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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________
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`APPLE INC.,
`
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC.,
`
`Patent Owner.
`___________
`
`Case IPR 2018-01093
`Patent 7,944,353 B2
`____________
`
`Record of Oral Hearing
`Held: August 20, 2019
`____________
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`
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`
`
`Before SALLY C. MEDLEY, GARTH D. BAER, and
`SEAN P. O'HANLON, Administrative Patent Judges.
`
`
`
`
`
`
`ADAM P. SEITZ, ESQUIRE
`Erise IP P.A.
`
`7015 College Blvd.
`Suite 700
`Overland Park, KS 66211
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`IPR 2018-01093
`Patent 7,944,353 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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` BEHALF OF THE PATENT OWNER:
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`BRETT MANGRUM, ESQUIRE
`Etheridge Law Group
`2600 East Southlake Blvd.
`Suite 120
`
`Southlake, TX 76092
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`The above-entitled matter came on for hearing on Tuesday, August
`20, 2019, commencing at 9:00 a.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia, before Chris Hofer, Notary
`Public.
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`P R O C E E D I N G S
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`JUDGE O'HANLON: Good morning everyone. This is a
`
`
`hearing in Case No. IPR 2018-01093, Apple Inc., v. Uniloc 2017 LLC,
`formerly Uniloc Luxembourg S.A., concerning U.S. patent No. 7,944,353.
`I'd like to start by having counsel for the parties introduce themselves
`starting with Petitioner.
`
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`MR. SEITZ: Good morning, Your Honors. Adam Seitz with
`Erise IP for Petitioner Apple.
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`JUDGE O'HANLON: And for Patent Owner.
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`MR. MANGRUM: Good morning, Your Honors. Brett
`Mangrum representing Uniloc. I'm with the Etheridge Law Group.
`
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`JUDGE O'HANLON: Thank you. I'm Judge O'Hanlon. I'm
`joined on my right by Judge Medley and on my left by Judge Baer. Per our
`order dated July 22, each side will have 45 minutes to argue. Petitioner will
`argue first, Patent Owner will argue second. Each party can reserve time for
`rebuttal. If you run over during your argument-in-chief, I will reset the
`clock with the time you have reserved for rebuttal. I'll endeavor to let you
`know if this happens but please be mindful of the lamp and the clock.
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`As usual, speaking objections are not allowed. If you have
`anything to note you can do so during your time to argue. Also, please,
`when referencing demonstratives, please state the slide number for the
`record. With that, I'll invite Mr. Seitz to begin. Would you like to reserve
`any time for rebuttal?
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`MR. SEITZ: Fifteen minutes, Your Honor.
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`JUDGE O'HANLON: Fifteen minutes. I'll set the clock for 30
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`minutes. Please begin when you're ready.
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`MR. SEITZ: Thank you, Your Honors. Judges O'Hanlon and
`Medley, good to see you again. Judge Baer, pleasure to meet you sir. Your
`Honors, I'm going to start on slide DX2. It's just a brief overview of both of
`the patents or the two main patents that we're going to be talking about
`today, starting with the ’353 and then also looking briefly at Lemelson. I
`want to do this from a high level to orient our discussion on whether and
`how the patents are focused on the same solution to very similar problems.
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`The ’353 patent at a high level focuses on the basics of a
`personal safety alert system. It uses a personal what it calls a life recorder
`which is worn by each individual and then it receives an input of data from
`some sort of sensor. That could be a microphone, that could be some sort of
`biomedical sensor such as a heart rate sensor but it's going to constantly
`monitor and receive inputs from that sensor.
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`Then, and we see that depicted at 310 on figure 3 of slide DX2.
`Once it receives that data it's going to pass that along to what it calls its
`analysis subsystem at block 320 where it is going to then analyze the data
`that's coming in from your microphone or from your heart rate sensor.
`Using the heart rate sensor as an example, it's going to then compare the data
`that it's receiving on your heart rate to data that has in its memory, which it
`identifies as a glossary here of biometric events in block 370 and it's going
`to be looking for a match on some sort of event, what it calls a signature, to
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`see if your heart rate is indicative of some sort of problematic scenario. Do
`you have an elevated heart rate? Does that match a signature for some
`medical condition? A heart attack is the low hanging fruit here. Does it
`match a heart attack, for example the signature of a heart attack data that it
`has in memory?
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`So once it makes that match it's going to then assess if you have
`an abnormal heart rate whether it's a critical event such as a heart attack, and
`then it's going to pass that along to what it calls its reporting subsystem
`which is block 320 where then appropriate action can be taken. The
`reporting subsystem in the ’353 patent then will contact the appropriate
`authorities. If it's a medical event obviously that's going to go to responders.
`If it's a fire or other type of event it'll go to those types of emergency
`responders.
`Lemelson is also directed towards, moving to slide DX3, is
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`directed towards a personal safety alert system. It has a unit again that's
`worn by the individual, a mobile unit that's worn by the individual, and it's
`going to monitor data that is being received. It discloses very similar aspects
`such as a microphone to listen to sounds from the environment. It discloses
`biometric sensors or medical sensors such as a heart rate sensor and on the
`left side of figure 4A depicted on DX3 it's going to follow down the path of
`just that first part of the figure flow chart where it's going to look for or try
`and hear these events such as a medical event coming from the heart rate
`data or loud noises or gunshots that might be coming in.
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`As it analyzes that data it's going to look and compare that to
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`information that it has in its memory to see if it matches a signature that
`would indicate that there is an abnormal medical condition or a potentially
`dangerous situation, loud noise and gunshots. If that is detected, it's then
`going to send a signal to appropriate reporting authorities who are then
`going to send help however that may be necessary, again such as medical
`personnel or police as may be necessary.
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`I'm going to pass over slides 4 and 5 and I'm going to go
`directly to slide 6 and get into the disputes that we have regarding the claims
`in this matter. There's two main disputes between the parties as they relate
`to Lemelson here and it centers around three limitations. I'm going to bucket
`two of the limitations together for our first discussion which are going to be
`limitations B and C, repeatedly analyzing the input data to determine an
`event context, so we have our event context, and then assessing the
`criticality of the determined event context. We're going to discuss those
`together and then the second dispute relates to the final limitation which is
`responsive to your assessment of criticality determining a reporting
`response.
`Moving to slide DX 7, let's start with the first dispute. Much of
`
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`Uniloc's disagreement on limitations 1B and 1C, which are the determining
`an event context, again just to orient ourselves, and assessing the criticality
`of that event context. So, much of their disagreement centers on a mapping
`that we have not proffered in our petition and so where I want to start today
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`is explaining specifically our mapping for the event context and assessing
`the criticality.
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`For determining an event context, there's two different things
`that are disclosed in Lemelson. There's health events and there's audio
`events, and I'm going to start with health events and then I'm going to loop
`back to audio events. Both were mapped in our petition. For determining an
`event context for a health event we have mapped the disclosure from
`Lemelson that discusses how it will determine if there is an abnormal
`medical condition. Specifically Lemelson says that it will compare the
`signals generated by your medical monitoring device such as a heart rate
`monitor to the data in memory which shows what your normal level should
`be and then it will compare those two to see if there's a variance of a
`predefined degree. Have I reached a threshold and have I exceeded that? If
`a variance exists that defines an abnormal medical condition in Lemelson,
`this is the event context that we have mapped. Variance of a predefined
`degree to determine whether there's an abnormal medical condition and
`again the way that Lemelson does that is to look at your current heart rate,
`talking about the health events, look at your current heart rate, compare that
`to the data that it has in memory defining your normal heart rate, and seeing
`if a variance of a predefined degree exists. That is how we have mapped the
`event context.
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`JUDGE O'HANLON: Mr. Seitz, is that two steps or is that one
`step, what you just explained determining the variance of predefined degree?
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`MR. SEITZ: I believe that's one step, Your Honor, and there's
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`a second step in Lemelson that relates to the assessing the criticality but the
`portions that I just described on DX8 of determining if there is an abnormal
`medical condition is the first step that we have identified and Lemelson then
`discloses a second step that takes it a step further with what it does once it
`has that variance of a predefined degree and I think that's an appropriate
`question, Judge O'Hanlon, because this is where a lot of the confusion has
`come in.
`Step 2 in the claims is assessing the criticality of your event
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`context. The criticality assessment in Lemelson goes beyond merely
`determining whether there's an abnormality, whether I have an abnormal
`medical condition. It goes beyond seeing if you've just exceeded a
`threshold. Instead what Lemelson discloses is that it creates a message that
`contains a definition of the degree of the abnormality or what Lemelson calls
`here, cited on DX 9 at column 4, a signal defining the variance. This signal
`defining the variance is the assessment of the degree or the amount of
`variance from the threshold comparison from your normal state to your
`current state.
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`So Step 1 which we talked about before is the threshold
`analysis of whether my current condition exceeds a threshold heart rate.
`That is the event context. Step 2 is the creation of the message that defines
`exactly what that variance is. As we see here, it transmits signals defining
`the variance to the command control center and so that --
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`JUDGE O'HANLON: Can you back up just a second?
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`MR. SEITZ: Yes, sure.
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`JUDGE O'HANLON: Can you explain to me again what is
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`determining an event context and what is assessing a criticality of the
`determined event context? I'm not sure I follow what you were trying to
`say.
`MR. SEITZ: Yes, absolutely, Your Honor. So the event
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`context is determining if I have an abnormal medical condition. So that's
`Step 1 in Lemelson and that specifically, if we look at column 4 starting
`about line 29 is where it describes this. You have a warning unit that's worn
`by a person. It monitors and generates signals defining your current medical
`conditions such as your current heart rate. The warning unit also includes
`memory including data defining abnormal medical conditions. The
`computer is programmed to compare the signals generated by the medical
`monitoring system, so my signals defining my current heart rate, to the data
`that is stored in memory defining abnormal medical conditions which it will
`say is your normal heart rate, what it expects that to be, and if a variance of a
`predefined degree exists it says that is an abnormal medical condition and so
`the way we have mapped the event context is this determining of whether
`there has been that variance of a predefined degree.
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`JUDGE O'HANLON: So everything you just spoke about is
`determining an event context?
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`MR. SEITZ: Correct.
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`JUDGE O'HANLON: Okay. So you haven't talked about
`assessing the criticality of that yet?
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`MR. SEITZ: That is correct.
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`JUDGE O'HANLON: Thank you.
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`MR. SEITZ: Yes. Step one. Step two, just to continue with
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`that line of thought because a lot of the confusion has come here, it says if a
`variance of a predefined degree exists between your current and normal
`medical conditions, then step two is here. The computer generates and
`causes the transmission circuit to transmit signals defining the variance to
`the command control center. So this is assessing the criticality. I may have
`a heart rate that exceeds -- if I look at the language still -- that has a
`predefined degree, a variance of a predefined degree I may have a heart rate
`that exceeds by only a few beats per minute. That is going to be the signal
`defining the variance and that's going to tell the reporting center, here what
`they call the command control center, that I have a heart rate that has
`exceeded by three beats a minute or by a percentage. It doesn't matter what
`they use here for the signal defining the variance, but the assessment of the
`criticality is how much over that I am. The definition of the variance.
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`So then the command control center, who handles this
`reporting, can assess that and determine the appropriate response and so that
`definition of the variance tells me three beats a minute, hey, this is not a big
`deal or perhaps many, many beats per minute, over 100 beats per minute
`over, and this is a heart attack event where somebody could lose their life
`and so it's that definition of the variance that defines the assessing the
`criticality.
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`JUDGE O'HANLON: I believe in the petition you stated that
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`Lemelson's warning unit also determines the reporting response. It sounds
`like you're relying just on the command center to do that, to report on the
`responses.
`MR. SEITZ: That's correct. The command center is going to
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`handle the assessment, so it's going to, responsive to the assessment of
`criticality, it's going to determine a reporting response. So it's the command
`center handles that.
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`JUDGE O'HANLON: So the personal warning unit does not do
`that, just --
`MR. SEITZ: It transmits the signal to the command center
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`which then determines the reporting response.
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`JUDGE O'HANLON: Okay.
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`MR. SEITZ: So Uniloc has missed our mapping here. In its
`Patent Owner response and in its surreply they never specifically addressed
`this two step process, specifically the assessment of criticality by this
`definition of the variance. Much of the briefing between the parties was
`spent on either clarifying this on our behalf or arguing that the determining
`of an abnormal medical condition can't satisfy both steps. But we're not
`merely relying on the mere determination of an abnormal medical condition,
`we're looking at the second step here which is the defining of the variance
`for assessing the criticality.
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`Lemelson also discloses, and we mapped this in our petition an
`alternative aspect for meeting this two step assessment on the determining
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`the event context and assessing the criticality and so if I set aside our prior
`discussion there's also another two step process that's disclosed in Lemelson
`that lines up with the ’353 patent.
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`Depicted on slide DX10 we can see from Lemelson there's
`disclosure at column 4 that discusses how the command control center can
`determine the severity of the emergency and dispatch the proper emergency
`assistance. This also, as we've mapped in our petition, could be the
`assessment of the criticality and then as it goes on the responsive to that
`assessment determining the appropriate response. This matches the
`disclosure of the ’353 patent also depicted on slide DX10 which discussed
`here about receiving alerts or received alerts may be analyzed and
`distributed through an infrastructure to the appropriate personnel, again
`allowing for those alerts to be assessed by that remote command center.
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`There also is an audio aspect, moving to slide DX11, in
`Lemelson. So it discusses health events. It also discusses detecting audio
`events, has a microphone for doing so. We have mapped a two step process
`from Lemelson for the audio events in addition to the health events. Now
`here --
`JUDGE O'HANLON: Mr. Seitz, just before you start. Do you
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`need both the medical and the audio, or just one of them to satisfy the claims
`of the ’353 patent?
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`MR. SEITZ: Just one of them, Your Honor. Just one of them.
`There were plenty of disclosures in Lemelson that we felt met this two step
`process and so we mapped them out of an abundance of caution to show the
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`significant overlap here and so I only need the health events. I'm going to
`discuss briefly the audio events but either one is sufficient for you to find the
`patents invalid.
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`JUDGE MEDLEY: And which of the two do you feel like is
`the strongest position?
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`MR. SEITZ: The health events I believe are the strongest and
`that's because if I look at the disclosure which we're going to get to for the
`audio events, we used our expert to help clarify that those events could be
`moved in this instance, the assessment of the danger, could be moved from
`the remote control center or the command center back on to the portable
`unit. The health assessment, the assessing the criticality for the health
`events is done on the portable unit already. So if you're looking at just from
`that perspective I think it's cleaner and easier with the health events but I
`don't feel that the audio's weak, it's just all right there when it relates to the
`health.
`JUDGE MEDLEY: Okay. Thank you.
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`MR. SEITZ: Okay. So the event context for the audio, now we
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`have disclosure from Lemelson that discusses at column 4 the sound
`recognition system, the microphone, detects loud noises, riot sounds,
`gunshots and other such noises. So the microphone is constantly going to be
`listening to the events that are going on around you. If it hears a loud event
`it is going to assess that as a potential issue that may need some sort of
`emergency response. So the event context here is going to be the detection
`of the loud noise.
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`It is then going to provide an assessment of the criticality of
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`that event context and as we just discussed Judge Medley, that's going to
`occur here in Lemelson at the command and control center. So it's going to
`take that notification, an event context of a loud noise or a gunshot, and it's
`going to send that in a message to the command and control center. The
`command and control center in Lemelson then assesses the criticality by
`applying what it calls fuzzy logic to determine okay, what is this. Is this
`someone clapping their hands? Is this glass breaking? Is this a problem?
`And then it's going to use its fuzzy logic to come up with what it calls a
`degree of danger which is the assessment of the criticality and we see that
`here on slide DX12 at column 4 again continuing on starting at line 67. It
`uses the fuzzy logic to define the emergency conditions and then it's going to
`transmit signals to an emergency response unit that is going to define the
`type of emergency as well as information that's going to include the fuzzy
`logic degree of danger which is your assessment of the criticality.
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`JUDGE BAER: Going back to the detection, not all sounds are
`transmitted, right, just the -- what is it, loud noises, riot sounds or gunshots,
`right?
`MR. SEITZ: That's right.
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`JUDGE BAER: So is there any disclosure about that filtering
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`process, what counts as a loud noise or counts as a riot sound, what counts as
`a gunshot?
`MR. SEITZ: As far how you would define that, no. There's no
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`disclosure of what sort of sound profile would account for a gunshot.
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`JUDGE BAER: I guess what I'm getting at is doesn’t there
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`have to be some filtering on the device, because it's not transmitting every
`sound, it's only transmitting loud sounds. I mean isn't there some logic on
`the device for that purpose?
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`MR. SEITZ: Yes. There is logic on the device and we know
`there's plenty of logic on the device because it's making assessments of
`health. We know from Lemelson that it's also making assessments of your
`degree of danger on the device itself. In a different context, Judge Baer,
`which is the geographic or GPS based functionality, it's going to look and
`see where you are and assess your danger as a geographic aspect. So we
`know that there is brains, so to speak, and assessments and smarts that are
`taking place on the device. When it comes to audio we don't know
`specifically what filtering it's applying that would identify a loud noise
`compared to me just, for example, talking a little louder, we just know that it
`will take things that it identifies as loud noises or gunshots or riot sounds
`and send those off to the command center.
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`So stepping back, the assessment of criticality for the audio
`events is going to take place at the command and control center with this
`fuzzy logic degree of danger. I believe that's fully encompassed by the
`claims. Claim 1 particularly I don't believe has a requirement that this must
`take place on the portable unit. It's a method claim. But our expert did
`provide an opinion that this assessment could take place obviously at the
`center, the command and control center, but also provided an opinion that
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`you could do this on the portable unit as well which is included in
`paragraphs 45 and 46 of his declaration.
`
`
`There's two main arguments that Uniloc has made regarding the
`audio events. Looking at slide DX13. The first is that Uniloc has argued
`Lemelson identifies only the command and control center as calculating the
`fuzzy logic degree of danger arising from an audio event specifically and the
`second is that by expressly locating the fuzzy logic analysis at the
`centralized command center that is distinguishable over claim 1 and both of
`these are very similarly related.
`
`
`The first argument that the fuzzy logic degree of danger for
`audio events is only at the command and control center is correct. But that
`argument ignores the fact that we've had our expert provide an opinion that
`it would have been obvious to put that on the portable unit itself. Now
`Judge Baer was just talking about the geographic degree of danger.
`Lemelson discloses the ability to track where you are as you walk around
`using GPS and on that portable unit itself as you walk around it will look at
`your location and compare that to where dangerous events are occurring and
`then if you get too close to those events it will provide an alarm for you on
`the device itself. So we know from Lemelson that there is logic, this fuzzy
`logic that's occurring on the portable device, however the disclosure there is
`for the geographic GPS based degree of danger.
`
`
`Our expert looked at that and said that it would have been
`obvious with all of that processing already on the portable unit to do that for
`the audio events there on the portable unit as well. So he submitted his
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`declaration. Again that's paragraphs 45 and 46. He was not deposed.
`Uniloc chose not to depose him. Uniloc did not provide their own expert
`and his testimony there is unchallenged.
`
`
`Second argument that Uniloc makes is that the degree of danger
`has to be on the portable unit. Now we have had our expert opine that it
`could be but I don't believe that method claim 1 requires it to be. On slide
`DX15 I've repeated merely the claim language from claim 1. It's a method
`claim. Assessing the criticality of the determined event context is the
`required limitation and I don't believe there's any limitation on how or where
`this has to occur. There's no, if we refer to it as a division of labor, there's
`no division of labor aspect in the ’353 patent that says certain things must
`occur on the portable unit as compared to your reporting response center.
`
`
`Moving on to our second dispute on slide DX16. It's the final
`limitation of claim 1 which is responsive to the assessment of criticality.
`We're going to determine our reporting response. The key aspect here is that
`you must determine a reporting response responsive to the assessment of the
`criticality.
`Lemelson's final step as shown on DX17 transmits an
`
`
`emergency message and the disclosure in Lemelson is that this is based on
`the assessment of the danger or assessment of the potential health event. So
`we see on DX17 from column 4 at the top that we're going back over
`language that we've talked about. If a variance of a predefined degree exists,
`the computer generates and causes the transmission circuit to transmit the
`signals defining the variance to the command and control center. Not
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`depicted here but it goes on at lines 48 to 50 in column 4 to say that the
`command and control center "dispatches the proper emergency assistance"
`after it receives the signal with the definition of the variance from the user.
`So we see that a signal is sent defining the variance and we see that the
`command and control center will dispatch the proper emergency assistance.
`
`
`Similar disclosure in column 7 starting at line 42 depicted in the
`bottom quote on DX17. "If the system detects abnormal medical signs for
`an individual and the individual is in need of medical attention, an
`emergency transmission will be made from the personal monitoring unit to a
`remote control center."
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`For audio events there's a similar disclosure as well. Column 4,
`lines 39 to 41 not depicted on slide DX17 but lines 39 to 41 it says, "the
`computer generates and causes the transmission circuit to transmit signals
`defining the emergency condition to the command and control center."
`
`
`Lemelson then teaches the central command center then
`dispatches appropriate assistance to the individual. Appropriate here
`because it knows the type of emergency or emergency event that it is
`responding to.
`
`
`JUDGE O'HANLON: What portion of Lemelson were you
`referencing?
`
`
`MR. SEITZ: Yes, Your Honor. Column 4, lines 39 to 41.
`
`
`JUDGE O'HANLON: Thank you.
`
`
`MR. SEITZ: Your Honor, the last thing I'd like to discuss just
`briefly is claims 6 and 7 and I've included claim 8 up here for context as
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`well. There was a debate between the parties on these two aspects here for
`threshold settings and configuration settings. For claims 6 and 7, claim 6
`requires a threshold setting that is part of the configuration data. So there is
`a configuration data or a configuration setting where the user can go in and
`configure or modify their system and that can include a threshold setting for
`what levels of events may meet or exceed the threshold. That is what is
`being discussed in claim 6. Now that threshold setting is separate and
`distinct from the filtering that's included in claim 7. Claim 7 says responsive
`to the event data meeting a threshold setting, so a user has configured a
`threshold for claim 6. You have met that threshold. Claim 7 then says
`filtering the event data based on a configuration setting. So there is again a
`filtering the event data that is separate from your threshold. We have
`mapped this specifically to two steps relying on the reference Zhou which
`discloses as an example of how this two step process would work. I go in
`and I set a heart rate value that is going to be my threshold. Perhaps that's,
`I'm going to forget the exact specifics, perhaps that's 100 beats a minute and
`if you meet 100 beats a minute then it goes on and says but only report if
`your body temperature is also in excess of 100 degrees and so there's going
`to be that second step that we've cited to from Zhou saying heart rate must
`exceed this threshold and then we're going to filter and say we're not going
`to report or worry about it unless your body temperature is also at a separate
`level. So the filtering and the threshold setting are two different things and
`we've mapped them as such.
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`And I have nothing further at this point, Your Honors, unless
`
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`you have any questions.
`
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`JUDGE O'HANLON: Nothing for me.
`
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`MR. SEITZ: All right. Thank you.
`
`
`JUDGE O'HANLON: Thank you. You've got about 20
`minutes left.
`
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`MR. SEITZ: Thank you, Your Honor.
`
`
`JUDGE O'HANLON: Mr. Mangrum, do you wish to reserve
`rebuttal time?
`
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`MR. MANGRUM: Yes. We'd like to reserve ten minutes.
`
`
`JUDGE O'HANLON: Ten minutes. You may begin when
`ready.
`MR. MANGRUM: I'd like to begin by referencing the claim
`
`
`language. It's the claim language that dictates the control or the outcome of
`this case and what we've emphasized in our briefing is the interrelationship
`in claim 1 between the steps. Because each step expressly references a
`preceding step and requires the completion of a preceding step the claim
`language necessitates an ordered process where each limitation depends on
`the preceding one.
`
`
`To give some examples if we go -- we've highlighted this to
`kind of emphasize this in slide 2. What we've shown, we've put the primary
`limitations in the body of claim and numbered them as 1 through 4 and in
`addressing the second limitation, or what my colleague has referred to as
`limitation B, we have repeatedly analyzing the input data to determine an
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`event context. When we get to the next step you assess criticality but it uses
`the word of the determined event context so we know from that that the
`event context already has to be determined and that's when you assess the
`criticality.
`That's important because what we have in the way this is
`
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`described in the specification is two distinct steps. One of them determines
`and one of them assesses, and those are separate steps. All this happens
`before you report and one of the distinctions we emphasize between the
`patent and w
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