Trials@uspto.gov
` 571-282-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`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
`
`PATENT OWNER’S RESPONSE UNDER 37 C.F.R. § 42.120
`
`
` 571-282-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`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
`
`PATENT OWNER’S RESPONSE UNDER 37 C.F.R. § 42.120
`
`
`
`
`
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`
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ................................................................................................. 1
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`A. Summary of the ‘576 Patent .............................................................................. 1
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`B. Summary of the Cited Prior Art ......................................................................... 5
`
`1. Stewart (EX1004) .......................................................................................... 5
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`2. Rush (EX1006) ............................................................................................... 7
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`3. Richardson (EX1009)……………………………………………………...10
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`C. Level of Person of Ordinary Skill in the Art (“POSITA”)……………...……12
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`II. CLAIM CONSTRUCTION………………………………………………....…..13
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`A. Garmin’s Misinterpretation of the “Interpreting” Limitation………………...13
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`B. Garmin Erroneously Uses Broadest Reasonable Interpretation of Claims…...14
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`III. GROUND 1: STEWART IN VIEW OF RUSH DOES NOT RENDER CLAIMS
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`20-26, 29, 104-107, 110, 113-116, 118, 121, 126-128, 134-135, AND 175
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`OBVIOUS. ................................................................................................................... 14
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`A. Ground 1, Claim 20: The Cited Prior Art Does Not Teach the Claimed
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`“measuring data associated with said physical movement”…………………….. .15
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`B. Ground 1, Claim 20: The Cited Prior Art Does Not Teach the Claimed
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`“interpreting, using a microprocessor included in the portable, self-contained
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`movement measuring device, said physical movement data based on user-defined
`
`ii
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`
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`operational parameters and a real-time clock” ........................................................ 16
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`C. Ground 1, Claim 20: The Cited Prior Art Does Not Teach the Claimed
`
`“storing said data in memory” ................................................................................. 22
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`D. Ground 1, Claim 20: The Cited Prior Art Does Not Teach the Claimed
`
`“detecting, using the microprocessor, a first user-defined event based on the
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`movement data and at least one of the user-defined operational parameters
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`regarding the movement data”…………………………………………….……. 22
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`E. Ground 1, Claim 20: The Cited Prior Art Does Not Teach the Claimed
`
`“storing, in said memory, first event information related to the detected first event
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`along with first time stamp information reflecting a time at which the movement
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`data causing the first user-defined event occurred”………………………………25
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`IV. GROUND 4: RICHARDSON IN VIEW OF STEWART DOES NOT RENDER
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`CLAIMS 20 AND 138 OBVIOUS. ............................................................................. 27
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`A. Ground 4, Claim 20: The Cited Prior Art Does Not Teach the Claimed
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`“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” ........................................................ 28
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`B. Ground 4, Claim 20: The Cited Prior Art Does Not Teach the Claimed
`
`“storing said data in memory” ................................................................................. 33
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`C. Ground 4, Claim 20: The Cited Prior Art Does Not Teach the Claimed
`iii
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`
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`“detecting, using the microprocessor, a first user-defined event based on the
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`movement data and at least one of the user-defined operational parameters
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`regarding the movement data”…………………………………………….……. 33
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`D. Ground 4, Claim 20: The Cited Prior Art Does Not Teach the Claimed
`
`“storing, in said memory, first event information related to the detected first event
`
`along with first time stamp information reflecting a time at which the movement
`
`data causing the first user-defined event occurred”………………………………34
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`V. Patent Owner Does Not Consent to the PTAB Adjudicating the Patentability or
`
`Validity of the Challenged Claims of the ‘576 Patent………………………….37
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`VI. CONCLUSION .................................................................................................... 38
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`iv
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`APPENDIX OF EXHIBITS
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`Exhibit 2001 (EX2001) - Declaration of Vijay K. Madisetti, PH.D
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`Exhibit 2002 (EX2002) - Transcript of Deposition of Dr. Andrew C. Singer and
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`Appendix 1
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`
`
`v
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`
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`Pursuant to 37 C.F.R § 42.120, Patent Owner, LoganTree, LP
`
`(“LoganTree”) submits the following Response for Inter Partes Review instituted
`
`against U.S. Patent No. 6,059,576 (“the ’576 patent”). Because, as set forth below,
`
`Petitioner, Garmin International, Inc. and Garmin USA, Inc. (“Garmin”) has not
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`met its burden of proof, and because LoganTree presents the Board with facts that
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`demonstrate the patentability of the challenged claims, the claims must be
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`confirmed.
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`I.
`
`INTRODUCTION
`
`A.
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`Summary of the ’576 Patent
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`The ‘576 patent is broadly directed to a portable, self-contained device for
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`monitoring movement of body parts during physical activity. EX1001, 2:6-9. The
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`device includes a movement sensor for measuring data associated with
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`unrestrained movement in any direction and generating signals indicative of the
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`movement. Id. at 4:37-48. The movement sensor is electronically connected to a
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`microprocessor which receives the signals generated by the movement sensor for
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`analysis and subsequent processing. Id. at 4:52-55. The microprocessor is
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`connected to a real-time clock to provide date and time information to the
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`microprocessor. Id. at 5:35-37. In the ‘576 patent, user-programmable
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`configuration information can be entered by a user, and the user-programmed
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`operational parameters are uploaded to the microprocessor for use by the
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`1
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`microprocessor. Id. at 5:59-6:9, 7:6-11.
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`Using the microprocessor, the ‘576 patent interprets the physical movement
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`data measured by the sensor using the user-programmed operational parameters
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`and the real-time clock. Id. at 5:40-47. The ‘576 patent stores the physical
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`movement data in a memory. Id. at 5:57-59. The microprocessor detects a user-
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`defined event using the physical movement data and the user-programmed
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`operational parameters. Id. at 40-47. The microprocessor also stores first event
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`information related to the detected first user-defined event along with first time
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`stamp information reflecting a time at which the movement data causing the first
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`user-defined event occurred. Id.
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`Figure 4 of the ‘576 patent represents a high-level block diagram of
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`components of the device.
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`2
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`
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`Independent claim 20 recites (with annotations):
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`Claim 20: A method to monitor physical movement of a body part
`comprising the steps of:
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`(20a): attaching a portable, self-contained movement measuring device to
`said body part for measuring unrestrained movement in any direction;
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`(20b): measuring data associated with said physical movement;
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`(20c): 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;
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`(20d): storing said data in memory;
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`(20e): 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
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`(20f): 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.
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`
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`In providing expert testimony for LoganTree, Dr. Madisetti created a version of
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`Figure 4 of the ‘576 Patent (Figure A1) in a manner that is useful in interpreting the
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`claims and the prior art of record by a person of ordinary skill in the art (“POSITA”).
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`EX2001, ¶ 38 and Figure A1. This figure is reproduced below:
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`3
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`Figure A1
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`
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`As illustrated in Figure A1, the claimed steps 20a and 20b require that the
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`sensor 30 measure data associated with unrestrained movement of the body part.
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`EX2001, ¶ 39. This data is represented by A, B, C, and D, shown in Figure A1.
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`As is further illustrated, the claimed step 20c requires that a microprocessor
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`32 interpret this measured data. Id. at ¶ 40. This interpretation is performed by the
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`microprocessor 32 based on user 34 defined operational parameters and the real-
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`time clock (RTC) 46. Id. The RTC provides the time stamps as shown in Figure
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`A1, corresponding to the data A, B, C and D, respectively. The time stamp TS_A
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`corresponds to data A, for example.
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`As shown in Figure A1, the claimed step 20d requires that the data (that is
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`measured in step 20b) is stored in memory 50. Id. at ¶ 41.
`4
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`From Figure A1, it is clear that step 20e requires detecting an event by the
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`microprocessor 32 (not by the sensor 30) in the measured data from the
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`interpretation step, the detection being based on at least one of the user-defined
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`operational parameters and the real-time clock. Id. at ¶ 42. For the purposes of the
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`example of Figure A1, this event is referred to as that corresponding to data A
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`(interpreted as being associated with time stamp TS_A). Id. The data values B, C,
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`and D and their associated time stamps do not generate (at the microprocessor) a
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`detected event, in this example. Id. The event corresponding to A is denoted by a
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`diamond shape in red along with its associated time stamp TS_A in memory 50.
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`Id.
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`As further shown in Figure A1, the claimed step 20f requires that this event
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`and associated time stamp TS_A be also stored in memory 50, as shown in the
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`example of Figure A1. Id. at ¶ 43.
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`B.
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`Summary of the Cited Prior Art
`
`1.
`
`Stewart (EX1004)
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`U.S. Patent No. 5,978,972 to Stewart et al. (“Stewart”) is directed to a Head
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`Acceleration-monitoring Technology (HAT) which is a portable system designed
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`to measure and record acceleration data in real time in both translational and
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`angular directions of an individual’s head during normal activity. EX1004, 4:28-
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`31. The HAT includes at least three orthogonally-placed accelerometers and
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`5
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`means to record the output therefrom in real time. Id. at 4:46-47. The data from
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`the accelerometers are recorded in real time during performance of the sport. Id. at
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`4:60-61. The HAT provides real-time storage of data over a length of time such
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`that cumulative exposure effects and thus limits can be established for further or
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`future participation in the sport by the individual wearing the helmet equipped with
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`the HAT. Id. at 4:65-67-5:1-2. The data also allows detection of the precise
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`motions of the head which precede the occurrence of a severe head injury. Id. at
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`5:2-4. For this purpose the HAT could be modified to record in real-time detailed
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`data only when the accelerations exceed a defined threshold. Id. at 5:4-7.
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`Storage of data from the outputs of the accelerometers is started and stopped
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`by a processor via commands transmitted through a serial control interface. Id. at
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`11:29-32. The operating software of the processor monitors the serial control
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`interface for the presence of commands. Id. at 11:51-52. These commands set the
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`general parameters of the data storage operation of the HAT. Id. at 11:53-54.
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`Any suitable communications means, wired or wireless, may be
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`implemented so as to provide commands to the processor from an external source.
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`Id. at 11:54-58. The commands may alternatively or additionally be entered
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`locally, such as through a keypad mounted on the helmet, an electronic key, or
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`other 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. at
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`6
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`11:58-63.
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`Based on his review of the Stewart reference, Dr. Madisetti provided Figure
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`A2 shown below. EX2001, Figure A2. The system of Stewart, based on the
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`evidence in record, at best, discloses an architecture that is represented by Figure
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`A2. Id. at ¶¶ 44 and 45.
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`Figure A2
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`2.
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`Rush (EX1006)
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`
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`U.S. Patent No. 5,546,609 to Rush, III (“Rush”) is directed to a helmet
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`assembly for providing an indication when a predetermined axial compressive
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`force tending to cause serious injury to the wearer is applied thereto. EX1006,
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`Abstract. The helmet assembly, in one embodiment, includes an inflatable ring
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`module which has a channel-like shell. Id. at 5:51-57. Within the shell is packed
`7
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`
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`in a folded configuration an inflatable bag. Id. at 5:63-65. To inflate the bag, there
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`is provided a package containing a conventional battery, igniter and gas generator.
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`Id. at 6:5-8.
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`To operate the igniter and almost instantaneously inflate the bag, there is
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`provided an impact-operated switch located in a webbing in a crown of the helmet
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`and connected to the battery and igniter by circuit wires. Id. at 6:13-17. The
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`switch preferably is in the form of an accelerometer that is adjustable to calibrate
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`the amount of impact force on the crown area necessary to close the switch and
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`thus trigger the firing mechanism, i.e., the igniter, to fully inflate the bag in about
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`25 or so milliseconds. Id. at 6:17-22.
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`In another embodiment, the switch or sensor is provided externally to the
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`helmet. Id. at 9:14-16. The sensor in this embodiment is substantially the same as
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`the above-described switch, and is preferably in the form of an accelerometer that
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`is adjustable to calibrate the amount of impact force on the crown area. Id. at 9:17-
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`19.
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`In yet another embodiment, the helmet has a sensor embedded in the same
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`manner as the above-described sensor. Id. at 9:40-42. In this embodiment, a signal
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`device which may be audible but may also or in the alternative provide a visual
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`signal is installed in the helmet. Id. at 9:42-45. A small battery is provided to
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`power the signal device. Id. at 9:45-46. In use, the sensor, when activated by an
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`8
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`axial load caused, for example, by a spearing movement of the wearer, will
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`function to close a circuit between the battery and the signal device to produce the
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`audible and/or visual signal so that the supervisor or coach will be alerted to the
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`spearing action of the wearer and thus be able to caution the individual against
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`such action. Id. at 9:48-54. The sensor is preferably adjustable so that the
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`magnitude of the axial impact experienced may be varied to accommodate players
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`of different ages and sizes and to minimize the accidental actuation of the signal.
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`Id. at 9:54-58.
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`Rush further describes a recording means which is cooperable with a
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`receiving means disposed remotely from the helmet and is preferably a held
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`device, which can be carried by a remote observer, to record instances in which the
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`potentially injurious activity has taken place. Id. at 9:67-10:5, 10:20-23. The
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`recording means may record the time and date of each instance in which the
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`potentially injurious activity occurs. Id. at 10:26-28.
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`Based on his review of the additional alleged prior art reference, Rush, Dr.
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`Madisetti provided Figure A3 shown below. EX2001, Figure A3. Based on the
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`evidence in the record, the disclosure of Rush, (even when viewed in the light most
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`favorable to Garmin), at best is represented by Figure A3. Id. at ¶¶ 47 and 48.
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`9
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`Figure A3
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`3.
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`Richardson (EX1009)
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`U.S. Patent No. 5,976,083 to Richardson et al. (“Richardson”) is generally
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`directed to a personal fitness monitoring device and a method for accessing the
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`fitness of an individual as the individual exercises that includes using a pedometer
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`to determine and output data representing the locomotion of the individual.
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`EX1009, Abstract. In particular, Richardson describes storing magnitudes of
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`acceleration as a time series wherein each instantaneous moment’s acceleration is
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`associated with a time provided by a real-time clock. Id. at 6:28-32. Having calculated
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`a step’s gait, duration, and speed, these items, along with the times of the step’s starting
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`footfall, and the heart rate at the last heart beat detected before the end of the step, are
`10
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`placed in a step queue as the step statistics for the step. Id. at 29:48-53.
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`The locomotor steps are analyzed and energy expenditure is tracked using
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`personal data including user’s body weight, body height, leg length, age in years,
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`and sex. Id. at, 19:28-42. The user may request that reporting preferences or alarm
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`parameters be changed, or that the system let him/her change personal data, such as
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`weight or age. Id. at 17:48-51. Alarm conditions are monitored and any triggering
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`conditions are reported whenever the user has already requested that a particular
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`alarm be set. Id. at 30:12-15. A cruise control alarm trigger is reported whenever
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`the user's locomotor speed goes consistently into or consistently out of a chosen
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`speed band. Id. at 30:12-23.
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`Based on his review of the alleged prior art reference, Richardson, Dr.
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`Madisetti provided Figure A4 shown below. EX2001, Figure A4. Based on the
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`evidence in the record, the disclosure of Richardson, (even when viewed in the
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`light most favorable to Garmin), at best is represented by Figure A4. Id. at ¶¶ 49
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`and 50.
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`11
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`Figure A4
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`C.
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`Level of a Person of Ordinary Skill in the Art (“POSITA”)
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`LoganTree submits that a POSITA, as of the filing date of November 21,
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`1997 of the ‘576 Patent, would have had a bachelor’s degree in electrical
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`engineering or computer engineering or equivalent, and two years of experience in
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`embedded signal processing and/or systems, or equivalent. EX2001, ¶54.
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`Additional industry experience or technical training may offset less formal
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`education, while advanced degrees or additional formal education may offset lesser
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`levels of industry experience.
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`Dr. Madisetti possessed and exceeded such experience and knowledge
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`before and at the date of the claimed invention and is qualified to opine on the ’576
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`Patent and the alleged prior art references. Id.
`12
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`
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`II. CLAIM CONSTRUCTION
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`The ‘576 patent expired on November 21, 2017, and its claims therefore
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`should be construed as they would be in a district court pursuant to Phillips v.
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`AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005). See In re Rambus Inc., 694 F.3d 42,
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`46 (Fed. Cir. 2012). The claim terms should be given their “ordinary and
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`customary meaning” as understood by a person of ordinary skill in the art in
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`question at the time of the invention. See Phillips, 415 F.3d at 1312-13.
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`A. Garmin’s misinterpretation of “interpreting” limitation
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`Garmin’s arguments and reliance on Stewart in the Petition illustrate that
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`Garmin has misinterpreted the claim limitation 20c. As discussed above, the
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`claimed steps 20a and 20b require that the sensor measure data associated with
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`unrestrained movement of the body part. The claimed step 20c requires that a
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`microprocessor interpret this measured data. This interpretation is performed by
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`the microprocessor based on user defined operational parameters and the real-time
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`clock (RTC).
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`Garmin asserts that “Stewart’s processor interprets the accelerometer data
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`based on the user-defined time commands and the RTC.” Pet. 20. In making such
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`an assertion, it appears that Garmin has erroneously interpreted the claim limitation
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`20c as a collecting limitation performed by the sensor because the user-defined
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`commands and the real-time clock are for controlling the sensor when to collect
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`13
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`data. EX2001, ¶ 57.
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`Garmin asserts that “[t]he processor may also interpret the accelerometer
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`data by comparing it to a predetermined threshold.” Pet. 20. Again, this assertion
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`makes it apparent that Garmin has erroneously interpreted the claim limitation 20c
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`as a collecting limitation performed by the sensor because the portion of Stewart
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`relied upon is directed to controlling the sensor when to collect data. See EX1004,
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`14:6-11; EX2001, ¶ 58.
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`B. Garmin Erroneously Uses Broadest Reasonable Interpretation of
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`Claims
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`In its assertion of Ground 4, Garmin appears to rely on the broadest
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`reasonable interpretation of the claims. In particular, Garmin asserts that “to the
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`extent it is determined that the timestamp limitation is broad enough to cover
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`storing time information about an activity during which a first user-defined event
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`occurred and is not limited to storing information reflecting the time at which the
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`first user-defined event occurred during the activity, then Richardson renders such
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`an interpretation obvious.” Pet. 53. In making such an assertion, Garmin appears
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`to be using the incorrect broadest reasonable interpretation standard.
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`III. GROUND 1: STEWART IN VIEW OF RUSH DOES NOT RENDER
`CLAIMS 20-26, 29, 104-107, 110, 113-116, 118, 121, 126-128, 134-
`135, AND 175 OBVIOUS
`
`The proposed combination of references fails to render obvious, at the least,
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`14
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`
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`claims 20-26, 29, 104-107, 110, 113-116, 118, 121, 126-128, 134-135, and 175.
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`Regarding the independent claim (claim 20), the cited art, and specifically Stewart,
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`does not teach the claimed “measuring data associated with said physical
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`movement,” does not teach the claimed “interpreting, using a microprocessor
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`included in the portable, self-contained movement measuring device, said physical
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`movement data based on user-defined operational parameters and a real-time
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`clock,” and does not teach the claimed “storing said data in memory.” The
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`combination also does not render obvious the claimed “detecting, using the
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`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
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`does not render obvious the claimed “storing, in said memory, first event
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`information related to the detected first user-defined event along with first time
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`stamp information reflecting a time at which the movement data causing the first
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`user-defined event occurred.”
`
`A. Ground 1, Claim 20: The Cited Prior Art Does Not Teach the
`Claimed “measuring data associated with said physical
`movement”
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`Independent claim 20 recites “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”. Garmin
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`fails to cite art that teaches measuring data associated with unrestrained movement
`
`15
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`in any direction, as claimed. Garmin cites to Stewart for teaching this claimed
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`feature. Pet. 15-17.
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`LoganTree submits that a POSITA would understand that Stewart does not
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`teach or suggest measuring data associated with physical movement because the
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`sensor in Stewart does not measure unrestrained movement of the body part.
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`EX2001, ¶¶ 45 and 59. In particular, Stewart merely provides for a helmet that
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`includes three sets of three orthogonally-placed accelerometers that can be used to
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`measure uniquely the translational, angular and normal components of acceleration
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`of the head. EX1004, 4:46-54. Any such movement measured here is believed to
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`be restrained. Garmin is not believed to have provided evidence in its petition or in
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`Dr. Singer’s declaration of Stewart measuring unrestrained movement. Per Dr.
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`Madisetti, a POSITA would understand that such disclosure of Stewart does not
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`provide for measuring data associated with unrestrained movement in any
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`direction. EX2001, ¶ 45 and 59.
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`Based on at least the foregoing, LoganTree submits that Stewart does not
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`teach or suggest measuring data associated with unrestrained movement in any
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`direction, as provided for in the Challenged Claims.
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`B. Ground 1, Claim 20: The Cited Prior Art Does Not Teach the
`Claimed “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”
`
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`16
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`Independent claim 20 recites interpreting, using a microprocessor included
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`in the portable, self-contained movement measuring device, the physical
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`movement data based on user-defined operational parameters and a real-time
`
`clock. Garmin fails to cite art that teaches a microprocessor interpreting the
`
`measured physical movement data based on user-defined operational parameters
`
`and a real-time clock. Garmin cites to Stewart for teaching this claimed feature.
`
`Pet. 18-21.
`
`The ‘576 Patent describes that the microprocessor is connected to a real-time
`
`clock to provide date and time information to the microprocessor. EX1001, 5:35-
`
`37. In the ‘576 patent, user-programmable configuration information can be
`
`entered by a user, and the user-programmed operational parameters are uploaded to
`
`the microprocessor for use by the microprocessor. Id. at 5:59-6:9, 7:6-11. Using
`
`the microprocessor, the ‘576 patent interprets the physical movement data
`
`measured by the sensor using the user-programmed operational parameters and the
`
`real-time clock. Id. at 5:40-47.
`
`In its Petition, Garmin argues that Stewart discloses using a microprocessor,
`
`as recited in claim 20, because “Stewart’s device includes a processor that
`
`‘comprises any conventional processor device, including a microcontroller or a
`
`microprocessor, and controls the operation of the HAT system.’” Pet. 18; EX1004,
`
`8:58-62. However, while Stewart may disclose a processor, a POSITA would not
`
`
`
`17
`
`
`
`understand that the processor in Stewart is interpreting measured data as required
`
`by the Challenged Claims. EX2001, ¶¶ 45 and 61.
`
`Rather, in Stewart, storage of data from the outputs of the accelerometers is
`
`started and stopped by a processor via commands transmitted through a serial
`
`control interface. EX1004 11:29-32. The processor controls the storage of data
`
`from an A/D Converter to a data storage. Id. at 8:58-59. The commands set the
`
`general parameters of the data storage operation of the HAT. Id. at 11:53-54. The
`
`commands may be entered locally to establish certain general parameters regarding
`
`the sampling of the accelerometers, e.g., when to start, the sampling rate, and when
`
`to stop. Id. at 11:58-63.
`
`It would be apparent to a POSITA that the commands in Stewart are for
`
`controlling measurement of data by the accelerometers. EX2001, Figure A2 and
`
`¶¶ 45 and 63. The POSITA would recognize that the processor in Stewart is not
`
`interpreting the measured data based on the commands because the processor is
`
`merely controlling the storage of the measured data. Id. (The processor controls
`
`the storage of data from an A/D Converter to a data storage. EX1004, 8:58-59).
`
`Based on the foregoing, a POSITA would understand that Stewart’s commands are
`
`for controlling measurement of data by an accelerometer, and are not for
`
`interpreting data by the processor. Id. at Figure A2 and ¶¶ 45 and 64.
`
`Furthermore, in Stewart, the data is being measured at the sensor and stored
`
`
`
`18
`
`
`
`based on the commands. EX1004, 8:58-59. A POSITA would understand that,
`
`while Stewart does not expressly disclose a real-time clock, any inherent real-time
`
`clock (assuming, arguendo, a real-time clock would be inherent, which LoganTree
`
`does not concede is correct) would be directly coupled to the sensor. EX2001,
`
`Figure A2 and ¶¶ 45 and 65. A POSITA would therefore find that Stewart does
`
`not teach or suggest a microprocessor interpreting physical movement data based
`
`on user-defined operational parameters and a real-time clock, as recited by the
`
`Challenged Claims. EX2001, ¶ 65.
`
`Based on at least the foregoing, LoganTree submits that Stewart does not
`
`teach or suggest a microprocessor interpreting physical movement data based on
`
`user-defined operational parameters and a real-time clock, as recited by the
`
`Challenged Claims.
`
`Garmin does not provide any citations or discussion regarding Rush in either
`
`Dr. Singer’s Declaration or its Petition for the claim limitation interpreting, using a
`
`microprocessor included in the portable, self-contained movement measuring
`
`device, the physical movement data based on user-defined operational parameters
`
`and a real-time clock. In any case, LoganTree submits that Rush does not cure the
`
`above-described deficiencies of Stewart. EX2001, Figure A3 and ¶ 66.
`
`Rush discusses a helmet assembly for providing an indication when a
`
`predetermined axial compressive force tending to cause serious injury to the
`
`
`
`19
`
`
`
`wearer is applied thereto. EX1006, Abstract. The helmet has an embedded sensor.
`
`Id. at 9:40-42. The sensor is preferably in the form of an accelerometer that is
`
`adjustable to calibrate the amount of impact force on a crown area. Id. at 9:17-19.
`
`A signal device which may be audible but may also or in the alternative provide a
`
`visual signal is installed in the helmet. Id. at 9:42-45. A small battery is provided
`
`to power the signal device. Id. at 9:45-46. In use, the sensor, when activated by an
`
`axial load caused, for example, by a spearing movement of the wearer, will
`
`function to close a circuit between the battery and the signal device to produce the
`
`audible and/or visual signal so that the supervisor or coach will be alerted to the
`
`spearing action of the wearer and thus be able to caution the individual against
`
`such action. Id. at 9:48-54. The sensor is preferably adjustable so that the
`
`magnitude of the axial impact experienced may be varied to accommodate players
`
`of different ages and sizes and to minimize the accidental actuation of the signal.
`
`Id. at 9:54-58; see also EX2001, Figure A3.
`
`However, Rush does not provide any disclosure explicitly or implicitly
`
`regarding a processor or use thereof. See EX1006; see also EX2001, Figure A2
`
`and ¶¶ 48 and 68. Rush also does not provide any express disclosure of using a
`
`real-time clock. See EX1006; see also EX2001, ¶¶ 48 and 68. A POSITA would
`
`understand that the sensor in Rush is adjustable because the accelerometer can be
`
`calibrated to accommodate players of different ages and sizes and to minimize the
`
`
`
`20
`
`
`
`accidental actuation of the signal. See, e.g., EX1006, 9:17-19, 9:54-58; see also
`
`EX2001, ¶ 68. In light of all the foregoing, a POSITA would further understand
`
`that the calibration of the accelerometer would be a mechanical calibration. See,
`
`e.g., EX1006, 6:17-22; see also EX2001, ¶ 68. A POSITA would therefore find
`
`that Rush does not teach a microprocessor, user-defined operational parameters or
`
`a real-time clock, as required by the Challenged Claims. EX2001, ¶ 69.
`
`Finally, in a deposition of Garmin’s expert witness Dr. Singer, Dr. Singer
`
`appeared to not understand what the clamed limitation “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” meant, which is believed to render his opinions unreliable
`
`and unsupportable. See EX2002, pages 5-91. Per Dr. Madisetti, the claimed
`
`limitation 20c is not disclosed in Stewart under all possible interpretations as to
`
`whether the measurement and/or interpretation limitations require the use of the
`
`user-defined operational parameters and the real-time clock. EX2001, ¶ 45.
`
`LoganTree therefore submits that Rush, alone or even when combined with
`
`
`1 Specifically, Dr. Singer testified that “You know, I don't believe I've offered an
`opinion on it, and right here right now, I can see that there are a number of ways, you
`know, that that can be read. Interpreting physical movement data based on user-defined
`operational parameters and a real-time clock could mean that the data is based on user-
`defined parameters and a real-time clock or it could mean interpreting based on. And
`right here right now, I'm not prepared to offer an opinion on that.” EX2002, 8:17-9:2.
`
`
`
`21
`
`
`
`Stewart, does not teach or s
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