UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
`
`PARAGON SOLUTIONS, LLC
`
`CASE NO. 1:06cv677
`
`Plaintiff
`
`Judge Barrett
`
`-vs-
`
`TIMEX CORPORATION
`
`Defendant
`
`OPINION AND ORDER
`
`This matter came on for hearing on October 16, 2007. The Parties previously filed
`
`their Joint Claim Construction Statement (Doc. 25) with the Court on August 20, 2007.
`
`The Parties are engaged in the competitive field of athletic training support devices. They
`
`manufacture and promote fitness products that are conceived to provide anatomic and
`
`metabolic feedback to athletes in training. Both companies seek to promote themselves
`
`as delivering up-to-the-second information regarding athletic performance. The competitive
`
`edge belongs to the supplier who can provide more comfortable and more easily adaptable
`
`equipment with faster results for the end user.
`
`Paragon’s patent at issue is Stubbs, et al U.S. 6,736,759 (the ‘759 patent1). Both
`
`Parties agree that the first step in resolving patent disputes is to determine the meaning
`
`and scope of the patent claims alleged to be infringed upon; and that this is the function of
`
`the Court. “A literal patent infringement analysis involves two steps: the proper
`
`1 The Stubbs Patent (May 18, 2004) is assigned to Paragon Solutions, LLC. and is an exercise
`monitoring system which includes electronic positioning device, physiological monitor and a display unit
`configured for displaying data provided by the electronic positioning device and the physiological
`monitor.
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`construction of the asserted claims and a determination as to whether the accused method
`
`or product infringes the asserted claims properly construed.” Markman v. Westview
`
`Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995). The Parties submitted a Joint Claim
`
`Construction Statement Chart of Agreed and Disputed Terms (Doc. 25), which the Court
`
`will follow in its analysis.
`
`CLAIM LANGUAGE:
`
`1. An exercising monitoring system comprising: (a) a [1] data acquisition unit
`
`comprising an [2] electronic positioning device and a [3] physiological monitor, said
`
`data acquisition unit configured to be worn by a subject performing a physical activity;
`
`The Parties agree on the construction of electronic positioning device,
`
`physiological monitor and subject.
`
`DISPUTED TERM:
`
`[1] DATA ACQUISITION UNIT:
` (Claim 1,6,8,9,10, 11, 23, 29 and 31)
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[1] The terminology “data acquisition unit” means an assemblage of inter-related
`components that unify the function of acquiring data from an electronic positioning device
`and a physiological monitor (col. 3, lines 16-18 and lines 20-22; col. 7, lines 55-61; col. 8,
`lines 608 and lines 37-40; col. 17, lines 18-19; Figs. 4,6,8 and 15.
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[1] “data acquisition unit” means one structure that includes the electronic positioning
`device and the physiological monitor. (Specification, Col. 8, Line 66 to Col. 9, Line 6;
`Figure 5; and the Prosecution History, including the: (1) Feb. 12, 2003 Office Action, and
`(2) July 14, 2003 Response).
`
`Paragon relies on the specifications while Timex relies on the prosecution history.
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`Paragon directs the Court to the various references and specifications that suggest that the
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`data acquisition component/unit may be part of multiple structures that are physically
`
`separate from each other; and provides the Court with various references within the
`
`specifications to support this position. The patent claims do not stand alone but are part
`
`of a fully integrated written instrument consisting principally of the specification that
`
`concludes with the claims. Acquiring the claims must be read in view of the specification
`
`of which they are a part. Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005);
`
`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Claims are
`
`generally given their ordinary and customary meaning in accordance with a person of
`
`ordinary skill in the art in question at the time of the invention. Phillips v. AWH Corp., 415
`
`F.3d at 1312-1313. Patents are addressed and intended to be read by others of skill in the
`
`pertinent art. Id. at 1313.
`
`Timex cites the Court to the prosecution history. “It is well settled that in interpreting
`
`an asserted claim the Court should look first to the intrinsic evidence of record, i.e., the
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`patent itself, including the claims, the specification and, if in evidence, the prosecution
`
`history.” Vitronics Corp., 90 F.3d at 1582, citing Markman, 52 F.3d at 979. The
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`prosecution history is often of critical significance in determining the meaning of claims.
`
`Victronics, 930 F.3d at 1583.
`
`The PTO examiner initially found the ‘759 claims to be anticipated or obvious in light
`
` of Root, et al. (U.S. Patent 6,013,007 attached to Doc. 21 as Exhibit 1 2) and therefore
`
`2  The Root patent (January 11, 2000) is assigned to Liquid Spark, LLC and is a global positioning
`system (GPS) based personal athletic performance monitor for providing the athlete with real time
`athletic performance feedback data such as elapsed exercise time, distance covered, average pace,
`elevation difference, distance to go and/or advice for reaching preset targets.
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`rejected Paragon’s language. The PTO noted that Root, supra, disclosed an electronic
`
`positioning device, a physiological monitor and display unit (Doc. 21, Ex. 2, M-4), which this
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`Court concludes would be an assemblage of inter-related components. Paragon
`
`specifically amended Claim One to require that the electronic positioning device and
`
`psychological monitor are provided as a “data acquisition unit” to be worn by the subject.
`
`(Doc. 21, Ex. 2, P. 5). A further description indicates that the data acquisition unit is a
`
`single structure and that the electronic positioning device would likewise be a single
`
`structure which is separate from the display unit. The patentee further distinguishes itself
`
`from the Root patent by separating the data acquisition unit from the display unit which in
`
`Root are apparently provided in a single unit.
`
`Often the Court can assume that the words in a patent claim must be used in the
`
`same way as they are used in the specification. Fonar Corp. v. Johnson & Johnson, 821
`
`F.2d 627 (Fed. Cir. 1987), cert. denied, 484 U.S. 1027 (1988); Terlep v. Brinkmann Corp.,
`
`418 F.3d 1379 (Fed. Cir. 2005); Victronics Corp., 90 F.3d at 1582. However, the
`
`prosecution history must also be considered in interpreting claims. Markman, 52 F.3d at
`
`980, Victronics Corp., 90 F.3d at 1582. Claim amendments and arguments made during
`
`the prosecution may be examined to determine the meaning of the terms and the claims.
`
`Phillips., 415 F.3d at 1317. Claim limitations may be construed to exclude a preferred
`
`embodiment if the prosecution has compelled such a result. North American Container v.
`
`Plastipak Packaging, Inc., et al. 415 F.3d 1335, 1346 (Fed. Cir. 2005). Therefore, claims
`
`should not be construed one way to obtain allowance and in a different way against
`
`accused offenders “if the inventor had disavowed or disclaimed scope of coverage by using
`
`words or expressions of manifest exclusion or restriction representing a clear disavowal of
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`claim scope”. Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193, 1204 (Fed.
`
`Cir. 2002). If interpretation of a claim was disclaimed during the prosecution, that
`
`interpretation may be excluded by the Court. Southwall Technologies, Inc. v. Cardinal IG
`
`Company, 54 F.3d 1570, 1576 (Fed. Cir. 1995).
`
`Prosecution disclaimer is an accepted concept in claim construction where the
`
`disavowal is unambiguous. Elbex Video Ltd. v. Sensormatic Electronics Corp., 508 F.3d
`
`1366, 1372-1373 (Fed. Cir. 2007). In this case, Paragon was responding directly to the
`
`PTO’s notification of problems due to the preexisting Root patent. Correspondence
`
`between the PTO and the patentee clearly and unmistakably disavows the concept of an
`
`assemblage of inter-related parts and embraces a single structure unit concept.
`
`Therefore, the Court concludes that “data acquisition unit” means one structure
`
`that includes the electronic positioning device and the physiological monitor.
`
`CLAIM LANGUAGE:
`
`(b)[5] a display unit configured [6] for [7] displaying real-time data provided by
`said electronic positioning device and said physiological monitor, said display unit [8]
`separate from said data acquisition unit
`
`DISPUTED TERM
`
`[5] - A DISPLAY UNIT
` (Claim 1, 10, 11, 18, 20, 22, 23, 29 and 32)
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[5] The terminology “a display unit” means an assemblage of inter-related
`components that unify the function of displaying data from the electronic positioning device
`and the physiological monitor. (Col. 7, lines 61-62; col. 8, lines 4-5).
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`TIMEX’S PROPOSED CONSTRUCTION:
`
`[5] “display unit” means a unit for displaying real-time data provided by the data
`acquisition unit. (Specification, Col. 21, Lines 13-18; and Claims, Col. 27, Line 64 to Col.
`28, Line 17; Col. 30, Lines 11-28).
`
`Paragon argues that the language in the ‘759 patent, Col. 7, L. 61 - 62, wherein it
`
`indicates a “display unit may comprise any of a variety of a structures configured for
`
`displaying data” means an assemblage of inter-related components that unify the function
`
`of displaying data from an electronic positioning device and physiological monitor.
`
`However, Col. 7, L. 64-65 goes on to explain, “for example, a simple display unit may
`
`include a screen which displays the subject’s speed and oxygen level.” Therefore, while
`
`the unit itself may display data feedback from more than one data gathering source, the
`
`display occurs in the same unit and is not an assemblage of inter-related components.
`
`Again, the amendment to the patent as a result of PTO review seeks to distinguish the
`
`‘759 invention from the Root invention. The “remarks” indicate the display unit is separate
`
`from the data acquisition unit and configured to display real time data. (Exh. 2, P.5) The
`
`display unit is separate from the electronic positioning device. (Exh. 2, P. 6). While the
`
`invention itself is an assemblage of inter-related components, that is, the electronic position
`
`device may be separate from or part of the data acquisition unit, the display unit is
`
`separate and configured to be worn by the user (Doc. 21, Exh. 2, P. 7). The data
`
`acquisition unit and the display unit are separate and distinct structures. The data acquired
`
`by the data acquisition component (Exh. 2, B 17, Col. 8, L. 65) includes GPS information
`
`such as altitude, heading, velocity, pace and distance traveled and physiological monitor
`
`includes information such as the blood oxygen level or heart rate (Exh. 2, B. 18, Col. 10,
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`L. 15-21). In addition, the display unit may also provide information as simple as time
`
`(Exh. B 24, Col. 22, L. 39-48). Therefore, the Court concludes that “a display unit” means
`
`a unit for displaying real-time data provided by the data acquisition unit.
`
`Displaying Real Time is described below and does not need to be included in the
`
`above construction of the display unit language.
`
`DISPUTED TERM:
`
`[6] - FOR
` (Claim 1)
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[6] The terminology “for” denotes a function for which the display unit is configured.
`(Col. 6, line 55; col. 7, line 66 to col. 8, line 5; col. 22, lines 26-67; col. 10, lines 55-61). [6]
`“for” means the sole function for which the display unit is configured. (Abstract,
`Specification, Col. 6, Lines 40-42; Col. 6, Lines 49-55; Col. 7, Lines 35-39; Col. 7, Lines 46-
`48; Col. 10, Lines 14-20; Col. 11, Lines 31-38; Col. 13, Lines 4-9 and 16-19; Col. 14; Lines
`46-48; Col. 21, Line 11 to Col. 23, Line 27.
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[6] “for” means the sole function for which display is configured (abstract,
`specification, col. 6, Lines 40-42; Col. 6, Lines 49-55; Col. 7, Lines 35-39; Col. 7, Lines 46-
`48; Col. 10, Lines 14-20; Col. 11, Lines 31-38; Col. 13, Lines 4-9 and 16-19; Co. 14, Lines
`46-48; Col. 21, Line 11 to Col. 23, Line 27).
`
`Timex’s inclusion of the word “sole” imports a limitation not contemplated nor
`
`described in the specifications. The Federal Circuit has “expressly rejected the contention
`
`that if a patent describes only a single embodiment, the claims of the patent must be
`
`construed as being limited to that embodiment”. Phillips, 415 F.3d at 1323. Therefore, the
`
`Court concludes that “for” denotes a function for which the display unit is configured.
`
`DISPUTED TERM:
`
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`[7] - DISPLAYING REAL-TIME DATA
` (Claim 1, 2 and 9)
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[7] The terminology “displaying real-time data” means displaying data substantially
`immediately without contextually meaningful delay so that the information is displayed in
`substantially in a time frame experienced by people. (Col. 6, lines 40-42; Microsoft,
`Microsoft Computer Dictionary 375 (4th ed. 1999).
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[7] “displaying real-time data” means displaying the measured parameter at the
`given moment in time that the measurement of the parameter occurs. (Specification, Col.
`1, Lines 16-30; Col. 6, Lines 40-42; Col. 13, Lines 4-9 and 11-33; Col. 23, Lines 40-53; and
`Prosecution History , including the (1) Feb. 12, 2003 Office Action and (2) July 14, 2003
`Response).
`
`Paragon proposes that “display in real time means displaying data substantially and
`
`immediately without contextually meaningful delay so that the information is displayed
`
`substantially in a time frame experienced by people.” Timex counters that display in real
`
`time data means “displaying in the measured parameter in the ‘given moment’ in time that
`
`the measurement that the parameter occurs”.
`
`Paragon points out that technical dictionaries define “time” as “relating to a time
`
`frame imposed by external constraints”. (Doc. 22 at P. 14). Both Parties split here but the
`
`key distinction is that Timex proposes data read-outs instantaneously with no delay
`
`whatsoever and Paragon proposes as nearly to instant as mechanically possible so as to
`
`provide the athlete with usable information within the useful context (for a runner
`
`presumably within the stride). Timex uses the term “at the given moment” in time to convey
`
`its point. However even the word “moment” has a passage of time.
`
`A court may also resort to extrinsic evidence, such as dictionaries, treatises, and
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`expert or inventor testimony. Phillips, 415 F.3d at 1317. Technical dictionaries may be
`
`helpful in providing an understanding “of particular terminology to those of skill in the art of
`
`the invention.” Id. at 1318. The dictionary definition of “moment” is: 1A - a minute portion
`
`of time (stretched out to a minute, the minute to an hour). 1B - point of time, instant. See,
`
`a comparably brief period of time. Webster’s Third New International Dictionary, 2002.
`
`“Real time” is defined as “[o]f or relating to a time frame imposed by external constraints.
`
`Even something occurring in an instant will have some passage of time.” Real Time,
`
`Microsoft Computer Dictionary, 375 (4th Ed., 1999). Both proposed instructions add
`
`verbiage that cloud rather than clarify the point.
`
`The Court determines that “displaying real-time data” means displaying data
`
`substantially immediately without contextually meaningful delay so that the information is
`
`displayed in a time frame experienced by people.
`
`DISPUTED TERM:
`
`[8] SEPARATE FROM SAID DATA ACQUISITION UNIT
` (Claim 1, 2 and 9)
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[8] The terminology “separate from the data acquisition unit” means the display unit
`is physically distinct from the data acquisition unit. (Col. 28, lines 5-6).
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[8] Timex believes that only “separate” needs to be construed. “Separate” means
`contained in a physically distinct structure. (Specification, Col. 8, Lines 49-58; Fig. 3 and
`Prosecution History, including the: (1) Feb. 12, 2003 Office Action (2) July 14, 2003
`Response).
`
`Timex’s argument continues its Root refrain indicating that their construction is
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`needed to maintain consistency with Paragon’s attempts to distinguish itself from Root in
`
`its response to the PTO. However, Timex’s proposed construction is improper because
`
`claim terms must be construed in the context of the surrounding words of the claim. See
`
`Phillips, 415 F.3d at 1314. Paragon’s proposed construction is not in conflict with its
`
`response to the PTO and the Court agrees with Paragon that there is no real substantive
`
`dispute in the Parties’ proposed construction. Therefore, the Court determines that
`
`“separate from the data acquisition unit” means the display unit is physically distinct
`
`from the data acquisition unit.
`
`CLAIM LANGUAGE:
`
`. . . . wherein said display unit is configured to be worn by the subject, worn by
`someone other than the subject [9] or [10] attached to an apparatus associated with
`the physical activity being performed by the subject so as to be visible to the subject
`while performing the physical activity, and
`
`DISPUTED TERM:
`[9] OR
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[9] The terminology “or” indicates possible alternative configurations for the display
`unit. (Col. 28, Lines 8-9).
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[9] “or” means possible alternative configurations. The phrase “for the display unit”
`is not necessary and is a repeat of the plain language of the claims.
`
`Both Parties’ construction of “or” is substantially the same. While the Court agrees
`
`with Timex that the conjunction necessarily refers to the display unit, to avoid confusion,
`
`the Court accepts the terminology wherein “or” indicates possible alternative configurations
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`for the display unit.
`
`DISPUTED TERM:
`
`[10] ATTACHED TO AN APPARATUS ASSOCIATED WITH THE PHYSICAL
`
`ACTIVITY BEING PERFORMED BY THE SUBJECT SO AS TO BE VISIBLE TO THE
`
`SUBJECT WHILE PERFORMING THE PHYSICAL ACTIVITY.
`
` (Claim 1)
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[10] The terminology “attached to an apparatus associated with the physical activity
`being performed by the subject so as to be visible to the subject while performing the
`physical activity” means attached to equipment used with the physical activity at a location
`where the person performing the activity can see the display unit.
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[10] Timex does not believe that the phrase requires construction.
`
`The Court notes that both “see” and “visible” mean perceptible or perceived by the
`
`human eye. Webster’s Third New International Dictionary, 2002. Therefore, to define
`
`visible as being able to see is superfluous, and the Court agrees with Timex that this
`
`language requires no construction as it is clear and unambiguous on its face. Andrew
`
`Corp. v. Beverly Mfg. Co., 479 F. Supp.2d 766, 777-778 (D. Ill. 2006); One World Techs,
`
`Ltd v. Rexon Indus. Corp., 2006 U.S. Dist. LEXIS 25324, 22-23 (D. Ill. 2006).
`
`CLAIM LANGUAGE:
`
`. . . further wherein said system is configured such that said display unit displays
`real-time data comprising at least one of a subject’s location, altitude, velocity, pace, and
`distance traveled.
`
`The Parties agree that “at least one of” and “and” means one or more of the listed
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`terms.
`
`The Parties agree “velocity” means rate of change of position which is generally
`equivalent to speed.
`
`CLAIM LANGUAGE:
`
`2. The exercise monitoring system of claim 1, wherein said electronic positioning
`device is configured to receive electro-magnetic signals from three or more sources so that
`said monitoring system can determine [11] at least one of subject’s location, altitude, [12]
`and velocity, pace and distance travel.
`
`The Parties agree on “velocity”.
`
`DISPUTED TERM:
`
`[11] “DETERMINE AT LEAST ONE OF” AND “AND”
` (Claim 1, 2, 15, 18, 22 and 29).
`
`
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[11] “determine at least one of” and “and” means to determine any one or more of
`the listed items.
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[11] Timex believes that “determine” does not need to be included in the
`construction.
`
`The Court agrees with Paragon that this claim should be interpreted in terms of the
`
`context of the surrounding words. Phillips, 415 F.3d at 1314. However, the word “any” is
`
`superfluous and not necessary therefore the Court’s construction is consistent with the
`
`Parties’ agreement as to the construction of “at least one of” and “and” on two other
`
`occasions (See Doc. 25, Pgs. 4-6). Therefore, to “determine at least one of” and “and”
`
`means to determine “one or more” of the listed items.
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`CLAIM LANGUAGE:
`
`6. The system of claim 1 wherein said electronic positioning device comprises a
`GPS device, and further wherein said data acquisition unit further comprises a [15]
`support member, and said GPS device and said physiological monitor are provided on
`said support member.
`
`DISPUTED TERM:
`
`[15] SUPPORT MEMBER:
` (Claim 6, 7 and 31).
`
`PARAGON PROPOSED CONSTRUCTION:
`
`[15] The terminology “support member” means any structure that supports against
`the influence of gravity or other external force. (col. 17, lines 35-56; col. 20, lines 23-28 and
`lines 39-44; Fig. 15.)
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[15] “support member” means an elongate member which attaches to a subject's
`body independent of the data acquisition unit. (Specification, Col. 17, Lines 29-46; Col. 20,
`Lines 23-28; Figures 4, 6 and 15 and Claims, Col. 28, Lines 30-37; Col. 30, Lines 31-34).
`
`The Court agrees with Paragon that the term “support member” may have a broad
`
`scope and is not limited to an elongate member which attaches to a subject’s body. In the
`
`diagram of the ‘759 Patent Figure 15, the data acquisition component is configured similar
`
`to a bra and includes a fabric article designed to be worn about the subject’s chest.
`
`Therefore, a support member could be configured into the fabric article. (Exh. B-17, Col.
`
`20, L. 25-30).
`
`Timex’s proposed construction seeks to import limitations which are not included in
`
`any of the specifications or the claim. However, “Absent some clear intent to the contrary
`
`this Court does not import examples from the specification into the claims”. In re
`
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`Omeprazole Patent litigation, 483 F.3d 1364,1372 (Fed. Cir. 2007), citing Constant v.
`
`Advanced Micro Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988).
`
`To avoid importing limitations from the specification into the
`claims, it is important to keep in mind that the purposes of the
`specification are to teach and enable those of skill in the art to
`make and use the invention and to provide a best mode for doing
`so. See Spectra-Physics, Inc. v. Coherent, Inc., 827 F. 2d 1524,
`1533 (Fed. Cir. 1987). One of the best ways to teach a person of
`ordinary skill in the art how to make and use the invention is to
`provide an example of how to practice the invention in a particular
`case. Much of the time, upon reading the specification in that
`context, it will become clear whether the patentee is setting our
`specific examples of the invention to accomplish those goals, or
`whether the patentee instead intends for the claims and the
`embodiments in the specification to be strictly coextensive. See
`SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242
`F.3d 1337, 1341 (Fed. Cir. 2001).”
`
`Phillips, 415 F.3d at 1323. Particular embodiments and examples appeared in the
`
`specifications are not generally to be read into the claims. Constant, 848 F.2d at 1571.
`
`The Court determines that “support member” means any member which attaches to the
`
`subject’s body or can be worn by a subject that supports against the influence of gravity.
`
`CLAIM LANGUAGE:
`
`7. The system of claim 6, wherein said GPS device and said physiological monitor
`are [16] removably secured to said support member.
`DISPUTED TERM:
`
`[16] REMOVABLY SECURED
` (Claim 7 and 31)
`
`PARAGON’S PROPOSED LANGUAGE:
`
`[16] The terminology “removably secured” means the GPS device and the
`physiological monitor are modular components that can [be] secured to the support
`member in a manner that facilitates removal and reattachment. (col. 18, lines 9-14; col. 28,
`lines 35-37; col. 30, lines 33-34.)
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`TIMEX’S PROPOSED LANGUAGE:
`
`[16] “removably secured” means attached in a way that provides for removal and
`reattachment. (Specification, Col. 18, Lines 11-13).
`
`Claim 7 refers only to the GPS device and physiological monitor and Claim 31
`
`applies only to the GPS device. Therefore, the GPS device and physiological monitor are
`
`modular components that are attached to the support member in a way that provides for
`
`removal and reattachment of each of the modular components as a whole. Therefore, the
`
`Court determines that “removably secured” means that the GPS device and the
`
`physiological monitor are modular components that can be secured to the support member
`
`in a manner that facilitates removal and reattachment.
`
`CLAIM LANGUAGE:
`
`13. The system of claim 1 wherein said physiological monitor includes a [17] probe
`configured for acquiring physiological data from a user.
`
`DISPUTED TERM:
`
`[17] PROBE:
`(Claim 12)
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[17] The terminology “probe” means a device used to obtain physiological
`information. (Col. 3, lines 38-39; col. 8, lines 21-22; col. 12, lines 46-48).
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[17] “Probe” means a sensor configured for acquiring physiological data from the
`
`user.
`
`The terminology probe and sensor are used interchangeably, (See Specification Col.
`
`3, L. 37-39; Col 8, L. 21-24). Therefore, a “probe” [“sensor”] means a device used to
`
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`obtain physiological information from a user.
`
`CLAIM LANGUAGE:
`
`15. The system of claim 1, wherein said system further comprises an alarm which
`is activated when data provided by [18] at least one of said electronic positioning device
`and said physiological monitor does not meet a predetermined target.
`
`The Parties agree on “at least one of” and “and’ means one or more of the listed
`
`items.
`
`CLAIM LANGUAGE:
`
`18. The exercise monitoring system of claim 1, wherein said system is configured
`such that the display unit [19] simultaneously displays: at least one of a subject’s
`velocity, pace and distance traveled; and physiological data provided by said physiological
`monitor.
`
`
`DISPUTED TERM:
`
`[19] SIMULTANEOUSLY DISPLAYS:
`(Claim 18)
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[19] The terminology “simultaneously displays” means that visual information about
`both the physiological data and the performance data (that is, data about either the velocity,
`the pace or the distance traveled) appears on the display unit at the same time.
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[19] “simultaneously displays” means displaying real-time physicological data at the
`same time as displaying the subject's real-time velocity real-time pace or real-time distance
`traveled. (Specification, Col. 1, Lines 29-31; Col. 13, Lines 16-33).
`
`Timex seeks to define the timing of the display by suggesting that any readouts are
`
`displayed in real time. The Court has already determined that real time means the display
`
`of data without a contextually meaningful delay and to add real time language in this
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`construction is confusing and misses the point. This claim merely means that the display
`
`unit is set up so that the screen or viewing area will show at least one of the runner’s
`
`velocity, pace, or distance traveled, while at the same time displaying physiological data.
`
`Therefore, the Court determines that “simultaneously displays” means the visual
`
`information about both the physiological data and the performance data (that is, data about
`
`either the velocity, the pace or the distance traveled) appears on the display unit at the
`
`same time.
`
`CLAIM LANGUAGE:
`
`24. The exercise monitoring system of claim 1, wherein said system is configured
`for [20] computing a subject’s workload based on the subject’s velocity and altitude
`changes, and displaying the computed workload.
`
`DISPUTED TERM:
`
`[20] COMPUTING A SUBJECT’S WORKLOAD BASED ON THE SUBJECT’S
`VELOCITY AND ALTITUDE CHANGES:
`(Claim 24).
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[20] The terminology “computing a subject’s workload based on the subject’s velocity
`and altitude changes” means using a subject's velocity and altitude changes to calculate
`the amount of energy expended by an activity. (Col. 29, lines 29-32.)
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[20] “computing a subject’s workload based on the subject’s velocity and altitude
`changes” means computing the amount of energy expended by a subject using the
`subject's velocity and altitude changes. (Specification, Col. 25, Lines 54-56; and The
`American Heritage Dictionary).
`
`The Parties agree on “velocity”.
`
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`The main difference in the proposed constructions is that Paragon indicates that the
`
`system is “configured” (Doc. 24) so that the subject’s velocity and altitude changes are
`
`used to calculate “the amount of energy expended” while Timex indicates velocity and
`
`altitude changes are used to calculate “the amount of energy expended” by the subject’s
`
`velocity.
`
`As both “compute” and “calculate” mean to ascertain or determine by mathematical
`
`process (Webster’s Third New International Dictionary, 2002) the Court confesses to not
`
`grasping the distinction between the Parties’ differing constructions. That being said,
`
`Timex’s construction is less likely to cause confusion. If the system is configured to
`
`compute, then it makes the computation. The Court sees no difference in the proposed
`
`constructions, and therefore, computing a subject’s work load based on the subject’s
`
`velocity and altitude changes means using the subject’s velocity and altitude changes
`
`to calculate or compute the amount of energy expended by an activity.
`
`CLAIM LANGUAGE:
`
`29. An exercise monitoring system, comprising: (a) an electronic positioning device
`configured to receive electromagnetic signals from three or more sources so that said
`monitoring system can determine at least one of a subject’s [23] velocity or pace, wherein
`said electronic positioning device is provided as part of a data acquisition unit. (b) a
`physiological monitor; (c) [25] a display unit configured to be worn by a user and for [26]
`simultaneously displaying real-time data provided by said electronic positioning device
`and said physiological monitor, wherein said display unit is [27] separate from said
`electronic positioning device; [31] the exercise monitoring system of claim 30, wherein
`said data acquisition unit further comprises support member; said GPS device is removably
`secured to said support member.
`
`Again, the Parties agree on the construction of velocity [21].
`
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`DISPUTED TERM:
`
`[22] DATA ACQUISITION UNIT:
`
`PARAGON’S PROPOSED CONSTRUCTION:
`
`[22] The terminology “data acquisition unit” means an assemblage of inter-related
`components that unify the function of acquiring data from an electronic positioning device.
`(Col. 3, lines 16-18 and lines 20-22; col. 7, lines 55-61; col. 8, lines 6-8 and lines 37-40; col.
`17, lines 18-19; Figs. 4, 6, 8, and 15.)
`
`TIMEX’S PROPOSED CONSTRUCTION:
`
`[22] “data acquisition unit” means one structure that includes the electronic
`positioning device and the physiological monitor. (Specification, Col. 8, Line 66 to Col. 9,
`Line 6; Figure 5; and the Prosecution History, including the: (1) Feb. 12, 2003 Office Action,
`and (2) July 14, 2003 Response).
`
`DISPUTED TERMS:
`
`[23] DATA ACQUISITION UNIT - DISPLAY UNIT SIMULTANEOUSLY
`DISPLAYING; SEPARATE FROM SAID ELECTRONIC POSITIONING DEVICE.
`
`These terms have all been previously defined by the Court as:
`
` “data acquisition unit” means one structure that includes the electronic position