`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`———————
`
`
`
`LG ELECTRONICS, INC., HTC CORPORATION, and HTC AMERICA, INC.
`Petitioners
`
`v.
`
`UNILOC LUXEMBOURG S.A.,
`Patent Owner
`
`———————
`
`INTER PARTES REVIEW OF U.S. PATENT NO. 8,712,723
`Case IPR No.: IPR2018-01458
`
`
`
`
`
`Declaration of Joseph A. Paradiso, PhD
`under 37 C.F.R. § 1.68
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`LGE v. Uniloc USA
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`Page 1 of 92
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`Paradiso Decl.
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`Inter Partes Review of U.S. 8,712,723
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`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`I.
`II. QUALIFICATIONS AND PROFESSIONAL EXPERIENCE ...................... 2
`III. LEVEL OF ORDINARY SKILL IN THE ART ............................................. 8
`IV. RELEVANT LEGAL STANDARDS ............................................................. 9
`A. Anticipation ............................................................................................ 10
`B. Obviousness ........................................................................................... 10
`V. OVERVIEW OF THE ’723 PATENT .......................................................... 12
`A. Summary of the Patent ........................................................................... 12
`B. Prosecution History of the ’723 Patent .................................................. 15
`VI. BROADEST REASONABLE INTERPRETATION ................................... 17
`A. “dominant axis” ..................................................................................... 17
`B. “cadence window” ................................................................................. 18
`C. “a dominant axis logic to determine an orientation of a device with
`respect to gravity, to assign a dominant axis, and to update the
`dominant axis when the orientation of the device changes” ................. 19
`D. “a counting logic to count periodic human motions by monitoring
`accelerations relative to the dominant axis by counting the periodic
`human motions when accelerations showing a motion cycle that meets
`motion criteria is detected within a cadence window” .......................... 20
`E. “a cadence logic to update the cadence window as actual cadence
`changes” ................................................................................................. 21
`IDENTIFICATION OF HOW THE CLAIMS ARE UNPATENTABLE .... 23
`A. State of the Art at the Time of the ’723 Patent ...................................... 23
`B. Summary of Fabio .................................................................................. 25
`C. Summary of Pasolini .............................................................................. 28
`
`VII.
`
`i
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`D. Reasons to Combine Fabio and Pasolini ............................................... 30
`E. Detailed Analysis ................................................................................... 34
`VIII. CONCLUSION .............................................................................................. 89
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`ii
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`Paradiso Decl.
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`Inter Partes Review of U.S. 8,712,723
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`I.
`
`INTRODUCTION
`
`1.
`
`I am making this declaration at the request of LG Electronics, Inc.
`
`(“LG”), as well as HTC Corporation and HTC America, Inc. (together “HTC”) in
`
`the matter of this inter partes review of U.S. Patent No. 8,712,723 (“the ’723
`
`Patent”) to Kahn, et al.
`
`2.
`
`I am being compensated for my work in this matter at the rate of
`
`$600/hour. I am also being reimbursed for reasonable and customary expenses
`
`associated with my work and testimony in this investigation. My compensation is
`
`not contingent on the outcome of this matter or the specifics of my testimony. I
`
`hold no interest in LG Electronics, Inc., LG Electronics U.S.A., Inc., LG
`
`Electronics MobileComm USA, Inc., HTC Corporation, HTC America, Inc., or the
`
`Patent Owner Uniloc USA, Inc.
`
`3.
`
`I have been asked to provide my opinions regarding whether claims 1-
`
`3, 5-7, and 10-18 of the ’723 Patent are unpatentable, either because they are
`
`anticipated or would have been obvious to a person having ordinary skill in the art
`
`(“POSITA”) at the time of the alleged invention, in light of the prior art. It is my
`
`opinion that all of the limitations of claims 1-3, 5-7, and 10-18 would have been
`
`obvious to a POSITA.
`
`4.
`
`In the preparation of this declaration, I have studied:
`
`
`
`
`
`1
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`a)
`
`b)
`
`c)
`
`The ’723 Patent, Ex.1001;
`
`The prosecution history of the ’723 Patent, Ex.1002;
`
`U.S. Patent No. 7,463,997 to Fabio Pasolini et al. (“Pasolini”),
`
`Ex.1005.
`
`d)
`
`U.S. Patent No. 7,698,097 to Fabio Pasolini et al. (“Fabio”),
`
`Ex.1006 .
`
`5.
`
`In forming the opinions expressed below, I have considered:
`
`a)
`
`The documents listed above, and
`
`b) My own knowledge and experience based upon my work in the
`
`field of MEMS (micro-electro-mechanical) devices and body
`
`motion sensing systems, as described below.
`
`II. QUALIFICATIONS AND PROFESSIONAL EXPERIENCE
`
`6. My complete qualifications and professional experience are described
`
`in my Curriculum Vitae, a copy of which can be found in Ex.1004. The following
`
`is a brief summary of my relevant qualifications and professional experience.
`
`7.
`
`As shown in my curriculum vitae, I have devoted my career to various
`
`fields of physical, electrical, and computer science with more than two decades
`
`focused on embedding sensing, including wearable and wireless sensors. I have
`
`twenty years of experience in wearable devices and computing, during which I
`
`
`
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`2
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`invented and fielded many types of wearable activity tracking devices that utilized
`
`a variety of power management and wakeup protocols.
`
`8.
`
`I am the Alexander W. Dreyfoos (1954) Professor in Media Arts and
`
`Sciences at the Massachusetts Institute of Technology (MIT), where I direct the
`
`Responsive Environments Group, which explores how sensor networks augment
`
`and mediate human experience, interaction and perception. I also have served as
`
`co-director of the Things That Think Consortium, a group of MIT Media Lab
`
`researchers and industrial partners focused on the future of embedded computation
`
`and sensing, and am now serving as our Associate Department Head.
`
`9.
`
`I received my B.S. in electrical engineering and physics summa cum
`
`laude from Tufts University in 1977 and my Ph.D. in physics from MIT in 1981.
`
`From 1981 to 1984, I did post-doctoral research at the Swiss Federal Institute of
`
`Technology (ETH) in Zurich, working on sensor technology for high-energy
`
`particle physics. From 1984-1994, I was a physicist at the Draper Laboratory in
`
`Cambridge, Massachusetts, where, as a member of the NASA Systems and
`
`Advanced Sensors and Signal Processing Directorates, my research included
`
`spacecraft control systems and sensor technology for both sonar systems and high-
`
`energy physics. I also worked at Draper Lab as an undergraduate (1974-1978) on
`
`software for advanced strategic inertial measurement units and guidance systems.
`
`
`
`
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`3
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`From 1992-1994, I directed the development of precision alignment sensors for the
`
`GEM muon detector at the Superconducting Supercollider, and worked on design
`
`of particle detectors at the CERN Large Hadron Collider (LHC).
`
`10.
`
`I joined the MIT Media Lab in 1994. The MIT Media Lab was
`
`founded in 1985 to actively promote a unique, anti-disciplinary culture that focuses
`
`on research projects joining different technological and academic fields. As
`
`described further below, researchers at the MIT Media Lab have pioneered areas
`
`such as wearable computing, tangible interfaces, and affective computing.
`
`Examples of products or platforms spun off Media Lab research include electronic
`
`ink readers such as the Amazon Kindle and Barnes & Noble Nook, the popular
`
`video game Guitar Hero, the MPEG-4 structured audio format, the first bionic
`
`lower-leg system for amputees, wireless mesh networks developed by Nortel, and
`
`the Mercury RFID Reader, commercialized by spin-off ThingMagic. Today, the
`
`Lab is supported by more than 70 sponsors/members, comprising some of the
`
`world’s leading corporations and representing the fields of electronics,
`
`entertainment, fashion, health care, greeting cards, and telecommunications, among
`
`others. Faculty members, research staff, and students at the Lab work in more than
`
`25 research groups on more than 350 projects that range from digital approaches
`
`
`
`
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`4
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`for treating neurological disorders, to a stackable, electric car for sustainable cities,
`
`to advancing imaging technologies that can see around corners.
`
`11. Upon joining the Media Lab, I focused on developing new sensing
`
`modalities for human-computer interaction, then by 1997 evolved my research into
`
`wearable wireless sensing and distributed sensor networks. This work anticipated
`
`and influenced transformative products and industries that have blossomed in
`
`recent years. For example, the sensor-laden wireless shoe I developed for
`
`interactive dance in 1997 is recognized as a watershed in the field of wearable
`
`wireless sensing and was an inspiration for the Nike+, one of the very first activity
`
`trackers and the first commercial product to integrate dynamic music with
`
`monitored exercise. My team went on to pioneer clinical gait analysis with
`
`wearable wireless sensors in collaboration with the Massachusetts General
`
`Hospital (MGH) in 2002, and then broke new ground in sports medicine with
`
`another MGH collaboration that developed an ultra-wide-range wireless inertial
`
`measurement unit system for evaluating professional baseball pitchers in 2007. My
`
`team and I have also been leaders on wearable sensing for Human-Computer
`
`Interfaces, over the past decade fielding, for example, wristbands to measure finger
`
`position, wristbands to enable pointing interaction and control of heating and
`
`lighting, and even a wireless touchpad mounted on a fingernail.
`
`
`
`
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`5
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`12. Leading to over 300 publications, 17 issued patents, and a string of
`
`awards in the Pervasive Computing, Human Computer Interaction, and sensor
`
`network communities, my research has become the basis for widely established
`
`curricula. Many of these publications are directed to wearables. I have also advised
`
`over 55 graduate (MS and PhD) theses for students who have done their work in
`
`my research group, and served as a reader for roughly 100 MS and PhD students in
`
`other groups and at other universities. Some of my own students have gone on to
`
`prominence in their own careers that have involved wearables—for example, Dr.
`
`Nan-Wei Gong (PhD 2013) was the R&D lead of Project Jacquard (integrating
`
`electronics and textiles) at Google ATAP before becoming founder and CEO of
`
`her own companies with a wearable focus ‘Circular2’ and ‘Figure8,’ and Dr. Stacy
`
`Morris Bamberg (PhD 2004) became a tenured professor at the University of Utah
`
`doing wearable gait analysis, then started a company in this space (Veristride). I
`
`have given over 300 invited talks, panel appearances, and seminars worldwide,
`
`recently keynoting on topics relating to ubiquitous sensing and the Internet of
`
`Things (IoT) for prestigious venues ranging from the Sensors Expo (the main
`
`industrial sensors conference) to the World Economic Forum. I am frequently
`
`asked to address industrial groups on wearables and IoT, and often engage with the
`
`Media Lab’s extensive list of industrial partners in strategizing these areas.
`
`
`
`
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`6
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`13.
`
`I belong to and participate in various professional organizations. I am
`
`a senior member of the IEEE (Institute of Electrical and Electronics Engineers),
`
`and also belong to the ACM (Association for Computer Machinery). I also belong
`
`to the APS American Physical Society (the major professional society in physics),
`
`and am a senior member in the AIAA (the American Institute of Aeronautics and
`
`Astronautics). Within the IEEE, I belong to the Signal Processing Society, the
`
`Controls Society, and the Computer Society. As detailed in my CV, I have served
`
`on many Technical Program Committees (TPCs, which solicit, review, and select
`
`papers for academic conferences) and journal editorial boards, plus have organized
`
`academic conferences in areas such as wireless sensor networks, wearable
`
`computing and wearable sensing, human-computer interfaces, ubiquitous
`
`computing, etc.
`
`14. One of the themes of my research has been on low-power embedded
`
`systems and energy harvesting. I have written several well-regarded papers on
`
`these topics that well predate the ’723 Patent—for example, the review article that
`
`I wrote for IEEE Pervasive Computing in 2005, ‘Energy Scavenging for Mobile
`
`and Wireless Electronics’ has become their most popular article and is widely
`
`cited. My work on smart wakeup systems (e.g., as described in my papers such as
`
`‘A Framework for the Automated Generation of Power-Efficient Classifiers for
`
`
`
`
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`7
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`Embedded Sensor Nodes’ and ‘CargoNet: A Low-Cost MicroPower Sensor Node
`
`Exploiting Quasi-Passive Wakeup for Adaptive Asynchronous Monitoring of
`
`Exceptional Events,’ both presented at SenSys 2007), are also of relevance here.
`
`III.
`
` LEVEL OF ORDINARY SKILL IN THE ART
`
`15.
`
`I understand there are multiple factors relevant to determining the
`
`level of ordinary skill in the pertinent art, including (1) the levels of education and
`
`experience of persons working in the field at the time of the invention; (2) the
`
`sophistication of the technology; (3) the types of problems encountered in the field;
`
`and (4) the prior art solutions to those problems.
`
`16.
`
`I am familiar with accelerometers (including those found in portable
`
`devices such as mobile phones). I am also aware of the state of the art at the time
`
`the application resulting in the ’723 Patent was filed. I have been informed by
`
`LG’s and HTC’s counsel that the earliest alleged priority date for the ’723 Patent is
`
`December 22, 2006. Based on the technologies disclosed in the ’723 Patent, I
`
`believe that a person having ordinary skill in the art (“POSITA”) would include
`
`someone who had, at the priority date of the ’723 Patent, (i) a Bachelor’s degree
`
`in Electrical Engineering, Computer Engineering, Computer Science, or
`
`equivalent training, as well as (ii) approximately two years of experience
`
`working in hardware and/or software design and development related to MEMS
`
`
`
`
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`8
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`(micro-electro-mechanical) devices and body motion sensing systems. Lack of
`
`work experience could have been remedied by additional education, and vice
`
`versa. Such academic and industry experience would be necessary to appreciate
`
`what was obvious and/or anticipated in the industry and what a POSITA would
`
`have thought and understood at the time. Based on this criteria, as of the
`
`relevant time frame for the ’723 Patent, I possessed at least such experience and
`
`knowledge of a POSITA, as well as trained many of them by then, hence am
`
`qualified to opine on the ’723 Patent.
`
`17. For purposes of this Declaration, in general, and unless otherwise
`
`noted, my statements and opinions, such as those regarding my experience and the
`
`understanding of a POSITA generally (and specifically related to the references I
`
`consulted herein), reflect the knowledge that existed in the field as of December
`
`22, 2006. Unless otherwise stated, when I provide my understanding and analysis
`
`below, it is consistent with the level of a POSITA prior to the priority date of the
`
`’723 Patent.
`
`IV. RELEVANT LEGAL STANDARDS
`
`18.
`
`I understand that prior art to the ’723 Patent includes patents and
`
`printed publications in the relevant art that predate the priority date of the alleged
`
`invention recited in the ’723 Patent. For purposes of this Declaration, I have been
`
`
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`asked to apply December 22, 2006, the earliest alleged priority date, as the priority
`
`date.
`
`19.
`
`I am not an attorney. In preparing and expressing my opinions and
`
`considering the subject matter of the ’723 Patent, I am relying on certain basic
`
`legal principles that counsel have explained to me. These principles are discussed
`
`below.
`
`20.
`
`I understand that a claim is unpatentable if it is anticipated under 35
`
`U.S.C. § 102 or obvious under 35 U.S.C. § 103.
`
`A. Anticipation
`
`21.
`
`I have been informed by counsel that a patent claim is unpatentable as
`
`anticipated if each element of that claim is present either explicitly or inherently in
`
`a single prior art reference. I have also been informed that, to be an inherent
`
`disclosure, the prior art reference must necessarily disclose the limitation, and the
`
`fact that the reference might possibly practice or contain a claimed limitation is
`
`insufficient to establish that the reference inherently teaches the limitation.
`
`B. Obviousness
`
`22.
`
`I have been informed that a claimed invention is unpatentable under
`
`35 U.S.C. § 103 if the differences between the invention and the prior art are such
`
`that the subject matter as a whole would have been obvious at the time the
`
`
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`10
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`invention was made to a person having ordinary skill in the art to which the subject
`
`matter pertains. I have also been informed by counsel that the obviousness analysis
`
`takes into account factual inquiries including the level of ordinary skill in the art,
`
`the scope and content of the prior art, and the differences between the prior art and
`
`the claimed subject matter.
`
`23.
`
`I have been informed by counsel that the Supreme Court has
`
`recognized several rationales for combining references or modifying a reference to
`
`show obviousness of claimed subject matter. Some of these rationales include the
`
`following: (a) combining prior art elements according to known methods to yield
`
`predictable results; (b) simple substitution of one known element for another to
`
`obtain predictable results; (c) use of a known technique to improve a similar device
`
`(method, or product) in the same way; (d) applying a known technique to a known
`
`device (method, or product) ready for improvement to yield predictable results; (e)
`
`choosing from a finite number of identified, predictable solutions, with a
`
`reasonable expectation of success; and (f) some teaching, suggestion, or motivation
`
`in the prior art that would have led one of ordinary skill to modify the prior art
`
`reference or to combine prior art reference teachings to arrive at the claimed
`
`invention.
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`V. OVERVIEW OF THE ’723 PATENT
`A.
`
`Summary of the Patent
`
`24. The ’723 Patent is directed to “a method of monitoring human
`
`activity, and more particularly, to counting periodic human motions such as steps.”
`
`Ex.1001, 1:13-15. The monitoring of human activity is performed using “inertial
`
`sensors (e.g., accelerometers)” found in commercial electronic devices such as
`
`“cellular phones, portable music players, pedometers, game controllers, and
`
`portable computers.” Ex.1001, 1:20-26. As noted in the background of the ’723
`
`Patent, “[s]tep counting devices are used to monitor an individual's daily activity
`
`by keeping track of the number of steps that he or she takes.” Ex.1001, 1:27-29.
`
`The background section also identifies the known problem that “[s]tep counting
`
`devices are often confused by motion noise [that] … causes false steps to be
`
`measured and actual steps to be missed in conventional step counting devices.”
`
`Ex.1001, 1:35-39.
`
`25. The claims of the ’723 Patent are directed to two separate concepts
`
`that are alleged improvements over conventional step counting devices. The first
`
`concept relates to “assigning a dominant axis with respect to gravity.” See, e.g.,
`
`Ex.1001, claim 1. In the ’723 Patent, the dominant axis is “the axis most aligned
`
`with gravity,” which “may change over time (e.g. as the electronic device is
`
`
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`rotated).” Ex.1001, 6:20-25. Figure 8 of the ’723 Patent, reproduced below in part,
`
`provides a method for assigning a dominant axis based on taking measurements of
`
`acceleration data:
`
`
`
`Ex.1001, Fig. 8, in part.
`
`26. The second concept relates to updating a “cadence window”
`
`corresponding to the user’s step cadence. See, e.g., Ex.1001, claim 1. In the’723
`
`Patent, “[a] cadence window is a window of time since a last step was counted that
`
`is looked at to detect a new step.” Ex.1001, 4:5-7. Figure 6, reproduced below,
`
`shows an example method for setting a cadence window, including recognizing a
`
`step in the cadence window then adding one to the step count:
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`Ex.1001, Fig. 6.
`
`27. The “dominant axis” and “cadence window” concepts claimed in the
`
`’723 Patent were not novel. As shown in this Declaration, (1) U.S. Patent No.
`
`7,698,097 to Fabio Pasolini et al. (“Fabio”) describes a validation interval (cadence
`
`window) that is a window of time since a last step was counted that is looked at to
`
`detect a new step and (2) both Fabio and U.S. Patent No. 7,463,997 to Fabio
`
`Pasolini et al. (“Pasolini”) describe detecting steps using a dominant axis of a tri-
`
`axial accelerometer, or, in other words, using the axis most influenced by gravity.
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`28. Before the ’723 Patent was filed, a developer named Fabio Pasolini
`
`was actively working on pedometer devices that included the concepts described
`
`and claimed in the ’723 patent. Mr. Pasolini filed two patent applications (issued as
`
`U.S. Patent No. 7,698,097 (“Fabio”) and U.S. Patent No. 7,463,997 (“Pasolini”))
`
`before the ’723 patent was filed. The Pasolini reference describes a pedometer
`
`updates the vertical axis with each acquisition of an acceleration sample to take
`
`into account variations of the orientation of the pedometer device during use.
`
`Ex.1005, 8:20-24. The Fabio reference, on the other hand, describes applying a
`
`regularity condition to the detected step data so that a step is counted when it
`
`occurs within a “validation interval.” In my opinion, the disclosures provided in
`
`the Fabio and Pasolini references either render obvious each and every element of
`
`the claims discussed below.
`
`B.
`
`Prosecution History of the ’723 Patent
`
`29. The ’723 Patent issued on April 29, 2014 from U.S Patent Application
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`No. 13/018,321 filed on January 31, 2011. The ’723 Patent is a continuation of
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`U.S. Application No. 12/694,135, filed on January 26, 2010, which is a
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`continuation of U.S. Application No. 11/644,455, filed on December 22, 2006.
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`30.
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`In a first Office action, the Examiner rejected claims 1, 2, 11, 12, 14,
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`and 16 under 35 U.S.C. 102 (e) as anticipated by U.S. Patent Application
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`15
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`Paradiso Decl.
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`Inter Partes Review of U.S. 8,712,723
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`Publication No. 2007/0143068 to Fabio Pasolini et al. Ex.1002, p.200. This
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`application later issued as U.S. Patent No. 7,463,997 to Fabio Pasolini et al.
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`(“Pasolini”), and is cited in this Declaration as a secondary reference (Ex.1005).
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`31.
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`In the first Office action, the Examiner identified that Pasolini
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`discloses the claimed features including “assigning a dominant axis based on an
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`orientation of the inertial sensor,” “detecting a change in the orientation of the
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`inertial sensor and updating the dominant axis based on the change,” and “counting
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`periodic human motions by monitoring accelerations relative to the dominant axis
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`based upon acceleration measurements along only the dominant axis to count
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`steps.” Ex.1002, p.201.
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`32.
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`In its response to the first Office action, the Applicant amended the
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`claims to further recite “by counting the periodic human motions when
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`accelerations showing a motion cycle that meets motion criteria within a cadence
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`window” and “updating the cadence window as actual cadence changes.” Ex.1002,
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`pp.138-41. The Applicant argued in its response that “Pasolini does not teach or
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`suggest the use of cadence windows, much less the comparison of a motion cycle
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`to a cadence window which is adjusted as the user’s motion is detected.” Ex.1002,
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`p.201.
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`16
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`Paradiso Decl.
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`Inter Partes Review of U.S. 8,712,723
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`33.
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`In Notice of Allowance, the Examiner quoted the amended claims and
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`indicated that the amended claims were allowable over Pasolini (among others).
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`Ex.1002 pp.34-36. However, U.S. Patent No. 7,698,097 to Fabio Pasolini et al.
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`(“Fabio”), which is the primary prior art reference relied on in this Declaration,
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`does not appear to have been cited or otherwise considered by the Examiner during
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`prosecution.
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`VI. BROADEST REASONABLE INTERPRETATION
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`34.
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`It is my understanding that in order to properly evaluate the ’723
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`Patent, the terms of the claims must first be interpreted. It is my understanding that
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`for the purposes of this inter partes review, the claims are to be given their
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`broadest reasonable interpretation in light of the specification. It is my further
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`understanding that claim terms are given their ordinary and accustomed meaning
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`as would be understood by one of ordinary skill in the art, unless the inventor has
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`set forth a special meaning for a term. In order to construe the following claim
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`terms, I have reviewed the entirety of the ’723 Patent, as well as its prosecution
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`history.
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`A.
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`“dominant axis”
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`35. This term appears in at least claims 1, 2, 10, 11, 14, and 15. In the
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`specification of the ’723 Patent, the dominant axis is determined based on the
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`17
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`accelerometer’s alignment with gravity. For example, the specification states that
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`“[i]n one embodiment, the dominant axis is assigned after identifying a
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`gravitational influence. The gravitational influence may be identified by
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`calculating total acceleration based upon the acceleration on each axis.” Ex.1001,
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`14:37-41. The specification also states that “[i]n one embodiment, once the
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`orientation is determined, a dominant axis is assigned based upon the orientation.
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`Determining an orientation of the electronic device 100 may include identifying a
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`gravitational influence.” Ex.1001, 6:20-23. In other words, the dominant axis in the
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`specification is “the axis most influenced by gravity, which may change over time
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`(e.g., as the electronic device is rotated).” Ex.1001, 6:24-26.
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`36. Thus, for the purposes of this proceeding, it is my opinion that a
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`POSITA would understand the broadest reasonable interpretation of the term
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`“dominant axis” to include “the axis most influenced by gravity.”
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`B.
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`“cadence window”
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`37. This term appears in at least claims 1, 5, 6, 10, 12, 14, 16 and 17. The
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`specification of the ’723 Patent specifically defines this term as “a window of time
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`since a last step was counted that is looked at to detect a new step.” Ex.1001, 4:4-5.
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`38. Thus, for the purposes of this proceeding, it is my opinion that a
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`POSITA would understand the broadest reasonable interpretation of the term
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`
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`18
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`“cadence window” to include “a window of time since a last step was counted that
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`is looked at to detect a new step.”
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`C.
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`“a dominant axis logic to determine an orientation of a device
`with respect to gravity, to assign a dominant axis, and to update
`the dominant axis when the orientation of the device changes”
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`39. This term appears in at least claim 10. The specification of the ’723
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`Patent describes that “dominant axis logic 127 is used to determine an orientation
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`of the electronic device 100 and/or an inertial sensor within the electronics device
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`100.” Ex.1001, 3:13-17. The specification further describes that “[a]t processing
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`block 812, in one embodiment the inertial sensor is oriented by assigning a
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`dominant axis. Assigning a dominant axis may include calculating rolling averages
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`of acceleration and assigning the dominant axis based on the rolling averages of
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`acceleration.” Ex.1001, 12:45-49. The specification further describes that the
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`present invention may be performed by hardware, software, or a combination of
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`both. See Ex.1001, 14:53-59.
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`40. Accordingly, it is my opinion that a POSITA would have understood
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`the broadest reasonable interpretation of this claim term to include “hardware,
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`software, or both to determine an orientation of a device, to assign a dominant axis,
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`and to update the dominant axis as the orientation of the device changes.”
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`19
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`41. However, to the extent that Patent Owner overcomes the presumption
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`against construction under 35 U.S.C. § 112, sixth paragraph, a POSITA would
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`have understood the claim itself and the specification to provide:
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`Function: to determine an orientation of a device with respect to
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`gravity, to assign a dominant axis, and to update the dominant axis
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`when the orientation of the device changes;
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`Structure: software, hardware, or combination thereof to perform the
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`actions described with respect to block 812. Ex.1001, 3:13-17, 12:45-
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`49, 14:53-59.
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`D.
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`“a counting logic to count periodic human motions by monitoring
`accelerations relative to the dominant axis by counting the
`periodic human motions when accelerations showing a motion
`cycle that meets motion criteria is detected within a cadence
`window”
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`42. This term appears in at least claim 10. The specification of the ’723
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`Patent describes “step counting logic 130” that is used “to determine if a step has
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`occurred” and indicate if “a step may be counted.” Ex.1001, 6:45-50, 7:7-10. In
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`one example, at block 615 “measurement data is checked to determine whether an
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`additional step is recognized.” Ex.1001, 11:19-21. At block 620, “[i]f an additional
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`step is recognized, then it is added to the final or actual step count.” Ex.1001,
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`11:21-22. The specification further describes that the present invention may be
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`performed by hardware, software, or a combination of both. See Ex.1001, 14:53-
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`59.
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`43. Accordingly, it is my opinion that a POSITA would have understood
`
`the broadest reasonable interpretation of this claim term to include “hardware,
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`software, or both to count periodic human motions by monitoring accelerations
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`relative to the dominant axis by counting the periodic human motions when
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`accelerations showing a motion cycle that meets motion criteria is detected within
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`a caden