UNITED STATES PATENT AND TRADEMARK OFFICE
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`———————
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`———————
`
`Case IPR2018-01027
`Patent 8,712,723 B1
`
`———————
`
`
`
`PETITIONER’S REQUEST FOR REHEARING
`OF INSTITUTION DECISION UNDER 37 CFR § 42.71(d)
`
`
`
`
`
`
`
`
`
`
`
`
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`———————
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`———————
`
`Case IPR2018-01027
`Patent 8,712,723 B1
`
`———————
`
`
`
`PETITIONER’S REQUEST FOR REHEARING
`OF INSTITUTION DECISION UNDER 37 CFR § 42.71(d)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Petitioner’s Request for Rehearing
`
`IPR2018-01027
`U.S. Patent No. 8,712,723 B1
`
`
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION ............................................................................................... 1
`
`II. LEGAL STANDARD ......................................................................................... 2
`
`III. RATIONALE FOR REHEARING ..................................................................... 3
`
`A. The Board misapprehended the Petition’s and Dr. Paradiso’s analyses
`of the Richardson and Harris references. ..................................................... 3
`
`B. The Board overlooked Pasolini’s teaching of adjusting its lower
`threshold based on a mean value of acceleration data and the
`orientation of the inertial sensor. .................................................................. 7
`
`1. Pasolini does in fact adjust its negative threshold based on an
`average of acceleration data. ......................................................................... 7
`
`2. Pasolini does in fact adjust its negative threshold based on the
`orientation of the inertial sensor. ................................................................. 11
`
`C. Institution of this proceeding should not be denied under 35 U.S.C. §
`314(a) or § 325(d). ...................................................................................... 13
`
`IV. CONCLUSION .................................................................................................. 15
`
`
`
`
`
`
`
`ii
`
`
`
`
`Petitioner’s Request for Rehearing
`
`IPR2018-01027
`U.S. Patent No. 8,712,723 B1
`
`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Brand v. Miller,
`487 F.3d 862 (Fed. Cir. 2007) ...................................................................... 10, 13
`PPG Indus., Inc. v. Celanese Polymer Specialties Co.,
`840 F.2d 1565 (Fed. Cir. 1988) ............................................................................ 2
`Synopsys, Inc. v. Mentor Graphics Corp.,
`814 F.3d 1309 (Fed. Cir. 2016) .................................................................... 10, 13
`Superguide Corp. v. DirecTV Enterprises, Inc.,
`358 F. 3d 870 (Fed. Cir. 2004). .......................................................................... 14
`
`
`Other Authorities
`37 C.F.R. § 42.6(e) ................................................................................................... 13
`37 C.F.R. § 42.71(c) ................................................................................................... 2
`37 C.F.R. § 42.71(d) .............................................................................................. 1, 3
`37 C.F.R. § 42.108(c) ........................................................................... 1, 2, 10, 13, 15
`
`
`
`
`iii
`
`
`
`
`Petitioner’s Request for Rehearing
`I.
`INTRODUCTION
`Petitioner Apple Inc. (“Apple”) respectfully requests rehearing under 37
`
`IPR2018-01027
`U.S. Patent No. 8,712,723
`
`
`
`
`C.F.R. § 42.71(d) of the Board’s October 18, 2018 Decision denying institution of
`
`IPR2018-01027 directed to claims 4 and 19 of U.S. Patent No. 8,712,723 (“the
`
``723 patent”). Specifically, Petitioner requests that the Board reconsider its
`
`determination that the Petition failed to establish that the combination of Pasolini
`
`(Ex.1005), Fabio (Ex.1006), and Richardson (Ex.1007) renders obvious the
`
`limitation of claims 4 and 19— “wherein the lower threshold is adjusted based on
`
`at least one of a rolling average of accelerations and the orientation of the inertial
`
`sensor.”
`
`Rehearing is warranted because the Board misapprehended how Harris
`
`applies to the combination of Pasolini, Fabio, and Richardson, as set forth in the
`
`Petition. Harris is a textbook that provides evidence that a POSITA knew that the
`
`“moving average,” as taught by Richardson, is the same as the “rolling average” as
`
`recited in the claims. Ex.1011 at 243. Harris was also supplied as further evidence
`
`for why a POSITA would have been motivated to combine the teachings of
`
`Richardson with Pasolini and Fabio. See Petition at 45, 51. The Board, though,
`
`held that other teachings of Harris contradicted Richardson’s teachings.
`
`Specifically, the Board concluded that: “Petitioner’s contention that using
`
`data from only the current stepping period would ‘yield a smoother acceleration
`1
`
`
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`threshold’ does not comport with Petitioner’s stated rationale or the teachings of
`
`Harris upon which Petitioner and its declarant rely.” Decision at 17. However,
`
`these alleged contradictions between Harris’s teachings and Richardson’s teaching
`
`reflect a fundamental, technical misunderstanding of Richardson.
`
`Specifically, the Board misunderstood Richardson’s “stepping period” to be
`
`a single data point. However, the term “stepping/sample period” in Richardson
`
`refers to the entirety of the acceleration data in Richardson’s buffer and the data in
`
`the buffer represents multiple data points. The Board’s misunderstanding of the
`
`contents of the data in Richardson’s buffer caused the Board to see inconsistencies
`
`when considering Harris.
`
`As will be explained in further detail below, a proper understanding of the
`
`“stepping period” in Richardson’s buffer (which includes multiple steps) leads to a
`
`different conclusion, and the record establishes that the combination of Fabio,
`
`Pasolini, and Richardson renders claims 4 and 19 obvious. Petitioner respectfully
`
`requests that the Board reverse its error and institute trial.
`
`II. LEGAL STANDARD
`The Board’s decision on institution is reviewed for an abuse of discretion. 37
`
`C.F.R. § 42.71(c). An abuse of discretion occurs when a “decision was based on an
`
`erroneous conclusion of law or clearly erroneous factual findings, or . . . a clear
`
`error of judgment.” PPG Indus., Inc. v. Celanese Polymer Specialties Co., 840
`2
`
`
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`F.2d 1565, 1567 (Fed. Cir. 1988). Further, a request for rehearing “must
`
`specifically identify all matters the party believes the Board misapprehended or
`
`overlooked, and the place where each matter was previously addressed in a motion,
`
`an opposition, or a reply.” 37 C.F.R. § 42.71(d).
`
`III. RATIONALE FOR REHEARING
`A. The Board misapprehended the Petition’s and Dr. Paradiso’s
`analyses of the Richardson and Harris references.
`In the Decision, the Board misapprehended the Reasons to Combine set
`
`forth in the Petition, and particularly the application of Harris to the proposed
`
`combination of Fabio, Pasolini, and Richardson. While the Board identified the
`
`Petition’s reliance on Harris as evidence of the benefits of using a moving or
`
`rolling average, the Board misapprehended how the evidence within Harris is
`
`applicable to the combination of Fabio, Pasolini, and Richardson. This
`
`misapprehension led, in part, to the Board incorrectly denying institution.
`
`The Board’s misapprehension is evident from the following passage from
`
`the Decision:
`
`Harris explains that “[e]ach point on a moving average curve is
`generally calculated by averaging the value for the current period plus
`a fixed number of prior periods” and “the greater the number of
`intervals, the smoother the moving average curve.” Ex. 1011, 243
`(emphasis added). Petitioner contradicts this stated rationale for using
`Richardson’s teachings by arguing that one should only use “data that
`is generated in the current sample period, rather than an average based
`
`
`
`3
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`on the data from both the current and previous stepping periods.” Pet.
`44–45.
`
`Decision at 17. The contradiction perceived by Board is predicated on the “current
`
`period” in Harris being analogous to the “stepping/sample period” in Richardson,
`
`and thus Richardson’s average is only based on data from a singular sample period,
`
`as opposed to current and previous stepping periods. This is incorrect. The “current
`
`period” in Harris is not analogous to the “stepping/sample period” in Richardson.
`
`The term “stepping/sample period” in Richardson reflects acceleration data
`
`associated with multiple footfalls stored in one of Richardson’s buffers at a given
`
`time. See Petition at 44.
`
`In more detail, the data in Richardson’s buffer includes multiple acceleration
`
`samples generated by a user engaged in stepping activity (i.e., the buffers contains
`
`data for multiple steps). See Ex.1007 at 28:42-46 (“[A] loop goes through the
`
`buffer, A or B, looking for peaks of positive acceleration 168 that are indicative of
`
`footfalls. Each interval between footfalls is taken to be a locomotor ‘step’, and is
`
`summarized and put in a step queue.”). When the Petition references Richardson’s
`
`“current sample/stepping period,” it means all of the acceleration data in the buffer,
`
`not just a single acceleration sample or even acceleration data for a single step.
`
`Then, Richardson uses the data in the buffer, which consists of data
`
`representing a series of footfalls, to calculate its moving average. See Petition at 44
`
`
`
`4
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`quoting Ex.1007 at 28:33-36 (“[T]he device ‘compute[s] 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.’”).
`
`Not appreciating that Richardson’s “sample/stepping periods” contain data
`
`about multiple footfalls that are used to generate a moving average, led the Board
`
`to conclude incorrectly that “Petitioner’s stated rationale or the teachings of
`
`Harris” do not comport with “Petitioner’s contention that using data from only the
`
`current stepping period would ‘yield a smoother acceleration threshold.’” See
`
`Decision at 17. The “current stepping” period within this quote is about
`
`Richardson, where the “current stepping” period is data reflecting multiple
`
`footfalls. Thus, Petitioner’s actual contention of using data from the current
`
`stepping period is using data consisting of multiple footfalls, not just a current,
`
`singular footfall. Harris’s explanation of calculating a moving average “by
`
`averaging the value for the current period plus a fixed number of prior periods” is
`
`entirely consistent with Richardson’s teaching of “comput[ing] at each sample time
`
`a moving average of acceleration 168 ….,” where the data that is being averaged
`
`includes multiple footfalls sampled over time. See Ex.1007 at 28:34-39; Ex.1011 at
`
`243. Again, this is because the data in the Richardson’s buffer consists of data
`
`reflecting multiple steps.
`
`
`
`5
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`The Board also incorrectly concluded that “there is no explicit disclosure in
`
`Richardson that the moving average, or baseline, is generated based on data in only
`
`the current sample period.” See Decision at 18. However, as discussed above, the
`
`“current sample period” in Richardson is all the data in the buffer (which reflects
`
`multiple steps), and the explicit disclosure in Richardson indicates that the data in a
`
`single buffer is analyzed. Ex.1007 at 28:34-36 (“While one buffer, A or B is being
`
`filled with data, the data in the other, B or A, is being analyzed.”). And, the first
`
`step in this analysis is computing the moving average for the data in the buffer.
`
`Ex.1007 at 28:36-39 (“The first step is to compute at each sample time a moving
`
`average of acceleration 168 ….”). This supports Dr. Paradiso’s conclusion
`
`reiterated in the Petition that “Richardson’s moving average is based on the data
`
`that is generated in the current sample period [i.e., currently analyzed buffer],
`
`rather than an average based on the data from both the current and previous
`
`stepping periods.” Petition at 44-45 citing Ex.1003 at 59-60. To be clear, the
`
`distinction being drawn in the Petition is calculating the moving average using the
`
`samples of multiple footfalls within the current sample period versus calculating an
`
`average using data previously held in the buffer.
`
`Thus, the Board misapprehended the Petition’s and Dr. Paradiso’s analyses
`
`of Richardson in combination with Fabio and Pasolini by applying an incorrect
`
`
`
`6
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`understanding of the evidence against the teachings of Harris. Petitioner therefore
`
`respectfully requests that the Board reconsider its decision and institute this
`
`proceeding.
`
`B.
`
`The Board overlooked Pasolini’s teaching of adjusting its lower
`threshold based on a mean value of acceleration data and the
`orientation of the inertial sensor.
`Claims 4 and 19 of the ’723 patent, the only claims challenged in this
`
`proceeding, recite “wherein the lower threshold is adjusted based on at least one of
`
`a rolling average of accelerations and the orientation of the inertial sensor.”
`
`Ex.1001 at 15:31-34, 16:65-17:3. The Petition and Dr. Paradiso explained in detail
`
`how Pasolini uses a mean value (i.e., an average) of acceleration data to set its
`
`negative threshold used for determining a step. The Board, however, found the
`
`opposite and, in doing so, misapprehended Pasolini’s teachings.
`
`1.
`
`Pasolini does in fact adjust its negative threshold based on
`an average of acceleration data.
`
`According to the Board, “Pasolini does not use an average of the
`
`acceleration data in its calculation of the threshold values.” Decision at 20. In
`
`reaching this conclusion, the Board misapprehended how Pasolini calculates its
`
`threshold values.
`
`Specifically, as noted in the Petition, Pasolini teaches calculating its
`
`threshold values (S+ and S–) “as a function of the positive envelope Env+ and
`7
`
`
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`negative envelope Env−, respectively.” Ex. 1005 at 5:48-53; Petition at 50. In turn,
`
`Env+ and Env− are calculated “for each new acceleration data CalAcc”. Ex. 1005 at
`
`5:48-53; Petition at 50.
`
`The CalAcc value is calculated using the equation “CalAcc=Acc−Accm.”
`
`Ex.1005 at 6:3-5; Petition at 49.1 Accm is the mean value of acceleration. Ex.1005
`
`at 5:55-60; Petition at 49. Thus, the CalAcc value depends on the mean value
`
`Accm. Ex.1005 at 6:3-5; Petition at 49.
`
`As testified by Dr. Paradiso, and as taught by the mathematical equations in
`
`Pasolini, the mean value of acceleration (Accm) is used to calculate CalAcc, which
`
`is used to calculate Env+ and Env−, which are used to calculate the threshold values
`
`(S+ and S–). Accordingly, the threshold values (S+ and S–) are mathematically
`
`
`
`1 The Petition discusses this in more detail, showing that Pasolini teaches
`
`“acquir[ing] from the accelerometer 2 a new acceleration sample Acc of the
`
`acceleration A.” Ex.1005 at 5:55-56; see also Petition at 48; Ex.1003 at 65. The
`
`Petition then stated that the CalAcc value is calculated by subtracting the mean
`
`value of the acceleration sample Accm from the acceleration sample Acc. Ex.1005
`
`at 6:2-5; see also Petition at 49; Ex.1003 at 65.
`
`
`
`8
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`dependent on the mean (e.g., average) value of acceleration data. Thus, Pasolini
`
`teaches that the threshold values are based on an average of acceleration data.
`
`The Board also stated that even if Pasolini’s “acceleration datum CalAcc is
`
`based on an ‘average of accelerations’” (Petition at 49), “this does not mean that
`
`the lower threshold is adjusted based on the average acceleration” as required by
`
`claims 4 and 19. Decision at 21. Again, as shown mathematically above, the upper
`
`threshold value S+ and lower threshold value S– are mathematically dependent on
`
`the mean (e.g., average) value of acceleration data.
`
`The Board appears to rely on its own reasoning (despite contrary expert
`
`testimony) that “because the mean value of the acceleration sample is subtracted
`
`from each acceleration datum … the mean value would appear to have no material
`
`effect on the difference between successive acceleration datum measurements and,
`
`therefore, the adjustment of the lower threshold.” Decision at 21. The Board’s
`
`conclusion that subtracting a value means the value has no material effect is
`
`mathematically false. For example, consider any scenario where you subtract a
`
`small value as opposed to subtracting a large value, particularly where you are re-
`
`performing the subtraction repeatedly. Whether the value is large or small has a
`
`significant impact on any subsequent equation using the result of the subtraction.
`
`
`
`9
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`The Board’s reasoning also overlooks Pasolini’s express teachings and gives
`
`no credit to the testimony of Dr. Paradiso, who obtained his Ph.D. from MIT, is a
`
`Chair for the International Workshop on Wearable and Implantable Body Sensors,
`
`who has written papers on gait analysis using a shoe-integrated wireless sensor
`
`system, and teaches classes on sensor technologies at MIT. See Ex.1004.
`
`Further, the Board cited no evidence that contracts Dr. Paradiso’s conclusion
`
`or the teachings of Pasolini, or to support the conclusion that subtracting a value
`
`means it has no material impact on the subsequent calculations. The Board is not
`
`permitted to rely on its own expertise. See Brand v. Miller, 487 F.3d 862, 869 (Fed.
`
`Cir. 2007) (“although the Board’s expertise appropriately plays a role in
`
`interpreting record evidence,” “in the context of a contested case, it is
`
`impermissible for the Board to base its factual findings on its expertise, rather than
`
`on evidence in the record.”) Synopsys, Inc. v. Mentor Graphics Corp., 814 F.3d
`
`1309, 1320 (Fed. Cir. 2016) (“when the technology is complex and ‘beyond the
`
`comprehension of laypersons,’ expert testimony is ‘sometimes essential.’”).
`
`Accordingly, the Board misapprehended both Pasolini’s teachings and
`
`reasoning provided by Dr. Paradiso in concluding that Pasolini does not use an
`
`average of accelerations in determining the negative threshold. Petitioner therefore
`
`
`
`10
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`respectfully requests that the Board reconsider its decision and institute this
`
`proceeding.
`
`2.
`
`Pasolini does in fact adjust its negative threshold based on
`the orientation of the inertial sensor.
`
`The Board also incorrectly concluded that “Petitioner has not demonstrated
`
`that Pasolini adjusts its lower threshold based on the orientation of the sensor.”
`
`Decision at 22. This conclusion appears to be based on the Board’s own reasoning
`
`that “Pasolini updates the envelope values based on the peaks of the acceleration
`
`signals and updates the threshold values based on the envelope values. Pasolini
`
`does not disclose or suggest using the sensor orientation as a factor in setting the
`
`threshold values.” Decision at 22. This reasoning appears to rely on a
`
`misapprehension of the claim term “based on” and ignores reasoning provided by
`
`Dr. Paradiso.
`
`First, in reaching this incorrect conclusion, the Board appears to read the
`
`claim term “based on” to require adjusting the lower threshold directly due to the
`
`orientation of the inertial sensor. There is no such limiting language in the claim.
`
`Instead, the term “based on” in the claim allows any type of relationship between
`
`the orientation of the inertial sensor and the adjustment of the lower threshold.
`
`As the Board noted in its Decision, Pasolini teaches removing the d.c.
`
`component from the acceleration sample, which is entirely based on the orientation
`11
`
`
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`of the inertial sensor. See Decision at 21; see also Petition at 53; Ex.1003 at 70-71.
`
`Pasolini then teaches using the acceleration sample with the d.c. component
`
`removed to determine the CalAcc value. Ex.1005 at 5:56-59 (“the d.c. component
`
`of said acceleration value (due substantially to the acceleration of gravity) is
`
`eliminated so as to determine the acceleration datum CalAcc ….”). The CalAcc
`
`value is then used to set the negative (i.e., lower) threshold. Ex.1005 at 5:49-54.
`
`(“for each new acceleration datum CalAcc, of the values of the positive envelope
`
`Env+ and negative envelope Env–, and modification of the value of the positive and
`
`negative reference thresholds S+ and S– as a function of the positive envelope Env+
`
`and negative envelope Env–, respectively.”).
`
`Based on these teaching from Pasolini, Dr. Paradiso concluded that
`
`“[b]ecause the negative acceleration threshold is adjusted based on the acceleration
`
`samples that are adjusted to eliminate gravity, a POSITA would have therefore
`
`understood that the negative acceleration threshold is based on the orientation of
`
`the inertial sensor.” Petition at 53-54; Ex.1003 at 71-72. This reasoning is not
`
`conclusory, as the Board found, but is based on the express teaching from Pasolini
`
`as Dr. Paradiso explained would be understood by a person of ordinary skill in the
`
`art. See Ex.1003 at 71-72. The Board concluding otherwise represents a
`
`
`
`12
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`misapprehended meaning of the claim term “based on” to include some specific
`
`type of relationship. The claim provides no such limiting language.
`
`Second, the Board appears to have again not credited Dr. Paradiso’s
`
`reasoning and instead relied on its own understanding. This again is improper. See
`
`Brand v. Miller, 487 F.3d at 869; Synopsys, Inc. v. Mentor Graphics Corp., 814
`
`F.3d at 1320. The Petition and Dr. Paradiso’s declaration sets forth sufficient facts
`
`and evidence showing how Pasolini adjusts its negative threshold “based on” the
`
`orientation of the inertial sensor by removing the d.c. component of each
`
`acceleration sample. Petition at 53; Ex.1003 at 70-71. Per the Board’s own rule,
`
`Dr. Paradiso’s testimonial evidence should “be viewed in the light most favorable
`
`to the petitioner.” 37 C.F.R. § 42.108(c). Accordingly, the Board should reconsider
`
`its Decision and institute this proceeding.
`
`C.
`
`Institution of this proceeding should not be denied under 35
`U.S.C. § 314(a) or § 325(d).
`To the extent that the Board may consider denying this Petition under either
`
`35 U.S.C. § 314(a) or § 325(d), such action is unwarranted here. First, this Petition
`
`challenges claims 4 and 19 of the ’723 patent, which was not raised in IPR2018-
`
`00389. Second, even though Richardson was applied in an unrelated IPR filed by
`
`Petitioner five days before the ’389 IPR, the unrelated IPR uses distinctly different
`
`teachings from Richardson and Petitioner was unaware that Richardson also
`
`
`
`13
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`disclosed teachings related to a moving average of accelerations until after the ’389
`
`IPR was filed. Moreover, Petitioner was unaware of the Harris reference until well
`
`after the ’389 IPR was filed. This is relevant here because Richardson teaches a
`
`“moving average,” not a “rolling average” as required by the claim, and the Harris
`
`reference provides the necessary evidence equating the two concepts. See Ex.1011
`
`at 243. Thus, Petitioner was not aware of the requisite prior art that taught all of the
`
`limitations of claims 4 and 19 when the ’389 IPR was filed. Third, Petitioner did
`
`not gain the benefit of any previously filed Preliminary Response because claims 4
`
`and 19 and any similarly related claims had not previously been challenged. Thus,
`
`denial here based on the Board’s discretion is unwarranted.
`
`Further, Federal Circuit caselaw establishes that the claim language “at least
`
`one of” requires that both options be met. See Superguide Corp. v. DirecTV
`
`Enterprises, Inc., 358 F. 3d 870, 886 (Fed. Cir. 2004). Accordingly, the Board’s
`
`belief that “Petitioner relies on Richardson only with respect to one of two options
`
`for satisfying the requirements of the second wherein clause of claims 4 and 19”
`
`(Decision at 23) is misplaced. Claims 4 and 19 require “at least one of a rolling
`
`average of accelerations and the orientation of the inertial sensor.” Thus, Board’s
`
`opinion that the combination of Pasolini and Fabio alone would have been
`
`sufficient for establishing obviousness is incorrect.
`
`
`
`14
`
`
`
`
`Petitioner’s Request for Rehearing
`IV. CONCLUSION
`Because the Board overlooked the misapprehended the arguments in the
`
`IPR2018-01027
`U.S. Patent No. 8,712,723
`
`
`
`
`Petition and did not properly view Dr. Paradiso’s declaration as required by 37
`
`C.F.R. § 42.108(c), Petitioner respectfully submits that rehearing is warranted.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`Dated: November 19, 2018
`HAYNES AND BOONE, LLP
`2323 Victory Avenue, Suite 700
`Dallas, Texas 75219
`Telephone: 214-651-5116
`
`
`
`
`
`/Andrew S. Ehmke/
`Andrew S. Ehmke
`Registration No. 50,271
`Lead Counsel for Petitioners
`
`
`
`
`
`
`
`
`15
`
`
`
`IPR2018-01027
`
`U.S. Patent No. 8,712,723
`
`Petitioner’s Request for Rehearing
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies, in accordance with 37 C.F.R. § 42.6(e), that
`
`service was made on the Patent Owner as detailed below.
`
`Date of service November 19, 2018
`
`Manner of service Electronic Mail: ryan@etheridgelaw.com;
`brett@etheridgelaw.com; jim@etheridgelaw.com;
`jeff@etheridgelaw.com; ray.king@unilocusa.com
`
`Documents served Petitioner’s Request for Rehearing of Institution Decision
`Under 37 C.F.R. § 42.71(d)
`
`Persons served Ryan Loveless
`Brett Mangrum
`James Etheridge
`Jeffrey Huang
`Etheridge Law Group
`2600 E. Southlake Blvd., Ste. 120-324
`Southlake, TX 76092
`
`Ray A. King
`Uniloc USA, Inc.
`7160 Dallas Parkway, Ste. 380
`Plano, TX 75024
`
`
`
`
`
`
`
`/Andrew S. Ehmke/
`Andrew S. Ehmke
`Registration No. 50,271
`Lead Counsel for Petitioners
`
`
`
`16
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
