UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SAMSUNG ELECTRONICS AMERICA, INC.
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`Petitioner
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`v.
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`UNILOC LUXEMBOURG, S.A.1
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`Patent Owner
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`IPR2018-01664
`PATENT 8,872,646
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`PATENT OWNER MOTION TO AMEND CLAIM 22
`OF U.S. PATENT NO. 8,566,960 UNDER 37 C.F.R. § 42.121
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`1 The owner of this patent is Uniloc 2017 LLC.
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`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SAMSUNG ELECTRONICS AMERICA, INC.
`
`Petitioner
`
`v.
`
`UNILOC LUXEMBOURG, S.A.1
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`Patent Owner
`
`
`
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`
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`IPR2018-01664
`PATENT 8,872,646
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`
`PATENT OWNER MOTION TO AMEND CLAIM 22
`OF U.S. PATENT NO. 8,566,960 UNDER 37 C.F.R. § 42.121
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`
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`1 The owner of this patent is Uniloc 2017 LLC.
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`Table of Contents
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`IPR2018-01664
`U.S. Patent 8,872,646
`
`I.
`II.
`III.
`IV.
`
`V.
`VI.
`
`STATEMENT OF RELIEF REQUESTED .............................................. 1
`INTRODUCTION .................................................................................... 1
`CLAIM LISTING ..................................................................................... 2
`SUBSTITUTE CLAIM 23 DOES NOT ENLARGE CLAIM
`SCOPE ...................................................................................................... 2
`SUPPORT FOR PROPOSED SUBSTITUTE CLAIM 23 ....................... 3
`THE PROPOSED SUBSTITUTE CLAIM 23 RESPONDS TO
`A GROUND OF UNPATENTABILITY IN THE TRIAL ...................... 7
`PETITIONER HAS THE BURDEN TO PROVE
`UNPATENTABILITY ............................................................................. 7
`A. Overview of the ’646 Patent ........................................................... 8
`B.
`Claim Construction ......................................................................... 9
`1.
`“glitches” .............................................................................. 9
`2.
`“a change in dominant axis” ............................................... 11
`3.
`“logic to” limitations .......................................................... 11
`No obviousness for limitations directed to the “glitches”
`term ............................................................................................... 11
`1. McMahan’s “error” is distinguishable from
`“glitches” ............................................................................ 11
`2. McMahan does not remove “glitches” as claimed ............. 13
`D. No obviousness for limitations directed to the
`“dominant axis” ............................................................................ 14
`VIII. CONCLUSION ....................................................................................... 17
`
`
`VII.
`
`C.
`
`ii
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`IPR2018-01664
`U.S. Patent 8,872,646
`
`I.
`
`STATEMENT OF RELIEF REQUESTED
`Uniloc 2017 LLC (the “Uniloc” or “Patent Owner”) moves to amend U.S.
`Patent No. 8,872,646 (“the ’646 patent” or “EX1001”) by replacing challenged claim
`22 with proposed substitute claim 23. See 37 C.F.R. §§ 42.22(a)(2) and 42.121; see
`also 35 U.S.C. § 316(d).
`
`II.
`
`INTRODUCTION
`This motion to amend involves cancelling the only challenged claim (claim
`22) and replacing it with one proposed substitute claim 23. 35 U.S.C. § 316(d)(1);
`37 C.F.R. § 42.121(a)(3). The claim language originally recited in claim 22, and in
`claim 20 from which claim 22 depends, is recited verbatim in proposed substitute
`claim 23, which is written in independent from. Proposed substitute claim 23 further
`recites certain clarifying amendments, as explained further below.
`Proposed substitute claim 23 satisfies
`the statutory and regulatory
`requirements. It does not enlarge claim scope and does not introduce new matter. 37
`C.F.R. § 42.221(a)(2)(ii); 35 U.S.C. § 316(d)(3). The amendment simply clarifies
`the meaning of certain limitations in a manner that is consistent with the written
`description in the specification as originally filed. The amendment is responsive to
`a ground of unpatentability involved in the trial. 37 C.F.R. § 42.121.
`Petitioner bears the burden of proof with respect to substitute claim 23. Aqua
`Prods., Inc. v. Matal, 872 F.3d 1290, 1324-25 (Fed. Cir. 2017) (“the burden of
`proving the unpatentability of all claims in an IPR—both original and amended—is
`on the petitioner.”); Lectrosonics, Inc. v. Zaxcom, Inc., IPR2018-01129, Paper 15, at
`3-4.
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`1
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`IPR2018-01664
`U.S. Patent 8,872,646
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`III. CLAIM LISTING
`Pursuant to 37 C.F.R. § 42.121(b), Appendix A attached hereto provides a
`claim listing reproducing proposed substitute claim 23. The claim listing in
`Appendix A shows clearly “the changes in the proposed substitute claim with respect
`to the original patent claim that it is intended to replace.” Lectrosonics, IPR2018-
`01129, Paper 15, at 8.
`
`IV. SUBSTITUTE CLAIM 23 DOES NOT ENLARGE CLAIM SCOPE
`Proposed substitute claim 23 does not enlarge claim scope. 37 C.F.R. §
`42.121(a)(2)(ii); 35 U.S.C. § 316(d)(3). The claim language originally recited in
`claim 22, and in claim 20 from which claim 22 depends, is recited verbatim in the
`proposed substitute claim 23, which is written in independent from. See Appendix
`A, infra.
`In addition, proposed substitute claim 23 further recites a number of clerical
`and clarifying amendments. First, the word “generation” is clerically amended to
`recite “generate”. Second, clarifying amendments are recited as “the one or more
`glitches each indicating a respective detected motion that is both within an
`operational range of the motion sensor and outside an acceptable range, the motion
`data containing less data as a result of the removal of the one or more glitches from
`the motion data”. Finally, a clarifying amendment explicitly confirms that the
`“dominant axis logic . . . determine[s] a dominant axis”.
`To the extent scope is changed at all by these amendments, the scope can only
`be narrowed. Accordingly, the proposed amendment does not “enlarge the scope of
`the claims of the patent.” 37 C.F.R. § 42.121(a)(2)(ii); 35 U.S.C. § 316(d)(3).
`
`2
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`V.
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`IPR2018-01664
`U.S. Patent 8,872,646
`SUPPORT FOR PROPOSED SUBSTITUTE CLAIM 23
`Proposed substitute claim 23 is supported by the specification of the
`application as originally filed (Appl. No. 12/247,950; see Exhibit 1002, pp. 6-36).2
`The test for compliance with the written description requirement of 35 U.S.C.
`§ 112, first paragraph, is whether “the disclosure of the application relied upon
`reasonably conveys to those skilled in the art that the inventor had possession of the
`claimed subject matter as of the filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co.,
`598 F.3d 1336, 1351 (Fed. Cir. 2010). One shows “possession” by descriptive means
`such as words, structures, figures, diagrams, and formulas that set forth fully the
`claimed invention. Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572 (Fed.
`Cir. 1997). The claimed invention does not have to be described in ipsis verbis in
`the specification to satisfy the written description requirement. Union Oil Co. of
`California v. Atlantic Richfield Co., 208 F.3d 989, 1000 (Fed. Cir. 2000).
`The following table satisfies the requirement that “the written description
`support must be set forth in the motion to amend itself.” Lectrosonics, IPR2018-
`01129, Paper 15, at 8; see also 37 C.F.R. § 42.221(a)(2)(ii); 35 U.S.C. § 316(d)(3).
`The example citations listed in the table below are sufficient to meet the legal
`requirement and are not intended to be exhaustive. Citations to figures are intended
`to encompass the original written description corresponding to those figures, and
`vice versa. The table below is also reproduced in Appendix A for ease of reference.
`
`
`2 In addressing the patent application as originally filed, citations are made herein to
`Samsung’s Exhibit 1002 (vol. 1 of the prosecution history), using either the
`paragraph numbers of the original specification or the page numbering Samsung
`appended to its exhibit at the bottom left of each page.
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`3
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`Proposed Substitute Claim 23
`23. A system to wake up a mobile
`device comprising:
`
`a motion sensor to detect motion along
`three axes and generate motion data;
`
`a glitch corrector to determine whether
`the motion data includes one or more
`glitches and remove the one or more
`glitches from the motion data, the one
`or more glitches each indicating a
`respective detected motion that is both
`within an operational range of the
`motion
`sensor
`and outside
`an
`acceptable range, the motion data
`containing less data as a result of the
`removal of the one or more glitches
`from the motion data;
`a dominant axis logic to determine a
`dominant axis and determine an idle
`sample value comprising an average
`of accelerations over a sample period
`along the dominant axis, the dominant
`axis defined as an axis with a largest
`effect of gravity among the three axes;
`a power logic to move the device from
`the inactive state to an active state
`upon detection of a change in the
`dominant axis which is the axis
`experiencing the largest effect of
`gravity; and
`a device state logic to restore the
`device to one of: a last active state, a
`preset customized state.
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`IPR2018-01664
`U.S. Patent 8,872,646
`Example support in original application
`See, e.g., EX1002 at Fig. 2 (system 200);
`¶¶ 1, 3, 12, 14, 16-17; pp. 24-28 (e.g.,
`claims 1, 20, 22).
`See, e.g., EX1002 at Fig. 2 (motion
`sensor); ¶¶ 17-20, 23-27, 51; pp. 24-28
`(e.g., claims 2-3, 5-6, 11, 17-18).
`See, e.g., EX1002 at Fig. 2 (glitch
`correcting logic 235); Figs. 3-6; ¶¶ 10, 12,
`16-17, 21-22, 33-34, 38, 50-57; pp. 24-28
`(e.g., claims 13, 22-24).
`
`See, e.g., EX1002 at Fig. 2 (dominant axis
`logic 245); Fig. 4; ¶¶ 17, 23-25; pp. 24-28
`(e.g., claims 22-24).
`
`See, e.g., EX1002 at Abstract; Fig. 2
`(power logic 265); Figs. 3, 5; ¶¶ 1, 3, 12,
`14, 16, 27, 47, 49-50; pp. 24-28 (e.g.,
`claims 1, 20).
`
`See, e.g., EX1002 at Fig. 2 (device state
`logic 270); ¶¶ 16, 27, 36; pp. 24-28 (e.g.,
`claims 9, 21-22).
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`4
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`IPR2018-01664
`U.S. Patent 8,872,646
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`The present amendment to proposed substitute claim 23 provides certain
`clarification for limitations directed to the “glitches” term, including the recitation
`“the one or more glitches each indicating a respective detected motion that is both
`within an operational range of the motion sensor and outside an acceptable range”.
`Petitioner has conceded sufficient support at least for the requirement that “the one
`or more glitches each indicating a respective detected motion that is . . . outside an
`acceptable range. For example, Petitioner argued this its declarant as follows: “[t]he
`specification of the ’646 patent defines ‘glitch’ to include ‘a datum that indicates a
`motion outside an acceptable range.’” EX1010, ¶ 22 (quoting EX1001, 6:36-38)
`(emphasis added).
`The original application also sufficiently supports the requirement that “the
`one or more glitches each indicating a respective detected motion that is . . . within
`an operational range of the motion sensor”. For example, the original application
`discloses “glitch correcting logic 235 further may be used to discard non-human
`motions” that are nevertheless accurately detectable by the sensor. EX1002, pp. 12-
`13, ¶ 21. This example is further explained in the context of “a device [that] is not
`being used but is in a moving vehicle.” Id. While the vehicle’s motion is measurable
`by the sensor, it is considered a glitch that “can be discarded as not fitting the
`signature of human motion.” Id.
`The original application provides another example in the context of removing
`a measured reading of “64 feet per second squared (equivalent to 2 g)”. Id., pp.
`19-20, ¶ 52. In this example, a “glitch” is identified not because the motion data is
`outside the operational range of the sensor, but rather because of the specific context
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`5
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`U.S. Patent 8,872,646
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`of immediately “going from idle (e.g., no motion) to moving at [such] an
`acceleration.” Id.
`The present amendment is also supported by the statement in the specification
`that, in one embodiment, “[a]n excessive number of glitches may indicate a problem
`with the accelerometer.” Id., p. 20, ¶ 56. (emphasis and underlining added); see also
`id., p. 13, ¶ 22 (“if a certain number of glitch data points have been discarded,” it
`may be “indicative that the accelerometer or sensor is malfunctioning.”). The fact
`that multiple motion data measurements are needed in this example to indicate what
`“may” (and hence may not) be a problem confirms that an individual “glitch” in this
`context is not an impossible value outside the operational range of a sensor.
`The present amendment also provides additional clarification for the
`“glitches” term, recited as “the motion data containing less data as a result of the
`removal of the one or more glitches from the motion data”. This requirement also
`finds support in the original application. For example, the original application
`included the following claim language: (1) “removing the one or more glitches in
`the motion data from the motion data” (id., p. 26, claim 13); (2) “a glitch correct
`logic to correct one or more glitches in the motion data[,] wherein the glitch correct
`removes the one or more glitches” (id., p. 28, claims 23-24). The figures as
`originally filed, and the original accompanying description, also provide sufficient
`and independent support for the concept that glitches are removed from motion data
`and, consequently, the motion data contains less data as a result of the glitch
`removal. See, e.g., id., pp. 12-15, 33, 35 (Figs. 4 and 6).
`
`6
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`IPR2018-01664
`U.S. Patent 8,872,646
`VI. THE PROPOSED SUBSTITUTE CLAIM 23 RESPONDS TO A
`GROUND OF UNPATENTABILITY IN THE TRIAL
`The Federal Circuit instructed in Aqua Products, that “Rule 42.121(a)(2)(i)
`merely requires the patent owner to show that its proposed amendment is responsive
`to at least one ground of unpatentability at issue in the IPR.” Aqua Prod., 872 F.3d
`at 1317 (emphasis added). The Federal Circuit noted that “the PTO explained to the
`public that this requirement was merely to ensure that the proposed amendment had
`a minimal level of relevancy to the IPR.” Id. (emphasis added).
`At a minimum, the proposed amendment is responsive to a dispute over
`limitations directed to the “glitches” term, as recited in original claim 22 due to its
`dependency from original claim 20. See Pet. 9, 23-24, 31-32. The amendment is also
`responsive to Petitioner’s argument that the original claim language does not
`explicitly require “determining which of the three axes is the dominant axis.” Pet. 5.
`
`VII. PETITIONER HAS THE BURDEN TO PROVE UNPATENTABILITY
`The Federal Circuit instructed in Aqua Prod. that once the patent owner meets
`its burden of showing its amendment is non-broadening, supported, and responsive
`to a ground already at issue, the petitioner must satisfy its burden to prove
`unpatentability of the amended claims. Aqua Prod., 872 F.3d at 1305-06, 1308.
`Here, Petitioner has yet to come forward with any challenge addressing the
`patentability of proposed substitute claim 23; and Patent Owner cannot reasonably
`be expected to speculate now what Petitioner might argue on the issue of
`patentability. Nevertheless, Patent Owner notes that the art of record is deficient with
`respect to the proposed substitute claim 23 for several independent reasons.
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`7
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`IPR2018-01664
`U.S. Patent 8,872,646
`
`The Petition cites the following references in challenging original claim 22:
`Pasolini3, Goldman4, McMahan5, Mizell6 and Park7. As explained above, the
`deficiencies of the Petition largely arise from Petitioner’s erroneous claim
`construction for the “glitches” term. The present amendment clarifies Patent
`Owner’s original interpretation of “glitches” and, consequently, further emphasizes
`deficiencies in the Petition. Example deficiencies are explained below.8
`
`A. Overview of the ’646 Patent
`The ’646 patent observes that battery life has become increasingly important
`for mobile devices, particularly given that the more applications a mobile device has,
`the faster the battery of the mobile device depletes. It thus could be difficult to
`balance maximum battery life with an optimal user experience. EX1001, 1:12-20.
`The ’646 Patent teaches an innovative solution to determine whether a
`measured device motion is sufficient enough to warrant waking up a mobile device
`from an idle, battery-saving state to an active state. See, e.g., id., Abstract; 1:24-25;
`1:56-63. This design may help ensure that when the device is picked up to be used
`by a user, the device can automatically transition from the idle state to an active state.
`By initiating the transition from the idle state to the active state without requiring
`
`
`3 EX1003, U.S. Patent No. 7,409,291
`4 EX1004, Goldman, “Using the LIS3L02AQ Accelerometer”
`5 EX1005, U.S. Patent No. 7,204,123
`6 EX1007, David Mizell, “Using Gravity to Estimate Accelerometer Orientation”
`7 EX1014, U.S. Patent No. 7,028,220
`8 The deficiencies of the Petition identified herein are examples and are not presented
`herein as being an exhaustive list of all deficiencies.
`
`8
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`IPR2018-01664
`U.S. Patent 8,872,646
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`user input, the user experience may be enhanced. Id., 2:34-41.
`According to a particular embodiment, when a device enters an idle state using
`a low-power mode, it nevertheless maintains sufficient power to monitor at least one
`sensor. Id., 2:10-27. The sensor samples motion data along multiple axes over time
`while the device is in an idle state. Id., 3:4-4-20. A dominant axis may be determined
`from the sampled motion data as the axis with a largest effect of gravity among the
`axes sensed by the sensor. Id. A change in measured motion along the dominant axis
`is compared to rolling averages to determine whether the change fits the signature
`of human motion indicative of a user preparing to interface with the device. To avoid
`tainting rolling-average calculations with irrelevant or abnormal motion data that is
`deemed to be a “glitch”, this data is removed from the dataset and hence not used in
`calculating the rolling average. This improves detecting when a change in motion
`fits the signature of a user preparing to interface with the device. Id.
`
`B. Claim Construction
`The Petition injects several claim construction disputes that are either
`irrelevant or conclusively resolved by proposed substitute claim 23.
`
`1.
`“glitches”
`The instant Petition essentially copies the same claim construction arguments
`for the “glitches” term from IPR2018-00289, which Petitioner moved to join in
`IPR2018-01383. Petitioner argues “the broadest reasonable interpretation of a
`‘glitch’ includes ‘a datum that is outside of an acceptable range.’” Pet. 9.
`Entry of the present amendment resolves the claim construction dispute
`injected by the Petition over the “glitches” term. Proposed substitute claim 23
`
`9
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`IPR2018-01664
`U.S. Patent 8,872,646
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`provides the following clarifying amendment: “the one or more glitches each
`indicating a respective detected motion that is both within an operational range of
`the motion sensor and outside an acceptable range, the motion data containing less
`data as a result of the removal of the one or more glitches from the motion data”.
`The present amendment provides clarification for the “glitches” term in a
`manner that more closely reflects a passage of the ’646 patent quoted by Petitioner’s
`declarant as follows: “[t]he specification of the ’646 patent defines ‘glitch’ to
`include ‘a datum that indicates a motion outside an acceptable range.’” EX1010,
`¶22 (quoting EX1001, 6:36-38) (emphasis added). Petitioner’s construction is
`untethered to the opinion of its own expert that a “glitch” indicates a motion and
`that it is the indicated motion that is outside an acceptable range.
`The present amendment also provides clarification by the recitation “the
`motion data containing less data as a result of the removal of the one or more glitches
`from the motion data”. The original limitation “a glitch corrector to . . . remove the
`one or more glitches from the motion data” (as recited in original claim 20 and
`repeated verbatim in proposed substitute claim 23) derives antecedent basis for “the
`motion data” from “a motion sensor to detect motion along three axes and generate
`motion data”. A plain reading of this claim language is that the “remove” limitation
`refers to “one or more glitches” included within the previously generated “motion
`data” and that, consequently, removal of the “one or more glitches” from the
`“motion data” results in reducing the “motion data” to a subset thereof having less
`data. This straightforward interpretation is made explicit by the present amendment.
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`10
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`IPR2018-01664
`U.S. Patent 8,872,646
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`2.
`“a change in dominant axis”
`Petitioner argues that “a change in dominant axis” as cited in claim 20 must
`be interpreted as encompassing within its scope the recitation in claim 7—i.e., “a
`change in acceleration along the dominant axis.” Pet. 9. But independent claim 20
`does not include an analogous dependent claim. The Petition provides no authority
`for the proposition that a claim depending from one independent claim must be
`interpreted as being encompassed by the scope of a different independent claim.
`
`3.
`“logic to” limitations
`Petitioner’s claim construction arguments for the “logic to” limitations are
`irrelevant because no party asserts 35 U.S.C. § 112, ¶ 6 should apply.
`
`C. No obviousness for limitations directed to the “glitches” term
`The amendment clarifies limitations directed to the “glitches” term as follows:
`
`a glitch corrector to determine whether the motion data includes
`one or more glitches and remove the one or more glitches from
`the motion data, the one or more glitches each indicating a
`respective detected motion that is both within an operational
`range of the motion sensor and outside a predetermined range of
`acceptable motion data, the removal of the one or more glitches
`from the motion data reducing the motion data in terms of a total
`number of samples;
`
`The Petition relies exclusively on McMahan for all limitations reciting the
`“glitches” term. Pet. 31-32. The cited portions of McMahan are distinguishable from
`this claim language for each one of the dispositive reasons that follow.
`
`1. McMahan’s “error” is distinguishable from “glitches”
`McMahan’s “error” is distinguishable from the “glitches” term, particularly
`under the clarifying amendment in proposed substitute claim 23. McMahan defines
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`11
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`IPR2018-01664
`U.S. Patent 8,872,646
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`its “error” as an “impossible value” that is not indicative of motion because it is
`outside what the sensor is designed to monitor: “errors in vibrating beam sensors are
`reduced by eliminating output frequencies that have impossible values under normal
`operation.” EX1005, 2:32-34; see also id., 3:37-40 (“sensor 102 comprises any
`appropriate device with a known range of physically possible values being output as
`either analog or digital signal”); id., 4:26−30 (“[w]hen the output of sensor 102 is
`not within the expected range of its normal operation, it is presumed that the output
`is an error. This means that the output of the sensor is not an accurate reflection of
`the stimulus that the sensor is designed to monitor.”) (emphasis added).
`McMahan further describes its error with reference to the example where “the
`output range of the accelerometer is limited to a square wave with a frequency
`bounded between 35 KHz and 42 KHz”, such that the operational range of measured
`values for this sensor is “from 17.5 to 21 in a 0.5 ms interval.” Id., 5:41-45. If such
`a sensor returns a value over 21, for example, the value is immediately rejected as
`an impossible error because it is outside the operational range of the sensor. Id., 5:47-
`51. McMahan warns that “[i]f the error is allowed to propagate to the electronic
`circuit 106, the operation of electronic circuit 106 is likely to be compromised since
`the error may be magnified when relied on in further operations by electronic circuit
`106.” Id., 4:31-43.
`By way of contrast, the ’646 patent teaches “glitches” may be accurately
`detected motion data within an operational range of the motion sensor, yet outside a
`predetermined range of acceptable motion data. See §V, supra. For example, the
`’646 patent states “glitch correcting logic 235 further may be used to discard non-
`
`12
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`IPR2018-01664
`U.S. Patent 8,872,646
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`human motions” that are nevertheless accurately detectable by the sensor. EX1001,
`3:23-27. This example is further explained in the context of “a device [that] is not
`being used but is in a moving vehicle.” Id. While the vehicle’s motion is measurable
`by the sensor, it is considered a glitch and “can be discarded as not fitting the
`signature of human motion.” Id. To be clear, the data influenced by the vehicle’s
`motion is not inherently deemed an impossible error of the sensor. Rather, the data
`is presumably accurately measured yet not within a predetermined range indicative
`of human motion. Id.
`The ’646 patent provides another example of removing a measured reading of
`“64 feet per second squared (equivalent to 2 g)”. EX1001, 6:36-40. In this example,
`a “glitch” is identified not because the value itself is outside the operational range
`of the sensor, but rather because of the specific context of immediately “going from
`idle (e.g., no motion) to moving at [such] an acceleration.” Id.
`This patentable distinction between McMahan’s error and “glitches” of the
`’646 patent is made explicit in proposed substitute claim 23 in at least the following
`recitation: “the one or more glitches each indicating a respective detected motion
`that is both within an operational range of the motion sensor and outside a
`predetermined range of acceptable motion data”.
`
`2. McMahan does not remove “glitches” as claimed
`Proposed substitute claim 23 is further amended to recite “the motion data
`containing less data as a result of the removal of the one or more glitches from the
`motion data.” In addition to the deficiencies regarding the “glitches” term itself, the
`alleged removal of errors in McMahan at least does not satisfy the recitation “the
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`IPR2018-01664
`U.S. Patent 8,872,646
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`motion data containing less data as a result of the removal of the one or more glitches
`from the motion data”.
`The Petition focuses exclusively on two statements in McMahan in
`addressing the requirement “remove the one or more glitches from the motion data”,
`as required by original claim 22 (due to its dependence on claim 20). Pet. 31-32
`(citing EX1005, 4:26-30 and 4:35-38). Neither of these citations to McMahan are
`availing. The first discloses an error is presumed when the sensor output is outside
`its operational range; and the second discloses that a different value is provided
`when the sensor outputs an error. Id. These statements confirm that McMahan
`replaces errors with contrived data, which is not a removal of one or more glitches,
`much less one that results in the alleged “motion data containing less data”.
`McMahan not only fails to disclose the limitations directed to the “glitches”
`term, it teaches away from from inclusion of an “error” within motion data and, by
`extension, also teaches away from subsequent removal of that “error” from motion
`data. For example, McMahan warns (in a passage connecting the disjointed portions
`Petitioner cites) that “[i]f the error is allowed to propagate to the electronic circuit
`106, the operation of electronic circuit 106 is likely to be compromised since the
`error may be magnified when relied on in further operations by electronic circuit
`106.” EX1005, 4:31−34. In other words, the “error” in McMahan, by intended
`design, is never included as part of anything that can be considered motion data.
`
`D. No obviousness for limitations directed to the “dominant axis”
`The proposed substitute claim 23 repeats the following explicit definition for
`the “dominant axis” term recited within the original claim language: “the dominant
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`axis defined as an axis with a largest effect of gravity among the three axes”.
`The amendment to proposed substitute claim 23 clarifies and makes explicit
`that the “dominate axis logic [] determine[s] a dominant axis.” The Petition argues
`“the claims do not require determining which of the three axes is the dominant axis.”
`Pet. 5. Petitioner overlooks claim language recited in original claim 20, including
`the limitation “upon detection of a change in the dominant axis”. Petitioner fails to
`explain how a change in the detection of a dominant axis can be detected without
`having previously determined a dominant axis. In any event, the proposed
`amendment recites this as a requirement of the “dominant axis logic”.
`Claim 23 further repeats verbatim the requirement recited in original claims
`20 and 22 of “a power logic to move the device from the inactive state to an active
`state upon detection of a change in the dominant axis which is the axis experiencing
`the largest effect of gravity”. The Petition fails to identify any record evidence
`rending this claim language obvious.
`First, Petition first points to the following passage of Pasolini:
`
`The dynamic-acceleration signals AXD, AYD, AZD are exclusively
`correlated to the accelerations due to variable forces and, in
`practice, are different from zero only when the apparatus 1 is
`moved, i.e., when it is picked up to be used. Consequently, at the
`precise moment when the user picks up the apparatus 1, at least
`one of the dynamic-acceleration signals AXD, AYD, AZD exceeds
`the threshold acceleration ATH of the respective threshold
`comparator 36.
`
`EX1003, 5:51-39 (Petitioner’s emphasis omitted). This passage is unavailing at least
`because Pasolini indiscriminately evaluates the values of three acceleration signals,
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`IPR2018-01664
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`without any reference to a determined dominant axis. Pasoslini is indifferent as to
`whether there is a “detection of a change in the dominant axis” in particular, much
`less a “dominant axis” previously determined by “dominant axis logic”.
`Second, Petitioner argues that “an upward motion (i.e., picking the device up,
`as taught by Pasolini) causes a change in acceleration along the vertical axis (i.e.,
`the axis most affected by gravity).” Pet. 37-38 (citing 1010, ¶112) (emphasis
`omitted). Petitioner ignores the fact that the “dominant axis” is not defined in the
`claim language as the gravitational axis. Rather, it is explicitly “defined as an axis
`with a largest effect of gravity among the three axes” of detection of the motion
`sensor. Merely detecting a change along the vertical axis does not disclose what the
`claim language expressly requires—i.e., “detection of a change in the dominant
`axis” itself, as expressly defined in the claim language.
`Third, Petitioner argues that Pasolini as applied to Goldman allegedly “would
`return current acceleration values according to the methods getRelativeAccelX(),
`getRelativeAccelY(), getRelativeAccelZ() and getRelativeAccel().” Pet. 38. This
`rehashed theory is tainted at least by the same deficiency described above.
`Indiscriminately evaluating all available acceleration signals, without reference to a
`previously determined dominant axis, is plainly distinguishable from “detection of
`a change in the dominant axis” previously determined by “dominant axis logic”.
`Fourth, Petitioner points again to a similar passage of Pasolini that merely
`confirms the same deficiency:
`
`Consequently, at the precise moment when the user picks up the
`apparatus 1, at least one of the dynamic-acceleration signals AXD,
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`IPR2018-01664
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`AYD, AZD exceeds the threshold acceleration ATH of the respective
`threshold comparator 36, and an activation pulse WU is supplied,
`which brings the control unit 3, the memory 4, the I/O unit 5 and
`the screen 6 back into the active state.
`
`Pet. 38 (citing EX1003, 5:35-48). Here again, Pasolini confirms it simply looks for
`any data exceeding a threshold, without any regard as to whether there is a “detection
`of a change in the dominant axis” itself, as expressly defined in the claim language.
`Fifth, Petitioner points without explanation to software in Goldman as
`allegedly implementable in the system in Pasolini to perform non-specified
`“functions described above.” Pet. 39. The declaration attached to the Petition is
`unavailing because it merely offers the same citations and repeats the same
`conclusory statements, without providing any rational underpinning. At a minimum,
`the Petition fails to establish that Goldman
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