`
`
`
`Paper No.
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner
`
`_____________________
`
`
`Case No. IPR2018-01028
`Patent No. 7,881,902
`
`_____________________
`
`
`PETITIONER’S REPLY
`
`
`
`
`
`
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`
`
`
`
`
`I.
`II.
`
`III.
`
`V.
`
`C.
`
`TABLE OF CONTENTS
`Introduction ...................................................................................................... 1
`Fabio’s validation interval teaches the claimed step cadence
`window............................................................................................................. 1
`Patent Owner’s Response consists almost entirely of attorney
`argument. ......................................................................................................... 6
`IV. Patent Owner’s reliance on the prosecution history of a related
`case has no relevance to the claims at issue here. ........................................... 7
`Fabio teaches a default cadence window. ........................................................ 8
`A.
`Fabio’s TS1 teaches a default step cadence window. ............................. 8
`B.
`A POSITA would have found it obvious to modify Fabio’s
`validation interval to be a default value as the user begins
`a new activity. ...................................................................................... 10
`Patent Owner’s assertions amount to nothing more than
`attorney argument. ............................................................................... 11
`VI. Fabio teaches a determining a dynamic step cadence window
`when the step count is at or above the step count threshold. ......................... 12
`VII. Tsuji teaches “computing a rolling average of stepping periods
`of previously counted steps” as recited in claim 8. ....................................... 14
`VIII. A POSITA would have combined the teachings of Tsuji with
`those of Fabio and Pasolini. ........................................................................... 17
`IX. Conclusion. .................................................................................................... 20
`X.
`Certificate of Word Count ............................................................................. 21
`
`
`i
`
`
`
`
`
`
`
`Ex.1001
`
`Ex.1002
`
`Ex.1003
`
`Ex.1004
`
`Ex.1005
`
`Ex.1006
`
`Ex.1007
`
`Ex.1008
`
`Ex.1009
`
`Ex.1010
`
`Ex.1011
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`PETITIONER’S EXHIBIT LIST
`
`
`
`
`
`January 17, 2019
`
`U.S. Patent No. 7,653,508.
`
`Prosecution History of U.S. Patent No. 7,653,508.
`
`Declaration of Joe Paradiso, Ph.D., under 37 C.F.R. § 1.68
`
`Curriculum Vitae of Joe Paradiso
`
`U.S. Patent No. 7,463,997 to Fabio Pasolini et al. (“Pasolini”)
`
`U.S. Patent No. 7,698,097 to Fabio Pasolini et al. (“Fabio”)
`
`Reserved
`
`Reserved
`
`Reserved
`
`U.S. Patent No. 7,297,088 to Tsuji (“Tsuji”)
`
`Excerpts from Robert L. Harris, INFORMATION GRAPHICS: A
`COMPREHENSIVE ILLUSTRATED REFERENCE (1996) (“Harris”)
`
`ii
`
`
`
`
`
`
`Introduction
`
`I.
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`
`
`
`
`
`The Petition and the record as a whole provide detailed reasons why claim 8
`
`of the ’902 patent would have been obvious to a person of ordinary skill in the art
`
`(“POSITA”) in view of Pasolini (Ex.1005), Fabio (Ex.1006), and Tsuji (Ex.1010).
`
`None of Patent Owner’s arguments adequately refute the evidence of record.
`
`Moreover, the evidence of record weighs in Petitioner’s favor because Patent
`
`Owner’s Response is merely attorney argument that offers no evidence or expert
`
`testimony in support. For these reasons and the reasons discussed below, the
`
`Board’s findings in the Institution Decision should be maintained and claim 8 of
`
`the ’902 patent should be found unpatentable.
`
`II.
`
`Fabio’s validation interval teaches the claimed step cadence window.
`
`Patent Owner’s Response heavily relies on a single argument—that Fabio’s
`
`validation process is not a “step cadence window” because Fabio’s process is
`
`“retrospective.” See Response, p.7. This argument is relevant to claim 5, which
`
`recites “determining a dynamic step cadence window and using the dynamic step
`
`cadence window to identify the time frame within which to monitor for the next
`
`step,” and claim 8, which recites “computing a rolling average of stepping periods
`
`of previously counted steps” and “setting the dynamic step cadence window based
`
`on the rolling average of stepping periods.” See Ex.1001, 15:46-16:27; see also
`
`Petition, pp.29-32, 40-44.
`
`1
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`Patent Owner specifically argues that Fabio’s validation interval TV is
`
`
`
`
`
`
`
`“retrospective” because “it is used to validate only the immediately preceding step
`
`(shown in Fig. 6 as K-1) (shown in Fig. 6 as K).” Response, p.7. Patent Owner
`
`bases this flawed interpretation on a single sentence of Fabio, taken out of context,
`
`stating that “[m]ore precisely, the last step recognized is validated if the instant of
`
`recognition of the current step TR(K) falls within a validation interval TV[.]” See
`
`Response, p.13 (quoting Ex.1006, 4:35-39). Patent Owner apparently believes that
`
`the term “last step recognized” means the step recognized in some previous step
`
`cycle1, not the current step cycle. Fabio, though, does not detect a step in one step
`
`cycle, and then validate and buffer/count that step in a subsequent cycle. Rather,
`
`Fabio teaches recognizing, validating, and either buffering or counting a step in a
`
`single step cycle. See, e.g., Ex.1006, Figs. 4,7.
`
`More specifically, Fabio first teaches recognizing an acceleration signal as a
`
`step by verifying “whether the time plot of the acceleration signal AZ (i.e., the
`
`sequence of the samples acquired) has pre-determined characteristics.” Id., 4:12-
`
`15. Fabio then teaches that “[i]f … the step-recognition test is passed,” the system
`
`
`1 For purposes of this paper, the term “step cycle” refers to Fabio’s iterative
`
`process of recognizing (e.g., 225), validating (e.g., 230) and buffering/counting
`
`(235) a step upon acquisition of an acceleration sample. See Ex.1006, Figs. 4,7.
`
`2
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`“executes a first validation test, corresponding to the regularity of the individual
`
`
`
`
`
`
`
`step.” Id., 4:22-27. Depending on the state of Fabio’s system, the recognized and
`
`validated step will either be buffered (if in the first counting procedure) or counted
`
`(if in the second counting procedure). Id., 5:10-13, 6:40-43. In other words, Fabio
`
`teaches performing its step recognition, validation, and either buffering or counting
`
`in an immediately sequential manner with a single step cycle.
`
`This process is demonstrated in Fabio’s Fig. 4, for example, which details
`
`the first counting procedure 110, where steps are buffered after being both
`
`recognized and validated:
`
`3
`
`
`
`
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`
`
`
`
`
`First Counting Procedure
`(i.e., Non-Active Mode)
`
`Validate Step within
`Cadence Window
`
`Recognize
`Step
`
`Buffer Steps
`(NVC=NVC+1)
`
`
`
`If steps meet regularity threshold, add buffered steps to total steps
`and move to the second counting procedure (i.e., the active mode)
`
`
`
`Ex.1006, Fig. 4 (annotated); Petition, p.22; Ex.1003, p.27. As shown in Fig. 4,
`
`Fabio teaches recognizing a step at 225, validating the step immediately upon
`
`recognition at 230, and buffering the step upon successful validation at 255.
`
`Ex.1006, 4:12-5:13; Ex.1003, pp.47-50. Then, at block 260, if the buffer count
`
`(NVC) is less than a threshold (NT2), the process returns to block 200 to detect the
`
`next step and the step cycle repeats. Ex.1006, 5:13-29; Ex.1003, pp.50-52.
`
`4
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`A similar process is followed in Fabio’s Fig. 7, which details Fabio’s second
`
`
`
`
`
`
`
`counting procedure 130, where steps are counted after being both recognized and
`
`validated:
`
`Recognize Step
`
`Second Counting Procedure
`(i.e., Active Mode)
`
`
`
`Count Steps (NVT=NVT+1)
`
`Validate Step within
`Cadence Window
`
`
`
`Ex.1006, Fig. 7 (annotated); Petition, p.23; Ex.1003, p.28. Similar to the first
`
`counting procedure in Fig. 4, the second counting procedure recognizes a step at
`
`315, validates the step immediately upon recognition at 320, and counts the step
`
`upon successful validation at 325. Ex.1006, 6:27-43; Ex.1003, pp.59-62. The
`
`5
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`process then returns to block 300 to detect the next step and the step cycle repeats.
`
`
`
`
`
`
`
`Ex.1006, 6:46-53; Ex.1003, pp.59-62.
`
`Because the flowcharts in Figs. 4 and 7 and the corresponding text clearly
`
`show that steps are recognized, validated, and buffered/counted in a single step
`
`cycle, Patent Owner’s interpretation—that step recognition occurs in one step cycle
`
`and validation and buffering/counting occur in another step cycle—is incorrect.
`
`Moreover, Patent Owner fails to cite to any testimonial evidence supporting its
`
`mischaracterization of Fabio’s validation process.
`
`III. Patent Owner’s Response consists almost entirely of attorney argument.
`
`Patent Owner’s arguments disputing the analysis in the Petition are
`
`unsupported, and there is no relevant controverting evidence presented, via expert
`
`testimony or otherwise. Notably, the Response is not accompanied by an expert
`
`declaration, but instead only cites to only a single portion of Mr. Easttom’s
`
`declaration filed pre-institution. See Response, p.7. And, as will be demonstrated
`
`below, that single portion of Mr. Easttom’s declaration is in clear contrast to the
`
`record and does not support the arguments in the Response.
`
`“[U]nsworn attorney argument . . . is not evidence and cannot rebut . . .
`
`evidence.” Gemtron Corp. v. Saint-Gobain Corp., 572 F. 3d 1371, 1380 (Fed. Cir.
`
`2009). Moreover, the Board gives little or no weight to attorney argument not
`
`supported by evidence. See Apple, Inc. v. Evolved Wireless LLC, IPR2016-00758,
`
`6
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`Paper 48 at 20 (PTAB Mar. 12, 2018) (“we keep in mind that attorney argument is
`
`
`
`
`
`
`
`not evidence and Patent Owner cannot rebut evidence with unsworn attorney
`
`argument.”); see also Itron Networked Solutions, Inc., IPR2017-01024, Paper 49 at
`
`26 (Aug. 21, 2018) (refusing to discount expert testimony because “Patent Owner
`
`provide[d] considerable attorney argument, but [did] not support its assertions with
`
`evidence that rebuts … expert testimony.”); Celanese Int’l Corp. v. Daicel Corp.,
`
`IPR2017-00166, Paper 61 at 30 (May 4, 2018) (“Patent Owner relies on attorney
`
`argument to criticize the declaration of Dr. Liu, which we give little to no
`
`weight.”). Thus, without any supporting evidence, Patent Owner’s arguments
`
`challenging the analysis provided by Dr. Paradiso and relied upon in the Petition
`
`cannot rebut the evidence of record.
`
`IV. Patent Owner’s reliance on the prosecution history of a related case has
`no relevance to the claims at issue here.
`
`The Petition established how claim 8 of the ’902 patent is obvious over the
`
`combination of Pasolini, Fabio, and Tsuji. Pasolini, as Patent Owner notes, was
`
`applied by the Examiner during prosecution of U.S. Patent No. 8,712,723 (“the
`
`’723 patent”), a descendant of the ’902 patent. This is irrelevant for several
`
`reasons. First, Pasolini was never applied to claim 8 of the ’902 patent as the
`
`Examiner’s first action allowed the claims without rejection. See Ex.1002. Second,
`
`claim 8 is challenged under a combination of Pasolini, Fabio, and Tsuji; a
`
`7
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`combination that has not previously been presented to the Office. See id. Third,
`
`
`
`
`
`
`
`references considered during prosecution are not necessarily disqualified from
`
`inter partes review proceedings. See, e.g., Praxair Distribution Inc. v. INO
`
`Therapeutics LLC, IPR2015-00889, Paper 14, at 10 (Sep. 22, 2015) (“[a]bsent a
`
`showing of ‘substantially the same ... arguments’ … and considering that Petitioner
`
`includes additional evidence not considered by the examiner in the underlying
`
`prosecution ... Patent Owner does not show that the inter partes review ... would be
`
`improper.”). Thus, Patent Owner’s reliance on the prosecution history of the ’723
`
`patent has no relevance to the patentability of the claim at issue here.
`
`V.
`
`Fabio teaches a default cadence window.
`A.
`
`Fabio’s TS1 teaches a default step cadence window.
`
`The Petition shows how Fabio’s validation process, where the validation
`
`interval TV is used to validate a step, teaches “using a default step cadence
`
`window to identify a time frame within which to monitor for a next step.” Petition,
`
`pp.24-29. As explained in the Petition, Fabio’s threshold TS1 teaches a default step
`
`cadence window because the threshold TS1 defines “a time frame within which to
`
`monitor for a next step” as recited in the claim. Specifically, Fabio teaches that the
`
`first counting procedure “terminates when a time interval T, that has elapsed from
`
`the last step recognized is longer than a first-time threshold TS1, for example 10 s.”
`
`Ex.1006, 3:30-32; Petition, pp.27. “Because this default value (10 seconds, for
`
`8
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`example) is used to determine whether a user makes a sequence of steps
`
`
`
`
`
`
`
`establishing regularity, a POSITA would recognize this to be a default step
`
`cadence window.” Petition, pp.27-28; see also Ex.1003, p.38.
`
`Patent Owner challenges this interpretation by arguing that “Fabio does not
`
`state that its TS1 is ‘a timeframe within which to monitor for a next step.’ At best,
`
`Fabio uses a current sample of acceleration data (AZ) to determine whether a past
`
`sample of acceleration data constitutes a valid step.” Response, p.8. Patent Owner
`
`continues: “At this point, the validated step is not a ‘next step’ but rather it is a
`
`necessarily a past step.” Id (emphasis in the original). However, as discussed above
`
`in Section II, Fabio does not teach using the current acceleration data to validate
`
`past steps. Accordingly, Patent Owner’s attempt to distinguish the claimed default
`
`step cadence window from Fabio’s TS1 threshold does not withstand scrutiny.
`
`In contrast to Patent Owner’s assertions, Fabio’s device “reads a sample of
`
`the acceleration signal AZ (block 200) and then evaluates whether the time interval
`
`TC that has elapsed from the last step recognized is higher than the first-time
`
`threshold TS1.” Ex.1006, 3:60-63. Fabio further teaches that the first counting
`
`procedure “terminates when a time interval T, that has elapsed from the last step
`
`recognized is longer than a first-time threshold TS1, for example 10 s.” Ex.1006,
`
`3:30-32; Petition, p.27. Thus, because “this default value (10 seconds, for example)
`
`is used to determine whether a user makes a sequence of steps establishing
`
`9
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`regularity, a POSITA would recognize this to be a default step cadence window.”
`
`
`
`
`
`
`
`Petition, p.27; Ex.1003, p.38.
`
`B. A POSITA would have found it obvious to modify Fabio’s
`validation interval to be a default value as the user begins a new
`activity.
`
`Without citing to any expert testimonial evidence, Patent Owner argues that
`
`modifying the validation interval in this manner would “abandon the specific
`
`description in Fabio of how the validation window TV is mathematically
`
`determined, and thereby depart from a central aspect of how Fabio operates.”
`
`Response, p.10. However, the Petition does not propose modifying the validation
`
`interval to a default value for each step throughout the procedure. Rather, the
`
`Petition argues that a POSITA would have found it obvious to modify the
`
`validation interval for “the first few steps” or “as the user is beginning a new
`
`activity such as walking or running.” Petition, pp.28,29. Thus, there is no changing
`
`of the basic principles under which the references was designed to operate in the
`
`Petition’s presentation of how Fabio renders obvious a default step cadence
`
`window.
`
`Patent Owner further states that “nothing in Fabio suggests application of its
`
`TV as defined fails to adequately determine when the user is beginning a new
`
`activity, such as walking or running.” Response, p.12. However, Patent Owner has
`
`not cited to any statute, case law, or other authority that indicates that a prior art
`
`10
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`reference must explicitly describe its inadequacies to allow for modifications based
`
`
`
`
`
`
`
`on teachings in other references. “Rather, the test is what the combined teachings
`
`of the references would have suggested to those of ordinary skill in the art.” In re
`
`Keller, 642 F.2d 413, 425 (CCPA 1981); see also In re Merck & Co., Inc., 800
`
`F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by
`
`attacking references individually where the [challenge] is based upon the teachings
`
`of a combination of references.”).
`
`The Petition shows, through reasoned analysis and expert testimony, that a
`
`POSITA would find it obvious to use the first-time threshold TS1 as a default
`
`cadence window for the first few steps. Petition pp.28-29; Ex.1003, p.38. Patent
`
`Owner has not provided any expert testimony or other evidence to rebut this and
`
`Patent Owner’s arguments thus fail.
`
`C.
`
`Patent Owner’s assertions amount to nothing more than attorney
`argument.
`
`Patent Owner’s response contains a single citation to its expert’s pre-
`
`institution declaration to support its positions regarding the mischaracterized
`
`“retrospective” nature of Fabio’s step recognition and validation process. See
`
`Response, p.7 (citing Ex.2001, ¶¶32‒35). The cited portions, though, do not
`
`support Patent Owner’s flawed assertion that step recognition occurs in one step
`
`cycle while validation and buffering/counting occur in a subsequent step cycle.
`
`11
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`Rather, Mr. Easttom states that “Fabio’s ‘validation window’ is reactive, waiting
`
`
`
`
`
`
`
`for a step to be discovered and then looking backward to discover a duration.
`
`Whereas the ’902 patent’s ‘cadence window’ is proactive—first determining the
`
`appropriate window of time, and then actively seeking to detect a step while within
`
`that window of time.” Ex.2001, p.16. Apart from there being no citations or
`
`evidentiary support for such assertions, a discussion of the validation interval and
`
`cadence window being reactive or proactive fails to support Patent Owner’s
`
`mischaracterization of Fabio’s validation process as “retrospective.”
`
`VI. Fabio teaches a determining a dynamic step cadence window when the
`step count is at or above the step count threshold.
`
`Patent Owner states that “the word ‘when’ in the claim language logically
`
`and temporally ties together the expressed condition ‘the step count is at or above
`
`the step count threshold’ with the result of ‘determining a dynamic step cadence
`
`window.’” Response, p.14. Patent Owner then argues that: “There is no such
`
`logical and temporal interconnection in Fabio and the Petition does not argue
`
`otherwise.” Id.
`
`However, despite Patent Owner’s statement, the Petition does indeed explain
`
`how Fabio teaches determining a dynamic step cadence window when the step
`
`count is at or above the step count threshold. See Petition, pp.29-31. In fact, the
`
`Petition specifically shows that Fabio teaches a dynamic step cadence window
`
`12
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`because Fabio’s validation interval TV is “defined with respect to the instant of
`
`
`
`
`
`
`
`recognition of the immediately preceding step TR(K-1).” Ex.1006, 4:37-39;
`
`Petition at 30. Accordingly, “when the duration ΔTK−1 changes from step to step …
`
`the validation interval TV would also change from step to step.” Petition at 30; see
`
`also Ex.1003, p.43. Fabio’s dynamic validation interval (dynamic step cadence
`
`window) is thus used when the step count is at or above the step count threshold
`
`because Fabio’s dynamic validation interval is used in the second counting
`
`procedure, where steps are counted after stepping regularity has been established.
`
`See Ex.1006, 6:33-34. And, Fabio’s device enters the second counting procedure
`
`when “the number of valid control steps NVC” is equal to “the second threshold
`
`number NT2.” Ex.1006, 5:22-32, 5:37-39; see also Petition, p.29.
`
`Patent Owner further argues that: “Because Petitioner argues that Fabio’s
`
`TS1 satisfies the ‘default cadence window,’ Petitioner cannot reasonably argue that
`
`the similarly-described TS2 used at the outset of the second counting procedure
`
`somehow satisfies, instead, the ‘dynamic cadence window’ limitations.” Response,
`
`p.15. This argument seemingly conflates the “default step cadence” window with
`
`the similarly claimed “dynamic step cadence window.” Petitioner’s reliance on
`
`Fabio’s TS1 threshold for the default step cadence window, though, is not in
`
`conflict with Petitioner’s reliance on Fabio’s validation interval TV for the
`
`dynamic step cadence window because, as discussed above, Fabio’s TS1 is a
`
`13
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`“default cadence window” used during the first few steps and Fabio’s validation
`
`
`
`
`
`
`
`interval is a “dynamic cadence window” used during ongoing stepping activity.
`
`Finally, Patent Owner again attempts to discredit Fabio’s teachings by
`
`characterizing Fabio’s scheme as retrospective. See Response, pp.15-16.
`
`Specifically, Patent Owner argues that: “Fabio does not disclose or suggest using
`
`its TV to identify the time frame within which to monitor for the next step. Rather,
`
`Fabio’s TV is only used retrospectively to validate a preceding step.” Response,
`
`pp.16. For the reasons shown above in Section II, Fabio does not use acceleration
`
`data from the most recently detected step to decide whether a previous step should
`
`be validated. Instead, Fabio teaches recognizing, validating, and either buffering or
`
`counting a step in a single step acceleration cycle. Thus, Patent Owner’s
`
`misinterpretation of Fabio and the corresponding arguments do not withstand
`
`scrutiny and are not supported by the evidence. Thus, Patent Owner fails to
`
`overcome the showing in the Petition that Fabio teaches “when the step count is at
`
`or above the step count threshold, determining a dynamic step cadence window
`
`and using the dynamic step cadence window to identify the time frame within
`
`which to monitor for the next step” as recited in the claim.
`
`VII. Tsuji teaches “computing a rolling average of stepping periods of
`previously counted steps” as recited in claim 8.
`
`As set forth in the Petition, Tsuji teaches the claimed “computing a rolling
`
`14
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`average of stepping periods of previously counted steps” because Tsuji’s device
`
`
`
`
`
`
`
`calculates “a reference walk cycle by obtaining a moving average Ta of cycles of a
`
`predetermined number of newest signals (four signals in this embodiment mode)
`
`among signals each of which is judged to be a walk signal.” Ex.1010, 4:55-60,
`
`5:50-53; see also Petition, p.40; Ex.1003, pp.52-53.
`
`Patent Owner challenges this position by arguing that “the Petition itself
`
`provides no explanation for how a POSITA would interpret the ‘moving average’
`
`in Tsuji to be the same as the claimed ‘rolling average.’” Response, p.17. Yet, the
`
`Petition clearly shows that a rolling average and a moving average are the same.
`
`Specifically, the Petition, citing to Harris, states that “the term ‘moving average’
`
`used in Tsuji is synonymous with the term ‘rolling average’ used in the ’902
`
`patent.” Petition, p.41; see also Ex.1011, p.243-244, 330. Harris supports this by
`
`stating that a moving average is “[s]ometimes referred to as a rolling average.”2
`
`Ex.1011, 243. Accordingly, the Petition does indeed show why a POSITA would
`
`have recognized that Tsuji’s moving average is no different than the claimed
`
`
`2 Harris’s use of the word “sometimes” is merely an acknowledgement that the
`
`terms “rolling average” and “moving average” can be used interchangeably. Dr.
`
`Paradiso confirms this by indicating that these terms are synonymous. See
`
`Ex.1003, p.55.
`
`15
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`rolling average. Furthermore, Patent Owner has not provided any reasoning or
`
`
`
`
`
`
`
`evidence as to how Tsuji’s moving average is any different than the claimed rolling
`
`average.
`
`Patent Owner also attempts to distinguish Tsuji from the claims of the ’902
`
`patent by noting that “Tusji relies on continually collecting and analyzing
`
`acceleration data when in operation.” Response, p.17. Patent Owner further argues
`
`that: “The claim language is distinguishable, therefore, at least in that its claimed
`
`monitoring is expressly limited to the relevant time frame recited as the ‘dynamic
`
`step cadence window.’” Id., pp.17-18. The claim language, however, does not
`
`exclude collecting step data outside the dynamic step cadence window. Interpreting
`
`the claims in such a manner improperly reads a limitation into the claims. See, e.g.,
`
`Liebel-Flarsheim Co. v. Medrad, Inc., 358 F. 3d 898, 913 (Fed. Cir. 2004).
`
`Moreover, Fabio and the ’902 patent both describe a similar process of
`
`collecting acceleration data on a continuing basis rather than only during the
`
`cadence window. See e.g., Ex.1001, Fig. 2 (showing accelerometer data collected
`
`for each axis 203, 205, 207 at times other than the cadence windows 240, 255);
`
`Ex.1006, 6:53-56, Fig. 5 (showing accelerometer data collected continually,
`
`including outside of the time window TW).
`
`Furthermore, the Response fails to cite expert testimony to refute Dr.
`
`Paradiso’s testimony regarding what Tsuji teaches to a POSITA. Thus, Patent
`
`16
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`Owner’s challenges to the Petition amount to nothing more than attorney argument
`
`
`
`
`
`
`
`and cannot be used to rebut the evidence of record. Again, “unsworn attorney
`
`argument . . . is not evidence and cannot rebut . . . evidence.” Gemtron Corp. v.
`
`Saint-Gobain Corp., 572 F. 3d 1371, 1380 (Fed. Cir. 2009). Moreover, the Board
`
`gives little or no weight to attorney argument not supported by evidence. See
`
`Apple, Inc. v. Evolved Wireless LLC, IPR2016-00758, Paper 48 at 20 (PTAB Mar.
`
`12, 2018) (“we keep in mind that attorney argument is not evidence and Patent
`
`Owner cannot rebut evidence with unsworn attorney argument.”). Accordingly,
`
`Patent Owner fails to successfully rebut the Petition’s showing that Tsuji teaches
`
`“computing a rolling average of stepping periods of previously counted steps” as
`
`recited in claim 8.
`
`VIII. A POSITA would have combined the teachings of Tsuji with those of
`Fabio and Pasolini.
`
`The Petition, relying on Dr. Paradiso’s testimony, provides numerous
`
`reasons why a POSITA would have combined the teachings of Tsuji with those of
`
`Fabio and Pasolini. Among these reasons is that “both [Fabio and Tsuji] recognize
`
`the importance of determining a user’s stepping activity based on the stepping
`
`period of previous steps.” Petition pp.37-38; see also Ex.1003, pp.49-50. In fact, “a
`
`POSITA would have recognized that implementing Tsuji’s method of using a
`
`moving average of previous walk cycles (i.e., stepping periods) would be a simple
`
`17
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`substitution in Fabio’s method that utilizes the immediate preceding step in its
`
`
`
`
`
`
`
`validation algorithm.” Petition p.38; see also Ex.1003, pp.50-51. This would be a
`
`simple substitution because “using a moving average of previous data rather than a
`
`single iteration of previous data offers a number of advantages such as smoothing
`
`out variations that may occur in a single step . . . and reducing step recognition
`
`errors due to noise.” Petition, pp.38-39, 43–44 (citing Ex.1003, pp.58–59; Ex.1010,
`
`7:13–17; Ex.1011, p.243); see also Ex.1003, pp.50-51.
`
`Patent Owner argues that “the Petition itself fails to show and explain how a
`
`POSITA would make the alleged substitution without rending Fabio inoperable.”
`
`Response, p.18. Patent Owner, however, does not explain how the proposed
`
`modification renders Fabio’s device inoperable. Nor does Patent Owner provide
`
`any expert testimony to contradict Dr. Paradiso’s testimony. In contrast, the
`
`Petition, relying on Dr. Paradiso, explains that “implementing Tsuji’s method of
`
`using a moving average of a predetermined number of walk cycles or stepping
`
`periods into Fabio’s pedometer would be a simple substitution since it would
`
`require nothing more than calculating Fabio’s validation interval TV using a
`
`moving average of the user’s stepping periods.” Petition, p.39; see also Ex.1003,
`
`p.51. Modifying Fabio in this way would not render it inoperable since Fabio
`
`specifically allows for modifications where the validation interval can be
`
`symmetrical or have a different amplitude. See Ex.1006, 4:52-53 (“The validation
`
`18
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`interval TV could, however, be symmetrical and have a different amplitude.”).
`
`
`
`
`
`
`
`Patent Owner further argues that “Fabio’s retrospective scheme would be
`
`reversed on its head, and its disclosed advantages would be erased, if replaced,
`
`instead, with Tusji’s scheme of using a moving average of past data in evaluating
`
`current data.” Response, p.19. This argument fails for several reasons. First, as
`
`explained above in Section II, Fabio’s validation process is not retrospective.
`
`Second, whether a disclosed advantage would be replaced by the proposed
`
`modification is not the proper test for obviousness. “Rather, the test is what the
`
`combined teachings of the references would have suggested to those of ordinary
`
`skill in the art.” In re Keller, 642 F.2d at 425; see also In re Merck, 800 F.2d at
`
`1097. Here, the Petition, relying on Dr. Paradiso’s expert testimony, shows why
`
`the teachings of Tsuji and Fabio suggest the proposed modification to a POSITA.
`
`See Petition, pp.35-39. Patent Owner cites to no evidence establishing the contrary,
`
`and thus fails to rebut the combination of the prior art as set forth in the Petition.
`
`
`
`
`
`19
`
`
`
`
`IX. Conclusion.
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`
`
`
`
`
`None of Patent Owner’s arguments withstand scrutiny. For the reasons
`
`stated above and in view of the evidence of record, the Board should find the
`
`challenged claims unpatentable.
`
`Dated: January 17, 2019
`
`
`Respectfully submitted,
`
`/Andrew S. Ehmke/
`Andrew S. Ehmke
`Registration No. 50,271
`
`
`
`
`
`
`
`20
`
`
`
`
`X. Certificate of Word Count
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.24, the undersigned attorney for the Petitioner,
`
`Apple Inc., declares that the argument section of this Petition (Sections I-IX) has a
`
`total of 3,997 words, according to the word count tool in Microsoft Word™.
`
`
`
`/Andrew S. Ehmke/
`Andrew S. Ehmke
`Registration No. 50,271
`
`
`
`
`
`
`
`
`
`21
`
`
`
`Petitioner’s Reply
`IPR2018-01028 (Patent No. 7,881,902)
`
`CERTIFICATE OF SERVICE
`
`
`
`
`
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. §§ 42.6(e) and 42.105(a), this is to certify that I
`
`caused to be served a true and correct copy of the foregoing “PETITIONER’S
`
`REPLY,” as detailed below:
`
`
`
`
`
`Persons served
`
`Date of service January 17, 2019
`
`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 REPLY;
`Petitioner’s Exhibit List
`
`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
`
`
`
`
`
`22
`
`
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
