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
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`GARMIN INTERNATIONAL, INC. AND GARMIN USA,
`INC.,
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`Petitioner
`v.
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`LOGANTREE, LP,
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`Patent Owner
`
`Case IPR2018-00565
`
`Patent 6,059,576
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`PATENT OWNER’S SUR-REPLY TO PETITIONER’S REPLY
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` 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 IPR2018-00565
`
`Patent 6,059,576
`
`PATENT OWNER’S SUR-REPLY TO PETITIONER’S REPLY
`
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`I.
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`INTRODUCTION ................................................................................................. 1
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`TABLE OF CONTENTS
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`II. ARGUMENT…………………………………………………………………….1
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`A. GROUND 1: STEWART IN VIEW OF RUSH DOES NOT RENDER CLAIMS
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`1, 2, 4, 5, 9, 10, AND 12 OBVIOUS ............................................................... 1
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`1. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the Claimed a
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`movement sensor capable of measuring data associated with unrestrained
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`movement in any direction and generating signals indicative of said
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`movement..................................................................................................4
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`2. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the Claimed a
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`microprocessor receiving, interpreting, storing and responding to
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`movement data based on user-defined operational
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`parameters…………………………………………………………….5
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`3. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the Claimed “a
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`memory for storing said movement
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`data”…………………………………………………………………6
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`4. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the Claimed a
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`ii
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`
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`microprocessor detecting a first user-defined event based on the movement
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`data and at least one of the user-defined operational parameters regarding
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`the movement
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`data………………………………………………………………….11
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`5. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the Claimed storing
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`first event information related to the detected first user-defined event
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`along with first time stamp information reflecting a time at which the
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`movement data causing the first user-defined event
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`occurred…………………………………………………………….12
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`B. GROUND 3: RICHARDSON IN VIEW OF STEWART DOES NOT RENDER
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`CLAIMS 1, 7, 8, 13, 14, 56-58, 140, 144, AND 146 OBVIOUS………14
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`1. Ground 3, Claims 1 and 13: The Cited Prior Art Does Not Teach the
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`Claimed a microprocessor capable of receiving, interpreting, storing and
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`responding to said movement data based on user-defined operational
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`parameters………………………………………………………….14
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`2. Ground 3, Claims 1 and 13: The Cited Prior Art Does Not Teach the
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`Claimed “a memory for storing said movement
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`data”…………………………………………………………….…16
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`3. Ground 3, Claims 1 and 13: The Cited Prior Art Does Not Teach the
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`
`
`iii
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`
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`Claimed “a memory for storing said movement
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`data”……………………………………………………………..16
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`4. Ground 3, Claims 1 and 13: The Cited Prior Art Does Not Teach the
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`Claimed a microprocessor storing first event information related to the
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`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
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`event occurred……………………………………………………18
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`III. Patent Owner Does Not Consent to the PTAB Adjudicating the Patentability or
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`Validity of the Challenged Claims of the ‘576 Patent………………………….21
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`IV. CONCLUSION .................................................................................................... 22
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`
`
`iv
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`
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`INTRODUCTION
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`I.
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`
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`In an inter partes review, the burden of persuasion is on the petitioner to prove
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`“unpatentability by a preponderance of the evidence,” 35 U.S.C. § 316(e), and that
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`burden never shifts to the patentee. “Failure to prove the matter as required by the
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`applicable standard means that the party with the burden of persuasion loses on that
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`point—thus, if the fact trier of the issue is left uncertain, the party with the burden
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`loses.” Tech. Licensing, 545 F.3d at 1327. See Dynamic Drinkware, LLC v. Nat’l
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`Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) (citing Tech. Licensing Corp. v.
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`Videotek, Inc., 545 F.3d 1316, 1326–27 (Fed. Cir. 2008)) (discussing the burden of
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`proof in inter partes review).
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`Garmin failed to meet its burden in its Petition, and does not remedy this failure
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`in its Petitioner’s Reply to Patent Owner’s Response (“Reply”). In particular, Garmin
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`has failed to show by a preponderance of the evidence that all of the claim limitations
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`are taught by or obvious in view of either a combination of Stewart and Rush or a
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`combination of Richardson and Stewart, and Garmin’s arguments in its Reply continue
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`to fail to show that all of the claim limitations have been met by the foregoing
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`combinations.
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`II. ARGUMENT
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`A. GROUND 1: STEWART IN VIEW OF RUSH DOES NOT
`RENDER CLAIMS 1, 2, 4, 5, 9, 10, AND 12 OBVIOUS
`
`1
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`1. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the
`Claimed a movement sensor capable of measuring data
`associated with unrestrained movement in any direction and
`generating signals indicative of said movement
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`In arguing this limitation in its Reply, Garmin is submitted to have improperly
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`raised a number of new arguments. See 37 C.F.R. § 42.23(b). See, e.g., pages 4 and 5
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`of the Reply. However, these new arguments do not address the main issue and are
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`incorrect in light of the evidence.
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`In particular, LoganTree submits that the device in Stewart (and in Rush) is
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`constrained to a particular sport and restrained to the specific sport situation. See
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`EX1004, 14:4-14 (“For instance, in boxing, it is possible to correlate certain responses
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`of the accelerometers 10-12 with desirable punches exceeding a predetermined
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`threshold, and thus be processed and scored at a ringside receiver. It might also be
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`possible to determine if a football player is improperly using his helmet (e.g., illegal
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`spearing).”); see also EX1006, 9:48-50 (“[T]he sensor 100a, when activated by an axial
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`load caused, for example, by a spearing movement of the wearer…”.). It is clear from
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`the disclosures in Stewart and Rush that the sensors, not the device, can only record
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`deviations from the sports specific movement. Even within a sport, the sensors of
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`Stewart and Rush do not measure all movements. Rather, the sensors of Stewart and
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`Rush measure abnormal movements such as a spear or a punch. See EX1004, 14:4-14;
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`see also EX1006, 9:48-50. This alone is fatal to Garmin’s Petition and renders the rest
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`2
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`of the Petition moot. See EX2001, ¶¶ 45-48.
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`The claims do not require that sports activity should be unhindered – the claim
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`recites that the measurement should not be hindered! Because of a specific sports
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`situation, the sensors in Stewart and Rush cannot measure unrestrained movement data.
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`The devices in Stewart and Rush may not affect the ability to perform a sport; however,
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`the claim limitation is measuring unrestrained movement data. See EX2001, ¶¶ 39-48.
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`2. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the
`Claimed a microprocessor receiving, interpreting, storing
`and responding to movement data based on user-defined
`operational parameters
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`First, Garmin contends that Dr. Madisetti’s declaration is factually flawed
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`since it states that “[t]here is also no evidence on the record that claimed limitations 1ci
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`is present since there is no microprocessor disclosed,” and because Figure A2 does not
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`show a microprocessor. However, it is obvious and clear that Dr. Madisetti is not
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`taking the position that there is no disclosure whatsoever of a microprocessor in
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`Stewart; rather, Dr. Madisetti is taking the position that Stewart does not disclose a
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`microprocessor as the limitations in the claims require. See EX1021, 32:10-34:12.
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`Second, Garmin argues that Dr. Madisetti’s demonstratives are not evidence,
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`citing to Kranos Corp. v. Riddell, Inc., IPR2016-01650, Final Written Decision, Paper
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`27 at 30 (PTAB Feb. 21, 2018). In Kranos at 29-30, the Board found that “[s]ignificant
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`to our finding, Petitioner fails to offer any explanation, supporting testimony, or other
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`3
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`evidence as to why a person having ordinary skill in the art would understand that Sears
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`discloses vent openings. A labelled drawing with an arrow pointing to unidentified
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`dark spots is attorney argument.” However, in Kranos, the labelled drawing was
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`provided only by the attorneys only in the Petition, and was not provided by or
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`discussed by the Expert. In contrast, Dr. Madisetti’s demonstratives are provided by
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`Dr. Madisetti forming a part of his testimony regarding the prior art and supported by
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`the prior art, and are therefore persuasive evidence.
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`Furthermore, Garmin has failed to object to Dr. Madisetti’s demonstratives on
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`the merits. In other words, Garmin has failed to provide arguments contesting the
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`substance of the testimony included in Dr. Madisetti’s demonstratives. Moreover, this
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`reply is fully supported by Dr. Madisetti’s demonstratives and Declaration.
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` Regarding the foregoing limitation, nowhere does Stewart disclose that the
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`processor interprets measurement data. Garmin overstates the role of the processor
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`disclosed in Stewart. Garmin states that “Stewart’s processor record[s] in real-time
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`detailed data only when the accelerations exceed a defined threshold’ and correlates
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`‘certain responses of the accelerometers 10-12 with desirable punches exceeding a
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`predetermined threshold.’” Reply, 10 (citing EX1004, 5:5-7, 14:6-11). Here Garmin
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`tacks together a portion of a sentence from the “Summary” section with an unrelated
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`sentence from a last embodiment described in the detailed description. The first portion
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`states in full that “[f]or this purpose HAT could be modified to record in real-time
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`4
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`detailed data only when the accelerations exceed a defined threshold.” EX1004, 5:4-7.
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`However, nowhere does Stewart teach or render obvious that the processor performs
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`any action in this regard. EX2003 (U.S. Patent No. 4,440,160 (Fischell et al.) is cited
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`in the “Background” section of Stewart and illustrates how the HAT of Stewart could
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`be modified (“For instance, U.S. Pat. No. 4,440,160 to Fischell et al. discloses the use
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`of a single accelerometer in a headband for detecting whether or not the head is
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`accelerating beyond a threshold amount.”). EX1004, 3:61-64. Fischell states that “[t]he
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`accelerometer 26 behaves as a switch and is closed momentarily when an accelerating
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`impulse, above a set threshold level, is detected, and automatically resets after the
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`acceleration impulse subsides” and that “[a] threshold level between 2 g's and 5 g's can
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`be selected as values large enough to avoid aversive stimulation as a result of
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`accelerations experienced in normal activity, and yet small enough to detect even a
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`non-damaging impulse to the head. FIG. 4 contains a table showing some accelerations
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`experienced in normal activities particularly in various types of transportation--(the
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`threshold value is chosen so that acceleration experienced during transportation would
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`not activate the invented apparatus.)” EX2003, 4:2-6 and 4:12-21. It is clear from the
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`disclosure of Fischell that a POSITA would only seek guidance with respect to
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`modifying the accelerometer and modification to the HAT of Stewart would be to the
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`accelerometers. Moreover, the second portion of Stewart quoted by Garmin recites:
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` The present invention can also be utilized in scoring,
`refereeing or otherwise assist in the actual sporting event. For
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`5
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`instance, in boxing, it is possible to correlate certain
`responses of the accelerometers 10-12 with desirable punches
`exceeding a predetermined threshold, and thus be processed
`and scored at a ringside receiver. It might also be possible
`to determine if a football player is improperly using his
`helmet (e.g., illegal spearing). Of course, in these
`embodiments, the PCMCIA card would be replaced by a
`transmitter/receiver pair with data storage being
`provided by any suitable mass storage device remote from
`the helmet. EX1004, 14:4-14 (emphasis added).
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`Stewart further recites that “[i]njuries are not the only area of study which are
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`deficient. In sports such as boxing where the bout is scored with the number of punches
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`of a certain force connecting to the head, scoring is made difficult by conventional
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`observational techniques of scoring.” EX1004, 4:20-25. Stewart provides for a couple
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`of examples of correlation:
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`By capturing real-time data over the entire round of
`boxing, the data can be correlated and analyzed directly, e.g.,
`along with a videotape of the boxing match so as to establish
`visually the motion of the head causing certain responses of
`the accelerometers 10-12. EX1004, 10:65-11:2; and
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`The real-time data captured during an actual boxing
`match can be correlated with a videotape of the same so as to
`provide an additional tool for correlating specific head motion
`and any resultant injury. EX1004, 13:25-34.
`
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`Nowhere does Stewart teach or suggest that the processor performs any correlation.
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`Rather, the disclosure of Stewart suggests that such correlation is being performed
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`outside of the HAT system. Indeed, since both examples of correlation in Stewart rely
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`on an outside videotape of the boxing match, under no circumstances this can be
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`6
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`viewed that the processor in the HAT system performs such a correlation. Garmin’s
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`attribution of the correlation with respect to the processor of Stewart is a blatant
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`mischaracterization of Stewart! See Reply, 10.
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`Garmin further states that “Stewart’s ‘processor interprets the received
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`acceleration data to determine if the accelerations exceed the define/predetermined
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`thresholds.” Reply, 10 (citing Pet., 22). However, the cited portions of Stewart in the
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`Petition merely recite that “[t]he data also allows detection of the precise motion of the
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`head which precede the occurrence of a severe head injury.” Nowhere does Stewart
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`teach or render obvious that the processor performs such detection. Garmin then
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`rearranges the text of Stewart to state, “[f]or example, ‘[t]he data is recorded in real-
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`time, but may be processed in either real-time as the data is recorded . . . so as to
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`integrate and otherwise determine the translational, angular and normal
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`components of acceleration of the sportperson’s head.’” Id. (citing EX1004, 5:7-11)
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`(emphasis added by Garmin). The omission of the middle portion of this sentence
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`changes its meaning (EX1004, 5:7-11 recites “The data is recorded in real-time, but
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`may be processed in either real-time as the data is recorded, or at a later time so as to
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`integrate and otherwise determine the translational, angular and normal components of
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`acceleration of the sportsperson's head.”) A proper reading of this sentence (without
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`improperly cutting out the middle) clearly indicates that the data may be processed at a
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`later time so as to integrate and otherwise determine the translational, angular and
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`7
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`normal components of acceleration of the sportsperson's head. A close read of the
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`detailed description of Stewart reveals that “[i]f fewer than nine accelerometers are
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`used, accelerations which are not measured directly can be integrated or estimated. It is
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`not absolutely necessary that the accelerations be uniquely determined to establish a
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`correlation between certain data patterns and resultant injury.” EX1004, 13:47-51.
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`This makes clear that the processor of Stewart is not performing any integration, much
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`less performing any integration in real time. See EX2001, ¶¶ 45-47.
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`Garmin again raises the argument of an inherent real-time clock (RTC), or in
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`the alternative, that inclusion of an RTC in Stewart would be obvious. Reply, 13. “In
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`relying upon the theory of inherency, the examiner must provide a basis in fact and/or
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`technical reasoning to reasonably support the determination that the allegedly inherent
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`characteristic necessarily flows from the teachings of the applied prior art.” Ex parte
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`Levy, 17 USPQ2d 1461, 1464 (Bd. Pat. App. & Inter. 1990) (emphasis in original).
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`Arguably, even if Stewart’s HAT may inherently include an RTC, LoganTree submits
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`that Stewart’s processor does not use an RTC. There is no evidence on record that the
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`processor uses the RTC. See EX2001, ¶¶ 45-47. Therefore, it is moot whether the
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`HAT inherently includes an RTC.
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`LoganTree submits that “interpreting, using a microprocessor included in the
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`portable, self-contained movement measuring device, said physical movement data
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`based on user-defined operational parameters and a real-time clock” does not
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`8
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`necessarily flow from the teachings of Stewart, and that Garmin has not met its burden
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`of providing basis in fact and/or technical reasoning. See EX2001, ¶¶ 45-47.
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`Furthermore, Garmin uses the same arguments from its inherency analysis to provide
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`an alternative argument of obviousness. However, LoganTree submits that Garmin did
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`not meets its factual burden of obviousness that a microprocessor interprets measured
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`physical movement data based on user-defined operational parameters and a real-time
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`clock as required by the claims. See EX2001, ¶¶ 45-47.
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`3. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the
`Claimed “a memory for storing said movement data”
`
`
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`LoganTree is not contending that two instances of storage requires two
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`separate memories; rather, LoganTree is arguing that claim 1 requires two limitations
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`of storing and Garmin provides evidence for only one of the claimed storing
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`limitations. Whether there are two instances of memory is not relevant here. Garmin
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`has not shown that the data stored in Stewart and Rush is the correct data stored as
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`required by the claims, and the microprocessor in Stewart is not used in storing.
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`Garmin has also not shown a second storing step at all from the microprocessor. See
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`EX2001, ¶¶ 45-48.
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`In its Reply, Garmin states:
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`Stewart’s processor can store movement data based
`on “user-defined commands that ‘set the general parameters
`of the data storage operation of the HAT.’” Pet., 21 (citing
`EX1004, 11:53-54); EX1004, 11:51-63. This disclosure meets
`the first “storing” limitation requiring “a microprocessor
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`
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`9
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`
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`capable of . . . storing . . . said movement data based on user-
`defined operational parameters.” The Petition also shows how
`Stewart’s disclosure of storing “detailed data only when the
`accelerations exceed a defined threshold” (EX1004, 5:4-7) in
`combination with Rush’s disclosure of storing “the time and
`date of each instance in which the potentially injurious
`activity occurs” (EX1006, 10:26-28) meets the “storing first
`event information related to the detected first user defined
`event along with first time stamp information . . .” limitation.
`Pet., 25-27 (citing EX1010, ¶¶62-65). Reply, 14-15.
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`Garmin’s argument is faulty on its face. In particular, Garmin relies on
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`11:51-63 of Stewart (“The operating software of the processor 52 monitors the serial
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`control interface 42 for the presence of commands. These commands set the general
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`parameters of the data storage operation of the HAT.”) for a first limitation of data
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`storage and relies on 5:4-7 of Stewart (“For this purpose HAT could be modified to
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`record in real-time detailed data only when the accelerations exceed a defined
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`threshold.”) for a second limitation of storage. However, it is clear from Stewart that
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`these two disclosures are describing the same limitation of storing data from the
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`accelerometers into data storage 51. This is especially clear in view of Fischell’s
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`teachings that the accelerometers in Stewart are modified to record in real-time detailed
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`data only when the accelerations exceed a defined threshold. See supra, Section II.A.2.
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`Moreover, the addition of Rush’s disclosure that “[t]he recording means may record the
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`time and date of each instance in which the potentially injurious activity occurs” does
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`not result in or make obvious two storing limitations as required by the claims. This is
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`because Rush also does not store the measurement data – Rush only discloses recording
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`10
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`
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`an instance of aberration and a time and date the instance is recorded. This is because
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`Rush discusses a small device that does not have much memory. See EX2001, ¶ 48.
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`
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`4. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the
`Claimed a microprocessor detecting a first user-defined event
`based on the movement data and at least one of the user-defined
`operational parameters regarding the movement data
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`For this limitation, Garmin states that “it is Stewart’s microprocessor – not the
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`accelerometers – that ‘controls the operation of the HAT system.’” Reply, 15.
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`However, it is respectfully noted that controlling an operation of a system and detecting
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`are two different things. Here, LoganTree does not contend that Stewart’s processor
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`does not control the operation of the HAT system. LoganTree does contend, though,
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`that Stewart’s processor does not perform the detection as required by the claims. See
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`EX2001, ¶¶ 45-47.
`
` Garmin argues that “Stewart’s processor detects a user-defined event, such
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`as a desirable punch in boxing or an illegal spearing move in football, by determining
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`whether the movement data exceeds a predetermined threshold.” Reply, 15 (citing
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`EX1004, 5:4-7, 14:6-11). Again, Garmin exaggerates the roles of Stewart’s processor.
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`The cited portions of Stewart merely state that “[f]or this purpose HAT could be
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`modified to record in real-time detailed data only when the accelerations exceed a
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`defined threshold.” EX1004, 5:4-7. Fischell provides insight into this disclosure of
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`Stewart, stating that “[t]he accelerometer 26 behaves as a switch and is closed
`
`
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`11
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`
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`momentarily when an accelerating impulse, above a set threshold level, is detected, and
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`automatically resets after the acceleration impulse subsides.” EX2003, 4:2-6. In view
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`of the foregoing, it is clear that any detection of accelerations exceeding a defined
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`threshold is performed by the accelerometer in Stewart. Nothing disclosed in Stewart
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`suggests otherwise. See EX2001, ¶¶ 45-47.
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`The other cited portion of Stewart merely provides that “in boxing, it is
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`possible to correlate certain responses of the accelerometers 10-12 with desirable
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`punches exceeding a predetermined threshold, and thus be processed and scored at a
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`ringside receiver. It might also be possible to determine if a football player is
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`improperly using his helmet (e.g., illegal spearing).” EX1004, 14:6-11. Again,
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`nowhere does Stewart teach or render obvious that the foregoing correlation or
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`determination is performed by the processor. Moreover, such correlation or
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`determination does not correspond with detecting a first user-defined event based on
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`the movement data and at least one of the user-defined operational parameters
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`regarding the movement data, as required by the claims.
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`Garmin further states that “it would have been obvious to enable the user to
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`define Stewart’s acceleration thresholds as taught by Rush.” Reply, 15 (citing Pet., 25).
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`However, in Rush, the acceleration threshold is adjusted at the sensor. POR, 26 (citing
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`EX1006, 9:54-58. Since the acceleration threshold is adjusted at the sensor, it is a
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`logical conclusion that the sensor is performing any detecting, not the processor. See
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`12
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`
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`EX2001, ¶48.
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`5. Ground 1, Claim 1: The Cited Prior Art Does Not Teach the
`Claimed storing 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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`In its Reply, Garmin states that the “Petition relies on . . . Rush’s teaching of
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`associating a timestamp with the recorded data at the time the user-defined event
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`occurred.” Reply, 16.
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`This is a fatal flaw. At best, Rush only discloses a time at which a user-
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`defined event occurred, not the underlying measurement data. Rush teaches an
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`embodiment that “includes a transmitting device 140 carried by the helmet for
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`transmitting a signal to a remote location when a predetermined amount of compressive
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`axial force is applied to the crown area of the helmet.” EX1006, 9:61-65. A sensor
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`“actuates the transmitting device when the aforementioned force is applied. Receiving
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`means 142 is disposed remotely from the helmet, and is adapted to receive the signal
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`transmitted by the transmitting device 140.” Id., 9:65-10:2. Rush further teaches that
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`“[i]t may also be advantageous to provide a recording means 148 which is cooperable
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`with the receiving means 142 to record instances in which the potentially injurious
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`activity has taken place.” Id., 20-23. “The recording means may record the time and
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`date of each instance in which the potentially injurious activity occurs.” Id., 26-28.
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`Thus, it is clear from this disclosure of Rush that the recording means records the time
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`13
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`
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`and date when it records instances in which potentially injurious activity has taken
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`place. This is in direct contrast to Garmin’s own claim construction, for which it stated
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`that “it is clear the claimed phrase ‘first time stamp information reflecting a time’ must
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`indicate a time when the movement data causing the first user-defined event occurred-
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`not just a time when the first event information is stored.” See Reply, 2-3.
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`Furthermore, in Rush there is no storing of measurement data at all. See EX2001, ¶48.
`
` For LoganTree’s part, Rush’s teaching of the recording means recording the
`
`time and date of the instance in which the potentially injurious activity occurs is far
`
`away from storing 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, as required by the claims. See supra
`
`Section II.A.1; see also EX2001, ¶¶ 45-48.
`
`
`
`
`
`
`
`B. GROUND 3: RICHARDSON IN VIEW OF STEWART DOES
`NOT RENDER CLAIMS 1, 7, 8, 13, 14, 56-58, 140, 144, AND
`146 OBVIOUS
`
`
`
`1. Ground 3, Claims 1 and 13: The Cited Prior Art Does Not
`Teach the Claimed a microprocessor capable of receiving,
`interpreting, storing and responding to said movement data
`based on user-defined operational parameters
`
`In Richardson, “[t]he first step is to compute at each sample time a moving
`
`average of acceleration 168, which serves as a baseline for describing the acceleration
`
`168 waveform of a locomotor step.” EX1009, 28:36-39. The waveform is then used
`
`
`
`14
`
`
`
`to find peaks of positive acceleration 168 that are indicative of footfalls. Id., 28:42-47.
`
`Since the microprocessor in Richardson is computing a moving average of
`
`acceleration, and using the computed average acceleration to calculate, e.g., an
`
`estimated speed, a POSITA would understand Richardson’s microprocessor as making
`
`calculations based on the measured physical movement data rather than interpreting the
`
`measured physical movement data based on user-defined operational parameters and a
`
`real-time clock as required by the claims. Moreover, in Richardson, the user’s personal
`
`data alleged by Garmin as corresponding to the claimed “user-defined operational
`
`parameters” is used to merely calculate an estimated speed, and a cruise control alarm
`
`alarm, also alleged by Petitioner as corresponding to the claimed “user-defined
`
`operational parameters”, is merely provided for comparing whether the estimated
`
`speed goes consistently into or consistently out of a chosen speed band. EX1009,
`
`30:20-23. Thus, the “user-defined operational parameters” alleged by Garmin are
`
`merely for calculating an estimated speed and comparing the estimated speed to a
`
`chosen speed band. A POSITA would therefore understand that Richardson does not
`
`teach or render obvious a microprocessor interpreting measured physical movement
`
`data based on user-defined operational parameters and a real-time clock. See EX2001,
`
`¶¶ 50-51.
`
`Garmin contends that “Richardson’s personal data qualifies as “user-
`
`defined operational parameters” because the microprocessor is unable to perform its
`
`
`
`15
`
`
`
`intended operations without it.” Reply, 19. However, Garmin does not provide any
`
`testimony or evidence for such support. Furthermore, this argument falls well outside
`
`of a claim construction for “user-defined operational parameters” under the Phillips
`
`standard. In this regard, the user’s personal data in Richardson is not user-defined
`
`operational parameters as set forth in the claims, since the user’s personal data in
`
`Richardson does not, e.g., express an interest of the user. See EX1021, 46:14-17.
`
`
`
`
`
`2. Ground 3, Claims 1 and 13: The Cited Prior Art Does Not
`Teach the Claimed “a memory for storing said movement
`data”
`
`Garmin states that “Richardson’s device includes memory, including a
`
`RAM 124 and NVRAM 126, for storing the acceleration data and the movement data
`
`derived from the acceleration data.” (Reply, 22) (emphasis added).
`
`The foregoing is submitted to be a new argument improperly raised by
`
`Garmin. See 37 C.F.R. § 42.23(b).
`
`It is clear from Garmin’s argument that it is relying on two separate
`
`memories, i.e., RAM 124 and NVRAM 126.
`
`The claims merely recite one memory, but two storing limitations.
`
`Garmin’s reliance on two different storages is therefore improper.
`
`3. Ground 3, Claims 1 and 13: The Cited Prior Art Does Not
`Teach the Claimed a microprocessor detecting a first user-
`defined event based on the movement data and at least one of
`the user-defined operational parameters regarding
`the
`movement data
`
`
`
`16
`
`
`
`
`
`In its Petition, Garmin states that “Richardson’s monitoring device allows
`
`the user to set custom “alarms” including a “cruise control alarm,” which is a first
`
`user-defined event that is detected by the microprocessor’s track user’s status process
`
`156 whenever the user’s speed as derived from the acceleration data (i.e., “movement
`
`data”) is out of a user-defined range (i.e., “user-defined operational parameters
`
`regarding the movement data”). Pet., 66. Richardson teaches that the speed is
`
`estimated using an algorithm. See EX1009, Figure 14 and 29:20-47. Garmin
`
`therefore concedes that Richardson teaches detecting the cruise control alarm based
`
`on an estimated speed and not the acceleration data itself.
`
`
`4. Ground 3, Claim 20: The Cited Prior Art Does Not Teach the
`Claimed a microprocessor storing 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
`
`As correctly indicated by the Board:
`
`Petitioner argues that if a user-defined event is the
`duration of exercise activity, then Richardson discloses this
`limitation. Pet. 53 (citing Ex. 1009, 30:1–23). However, the user-
`defined event is based on movement data, rather than time alone.
`Petitioner also argues that this limitation is satisfied because
`Richardson calculates the time of a step’s footfall, and that when a
`cruise control alarm condition is triggered, the footfall is recorded.
`Pet. 54–56 (citing, e.g., Ex. 1009, 6:28–32, 29:48–51). Although
`every footfall is recorded, it is unclear that the timestamp would
`“reflect” the time of the movement causing the event, as recited.
`We note that this proceeding is governed by the Phillips
`construction standard. Dr. Singer does not provide testimony as to
`
`17
`
`
`
`
`
`
`
`whether the “reflecting” limitation would be satisfied. Petitioner
`argues that Richardson discloses the “reflecting” limitation but
`does not argue that the limitation would have been suggested by or
`otherwise obvious over the references beyond express disclosure. It
`is unclear on the current record whether this limitation is satisfied. .
`. .
`
`Garmin has thus far provided no testimony or evidence that has proved this
`
`
`
`incorrect.
`
`In its Petition, Garmin states, “[h]owever, to the extent it is determined that
`
`the timestamp limitation is broad enough to cover storing time information about an
`
`activity during which a first user-defined event occurred and is not limited to storing
`
`information reflecting the time at which the first user-defined event occurred during
`
`the activity, then Richardson renders such an interpretation ob
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