UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE, INC.
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`Petitioner
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`v.
`UNILOC LUXEMBOURG, S.A.1
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`Patent Owner
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`IPR2018-01028
`PATENT 7,881,902
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`PATENT OWNER RESPONSE TO PETITION
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`PURSUANT TO 37 C.F.R. §42.120
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` The owner of this patent is Uniloc 2017 LLC.
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` 1
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`APPLE, INC.
`
`Petitioner
`
`v.
`UNILOC LUXEMBOURG, S.A.1
`
`Patent Owner
`
`
`
`IPR2018-01028
`PATENT 7,881,902
`
`
`PATENT OWNER RESPONSE TO PETITION
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`
`
`
`
`
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`
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`PURSUANT TO 37 C.F.R. §42.120
`
`
`
`
` The owner of this patent is Uniloc 2017 LLC.
`
` 1
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`IPR2018-01028
`U.S. Patent 7,881,902
`
`Table of Contents
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`2.
`
`3.
`
`INTRODUCTION .................................................................................... 1
`THE ’902 PATENT .................................................................................. 1
`RELATED PROCEEDINGS .................................................................... 2
`LEVEL OF ORDINARY SKILL IN THE ART ...................................... 2
`PROSECUTION HISTORY ..................................................................... 3
`PETITIONER FAILS TO MEET ITS BURDEN OF PROOF ................ 5
`A. No construction needed for “cadence window” term ..................... 5
`B.
`The fatal deficiencies of Ground 1 taint the entire
`Petition ............................................................................................ 6
`1.
`The Board correctly found Fabio’s validation
`window TV is not a default cadence window ...................... 6
`The Petition fails to prove Fabio’s threshold time
`TS1 is a “default cadence window” as claimed ..................... 8
`The Petition fails to prove it would have been
`obvious to modify Fabio’s validation window TV
`to allegedly map onto the claimed “default
`cadence window” ............................................................... 10
`The Petition fails to prove obviousness of “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” .............................................. 13
`Petitioner fails to prove obviousness of the additional
`limitations recited in dependent claim 8 ....................................... 16
`CONCLUSION ....................................................................................... 19
`
`4.
`
`C.
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`
`
`I.
`II.
`III.
`IV.
`V.
`VI.
`
`VII.
`
`
`ii
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`
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`IPR2018-01028
`U.S. Patent 7,881,902
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`I.
`
`INTRODUCTION
`Uniloc 2017 LLC (“Uniloc” or “Patent Owner”) submits this Response to
`Petition IPR2018-01028 for Inter Partes Review (“Pet.” or “Petition”) of United
`States Patent No. 7,881,902 (“the ’902 Patent” or “EX1001”) filed by Apple, Inc.
`(“Petitioner”). The instant Petition is procedurally and substantively defective for at
`least the reasons set forth herein.
`
`II. THE ’902 PATENT
`The ’902 patent is titled “Human activity monitoring device.” The ʼ902 patent
`issued February 1, 2011, from U.S. Patent Application No. 12/694,135 filed January
`26, 2010, and is a continuation of U.S. Patent Application No. 11/644,455 filed
`December 22, 2006.
`The inventors of the ’902 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. EX1001, 1:23−30. 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 devices. Conventional step counting
`devices also failed to accurately measure steps for individuals who walk at a slow
`pace. Id., 1:31−38. These non-exhaustive, example deficiencies of the art are among
`those that certain disclosed embodiments of the ’902 patent overcome.
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`1
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`U.S. Patent 7,881,902
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`According to certain embodiments of the ’902 patent, a device to monitor
`human activity using an inertial sensor assigns a dominant axis after determining the
`orientation of an inertial sensor. The orientation of the inertial sensor is continuously
`determined, and the dominant axis is updated as the orientation of the inertial sensor
`changes. Id., 2:8‒15.
`
`III. RELATED PROCEEDINGS
`The following proceedings are currently pending cases concerning U.S. Pat.
`No. 7,881,902 (EX1001).
`
`Case Caption
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`Case Number
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`District Case Filed
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`2-17-cv-00522
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`TXED
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`June 30, 2017
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`2-17-cv-00650
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`TXED
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`September
`15, 2017
`
`Uniloc USA, Inc. et al v. Apple
`Inc.
`Uniloc USA, Inc. et al v.
`Samsung Electronics America,
`Inc. et al
`Uniloc USA, Inc. et al v. LG
`Electronics USA, Inc. et al
`Uniloc USA, Inc. et al v. HTC
`America, Inc.
`Uniloc USA, Inc. et al v.
`Huawei Device USA, Inc. et al
`Apple Inc. v. Uniloc USA, Inc.
`
`4-17-cv-00832
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`2-17-cv-00737
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`TXND October 13,
`2017
`2-17-cv-01629 WAWD November 1,
`2017
`TXED November 9,
`2017
`Jan. 5, 2018
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`IPR2018-00424
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`PTAB
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`Uniloc USA, Inc. et al v. Apple
`Inc.
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`4-18-cv-00364
`
`CAND
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`January 17,
`2018
`
`IV. LEVEL OF ORDINARY SKILL IN THE ART
`The Petition alleges that “a person of ordinary skill in the art (“POSITA”)
`would include someone who had, at the priority date of the ’902 Patent (i) a
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`U.S. Patent 7,881,902
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`Bachelor’s degree in Electrical Engineering, Computer Engineering, and/or
`Computer Science, or equivalent training, and (ii) approximately two years of
`experience working in hardware and/or software design and development related to
`MEMS (micro-electro-mechanical) devices and body motion sensing systems.” Pet.
`5. Given that Petitioner fails to meet its burden of proof when purportedly applying
`its own definition of a person of ordinary skill in the art, Patent Owner does not offer
`a competing definition for purposes of this proceeding.
`PROSECUTION HISTORY
`V.
`The Petition neglects to mention it relies upon a reference the U.S. Patent
`Office has already found to be distinguishable from certain limitations also recited
`in the challenged claims. The ’902 patent is part of a family of related patents
`including U.S. Patent Nos. 8,712,723 (“the ’723 patent”). The ’902 and ’723 patents
`share a specification in common.
`During prosecution of the application that issued as to the related ’723 patent,
`the Examiner cited the same Pasolini reference2 primarily relied upon in the instant
`Petition. In response, the Applicant successfully distinguished Pasolini as failing to
`“teach or suggest the use of cadence windows.”3 In doing so, Applicant
`
`
`
` 2
`
` The prosecution history of the ’723 patent references the printed publication (U.S.
`Serial App. Pub. No. 2007/0143068) of the same Pasolini reference that ultimately
`issued as U.S. Patent No. 7,463,997. The Petition opted to cite the issued patent in
`lieu of the printed publication.
`3 See Public File Wrapper of ’723 patent, Response dated Jan. 29, 2013 (at p. 6 of 9)
`to Office Action dated Sept. 26, 2012 (also filed by Petitioner as Exhibit 1002 in
`related-matter IPR2018-00389, at pp. 142 of 454).
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`distinguished Pasolini, in part, as failing to disclose the use of “cadence windows”
`as claimed. Id. The U.S Patent Office ultimately agreed and allowed the patent to
`issue over Pasolini and all other references of record.
`Evidently recognizing that this prosecution history reveals that Pasolini does
`render obvious the “cadence window” claim limitations, the Petition purports to rely
`exclusively on Fabio for such limitations. As will be shown, however, Fabio is
`distinguishable from the “cadence window” limitations (for analogous reasons
`addressed during prosecution) and does not cure the acknowledged deficiencies of
`Pasolini.
`The interest of finality weighs against revisiting the deficiencies of Pasolini
`and whether the cumulative disclosure in Fabio renders obvious what Pasolini
`admittedly fails to disclose. See, e.g., Shire LLC v. Amneal Pharm., LLC, 802 F.3d
`1301, 1307 (Fed. Cir. 2015) (holding a patent challenger has “the added burden of
`overcoming the deference that is due to a qualified government agency presumed to
`have properly done its job, which includes one or more examiners who are assumed
`to have some expertise in interpreting the references and to be familiar from their
`work with the level of skill in the art and whose duty it is to issue only valid
`patents.”); Microsoft Corp. v. Multi–Tech Sys., Inc., 357 F.3d 1340, 1350 (Fed. Cir.
`2004) (upholding claim construction of the district court in limiting the scope of the
`earlier, already issued patent based on statements offered during prosecution of a
`related application that issued later).
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`4
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`IPR2018-01028
`U.S. Patent 7,881,902
`VI. PETITIONER FAILS TO MEET ITS BURDEN OF PROOF
`Petitioner has the burden of proof to establish entitlement to relief. 37 C.F.R.
`§42.108(c) (“review shall not be instituted for a ground of unpatentability unless
`. . . there is a reasonable likelihood that at least one of the claims challenged . . . is
`unpatentable”). The Petition should be denied as failing to meet this burden.
`The raises the following obviousness challenges under 35 U.S.C. § 103:
`Ground
`Claims
`Reference(s)
`1
`Fabio4 and Pasolini5
`2
`Fabio, Pasolini, and Tsuji6
`
`5
`8
`
`A. No construction needed for “cadence window” term
`The only term identified in the Petition as allegedly requiring a construction
`is “cadence window.” Petitioner argues that “cadence window” should be
`interpreted as “a window of time since a last step was counted that is looked at to
`detect a new step.” Pet. 7. In its Institution Decision, the Board found that “cadence
`window” need not be construed at the preliminary stage “because its express
`construction is not needed to resolve any contention between the parties.” Paper 8
`at 16. Patent Owner agrees no specific construction is necessary here.
`The claim language itself expressly defines the “cadence window” in terms
`of how it is used: “using a default step cadence window to identify a time frame
`within which to monitor for a next step.” Any definition that would render this
`explicit claim language superfluous cannot be correct. Further, the Petition fails to
`
`
`5
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` 4
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` EX1006, U.S. Patent No. 7,698,097
`5 EX1005, U.S. Patent No. 7,463,997
`6 EX1010, U.S. Patent No. 7,297,088
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`U.S. Patent 7,881,902
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`explain (let alone prove) why it would be appropriate here to adopt a description of
`an example embodiment as alleged lexicography.
`In any event, the Board need not resolve whether Petitioner’s proposed
`construction is correct because Petitioner fails to articulate any invalidating theory
`that applies Petitioner’s proposed claim construction.
`
`The fatal deficiencies of Ground 1 taint the entire Petition
`B.
`Among other substantive deficiencies, Petitioner fails to prove that the cited
`Fabio and Pasolini references (either alone or in combination) disclose or suggest
`“using a default step cadence window to identify a time frame within which to
`monitor for a next step,” as recited in claim 5 (and claim 8 depending therefrom).
`
`1.
`
`The Board correctly found Fabio’s validation window TV is
`not a default cadence window
`The Board observed that the primary theory in the Petition is that “Fabio’s
`validation window TV is a default cadence window.” Paper 8 at 28. In rejecting this
`theory, the Board stated “we are not persuaded that Fabio’s validation window TV
`in first counting procedure 110 teaches or suggests using a default cadence
`window.” Id. The Board is correct that Petitioner’s attempted mapping of Fabio’s
`“validation interval” (TV) onto the claimed “default cadence window” cannot
`withstand scrutiny, particularly in view of the construction applied in the Petition.
`Fabio describes its TV with reference to its Figure 6, which is copied and
`annotated below. See, e.g., EX1006, Fig. 6 and accompanying description including,
`for example, 4:28‒49.
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`U.S. Patent 7,881,902
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`Fabio’s TV is retrospective at least in that it is used to validate only the
`immediately preceding step (shown in Fig. 6 as K-1) (shown in Fig. 6 as K): “[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[.]” Id. Unless and until the
`last step is validated by the current suspected step in the manner disclosed, the last
`step is not counted. Id. 5:10‒39. The current suspected step (K), in turn, is dependent
`upon the next suspected step (K+1) for validation and counting. Id. The final
`suspected step detected will not be counted because it cannot be validated. Id.
`Accordingly, Fabio’s validation interval TV is not “a window of time since a
`last step was counted” (as required by Petitioner’s construction) at least because
`Fabio defines its TV as necessarily starting before the last step is counted. Id.; see
`also EX2001 ¶¶ 32‒35. Indeed, Fabio’s TV is used in determining whether to count
`the last step. Id. Thus, in addition to the reasons set forth in the Institution Decision,
`the Petition should be denied because Fabio’s TV does not satisfy the construction
`for “cadence window” relied upon in the Petition.
`
`7
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`2.
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`IPR2018-01028
`U.S. Patent 7,881,902
`The Petition fails to prove Fabio’s threshold time TS1 is a
`“default cadence window” as claimed
`The Board also observed that Petitioner argues, in the alternative, that
`“Fabio’s threshold time TS1, which is the maximum time within which samples of
`acceleration data AZ can be tested to detect and validate steps in first counting
`procedure 110, is a default cadence window.” Paper 8 at 29. To suggest this
`interpretation of Fabio reads upon the claim language would require an
`unreasonably-expansive view of the “default cadence window” term that is
`untethered to the claim language. The claim language explicitly defines and limits
`the “default cadence window” at least in that it must be used “to identify a time
`frame within which to monitor for a next step.” Petitioner fails to prove that Fabio’s
`TS1 satisfies these requirements.
`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. See,
`e.g., EX1006, 4:22−40. Unless and until that retrospective validation occurs, the
`prior data is not and cannot be deemed a step and counted as such. See, e.g., id.,
`5:10−11. Applying this distinguishable approach in Fabio, a given threshold time
`TS1 will have long expired by the time the system ultimately determines whether the
`corresponding data constitutes a valid step. At this point, the validated step is not a
`“next step” but rather it is a necessarily a past step. The retrospective scheme in
`Fabio bears no resemblance to the claim language.
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`IPR2018-01028
`U.S. Patent 7,881,902
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`The distinction is also apparent in Figure 4 of Fabio and its corresponding
`description (including the description cited above). For the convenience of the
`Board, Figure 4 of Fabio is copied and annotated below:
`
`TS1 is involved in determining
`whether to execute procedure to
`validate the previous step-like event
`
`procedure for validating the
`previous step-like event
`
`“NO” means previous step-
`like event should not be
`counted as a not a step
`
`
`As shown in Figure 4, Fabio applies its TS1 exclusively in step 205. Long after the
`expiration of TS1, Fabio makes a determination (230) as to whether the prior
`acceleration data constitutes a valid step. The current acceleration data sampled at
`block 200 cannot be validated as containing a step unless and until new and distinct
`acceleration data is sampled and analyzed.
`This retrospective approach has the effect that the final sample of acceleration
`data that the system ultimately collects cannot be validated and is thus discarded.
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`U.S. Patent 7,881,902
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`This is true even though that last sample of acceleration data may have otherwise
`constituted a “next step” if Fabio had, instead, used the forward-looking approach
`taught and claimed in the ’902 patent.
`Accordingly, Petitioner has failed to prove that Fabio’s threshold time TS1
`renders obvious “using a default step cadence window to identify a time frame
`within which to monitor for a next step,” as recited in claim 5.
`
`3.
`
`The Petition fails to prove it would have been obvious to
`modify Fabio’s validation window TV to allegedly map onto
`the claimed “default cadence window”
`Evidently recognizing Fabio’s validation window TV is distinguishable from
`the claimed “default cadence window,” Petitioner argues in the alternative that it
`would have been obvious to modify Fabio’s validation window TV “to a default
`value in order to increase compatibility with the user’s previous step as the user is
`beginning a new activity such as walking or running.” Pet. 28. In other words,
`Petitioner argues that it would have been obvious to 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. The Federal Circuit has
`repeatedly held, however, that combinations which change the basic principles
`under which a reference was designed to operate may fail to support a conclusion of
`obviousness. Plas–Pak Indus., Inc. v. Sulzer Mixpac AG, 600 Fed. Appx. 755, 759
`(Fed. Cir 2015) (citations omitted).
`Fabio mathematically defines its validation window TV as follows:
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`U.S. Patent 7,881,902
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`EX1006, 4:35−41. Based on this precise formula, Fabio graphically illustrates TV
`as follows:
`
`
`EX1006, Figure 6. Thus, Fabio discloses that its TV is purposefully-defined with
`respect to the instant of recognition of the immediately-preceding step; and that the
`TV is calculated and used on a step-by-step basis to determine whether to count the
`immediately preceding step as valid or, instead, to deem the preceding step as an
`invalid “false positive” (and hence not a step at all).
`
`Petitioner argues (through its declarant) that departing from Fabio’s
`mathematical definition for TV would have been obvious “in order to increase
`compatibility with the user’s previous step as the user is beginning a new activity
`such as walking or running.” Pet. 28 (citing EX1003 pp. 38−39.). This argument is
`factually and legally flawed.
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`U.S. Patent 7,881,902
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`Nothing in Fabio suggests it would be advantageous to increase the
`compatibility with the user’s previous step through use of a fixed value. On the
`contrary, Fabio is purposefully designed to discount the user’s last step data as
`invalid if it fails to satisfy mathematical conditions based on the TV presently
`calculated as defined. EX1006, 4:35−41. Moreover, 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. Rather, Fabio describes
`applying its TV—as mathematically defined—to determine whether to transition
`from a first counting procedure (associated with a user at rest) to a second counting
`procedure (associated with the user not being at rest). See, e.g., id., Figure 4 and
`accompanying description.
`These facts invoke the case of In re Omeprazole Patent Litigation, 536 F.3d
`1361 (Fed. Cir. 2008). There, the Federal Circuit affirmed a finding of non-
`obviousness, in part, because the alleged flaws in the prior art that ostensibly
`prompted the modification had not been recognized in the art itself. Thus, there
`would have been no reason to modify as proposed, even though the modification
`could have been done.
`For at least the foregoing reasons, Petitioner has failed to prove that it would
`have been obvious to modify Fabio’s TV in any manner that renders obvious “using
`a default step cadence window to identify a time frame within which to monitor for
`a next step,” as recited in claim 5.
`
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`4.
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`IPR2018-01028
`U.S. Patent 7,881,902
`The Petition fails to prove obviousness of “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”
`The Petition fails to prove its proposed combination of Fabio and Pasolini
`renders obvious “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 claim 5. The Petition relies solely on Fabio for the “dynamic step cadence
`window” limitation. This theory fails to prove obviousness for several independent
`reasons.
`The Board observed “Petitioner argues that Fabio teaches counting steps
`using second step counting procedure 130 when step count NVC exceeds threshold
`NT2.” Paper 8 at 31 (citing Pet. 29–30). The Board further summarized Petitioner’s
`argument as follows:
`
`Fabio’s unmodified validation window TV, which is used to
`validate steps in second step counting procedure 130, is a
`dynamic cadence window because it is “defined with respect to
`the instant of recognition of the immediately preceding step,” and
`a person skilled in the art would understand this to mean that it
`“compensates for changes in each step” and “would also change
`from step to step.” Id. at 30–31 (citing Ex. 1003, 42–43; Ex.
`1006, 4:37–39).
`
`Paper 8 at 31.
`The Petition fails to logically interconnect these two disjointed pieces of its
`theory. Use of 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
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`U.S. Patent 7,881,902
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`threshold” with the result of “determining a dynamic step cadence window.” There
`is no such logical and temporal interconnection in Fabio and the Petition does not
`argue otherwise.
`Fabio offers the following description (with reference to block 265 of Figure
`4) of precisely what happens when the number of valid control steps is equal to the
`second threshold number NT2: “the number of invalid steps NINV and the number of
`valid control steps NVC are set to zero, where the total number of valid steps NVT is
`updated and incremented by a value equal to the second threshold number NTV
`(block 265).” EX1006, 5:32−36.
`
`
`There simply is no discussion, at this point in the Fabio process, of the
`validation that occurs when the second counting procedure is executed. Indeed,
`Petitioner essentially admits the alleged “change from step to step” of the validation
`window TV cannot occur unless and until multiple steps are first obtained and
`evaluated using the second counting procedure. This does not disclose or suggest
`the temporal and logical interrelationship between “determining a dynamic step
`cadence window” and “when the step count is at or above the step count threshold,”
`as recited in claim 5.
`
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`Fabio further states that the commencement of its second counting process
`involves “evaluat[ing] whether the time interval TC that has elapsed from the last
`step recognized is higher than the first second time threshold TS2 (block 305).”
`EX1006, 6:15−17; see also id., 6:31−32; Pet. 55−56 (admitting Fabio’s “second
`validation test ‘is altogether similar to the first validation test carried out in block
`230 of FIG. 3.’”). 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.
`After application TS2, Fabio’s second counting procedure caries out a step-
`recognition test (block 315) that Fabio states is “identical to the step-recognition test
`of block 225 of Fig. 3. EX1006, 6:22−23. This involves the retrospective
`determination (summarized above) as to whether the prior acceleration data
`constitutes a valid step. This retrospective scheme in Fabio bears no resemblance to
`the claim language and corresponding teachings in the ’902 patent directed to
`proactively limiting when to even monitor for a next step in the first place.
`Even if Fabio had disclosed that its validation interval TV dynamically
`changed between first and second iterations of execution of the second counting
`procedure (and it does not), this still would not render obvious the distinguishable
`claim language, “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.” This
`is at least because the moment in Fabio Petitioner attempts to associate with the
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`“when” of the claim language (i.e., when step count NVC is determined to exceed
`threshold NT2) occurs before the second counting procedure is even initiated. This
`is also because the claim language requires “using the dynamic step cadence
`window to identify the time frame within which to monitor for the next step.” As
`detailed above (§VI.B.1), 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.
`For at least the foregoing reasons, the Petition fails to prove obviousness for
`“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 claim 5.
`
`C.
`
`Petitioner fails to prove obviousness of the additional limitations
`recited in dependent claim 8
`The deficiencies described above with respect to claim 5 apply equally to
`claim 8, which depends therefrom. The Petition also fails to prove obviousness of
`the additional claim requirements recited in dependent claim 8.
`Claim 8 further defines and restricts “determining the dynamic cadence
`window” as follows: “wherein determining the dynamic step cadence window
`comprises: 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.”
`The Petition relies exclusively on Tsuji as allegedly curing the conceded
`deficiencies of Fabio and Pasolini with respect to claim 8. Specifically, Petitioner
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`U.S. Patent 7,881,902
`
`argues Tsuji’s walk cycle calculating portion 108 “calculates ‘a reference walk cycle
`by obtaining a moving average Ta of cycles of a predetermined number of newest
`signals . . . among signals each of which is judged to be a walk signal.’” Pet. 40.
`Petitioner further argues that “the term ‘moving average’ used in Tsuji is
`synonymous with the term ‘rolling average’ used in the ’902 patent.” Id. Petitioner’s
`challenge of claim 8 has several fatal deficiencies.
`First, 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.” Petitioner has the burden of proof, yet there is no discussion in the
`Petition, for example, concerning how Tsuji calculates its “moving average” and
`why this the equivalent to the discussion in the ’902 patent directed to the “rolling
`average” applicable to the claimed “dynamic step cadence window.” And while
`Petitioner offers unexplained citations to Tusji (Pet. 33−34), those citations are not
`accompanied with citations to the attached declaration. Such conclusory attorney
`argument does not and cannot meet the burden of proof applicable here.
`Second, the Petition overlooks several distinctions between Tusji and the
`claim language. For example, Tusji relies on continually collecting and analyzing
`acceleration data when in operation. See, e.g., EX1010, 7:6−12, 39−48. Tusji
`recognizes that this scheme will result in collecting data at irrelevant times and,
`consequently, this irrelevant data must be filtered out in order to properly implement
`the disclosed comparison to a reference walk cycle. Id., 6:65−7:5. The claim
`language, by contrast, uses the dynamic step cadence window to identify the time
`frame within which to monitor for the next step. The claim language is
`
`17
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`IPR2018-01028
`U.S. Patent 7,881,902
`
`distinguishable, therefore, at least in that its claimed monitoring is expressly limited
`to the relevant time frame recited as the “dynamic step cadence window.”
`Finally, the Petition is also deficient in that it fails to prove a POSITA would
`have been motivated to make the hypothetical combination. Despite Petitioner’s
`allegations of a “simple substitution,” the Petition itself fails to show and explain
`how a POSITA would make the alleged substitution without rending Fabio
`inoperable. An obviousness determination cannot be reached where the record lacks
`“explanation as to how or why the references would be combined to produce the
`claimed invention.” TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1066 (Fed. Cir.
`2016). This
`requisite explanation avoids an
`impermissible “hindsight
`reconstruction,” using “the patent in suit as a guide through the maze of prior art
`references, combining the right references in the right way so as to achieve . . . The
`claims in suit.” Id.; In re NTP, Inc., 654 F.3d 1279, 1299 (Fed. Cir. 2011).
`As summarized above, and as Petitioner appears to acknowledge, Fabio
`defines its “validation window” through use of a specific formula. See EX1006,
`4:28−55; Pet. 37. The Fabio system is purposefully designed around application of
`this specific formula, which uses currently sampled acceleration data to validate
`whether the immediately preceding acceleration data constitutes a valid step. This
`is accomplished one step at a time to achieve a level of granularity deemed essential
`for the step validation described in Fabio. This single-step granularity would be
`erased if replaced, instead, with Tusji’s moving average.
`Another basis of incompatibility is that Fabio purposefully uses current data
`to retrospectively determine whether to count a last step. According to Fabio, this
`
`18
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`IPR2018-01028
`U.S. Patent 7,881,902
`
`retrospective scheme has certain advantages when applied as disclosed. 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. Accordingly, there would have been no
`motivation to modify Fabio based on Tusji, as proposed in the Petition.
`For at least the foregoing reasons, and in addition to the deficiencies
`addressed above concerning the challenge of independent claim 5, the Petition fails
`to prove obviousness for “wherein determining the dynamic step cadence window
`comprises: 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,” as recited in dependent claim 8.
`
`VII. CONCLUSION
`For at least the reasons set forth above, Uniloc respectfully requests that the
`Board deny all challenges in the instant Petition.7
`
`Date: December 14, 2018
`
`
`
`
`
`Respectfully submitted,
`
`By: /s/ Brett A. Mangrum
`Brett A. Mangrum; Reg. No. 64,783
`Attorney for Patent Owner
`
`
`
` 7
`
` Patent Owner does not concede, and specifically denies, that there is any legitimacy
`to any arguments in the instant Petition that are not specifically addressed herein.
`
`19
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`IPR2018-01028
`U.S. Patent 7,881,902
`CERTIFICATE OF COMPLIANCE
`
`
`
`Pursuant to 37 C.F.R. § 42.24(d), the undersigned certifies that the foregoing
`
`RESPONSE complies with the type-volume limitation of 37 C.F.R. § 42.24(b)(1)
`
`because it contains fewer than the limit of 14,000 words, as determined by the word-
`
`processing program used to prepare the brief, excluding the parts o
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