UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________________
`APPLE INC.,
`Petitioner
`v.
`UNILOC LUXEMBOURG S.A.
`Patent Owner
`_______________________
`Case No. IPR2018-01026
`U.S. Patent No. 7,653,508
`
`DECLARATION OF WILLIAM C. EASTTOM II (CHUCK EASTTOM)
`
`Apple v. Uniloc, IPR2018-01026
`Uniloc's Exhibit No. 2001
`
`

`

`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`INTRODUCTION ........................................................................................................3
`
`BACKGROUND AND QUALIFICATIONS .....................................................................3
`
`CLAIM CONSTRUCTION ............................................................................................4
`
`THE ‘508 PATENT .....................................................................................................5
`
`ONE OF ORDINARY SKILL IN THE ART ......................................................................6
`
`GENERAL ISSUES ......................................................................................................6
`
`A. Motivation to Combine ......................................................................................6
`
`B. Dominant Axis ....................................................................................................9
`
`C. Cadence Window ............................................................................................ 12
`
`VII.
`
`SPECIFIC CLAIM ELEMENTS ................................................................................... 13
`
`A. Claim 5.1 wherein the dynamic motion criteria includes at least a lower
`threshold, ........................................................................................................ 14
`
`5.2 wherein the lower threshold is adjusted based on at least one of a rolling
`average of accelerations and / 5.3 wherein the lower threshold is adjusted
`based on at least one of …] the orientation of the inertial sensor. ................ 16
`
`B. Claim 1. continuously determining an orientation of the inertial sensor; ..... 19
`
`C. Claim 1. assigning a dominant axis; ................................................................ 20
`
`D. Claim 1. updating the dominant axis as the orientation of the inertial sensor
`changes; and ................................................................................................... 21
`
`E. Claim 11 a dominant axis logic to continuously determine an orientation of a
`device, to assign a dominant axis, and to update the dominant axis as the
`orientation of the device changes, ................................................................. 22
`
`F. Claim 6 A method of monitoring human activity using an inertial sensor,
`comprising: ...................................................................................................... 22
`
`1
`
`

`

`G. Claim 6 switching the device from the non-active mode to an active mode,
`after identifying a number of periodic human motions within appropriate
`cadence windows;........................................................................................... 23
`
`VIII.
`
`CONCLUSIONS ....................................................................................................... 25
`
`IX.
`
`APPENDIX A – EASTTOM CV .................................................................................. 26
`
`A. Education ........................................................................................................ 26
`1. University Degrees ........................................................................ 26
`2.
`Industry Certifications ................................................................... 27
`3. Licenses ......................................................................................... 29
`
`B. Publications ..................................................................................................... 29
`1. Books 29
`2. Papers, presentations, & articles. ................................................. 30
`3. Patents .......................................................................................... 33
`
`C. Standards and Certification Creation.............................................................. 33
`
`D. Professional Awards and Memberships ......................................................... 34
`
`E. Speaking Engagements ................................................................................... 35
`
`F. Litigation Support Experience ......................................................................... 38
`
`G. Testifying Experience ...................................................................................... 43
`
`H. Professional Experience .................................................................................. 45
`
`X.
`
`CONTINUING PROFESSIONAL EDUCATION ........................................................... 49
`
`A. References to my work ................................................................................... 50
`1. Media References ......................................................................... 50
`2. References to publications ........................................................... 51
`3. Universities using my books ......................................................... 56
`
`B. Training ........................................................................................................... 58
`
`C. Technical Skills ................................................................................................ 59
`
`2
`
`

`

`
`
`I.
`
`INTRODUCTION
`
`1.
`
`I have been retained by Uniloc to provide my expert opinions regarding
`
`validity of U.S. Patent No. U.S. Patent No. 7,653,508 (“508 Patent”). Specifically, I have
`
`been asked to provide expert opinions regarding Claim 5. The ‘508 patent was granted
`
`January 26, 2010 filed December 22, 2006
`
`2.
`
`I am being compensated for my time at my standard consulting rate of
`
`$300 per hour. I am also being reimbursed for expenses that I incur during the course of
`
`this work. My compensation is not contingent upon the results of my study or the
`
`substance of my opinions.
`
`II.
`
`BACKGROUND AND QUALIFICATIONS
`
`3.
`
`I have 25+ years of experience in the computer science industry including
`
`extensive experience with computer security, computer programming, and computer
`
`networking. I have authored 26 computer science books, including textbooks used at
`
`universities around the world. I hold 42 different computer industry certifications,
`
`including many in networking subjects. I am experienced with multiple programming
`
`languages. I also have extensive experience in computer networking. I have extensive
`
`experience with mobile devices, including all aspects of mobile devices (hardware and
`
`software). I am a Distinguished Speaker for the Association of Computing Machinery
`
`(ACM), and a reviewer for the IEEE Security and Privacy journal, as well as a reviewer for
`
`the International Journal of Cyber Warfare and Terrorism (IJCWT). My CV is attached as
`
`appendix A.
`
`
`
`3
`
`

`

`
`
`III.
`
`CLAIM CONSTRUCTION
`
`4.
`
`Fort the purposes of an IPR, claim terms are given their broadest
`
`reasonable meaning.
`
`5.
`
`The petitioner has adopted the definitions of dominant axis as “the axis
`
`most influenced by gravity.”
`
`6.
`
`The petitioner has adopted the definition of cadence window as “a window
`
`of time since a last step was counted that is looked at to detect a new step.”
`
`7.
`
`The petitioner has adopted the definition of a dominant axis logic to
`
`determine an orientation of a device with respect to gravity, to assign a dominant axis,
`
`and to update the dominant axis when the orientation of the device changes as
`
`“hardware, software, or both to determine an orientation of a device, to assign a
`
`dominant axis, and to update the dominant axis as the orientation of the device changes.”
`
`The petitioner seems to ignore the fact that software, by itself, cannot determine a
`
`dominant axis. Hardware with software/firmware, can.
`
`8.
`
`The petitioner has adopted the definition of a counting logic to count
`
`periodic human motions by monitoring accelerations relative to the dominant axis by
`
`counting the periodic human motions when accelerations showing a motion cycle that
`
`meets motion criteria is detected within a cadence window as “hardware, software, or
`
`both to count periodic human motions by monitoring accelerations relative to the
`
`dominant axis by counting the periodic human motions when accelerations showing a
`
`motion cycle that meets motion criteria is detected within a cadence window.” The
`
`
`
`4
`
`

`

`
`
`petitioner seems to ignore the fact that software, by itself, cannot determine motion.
`
`Hardware with software/firmware, can.
`
`9.
`
`The petitioner has adopted the definition of a cadence logic to update the
`
`cadence window as actual cadence changes as “hardware, software, or both to update
`
`the cadence window as actual cadence changes.”
`
`10. While the petitioner has made some claims in claim construction that
`
`ignore the actual functionality of the hardware and software involved, for the purposes
`
`of this proceeding I will use the petitioners adopted definitions in performing my analysis
`
`and forming my opinions.
`
`IV.
`
`THE ‘508 PATENT
`
`1.
`
`The ’508 patent is titled “Human activity monitoring device.” The ʼ508
`
`patent issued January 26, 2010, from U.S. Patent Application No. 11/644,455 filed
`
`December 22, 2006.
`
`2.
`
`The inventors of the ’508 patent observed that at the time, step counting
`
`devices that utilize an inertial sensor to measure motion to detect steps generally
`
`required the user to first position the device in a limited set of orientations. In some
`
`devices, the required orientations are dictated to the user by the device. In other devices,
`
`the beginning orientation is not critical, so long as this orientation can be maintained.
`
`Further, the inventors observed that devices at the time were often confused by motion
`
`noise experienced by the device throughout a user's daily routine. The noise would cause
`
`false steps to be measured and actual steps to be missed in conventional step counting
`
`
`
`5
`
`

`

`
`
`devices. Conventional step counting devices also failed to accurately measure steps for
`
`individuals who walk at a slow pace.
`
`3.
`
`According to the invention of the ’508 Patent, a device to monitor human
`
`activity using an inertial sensor assigns a dominant axis after determining the orientation
`
`of an inertial sensor. he orientation of the inertial sensor is continuously determined, and
`
`the dominant axis is updated as the orientation of the inertial sensor changes.
`
`
`ONE OF ORDINARY SKILL IN THE ART
`
`V.
`
`4.
`
`Patent claims must be viewed from the perspective of one of ordinary skill
`
`in the art. A Person of Ordinary Skill in the Art (POSA) in November 1999 would have been
`
`one with a bachelor’s degree in engineering, computer science, or related technical area
`
`with 2 years of experience related to accelerometers or similar devices. Additional
`
`experience can compensate for a lack of a degree.
`
`5.
`
`I am aware that the petitioner has a somewhat different view of a POSA.
`
`While I disagree with a few of the nuances of petitioner’s definition of a POSA, our
`
`definitions are substantially similar. Even if one adopts the petitioners view of a POSA, it
`
`would not alter my opinions.
`
`VI.
`
`GENERAL ISSUES
`
`A.
`
`6.
`
`Motivation to Combine
`
`Throughout the petition, the petitioner makes conclusory claims regarding
`
`motivation to combine. A few examples are discussed here.
`
`
`
`6
`
`

`

`
`
`7.
`
`The petitioner states “It would have been obvious for a POSITA to combine
`
`Pasolini and Fabio because, as described below, the combination is merely a use of a
`
`known technique to improve a similar device, method, or product in the same way.”
`
`However, in the paragraph just prior to this, the petitioner states “Specifically, Fabio’s
`
`pedometer uses different counting modes to more accurately detect and count steps.
`
`Fabio’s pedometer has other features that are similar to those of Pasolini.”
`
`8.
`
`If, as the petitioner claims, the two asserted prior art inventions are similar,
`
`there is no need to combine. The petitioner does not identify any particular deficiency in
`
`either Pasolini or Fabio, that the other will address.
`
`9.
`
`Later the petitioner states “The combination of Pasolini and Fabio would
`
`therefore provide improvements to Pasolini’s pedometer by providing improved step
`
`recognition, which would result in a more accurate step count. Ex.1003, p.35. Thus, it
`
`would have been obvious to combine Pasolini and Fabio as the combination is merely the
`
`use of Fabio’s known step counting technique to improve Pasolini’s similar device in the
`
`same way” However, again the petitioner does not state what the particular deficiency in
`
`Pasolini is that Fabio will correct. This makes it extremely unlikely that a POSITA would
`
`have been motivated to combine Fabio and Pasolini in order to correct a deficiency that
`
`is not even identified.
`
`10.
`
`Eventually the petitioner does identify a specific item. On page 30 of the
`
`Petition, the petitioner states “As described above, a POSITA would have been motivated
`
`to combine the teachings of Fabio with those of Pasolini to improve Pasolini’s pedometer
`
`
`
`7
`
`

`

`
`
`with the step validating procedures of Fabio’s similar pedometer in order to improve step
`
`counting accuracy.”
`
`11.
`
`From the aforementioned quote it appears the petitioner believes
`
`Pasolini’s step counting is inaccurate and needs improvement. However, the petitioner
`
`does not describe how Pasolini is inaccurate, the degree of inaccuracy, or specifically how
`
`Fabio will improve it. This makes it very unlikely that a POSITA would have been motivated
`
`to combine Fabio and Pasolini in order to correct ambiguous, undefined problems in
`
`Pasolini, without any clear indication of exactly what Fabio would correct nor how.
`
`12.
`
`Later the petitioner states “A POSITA would have found it obvious to
`
`combine Pasolini, Fabio, and Richardson because, as described below, the combination is
`
`merely a use of a known technique to improve a similar device, method, or product in the
`
`same way. Ex.1003, p.49. In fact, a POSITA would have recognized that combining such
`
`teachings was common practice in dealing with noisy sensors and accelerometers and
`
`POSITAs commonly used filters similar those described in Richardson to condition
`
`accelerometer outputs in wearable applications.” Pet. 37 citing Ex.1003, p.49.
`
`13.
`
`The problem with the statement by the Petition and by Dr. Paradiso, is
`
`there are no sensor filters in Richardson. The word filter does not even appear anywhere
`
`therein. The closest thing to a reference to a filter in Richardson is the passage that starts
`
`“This embodiment may further include an auxiliary audio fader arrangement. The audio
`
`fader arrangement has an auxiliary audio input connector for receiving an auxiliary audio
`
`input signal from an auxiliary audio device. A fader, which is controlled by the operation
`
`of the personal fitness monitoring device, connects the auxiliary audio input signal to an
`
`
`
`8
`
`

`

`
`
`audio output device used by the user interface of the personal fitness monitoring device
`
`to present the user interface messages. The fader is configured to suppress the auxiliary
`
`audio input signal when the user interface of personal fitness monitoring device presents
`
`a message to the user.”
`
`14.
`
`That does not refer to a filter for sensors, but rather a technique that fades
`
`the audio input when there is a message for the user. Neither the petitioner nor Dr.
`
`Paradiso explain what Pasolini or Fabio device need to filter out. Then they compound
`
`this error with pointing to non-existent filters in Richardson to be used to filter
`
`unidentified sensor noise in Fabio and Pasolini. A POSITA would not have been motivated
`
`to combine Richardson with Pasolini and Fabio to mitigate an unidentified ‘sensor noise’
`
`problem, with a sensor filter that Richardson does not even have.
`
`15.
`
`This issue permeates the petition and Dr. Paradiso’s declaration. The
`
`statement that a POSITA would have found it ‘obvious to combine’ Paladino, Fabio and/or
`
`Richardson is repeated, but the specific deficiency that the combination would address,
`
`and how it would address it is not identified. Therefore, a POSITA would not have been
`
`motivated to combine these inventions.
`
`B.
`
`Dominant Axis
`
`16.
`
`In general, the petitioner conflates the dominant axis in the ‘508 patent with
`
`the Z axis in Fabio and Pasolini. This is incorrect for several reasons.
`
`17.
`
`In Pasolini, the only mention of orientation is
`
`“For example, the main vertical axis can be identified at each acquisition
`of a new acceleration sample, block 30 of FIG. 4, so as to take into
`account variations in the orientation of the pedometer device 1, and
`consequently of the accelerometer 2 arranged inside it.”
`
`
`
`9
`
`

`

`
`
`
`This depends entirely on the vertical axis but tries to account for “variations
`
`18.
`
`in the orientation of the pedometer device” It should be noted that Fabio, does not even
`
`mention orientation. It is clear that Pasolini is only concerned about a single axis and
`
`assumes that axis will be the main axis. This is made clear many places in Pasolini, a
`
`sample of such data is provided here:
`
`“In use, the accelerometer 2 detects the component along the detection axis z of the
`vertical acceleration generated during the step, and produces a corresponding
`acceleration signal A.”
`
`“The accelerometer 2 could be equipped with a number of axes of
`measurement, for example three mutually orthogonal axes of measurement,
`and be built, for example, as described in “3-axis Digital Output Accelerometer
`For Future Automotive Applications”, B. Vigna et al., AMAA 2004. In this case,
`according to one embodiment of the present invention, the algorithm
`implemented by the processing unit 3 envisages identifying the main vertical axis
`to be used for step detection as the axis of detection that has the highest mean
`acceleration value Accm (on account of gravity). For example, the main vertical
`axis can be identified at each acquisition of a new acceleration sample, block 30
`of FIG. 4, so as to take into account variations in the orientation of the
`pedometer device 1, and consequently of the accelerometer 2 arranged inside
`it.”
`
`
`19.
`
`It is clear that Pasolini did not account for changing axis, and in fact it seems
`
`likely that was not even contemplated. That is in stark contrast to the ‘508 patent wherein
`
`any direction might become dominant and detecting the currently dominant axis is crucial
`
`(note the emphasis are added).
`
`“Embodiments of the present invention are designed to monitor human activity
`using an inertial sensor. In one embodiment, a dominant axis is assigned after
`determining an orientation of an inertial sensor”
`
`“In one embodiment, the dominant axis setting logic 140 determines an
`orientation of the electronic device 100 and/or the inertial sensor(s) within the
`electronic device 100. The orientation may be determined based upon the
`rolling averages of accelerations created by the rolling average logic 135.”
`
`
`
`
`10
`
`

`

`
`
`
`
`20.
`
`This is not a trivial difference. A POSA would immediately understand the
`
`significant advantages that the ‘508 patent has over Fabio or Pasolini. And in fact the ‘508
`
`patent explicitly discussed the advantages this technology presents over the prior art. In the
`
`background of the invention section, the ‘508 inventor point out the deficiencies of the
`
`prior art stating:
`
`“Steps may be accurately counted regardless of the placement and/or orientation of
`the device on a user. Steps may be accurately counted whether the electronic device
`100 maintains a fixed orientation or changes orientation during operation. The
`electronic device 100 may be carried in a backpack, pocket, purse, hand, or
`elsewhere, and accurate steps may still be counted.”
`
`
`21.
`
`The petitioner completely ignores the fact that with the ‘508 patent, any
`
`axis can be the dominant axis, and that this provides a significant advantage over the prior
`
`art. The issue of the dominant axis is significant to the very claims the petitioner is
`
`challenging. Dominant axis is addressed three times in claim 1 alone, then again in claim
`
`2. Claim 3 depends on claim 1. Then in claim 10 dominant axis is again discussed, in this
`
`instance four times. Then again in claim 11. Claims 12 and 13 depend on claim 10.
`
`22.
`
`Claim 14 returns to explicitly discussing the dominant axis three times, and
`
`again in claim 15. Claims 16 and 17 depend on claim 14, and claim 18 depends on claim
`
`17.
`
`23.
`
`Once one understands that the dominant axis in the ‘508 patent is
`
`substantially different than the simple vertical axis in Fabio and Pasolini, and further
`
`conveys a significant advantage, then the challenged claims can be immediately seen as
`
`not being obvious nor anticipated by Fabio or Pasolini alone or in combination.
`
`
`
`11
`
`

`

`
`
`C.
`
`Cadence Window
`
`24.
`
`Claim 1 recites “updating the cadence window as actual cadence changes.”
`
`Claim 5 recites “updating the cadence window as a cadence of the motion cycle changes.”
`
`Claim 10 recites “a cadence logic to update the cadence window as actual cadence
`
`changes.” Claim 12 states “the cadence logic to update a dynamic cadence window.”
`
`Claim 14 states “updating the cadence window as actual cadence changes.”
`
`25.
`
`The petitioner claims “Fabio discloses this limitation. Ex.1003, p.78. First,
`
`the limitation is substantially similar to the limitation in [1.4] and is taught by Fabio as
`
`discussed above. Second, Fabio discloses that the updating of its validation window is
`
`performed by its control unit (i.e., a cadence logic): “the control unit 5 executes a first
`
`validation test” that is performed as described in [1.4]. Ex.1003, p.XX; see also Ex.1006,
`
`4:22-40.” However, what Fabio actually states is shown here (note that portion
`
`underlined in red is the portion the petitioner cited):
`
`
`
`12
`
`

`

`
`
`
`
`26.
`
`The petitioner has extracted a small phrase, not even a complete sentence.
`
`And in doing so has removed the context. What is being describes is a test of the
`
`regularity of the individual step. This is the first validation test. Even if one supposes that
`
`“regularity of the individual step” to be synonymous with “cadence”, this excerpt is not
`
`describing updating the “regularity of the individual step”. This in no way describes
`
`updating anything even analogous to the cadence window. It must also be noted that
`
`Fabio only discusses updating with respect to updating the number of steps, not anything
`
`even analogous to the cadence window.
`
`VII.
`
`SPECIFIC CLAIM ELEMENTS
`
`27.
`
`The petitioner claims that “Claim 5 is obvious under 35 U.S.C. § 103(a)
`
`over Pasolini in view of Fabio, further in view of Richardson.” I address claim 5 in detail
`
`in this section of my declaration.
`
`
`
`13
`
`

`

`
`
`
`
`Claim 5.1 wherein the dynamic motion criteria includes at least a lower
`A.
`threshold,
`
`28.
`
`The petitioner claims “Fabio teaches using “motion criteria” to
`
`recognize a step in that the acceleration signal AZ shows a positive peak, higher
`
`than a positive acceleration threshold AZP, followed by a negative peak, smaller
`
`than a negative acceleration threshold AZN.”
`
`29.
`
`It is first important to understand how the ‘508 patent describes
`
`the lower threshold. The following quotes from the ‘508 are helpful in this regard:
`
`a. “In one embodiment, measurements must be larger than a lower
`
`threshold to qualify as a step. In one embodiment, the threshold
`
`comparator 160 compares measurements to an upper threshold.”
`
`b. “In one embodiment, the threshold comparator 160 compares
`
`measurements to an upper threshold. In one embodiment, only a
`
`measurement having a smaller absolute value of acceleration than the
`
`upper threshold and a higher absolute value than the lower threshold is
`
`counted as a step.”
`
`30.
`
`The emphasis is added. Note that the ‘508 is comparing a lower
`
`threshold to an upper threshold. A step is recognized if there is a higher absolute
`
`value than the lower threshold. Fabio does just the opposite “followed by a
`
`negative peak, smaller than a negative acceleration threshold AZN”. Even if one
`
`excepts the view of Dr. Paradiso and the petitioner that the negative acceleration
`
`threshold of Fabio is the same as the lower threshold of the ‘508, the two are
`
`being used in opposite manners.
`
`14
`
`

`

`
`
`
`
`31.
`
`This becomes clearer when viewing figure 8 from the ‘508 patent.
`
`32.
`
`Quoting from the ‘508 patent “At block 820, processing logic
`
`determines whether acceleration along the dominant axis is greater than a lower
`
`threshold. If the measurement is not greater than the lower threshold, no step
`
`15
`
`
`
`

`

`
`
`may be recognized or counted for that measurement (block 840). If the
`
`measurement is greater than the lower threshold, the processing logic continues
`
`to block 825.”
`
`33.
`
`The petitioner states “As also described above in [4.1], a POSITA
`
`34.
`
`would have found it obvious to implement Pasolini’s adaptive positive and
`
`negative thresholds into Fabio’s step counter to further improve step counting accuracy.
`
`Ex.1003, p.54; see also Ex.1005, 1:61-2:2.” However, nowhere does the petitioner
`
`describe how this would improve step counting accuracy, nor which of the two asserted
`
`prior art inventions (Pasolini or Fabio) requires improvement in step counting accuracy.
`
`35.
`
`It must also be noted that any discussion of motivation to combine should
`
`take into account that while the petitioner describes “Fabio” and “Pasolini”, these are two
`
`patents by the same inventors, namely: Fabio Pasolini and Ivo Binda. The same inventors
`
`created both pieces of prior art, and they did not see a motivation to combine. That is a
`
`very compelling reason to reject any claim that a POSITA would see a motivation to
`
`combine.
`
`5.2 wherein the lower threshold is adjusted based on at least one of a rolling
`average of accelerations and / 5.3 wherein the lower threshold is adjusted
`based on at least one of …] the orientation of the inertial sensor.
`
`36.
`
`The petitioner claims that a POSITA would have been motivated to
`
`combine Fabio, Pasolini, and Richardson. As has already been explained, a POSITA would
`
`not have been motivated to combine Fabio and Pasolini.
`
`37.
`
`The petitioner states “ Richardson teaches computing a moving average of
`
`acceleration samples for a current set of acceleration data that is maintained in a buffer“.
`
`
`
`16
`
`

`

`
`
`What Richardson states is “The 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. The next step is to extract the heart signal pulse peaks,
`
`convert them to beats per minute, and put them in a beat queue, ordered by time of
`
`occurrence.”
`
`38.
`
`Nothing in Richardson suggests adjusting a threshold based on this
`
`average. Furthermore, the petitioner has stated that Richardson must be combined with
`
`Fabio and Pasolini to render this claim limitation. As has already been explained in this
`
`declaration, a POSITA would not have been motivated to combine Fabio and Pasolini. The
`
`petitioner has not described a scenario in which Richardson is combined with either only
`
`Fabio or only Pasolini.
`
`39.
`
`Beyond which, the petitioner bases the combination of Fabio and Pasolini
`
`on a mischaracterization of Pasolini stating “A POSITA would have recognized that the
`
`acceleration datum CalAcc is based on an “average of accelerations” because CalAcc is
`
`calculated from the new acceleration sample and the values of previously acquired
`
`accelerations.”
`
`40.
`
`The below quote from Pasolini shows the CalAcc to be a ‘first acceleration
`
`datum’ not a mean or average nor a combination of the new acceleration sample and the
`
`values of previously acquired accelerations:
`
`a. “"The algorithm then proceeds, block 12, with the search for the positive
`
`phase of the step, by comparing the value of the acceleration datum
`
`
`
`17
`
`

`

`
`
`CalAcc with the positive reference threshold S+ to detect a positive
`
`acceleration peak of the acceleration signal A" EX1005, 4:24-28.
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`41.
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`Again, CalAcc is a single first acceleration datum, not a mean or average. If
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`it were an average that would significantly alter the process of comparing with the
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`positive reference threshold. In fact, if CalAcc were a mean or average, then it would be
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`more difficult to detect acceleration. The comparison of an average to an acceleration
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`peak would, by definition be substantially the same at every test.
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`a. “"Until a positive phase of the step is found, block 13, the algorithm
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`proceeds with acquisition of a new acceleration datum CalAcc in block
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`11..." EX1005, 4:29-31.
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`42.
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`Again, the actual language of Pasolini makes it abundantly clear that CalAcc
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`is not an average or a mean, nor a combination of the new acceleration sample and the
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`values of previously acquired accelerations, but rather a single datum.
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`43.
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`A POSITA would readily see that not only is the CalAcc in Pasolini not an
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`average nor a combination of the new acceleration sample and the values of previously
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`acquired accelerations, but if it were converted to an average, Pasolini’s ability to detect
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`acceleration would be significantly compromised.
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`44.
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`A POSITA would further understand that Pasolini’s reference to eliminating
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`the “d.c. component” so that CalAcc can be determined with “zero mean value” is
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`referring to the mean amplitude of the waveform, and not an averaging of any kind. A
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`POSITA would have known that when describing a periodic function in the time domain,
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`the DC bias, DC component, DC offset, or DC coefficient is the mean amplitude of the
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`18
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`waveform. If the mean amplitude is zero, there is no DC bias, and a POSITA would
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`understand that having a DC bias, or DC component is generally undesirable.
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`45.
`
`The petitioner’s entire basis for wanting to combine Fabio and Pasolini is
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`based on a mischaracterization of Pasoliini. Therefore, a POSITA would not be motivated
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`to combine Pasolini and Fabio.
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`B.
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`Claim 1. continuously determining an orientation of the inertial sensor;
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`46.
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`The petitioner claims that Pasolini renders this obvious and cites the
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`following:
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`“The accelerometer 2 could be equipped with a number of axes of
`measurement, for example three mutually orthogonal axes of
`measurement …. In this case, according to one embodiment of the
`present invention, the algorithm implemented by the processing unit 3
`envisages identifying the main vertical axis to be used for step
`detection as the axis of detection that has the highest mean
`acceleration value Accm (on account of gravity). For example, the
`main vertical axis can be identified at each acquisition of a new
`acceleration sample, block 30 of FIG. 4, so as to take into account
`variations in the orientation of the pedometer device 1, and
`consequently of the accelerometer 2 arranged inside it.”
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`47.
`
`Pasolini frequently discusses taking new samples from the accelerometer.
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`However, Pasolini is only concerned with the orientation of the Z axis, and never mentions
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`determining other axis. Thus, Pasolini is not determining the orientation of the inertial
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`sensor, but only determining one of three dimensions. From examining Pasolini, it is
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`apparent that the inventor did not contemplate the orientation of the entire sensor.
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`48.
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`It is also noteworthy that the petitioner does not point to any indication
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`that Pasolini’s determining of just the Z axis is constant. Every discussion of sampling
`
`from the accelerometer in Pasolini is periodic.
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`19
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`49.
`
`These are significant differences. Moving from Pasolini which has
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`intermittent sampling and only determines the Z axis, to an invention that is
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`“continuously determining an orientation of the inertial sensor” is not an obvious or
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`anticipated improvement. It is a significant improvement that would require significant
`
`engineering work. Therefore, Pasolini neither discloses this limitation, nor renders it
`
`obvious.
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`C.
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`Claim 1. assigning a dominant axis;
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`50.
`
`The petitioner claims that Pasolini discloses this limitation, and states the
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`following:
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`“Pasolini discloses this limitation bec