Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 21
`Entered: July 16, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC., SAMSUNG ELECTRONICS AMERICA, INC.,
`HTC CORP., HTC AMERICA, INC., and LG ELECTRONICS, INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`Case IPR2018-004241
`Patent 7,881,902 B1
`____________
`
`
`Before SALLY C. MEDLEY, JOHN F. HORVATH, and
`SEAN P. O’HANLON, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R § 42.73
`
`
`
`
`1 HTC Corp., HTC America, Inc., and LG Electronics, Inc., who collectively
`filed a petition in IPR2018-01631, and Samsung Electronics America, Inc.,
`who filed a petition in IPR2018-01653, have been joined to this proceeding.
`
`
`571-272-7822
`
`
`
`
`
`Paper 21
`Entered: July 16, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC., SAMSUNG ELECTRONICS AMERICA, INC.,
`HTC CORP., HTC AMERICA, INC., and LG ELECTRONICS, INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`Case IPR2018-004241
`Patent 7,881,902 B1
`____________
`
`
`Before SALLY C. MEDLEY, JOHN F. HORVATH, and
`SEAN P. O’HANLON, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R § 42.73
`
`
`
`
`1 HTC Corp., HTC America, Inc., and LG Electronics, Inc., who collectively
`filed a petition in IPR2018-01631, and Samsung Electronics America, Inc.,
`who filed a petition in IPR2018-01653, have been joined to this proceeding.
`
`
`
`IPR2018-00424
`Patent 7,881,902 B1
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`
`I. INTRODUCTION
`
`A. Background
`Apple Inc. filed a Petition requesting inter partes review of claims
`1−6, 9, and 10 (“the challenged claims”) of U.S. Patent No. 7,881,902 B1
`(Ex. 1001, “the ’902 patent”). Paper 2 (“Pet.”). Uniloc Luxembourg S.A., a
`predecessor-in-interest of the ’902 patent, filed a Preliminary Response.
`Paper 6 (“Prelim. Resp.”). Upon consideration of the Petition and
`Preliminary Response, we instituted inter partes review of all challenged
`claims on all grounds raised in the Petition. Paper 7 (“Dec. Inst.”).
`Subsequent to our Institution Decision, Uniloc Luxembourg S.A.
`assigned the ’902 patent to Uniloc 2017 LLC (“Patent Owner”), and we
`granted motions for Samsung Electronics America, Inc., HTC Corp., HTC
`America, Inc., and LG Electronics, Inc. to join Apple, Inc. as Petitioner in
`this proceeding. See Papers 10, 13, and 14.2
`Patent Owner filed a Response to the Petition (Paper 11, “PO Resp.”),
`Petitioner filed a Reply (Paper 12, “Pet. Reply”), and Patent Owner filed a
`Sur-Reply (Paper 15, “PO Sur-Reply”). We held a consolidated oral hearing
`for this case and related cases involving the same parties and related patents
`on April 2, 2019, and the hearing transcript is included in the record. See
`Paper 20 (“Tr.”).
`
`
`2 Apple identifies itself as the real party-in-interest. Uniloc 2017 LLC
`identifies itself, Uniloc USA, Inc., and Uniloc Licensing USA LLC as real
`parties-in-interest. Paper 10, (1). Samsung Electronics America, Inc.
`identifies itself and Samsung Electronics Co., Ltd. as real parties-in-interest.
`Paper 13, 2 n.1. HTC Corp., HTC America, Inc., and LG Electronics, Inc.
`identify themselves, LG Electronics U.S.A., Inc., and LG Electronics
`MobileComm USA, Inc. as real parties-in-interest. Paper 14, 2 n.1.
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`We have jurisdiction under 35 U.S.C. § 6(b). This is a Final Written
`Decision under 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the reasons
`set forth below, we find Petitioner has shown by a preponderance of
`evidence that claims 1–6 and 10 of the ’902 patent are unpatentable, but has
`failed to show by a preponderance of evidence that claim 9 is unpatentable.
`B. Related Matters
`Petitioner and Patent Owner identify numerous district court matters
`that could affect, or be affected by, a decision in this proceeding. Pet. 1–2;
`Paper 3, (2). In addition, our Institution Decision identifies numerous inter
`partes reviews challenging claims of the ’902 patent and related U.S. Patent
`Nos. 7,653,508 B1 and 8,712,723 B1 that could affect, or be affected by, this
`proceeding. Dec. Inst. 2–3.
`C. Evidence Relied Upon3
`
`Reference
`Pasolini
`
`Fabio
`
`US 7,463,997 B2
`
`US 7,698,097 B2
`
`Mitchnick
`
`US 2006/0084848 A1
`
`Tanenhaus
`
`US 6,469,639 B2
`
`Sheldon
`
`US 5,957,957
`
`
`
`Effective Date4
`
`Exhibit
`
`Oct. 2, 2006
`
`Oct. 2, 2006
`
`Oct. 14, 2004
`
`Oct. 22, 2002
`
`Sept. 28, 1999
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`
`3 Petitioner also relies upon the Declaration of Joseph A. Paradiso, Ph.D.
`(Ex. 1003).
`4 Petitioner relies on the filing dates of Pasolini, Fabio, and Mitchnick as the
`effective date for determining their availability as prior art.
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`D. Instituted Grounds of Unpatentability
`Reference(s)
`Basis
`Mitchnick
`§ 103(a)
`Mitchnick and Sheldon
`§ 103(a)
`Mitchnick, Sheldon, and
`§ 103(a)
`Tanenhaus
`Fabio and Pasolini
`§ 103(a)
`II. ANALYSIS
`
`Claim(s) Challenged
`1 and 2
`3
`4
`5, 6, 9, and 10
`
`A. The ’902 Patent
`The ’902 patent relates to “a method of . . . counting periodic human
`motions such as steps.” Ex. 1001, 1:9–11. The method involves the use of a
`“portable electronic device that includes one or more inertial sensors” that
`“measure accelerations along a single axis or multiple axes.” Id. at 2:24–28.
`Figure 1 of the ’902 patent is reproduced below.
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`Figure 1 of the ’902 patent is a block diagram illustrating electronic device
`100. Id. at 1:47–48. Device 100 includes acceleration measuring logic 105
`(e.g., inertial sensors), dominant axis logic 127, and step counting logic 130.
`Id. at 2:19–24, 2:38–43, Fig. 1. Device 100 “may be used to count steps or
`other periodic human motions,” where a “step” is “any user activity having a
`periodic set of repeated movements.” Id. at 2:29–30, 3:34–38. According to
`the ’902 patent, device 100 accurately counts steps “regardless of the
`placement and/or orientation of the device on a user,” and regardless of
`whether the device “maintains a fixed orientation or changes orientation
`during operation.” Id. at 2:31–35.
`
`Dominant axis logic 127 includes cadence logic 132 and rolling
`average logic 135. Id. at 2:66–3:2, Fig. 1. Inertial sensors 105 measure
`acceleration data, and cadence logic 132 analyzes this data to detect “a
`period and/or cadence of a motion cycle,” which may be based on user
`activity such as running or walking. Id. at 2:38–40, 3:14–18, 3:46–51.
`Cadence logic 132 determines “a cadence window 150 to be used by the step
`counting logic 130.” Id. at 3:11–14. Cadence window 150 is “a window of
`time since a last step was counted that is looked at to detect a new step.” Id.
`at 3:65–4:1. Cadence window 150 is initially set to a default value, and can
`be dynamically updated to reflect the cadence or period of detected steps
`once a minimum number of steps have been detected. Id. at 3:57–61, 4:22–
`28, 4:61–5:6. The cadence or stepping period can be determined as a
`“rolling average of the stepping periods over previous steps.” Id. at 3:61–62.
`Cadence logic 132 also determines “one or more sample periods to be
`used by the rolling average logic 135.” Id. at 3:11–14, 5:31–34. The sample
`periods can be set to “the length of, or longer than, the stepping period,”
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`including a “multiple of the stepping period.” Id. at 5:34–37. Rolling
`average logic 135 “creates one or more rolling averages of accelerations . . .
`measured by the inertial sensor(s) over the sample period(s) set by the
`cadence logic 132.” Id. at 5:39–41. These rolling averages are used to
`determine an orientation of the electronic device and a threshold against
`which acceleration measurements are compared. Id. at 5:41–45.
`Dominant axis logic 127 includes dominant axis setting logic 140,
`which determines an orientation of device 100 or of the inertial sensor(s)
`within device 100. Id. at 6:8–10. This may be done “based upon the rolling
`averages of accelerations created by the rolling average logic 135.” Id. at
`6:10–12. In particular, “[t]he axis with the largest absolute rolling average”
`over a given sampling period, which can be the “axis most influenced by
`gravity,” is designated the dominant axis. Id. at 6:14–18, 6:23–25. The ’902
`patent explains that because device orientation may change over time, the
`rolling average acceleration may change and “a new dominant axis may be
`assigned when the orientation of the electronic device 100 and/or the inertial
`sensor(s) attached to or embedded in the electronic device 100 changes.” Id.
`at 6:16–22. Dominant axis setting logic 140 can also set the dominant axis
`to be a virtual “axis that is defined as approximately aligned to gravity,” and
`that is found from “trigonometric calculations on the actual axes based on
`the gravitation influence” on those axes. Id. at 6:25–34.
`Step counting logic 130 includes measurement selection logic 145,
`measurement comparator 155, and threshold comparator 160. Id. at 6:38–
`41. Measurement selection logic 145 “monitor[s] accelerations relative to
`the dominant axis, and select[s] only those measurements with specific
`relations to the dominant axis.” Id. at 6:44–47. “Selected measurements
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`[are] forwarded to the measurement comparator 155 and the threshold
`comparator 160 to determine whether a step has occurred.” Id. at 6:57–59.
`A method for determining whether a step has occurred is disclosed in
`Figure 8 of the ’902 patent, which is reproduced below.
`
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`Figure 8 is a flow diagram of a method for recognizing that a step has
`occurred. Id. at 2:1–4, 12:25–27. Acceleration measurement data is
`received and filtered to remove low and high frequency components. Id. at
`12:31–38, Fig. 8 (steps 805 and 810). A dominant axis is assigned as
`described above. Id. at 12:40–44, Fig. 8 (step 812). If the acceleration
`measurement falls outside the cadence window, it is discarded. Id. at 12:45–
`48, Fig. 8 (steps 815, 840). If the acceleration measurement falls within the
`cadence window, three additional tests are performed to determine whether a
`step is counted. First, the acceleration along the dominant axis must be
`greater than a lower threshold, such as the rolling average acceleration along
`the dominant axis. Id. at 7:9–12, 12:51–55, 12:64–65, Fig. 8 (step 820).
`Second, the acceleration along the dominant axis must be greater than
`previous measured accelerations along the dominant axis. Id. at 7:9–12,
`13:34–38, 13:53–56, Fig. 8 (step 825). Third, the acceleration along the
`dominant axis must be lower than an upper threshold, which “prevent[s]
`sudden accelerations such as taps from being counted as steps.” Id. at
`13:66–14:3, 7:9–12, 13:59–62, Fig. 8 (step 830).
`Device 100 is battery operated and has multiple operating modes to
`preserve battery life, including sleep mode 305, entry mode 315, stepping
`mode 325, and exit mode 335. Id. at 8:16–18. The power level of device
`100 is linked to these modes. Id. at 8:18–19. The different modes and the
`relationships between them are shown in Figure 3 of the ’902 patent, which
`is reproduced below.
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`Figure 3 of the ’902 patent is a state diagram showing the different modes of
`electronic device 100. Id. at 1:52–54. When no acceleration data is
`measured, device 100 is in sleep mode 305. Id. at 8:20–22. When
`acceleration data is detected, device 100 enters entry mode 315 to search for
`steps in the acceleration data. Id. at 8:22–25. If a predetermined number
`(N) of steps are detected in a sampling period, device 100 enters stepping
`mode 325; otherwise it reverts to sleep mode 305. Id. at 8:25–28. In
`stepping mode 325, steps are detected and counted as described above until
`no steps are detected within the cadence window, at which point device 100
`enters exit mode 335. Id. at 8:30–37. In exit mode 335, device 100
`determines whether a predetermined number (X) of steps are detected at a
`particular cadence. Id. at 8:38–40. If so, device 100 reverts to stepping
`mode 325; if not, device 100 reverts to entry mode 315. Id. at 8:41–44.
`The method by which device 100 transitions from entry mode 315 to
`stepping mode 325 is shown in Figure 5, which is reproduced below.
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`Figure 5 of the ’902 patent is a flow chart of entry mode 315. Id. at 1:58–60.
`After setting a sampling rate (504), a first step is detected in the acceleration
`data (510), a default cadence window is set (514), and a temporary or
`buffered step count is set to one (520). Id. at 9:55–10:8, 10:25. Next,
`additional steps are searched for in the acceleration data (524) using the
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`criteria discussed above, including whether the acceleration data falls within
`the default cadence window. Id. at 10:25–30, 12:45–46, Fig. 8.
`
`When additional steps are detected (524), they are added to the
`buffered step count (560). Id. at 10:46–47. If the buffered step count is less
`than a predetermined number M (564), additional steps are looked for in the
`acceleration data (524). Id. at 10:47–52. If the buffered step count is equal
`to M (564) and the cadence window is the default cadence window (570), a
`new cadence window is determined based on the cadence of the M steps
`(574). Id. at 10:53–57. The new cadence window is used to look for
`additional steps in the acceleration data (524) until a predetermined number
`of N steps is counted in the buffered step count (580). Id. at 10:57–67.
`When the buffered step count reaches N steps, the N steps are added to an
`actual step count (584), and device 100 enters stepping mode 325. Id. at
`10:67–11:3. In stepping mode 325, the cadence window is dynamically
`updated based on the rolling average of previously measured stepping
`periods. Id. at 11:13–17.
`As discussed above, measured acceleration data is only counted as a
`step when it falls within the cadence window. Id. at 10:25–30, 12:45–46,
`Fig. 8. If the measured acceleration data falls outside the cadence window
`(530), the buffered step count is reset to zero (534). Id. at 10:36–37. If
`acceleration data is subsequently detected (540), the process begins again to
`look for a first step (510). Id. at 10:42–44. Otherwise, the device enters
`sleep mode (544). Id. at 10:41–42.
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`
`B. Illustrative Claims
`Of the challenged claims, claims 1 and 5 of the ’902 patent are
`independent. Each of the other challenged claims depends directly from
`either claim 1 or claim 5. Claim 1 is reproduced below.
`1. A method comprising:
`detecting motion by an inertial sensor included in a
`mobile device;
`determining, by the mobile device, whether the
`motion has a motion signature indicative of a user
`activity that the mobile device is configured to
`monitor;
`when the motion does not have a motion signature
`of a user activity that the mobile device is
`configured to monitor, entering a sleep mode.
`Ex. 1001, 15:10–18. Claim 5 is reproduced below.
`5. A method for a mobile device comprising:
`receiving acceleration data that meets stepping
`criteria from an accelerometer included in the
`mobile device;
`incrementing a step count in a step count buffer;
`when at least one of a) the step count is below a step
`count threshold, or b) a current user cadence fails to
`match a step cadence of a user profile, using a
`default step cadence window to identify a time
`frame within which to monitor for a next step; and
`when the step count is at or above the step count
`threshold, determining a dynamic step cadence
`window and using the dynamic step cadence
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`window to identify the time frame within which to
`monitor for the next step.
`Ex. 1001, 15:46–16:6.
`C. Claim Construction
`This Petition was filed on January 5, 2018. Pet. 72. For Petitions
`filed before November 13, 2018, claim terms of an unexpired patent are
`given their broadest reasonable interpretation in light of the specification of
`the patent in which they appear. 37 C.F.R. § 42.100(b) (2017).5 Under the
`broadest reasonable interpretation standard, claim terms are generally given
`their ordinary and customary meaning, as would be understood by one of
`ordinary skill in the art, in the context of the entire disclosure. In re
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Only claim
`terms that are in controversy need to be construed and only to the extent
`necessary to resolve the controversy. See Nidec Motor Corp. v. Zhongshan
`Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017).
`Petitioner proposes constructions for the terms “dominant axis” and
`“cadence window.” Pet. 6–7. In our Institution Decision, we adopted
`Petitioner’s proposed construction of “dominant axis,” declined to expressly
`construe “cadence window,” and sua sponte construed “periodically
`sampling acceleration data at a predetermined sampling rate, wherein each
`sample includes acceleration data measured by the inertial sensor over a
`predetermined time period” (the “periodically sampling” limitation). Dec.
`Inst. 13–16. Patent Owner disputes our constructions of the “dominant axis”
`
`5 See Changes to the Claim Construction Standard for Interpreting Claims in
`Trial Proceedings Before the Patent and Trial Appeal Board, 83 Fed. Reg.
`51,340 (Oct. 11, 2018).
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`and “periodic sampling” limitations. PO Resp. 6–13. Patent Owner does
`not dispute our finding that express construction of “cadence window” is not
`necessary, but argues that its “meaning is ignored by the Petitioner.” Id. at
`11–12. We revisit our constructions of these claim terms below.
`1. dominant axis
`Petitioner argues “the term ‘dominant axis’ as used in the claims
`includes ‘the axis most influenced by gravity.’” Pet. 6 (citing Ex. 1003
`¶¶ 33–34) (emphasis added). As noted above, we adopted Petitioner’s
`proposed construction in our Institution Decision. See Dec. Inst. 13–15.
`Patent Owner argues this construction “violates the well-established
`rule against reading limitations from the specification into the claim
`language.” PO Resp. 6. In particular, Patent Owner argues “Petitioner seeks
`to limit the claim term . . . to mean ‘the axis most influenced by gravity.’ . . .
`However, the teachings of the specification cited by Petitioner clearly state
`that they are only example embodiments and are not meant to be limiting.”
`Id. (citing Pet. 6). Patent Owner cites various portions of the Specification
`that allegedly illustrate that assigning a “dominant axis” as “the axis most
`influenced by gravity” is only one of many embodiments of the invention.
`Id. at 6–11 (citing Ex. 1002, 6:7–37). Despite disagreeing with Petitioner’s
`proposed construction of “dominant axis,” Patent Owner does not offer an
`alternative construction. Rather, Patent Owner argues “Petitioner has not
`and cannot establish prima facie obviousness through application of an
`incorrect construction.” Id. at 11.
`We are not persuaded by Patent Owner’s arguments. In particular, we
`disagree that Petitioner seeks to limit the meaning of the term “dominant
`axis” to “the axis most influenced by gravity.” Id. at 6. As noted above,
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`Petitioner’s proposed construction is that “the term ‘dominant axis’ as used
`in the claims includes ‘the axis most influenced by gravity.’” Pet. 6
`(emphasis added). Thus, Petitioner does not contend the term is limited to
`“the axis most influenced by gravity,” but rather that the term, as used in the
`claims, includes “the axis most influenced by gravity.” Id.
`Petitioner’s proposed construction is supported by claim 10 of the
`’902 patent, the only claim that includes the term “dominant axis.” Claim 10
`requires “determining an orientation of [a] mobile device with respect to
`gravity,” and “assigning a dominant axis based on the orientation.”
`Ex. 1001, 16:40–42. Thus, the “dominant axis” of claim 10 is an axis
`assigned based on the “orientation of the mobile device with respect to
`gravity.” This claim limitation is fully supported by the Specification of the
`’902 patent, which discloses an embodiment in which “[d]etermining the
`orientation of the electronic device 100 may include identifying a
`gravitational influence,” and in which “once the orientation is determined, a
`dominant axis is assigned based upon the orientation.” Id. at 6:13–16
`Accordingly, we agree with and continue to adopt Petitioner’s
`proposed construction that the term “dominant axis includes the axis most
`influenced by gravity.” See Renishaw PLC v. Marposs Societa’ per Azioni,
`158 F.3d 1243, 1248 (Fed. Cir. 1998) (“[T]he claim construction inquiry . . .
`begins and ends in all cases with the actual words of the claim.”); id. at 1250
`(“[T]he interpretation to be given a term can only be determined and
`confirmed with a full understanding of what the inventors actually invented
`and intended to envelop with the claim.”); id. (“The construction that stays
`true to the claim language and most naturally aligns with the patent’s
`description of the invention will be, in the end, the correct construction.”);
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`see also Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d. 1294,
`1300 (Fed. Cir. 2003) (“[I]n determining the ordinary and customary
`meaning . . . of disputed claim terms, the correct meaning of a word or
`phrase is informed only by considering the surrounding text.”).
`2. cadence window
`Petitioner argues the Specification defines the term “cadence window”
`to mean “a window of time since a last step was counted that is looked at to
`detect a new step.” Pet. 7 (quoting Ex. 1001, 3:66–4:1). In our Institution
`Decision, we preliminarily determined that this claim term did not require
`express construction. See Dec. Inst. 15.
`Neither party appears to dispute our preliminary determination that
`express construction of “cadence window” is not needed to resolve any
`dispute between the parties. Instead, Patent Owner argues the plain and
`ordinary meaning of the term “is ignored by the Petitioner.” PO Resp. 11–
`12. And Petitioner argues, “[w]hether under Petitioner’s construction or the
`plain and ordinary meaning, . . . the combination of Pasolini and Fabio
`renders the claimed ‘cadence window’ obvious.” Pet. Reply 6.
`Accordingly, we maintain our decision declining to expressly construe
`the term “cadence window.”
`3. periodically sampling acceleration data at a predetermined
`sampling rate, wherein each sample includes acceleration data
`measured by the inertial sensor over a predetermined period of
`time
`In our Institution Decision, we sua sponte construed this limitation
`based on a potential lack of clarity as to whether “each sample” in the
`“wherein” clause refers to all of the many acceleration data points that are
`measured over each sampling period, or instead refers to each one of those
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`acceleration data points. See Dec. Inst. 15–16. Patent Owner argues that
`“the claim language is clear and no construction is necessary.” PO Resp.
`12–13. Nonetheless, Patent Owner offers a modification of our preliminary
`construction in the event we construe this term. Id. at 13. Petitioner agrees
`with Patent Owner that “no construction is required,” because “regardless of
`any construction of this term, Patent Owner does not separately argue the
`patentability of claim 3 under any construction.” Pet. Reply 7.
`Upon consideration of the arguments presented by Petitioner and
`Patent Owner, we agree with both parties that express construction of this
`term is not required, because it is not needed to resolve any dispute between
`the parties. See Nidec Motor, 868 F.3d at 1017.
`D. Level of Ordinary Skill in the Art
`Petitioner contends a person of ordinary skill in the art would have
`had a Bachelor of Science degree or equivalent training in electrical
`engineering, computer engineering, or computer science, and approximately
`two years of hardware or software design and development experience
`related to micro-electro-mechanical (MEM) devices and body motion
`sensing systems. Pet. 5 (citing Ex. 1003 ¶ 16).6
`Patent Owner disagrees with the experiential component of
`Petitioner’s definition (i.e., experience with MEMS and body motion
`sensing systems), and contends that a person skilled in the art would instead
`have two years of experience “related to accelerometers or similar devices.”
`PO Resp. 3 (quoting Ex. 2001 ¶ 12). Nonetheless, Patent Owner admits that
`
`
`6 Petitioner cites to the page number of Exhibit 1003. We cite here to the
`paragraph number of Dr. Paradiso’s Declaration.
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`this “difference is inconsequential to the dispute here.” Id.
`For purposes of this Decision, we find Petitioner’s description of a
`person skilled in the art to be reasonable, and adopt it as our own, because it
`is consistent with the problems and solutions disclosed in the patent and
`prior art of record. See, e.g., In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir.
`1995). Although Patent Owner’s description is slightly different, we agree
`with Patent Owner that that difference is inconsequential to the analysis that
`follows.
`E. Overview of the Prior Art
`1. Mitchnick
`Mitchnick discloses “a device for participant monitoring . . . that
`automatically collects monitoring data with little or no participant attention.”
`Ex. 1007 ¶ 1. The device “includes sensors for, at least, detecting and
`storing the occurrences of sexual activity . . . by observing characteristic
`patterns of participant motion as sensed by an acceleration.” Id. ¶ 12.
`Mitchnick’s preferred embodiment is a vaginally implanted device;
`however, Mitchnick discloses alternative embodiments that can reside
`“elsewhere in or on the body [for] detecting other parameters of
`medical/clinical interest.” Id. ¶ 43.
`Figure 1 of Mitchnick is reproduced below.
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`Figure 1 of Mitchnick is a schematic illustration of an activity monitoring
`device. Id. ¶ 49. The device includes housing 1, batteries 13, and
`accelerometer 7 “mounted so that its acceleration measurements are
`correctly oriented with respect to the housing.” Id. The device is controlled
`by a microprocessor that “implements general-purpose and power
`management instructions,” including processing analog sensor signals from
`the accelerometer. Id. ¶¶ 50, 66, Fig. 2. The device may also include a
`radio-frequency transceiver for communicating with external devices. Id.
`¶ 49.
`
`The microprocessor’s power management instructions allow the
`device to operate in either “a very low power . . . sleep mode,” an optional
`“low power mode,” or a “normal operational mode.” Id. ¶¶ 50, 67. At least
`some of these modes are shown in Figure 3 of Mitchnick, which is
`reproduced below.
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`Figure 3 of Mitchnick is a flow chart showing the operating states of
`Mitchnick’s device and transitions between those operating states. Id. ¶ 67,
`Fig. 3. The device is in wait/sleep state 71 when it is initially powered on or
`after the microprocessor receives and executes a SLEEP instruction. Id.
`¶ 68. The device transitions from wait/sleep state 71 to operational/sleep
`state 73 when the microprocessor receives an interrupt signal generated by
`either an internal timer or a wake-up circuit responding to an external event.
`Id. ¶¶ 68, 72. Mitchnick discloses:
`Because sexual activity is intermittent, power and
`memory can be advantageously further conserved,
`and device
`life
`further extended, by only
`intermittently sampling 75 for sexual activity and
`by storing sensor detail data only if sexual activity
`is observed. If sexual activity is not detected, the
`device remains in a low-power sleep state.
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`Id. ¶ 69 (emphases added). The timer can periodically wake up the device
`(e.g., every 10 minutes), placing it in operational/sleep state 73, to search for
`sexual activity. Id.
`When in operational/sleep state 73, the device samples accelerometer
`data at a predetermined sampling rate and checks for sexual activity over a
`sampling period that is sufficient to achieve a desired accuracy. Id. ¶¶ 69,
`72, 73, Fig. 3 (step 75). For example, the sampling period can be chosen so
`that the device has a 10% duty cycle and a 10 Hz sampling rate. Id. ¶¶ 69,
`73. Thus, if the device enters operational state 73 every 10 minutes, it will
`sample the accelerometer data for a period of 1 minute (10% duty cycle),
`and in the course of that minute, it will obtain 600 acceleration data samples
`(10 Hz sampling rate).
`The device identifies sexual activity by matching characteristics of the
`sampled accelerometer data to templates containing characteristics indicative
`of sexual activity, such as peaks in the accelerometer data and time intervals
`between the peaks. Id. ¶ 70. If the device identifies sexual activity in the
`accelerometer data, it continuously samples and records the accelerometer
`data, and checks for additional sexual activity. Id. ¶ 72, Fig. 3 (steps 75, 77,
`79). However, if the device fails to detect sexual activity, it reverts to or
`remains in a sleep state. Id. ¶¶ 69, 72.
`2. Sheldon
`Sheldon discloses “a rate responsive pacemaker employing a body
`position sensor to distinguish stair climbing from other activities.”
`Ex. 1009, 4:19–24. The pacemaker includes an accelerometer that “can be
`used to derive the level of patient activity from the number of changes in
`signal levels exceeding a certain threshold occurring in a given sampling
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`time period.” Id. at 5:14–17. The patient’s posture can also be determined
`by aligning the accelerometer’s sensitive axis “with the pacemaker case and
`the patient’s anterior-posterior (A-P) body axis.” Id. at 4:52–56. The
`accelerometer’s output can be sampled at 200 Hz over a 2 second sampling
`period, the DC component of the sampled output (i.e., the accelerometer’s
`“tilt”) can be used to determine the patient’s posture, and the AC component
`of the sampled output (i.e., the accelerometer’s “activity count”) can be used
`to determine the patient’s activity level. Id. at 11:64–12:3.
`3. Tanenhaus
`Tanenhaus discloses a low power monitoring device that includes a
`plurality of MEMS sensors, including at least an accelerometer and a wake-
`up circuit. Ex. 1008, 4:15–20, 4:29, 4:36–38. The wake-up circuit senses an
`activity, such as a movement, and sends a wake-up signal to a data
`acquisition processing circuit. Id. at 4:38–41. The wake-up circuit consists
`of a buffer and absolute value circuit, and a threshold detecting circuit. Id. at
`4:53–56, 4:62–66. The buffer and absolute value circuit stores an absolute
`value of the sampled MEMS output, and the threshold detecting circuit
`determines whether that stored value exceeds a predetermined threshold. Id.
`When it does, a switching circuit connected to the threshold detecting circuit
`switches the data acquisition processing circuit from a sleep-type low power
`condition to a wake-up high power condition. Id. at 5:9–14.
`4. Fabio
`Fabio discloses a method for “controlling a pedometer based on the
`use of inertial sensors.” Ex. 1006, 1:10–11. The pedometer can be
`“integrated within a portable electronic device, such as a cell phone.” Id. at
`2:34–36. The method involves:
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`generating a signal correlated to movements of a
`user of the pedometer; detecting steps of the user
`based on the signal; checking whether sequences of
`the detected steps satisfy pre-determined conditions
`of regularity; updating a total number of valid steps
`if the conditions of regularity are satisfied; and
`preventing updating of the total number of valid
`steps if the conditions of regularity are not satisfied.
`Id. at 1:62–2:3. Fabio detects user steps from the sampled acceleration data
`AZ of its inertial sensor according to a method illustrated in Figures 5 and 6,
`which are reproduced below.
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`Figure 5 of Fabio is a graph illustrating quantities used to detect user steps
`from acceleration data. Id. at 2:22–23. A step is recognized when a positive
`peak of acceleration signal AZ is greater than threshold AZP, and a negative
`peak is less than threshold AZN and falls within fixed time window TW from
`the positive peak. Id. at 4:15–21.
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