Paper 9
`Trials@uspto.gov
`Entered: August 30, 2018
`Tel: 571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GARMIN INTERNATIONAL, INC. and GARMIN USA, INC.,
`Petitioner,
`v.
`LOGANTREE, LP,
`Patent Owner.
`
`Case IPR2018-00564
`Patent 6,059,576 C1
`
`
`
`
`
`
`
`
`
`Before PATRICK R. SCANLON, MITCHELL G. WEATHERLY, and
`JAMES A. WORTH, Administrative Patent Judges.
`WORTH, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`I.
`INTRODUCTION
`On February 21, 2018, Garmin International, Inc. and Garmin USA,
`Inc. (“Garmin” or “Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting
`an inter partes review of claims 20–26, 29, 104–107, 110, 113–122, 126–
`128, 134–138, and 175 (the “challenged claims”) of U.S. Patent No.
`
`
`Trials@uspto.gov
`Entered: August 30, 2018
`Tel: 571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GARMIN INTERNATIONAL, INC. and GARMIN USA, INC.,
`Petitioner,
`v.
`LOGANTREE, LP,
`Patent Owner.
`
`Case IPR2018-00564
`Patent 6,059,576 C1
`
`
`
`
`
`
`
`
`
`Before PATRICK R. SCANLON, MITCHELL G. WEATHERLY, and
`JAMES A. WORTH, Administrative Patent Judges.
`WORTH, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`I.
`INTRODUCTION
`On February 21, 2018, Garmin International, Inc. and Garmin USA,
`Inc. (“Garmin” or “Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting
`an inter partes review of claims 20–26, 29, 104–107, 110, 113–122, 126–
`128, 134–138, and 175 (the “challenged claims”) of U.S. Patent No.
`
`
`
`IPR2018-00564
`Patent 6,059,576 C1
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`6,059,576 C1 (Ex. 1001, “the ’576 patent”). LoganTree LP (“LoganTree” or
`“Patent Owner”) did not file a Preliminary Response.
`Institution of an inter partes review is authorized by statute when “the
`information presented in the petition filed under [35 U.S.C. §] 311 and any
`response filed under [35 U.S.C. §] 313 shows that there is a reasonable
`likelihood that the petitioner would prevail with respect to at least 1 of the
`claims challenged in the petition.” 35 U.S.C. § 314(a). For the reasons set
`forth below, we determine that Petitioner has demonstrated that there is a
`reasonable likelihood that at least one of the challenged claims is
`unpatentable, and we institute an inter partes review of claims 20–26, 29,
`104–107, 110, 113–122, 126–128, 134–138, and 175 based on the grounds
`set forth in the Petition.
`
`A. Related Matters
`Petitioner states that it has filed another petition for inter partes
`review of the ’576 patent, in IPR2018-00565. Pet. 71. Petitioner states that
`two other inter partes review proceedings with respect to the ’576 patent
`terminated after the filing of a petition but before any decision on institution,
`i.e., IPR2017-00256, -258. Pet. 71–72.
`The parties state that the ’576 patent is the subject of a patent
`infringement litigation, LoganTree LP v. Garmin International, Inc., Case
`No. 6:17-cv-01217 (D. Kansas), and that another proceeding with the same
`parties in a different jurisdiction has been dismissed without prejudice to
`refiling in another district, LoganTree LP v. Garmin International, Inc., Case
`No. 5-17-cv-00098 (TXWD). Pet. 71; Paper 4, 2.
`
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`B. The ’576 Patent (Ex. 1001)1
`The ’576 patent is titled “Training and Safety Device, System and
`Method to Aid in Proper Movement During Physical Activity” and relates to
`“the field of electronic training and safety devices used to monitor human
`physical activity.” Ex. 1001, [54], 1:6–7. More specifically, the ’576 patent
`discloses a method that detects, measures, records, and/or analyzes the time,
`date, and other data associated with movement of the device and produces
`meaningful feedback regarding the measured movement. See id. at 1:8–11.
`The ’576 patent discloses that certain prior art devices recorded the
`number of times that a predetermined angle was exceeded but were not
`convenient to operate and served to report rather than analyze the
`information. See id. at 1:45–54. The ’576 patent discloses that it is also
`important to measure the angular velocity to monitor and analyze improper
`movement. Id. at 1:55–67.
`The ’576 patent discloses an electronic device which tracks and
`monitors an individual’s motion through the use of a movement sensor
`capable of measuring data associated with the wearer’s movement. Id.
`at 2:10–13. The device of the ’576 patent also employs a user-
`programmable microprocessor which receives, interprets, stores and
`responds to the movement data based on customizable operation parameters,
`a clock connected to the microprocessor, memory for storing the movement
`and analysis data, a power source, a port for downloading the data from the
`
`
`1 An ex parte reexamination certificate issued on Mar. 17, 2015, with all
`claims either amended from their original form or newly added during
`reexamination. Ex. 1001, [45] C1, cols. 1–12 C1.
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`device to other computation or storage devices contained within the system,
`and various input and output components. Id. at 2:13–21.
`Figure 4 of the ’576 patent is a block diagram of the movement
`measuring device (id. at 3:11–12):
`
`
`
`Figure 4 depicts a block diagram of the components of the device.
`The downloadable, self-contained device can be worn at various
`positions along the torso or appendages being monitored depending on the
`specific physical task being performed. Id. at 2:21–24. The device also
`monitors the speed of the movements made while the device is being worn.
`Id. at 2:24–25. When a pre-programmed recordable event is recognized, the
`device records the time and date of the occurrence while providing feedback
`to the wearer via visual, audible and/or tactile warnings. Id. at 2:25–29.
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`Periodically, data from the device may be downloaded into an associated
`computer program which analyzes the data. Id. at 2:29–31. The program
`can then format various reports to aid in recognizing and correcting trends in
`incorrect physical movement. Id. at 2:31–33.
`
`C. Illustrative Claim
`Claim 20 is the sole independent claim that is challenged in this
`proceeding and is illustrative of the subject matter. Claim 20, as amended in
`the reexamination proceeding, reads as follows:
`20. A method to monitor physical movement of a body
`part comprising the steps of:
`attaching a portable, self-contained movement measuring
`device to said body part for measuring unrestrained movement in
`any direction;
`measuring data associated with said physical movement;
`interpreting, using a microprocessor included in the portable,
`self-contained movement measuring device, said physical
`movement data based on user-defined operational parameters
`and a real-time clock;
`storing said data in memory;
`detecting, using the microprocessor, a first user-defined
`event based on the movement data and at least one of the user-
`defined operational parameters regarding the movement data;
`and
`
`storing, in said memory, first event information related to
`the detected first user-defined event along with first time stamp
`information reflecting a time at which the movement data
`causing the first user-defined event occurred.
`
`Ex. 1001, 2:23–43 C1.
`
`D. The Prior Art
`Petitioner relies on the following prior art:
`US 5,197,489, iss. Mar. 30, 1993 (Ex. 1007, “Conlan”);
`US 5,474,083, iss. Dec. 12, 1995 (Ex. 1008, “Church”);
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`US 5,546,609, iss. Aug. 20, 1996 (Ex. 1006, “Rush”);
`US 5,976,083, iss. Nov. 2, 1999 (Ex. 1009, “Richardson”);
`US 5,978,972, iss. Nov. 9, 1999 (Ex. 1004, “Stewart”)2.
`E. The Alleged Grounds of Unpatentability
`Petitioner challenges claims 20–26, 29, 104–107, 110, 113–122, 126–
`128, 134–138, and 175 of the ’576 patent as unpatentable under 35 U.S.C.
`§ 103(a):
`
`References
`
`Stewart and Rush
`
`Stewart, Rush, and Conlan
`
`Stewart, Rush, and Church
`
`Richardson and Stewart
`
`
`
`Basis
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`Claims challenged
`20–26, 29, 104–107,
`110, 113–116, 118,
`121, 126–128, 134,
`135, 175
`119, 120, 122, 136,
`137
`117
`
`20, 138
`
`II. ANALYSIS
`A. Claim Construction
`Petitioner asserts that the ʼ576 patent expired on Nov. 21, 2017.
`Pet. 9. The ’576 patent was filed on Nov. 21, 1997, and issued on May 9,
`2000. Ex. 1001, [22], [45]. The issued patent bears a notice stating “This
`patent issued on a continued prosecution application filed under 37 CFR
`
`2 In the alternative, Petitioner relies for Stewart on the filing date of its
`provisional application, U.S. Provisional Application 60/020271, filed June
`14, 1996 (Ex. 1005, hereinafter, “the Stewart provisional application.”). We
`do not reach the issue of the effective filing date of Stewart at this time. For
`purposes of this Decision, we analyze the asserted grounds based on Stewart
`with respect to the Stewart reference as issued, i.e., Exhibit 1004.
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`1.53(d), and is subject to the twenty year patent term provisions of 35 U.S.C.
`154(a)(2).” Id. at [*]. For this Decision, therefore, we proceed on the basis
`that the patent has expired. For expired patents, we apply the claim
`construction standard set forth in Phillips v. AWH Corp., 415 F.3d 1303
`(Fed. Cir. 2005). See In re Rambus, Inc., 694 F.3d 42, 46 (Fed. Cir. 2012).
`Petitioner requests construction of the limitation “wherein said storing
`comprises continuously storing said movement data after battery power is
`lost from a power source of the portable, self-contained movement
`measuring device” in claim 107 as at least including “storing movement data
`in a memory that does not lose its contents after battery power is lost from a
`power source.” Pet. 10–11 (citing Ex. 1010 ¶ 44). For purposes of
`institution, we adopt the proposed construction as being consistent with the
`plain and ordinary meaning of the claim language.
`
`B. Obviousness of Claims 20–26, 29, 104–107, 110, 113–116,
`118, 121, 126–128, 134, 135, and 175 over Stewart
`(Ex. 1004) and Rush (Ex. 1006)
`Petitioner contends that claim 20–26, 29, 104–107, 110, 113–116,
`118, 121, 126–128, 134, 135, and 175 are unpatentable as obvious over
`Stewart and Rush. Pet. 11–43.
`
`1. Overview of Stewart
`Stewart is titled “Helmet System Including at Least Three
`Accelerometers and Mass Memory and Method for Recording in Real-Time
`Orthogonal Acceleration Data of a Head” and relates to a helmet-based
`system which is typically worn while playing a sport such as boxing or
`football, and to the method of recording and storing data relating to
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`translational and angular accelerations of the person’s head due to impact
`forces acting thereon. Ex. 1004, [54], 1:19–23.
`Stewart describes drawbacks in conventional prior art devices.
`According to Stewart, conventional devices did not measure and record
`translational and angular forces to a living human head over a period of time
`of exposure, particularly where the exposure was of a low level below that
`which would normally cause concern for injury. Id. at 4:3–7. Further,
`conventional devices which measured acceleration in a single direction, or
`from a single event, or only above a predetermined threshold, or in a way
`which did not permit use during performance of the actual sport did not
`provide the dynamics necessary to correlate exposure to forces to the injury
`caused by that exposure over a period of time. Id. at 4:13–19.
`Stewart discloses “Head Acceleration-monitoring Technology” or
`“HAT,” which is a portable system designed to measure and record
`acceleration data in real time in both translational and angular directions of
`an individual’s head during normal activity. Id. at 4:28–31. Stewart
`discloses that the device may be used to monitor other body parts, or the
`body in general. Id. at 4:31–33.
`The HAT is designed as a standard component of otherwise
`conventional sporting gear, in particular the helmet. It includes at least three
`orthogonally-placed accelerometers and means to record the output
`therefrom in real time. Id. at 4:45–47. The data from the accelerometers are
`recorded in real time during performance of the sport. Id. at 4:60–61. The
`data is either recorded on a memory card or other mass memory means
`installed in the helmet, or is transmitted to a nearby receiver for storage on a
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`computer’s hard drive or other conventional mass storage device. Id.
`at 4:61–65.
`Figure 2B of Stewart is a top view of an embodiment using three
`orthogonal accelerometers and a memory card installed inside a boxing
`helmet (id. at 5:30–35):
`
`
`
`Figure 2B of Stewart is a top view of a boxing helmet.
`
`Items 10, 11, and 12 are three orthogonal accelerometers that provide
`aggregated data relating to three translational directions and two angular
`accelerations but not sufficient information to separate translational and
`rotational components uniquely. Id. at 6:45–47. In one embodiment,
`accelerometers 10, 12 are mounted at right angles on a printed circuit board
`(PCB), together with a processor, an A/D converter, a Program RAM/ROM
`component, a PCMCIA interface, and a serial control interface. Id. at 7:12–
`16.
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`
`2. Overview of Rush
`Rush is titled “Helmet” and relates “to a helmet which will prevent
`damaging axial compressive forces, occasioned by impacts to the crown area
`of the head, i.e. the helmet, from being transmitted to the cervical spine of
`the wearer” and “to helmets which provide a signal or indication that the
`wearer has participated in activity which can be potentially dangerous to the
`wearer.” Ex. 1006, [54], 1:11–15, 1:21–23. Rush discloses a protective
`helmet that in one embodiment is accompanied by a bag that inflates on
`impact. Id. at 3:44–58. In one embodiment, a helmet transmits a signal to a
`remote observer to indicate that the wearer has engaged in potentially self-
`injurious activity. Id. at 3:21–24.
`
`3. Analysis
`In its Petition, Petitioner sets forth its contentions as to how the
`limitations of claims 20–26, 29, 104–107, 110, 113–116, 118, 121, 126–128,
`134, 135, and 175 are disclosed in, or obvious over, the combination of
`Stewart and Rush. Pet. 10–43. Petitioner relies on the declaration of
`Andrew C. Singer, Ph.D. Ex. 1010. We address these contentions below.
`We emphasize that the following determinations regarding the sufficiency of
`the Petition are preliminary in nature at this stage of the proceeding.
`
`a. Claim 20
`i. “A method to monitor physical movement of a body part comprising the
`steps of:”
`Petitioner asserts, inter alia, that Stewart discloses a method to
`monitor physical movements of a body part during activities such as boxing,
`football, hockey, high jumping, sprinting, and swimming. Pet. 14–15
`(citing, e.g., Ex. 1004, 5:12–17, 6:1–7). On this record, we are persuaded
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`that Petitioner has made an adequate showing. In particular, Stewart
`discloses a method of recording and storing data relating to translational and
`angular accelerations of the person’s head due to impact forces acting
`thereon, and discloses that a device for monitoring the head or other parts of
`the body. Ex. 1004, 1:26–28, 4:32; see also id. at 5:12–17, 6:1–7.
`
`ii. “attaching a portable, self-contained movement measuring device to said
`body part for measuring unrestrained movement in any direction”;
`“measuring data associated with said physical movement”
`Petitioner asserts, inter alia, that Stewart discloses a device with
`accelerometers to measure movement in three dimensions. Pet. 16 (citing,
`e.g., Ex. 1004, 4:28–31, 6:13–16, 6:24–28); Pet. 17 (citing, e.g., Ex. 1004,
`4:46–59, 6:29–57, 7:34–38, Figs. 1, 2A, 2B, 5). On this record, we are
`persuaded that Petitioner has made an adequate showing. In particular,
`Stewart discloses three orthogonal accelerometers 10–12 that “provide data
`which corresponds directly to [the] motion of the head in three dimensional
`space . . . .” Ex. 1004, 6:13–16. Further, Stewart discloses as many as three
`sets of three orthogonally-placed accelerometers can be used to measure
`uniquely the translational, angular and normal components of acceleration of
`the head. Ex. 1004, 4:46–59.
`
`iii. “interpreting, using a microprocessor included in the portable, self-
`contained movement measuring device, said physical movement data based
`on user-defined operational parameters and a real-time clock;”
`Petitioner asserts, inter alia, that Stewart discloses a processor that
`receives accelerometer data. Pet. 18 (citing, e.g., Ex. 1004, 8:46–9:3,
`Fig. 1). Petitioner further asserts that Stewart discloses user-defined
`commands that establish the general parameters of the sampling of
`accelerometers, e.g., when to start, when to stop, and sampling rate, and that
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`it would have been understood by a person of ordinary skill that the
`processor accesses a real-time clock, or in the alternative, that it would have
`been obvious to do so as a predictable way of enabling the processor.
`Pet. 18, 19, 21 (citing, e.g., Ex. 1004, 11:51–63; 1010 ¶¶ 51–54, 58). On
`this record, we are persuaded that Petitioner has made an adequate showing.
`In particular, Stewart discloses that processor 52 controls the storage of data
`from A/D Converter 46 to data storage 51 and that commands may be
`entered on a keypad, e.g., “when to start, the sampling rate, and when to
`stop.” Ex. 1004, 8:58–59, 11:51–63. We note that Petitioner also
`(elsewhere) relies on Rush for “user-defined operational parameters” and
`timestamping functions. See Section II.B.3.a.v.
`
`iv. “storing said data in memory;”
`Petitioner asserts, inter alia, that Stewart discloses a memory card for
`storing accelerometer data. Pet. 21–22 (citing, e.g., Ex. 1004, 4:60–63,
`8:64–9:3, 10:34–42, Fig. 1). On this record, we are persuaded that Petitioner
`has made an adequate showing. In particular, Stewart discloses that the data
`from the accelerometers are recorded on a memory card or other mass
`memory means installed in the helmet, and are recorded in real time.
`Ex. 1004, 4:60–63.
`
`v. “detecting, using the microprocessor, a first user-defined event based on
`the movement data and at least one of the user-defined operational
`parameters regarding the movement data,”
`Petitioner asserts, inter alia, that Stewart discloses recording
`movement data when a defined threshold is exceeded but does that Stewart
`does not explicitly disclose that the defined/predefined thresholds are
`defined by user commands. Pet. 23 (citing, e.g., Ex. 1004, 5:4–7).
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`Petitioner further asserts that Rush discloses a threshold value for detecting a
`spearing movement that is preferably adjustable so that the magnitude of
`axial impact may be varied to accommodate players of different ages and
`sizes and to minimize accidental actuation of the signal. Id. (citing
`Ex. 1006, 9:54–58). Petitioner argues that it would have been obvious to a
`person of ordinary skill to enable a user to adjust Stewart’s acceleration
`thresholds based on the teachings in Rush. Id. (citing Ex. 1010 ¶ 61). On
`this record, we are persuaded that Petitioner has made an adequate showing.
`In particular, Rush discloses that thresholds are adjustable. Ex. 1006, 9:54–
`58. We determine that Petitioner has established a reasonable likelihood of
`showing that it would have been obvious to modify Stewart to allow
`thresholds to be adjustable in order to accommodate players of different ages
`and sizes and to minimize accidental actuation of the signal, as taught by
`Rush. See id.; Ex. 1010 ¶¶ 61–62.
`
`vi. “storing, in said memory, first event information related to the detected
`first user-defined event along with first time stamp information reflecting a
`time at which the movement data causing the first user-defined event
`occurred.”
`Petitioner asserts, inter alia, that Stewart discloses recording events
`when movement exceeds a defined threshold, as discussed above, and that
`Rush discloses the timestamping function. See Pet. 24–25 (citing Ex. 1006,
`9:48–54, 10:26–28). On this record, we are persuaded that Petitioner has
`made an adequate showing. In particular, Rush discloses a recording means
`that may record the time and date of each instance in which potentially
`injurious activity occurs. Ex. 1006, 10:26–28.
`Petitioner argues that it would have been obvious to a person of
`ordinary skill to have modified the storage system of Stewart to include the
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`time stamping function because one of the goals of Stewart’s system is to
`establish limits for future participation in the sport and that a person of
`ordinary skill would have known that there are time-dictated specific
`timelines for returning to a sport after confirmed head injuries. Pet. 25
`(citing Ex. 1004, 4:65–5:2; Ex. 1010 ¶ 66). At this stage of the proceeding,
`we are persuaded that Petitioner has made a sufficient showing. As
`Dr. Singer avers, storing the date/time of each detected potential head injury
`would have predictably aided in the determination of appropriate limits for
`future participation in sports based on the recorded dates/times of the
`detected events. See Ex. 1010 ¶ 67.
`
`Summary
`For the preceding reasons, we determine that Petitioner has
`established a reasonable likelihood of prevailing on its contentions that the
`combination of Stewart and Rush would have rendered obvious the subject
`matter of independent claim 20.
`b. Remaining Claims
`Based on our independent review of the Petition, we determine that
`Petitioner has made an adequate showing for the remaining claims
`challenged in this ground, which each depend from claim 20. See Pet. 26–
`34.
`
`C. Obviousness of Claims 119–124, 126, 136, and 137 over
`Stewart, Rush, and Conlan (Ex. 1007)
`Petitioner contends that claims 119–124, 126, 136, and 137 are
`unpatentable as obvious over Stewart, Rush, and Conlan. Pet. 43–50.
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`1. Overview of Conlan
`Conlan is titled “Activity Monitoring Apparatus with Configurable
`Filters” and relates to an apparatus and methods for monitoring activity of
`the human body, and more particularly, methods by which the occurrence
`and length of certain types of body movements (which form activity
`phenomenon) can be selectively observed and quantified. Ex. 1007, [54],
`1:7–12. Conlan describes a problem with prior art devices, i.e., that
`saturation of memory occurred when the volume of data being monitored
`exceeded capacity, and states that this problem was aggravated because prior
`activity monitors were not selectively configurable to collect data only for a
`particular activity. Id. at 1:60–67.
`Conlan discloses an activity monitor worn on the skin and preferably
`on a user’s non-dominant wrist. Id. at 2:44–55. In a preferred embodiment,
`Conlan’s device uses a bimorph beam as a sensor that produces signals with
`frequencies that vary according to the subject’s movement. Id. at 2:60–61,
`3:1–15. Conlan discloses the use of a signal processing means to amplify,
`shape, and filter the signal in order to selectively observe and quantify
`certain movements. See id. at 3:16–22.
`
`2. Analysis
`In its Petition, Petitioner sets forth its contentions as to how the
`limitations of claims 119–124, 126, 136, and 137 are disclosed in, or
`obvious over, the combination of Stewart, Rush, and Conlan. Pet. 43–50.
`
`a. Claim 136
`Claim 136 depends from claim 20 and further recites “wherein said
`body part is a user’s arm, and said measuring the data comprises monitoring
`and recording the physical movement of said user’s arm.” Ex. 1001, 8:59–
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`61 C1. Petitioner asserts, inter alia, that Stewart’s device monitors the head
`but the device may be used to monitor other parts of the body. See Pet. 46–
`47 (citing Ex. 1004, 4:32–33, 5:12–17). On this record, we are persuaded
`that Petitioner has made an adequate showing. Stewart discloses that
`monitoring of other parts of the body is envisioned. Ex. 1004, 4:32–33.
`Petitioner also relies on Conlan’s teaching that its monitoring device
`may be worn on the wrist. Pet. 47 (citing Ex. 1007, Abstract, 15:64–66,
`Fig. 1). As set forth above, Conlan discloses a preferred embodiment with
`placement on the non-dominant wrist. Ex. 1007, 2:44–55.
`Petitioner argues that it would have been obvious to a person of
`ordinary skill to adapt Stewart’s device to be worn on the arm in order to
`study physical movements during athletic exertion as contemplated by
`Conlan. Pet. 48 (citing Ex. 1010 ¶ 87). At this stage of the proceeding, we
`are persuaded that Petitioner has made a sufficient showing. Stewart itself
`discloses the use of its device to monitor other parts of the body besides the
`head. Ex. 1004, 4:32–33
`
`b. Remaining Claims
`Based on our independent review of the Petition, we determine that
`Petitioner has made an adequate showing for the remaining claims
`challenged in this ground. See Pet. 44–50.
`
`D. Obviousness of Claim 117 over Stewart, Rush, and Church
`(Ex. 1008)
`Petitioner contends that claim 117 is unpatentable as obvious over
`Stewart, Rush, and Church. Pet. 50–52.
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`1. Overview of Church
`Church is titled “Lifting Monitoring and Exercise Training System”
`and relates to a system for “monitoring the lifting motion and/or exercise
`training of an individual.” Ex. 1008, [54], 1:14–15. Church described a
`drawback in prior art devices, i.e., that such devices did not tend to be
`directed to a specific muscle group. Id. at 1:42–50.
`Church discloses one embodiment using an electromyographic sensor
`to measure muscle force and an alternative embodiment using a goniometer
`as a sensing component to monitor lifting angle. See id. at 1:16–22, 1:62–
`224, 3:40–50. The sensing components are coupled to a control means
`comprising a microprocessor, which acts as an internal clock and is
`interfaced to an electronic memory and to an auditory or vibrational
`indicator. Id. at 3:44–51.
`
`2. Analysis
`In its Petition, Petitioner sets forth its contentions as to how the
`limitations of claim 117 are disclosed in, or obvious over, the combination
`of Stewart, Rush, and Church. Pet. 50–52.
`
`Claim 117
`Claim 117 depends from claim 20 and further recites “indicating a
`low battery condition, using an output indicator of the portable, self-
`contained movement measuring device.” Ex. 1001, 7:54–57 C1. Petitioner
`asserts, inter alia, that Church discloses that its microprocessor can be
`provided with a testing system for testing battery voltage and if the battery
`voltage is found to be in sufficient, the microprocessor signals the user
`through the indicator means and turns off the system. See Pet. 51 (citing
`Ex. 1008, 4:58–64). On this record, we are persuaded that Petitioner has
`
`17
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`made an adequate showing. Church discloses that in the event the contacts
`fail the impedance test or the battery has insufficient voltage, the
`microprocessor signals the user through the indicator. Ex. 1008, 4:59–62.
`Petitioner argues that it would have been obvious to a person of
`ordinary skill to modify Stewart’s processor to similarly enable it to test the
`battery condition as suggested by Church, in order to enhance the reliability
`of the device. Pet. 52 (citing Ex. 1010 ¶ 97). At this stage of the
`proceeding, we are persuaded that Petitioner has made a sufficient showing.
`We credit the reasoning of Dr. Singer that such a modification would have
`predictably enhanced the reliability and usability of the device. Ex. 1010
`¶ 97.
`
`E. Obviousness of Claims 20 and 138 over Richardson
`(Ex. 1009) and Stewart
`Petitioner contends that claim 20 and 138 are unpatentable as obvious
`over Richardson and Stewart. Pet. 52–70.
`
`1. Overview of Richardson
`Richardson is titled “Portable Aerobic Fitness Monitor for Walking
`and Running,” and
`relates to a personal fitness monitoring device that may be worn
`by an individual while the individual is exercising. The fitness
`monitoring device monitors the aerobic fitness of the user as the
`user exercises and provides the user with information about the
`current exercise session, an assessment of the user’s current
`fitness level, and a prediction of the user’s future fitness.
`
`
`Ex. 1009, [54], 1:6–13.
`Richardson discloses, inter alia, a heart rate monitor and a pedometer
`for determining the locomotion. Id. at 1:18–22. Richardson further
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`IPR2018-00564
`Patent 6,059,576 C1
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`discloses alarms based on monitoring when an alarm trigger is exceeded,
`e.g., a heart alarm trigger when a heart rate is exceeded, a milepost alarm
`trigger when a distance is exceeded, and a cruise control alarm when a
`chosen speed is exceeded. Id. at 30:12–24.
`
`2. Analysis
`In its Petition, Petitioner sets forth its contentions as to how the
`limitations of claims 20 and 138 are disclosed in, or obvious over, the
`combination of Richardson and Stewart. Pet. 52–70.
`
`a. Claim 20
`i. “A method to monitor physical movement of a body part comprising the
`steps of:”
`Petitioner asserts, inter alia, that Richardson discloses a personal
`fitness monitoring device and method. Pet. 54–55 (citing, e.g., Ex. 1009,
`Abstract, 1:27–31). On this record, we are persuaded that Petitioner has
`made an adequate showing. In particular, Richardson discloses an
`accelerometer that measures the vertical accelerations caused by each step of
`an individual. Ex. 1009, 1:27–31.
`
`ii. “attaching a portable, self-contained movement measuring device to said
`body part for measuring unrestrained movement in any direction”;
`“measuring data associated with said physical movement”
`Petitioner asserts, inter alia, that Richardson’s device is self-
`contained, attaches to the head or the chest, and measures movement.
`Pet. 55–57 (citing, e.g., Ex. 1009, 16:42–46, Fig. 7); Pet. 58–59 (citing, e.g.,
`Ex. 1009, 6:21–33). On this record, we are persuaded that Petitioner has
`made an adequate showing. In particular, Richardson discloses, in a
`preferred embodiment, a system housing worn around the chest with an
`elastic strap, and that the system includes a pedometer with an
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`accelerometer. See Ex. 1009, 1:27–31, 15:29–31, 16:42–46. Further,
`Richardson discloses subsystem 025 that measures the on-going
`instantaneous profile of the user’s movement as magnitudes of acceleration
`in or near the vertical plane. Ex. 1009, 6:21–33.
`Petitioner argues that it would have been obvious to substitute
`Stewart’s accelerometers for Richardson’s accelerometer, in order to analyze
`additional aspects of the user’s movement. Pet. 57 (citing Ex. 1010 ¶¶ 102–
`103). At this stage of the proceeding, we determine that Petitioner has
`sufficiently shown that a person of ordinary skill would have sought to add
`additional dimensions of measurement, as taught by Stewart, in order to be
`able to study a wider range of movement. See Ex. 1010 ¶¶ 102–103.
`
`iii. “interpreting, using a microprocessor included in the portable, self-
`contained movement measuring device, said physical movement data based
`on user-defined operational parameters and a real-time clock”; “storing
`said data in memory;”
`Petitioner asserts, inter alia, that Richardson discloses a
`microprocessor coupled to an accelerometer. Pet. 59–60 (citing, e.g.,
`Ex. 1009, 16:8–20, 28:28–32, Fig. 12). Petitioner further asserts that
`Richardson discloses that the microprocessor stores each acceleration
`sample with a timestamp provided by a real time clock. Pet. 61–62 (citing
`Ex. 1009, 6:21–35, 7:39–52). Petitioner asserts that the user may provide
`personal information and may set the triggering conditions for the alarms.
`Pet. 63–66 (citing, e.g., Ex. 1009, 4:20–27, Table 1).
`On this record, we are persuaded that Petitioner has made an adequate
`showing. In particular, Richardson discloses that a semiconductor
`accelerometer 122 whose output goes through signal conditioner 120, then to
`single-channel A/D converter 118, then to processor subsystem 144
`
`20
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`including an inexpensive microprocessor 123. Ex. 1009, 16:8–14. The
`processor subsystem 144 uses real-time clock 031 for tracking data rates and
`the date and time that the fitness monitor is in use. Id. at 16:18–20.
`Richardson discloses that accelerometer subsystem 25 stores magnitudes of
`acceleration in pedometer storage arrangement 29 as a time series wherein
`each instantaneous moment’s acceleration is associated with a time provided
`by real-time clock 031. Id. at 6:21–33. Richardson further discloses that a
`user can set alarm conditions. Id. at 30:1–23.
`
`iv. “detecting, using the microprocessor, a first user-
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