throbber
A0 120 (Rev. 08/10)
`
`TO:
`
`Mail Stop 8
`Director of the U.8. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`TRADEMARK
`
`REPORT ON THE
`FILING OR DETERMINATION OF AN
`ACTION REGARDING A PATENT OR
`
`In Compliance with 35 U.S.C. § 290 and/or l5 U.S.C. § 1 1 l6 you are hereby advised that a court action has been
`
`filed in the U.S. District Court
`Northern DISII’ICI Of Texas
`on the following
`
`D Trademarks or
`
`MPatentsi
`
`( D the patent action involves 35 U.S.C. § 292.):
`
`DOCKET NO.
`4:17-cv-00832-O
`PLAINTIFF
`
`DATE FILED
`10/13/2017
`
`U.S. DISTRICT COURT
`Northern District of Texas
`
`DEFENDANT
`
`Uniloc USA Inc
`Uniloc Luxembourg 8 A
`
`LG Electronics U.S.A., Inc.
`LG Electronics MobileComm U.S.A. Inc
`LG Electronics Inc
`
`
`EMARK
`
`
`DATE INCLUDED
`
`In the above%ntitled case, the following patent(s)/ trademark(s) have been included:
`INCLUDED BY
`
`PATENT OR
`TRADEMARK NO.
`
`DATE OF PATENT
`OR TRADEMARK
`
`HOLDER OF PATENT OR T
`
`R 1:
`
`D Amendment
`
`D Answer
`
`DCross Bill
`
`D Other Pleading
`
`In the aboveientitled case. the following decision has been rendered or judgement issued:
`DECISION/JUDGEMENT
`
`Defendants' request to transfer these cases is GRANTED. Therefore, the above styled and numbered cases, see
`supra n.2, are TRANSFERRED to the Northern District of California pursuant to 28 U.S.C. § 1404(a).
`
`CLERK
`
`Karen Mitchell
`
`(BY) DEPUTY CLERK
`
`Paige Lessor
`
`DATE
`
`5/14/2018
`
`Copy l—L'pon initiation of action, mail this copy to Director Copy 3—Upon termination of action, mail this copy to Director
`Copy 2—Upon filing document adding patent(s), mail this copy to Director Copy 4—Case file copy
`
`Page 1 of 496
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`SAMSUNG EXHIBIT 1004
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`SAMSUNG EXHIBIT 1004
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`

`

`us to. 0V
`Trials
`571-272-7822
`
`Paper7
`Entered: June 27, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`’
`
`APPLE INC.,
`
`Petitioner,
`
`V.
`
`UNILOC LUXEMBOURG S.A.,
`Patent Owner.
`
`Cése IPR2018-00389
`
`Patent 8,712,723 B1
`
`Before SALLY C. MEDLEY, JENNIFER S. BISK, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`DECISION
`
`Institution of Inter Partes Review
`
`35 USC. § 314(a)
`
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`

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`IPR2018-OO389
`
`Patent 8,712,723 B1
`
`1.
`
`INTRODUCTION
`
`Apple Inc. (“Petitioner”) filed a Petition requesting inter partes review
`of claims 1—3, 5—7, and 10—18 ofU.S. Patent No. 8,712,723 B1 (Ex. 1001,
`
`“the ’723 patent”). Paper 2 (“Pet”). Uniloc Luxembourg S.A. (“Patent
`
`Owner”), filed a Preliminary Response. Paper 6 (“Prelim. Resp”).
`
`We have jurisdiction under 35 U.S.C. § 314. Upon considering the
`
`record developed thus far, for reasons discussed below, we institute inter
`
`partes review of claims 1—3, 5—7, and 10—18 of the ’723 patent.
`
`A. Related Matters
`
`The parties indicate that the ’723 patent is involved in Uniloc USA,
`
`Inc. v. Apple, Inc, Case No. 2-17-cv-00522 (ED. Tex.) and other
`
`proceedings. Pet. 2; Paper 3.
`
`B. The ’723 Patent
`
`The ’723 patent relates to monitoring and counting periodic human
`
`motions, such as steps. Ex. 1001, 1:12—14. The ’723 patent states that
`
`inertial sensors (e.g., accelerometers) are used in step counting devices
`
`allowing an individual to track the number of daily steps. Id. at 1:18—29.
`
`One problem recognized in the ’723 patent is the limitations of these step
`
`counting devices concerning the orientation of the device during use. Id. at
`
`1 229—34. Further, motion noise ofien confuses these devices resulting in
`
`missed steps or counting false steps, with a particular problem identified of
`
`inaccurate step measurements for slow walkers. Id. at 1:3 5—43.
`
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`IPR2018-003 89
`
`Patent 8,712,723 B1
`
`The ’723 patent provides for accurate counting of steps without regard
`
`for the orientation of the step counting device, even if that orientation
`
`changes during operation. Id. at 233—3 8. In particular, the ’723 patent
`
`describes assigning a dominant axis after determining an orientation of the
`
`inertial sensor, where the orientation of the inertial sensor is continuously
`
`determined. Id. at 2:15—19. In one embodiment, the ’723 patent method
`
`determines rolling averages of the accelerations of each axis monitored by
`
`the inertial sensor in the device. Id. at 6:15—21. The largest absolute rolling
`
`average indicates the axis most influenced by gravity, which may change
`
`over time, as the device’s orientation changes because of rotation. Id. at
`
`6:20—25.
`
`With regard to the embodiment shown in Figure 8, reproduced below,
`
`the ’723 patent describes the method for measuring the acceleration along
`
`the assigned dominant axis to detect, and count, steps. See id. at 12:30—35.
`
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`

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`IPR20 1 8-003 89
`
`Patent 8,712,723 B 1
`
`St
`
`r1
`
`/\ 800
`
`Take Measurement(s) of Acceleration Data fig
`
`Filter Measurement(s) m
`
`Orient Device by Assigning Dominant Axis
`
`§1_2_
`
`
`Measurement(s) Within Cadence
`Window?
`fijfi
`
`
`
`
`Acceleration Along Dominant Axis
`Greater Than Lower Threshold?
`
`No
`
`Yes
`
`820
`
`
` ' cceleration Greater Than
`Previous Measurementts ?
`
`
`
`
`Acceleration Lower Than
`No
`Upper Threshold?
`
`Yes
`830
`Count Step §_$_§
`
`Cofigtitdeég
`
`Figure 8
`
`Figure 8 illustrates a diagram for a method of recognizing a step.
`
`After measurements of acceleration data (step 805) and filtering those
`
`measurements (step 810), the method evaluates the orientation of the device
`
`and assigns a dominant axis (step 812). A processing logic determines
`
`4
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`IPR2018-003 89
`
`Patent 8,712,723 B1
`
`whether a measurement is within a cadence window (step 815). The
`
`cadence window is the allowable time window for steps to occur. Id. at
`
`3:65—66. In one embodiment, the cadence window is determined based on
`
`the actual stepping period or actual motion cycle, but default limits or other
`
`determiners may be used to set the cadence window. Id. at 4:7—27. After
`
`each step is counted, the minimum and/or maximum of the cadence window,
`
`or window length, may be adjusted based on actual cadence changes. Id.
`
`Therefore, the cadence window is dynamic so that it continuously updates.
`
`Id. at4z31—33.
`
`If the measurement of acceleration along the dominant axis is within
`
`the cadence window, and is within the range of acceleration thresholds
`
`(steps 820, 830), the motion is determined to he a step and is counted (step
`
`835). Otherwise, the step is not counted (step 840) and the method
`
`continues to evaluate subsequent measurements.
`
`C. Illustrative Claim
`
`Of the challenged claims, claims 1, 5, 10, and 14 are independent.
`
`Each of claims 2, 3, 6, 7, 11—13, and 15—18 depends directly or indirectly
`
`from one of the challenged independent claims.
`
`Claim 1 is illustrative:
`
`1. A method for monitoring human activity using an inertial
`sensor, comprising:
`
`assigning a dominant axis with respect to gravity based on an
`orientation of the inertial sensor;
`
`detecting a change in the orientation of the inertial sensor and
`updating the dominant axis based on the change; and
`5
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`IPR2018-00389
`
`Patent 8,712,723 B1
`
`counting 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; and
`
`updating the cadence window as actual cadence changes.
`
`Ex.1001,15:13—24.
`
`D. Asserted Prior Art and Grounds of Unpatentabz’lity
`
`This proceeding relies on the following prior art references:
`
`a) Fabio: US. Patent No. 7,698,097 B2, filed in the record as Exhibit
`
`1006; and
`
`b) Pasolini: US. Patent No. 7,463,997 B2, filed in the record as
`
`Exhibit 1005.
`
`Petitioner asserts one ground of unpatentability based on obviousness
`
`of all challenged claims (claims 1-3, 5—7, and 10—18) over Fabio and
`
`Pasolini. Pet. 15.
`
`Petitioner also relies on a Declaration of Joseph A. Paradiso, Ph.D.,
`
`filed as Exhibit 1003 (“Paradiso Declaration”).
`
`11.
`
`DISCUSSION
`
`A.
`
`Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`
`patent in which they appear. 37 C.F.R. § 42.100. We presume a claim term
`
`carries its plain meaning, which is the meaning customarily used by those of
`
`6
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`Patent 8,712,723 B1
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`skill in the relevant art at the time of the invention. Trivascular, Inc. v.
`
`Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016).
`
`When a claim term does not include the word “means,” a rebuttable
`
`presumption that the term is not drafted in means-plus-function language can
`
`be overcome “if the challenger demonstrates that the claim term fails to
`
`recite sufficiently definite structure or else recites function without reciting
`
`sufficient structure for performing that function.” Williamson v. Citrix
`
`Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (quotation marks and
`
`internal citations omitted). If the presumption is overcome, “[a]pplication of
`
`§ 112, 11 6 requires identification of the structure in the specification which
`
`performs the recited function.” Micro Chemical, Inc, v. Great Plains
`
`Chemical Co., Inc, 194 F.3d 1250, 1257 (Fed. Cir. 1999). Further, the
`
`statute does not permit “incorporation of structure from the written
`
`description beyond that necessary to perform the claimed function.” Id. at
`
`1258. We note that only those claim terms that are in controversy need to be
`
`construed, and only to the extent necessary to resolve the controversy. Vivid
`
`Techs, Inc. v. Am. Sci. & Eng ’g, Inc, 200 F.3d 795, 803 (Fed. Cir. 1999).
`We first address the “logic” terms recited in claim 10: a dominant
`
`axis logic, a counting logic, and a cadence logic. Pet. 10—15. Petitioner
`
`contends that these terms would have been understood to include “hardware,
`
`software, or both” to perform the functions recited. See id. at 10, 12, 13
`
`(citing Ex. 1003, 19, 21, 22). Petitioner also contends that “to the extent that
`
`Patent Owner overcomes the presumption against construction under 35
`
`U.S.C. § 112, sixth paragraph, a POSITA would have understood” certain
`
`structures to be associated with the recited functions. Id. More particularly,
`
`7
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`Petitioner contends that these terms “under a narrower Phillips standard” are
`
`directed to “logic” which invokes § 112 'l] 6 but fails to meet the definiteness
`
`requirement of § 112 1] 2. Pet. 14. Patent Owner contends that none of these
`
`“logic” terms are governed by 35 U.S.C. § 112, ‘H 6 and that no construction
`
`is necessary. Prelim. Resp. 6—9.
`
`We determine that, at this juncture, the presumption against
`
`application of § 112 11 6 has not been overcome, and that no construction is
`
`necessary for purposes of determining whether to institute.
`
`First, none of these “logic” terms recite the word “means,” and,
`
`therefore, there is a presumption that the term is not drafted in means-plus-
`
`function format. Second, Petitioner, although preserving for district court
`
`litigation its position that the claims are drafted in means-plus-function
`
`format, affirmatively argues here, and supports with testimonial evidence,
`
`the contention that a person of ordinary skill in the art would interpret each
`
`of these “logic” terms to include “hardware, software, or both.” See Ex.
`
`1003, 19, 21, 22. Third, as stated above, Patent Owner contends that these
`
`terms are not drafted in means-plus-function format, and, would be
`
`understood to require hardware, such as, for example, an accelerometer
`
`(Prelim. Resp. 7— 10).
`
`Therefore, under Williamson, neither party has challenged the
`
`rebuttable presumption that § 112 11 6 does not apply to terms that do not use
`
`the word “means.” Petitioner’s alternative position that these claim terms
`
`are indefinite appears to give “notice” of its claim construction position in
`
`district court, but is not a position that Petitioner is affirmatively asserting in
`
`this proceeding. Pet. 14 (stating that “regardless of whether the recited
`8
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`IPR201 8-003 89
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`Patent 8,712,723 B1
`
`‘logic’ is a nonce word requiring the disclosure of an algorithm, the Board
`
`may still find that the claims are obvious in view of the software and
`
`hardware disclosed in the prior art cited in this Petition”). More importantly,
`
`there is no evidence, proposed by either party, in the record, to support the
`
`construction of these “logic” terms, as nonce words, under § 112 fl 6, and,
`
`therefore, the presumption against application of § 112 11 6 is unrebutted.
`
`See Zeroclick LLC v. Apple Inc, 891 F.3d 1003, 1007-08 (Fed. Cir. 2018).
`
`We now turn to the remaining terms for which Petitioner proposes a
`
`construction: dominant axis and cadence window.
`
`1. Dominant Axis
`
`Petitioner proposes that this term is properly construed as “the axis
`
`most influenced by gravity.” Pet. 9 (citing Ex. 1003, 18). Patent Owner
`
`challenges this construction as importing limitations from the specification
`
`because the “dominant axis” is not limited to just gravitational influence.
`
`Prelim. Resp. 4. Petitioner’s proposal, although taken directly from the
`
`Specification (Ex. 1001, 6:23—26), is not as objectionable as Patent Owner
`
`argues because the claims of the ’723 patent recite that the “dominant axis”
`
`is assigned “with respect to gravity based on an orientation of the inertial
`
`sensor.” Ex. 1001, 15:15, 15:62—63, 16:27—28 (language of independent
`
`claims 1, 10, 14) (emphasis added). Although the word “dominant” in and
`
`of itself may be sufficient to identify the recited axis, the surrounding claim
`
`language makes clear that gravity influences which axis is dominant. Id.
`
`The Specification supports Petitioner’s proposal (id. at 6223—26) and
`
`also explains that “[i]n alternative embodiments, the dominant axis does not
`
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`correspond to one of the actual axes of the inertial sensor(s) in a current
`
`orientation, but rather to an axis that is defined as approximately aligned to
`
`gravity” (id. at 6:32—35). Therefore, at this juncture, we are persuaded that
`
`the Specification is consistent in explaining that a dominant axis, whether a
`
`virtual axis or otherwise, is assigned on the basis of gravity: “most
`
`influenced by gravity” and “approximately aligned to gravity.” Further, the
`
`claim language expressly requires the assignment of the dominant axis based
`
`on gravity. Patent Owner’s characterization of the Specification as
`
`describing embodiments that exclude the gravitational influence, on the
`
`present record, are unpersuasive. Accordingly, for purposes of this
`
`Decision, we adopt Petitioner’s proposed construction of “dominant axis” as
`
`“the axis most influenced by gravity.”
`
`2. Cadence window
`
`Petitioner proposes that “cadence window” means “a window of time
`
`since a last step was counted that is looked at to detect a new step.” Pet. 10.
`
`Patent Owner argues that the Board does not need to construe this term.
`
`Prelim. Resp. 5. We agree that we do not need to construe this term for
`
`purposes of this Decision.
`
`B.
`
`Level of Ordinary Skill in the Art
`
`In determining the level of ordinary skill in the art, various factors
`
`may he considered, including the “type of problems encountered in the art;
`
`prior art solutions to those problems; rapidity with which innovations are
`
`made; sophistication of the technology; and educational level of active
`
`workers in the field.” In re GPACInc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
`
`10
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`(internal quotation and citation omitted). In that regard, Petitioner asserts
`
`that a person of ordinary skill in the art would include someone with:
`
`(i) a
`
`Bachelor’s degree in Electrical Engineering, Computer Engineering, and/or
`
`Computer Science, or equivalent training, and (ii) approximately two years
`
`of experience working in hardware and/or software design and development
`
`related to micro-electro-mechanical devices (“MEMS”) and body motion
`
`sensing system. Pet. 7—8 (citing Ex. 1003, 8). Patent Owner’s declarant,
`
`Mr. Easttom, states that a person of ordinary skill in the art would have been
`
`one with a bachelor’s degree in engineering, computer science, or related
`
`technical area with two years of experience related to accelerometers or
`
`similar devices. Ex. 2001 1] 13. Although these competing proposals use
`
`differing language, any differences do not alter the obviousness analysis for
`
`purposes of rendering this decision on institution. See, e,g., Ex. 2001 11 14
`
`(Mr. Easttom expressing disagreement with the level proposed in the
`Paradiso Declaration, but otherwise reaching the same opinions regardless of
`
`which level is adopted).
`
`Accordingly, for purposes of this Decision, we adopt Petitioner’s
`
`proposed level of ordinary skill in the art.
`
`C.
`
`Summaries ofFabio and Pasolim'
`
`3. Overview ofFabio 1Exhibit 10061
`
`Fabio is directed to controlling a pedometer based on the use of
`
`inertial sensors. Ex. 1006, 1:10—11, Abstract, Title. Fabio describes that
`
`pedometer reliability depends in part on “recognizing and ignoring events
`
`not correlated to the gait, which, however, cause perturbations resembling
`
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`those produced by a step.” Id. at 1:22—27. Pedometers that use inertial
`
`sensors detect accelerations along a substantially vertical axis and recognize
`
`a step when the pedometer detects a positive acceleration peak followed by a
`
`negative acceleration peak, both of these peaks within certain thresholds. Id.
`
`at 1:32—3 8. Random events, however, can interfere with step recognition,
`
`causing “false positives” (steps are recognized when they are not steps). Id.
`
`at 1:3 8—44. Rest periods also produce events that are detected by the
`
`pedometer, and “isolated” steps or brief sequences of steps are irrelevant to
`
`assessment of activity for which a pedometer is used. Id. at 1:44—52.
`
`Fabio overcomes the above-described problems by detecting whether
`
`sequences of detected steps satisfy pre-determined conditions of regularity.
`
`Id. at 1:63—23. If the condition of regularity is satisfied, the valid step count.
`
`is updated; and if the condition of regularity is not satisfied, the number of
`
`valid steps is not updated. Id. In particular Fabio describes a method that
`
`involves two counting procedures, as shown in Figure 3, reproduced below.
`
`1-30
`
`Fig.3
`
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`Figure 3 depicts a flowchart of a control method executed by a control
`
`unit ofa pedometer. Ex. 1006, 2:17—19, 3:11—12. In particular, upon
`
`switching on the pedometer, an initialization step 100 sets to zero the
`
`counters for valid steps (NW), valid control steps (ch), and invalid steps
`
`(va). Id. at 3:13—18. Then, during the first counting procedure
`
`(COUNT I, step 110), the acceleration signal output by the accelerometer of
`
`the pedometer is sampled and evaluated to recognize sequences of steps that
`
`are “close to one another, which satisfy [the] pre-determined conditions of
`
`regularity.” Id. at 3: 19-27. In particular, for each step that is validated
`
`during this first counting procedure, the number of valid control steps is
`
`increased, until the number of valid control steps matches a pre-determined
`
`’
`
`threshold: Id. at 5:40—45 (describing that regularity is sufficient when Nyc
`
`reaches a threshold N17). The first counting procedure terminates after
`
`updating the valid steps counter, NVT, to equal the number of “regular” steps
`
`just detected. Id. at Fig. 4, step 265 (NVT=NVT+NT2).
`
`Fabio describes this first counting procedure as enabling the
`
`pedometer to wait for a sequence of events that satisfies regularity and to
`
`detect events that are irregular (or when a wait time between steps is too
`
`long) so the counter for valid control steps ch is decreased or reset to zero
`
`accordingly. Id. at 5:40—49. Fabio states that programming thresholds for
`
`the first counting procedure, such as N” described above, enables
`
`modification of the sensitivity of the pedometer. Id. at 5262—621 1. The user
`
`can program lower values of the threshold number of steps when regularity
`
`of gait is not possible, such as when in an office, enabling the pedometer to
`
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`validate and count shorter sequences of steps as “regular” steps. Id. On the
`
`other hand, by programming higher values for the thresholds for intense
`
`activity, such as running, short step sequences can be ignored. Id.
`
`When the first counting procedure passes control to the second
`
`counting procedure, the user is considered to be moving and the second
`
`counting procedure counts valid steps NVT. Id. at 3:41—44. The second
`
`counting procedure also checks for continued regularity of the sequences of
`
`steps by counting the number of valid control steps ch and the number of
`
`invalid steps va. Id. at 6:40—62. If the number of invalid steps va is
`
`lower than a threshold, the method assumes regularity of steps and continues
`
`counting validated steps. Id. at 7:7—13. Validation of steps in both counting
`
`procedures is described more particularly with respect to Figure 6,
`
`reproduced below.
`
`ATK
`
`
`
`
`Tam T:42)
`
`‘ ' ‘
`
`Tam-2)
`
`T1211“)
`
`Figure 6 is a graph plotting the time of recognition TR of a sequence
`
`of steps (1, 2, .
`
`.
`
`. K-2, K-l, K). Id. at Fig. 6. Fabio validates a step when
`
`the duration of a current step K (ATK) is “substantially homogeneous with
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`respect to the duration [] of an immediately preceding step K-l [(ATK.I)].”
`
`Id. at 4:28—35. In particular, “the last step recognized is validated if the
`
`instant of recognition of the current step TR(K) falls within a validation
`
`interval TV, defined with respect to the instant of recognition of the
`
`immediately preceding step TR(K-l),” according to a specific equation. Id.
`
`at 4:3 5—42. Fabio describes the validation interval TV as having an
`
`“amplitude” equal to “3ATK_1/2,” but could have a different “amplitude.” Id.
`
`at 50—53.
`
`4. Overview of Pasolini tExhibit 10051
`
`Pasolini is also directed to a pedometer for detecting and counting
`
`steps. Ex. 1005, Abstract. Specifically, Pasolini describes using an
`
`accelerometer that detects an acceleration component along axis Z of the
`
`vertical acceleration generated during a step. Id. at 3:16—19. Pasolini
`
`applies positive and negative thresholds Sr and S’ to the acceleration signal
`
`for identifying the positive phase and the negative phase of a step. Id. at
`
`3:3 5—41. The values of these thresholds are modified at each acquisition of
`
`a new sample. Id. at 3:42—54. In particular, Pasolini utilizes an algorithm
`
`for determining positive and negative envelope values E+ and E‘ using the
`
`acceleration datum for each sampled acceleration signal, and adjusting the
`
`thresholds S+ and S' as a function of the envelope values E+ and E". Id. at
`
`5:42—54. In this manner, the pedometer adapts to variations in the detection
`
`conditions due, for example, to a different type of terrain, or to an increase in
`
`the speed of the gait. Id. at 3:54—59.
`
`Pasolini also states that,
`
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`IPR2018-00389
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`Patent 8,712,723 B1
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`\
`
`the algorithm implemented by the processing unit 3
`[of the pedometer] envisages identifying the main
`vertical axis to be used for step detection as the axis
`of detection that has the highest mean acceleration
`value Accm (on account of gravity). For example, the
`main vertical axis can be identified at each acquisition
`of a new acceleration sample, block 30 of FIG. 4, so
`as to take into account variations in the orientation of
`the pedometer device 1, and consequently of the
`accelerometer 2 arranged inside it.
`
`Id. at 8:16-24.
`
`5. Reasonable Likelihood Determination
`
`After considering Petitioner’s contentions and Patent Owner’s
`
`arguments in opposition, we are persuaded that Petitioner has demonstrated
`
`a reasonable likelihood of prevailing on showing that the challenged claims
`
`would have been obvious over Fabio in combination with Pasolini.
`
`i.
`
`Independent Claims 1, 5, 10, and 14
`
`On this record, we are satisfied that Petitioner has demonstrated how
`
`the combination of Fabio and Pasolini teach the limitations of the
`
`independent claims. We focus on the language of claim 1 to address the
`
`similarly recited limitations of claims 1, 5, 10, and 14. Claim 5 recites
`
`limitations not recited in claims 1, 10, and 14, and, thus, those limitations are
`
`reviewed separately.
`
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`IPR2018-00389
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`Patent 8,712,723 B l
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`a) assigning a dominant axis with respect to gravity based on an
`orientation of the inertial sensor (Pet 28—29) (“assigning”
`
`limitation)
`
`Petitioner relies on Fabio’s selection of the acceleration signal
`
`corresponding to the detection axis nearest to the vertical to teach the
`
`“assigning” limitation. Id. at 28 (citing Ex. 1006, 8:21—33). In the portion
`
`cited by Petitioner, Fabio states that the “detection axis is selected on the
`
`basis of the value of the DC component of the respective acceleration signal,
`
`which is correlated to the contribution of the acceleration ofgravity.” Ex.
`
`1006, 8:27—30 (emphasis added). Fabio states further that “the pedometer
`
`can then be used independently of how it is oriented.” Id. at 8:32—33
`
`(emphasis added). Petitioner alternatively relies on Pasolini as teaching this
`
`“assigning” limitation because Pasolini describes taking into account the
`
`orientation of the accelerometer and pedometer device enclosing it. Pet. at
`
`29 (citing Ex. 1005, 8:20—24). We find Petitioner’s reliance on Fabio alone
`
`is sufficient to meet this limitation for purposes of institution. We also find
`
`persuasive Petitioner’s reliance on Pasolini’s teaching as further evidence of
`
`the “orientation of the inertial sensor,” as recited.
`
`Patent Owner argues that Fabio and Pasolini both focus on the
`
`“vertical axis” or “vertical detection axis Z” component, whereas the claim
`
`requires assigning a dominant axis to “allow[] for any direction and axis to
`
`become dominant.” Prelim. Resp. 11. We are not persuaded by this
`
`argument. The claims do not require allowing any direction or axis to
`
`become dominant because, as we stated with regard to claim construction
`
`(supra Section II.A.1), the claim requires the assignment of the dominant
`
`17
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`IPR2018-00389
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`Patent 8,712,723 B1
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`axis with respect to gravity. Further, we are not persuaded by Patent
`
`Owner’s argument that Fabio selects the vertical axis without any regard for
`
`orientation.
`
`Id. Fabio detects the vertical axis based on orientation so the
`
`pedometer can be used independently of how it is oriented. Ex. 1006,
`
`8:32—33. Pasolini, similarly, takes into account the orientation of the
`
`acceleration in detecting the main vertical axis. Ex. 1005, 8:20—24. Lastly,
`
`to the extent Patent Owner reads into the claim a requirement that there be
`
`more than one axis or direction from which to choose a dominant axis, the
`
`argument is not commensurate with claim scope, at this time, as neither
`
`party has argued for a construction for “dominant axis” that requires
`
`multiple axes. In any event, we note that Pasolini describes identifying the
`
`“main vertical axis” in connection with a 3-axis digital output accelerometer.
`
`Ex. 1005, 8:11—20.
`
`b) detecting a change in the orientation of the inertial sensor and
`updating the dominant axis based on the change (Pet. 28—3 1)
`(“updating dominant axis” limitation)
`
`Petitioner contends that Fabio in combination with Pasolini teaches
`
`this “updating dominant axis” limitation. Pet. 29—31. In particular,
`
`Petitioner relies on Pasolini’s disclosure of identifying the main vertical axis
`
`at each acquisition of a new acceleration sample. Id. at 30 (citing Ex.
`
`1005:20—22). According to Petitioner, a person of ordinary skill in the art
`
`would understand that Pasolini detects a change in orientation of the inertial
`
`sensor based on the acceleration samples because Pasolini takes into account
`
`variations in the orientation of the pedometer when identifying the main
`
`vertical axis. Id. (citing Ex. 1003, 40; Ex. 1005, 8:22—24).
`
`18
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`Patent Owner challenges these contentions and argues that Pasolini’s
`
`disclosures are silent concerning “detecting a change in the orientation of the
`
`inertial sensor.” Prelim, Resp. 15. We do not agree with Patent Owner’s
`
`argument. Pasolini identifies the main (read here “dominant”) vertical axis,
`
`out of a 3-axis accelerometer, as the axis that has the highest mean
`
`acceleration value, on account of gravity. Ex. 1005, 8:11—20. This
`
`identification of the main vertical axis occurs, at each acquisition of a new
`
`sample of the acceleration data, precisely because the orientation (e.g.,
`
`rotation) may change, thus changing which axis is considered the main
`
`vertical axis. Ex. 1005, 8:17—24. Thus, we understand Pasolini to detect a
`
`change in the orientation of the accelerometer when it performs the
`
`identification of a new main vertical axis “to take into account the variation
`
`in the orientation” of the accelerometer inside the pedometer. 1d.
`
`by monitoring
`human motions
`periodic
`0) counting
`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 (Pet. at 31—36) (“counting” limitation)
`
`With regard to the “counting” limitation, Petitioner relies on Fabio’s
`
`evaluation of the acceleration signal A; to identify and count a total number
`
`of valid steps NVT. Pet. 32(citing Ex. 1006, 2:56—64). The Fabio
`
`acceleration signal Az is correlated to the accelerations undergone by the
`inertial sensor along the detection axis Z, which, as stated above with regard
`
`to the “assigning” limitation, is the dominant axis. Pet. 33 (citing Ex. 1006,
`
`2:56—59).
`
`19
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`IPR20 1 8-003 89
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`Patent 8,712,723 B1
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`Furthermore, Petitioner demonstrates how Fabio recognizes a step by
`
`evaluating the motion cycle of positive and negative peaks in the
`
`acceleration signal. Id. at 34 (citing Ex. 1006, 4:16—21, 6:21—26, Fig. 5).
`
`More importantly, Petitioner points to Fabio’s disclosure of a validation
`
`interval TV, during which Fabio validates a recognized step. Id. at 34—35
`
`(citing Ex. 4:35—39, Fig. 6). Petitioner equates the validation interval TV
`
`with the recited “cadence window.” Id.
`
`d) updating the cadence window as actual cadence changes (Pet.
`3 6—3 7)
`
`The Petition relies on Fabio’s disclosures of the validation interval TV
`
`as teaching that the cadence window is updated as actual cadence changes.
`
`For instance, Petitioner quotes Fabio where validation occurs when the
`
`duration of a current step is substantially homogeneous with respect to the
`
`duration of an immediately preceding step. Id. at 35 (citing Ex. 1006,
`
`4128—3 1). Patent Owner challenges Fabio’s validation interval TV as not
`
`teaching updating the cadence window. Prelim. Resp. 17—18. More
`
`specifically, Patent Owner characterizes the validation interval TV as
`
`occurring only during the first validation test to determine if the event
`
`received corresponds to regular steps. Id. at 17 (citing Ex. 1006, 4:26—27).
`
`We do not agree with Patent Owner’s characterization of Fabio in this
`
`regard. The validation interval is part of the validation step of both counting
`
`procedures of Fabio. See Ex. 1006, Fig. 4 (step 230), Fig 7 (step 320),
`
`6:32—34 (“The second validation test is altogether similar to the first
`
`validation test carried out in block 230 of FIG. 3”). Thus, Fabio uses the
`
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`IPR201 8-003 89
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`validation interval TV during the second counting procedure, where regular
`
`steps are continuously counted if they occur during the validation interval.
`
`We also are not persuaded by Patent Owner’s argument that Fabio
`
`does not update the cadence window because the “last recognized step in
`
`Fabio comes at the same frequency as steps made previously.” Prelim.
`
`Resp. 18 (citing Ex. 1005, 4:54—55). First, the passage that Patent Owner
`
`quotes describes the “frequency” of the detected steps in the context of how
`
`Fabio uses the preceding step’s duration as a variable for calculating the
`
`validation interval TV. It is unclear why Patent Owner contends that the use
`
`of a previous step’s duration for calculating Fabio’s validation interval in
`
`any way disqualifies that interval from being updated as the cadence of the
`
`steps changes.

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