Trials@uspto.gov
`571-272-7822
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` Paper 24
` Entered: August 28, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GARMIN INTERNATIONAL, INC. and GARMIN USA, INC.,
`Petitioner,
`
`v.
`
`LOGANTREE, LP,
`Patent Owner.
`____________
`
`Case IPR2018-00565
`Patent 6,059,576 C1
`____________
`
`
`Before PATRICK R. SCANLON, MITCHELL G. WEATHERLY, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`SCANLON, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`571-272-7822
`
`
`
`
`
`
` Paper 24
` Entered: August 28, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GARMIN INTERNATIONAL, INC. and GARMIN USA, INC.,
`Petitioner,
`
`v.
`
`LOGANTREE, LP,
`Patent Owner.
`____________
`
`Case IPR2018-00565
`Patent 6,059,576 C1
`____________
`
`
`Before PATRICK R. SCANLON, MITCHELL G. WEATHERLY, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`SCANLON, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
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`IPR2018-00565
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`I. INTRODUCTION
`Garmin International, Inc. and Garmin USA, Inc. (collectively,
`“Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting an inter partes
`review of claims 1, 2, 4, 5, 7–14, 56–58, 140, 144, and 146 (the “challenged
`claims”) of U.S. Patent No. 6,059,576 C1 (Ex. 1001, “the ’576 patent”).
`LoganTree LP (“Patent Owner”) did not file a Preliminary Response. The
`Board instituted a trial as to the challenged claims. Paper 9 (“Dec.”).
`After institution of trial, Patent Owner filed a Patent Owner Response
`(“PO Resp.”) to the Petition. Paper 13. Petitioner filed a Reply (“Reply”) to
`the Patent Owner Response. Paper 16. Patent Owner filed a Sur-Reply
`(“Sur-Reply”). Paper 19. Petitioner relies on the Declaration of Dr. Andrew
`C. Singer (Ex. 1010) in support of its Petition, and Patent Owner relies on
`the Declaration of Vijay K. Madisetti, Ph.D. (Ex. 2001) in support of its
`Response.
`An oral hearing was held on June 4, 2019, and the record contains a
`transcript of this hearing. Paper 22 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has not shown by a
`preponderance of the evidence that claims 1, 2, 4, 5, 7–14, 56–58, 140, 144,
`and 146 of the ’576 patent are unpatentable.
`
`II. BACKGROUND
`A. Related Matters
`The parties indicate that the ’576 patent is the subject of a patent
`infringement litigation, LoganTree LP v. Garmin International, Inc., Case
`No. 6:17-cv-01217 (D. Kan.), and that another proceeding with the same
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`parties in a different jurisdiction has been dismissed without prejudice to
`refiling in another district, LoganTree LP v. Garmin International, Inc., Case
`No. 5-17-cv-00098 (W.D. Tex.). Pet. 75; Paper 4, 2.
`In addition, Petitioner states that it has filed another petition for inter
`partes review of the ’576 patent, in IPR2018-00564. Pet. 75. Petitioner
`states that two other inter partes review proceedings with respect to the
`’576 patent terminated after the filing of a petition but before any decision
`on institution, i.e., IPR2017-00256, -00258. Id. at 75–76.
`B. The ’576 Patent1
`The ’576 patent is titled “Training and Safety Device, System and
`Method to Aid in Proper Movement During Physical Activity” and relates to
`“the field of electronic training and safety devices used to monitor human
`physical activity.” Ex. 1001, [54], 1:6–7. More specifically, the ’576 patent
`discloses a method that detects, measures, records, and/or analyzes the time,
`date, and other data associated with movement of the device and produces
`meaningful feedback regarding the measured movement. See id. at 1:8–11.
`The ’576 patent discloses that certain prior art devices recorded the
`number of times that a predetermined angle was exceeded but were not
`convenient to operate and served to report rather than analyze the
`information. See id. at 1:45–54. The ’576 patent discloses that it is also
`important to measure the angular velocity to monitor and analyze improper
`movement. Id. at 1:55–67.
`
`
`1 An ex parte reexamination certificate issued on March 17, 2015, with all
`claims either amended from their original form or newly added during
`reexamination. Ex. 1001, [45] C1, cols. 1–12 C1.
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`The ’576 patent discloses an electronic device that tracks and
`monitors an individual’s motion through the use of a movement sensor
`capable of measuring data associated with the wearer’s movement. Id.
`at 2:10–13. The device of the ’576 patent also employs a user-
`programmable microprocessor, which receives, interprets, stores and
`responds to the movement data based on customizable operation parameters;
`a clock connected to the microprocessor; memory for storing the movement
`and analysis data; a power source; a port for downloading the data from the
`device to other computation or storage devices contained within the system;
`and various input and output components. Id. at 2:13–21.
`Figure 4 of the ’576 patent is a block diagram of the movement
`measuring device (id. at 3:11–12):
`
`Figure 4 depicts a block diagram of the components of the device.
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`The downloadable, self-contained device can be worn at various
`positions along the torso or appendages being monitored depending on the
`specific physical task being performed. Id. at 2:21–24. The device also
`monitors the speed of the movements made while the device is being worn.
`Id. at 2:24–25. When a pre-programmed recordable event is recognized, the
`device records the time and date of the occurrence while providing feedback
`to the wearer via visual, audible and/or tactile warnings. Id. at 2:25–29.
`Periodically, data from the device may be downloaded into an associated
`computer program, which analyzes the data. Id. at 2:29–31. The program
`can then format various reports to aid in recognizing and correcting trends in
`incorrect physical movement. Id. at 2:31–33.
`C. Challenged Claims
`As noted above, Petitioner challenges claims 1, 2, 4, 5, 7–14, 56–58,
`140, 144, and 146. Of these claims, claims 1 and 13 are independent.
`Claim 1, as amended in the reexamination proceeding, is illustrative of the
`subject matter and reads as follows:
`1.
`A portable, self-contained device for monitoring
`movement of body parts during physical activity, said device
`comprising:
`a movement sensor capable of measuring data associated
`with unrestrained movement in any direction and generating
`signals indicative of said movement;
`a power source;
`a microprocessor connected to said movement sensor and
`to said power source, said microprocessor capable of receiving,
`interpreting, storing and responding to said movement data based
`on user-defined operational parameters, 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, and storing first event information related to the detected
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`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;
`at least one user input connected to said microprocessor
`for controlling the operation of said device;
`a real-time clock connected to said microprocessor;
`memory for storing said movement data; and
`an output indicator connected to said microprocessor for
`signaling the occurrence of user-defined events;
`wherein said movement sensor measures the angle and
`velocity of said movement.
`Ex. 1001, 1:25–50 C1.
`
`D. The Prior Art
`Petitioner’s asserted grounds of unpatentability for the challenged
`claims rely on the following references:
`US 5,474,083, iss. Dec. 12, 1995 (Ex. 1008, “Church”);
`US 5,546,609, iss. Aug. 20, 1996 (Ex. 1006, “Rush”);
`US 5,976,083, iss. Nov. 2, 1999 (Ex. 1009, “Richardson”);
`US 5,978,972, iss. Nov. 9, 1999 (Ex. 1004, “Stewart”)2.
`E. Grounds of Unpatentability at Issue
`The Petition challenges claims 1, 2, 4, 5, 7–14, 56–58, 140, 144, and
`146 of the ’576 patent on the following three grounds of unpatentability.
`
`
`2 As Petitioner points out, the filing date of the application that issued as
`Stewart (June 11, 1997) precedes the filing date of the application that issued
`as the ’576 patent (November 21, 1997). See Pet. 4, 9–10, 10 n.1. Petitioner
`asserts that Stewart claims priority to U.S. Provisional Application No.
`60/020271 (Ex. 1005), which was filed June 14, 1996. Id. at 9–10. Because
`Patent Owner has not argued that the ’576 patent is entitled to an earlier
`priority date, we do not reach the issue of the effective filing date of Stewart
`in this Decision.
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`Pet. 8–9. We instituted trial on all four grounds, and for all claims subject to
`each asserted ground. Dec. 2, 22.
`
`References
`Stewart and Rush
`
`Claim(s) Challenged
`Basis
`§ 103(a)3 1, 2, 4, 5, 9, 10, and 12
`
`Stewart, Rush, and Church
`
`§ 103(a) 11
`
`Richardson and Stewart
`
`
`
`§ 103(a) 1, 7, 8, 13, 14, 56–58,
`140, 144, and 146
`
`III. ANALYSIS
`A. Relevant Legal Principles
`To prevail in challenging Patent Owner’s claims, Petitioner must
`demonstrate by a preponderance of the evidence that the claims are
`unpatentable. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). “In an [inter partes
`review], the petitioner has the burden from the onset to show with
`particularity why the patent it challenges is unpatentable.” Harmonic Inc. v.
`Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C.
`§ 312(a)(3) (requiring inter partes review petitions to identify “with
`particularity . . . the evidence that supports the grounds for the challenge to
`each claim”)). The burden of persuasion rests with Petitioner. See Dynamic
`Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed.
`Cir. 2015) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316,
`1326–27 (Fed. Cir. 2008)) (discussing the burden of proof in inter partes
`
`
`3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29,
`125 Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103. Because the ’576
`patent was filed before the effective date of the relevant amendment, the pre-
`AIA version of § 103 applies.
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`review). Furthermore, Petitioner cannot satisfy its burden of proving
`obviousness by employing “mere conclusory statements.” In re Magnum
`Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016).
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the claimed subject matter and the prior art are such that the subject
`matter, as a whole, would have been obvious at the time the invention was
`made to a person having ordinary skill in the art to which said subject matter
`pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The
`question of obviousness is resolved on the basis of underlying factual
`determinations including (1) the scope and content of the prior art; (2) any
`differences between the claimed subject matter and the prior art; (3) the level
`of skill in the art; and, (4) where in evidence, so-called secondary
`considerations, including commercial success, long-felt but unsolved needs,
`failure of others, and unexpected results. Graham v. John Deere Co., 383
`U.S. 1, 17–18 (1966).
`For an obviousness analysis, prior art references must be “considered
`together with the knowledge of one of ordinary skill in the pertinent art.”
`In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (quoting In re Samour,
`571 F.2d 559, 562 (CCPA 1978)). Moreover, “it is proper to take into
`account not only specific teachings of the reference but also the inferences
`which one skilled in the art would reasonably be expected to draw
`therefrom.” In re Preda, 401 F.2d 825, 826 (CCPA 1968). That is because
`an obviousness analysis “need not seek out precise teachings directed to the
`specific subject matter of the challenged claim, for a court can take account
`of the inferences and creative steps that a person of ordinary skill in the art
`would employ.” KSR, 550 U.S. at 418.
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`B. Level of Ordinary Skill in the Art
`Petitioner contends that a person having ordinary skill in the art to
`which the ’576 patent pertains is “a person with a Bachelor of Science
`Degree in Electrical Engineering or Computer Engineering or equivalent,
`and at least two years of experience in embedded signal processing systems
`or a related field.” Pet. 8 (citing Ex. 1010 ¶ 38). Patent Owner argues that a
`person having ordinary skill in the art to which the ’576 patent pertains
`“would have had a bachelor’s degree in electrical engineering or computer
`engineering or equivalent, and two years of experience in embedded signal
`processing and/or systems, or equivalent.” PO Resp. 14 (citing Ex. 2001
`¶ 54). Patent Owner adds that “[a]dditional industry experience or technical
`training may offset less formal education, while advanced degrees or
`additional formal education may offset lesser levels of industry experience.”
`Id.
`
`Factual indicators of the level of ordinary skill in the art include “the
`various prior art approaches employed, the types of problems encountered in
`the art, the rapidity with which innovations are made, the sophistication of
`the technology involved, and the educational background of those actively
`working in the field.” Jacobson Bros., Inc. v. U.S., 512 F.2d 1065, 1071 (Ct.
`Cl. 1975); see also Orthopedic Equip. Co. v. U.S., 702 F.2d 1005, 1011
`(Fed. Cir. 1983) (quoting with approval Jacobson Bros.).
`The parties’ respective proposals are substantially similar such that
`there is no apparent dispute between the parties. Also, based on our review
`of the record before us, we find that Petitioner’s stated level of ordinary skill
`in the art is reasonable because it is consistent with the evidence of record,
`including the asserted prior art. Thus, for the purposes of this Decision, we
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`adopt Petitioner’s definition. We note, however, that our findings in this
`proceeding would not differ under Patent Owner’s proposed definition.
`C. Claim Construction
`The parties agree that the ʼ576 patent expired on November 21, 2017.
`Pet. 9; PO Resp. 15. The ’576 patent was filed on November 21, 1997, and
`issued on May 9, 2000. Ex. 1001, [22], [45]. The issued patent bears a
`notice stating “This patent issued on a continued prosecution application
`filed under 37 CFR 1.53(d), and is subject to the twenty year patent term
`provisions of 35 U.S.C. 154(a)(2).” Id. at cover page. We thus agree with
`the parties that the ’576 patent has expired.
`For expired patents, we apply a district court-type claim construction
`approach.4 Wasica Finance GmbH v. Continental Auto. Sys., Inc., 853 F.3d
`1272, 1279 (Fed. Cir. 2017) (“The Board construes claims of an expired
`patent in accordance with Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir.
`2005) (en banc).”). Under the Phillips standard, we assign claim terms their
`ordinary and customary meaning, as would have been understood by a
`person of ordinary skill in the art at the time of the invention, in light of the
`language of the claims, the specification, and the prosecution history of
`record. Phillips, 415 F.3d at 1312–19; Thorner v. Sony Comput. Entm’t Am.
`LLC, 669 F.3d 1362, 1365–66 (Fed. Cir. 2012).
`
`
`4 A recent rule change that makes applicable the Phillips standard in all trial
`proceedings before the Board does not apply here because the Petition was
`filed before November 13, 2018. See Changes to the Claim Construction
`Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial
`and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018) (amending
`37 C.F.R. § 42.100(b), effective November 13, 2018).
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`In view of our analysis discussed below, we determine that
`“interpreting . . . said movement data” from claims 1 and 13 is the only term
`requiring construction in order to resolve the disputed issues in this
`proceeding. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
`803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that are in
`controversy, and only to the extent necessary to resolve the controversy.”);
`see also Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d
`1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs. in the context of an inter
`partes review).
`Neither party proposes an explicit claim construction for “interpreting
`. . . said physical movement data,” but Patent Owner argues that the
`arguments relating to Stewart in the Petition show that Petitioner
`misinterprets the limitation as data collection. PO. Resp. 15–16 (citing
`Pet. 22; Ex. 2001 ¶ 57).
`The ’576 patent does not include an explicit definition for
`“interpreting.” See generally Ex. 1001. We note, however, that claims 1
`and 13 recite “a “microprocessor capable of . . . interpreting . . . said
`movement data.” With this language in mind, the ’576 patent discloses that
`the device “employs a user-programmable microprocessor which receives,
`interprets, stores and responds to the movement data.” Id. at 2:13–15; see
`also id. at Abstract (making substantially similar statement). These
`disclosures indicate that “interpreting” is distinct from receiving, storing,
`and responding to the data, and are consistent with claims 1 and 13, which
`recite “interpreting” distinctly from receiving, storing, and responding.
`Furthermore, the ’576 patent discloses that microprocessor 32 “receives the
`signals generated by the movement sensor 30 for analysis and subsequent
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`processing” and “analyzes and responds to the movement data signals from
`the sensor 30.” Id. at 4:52–57 (emphases added).
`Therefore, in the context of the claims and the Specification of the
`’576 patent, we determine that the ordinary and customary meaning of the
`phrase “interpreting . . . said movement data” is “analyzing the movement
`data.”
`
`D. Constitutional Issues
`Patent Owner contends “the inter partes review process is
`unconstitutional in this case in that the process is being applied retroactively,
`where the ‘576 Patent issued May 9, 2000 and the AIA review process was
`not in place at that date.” PO Resp. 40. Patent Owner also contends this
`proceeding violates its constitutional right of due process. Id. Petitioner
`argues that Patent Owner’s constitutionality arguments should be rejected.
`Reply 24.
`In general, “administrative agencies do not have jurisdiction to decide
`the constitutionality of congressional enactments,” and “[a] finding that the
`agency lacks jurisdiction to decide constitutional questions is especially
`likely when the constitutional claim asks the agency to act contrary to its
`statutory charter.” Riggin v. Office of Senate Fair Emp’t Practices, 61 F.3d
`1563, 1569 (Fed. Cir. 1995); see also Harjo v. Pro-Football, Inc., 50
`USPQ2d 1705, 1710 (TTAB 1999) (“[T]he Board has no authority . . . to
`declare provisions of the Trademark Act unconstitutional.”), rev’d on other
`grounds, 284 F. Supp. 2d 96 (D.D.C. 2003). But see Am. Express Co. v.
`Lunenfeld, Case CBM2014-00050, slip op. at 9–10 (PTAB May 22, 2015)
`(Paper 51) (“[F]or the reasons articulated in Patlex [Corp. v. Mossinghoff,
`758 F.2d 594 (Fed. Cir. 1985)], we conclude that covered business method
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`patent reviews, like reexamination proceedings, comply with the Seventh
`Amendment.”).
`We note, however, that Federal Circuit has recently held that “the
`retroactive application of IPR proceedings to pre-AIA patents is not an
`unconstitutional taking under the Fifth Amendment.” Celgene Corp. v.
`Peter, No. 2018-1167, 2019 WL 3418549, at *16 (Fed. Cir. July 30, 2019).
`The Federal Circuit addressed arguments made under both the due process
`and takings clauses of the Fifth Amendment in so holding. Id. at *11–16.
`We discern no other argument from Patent Owner in this case other than
`those expressly rejected by the Federal Circuit. Thus, in view of Celgene,
`we find Patent Owner’s argument unpersuasive.
`E. Asserted Obviousness over Stewart and Rush
`Overview of Stewart
`Stewart is titled “Helmet System Including at Least Three
`Accelerometers and Mass Memory and Method for Recording in Real-Time
`Orthogonal Acceleration Data of a Head” and relates to a helmet-based
`system that is typically worn while playing a sport such as boxing or
`football, and to the method of recording and storing data relating to
`translational and angular accelerations of the person’s head due to impact
`forces acting thereon. Ex. 1004, [54], 1:19–23.
`Stewart describes drawbacks in conventional prior art devices.
`According to Stewart, conventional devices did not measure and record
`translational and angular forces to a living human head over a period of time
`of exposure, particularly when the exposure was of a level below that which
`would normally cause concern for injury. Id. at 4:3–7. Further,
`conventional devices that measured acceleration in a single direction, or
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`from a single event, or only above a predetermined threshold, or in a way
`that did not permit use during performance of the actual sport did not
`provide the dynamics necessary to correlate exposure to forces with the
`injury caused by that exposure over a period of time. Id. at 4:13–19.
`Stewart discloses “Head Acceleration-monitoring Technology” or
`“HAT,” which is a portable system designed to measure and record
`acceleration data in real time in both translational and angular directions of
`an individual’s head during normal activity. Id. at 4:28–31. Stewart
`discloses that the device may be used to monitor other body parts, or the
`body in general. Id. at 4:31–33.
`The HAT is designed as a standard component of otherwise
`conventional sporting gear, in particular the helmet. It includes at least three
`orthogonally-placed accelerometers and means to record their output in real
`time. Id. at 4:45–47. The data from the accelerometers are recorded in real
`time during performance of the sport. Id. at 4:60–61. The data is either
`recorded on a memory card or other mass memory installed in the helmet, or
`is transmitted to a nearby receiver for storage on a computer’s hard drive or
`other conventional mass storage device. Id. at 4:61–65.
`Figure 2B of Stewart is a top view of an embodiment using three
`orthogonal accelerometers and a memory card installed inside a boxing
`helmet (id. at 5:30–35):
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`Figure 2B of Stewart is a top view of a boxing helmet.
`Orthogonal accelerometers 10, 11, and 12 “provide aggregated data
`relating to three translational directions and two angular accelerations, but
`not sufficient information to separate translational and rotational
`components uniquely.” Id. at 6:45–47. In one embodiment,
`accelerometers 10, 12 are mounted at right angles on a printed circuit board
`(PCB), together with a processor, an A/D converter, a Program RAM/ROM
`component, a Personal Computer Memory Control Interface Adapter
`(PCMCIA) interface, and a serial control interface. Id. at 7:12–16.
`
`2.
`
`Overview of Rush
`Rush is titled “Helmet” and relates “to a helmet which will prevent
`damaging axial compressive forces, occasioned by impacts to the crown area
`of the head, i.e. the helmet, from being transmitted to the cervical spine of
`the wearer” and “to helmets which provide a signal or indication that the
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`wearer has participated in activity which can be potentially dangerous to the
`wearer.” Ex. 1006, [54], 1:11–15, 1:21–23. Rush discloses a protective
`helmet that in one embodiment is accompanied by a bag that inflates on
`impact. Id. at 3:44–58. In one embodiment, a helmet transmits a signal to a
`remote observer to indicate that the wearer has engaged in potentially self-
`injurious activity. Id. at 3:21–24.
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`3.
`
`Independent Claim 1
`Claim 1 recites “a microprocessor connected to said movement sensor
`and to said power source.” Petitioner asserts that Stewart discloses that
`processor 52, which can be a microprocessor, is connected to the movement
`sensor (10, 11, 12) via A/D converter 46. Pet. 19–21 (citing, Ex. 1004,
`8:40–43, 8:58–62, 9:30–32, Fig. 1). Petitioner further asserts that Stewart
`discloses that processor 52 and power supply 54 are mounted to a PCB
`(printed circuit board), which enables the processor to be connected to and
`receive power from the power supply. Id. at 20 (citing Ex. 1004, 7:12–14,
`8:36–37, 10:24–26).
`Regarding the limitation of the microprocessor being “capable of
`receiving, interpreting, storing and responding to said movement data based
`on user-defined operational parameters,” Petitioner argues that “Stewart
`discloses user-defined commands that ‘set the general parameters of the data
`storage operation of the HAT,’” that can be entered locally, such as with a
`keypad. Id. at 21 (citing Ex. 1004, 11:51–63).
`Next, Petitioner argues that Stewart’s processor 52 “receives
`accelerometer data from the A/D converter 46” (id. at 22 (citing Ex. 1004,
`8:64–67)), “interprets the received acceleration data to determine if the
`accelerations exceed defined/predetermined thresholds” (id. (citing
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`Ex. 1004, 5:4–7, 14:6–11)), and “stores the associated real-time data” if the
`acceleration data exceed the thresholds (id. (citing Ex. 1004, 5:4–7)).
`Noting that Stewart does not disclose expressly that the
`defined/predetermined thresholds are defined by user commands, Petitioner
`argues that Rush discloses a monitoring device that detects axial loads, such
`as a spearing movement, in which the threshold value for detecting the
`spearing movement can be adjustable to accommodate users of different
`ages and sizes. Id. (citing Ex. 1006, 3:13–18, 9:48–50, 9:54–58). Thus,
`according to Petitioner, it would have been obvious to one of ordinary skill
`in the art to modify Stewart’s system to enable user adjustment of the
`predetermined threshold to accommodate different users as taught by Rush.
`Id. at 23 (citing Ex. 1010 ¶¶ 54, 55).
`Petitioner also argues that Rush discloses responding to a detected
`spearing event by activating an audio or visual signal. Id. (citing Ex. 1006,
`9:42–45). Petitioner asserts it would have been obvious to one of ordinary
`skill in the art to enable Stewart’s helmet to respond to the acceleration data
`exceeding a predetermined threshold with an audio or visual signal as taught
`by Rush. Id. at 23–24 (citing Ex. 1010 ¶ 57).
`Patent Owner argues that one of ordinary skill in the art would not
`understand that Stewart’s processor 52 is interpreting measured data.
`PO Resp. 19 (citing Ex. 2001 ¶¶ 45, 60). We agree with Patent Owner. As
`noted above, Petitioner asserts that processor 52 “interprets the received
`acceleration data to determine if the accelerations exceed
`defined/predetermined thresholds.” Pet. 22 (citing Ex. 1004, 5:4–7,
`14:6–11). Petitioner provides two citations to Stewart, but does not
`elaborate or explain why the two cited passages of Stewart support this
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`assertion. Nor does Petitioner direct us to any supporting testimony from
`Dr. Singer.
`The first passage cited by Petitioner reads “[f]or this purpose HAT
`could be modified to record in real-time detailed data only when the
`accelerations exceed a defined threshold.” Ex. 1004, 5:4–7. This passage is
`limited to recording data and does not disclose “interpreting” data as we
`have construed this term.5 See supra § III.C. In fact, Petitioner also relies
`on this same passage of Stewart as disclosing storing the movement data.
`Pet. 22 (citing Ex. 1004, 5:4–7). Thus, we are not persuaded that this first
`passage supports Petitioner’s assertion that microprocessor 52 interprets
`data.
`
`The second passage cited by Petitioner reads
`For 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).
`Ex. 1004, 14:6–11. Even assuming for the sake of argument that the
`processing described in this passage constitutes interpreting the data, this
`passage does not disclose expressly that processor 52 performs such
`processing. Indeed, Stewart discloses that the accelerometer responses are
`“processed and scored at a ringside receiver,” implying that the ringside
`receiver—and not processor 52—performs this processing. See id. at 14:8–9
`
`5 Petitioner does not cite to Stewart’s disclosure that “[t]he data is recorded
`in real-time, but may be processed in either real-time as the data is recorded,
`or at a later time so as to integrate and otherwise determine the translational,
`angular and normal components of acceleration of the sportsperson’s head.”
`See Ex. 1004, 5:7–11.
`
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`emphasis added). Accordingly, we also are not persuaded that this second
`passage supports Petitioner’s assertion that microprocessor 52 interprets
`data.
`In reply, Petitioner argues that Patent Owner cites to Dr. Madisetti’s
`declaration to support its argument, but the cited portions are of the
`declaration factually flawed. Reply 8 (citing PO Resp. 19; Ex. 2001 ¶¶ 45,
`60). We do not rely, however, on Dr. Madisetti’s declaration in this
`Decision.
`The Petition points to Stewart’s disclosure that processor 52 “controls
`the operation of the HAT system.” Pet. 19–20 (citing Ex. 1004, 8:58–62);
`see also Reply 15 (“It is Stewart’s microprocessor — not the accelerometers
`— that “controls the operation of the HAT system.”). At the hearing,
`Petitioner argued that this disclosure indicates processor 52 controls the
`entire operation of the system and, thus, controls the threshold analysis
`disclosed in Stewart. Tr. 16:2–8, 18:25–19:11. This argument is
`unpersuasive for the following reasons.
`Stewart provides several specific disclosures that processor 52
`controls the data storage operation. Ex. 1004, 5:56–57 (“A processor 52
`controls data sampling and storage operations.”); id. at 8:58–59 (“The
`processor 52 controls the storage of data from the A/D Converter 46 to the
`data storage 51.”); id. at 11:29–32 (“Storage of data from the outputs of the
`accelerometers 10–12 is started and stopped by the processor 52.”); id.
`at 11:51–54 (“The operating software of the processor 52 monitors the serial
`control interface 42 for the presence of commands. These commands set the
`general parameters of the data storage operation of the HAT.”); id.
`at 12:64–67 (“The processor 52 controls storage of the data in the PCMCIA
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`memory card such that the file parameters in the PCMCIA memory card are
`not changed.”).
`The single passage cited in the Petition, however, is a more general
`statement that processor 52 “controls the operation of the HAT system.” Id.
`at 8:59–62. We are not persuaded that this single, general disclosure is
`sufficient to support Petitioner’s assertion that processor 52 necessarily
`controls every aspect of the HAT system and, in particular, the threshold
`comparison function. In fact, as discussed above, Stewart’s disclosure
`indicates that the comparing function is accomplished by a receiver remote
`from the self-contained helmet system, thereby identifying at least one
`function that is not performed by the processor. See id. at 14:6–9 (disclosing
`that when correlating accelerometer responses “with desirable punches
`exceeding a predetermined threshold,” the responses are “processed and
`scored at a ringside receiver”).
`When asked during the hearing for other disclosures in Stewart that
`support the assertion that processor 52 controls the comparing function,
`Petitioner identified two passages from Stewart’s abstract and column 4 of
`the Specification. Tr. 16:14–23. Both of these passages refer to a system
`designed to measure and record acceleration data in real-time in b
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