UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ____________
`GARMIN INTERNATIONAL, INC. AND GARMIN USA, INC.
`Petitioners
`v.
`LOGANTREE, LP
`Patent Owner
`____________
`
`Case No. IPR2018-00564
`Patent No. 6,059,576
`____________
`
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
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`

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`TABLE OF CONTENTS
`I. INTRODUCTION ............................................................................................. 1
`II. ARGUMENT ..................................................................................................... 1
`A. CLAIM CONSTRUCTION ................................................................................. 1
`B. GROUND 1: STEWART IN VIEW OF RUSH RENDERS CLAIMS 20-26, 29, 104-107,
`110, 113-116, 118, 121, 126-128, 134-135 AND 175 OBVIOUS ..................... 3
`1. Stewart teaches “measuring unrestrained movement in any direction” 3
`2. Stewart teaches “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” as required by Claim 20 ............................................. 8
`3. Stewart teaches “storing said data in memory” .................................. 14
`4. Stewart and Rush teach “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” as
`required by Claim 20 ........................................................................... 16
`5. Stewart and Rush teach “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” ............................ 17
`C. GROUND 4: RICHARDSON IN VIEW OF STEWART RENDERS CLAIMS 20 AND 138
`OBVIOUS ..................................................................................................... 18
`1. Richardson teaches “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” as required by Claim 20 ........................................... 18
`2. Richardson teaches “storing said data in memory” ............................ 21
`3. Richardson teaches “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” ................. 22
`4. Richardson teaches “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” .................................... 22
`D. PO’S CONSTITUTIONALITY ARGUMENT SHOULD BE REJECTED .................. 23
`III. CONCLUSION ................................................................................................ 24
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`

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`
`I.
`INTRODUCTION
`Patent Owner’s (“PO”) arguments in the Patent Owner’s Response (Paper 13,
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`“POR”) are largely not supported by any factual basis, and in some instances, they
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`also lack legal foundation. PO ignores the express teachings in the prior art as well
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`as Petitioners’ reliance on specific teachings from the art. Instead, PO’s expert
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`created “high-level simplified” demonstratives, which he admits are not true and
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`accurate depictions of the prior art as they omit key disclosures of the prior art. Then
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`PO relies solely on those demonstratives, not the prior art, to save its claims.
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`Additionally, many of PO’s arguments for patentability run contrary to the
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`disclosures of the ’576 patent, prosecution history and Petitioners’ actual grounds of
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`rejection. When PO’s rhetoric that lacks any factual basis is rubbed away,
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`Petitioners’ arguments for invalidity should be upheld by the Board.
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`II. ARGUMENT
`A. Claim Construction
`Claim 20 recites the limitation “storing . . . first event information related to
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`the detected first user-defined event along with first time stamp information
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`reflecting a time at which the movement data causing the first user-defined event
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`occurred.” EX1001, 19. In the Institution Decision (Paper 9, “Decision”), the Board
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`invited the parties “to brief the meaning of the term ‘reflecting’ during the trial.”
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`Decision, 22. Petitioners believe the “reflecting” term is best understood in the
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`context of claimed phrase “first time stamp information reflecting a time.”
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`1
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`The ’576 patent does not include the words “reflect,” “reflecting,” or the
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`phrase “first time stamp information reflecting a time” in the specification. And this
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`limitation was added during a reexamination proceeding to distinguish over the prior
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`art. Petition (Paper 1, “Pet.”), 6-7. To support amendments to claim 20, PO cited
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`5:59-6:9 of the ’576 patent specification. EX1003, 73. This portion of the
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`specification discloses that after “angle movement information received from the
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`movement sensor 30 indicates that the wearer has exceeded any of the pre-set notice
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`levels . . . the microprocessor 32 will obtain the date/time stamp from the clock 46
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`and store that information along with the notice level that was exceeded into memory
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`50 for later analysis and reporting.” EX1001, 6:1-9.
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`In the reexamination, the prior art was found to teach associating a timestamp
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`with movement data when it is stored in a database. EX1003, 84-85. In response,
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`PO argued, “[the] proposed combination of [Flentov/Vock] and Burdea would
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`reflect the time at which the data captured during the skier’s run down the hill (i.e.,
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`at the end of the session) is updated to a database, not a time at which the
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`movement data causing the end of the run (alleged event) occurred.” Id., 84
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`(emphasis in original). And, “[s]ince the time stamp in the proposed modification
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`reflects the time at which the ski data was downloaded, this could occur shortly after
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`the skier pushes the button or a day or two later.” Id., 85. Based on the specification
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`and file history, it is clear the claimed phrase “first time stamp information reflecting
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`2
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`a time” must indicate a time when the movement data causing the first user-defined
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`event occurred—not just a time when the first event information is stored.
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`B. Ground 1: Stewart in view of Rush Renders Claims 20-26, 29, 104-
`107, 110, 113-116, 118, 121, 126-128, 134-135 and 175 Obvious
`1.
`Stewart teaches “measuring unrestrained movement in any
`direction”1
`Claim 20 recites the steps of “attaching a portable, self-contained movement
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`measuring device to said body part for measuring unrestrained movement in any
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`direction” and “measuring data associated with said physical movement.” EX1001,
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`19. PO alleges “a POSITA would understand that Stewart does not teach or suggest
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`measuring data associated with physical movement because the sensor in Stewart
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`does not measure unrestrained movement of the body part.” POR, 16 (emphasis in
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`original). PO also contends Stewart’s disclosure of “a helmet that includes three sets
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`of three orthogonally-placed accelerometers that can be used to measure uniquely
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`the translational, angular and normal components of acceleration of the head” is not
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`sufficient disclosure of measuring unrestrained movement. Id.
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`PO’s arguments are perplexing given Stewart’s express teachings. Stewart
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`teaches movement sensors comprising at least three to nine accelerometers, and
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` 1
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` Notably, PO does not contend Stewart fails to teach this limitation with respect to Ground
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`4.
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`3
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`Dr. Madisetti admitted accelerometers measure body movement. EX1004, 6:29-35;
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`EX1021, 26:9-12. Stewart’s accelerometers “provide data which corresponds
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`directly to motion of the head in three-dimensional space,” and Dr. Madisetti
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`confirmed that the head is a body part. EX1004, 6:13-16; EX1021, 17:5-7.
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`Stewart’s system “provides the ability to measure an individual’s cumulative
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`exposure to translational and angular accelerations while allowing unaffected
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`performance of everyday sports and activities.” EX1004, 4:40-44. Stewart further
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`explains the device allows “the sports person to wear in the relevant everyday sports
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`activity without hindering, inhibiting or otherwise affecting the ability of the user to
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`perform the sport.” Id., 6:24-28.
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`Despite Stewart’s ample disclosure, PO contends “any such movement
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`measured here is believed to be restrained.” POR, 16 (emphasis added). First,
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`neither PO nor its expert provide any factual basis for its position, who believes this,
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`or why the movement “is believed to be restrained” in Stewart. Id. Neither PO nor
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`Dr. Madisetti explain why Stewart’s accelerometers allegedly measure “restrained”
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`movement instead of “unrestrained” movement. Instead, PO appears to be implicitly
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`applying a narrow interpretation of the term without providing any factual basis for
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`such an interpretation.
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`Nothing in the ’576 patent or the prosecution history supports PO’s narrow
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`interpretation of the claim. The ’576 patent does not include the word “unrestrained”
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`in the specification. As discussed in the Petition, the Applicant added the term
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`4
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`“unrestrained” to the claim to distinguish over prior art cited during the original
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`prosecution of the ’576 patent. Pet., 4. In particular, Applicant added the
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`requirement to distinguish over U.S. Patent No. 5,052,375 to Stark et al. (“Stark”).
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`EX1002, 110. Applicant argued that Stark discloses “an orthopedic restraining
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`device used to immobilize and rehabilitate injured human limbs by providing
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`controlled resistance to movement of the limb” and therefore fails to describe a
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`device used to measure movement “without any restraint to the movement.” Id.
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`(emphasis in original).
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`In contrast to Stark, Stewart’s device is incorporated into a piece of
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`conventional sporting gear (e.g., a helmet) so that it may be worn “in the relevant
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`everyday sports activity without hindering, inhibiting or otherwise affecting the
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`ability of the user to perform the sport.” EX1004, 6:24-28 (emphasis added); see
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`also, Pet., 15-16. Like Stewart, the device described in the ’576 patent is attached
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`to a user performing everyday activities including sports activities. EX1001, 10:62-
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`11:6. Additionally, the ’576 patent device similarly includes one or more
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`accelerometers that measure “movement in multiple planes” exactly like Stewart’s
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`accelerometers. Compare id., 4:42-48 with EX1004, 4:46-59, 6:3-16, 6:21-57. For
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`this reason, Stewart’s monitoring device measures unrestrained movement in any
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`direction in the same manner as the monitoring device described in the ’576 patent.
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`Second, Dr. Madisetti only cites to Stewart’s discussion of accelerometers, his
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`belief Petitioners did not meet their burden, and a demonstrative he created allegedly
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`5
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`characterizing Stewart’s architecture as support for his opinions. EX2001, ¶¶ 45,
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`59. But, Dr. Madisetti’s declaration never addresses the portions of Stewart cited in
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`the Petition. Pet., 15-16. As noted above, Stewart expressly discloses that the
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`invention is utilized without hindering, inhibiting or otherwise affecting the ability
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`of the user to perform the sport. Id., 16 (citing EX1004, 6:24-28). Dr. Madisetti
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`fails to explain why this disclosure is not sufficient or why sportspersons through
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`normal game play would have restrained body movements. When asked about this
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`disclosure in his deposition, Dr. Madisetti agreed that Stewart’s device is
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`“comfortable enough without hindering, inhibiting, or otherwise affecting the ability
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`of the user to perform the sport,” but refused to explain how or if Stewart’s device
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`restrains movement. EX1021, 18:5-20, 20:10-21:13. Since he cannot identify a
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`factual basis for his distinction, Dr. Madisetti’s testimony is entitled to no weight.
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`37 C.F.R. § 42.65(a).
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`Instead, Dr. Madisetti’s opinion seems to be based on the fact that the word
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`“unrestrained” is not present in the reference. Id. However, a prior art reference
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`need not use identical terminology to render a claim invalid. ParkerVision, Inc. v.
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`Qualcomm Inc., 621 Fed. App’x 1009, 1018–19 (Fed. Cir. 2015) (“We have held,
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`however, that the failure of a reference to disclose a claim limitation in the same
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`words used by the patentee is not fatal to a claim of invalidity”); see also In re Bond,
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`910 F.2d 831, 832–33 (Fed. Cir. 1990) (The prior art elements “must be arranged as
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`in the claim under review . . . but this is not an ‘ipsissimis verbis’ test[.]”). And given
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`6
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`the clear and express disclosure of this limitation in Stewart, PO’s argument has no
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`merit.
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`Third, Dr. Madisetti’s demonstratives are not evidence. Kranos Corp. v.
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`Riddell, Inc., IPR2016-01650, Final Written Decision, Paper 27 at 30 (PTAB Feb.
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`21, 2018) (Noting that “[a] labelled drawing with an arrow pointing to unidentified
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`dark spots is attorney argument. It is not persuasive evidence. Without persuasive
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`evidence, we cannot find that [the prior art] discloses the [] limitation of claims 41
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`and 62.”). In his deposition, Dr. Madisetti agreed that his diagram is only a “high-
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`level simplified view of Stewart,” which should not be viewed “as a full disclosure
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`and – of Stewart’s contents and its substitution.” EX1021, 28:20-24. Dr. Madisetti
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`also contends that the diagram “is not meant to be replacing any description of
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`Stewart that otherwise appears in my declaration.” Id., 29:14-16.
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`This is problematic because Dr. Madisetti’s declaration provides no other
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`citations to Stewart on this issue or any explanation why, in his view, Stewart’s
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`device restrains movement. There is simply no factual basis for Dr. Madisetti’s
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`opinions, and they should be rejected. Kranos, Paper 27 at 30; Telebrands Corp. v.
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`Tinnus Enters., LLC, PGR2017-00024, Decision, Paper 15 at 19 (PTAB Nov. 30,
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`2017) (noting that “neither the Petitioner nor Dr. Kamrin explain how the image . . .
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`is an array of holes extending through an end of a housing. On this record, it is
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`unclear at best how the annotated image shows an ‘array,’ [of] tubes extending in
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`7
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`the same direction, or ‘a single line’ as described in the context of the ’779 Patent[,]”
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`and citing to 37 C.F.R. § 42.65(a)).
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`2.
`Stewart teaches “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” as required by Claim 20
`Regarding this limitation, PO cites to Dr. Madisetti’s declaration to support
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`its allegation that “a POSITA would not understand that the processor in Stewart is
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`interpreting measured data.” POR, 17-18 (citing EX2001, ¶¶45, 61). However,
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`these portions of Dr. Madisetti’s declaration are factually flawed. For instance,
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`Dr. Madisetti incorrectly opines “[t]here is also no evidence on the record that
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`claimed step 20c is present since there is no microprocessor disclosed,” and his
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`demonstrative characterizing Stewart’s architecture (Figure A2), which he relies on
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`for his opinions, omits Stewart’s microprocessor:
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`EX2001, ¶ 44.
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`8
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`Conversely, PO admits Stewart discloses a microprocessor and that the user
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`enters commands “to establish certain general parameters regarding the sampling of
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`the accelerometers . . . .” POR, 17-18. However, PO contends Stewart’s
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`microprocessor “is not interpreting the measured data based on the commands
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`because the processor is merely controlling storage of the measured data.” Id., 18.
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`As shown in the Petition, Stewart teaches a processor 52 that “comprises any
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`conventional processor device, including a microcontroller or a microprocessor, and
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`controls the operation of the HAT system.” EX1004, 8:58-62; Pet., 18. The
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`processor 52 receives physical movement data from accelerometers (10,11,12) via
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`A/D converter 46:
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`9
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`EX1004, Fig. 1 (emphasis added).
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`Contrary to PO’s argument, Stewart’s processor does more than control
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`storage of measured data. Once Stewart’s microprocessor obtains movement data
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`from the accelerometers, it interprets the data to determine the “precise motions of
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`the head.” EX1004, 5:2-3. For example, “[t]he data is recorded in real-time, but may
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`be processed in either real-time as the data is recorded . . . so as to integrate and
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`otherwise determine the translational, angular and normal components of
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`acceleration of the sportperson’s head.” EX1004, 5:7-11 (emphasis added); Pet.,
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`20. It can also “record in real-time detailed data only when the accelerations exceed
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`a defined threshold” and correlate “certain responses of the accelerometers 10-12
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`with desirable punches exceeding a predetermined threshold.” EX1004, 5:5-7, 14:6-
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`11; Pet., 20-21. Thus, Stewart’s processer interprets the data by integrating it and/or
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`comparing it to predetermined thresholds. Pet., 21.
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`And, Stewart’s processor interprets the movement data based on user-defined
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`commands, which are user-defined operational parameters that may “be entered
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`locally, such as through a keypad mounted on the helmet, an electronic key, or other
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`means to establish certain general parameters regarding the sampling of the
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`accelerometers, e.g. when to start, the sampling rate, and when to stop.” Id., 11:51-
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`63; see also, id., 12:35-37; 12:43-33; Pet., 18. For example, the user can set time
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`intervals between rounds, set a start time or it can reset the data collection channels
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`to receive the accelerometers data. Id., 12:10-59. As explained in the Petition,
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`10
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`“because Stewart discloses a processor that allows the user to set the present time
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`and starts/stops data collection at specific times, a PHOSITA would expect and
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`understand that the processor necessarily includes a RTC.” Pet., 20. For these
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`reasons, Stewart’s processor interprets the movement data (e.g., integrates it in real-
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`time/compares it to predetermined thresholds) based on the user-defined commands
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`that are used with the RTC to govern when to start/stop processing the data, the rate
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`at which the accelerometer data is sampled, etc.
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`Like Stewart, the ’576 patent also discloses “a microprocessor 32 which
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`receives the signals generated by the movement sensor 30 for analysis and
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`subsequent processing.” EX1001, 4:52-55. The microprocessor also receives user-
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`programmed operation parameters including threshold information used by the
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`microprocessor to detect and record events such as whether “any movement which
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`surpasses any identified angle limit of movement,” “when the wearer’s speed of
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`movement exceeds a predefined speed (quickness function),” or “when the device
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`has measured a predetermined maximum number of particular angle limits reached.”
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`Id., 6:22-40. The user may also enter “a time period for entering idle mode.” Id.,
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`5:59-66. Therefore, both Stewart and the ’576 patent disclose a similar processor
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`that utilizes predefined thresholds to trigger storage of information and control
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`timing of storage of information.
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`Here, both Petitioners and PO seemingly agree that the plain and ordinary
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`understanding of the “interpreting, using a microprocessor” limitation applies. And,
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`when read in light of the specification, it is clear the claim must encompass, for
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`example, an event threshold or specific timing triggering data storage. Id., 4:63-66;
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`5:62-66. Therefore, Stewart must be within the scope of this limitation.
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`PO provides no factual basis for its distinction between Stewart’s disclosure
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`and claim 20. For example, Dr. Madisetti claims that he considered all of the
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`portions of Stewart cited in the Petition including 5:4-11 and 14:6-11 (EX2001, ¶45)
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`but, failed to explain why Stewart’s disclosure of integrating the movement data
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`and/or comparing it to predefined thresholds based on the time-based, user-defined
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`commands does not satisfy the claim limitation.
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`Instead, Dr. Madisetti’s only support for his opinion that “the processor in
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`Stewart is not interpreting the measured data based on the commands because the
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`processor is merely controlling the storage of the measured data” (EX2001, ¶63) is
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`his edited demonstrative of Stewart, which is not evidence (Kranos, Paper 27 at 30
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`(PTAB Feb. 21, 2018)), and a single citation from Stewart which states, the
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`“processor controls the storage of data from an A/D Converter to a data storage.”
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`EX2001, ¶63 (citing EX1004, 8:58-59). However, the fact that Stewart’s processor
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`controls storage of the movement data it receives from the A/D converter does not
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`negate the fact that it also interprets the data by integrating it and/or comparing it
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`with predefined thresholds as discussed above. A prior patent must be considered
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`in its entirety, i.e., as a whole. Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561,
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`12
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`1568 (Fed. Cir. 1987). And PO cannot preserve the validity of its claim by ignoring
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`cited disclosures of Stewart.
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`PO’s position regarding Stewart’s inherent disclosure of the RTC element is
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`confusing at best. Dr. Madisetti includes an RTC in his Figure A2 characterizing
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`Stewart. EX2001, ¶44. However, PO contends that a PHOSITA would understand
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`that “any inherent real-time clock (assuming, arguendo, a real-time clock would be
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`inherent, which LoganTree does not concede is correct) would be directly coupled
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`to the sensor.” POR, 19. Apart from citing to Dr. Madisetti’s conclusory testimony,
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`PO does not provide any factual basis for this position or explain why it matters with
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`respect to the claim limitation. Id.
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`As discussed above, Petitioners have provided evidence showing a PHOSITA
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`would recognize that Stewart’s disclosure of the time-based commands, such as the
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`user programming the processor would start and stop data collection at specific
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`times, inherently discloses a real-time clock. Pet., 19; EX1010, ¶54. Neither PO
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`nor Dr. Madisetti provided any factual basis for disputing inherency. POR, 19
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`(citing EX2001, ¶45, ¶65). Additionally, neither PO nor Dr. Madisetti rebutted
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`Petitioners’ alternative argument that it would have been obvious to a PHOSITA to
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`include an RTC in Stewart. Pet., 21; EX1010, ¶¶55, 58. Therefore, this point is
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`undisputed.
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`PO’s arguments regarding Rush’s lack of disclosure for the “interpreting,
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`using a microprocessor included in the portable, self-contained movement
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`13
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`measuring device, said physical movement data based on user-defined operational
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`parameters and a real-time clock” limitation (POR, 19-22) are wholly irrelevant as
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`Petitioners relied on Stewart – not Rush – for this limitation. Pet., 18-21.
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`Finally, PO attempts to discredit Dr. Singer by alleging that he “appeared to
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`not understand what the clamed [sic] limitation ‘interpreting, using a microprocessor
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`. . .’ meant. POR, 21 (citing EX2002, 6:2-9:2). Contrary to PO’s argument,
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`Dr. Singer confirmed he understood the limitation. EX2002, 6:2-22. In the portion
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`of the transcript cited by PO, it is clear Dr. Singer was referring to the fact that he
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`has not offered a claim construction for this limitation and was not comfortable
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`doing so on the fly. Id., 8:17-9:2. In fact, Dr. Madisetti similarly opined that he did
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`not offer a construction of the “interpreting” limitation because “interpreting means
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`interpreting to one of ordinary skill in the art, and it’s pretty clear that way.”
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`EX1021, 36:22-38:17. The Board should disregard PO’s unfair attempts to discredit
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`Dr. Singer’s testimony.
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`3.
`Stewart teaches “storing said data in memory”
`Claim 20 requires “storing said data in memory” and “storing, in said memory,
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`first event information related to the detected first user-defined event along with first
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`time stamp information . . .” PO cites to one page of the Petition to support its
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`allegation that “Garmin does not provide evidence in either its Petition or
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`Dr. Singer’s Declaration of two storing steps.” POR, 22 (citing Pet., 22). Review
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`of the Petition shows that PO’s argument is plainly false. Pages 21-22 of the Petition
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`14
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`describe how Stewart meets the first storing limitation, and pages 24-26 describe
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`how the second storing limitation would have been obvious over Stewart and Rush.
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`Pet., 21-22, 24-26.
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`PO and Dr. Madisetti also allege “a POSITA would understand based on the
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`disclosure of Stewart, that Stewart provides for only instance of storing.” POR, 22
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`(citing EX2001, ¶70). Again, this does not address Petitioners’ actual ground of
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`rejection which relies on Stewart’s data storage 51 which is used to record data from
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`the accelerometers for the “storing said data in memory” limitation (Pet., 21-22) and
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`Stewart’s disclosure of storing “detailed data only when the accelerations exceed a
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`defined threshold” in combination with Rush’s disclosure of storing “the time and
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`date of each instance in which the potentially injurious activity occurs” to meet the
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`“storing, in said memory, first event information related to the detected first user-
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`defined event along with first time stamp information . . .” limitation (Pet., 24-25).
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`To the extent PO and Dr. Madisetti are alleging “two instances of storage”
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`require two separate memories, Petitioners disagree because claim 20 follows the
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`common claiming practice that means including “said memory” refers to the
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`previously claimed memory. TransPerfect Global, Inc. v. Matal, 703 Fed. App’x
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`953, 957 (Fed. Cir. July 12, 2017) (holding that the use of the term “said” in the
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`claims indicates that the “said hyperlink” limitation refers to the previously claimed
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`“one or more hyperlinks to further electronic communications” limitation”) (citing
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`Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1343 (Fed. Cir. 2008)
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`15
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`(noting that the claim term “said” is an “anaphoric phrase[ ], referring to the initial
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`antecedent phrase”)).
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`4.
`Stewart and Rush teach “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” as
`required by Claim 20
`Regarding this limitation, PO again ignores Stewart’s express disclosures
`
`regarding the microprocessor by alleging that “a POSITA would understand that any
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`detection, if any, is being performed at the sensor.” POR, 23. Again, it is Stewart’s
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`microprocessor – not the accelerometers – that “controls the operation of the HAT
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`system.” EX1004, 8:58-62; Supra, Section II.B.2.
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`As explained in the Petition, Stewart’s processor detects a user-defined event,
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`such as a desirable punch in boxing or an illegal spearing move in football, by
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`determining whether the movement data exceeds a predetermined threshold. Pet.,
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`22-23 (citing EX1004, 5:4-7, 14:6-11). Since Stewart does not expressly disclose
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`that the user defines the disclosed thresholds, Petitioners combined Stewart with
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`Rush, simply to support the proposition that “it would have been obvious to a
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`PHOSITA to enable the user to adjust Stewart’s acceleration thresholds” based on
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`Rush’s teaching of adjusting a sensor used to detect spearing movements in football
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`“so that the magnitude of the axial impact experienced may be varied to
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`accommodate players of different ages and sizes and to minimize the accidental
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`actuation of the signal.” Id. (citing EX1006, 9:54-58, EX1010, ¶¶61-62).
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`
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`16
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`In response, PO contends that Rush teaches “a mechanical adjustment of the
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`accelerometer” and “[a] POSITA would therefore recognize that a combination of
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`Stewart and Rush would merely result in Stewart’s accelerometers being adjustable.”
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`POR, 25. PO’s argument presumes the proposed combination would require bodily
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`incorporation of Rush’s sensor in Stewart’s system. Bodily incorporation is not the
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`standard for obviousness analysis. In re Mouttet, 686 F.3 d 1322, 1332–33 (Fed.
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`Cir. 2012); MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d 1284, 1294 (Fed.
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`Cir. 2015) (“[t]he test for obviousness is not whether the features of a secondary
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`reference may be bodily incorporated into the structure of the primary reference”
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`(citation omitted)). As set forth in the Petition, it would have been obvious to enable
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`the user to define the Stewart’s acceleration thresholds in order to accommodate
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`different players as taught by Rush. Pet., 23-24 (citing EX1010, ¶62). “Since
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`Stewart’s data collection operations performed by the processor are based on user-
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`defined commands, it would have been obvious to enable the user to enter commands
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`defining and/or adjusting the acceleration thresholds.” Id., 24 (citing EX1010, ¶62).
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`5.
`Stewart and Rush teach “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”
`PO contends that the combination of Stewart and Rush do not teach this
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`limitation because neither “teaches storing time-stamped movement data.” POR, 26.
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`Again, PO misapprehends the combination with Stewart and Rush.
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`
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`17
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`

`

`
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`The Petition relies on Rush’s teaching of associating a timestamp with the
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`recorded data at the time the user-defined event occurred and not Rush’s teaching of
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`movement data. Pet., 25-26. Specifically, Rush teaches a “recording means may
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`record the time and date of each instance in which the potentially injurious activity
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`occurs.” Pet., 25; EX1006, 9:48-54. For the reasons stated in the Petition, “[i]t
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`would have been obvious to a PHOSITA to similarly enable Stewart’s processor to
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`store time and date information reflecting a time at which the acceleration data
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`exceeded the user-defined threshold” based on Rush’s teachings. Pet., 25-26 (citing
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`EX1010, ¶¶65-68). Therefore, PO’s argument that Rush does not “store time-
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`stamped movement data” is irrelevant to the ground of rejection. POR, 27.
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`C. Ground 4: Richardson in view of Stewart Renders Claims 20 and
`138 Obvious
`1.
`teaches “interpreting, using a microprocessor
`Richardson
`included in the portable, self-contained movement measuring device,
`said physical movement data based on user-defined operational
`parameters and a real-time clock” as required by Claim 20
`Richardson plainly discloses this limitation. It is undisputed that Richardson
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`teaches a microprocessor 123 and RTC 031. Pet., 59-60; POR, 29. Instead, PO
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`contends that Richardson’s RTC “is used to provide a duration of activity, not for
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`basing interpretation of movement data by the microprocessor.” POR, 30-31. PO’s
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`argument is directly contrary to Richardson’s express disclosure:
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`Real-time clock 031 is used in the preferred embodiment of
`pedometer 015 for three purposes. First, it is used to segment
`the output of the accelerometer into a time series of data points
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`
`
`18
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`

`

`
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`representing the output of the accelerometer. That is, the clock
`is used to ascribe a timing to each measurement of magnitude
`of acceleration made by accelerometer subsystem 025. Each of
`the resulting time-and-acceleration pairs of numbers is in
`turn used by step parameter assignment module 027. Second,
`real-time clock 031 is used to translate the speeds of
`successive steps into a distance traveled. This is done by
`employing the relationship of distance equals speed times
`duration. Third, real-time clock 031 is used to measure the
`elapsed time of an exercise session.
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`EX1009, 7:39-52 (emphasis added); see also, Pet., 62-63.
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`As shown in the Petition, Richardson is replete with examples of the
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`microprocessor interpreting the acceleration data based on user-defined operational
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`parameters and the RTC. Pet., 60-66. Richardson’s microprocessor receives
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`physical movement data from an accelerometer system while executing a “monitor
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`sensors process.” Pet. 60-61; EX1009, 16:8-20, 28:28-64, Figs. 9, 12. This process
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`uses acceleration samples to “compute at each sample