOURG S.A.
`Patent Owner
`
`_______________________
`
`Patent No. 6,736,759
`_______________________
`
`DECLARATION OF DR. KENNETH FYFE
`
`IPR2018-00294
`Apple Inc. EX1002 Page 1
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`
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`I, Kenneth Fyfe, hereby declare the following:
`
`Petition for Inter Partes Review of
`U.S. Patent 6,736,759
`
`
`I.
`
`BACKGROUND AND QUALIFICATIONS
`1. My name is Kenneth Fyfe and I am over 21 years of age and otherwise
`
`competent to make this Declaration. I make this Declaration based on facts and
`
`matters within my own knowledge and on information provided to me by others.
`
`2.
`
`I have been retained as an expert in this matter by Counsel for Apple
`
`Inc. to provide my independent opinions on certain issues requested by Counsel for
`
`Petitioner relating to the accompanying petition for Inter Partes Review of U.S.
`
`Patent No. 6,736,759 (“the ’759 Patent”). My compensation in this matter is not
`
`based on the substance of the opinions rendered here.
`
`3.
`
`I have summarized in this section my educational background, career
`
`history, and other relevant qualifications. I have also attached a current version of
`
`my curriculum vitae as Appendix A. It lists over 90 articles, conference
`
`presentations and technical reports that I have authored or co-authored in these
`
`areas. My research has been funded in excess of 2 million dollars by a variety of
`
`grants awarded by both federal and provincial governments and from private
`
`industry.
`
`4.
`
`I have been awarded a total of 11 patents in various countries,
`
`including the United States, Canada, Germany, France, Great Britain, Finland and
`
`Belgium, issued from the period of 1999 to 2006. These patents are primarily in
`
`
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`2
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`the field of motion analysis and exercise monitoring. My first patent was U.S.
`
`Patent No. 5,955,667, entitled “Motion Analysis System.” It issued on September
`
`21, 1999, claimed priority to an October 11, 1996 provisional application, and was
`
`directed to the use of accelerometers to measure motion, for example a body-worn
`
`device that determined the speed and distance travelled of a runner. This concept
`
`was commercialized by a company that I cofounded (Dynastream Innovations, as
`
`mentioned below) and has sold millions of units around the world.
`
`5.
`
`Since January 2014, I have been working for 4iiii Innovations. For
`
`almost four years, I was the Director of Algorithms. However since December 1,
`
`2017, I am now the Managing Director for our SaaS division. Prior to 2014, I was
`
`a professor at the Engineering Transfer Program at MacEwan University in
`
`Edmonton, Alberta, Canada, where I had taught since 2010. I am also an adjunct
`
`faculty member at the University of Alberta where I worked as a professor in
`
`Mechanical Engineering from 1989 to 2003.
`
`6.
`
`I received my Ph.D. in Mechanical Engineering from the University of
`
`Waterloo in 1986 specializing in vibration, acoustics and signal processing. I
`
`obtained my Master of Science in Mechanical Engineering from the University of
`
`Alberta in 1983 specializing in vibration. My Bachelor of Science in Mechanical
`
`Engineering was obtained from the University of Alberta in 1980.
`
`
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`7. Between 1986 and 1989, I did post-doctoral research at the Katholieke
`
`University of Belgium and worked for a private company, Dynamic Engineering,
`
`performing vibration, acoustics and signal analysis on automotive, rail and
`
`aerospace structures.
`
`8.
`
`Then during the period from 1989 to 2003, I was employed as a
`
`professor
`
`in Mechanical Engineering performing
`
`teaching,
`
`research and
`
`administrative duties. My research areas of interest included biomedical sensors,
`
`motion analysis, and acoustics. During this time, I developed an inertial device to
`
`measure the speed and distance of a person walking, jogging or running. This
`
`device was a small pod with accelerometers, processor and radio, attached to a
`
`shoe, which computes the kinematics of the person and transmits the resulting
`
`information to the user. I began development in approximately 1994 and had
`
`developed a prototype of the device by approximately 1995.
`
`9.
`
`I cofounded Dynastream Innovations to commercialize this technology
`
`in 1999. In 2003, I left the university to work with Dynastream in product
`
`development. In 2006, Garmin purchased Dynastream and I continued to work
`
`there until 2007.
`
`10.
`
`In 2009 and 2010, I worked for the NeuroScience Department at the
`
`University of Alberta applying our inertial methodology to assistive technologies.
`
`From 2010 to 2013, I worked at MacEwan University as a professor involved in
`
`
`
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`teaching and research in Engineering. Since January 2014, I have been working
`
`for 4iiii Innovations developing personal measurement devices that involve inertial
`
`sensors, strain gauges and signal processing.
`
`11. As part of my work in connection with this proceeding, I have
`
`reviewed the following materials:
`
`• U.S. Patent 6,736,759 B1 to Stubbs et al. (’759 Patent) (EX1001)
`• File History of U.S. Patent 6,736,759 to Stubbs et al. (’759 Patent File
`History) (EX1003)
`• U.S. Patent 6,002,982 to Fry (Fry) (EX1004)
`• U.S. Patent 6,466,232 B1 to Newell et al. (Newell) (EX1005)
`• U.S. Patent 6,539,336 B1 to Vock et al. (Vock) (EX1006)
`• U.S. Patent 5,976,083 to Richardson et al. (Richardson) (EX1007)
`• U.S. Patent 6,149,602 to Arcelus (Arcelus) (EX1008)
`• U.S. Patent 5,564,417 to Chance (Chance) (EX1009)
`• PCT Publication WO 97/17598 to French et al. (French) (EX1010)
`• U.S. Patent. No. 3,797,010 to Adler (Adler) (EX1011)
`• U.S. Patent No. 4,367,752 to Jimenez et al. (Jimenez) (EX1012)
`• U.S. Patent No. 5,394,879 to Gorman (Gorman) (EX1013)
`• U.S. Patent No. 6,251,048 to Kaufman (Kaufman) (EX1014)
`• U.S. Patent No. 2,358,992 to Millikan (Millikan) (EX1015)
`• U.S. Patent No. 5,653,367 to Abramson (Abramson) (EX1016)
`• U.S. Patent No. 5,358,159 to Lundie (Lundie) (EX1017)
`• U.S. Patent No. D337,435 to Kaneko et al. (Kaneko) (EX1018)
`• About Us – Innovations, Polar Electro.com, available at
`https://www.polar.com/us-en/about_polar/who_we_are/innovations
`(EX1019)
`• Nellcor Pulse Oximeter Product Information, Wood Library Museum,
`available at
`https://www.woodlibrarymuseum.org/museum/item/531/nellcor-pulse-
`oximeter, (EX1020)
`• New Civil Signals, GPS.gov, available at
`https://www.gps.gov/systems/gps/modernization/civisignals/, (EX1021)
`
`
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`• Statement by Deputy Press Secretary Larry M. Speakes on the Soviet
`Attack on a Korean Civilian Airliner, September 16, 1983, Public Papers
`of President Ronald W. Reagan, Ronald Reagan Presidential Library,
`available at
`http://www.reagan.utexas.edu/archives/speeches/1983/91683c.htm,
`(EX1022)
`• Random House Webster’s Unabridged Dictionary Second Edition, Oct.
`1999 (EX1026)
`
`II. LEGAL FRAMEWORK
`A. Obviousness
`12.
`I am a technical expert and do not offer any legal opinions. However,
`
`counsel has informed me as to certain legal principles regarding patentability and
`
`related matters under United States patent law, which I have applied in performing
`
`my analysis and arriving at my technical opinions in this matter.
`
`13.
`
`I have been informed that a person cannot obtain a patent on an
`
`invention if the differences between the invention and the prior art are such that the
`
`subject matter as a whole would have been obvious at the time the invention was
`
`made to a person having ordinary skill in the art. I have been informed that a
`
`conclusion of obviousness may be founded upon more than a single item of prior
`
`art. I have been further informed that obviousness is determined by evaluating the
`
`following factors: (1) the scope and content of the prior art, (2) the differences
`
`between the prior art and the claim at issue, (3) the level of ordinary skill in the
`
`pertinent art, and (4) secondary considerations of non-obviousness. In addition, the
`
`obviousness inquiry should not be done in hindsight. Instead, the obviousness
`
`
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`inquiry should be done through the eyes of a person of ordinary skill in the relevant
`
`art at the time the patent was filed.
`
`14.
`
`In considering whether certain prior art renders a particular patent
`
`claim obvious, counsel has informed me that I can consider the scope and content
`
`of the prior art, including the fact that one of skill in the art would regularly look to
`
`the disclosures in patents, trade publications, journal articles, industry standards,
`
`product literature and documentation, texts describing competitive technologies,
`
`requests for comment published by standard setting organizations, and materials
`
`from industry conferences, as examples. I have been informed that for a prior art
`
`reference to be proper for use in an obviousness analysis, the reference must be
`
`“analogous art” to the claimed invention. I have been informed that a reference is
`
`analogous art to the claimed invention if: (1) the reference is from the same field of
`
`endeavor as the claimed invention (even if it addresses a different problem); or (2)
`
`the reference is reasonably pertinent to the problem faced by the inventor (even if
`
`it is not in the same field of endeavor as the claimed invention). In order for a
`
`reference to be “reasonably pertinent” to the problem, it must logically have
`
`commended itself to an inventor's attention in considering his problem. In
`
`determining whether a reference is reasonably pertinent, one should consider the
`
`problem faced by the inventor, as reflected either explicitly or implicitly, in the
`
`specification. I believe that all of the references that my opinions in this IPR are
`
`
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`based upon are well within the range of references a person of ordinary skill in the
`
`art would consult to address the type of problems described in the Challenged
`
`Claims.
`
`15.
`
`I have been informed that, in order to establish that a claimed invention
`
`was obvious based on a combination of prior art elements, a clear articulation of
`
`the reason(s) why a claimed invention would have been obvious must be provided.
`
`Specifically, I am informed that, under the U.S. Supreme Court’s KSR decision, a
`
`combination of multiple items of prior art renders a patent claim obvious when
`
`there was an apparent reason for one of ordinary skill in the art, at the time of the
`
`invention, to combine the prior art, which can include, but is not limited to, any of
`
`the following rationales: (A) combining prior art methods according to known
`
`methods to yield predictable results; (B) substituting one known element for
`
`another to obtain predictable results; (C) using a known technique to improve a
`
`similar device in the same way; (D) applying a known technique to a known device
`
`ready for improvement to yield predictable results; (E) trying a finite number of
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`identified, predictable potential solutions, with a reasonable expectation of success;
`
`(F) identifying that known work in one field of endeavor may prompt variations of
`
`it for use in either the same field or a different one based on design incentives or
`
`other market forces if the variations are predictable to one of ordinary skill in the
`
`art; or (G) identifying an explicit teaching, suggestion, or motivation in the prior
`
`
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`art that would have led one of ordinary skill to modify the prior art reference or to
`
`combine the prior art references to arrive at the claimed invention.
`
`16.
`
`I am informed that the existence of an explicit teaching, suggestion, or
`
`motivation to combine known elements of the prior art is a sufficient, but not a
`
`necessary, condition to a finding of obviousness. This so-called “teaching
`
`suggestion-motivation” test is not the exclusive test and is not to be applied rigidly
`
`in an obviousness analysis. In determining whether the subject matter of a patent
`
`claim is obvious, neither the particular motivation nor the avowed purpose of the
`
`patentee controls. Instead, the important consideration is the objective reach of the
`
`claim. In other words, if the claim extends to what is obvious, then the claim is
`
`invalid. I am further informed that the obviousness analysis often necessitates
`
`consideration of the interrelated teachings of multiple patents, the effects of
`
`demands known to the technological community or present in the marketplace, and
`
`the background knowledge possessed by a person having ordinary skill in the art.
`
`All of these issues may be considered to determine whether there was an apparent
`
`reason to combine the known elements in the fashion claimed by the patent.
`
`17.
`
`I also am informed that in conducting an obviousness analysis, a
`
`precise teaching directed to the specific subject matter of the challenged claim
`
`need not be sought out because it is appropriate to take account of the inferences
`
`and creative steps that a person of ordinary skill in the art would employ. The
`
`
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`prior art considered can be directed to any need or problem known in the field of
`
`endeavor at the time of invention and can provide a reason for combining the
`
`elements of the prior art in the manner claimed. In other words, the prior art need
`
`not be directed towards solving the same specific problem as the problem
`
`addressed by the patent. Further, the individual prior art references themselves
`
`need not all be directed towards solving the same problem. I am informed that,
`
`under the KSR obviousness standard, common sense is important and should be
`
`considered. Common sense teaches that familiar items may have obvious uses
`
`beyond their primary purposes.
`
`18.
`
`I also am informed that the fact that a particular combination of prior
`
`art elements was “obvious to try” may indicate that the combination was obvious
`
`even if no one attempted the combination. If the combination was obvious to try
`
`(regardless of whether it was actually tried) or leads to anticipated success, then it
`
`is likely the result of ordinary skill and common sense rather than innovation. I am
`
`further informed that in many fields it may be that there is little discussion of
`
`obvious techniques or combinations, and it often may be the case that market
`
`demand, rather than scientific literature or knowledge, will drive the design of an
`
`invention. I am informed that an invention that is a combination of prior art must
`
`do more than yield predictable results to be non-obvious.
`
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`I am informed that for a patent claim to be obvious, the claim must be
`
`19.
`
`obvious to a person of ordinary skill in the art at the time of the invention. I am
`
`informed that the factors to consider in determining the level of ordinary skill in
`
`the art include (1) the educational level and experience of people working in the
`
`field at the time the invention was made, (2) the types of problems faced in the art
`
`and the solutions found to those problems, and (3) the sophistication of the
`
`technology in the field.
`
`20.
`
`I am informed that it is improper to combine references where the
`
`references teach away from their combination. I am informed that a reference may
`
`be said to teach away when a person of ordinary skill in the relevant art, upon
`
`reading the reference, would be discouraged from following the path set out in the
`
`reference, or would be led in a direction divergent from the path that was taken by
`
`the patent applicant. In general, a reference will teach away if it suggests that the
`
`line of development flowing from the reference’s disclosure is unlikely to be
`
`productive of the result sought by the patentee. I am informed that a reference
`
`teaches away, for example, if (1) the combination would produce a seemingly
`
`inoperative device, or (2) the references leave the impression that the product
`
`would not have the property sought by the patentee. I also am informed, however,
`
`that a reference does not teach away if it merely expresses a general preference for
`
`
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`an alternative invention but does not criticize, discredit, or otherwise discourage
`
`investigation into the invention claimed.
`
`21.
`
`I am informed that even if a prima facie case of obviousness is
`
`established, the final determination of obviousness must also consider “secondary
`
`considerations” if presented. In most instances, the patentee raises these secondary
`
`considerations of non-obviousness. In that context, the patentee argues an
`
`invention would not have been obvious in view of these considerations, which
`
`include: (a) commercial success of a product due to the merits of the claimed
`
`invention; (b) a long-felt, but unsatisfied need for the invention; (c) failure of
`
`others to find the solution provided by the claimed invention; (d) deliberate
`
`copying of the invention by others; (e) unexpected results achieved by the
`
`invention; (f) praise of the invention by others skilled in the art; (g) lack of
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`independent simultaneous invention within a comparatively short space of time;
`
`(h) teaching away from the invention in the prior art.
`
`22.
`
` I am further informed that secondary considerations evidence is only
`
`relevant if the offering party establishes a connection, or nexus, between the
`
`evidence and the claimed invention. The nexus cannot be based on prior art
`
`features. The establishment of a nexus is a question of fact. While I understand
`
`that the Patent Owner here has not offered any secondary considerations at this
`
`
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`time, I will supplement my opinions in the event that the Patent Owner raises
`
`secondary considerations during the course of this proceeding.
`
`III. OPINION
`A. Background of the Technology
`23.
`I was asked to briefly summarize the background of the prior art from
`
`the standpoint of the knowledge of a person of ordinary skill in the art (which I
`
`have expressly defined in Section III.B below) prior to November 1999.
`
`24. Exercise monitoring systems that incorporate electronic distance
`
`measuring devices have been in use since at least the early 1970s. For example,
`
`U.S. Patent No. 3,797,010 to Adler (“Adler”) disclosed using electronic
`
`accelerometers capable of sensing each step taken by an exerciser while walking,
`
`running, or jogging. Adler at Abstract, 2:66-67, Fig. 2 (EX1011). The device
`
`taught by Adler was provided with a belt for releasably attaching the portable
`
`electronic “exercise monitoring” device to the user. Id. at 4:30-36, Fig. 1. It has
`
`long been well known that straps could be used to releasably attach exercise
`
`monitoring devices to users to allow the devices to monitor the movements of the
`
`user’s body.
`
`25. Exercise monitoring systems incorporating physiological sensors such
`
`as heart rate monitors also date back to at least the 1970s. For example, Polar
`
`Electro filed a patent application in 1977 for a fingertip heart rate monitoring
`
`
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`system, and later released a commercial version of a fingertip heart rate monitor in
`
`1979 for use during exercise. Then in 1982, Polar Electro released a wireless,
`
`wrist-worn heart rate monitor called the Sport Tester PE2000. About Us [EX1019]
`
`https://www.polar.com/us-en/about_polar/who_we_are/innovations,
`
`last visited
`
`November 21, 2017.
`
`26. Other physiological sensors date back many decades, including
`
`oximeters used to measure a person’s blood oxygen content. Light based
`
`techniques for non-invasively measuring blood oxygen content were developed in
`
`the 1940s. See, e.g., U.S. Patent No. 2,358,992 (EX1015). Small, finger mounted
`
`pulse oximeters that rely on the ratio of red to infrared light absorption were
`
`developed in the 1970s, and commercialized in the early 1980s. See, e.g., Nellcor
`
`Pulse
`
`Oximeter,
`
`available
`
`at
`
`https://www.woodlibrarymuseum.org/museum/item/531/nellcor-pulse-oximeter,
`
`last visited November 27, 2017 (EX1020).
`
`27. GPS technology has long been known as a preferred means of
`
`determining location and tracking movements. A GPS receiver is a device that
`
`receives electromagnetic signals (i.e. radio waves) from a constellation of GPS
`
`satellites and uses this information to calculate the geographic position of the
`
`device. These radio waves are broadcast at frequencies ranging from 1 to 2 GHz,
`
`and the specifications for the electromagnetic signals are freely available from the
`
`
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`States
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`Petition for Inter Partes Review of
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`e.g.,
`
`See,
`
`Government.
`
`www.gps.gov/systems/gps/modernization/civilsignals (EX1021). A PHOSITA
`
`would have understood, based on the widespread use of GPS receivers at the time
`
`of the ’759 Patent, that GPS satellites broadcast electromagnetic signals that could
`
`be used by GPS receivers to calculate position. Although the GPS system was
`
`initially created by the United States Department of Defense for military use, the
`
`signals from GPS satellites were declassified for civilian use in 1983. See
`
`Statement by Deputy Press Secretary Larry M. Speakes on the Soviet Attack on a
`
`Korean Civilian Airliner, September 16, 1983, Public Papers of President Ronald
`
`W. Reagan, Ronald Reagan
`
`Presidential
`
`Library,
`
`available
`
`at
`
`http://www.reagan.utexas.edu/archives/speeches/1983/91683c.htm (EX1022).
`
`28. Throughout the 1980s and 1990s, many exercise monitoring systems
`
`were developed. For example, U.S. Patent No. 4,367,752, filed in April 1980,
`
`describes a body mounted exercise monitoring computer that measures and
`
`displays a user’s heart rate and distance travelled by the subject. (EX1012). U.S.
`
`Patent No. 5,394,879, filed in May 1993, similarly describes an exercise
`
`monitoring system for measuring heart rate of an athlete and sending the data
`
`wirelessly to a body mounted display for the athlete to view the heart rate data
`
`during exercise. (EX1013). Finally, U.S. Patent No. 6,251,048, filed in January
`
`1999, describes an exercise monitoring system that provides an indication of the
`
`
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`athlete’s “distance, time, pulse rate, calories expended” and other related exercise
`
`parameters. (EX1014) at 4:65-67. A PHOSITA would have been well aware of the
`
`above-described state of the art as of November 1999.
`
`B.
`
`29.
`
`Level of Skill of a Person Having Ordinary Skill in the Art
`
`I was asked to provide my opinion as to the level of skill of a person
`
`having ordinary skill in the art (“PHOSITA”) of the ’759 Patent at the time of the
`
`claimed invention, which counsel has informed me to assume is November 9,
`
`1999, the filing date of the Parent Application to the ’759 Patent. In determining
`
`the characteristics of a hypothetical PHOSITA of the ’759 Patent at the time of the
`
`claimed invention, I was told to consider several factors, including the type of
`
`problems encountered in the art, the solutions to those problems, the rapidity with
`
`which innovations are made in the field, the sophistication of the technology, and
`
`the education level of active workers in the field. I also placed myself back in the
`
`time frame of the claimed invention, and considered the colleagues with whom I
`
`had worked at that time.
`
`30.
`
`In my opinion, a person of ordinary skill in the art of the ’759 Patent at
`
`the time of the claimed invention would have been a person with a bachelor’s
`
`degree in mechanical engineering, electrical engineering, or a similar field with at
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`least two years of experience in exercise monitoring device design, body-mounted
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`computing systems, or in motion tracking. A person with more direct industry
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`experience could accommodate having less formal education, and more formal
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`education in the field, such as a master’s degree with relevant specialization can
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`accommodate less direct industry experience. Such a person of ordinary skill in the
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`art would have been capable of understanding the ’759 patent and the prior art
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`references discussed herein.
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`31. Based on my education, training, and professional experience in the
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`field of the claimed invention, I am familiar with the level and abilities of a person
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`of ordinary skill in the art at the time of the claimed invention. Additionally, I met
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`at least these minimum qualifications to be a person having ordinary skill in the art
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`as of the time of the claimed invention of the ’759 Patent.
`
`C. Claim Construction
`
`32.
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`I have been informed by counsel and understand that the first step in an
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`unpatentability analysis involves construing the claims, as necessary, to determine
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`their scope. And, second, the construed claim language is then compared to the
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`disclosures of the prior art. In proceedings before the United States Patent and
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`Trademark Office, I have been informed that the claims of an unexpired patent are
`
`to be given their broadest reasonable interpretation in light of the specification
`
`from the perspective of a person of ordinary skill in the art at the time of the
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`invention. And I have been informed that the ’759 Patent is unexpired. In
`
`comparing the claims of the ’759 Patent to the prior art, I have carefully considered
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`
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`the ’759 Patent and its prosecution history based upon my experience and
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`knowledge in the relevant field. For purposes of this proceeding, I have applied the
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`claim constructions set forth in the claim construction section of the IPR Petition
`
`that this declaration accompanies when analyzing the prior art and the claims. For
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`those terms that have not expressly been construed, I have applied the meaning of
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`the claim terms of the ’759 Patent that is generally consistent with the terms’
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`ordinary and customary meaning, as a person of ordinary skill in the art would
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`have understood them at the time of the invention.
`
`33.
`
`I have reviewed the petition’s proposed construction of the term
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`“displaying real-time data” as “displaying data without intentional delay, given the
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`processing limitations of the system and the time required to accurately measure
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`the data.” I understand this construction was set forth by the Court of Appeals for
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`the Federal Circuit, which applies a claim construction standard that is different
`
`than the Broadest Reasonable Interpretation (BRI) standard that is to be applied to
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`the unexpired ’759 Patent in this IPR. I further understand that the standard applied
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`by the Federal Circuit should be no broader than the BRI. Accordingly, for
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`purposes of my analyses below, I have assumed the BRI captures at least this
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`proposed construction.
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`I have also reviewed the constructions of the following terms from the
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`34.
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`petition and have assumed the BRI captures at least these constructions for
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`purposes of my analysis below:
`
`(a)
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` “display unit” means “a structure or set of structures,
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`separate from the data acquisition unit, for displaying
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`real-time data provided by both the electronic positioning
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`device and the physiological monitor independently or
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`over a common transmission path”
`
`(b)
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`“data acquisition unit” means “a structure or set of
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`structures that includes at least the electronic positioning
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`device and the physiological monitor”
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`(c)
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`“probe” means “a device used to obtain physiological
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`information from a user”
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`D. Obvious to Combine Fry and Newell
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`35. Fry teaches a sports computer “for sports training purposes” that
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`employs “an integral global satellite positioning (GPS) receiver” to determine the
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`speed and position of an athlete, and that this computer “may optionally include a
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`heart-rate sensor.” Fry at 1:7-12; 2:38-42; 3:8-9 (EX1004). The sports computer in
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`Fry and its connected sensors are used to measure and display the “geographic
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`position, speed or physiological” data of its user. Id. at 5:58-60. Fry teaches an
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`example of the device operating in a bicycling application but explains the sports
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`computer is also “readily applicable to other sports involving travel over time . . .
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`including running, rowing, kayaking, gliding, etc.” Fry at 2:44-46. Fry and the
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`’759 Patent both relate to portable exercise monitoring systems for providing real-
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`time feedback to athletes during exercise, and both Fry and the ’759 Patent teach
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`the use of GPS receivers and heart rate monitors to serve this purpose. For these
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`reasons, a PHOSITA would understand that Fry is in the same field of endeavor
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`and is reasonably pertinent to the claims in the ’759 Patent.
`
`36. As noted above, I have assumed the BRI of “real-time” is “displaying
`
`data without intentional delay, given the processing limitations of the system and
`
`the time required to accurately measure the data.” In my opinion, Fry teaches the
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`real time display of GPS and heart rate monitor data. For example, FIG. 3 in Fry
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`describes the logical flow process that governs the receipt and display of updated
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`sensor data. Fry at 6:1-19, FIG. 3. As part of this flow, Fry teaches that interrupts
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`are used to capture newly available data from the sensors. Interrupts are well-
`
`known in computing as a means of branching off a processing loop when a specific
`
`event occurs. Here, Fry teaches that the availability of new data from the sensors
`
`causes an interrupt that results in that new data being processed for storage and for
`
`updating the display every loop. In my opinion, this interrupt-based process for
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`retrieving and displaying newly acquired sensor data is a process that satisfies the
`
`
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`BRI of “real-time.” By interrupting the processing loop when new data is available
`
`and updating the display each loop, Fry ensures that new data is displayed without
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`intentional delay, given the limitations of the system and the time required to
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`actually read, process, and display the sensor data. As additional support for this
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`conclusion, Fry teaches an alternative embodiment that updates sensor data on a
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`“non-interrupt basis.” Id. at 6:9-11. Fry notes, importantly, that the non-interrupt
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`processing requires the sensor data to be “maintained in a buffer,” which
`
`necessarily adds some delay to the process that would not otherwise exist in the
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`primary interrupt-based processing. Id.
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`37. Like Fry, Newell also teaches a body-mounted computer system with
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`various sensors such as a heart rate monitor and a GPS receiver. Both Newell and
`
`the ’759 Patent and are in the same field of endeavor because both patents relate to
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`body-mounted portable devices that measure and report on the movement and
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`physiological status of the user in real-time, and a PHOSITA would understand
`
`that Newell is reasonably pertinent to the claims in the ’759 Patent.
`
`38. Fry teaches that its sports monitoring co
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