Trials@uspto.gov
`571-272-7822
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` Paper 7
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` Entered: June 27, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`v.
`UNILOC LUXEMBOURG S.A.,
`Patent Owner.
`____________
`
`Case IPR2018-00389
`Patent 8,712,723 B1
`____________
`
`
`
`Before SALLY C. MEDLEY, JENNIFER S. BISK, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
`
`
`
` Paper 7
`
`
`
` Entered: June 27, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`v.
`UNILOC LUXEMBOURG S.A.,
`Patent Owner.
`____________
`
`Case IPR2018-00389
`Patent 8,712,723 B1
`____________
`
`
`
`Before SALLY C. MEDLEY, JENNIFER S. BISK, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`
`
`
`IPR2018-00389
`Patent 8,712,723 B1
`
`
`INTRODUCTION
`I.
`Apple Inc. (“Petitioner”) filed a Petition requesting inter partes review
`of claims 1−3, 5−7, and 10−18 of U.S. Patent No. 8,712,723 B1 (Ex. 1001,
`“the ’723 patent”). Paper 2 (“Pet.”). Uniloc Luxembourg S.A. (“Patent
`Owner”), filed a Preliminary Response. Paper 6 (“Prelim. Resp.”).
`We have jurisdiction under 35 U.S.C. § 314. Upon considering the
`record developed thus far, for reasons discussed below, we institute inter
`partes review of claims 1−3, 5−7, and 10−18 of the ’723 patent.
`
`A. Related Matters
`The parties indicate that the ’723 patent is involved in Uniloc USA,
`Inc. v. Apple, Inc., Case No. 2-17-cv-00522 (E.D. Tex.) and other
`proceedings. Pet. 2; Paper 3.
`
`B. The ’723 Patent
`The ’723 patent relates to monitoring and counting periodic human
`motions, such as steps. Ex. 1001, 1:12−14. The ’723 patent states that
`inertial sensors (e.g., accelerometers) are used in step counting devices
`allowing an individual to track the number of daily steps. Id. at 1:18−29.
`One problem recognized in the ’723 patent is the limitations of these step
`counting devices concerning the orientation of the device during use. Id. at
`1:29−34. Further, motion noise often confuses these devices resulting in
`missed steps or counting false steps, with a particular problem identified of
`inaccurate step measurements for slow walkers. Id. at 1:35−43.
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`The ’723 patent provides for accurate counting of steps without regard
`for the orientation of the step counting device, even if that orientation
`changes during operation. Id. at 2:33−38. In particular, the ’723 patent
`describes assigning a dominant axis after determining an orientation of the
`inertial sensor, where the orientation of the inertial sensor is continuously
`determined. Id. at 2:15−19. In one embodiment, the ’723 patent method
`determines rolling averages of the accelerations of each axis monitored by
`the inertial sensor in the device. Id. at 6:15−21. The largest absolute rolling
`average indicates the axis most influenced by gravity, which may change
`over time, as the device’s orientation changes because of rotation. Id. at
`6:20−25.
`With regard to the embodiment shown in Figure 8, reproduced below,
`the ’723 patent describes the method for measuring the acceleration along
`the assigned dominant axis to detect, and count, steps. See id. at 12:30−35.
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`Figure 8 illustrates a diagram for a method of recognizing a step.
`After measurements of acceleration data (step 805) and filtering those
`measurements (step 810), the method evaluates the orientation of the device
`and assigns a dominant axis (step 812). A processing logic determines
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`whether a measurement is within a cadence window (step 815). The
`cadence window is the allowable time window for steps to occur. Id. at
`3:65−66. In one embodiment, the cadence window is determined based on
`the actual stepping period or actual motion cycle, but default limits or other
`determiners may be used to set the cadence window. Id. at 4:7−27. After
`each step is counted, the minimum and/or maximum of the cadence window,
`or window length, may be adjusted based on actual cadence changes. Id.
`Therefore, the cadence window is dynamic so that it continuously updates.
`Id. at 4:31−33.
`If the measurement of acceleration along the dominant axis is within
`the cadence window, and is within the range of acceleration thresholds
`(steps 820, 830), the motion is determined to be a step and is counted (step
`835). Otherwise, the step is not counted (step 840) and the method
`continues to evaluate subsequent measurements.
`
`C. Illustrative Claim
`Of the challenged claims, claims 1, 5, 10, and 14 are independent.
`Each of claims 2, 3, 6, 7, 11−13, and 15−18 depends directly or indirectly
`from one of the challenged independent claims.
`Claim 1 is illustrative:
`1. A method for monitoring human activity using an inertial
`sensor, comprising:
`assigning a dominant axis with respect to gravity based on an
`orientation of the inertial sensor;
`detecting a change in the orientation of the inertial sensor and
`updating the dominant axis based on the change; and
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`counting periodic human motions by monitoring accelerations
`relative to the dominant axis by counting the periodic human
`motions when accelerations showing a motion cycle that meets
`motion criteria is detected within a cadence window; and
`updating the cadence window as actual cadence changes.
`
`Ex. 1001, 15:13−24.
`
`D. Asserted Prior Art and Grounds of Unpatentability
`This proceeding relies on the following prior art references:
`
`a) Fabio: U.S. Patent No. 7,698,097 B2, filed in the record as Exhibit
`1006; and
`
`b) Pasolini: U.S. Patent No. 7,463,997 B2, filed in the record as
`Exhibit 1005.
`
`Petitioner asserts one ground of unpatentability based on obviousness
`of all challenged claims (claims 1-3, 5−7, and 10−18) over Fabio and
`Pasolini. Pet. 15.
`
`Petitioner also relies on a Declaration of Joseph A. Paradiso, Ph.D.,
`filed as Exhibit 1003 (“Paradiso Declaration”).
`
`II. DISCUSSION
`Claim Construction
`A.
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100. We presume a claim term
`carries its plain meaning, which is the meaning customarily used by those of
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`skill in the relevant art at the time of the invention. Trivascular, Inc. v.
`Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016).
`When a claim term does not include the word “means,” a rebuttable
`presumption that the term is not drafted in means-plus-function language can
`be overcome “if the challenger demonstrates that the claim term fails to
`recite sufficiently definite structure or else recites function without reciting
`sufficient structure for performing that function.” Williamson v. Citrix
`Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (quotation marks and
`internal citations omitted). If the presumption is overcome, “[a]pplication of
`§ 112, ¶ 6 requires identification of the structure in the specification which
`performs the recited function.” Micro Chemical, Inc., v. Great Plains
`Chemical Co., Inc., 194 F.3d 1250, 1257 (Fed. Cir. 1999). Further, the
`statute does not permit “incorporation of structure from the written
`description beyond that necessary to perform the claimed function.” Id. at
`1258. We note that only those claim terms that are in controversy need to be
`construed, and only to the extent necessary to resolve the controversy. Vivid
`Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`We first address the “logic” terms recited in claim 10: a dominant
`axis logic, a counting logic, and a cadence logic. Pet. 10−15. Petitioner
`contends that these terms would have been understood to include “hardware,
`software, or both” to perform the functions recited. See id. at 10, 12, 13
`(citing Ex. 1003, 19, 21, 22). Petitioner also contends that “to the extent that
`Patent Owner overcomes the presumption against construction under 35
`U.S.C. § 112, sixth paragraph, a POSITA would have understood” certain
`structures to be associated with the recited functions. Id. More particularly,
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`Petitioner contends that these terms “under a narrower Phillips standard” are
`directed to “logic” which invokes § 112 ¶ 6 but fails to meet the definiteness
`requirement of § 112 ¶ 2. Pet. 14. Patent Owner contends that none of these
`“logic” terms are governed by 35 U.S.C. § 112, ¶ 6 and that no construction
`is necessary. Prelim. Resp. 6−9.
`We determine that, at this juncture, the presumption against
`application of § 112 ¶ 6 has not been overcome, and that no construction is
`necessary for purposes of determining whether to institute.
`First, none of these “logic” terms recite the word “means,” and,
`therefore, there is a presumption that the term is not drafted in means-plus-
`function format. Second, Petitioner, although preserving for district court
`litigation its position that the claims are drafted in means-plus-function
`format, affirmatively argues here, and supports with testimonial evidence,
`the contention that a person of ordinary skill in the art would interpret each
`of these “logic” terms to include “hardware, software, or both.” See Ex.
`1003, 19, 21, 22. Third, as stated above, Patent Owner contends that these
`terms are not drafted in means-plus-function format, and, would be
`understood to require hardware, such as, for example, an accelerometer
`(Prelim. Resp. 7−10).
`Therefore, under Williamson, neither party has challenged the
`rebuttable presumption that § 112 ¶ 6 does not apply to terms that do not use
`the word “means.” Petitioner’s alternative position that these claim terms
`are indefinite appears to give “notice” of its claim construction position in
`district court, but is not a position that Petitioner is affirmatively asserting in
`this proceeding. Pet. 14 (stating that “regardless of whether the recited
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`‘logic’ is a nonce word requiring the disclosure of an algorithm, the Board
`may still find that the claims are obvious in view of the software and
`hardware disclosed in the prior art cited in this Petition”). More importantly,
`there is no evidence, proposed by either party, in the record, to support the
`construction of these “logic” terms, as nonce words, under § 112 ¶ 6, and,
`therefore, the presumption against application of § 112 ¶ 6 is unrebutted.
`See Zeroclick LLC v. Apple Inc., 891 F.3d 1003, 1007-08 (Fed. Cir. 2018).
`We now turn to the remaining terms for which Petitioner proposes a
`construction: dominant axis and cadence window.
`
`1. Dominant Axis
`Petitioner proposes that this term is properly construed as “the axis
`most influenced by gravity.” Pet. 9 (citing Ex. 1003, 18). Patent Owner
`challenges this construction as importing limitations from the specification
`because the “dominant axis” is not limited to just gravitational influence.
`Prelim. Resp. 4. Petitioner’s proposal, although taken directly from the
`Specification (Ex. 1001, 6:23−26), is not as objectionable as Patent Owner
`argues because the claims of the ’723 patent recite that the “dominant axis”
`is assigned “with respect to gravity based on an orientation of the inertial
`sensor.” Ex. 1001, 15:15, 15:62−63, 16:27−28 (language of independent
`claims 1, 10, 14) (emphasis added). Although the word “dominant” in and
`of itself may be sufficient to identify the recited axis, the surrounding claim
`language makes clear that gravity influences which axis is dominant. Id.
`The Specification supports Petitioner’s proposal (id. at 6:23−26) and
`also explains that “[i]n alternative embodiments, the dominant axis does not
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`correspond to one of the actual axes of the inertial sensor(s) in a current
`orientation, but rather to an axis that is defined as approximately aligned to
`gravity” (id. at 6:32−35). Therefore, at this juncture, we are persuaded that
`the Specification is consistent in explaining that a dominant axis, whether a
`virtual axis or otherwise, is assigned on the basis of gravity: “most
`influenced by gravity” and “approximately aligned to gravity.” Further, the
`claim language expressly requires the assignment of the dominant axis based
`on gravity. Patent Owner’s characterization of the Specification as
`describing embodiments that exclude the gravitational influence, on the
`present record, are unpersuasive. Accordingly, for purposes of this
`Decision, we adopt Petitioner’s proposed construction of “dominant axis” as
`“the axis most influenced by gravity.”
`
`2. Cadence window
`Petitioner proposes that “cadence window” means “a window of time
`since a last step was counted that is looked at to detect a new step.” Pet. 10.
`Patent Owner argues that the Board does not need to construe this term.
`Prelim. Resp. 5. We agree that we do not need to construe this term for
`purposes of this Decision.
`
`Level of Ordinary Skill in the Art
`B.
`In determining the level of ordinary skill in the art, various factors
`may be considered, including the “type of problems encountered in the art;
`prior art solutions to those problems; rapidity with which innovations are
`made; sophistication of the technology; and educational level of active
`workers in the field.” In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
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`(internal quotation and citation omitted). In that regard, Petitioner asserts
`that a person of ordinary skill in the art would include someone with: (i) a
`Bachelor’s degree in Electrical Engineering, Computer Engineering, and/or
`Computer Science, or equivalent training, and (ii) approximately two years
`of experience working in hardware and/or software design and development
`related to micro-electro-mechanical devices (“MEMs”) and body motion
`sensing system. Pet. 7−8 (citing Ex. 1003, 8). Patent Owner’s declarant,
`Mr. Easttom, states that a person of ordinary skill in the art would have been
`one with a bachelor’s degree in engineering, computer science, or related
`technical area with two years of experience related to accelerometers or
`similar devices. Ex. 2001 ¶ 13. Although these competing proposals use
`differing language, any differences do not alter the obviousness analysis for
`purposes of rendering this decision on institution. See, e.g., Ex. 2001 ¶ 14
`(Mr. Easttom expressing disagreement with the level proposed in the
`Paradiso Declaration, but otherwise reaching the same opinions regardless of
`which level is adopted).
`Accordingly, for purposes of this Decision, we adopt Petitioner’s
`proposed level of ordinary skill in the art.
`
`Summaries of Fabio and Pasolini
`C.
`3. Overview of Fabio (Exhibit 1006)
`Fabio is directed to controlling a pedometer based on the use of
`inertial sensors. Ex. 1006, 1:10−11, Abstract, Title. Fabio describes that
`pedometer reliability depends in part on “recognizing and ignoring events
`not correlated to the gait, which, however, cause perturbations resembling
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`those produced by a step.” Id. at 1:22−27. Pedometers that use inertial
`sensors detect accelerations along a substantially vertical axis and recognize
`a step when the pedometer detects a positive acceleration peak followed by a
`negative acceleration peak, both of these peaks within certain thresholds. Id.
`at 1:32−38. Random events, however, can interfere with step recognition,
`causing “false positives” (steps are recognized when they are not steps). Id.
`at 1:38−44. Rest periods also produce events that are detected by the
`pedometer, and “isolated” steps or brief sequences of steps are irrelevant to
`assessment of activity for which a pedometer is used. Id. at 1:44−52.
`Fabio overcomes the above-described problems by detecting whether
`sequences of detected steps satisfy pre-determined conditions of regularity.
`Id. at 1:63−2:3. If the condition of regularity is satisfied, the valid step count
`is updated; and if the condition of regularity is not satisfied, the number of
`valid steps is not updated. Id. In particular Fabio describes a method that
`involves two counting procedures, as shown in Figure 3, reproduced below.
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`Figure 3 depicts a flowchart of a control method executed by a control
`unit of a pedometer. Ex. 1006, 2:17−19, 3:11−12. In particular, upon
`switching on the pedometer, an initialization step 100 sets to zero the
`counters for valid steps (NVT), valid control steps (NVC), and invalid steps
`(NINV). Id. at 3:13−18. Then, during the first counting procedure
`(COUNT I, step 110), the acceleration signal output by the accelerometer of
`the pedometer is sampled and evaluated to recognize sequences of steps that
`are “close to one another, which satisfy [the] pre-determined conditions of
`regularity.” Id. at 3:19−27. In particular, for each step that is validated
`during this first counting procedure, the number of valid control steps is
`increased, until the number of valid control steps matches a pre-determined
`threshold. Id. at 5:40−45 (describing that regularity is sufficient when NVC
`reaches a threshold NT2). The first counting procedure terminates after
`updating the valid steps counter, NVT, to equal the number of “regular” steps
`just detected. Id. at Fig. 4, step 265 (NVT=NVT+NT2).
`Fabio describes this first counting procedure as enabling the
`pedometer to wait for a sequence of events that satisfies regularity and to
`detect events that are irregular (or when a wait time between steps is too
`long) so the counter for valid control steps NVC is decreased or reset to zero
`accordingly. Id. at 5:40−49. Fabio states that programming thresholds for
`the first counting procedure, such as NT2 described above, enables
`modification of the sensitivity of the pedometer. Id. at 5:62−6:11. The user
`can program lower values of the threshold number of steps when regularity
`of gait is not possible, such as when in an office, enabling the pedometer to
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`validate and count shorter sequences of steps as “regular” steps. Id. On the
`other hand, by programming higher values for the thresholds for intense
`activity, such as running, short step sequences can be ignored. Id.
`When the first counting procedure passes control to the second
`counting procedure, the user is considered to be moving and the second
`counting procedure counts valid steps NVT. Id. at 3:41−44. The second
`counting procedure also checks for continued regularity of the sequences of
`steps by counting the number of valid control steps NVC and the number of
`invalid steps NINV. Id. at 6:40−62. If the number of invalid steps NINV is
`lower than a threshold, the method assumes regularity of steps and continues
`counting validated steps. Id. at 7:7−13. Validation of steps in both counting
`procedures is described more particularly with respect to Figure 6,
`reproduced below.
`
`Figure 6 is a graph plotting the time of recognition TR of a sequence
`of steps (1, 2, . . . K-2, K-1, K). Id. at Fig. 6. Fabio validates a step when
`the duration of a current step K (ΔTK) is “substantially homogeneous with
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`respect to the duration [] of an immediately preceding step K-1 [(ΔTK-1)].”
`Id. at 4:28−35. In particular, “the last step recognized is validated if the
`instant of recognition of the current step TR(K) falls within a validation
`interval TV, defined with respect to the instant of recognition of the
`immediately preceding step TR(K-1),” according to a specific equation. Id.
`at 4:35−42. Fabio describes the validation interval TV as having an
`“amplitude” equal to “3ΔTK-1/2,” but could have a different “amplitude.” Id.
`at 50−53.
`
`4. Overview of Pasolini (Exhibit 1005)
`Pasolini is also directed to a pedometer for detecting and counting
`steps. Ex. 1005, Abstract. Specifically, Pasolini describes using an
`accelerometer that detects an acceleration component along axis Z of the
`vertical acceleration generated during a step. Id. at 3:16−19. Pasolini
`applies positive and negative thresholds S+ and S− to the acceleration signal
`for identifying the positive phase and the negative phase of a step. Id. at
`3:35−41. The values of these thresholds are modified at each acquisition of
`a new sample. Id. at 3:42−54. In particular, Pasolini utilizes an algorithm
`for determining positive and negative envelope values E+ and E− using the
`acceleration datum for each sampled acceleration signal, and adjusting the
`thresholds S+ and S− as a function of the envelope values E+ and E−. Id. at
`5:42−54. In this manner, the pedometer adapts to variations in the detection
`conditions due, for example, to a different type of terrain, or to an increase in
`the speed of the gait. Id. at 3:54−59.
`Pasolini also states that,
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`the algorithm implemented by the processing unit 3
`[of the pedometer] envisages identifying the main
`vertical axis to be used for step detection as the axis
`of detection that has the highest mean acceleration
`value Accm (on account of gravity). For example, the
`main vertical axis can be identified at each acquisition
`of a new acceleration sample, block 30 of FIG. 4, so
`as to take into account variations in the orientation of
`the pedometer device 1, and consequently of the
`accelerometer 2 arranged inside it.
`
`Id. at 8:16−24.
`
`5. Reasonable Likelihood Determination
`After considering Petitioner’s contentions and Patent Owner’s
`arguments in opposition, we are persuaded that Petitioner has demonstrated
`a reasonable likelihood of prevailing on showing that the challenged claims
`would have been obvious over Fabio in combination with Pasolini.
`
`Independent Claims 1, 5, 10, and 14
`i.
`On this record, we are satisfied that Petitioner has demonstrated how
`the combination of Fabio and Pasolini teach the limitations of the
`independent claims. We focus on the language of claim 1 to address the
`similarly recited limitations of claims 1, 5, 10, and 14. Claim 5 recites
`limitations not recited in claims 1, 10, and 14, and, thus, those limitations are
`reviewed separately.
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`a) assigning a dominant axis with respect to gravity based on an
`orientation of the inertial sensor (Pet 28−29) (“assigning”
`limitation)
`Petitioner relies on Fabio’s selection of the acceleration signal
`corresponding to the detection axis nearest to the vertical to teach the
`“assigning” limitation. Id. at 28 (citing Ex. 1006, 8:21−33). In the portion
`cited by Petitioner, Fabio states that the “detection axis is selected on the
`basis of the value of the DC component of the respective acceleration signal,
`which is correlated to the contribution of the acceleration of gravity.” Ex.
`1006, 8:27−30 (emphasis added). Fabio states further that “the pedometer
`can then be used independently of how it is oriented.” Id. at 8:32−33
`(emphasis added). Petitioner alternatively relies on Pasolini as teaching this
`“assigning” limitation because Pasolini describes taking into account the
`orientation of the accelerometer and pedometer device enclosing it. Pet. at
`29 (citing Ex. 1005, 8:20−24). We find Petitioner’s reliance on Fabio alone
`is sufficient to meet this limitation for purposes of institution. We also find
`persuasive Petitioner’s reliance on Pasolini’s teaching as further evidence of
`the “orientation of the inertial sensor,” as recited.
`Patent Owner argues that Fabio and Pasolini both focus on the
`“vertical axis” or “vertical detection axis Z” component, whereas the claim
`requires assigning a dominant axis to “allow[] for any direction and axis to
`become dominant.” Prelim. Resp. 11. We are not persuaded by this
`argument. The claims do not require allowing any direction or axis to
`become dominant because, as we stated with regard to claim construction
`(supra Section II.A.1), the claim requires the assignment of the dominant
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`axis with respect to gravity. Further, we are not persuaded by Patent
`Owner’s argument that Fabio selects the vertical axis without any regard for
`orientation. Id. Fabio detects the vertical axis based on orientation so the
`pedometer can be used independently of how it is oriented. Ex. 1006,
`8:32−33. Pasolini, similarly, takes into account the orientation of the
`acceleration in detecting the main vertical axis. Ex. 1005, 8:20−24. Lastly,
`to the extent Patent Owner reads into the claim a requirement that there be
`more than one axis or direction from which to choose a dominant axis, the
`argument is not commensurate with claim scope, at this time, as neither
`party has argued for a construction for “dominant axis” that requires
`multiple axes. In any event, we note that Pasolini describes identifying the
`“main vertical axis” in connection with a 3-axis digital output accelerometer.
`Ex. 1005, 8:11−20.
`b) detecting a change in the orientation of the inertial sensor and
`updating the dominant axis based on the change (Pet. 28−31)
`(“updating dominant axis” limitation)
`Petitioner contends that Fabio in combination with Pasolini teaches
`this “updating dominant axis” limitation. Pet. 29−31. In particular,
`Petitioner relies on Pasolini’s disclosure of identifying the main vertical axis
`at each acquisition of a new acceleration sample. Id. at 30 (citing Ex.
`1005:20−22). According to Petitioner, a person of ordinary skill in the art
`would understand that Pasolini detects a change in orientation of the inertial
`sensor based on the acceleration samples because Pasolini takes into account
`variations in the orientation of the pedometer when identifying the main
`vertical axis. Id. (citing Ex. 1003, 40; Ex. 1005, 8:22−24).
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`Patent Owner challenges these contentions and argues that Pasolini’s
`disclosures are silent concerning “detecting a change in the orientation of the
`inertial sensor.” Prelim. Resp. 15. We do not agree with Patent Owner’s
`argument. Pasolini identifies the main (read here “dominant”) vertical axis,
`out of a 3-axis accelerometer, as the axis that has the highest mean
`acceleration value, on account of gravity. Ex. 1005, 8:11−20. This
`identification of the main vertical axis occurs, at each acquisition of a new
`sample of the acceleration data, precisely because the orientation (e.g.,
`rotation) may change, thus changing which axis is considered the main
`vertical axis. Ex. 1005, 8:17−24. Thus, we understand Pasolini to detect a
`change in the orientation of the accelerometer when it performs the
`identification of a new main vertical axis “to take into account the variation
`in the orientation” of the accelerometer inside the pedometer. Id.
`c) counting periodic human motions by monitoring
`accelerations relative to the dominant axis by counting the
`periodic human motions when accelerations showing a
`motion cycle that meets motion criteria is detected within a
`cadence window (Pet. at 31−36) (“counting” limitation)
`With regard to the “counting” limitation, Petitioner relies on Fabio’s
`evaluation of the acceleration signal AZ to identify and count a total number
`of valid steps NVT. Pet. 32(citing Ex. 1006, 2:56−64). The Fabio
`acceleration signal AZ is correlated to the accelerations undergone by the
`inertial sensor along the detection axis Z, which, as stated above with regard
`to the “assigning” limitation, is the dominant axis. Pet. 33 (citing Ex. 1006,
`2:56−59).
`
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`Furthermore, Petitioner demonstrates how Fabio recognizes a step by
`evaluating the motion cycle of positive and negative peaks in the
`acceleration signal. Id. at 34 (citing Ex. 1006, 4:16−21, 6:21−26, Fig. 5).
`More importantly, Petitioner points to Fabio’s disclosure of a validation
`interval TV, during which Fabio validates a recognized step. Id. at 34−35
`(citing Ex. 4:35−39, Fig. 6). Petitioner equates the validation interval TV
`with the recited “cadence window.” Id.
`d) updating the cadence window as actual cadence changes (Pet.
`36−37)
`The Petition relies on Fabio’s disclosures of the validation interval TV
`as teaching that the cadence window is updated as actual cadence changes.
`For instance, Petitioner quotes Fabio where validation occurs when the
`duration of a current step is substantially homogeneous with respect to the
`duration of an immediately preceding step. Id. at 35 (citing Ex. 1006,
`4:28−31). Patent Owner challenges Fabio’s validation interval TV as not
`teaching updating the cadence window. Prelim. Resp. 17−18. More
`specifically, Patent Owner characterizes the validation interval TV as
`occurring only during the first validation test to determine if the event
`received corresponds to regular steps. Id. at 17 (citing Ex. 1006, 4:26−27).
`We do not agree with Patent Owner’s characterization of Fabio in this
`regard. The validation interval is part of the validation step of both counting
`procedures of Fabio. See Ex. 1006, Fig. 4 (step 230), Fig 7 (step 320),
`6:32−34 (“The second validation test is altogether similar to the first
`validation test carried out in block 230 of FIG. 3”). Thus, Fabio uses the
`
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`validation interval TV during the second counting procedure, where regular
`steps are continuously counted if they occur during the validation interval.
`We also are not persuaded by Patent Owner’s argument that Fabio
`does not update the cadence window because the “last recognized step in
`Fabio comes at the same frequency as steps made previously.” Prelim.
`Resp. 18 (citing Ex. 1005, 4:54−55). First, the passage that Patent Owner
`quotes describes the “frequency” of the detected steps in the context of how
`Fabio uses the preceding step’s duration as a variable for calculating the
`validation interval TV. It is unclear why Patent Owner contends that the use
`of a previous step’s duration for calculating Fabio’s validation interval in
`any way disqualifies that interval from being updated as the cadence of the
`steps changes. The evidence at this juncture of the proceeding is to the
`contrary. As the Petition states, Fabio’s equation for calculating the
`validation interval TV represents changing the cadence window in
`accordance with cadence changes because Fabio adjusts the validation
`interval TV to account for the changing duration, if any, of the preceding
`step. See Pet. 37 (citing Ex. 1006, 4:40−41).1 None of Patent Owner’s
`
`1 We note here that the Fabio equation seems consistent with the ’723 patent
`Specification, which describes updating the cadence window based on the
`stepping period, after each step is counted. Ex. 1001, 4:31−45, 3:67−4:3
`(“current stepping period may be a rolling average of the stepping periods
`over previous steps”). For instance, the ’723 patent states that the cadence
`window minimum and maximum (and, therefore, the width of the window)
`are determined by “measuring lengths of time since the most recent step was
`counted.” Id. at 4:17−21. Patent Owner’s arguments do not distinguish
`materially the cadence window update, as described in the ’723 patent, from
`the continuous calculation of TV in Fabio.
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`arguments concerning this limitation are persuasive as these arguments rely
`on characterization of Fabio that are not factually supported.
`e) Claim 5 Limitations
`For claim 5, Petitioner identifies Figure 4 as disclosing how Fabio
`performs “buffering” of steps (step 255, Fig. 4) that are not added to the
`valid steps counter until the regularity condition is met (step 265, Fig. 4).
`Pet. 41−43 (citing Ex. 1006, Fig. 4). Petitioner also relies on the teachings
`identified with regard to the independent claims, discussed above, where
`Fabio counts the steps during walking or running (i.e, periodic human
`activity) and updates the valid steps counter NVT accordingly. Id. at 44
`(citing Ex. 1006, 1:14−17, 6:40−42). Petitioner also reiterates for this claim
`that Fabio teaches updating the cadence window as the cadence of the
`motion cycle changes for the same reasons as discussed above. Pet. 45−46.
`With the exception of the cadence window update, Patent Owner does not
`challenge Petitioner’s arguments and evidence
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