throbber
AO 120 (Rev. 08/10)
`
`TO:
`
`Mail Stop 8
`Director of the U.S. 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 15 U.S.C. § 1116 you are hereby advised that a court action has been
`
`filed in the U.S. District Court
`Northern District of Texas
`onthe following
`(] Trademarks or
`(MW Patents.
`( [7 the patent action involves 35 U.S.C. § 292.):
`
`DOCKET NO.
`4:17-cv-00832-0
`PLAINTIFF
`
`DATE FILED
`10/13/2017
`
`U.S. DISTRICT COURT
`Northern District of Texas
`
`DEFENDANT
`
`Uniloc USA Inc
`Uniloc Luxembourg S A
`
`LG Electronics U.S.A., Inc.
`LG Electronics MobileComm U.S.A. Inc
`LG Electronics Inc
`
`
`EMARK
`
`
`DATE INCLUDED
`
`In the above—entitled case, the following patent(s)/ trademark(s) have been included:
`INCLUDED BY
`
`PATENT OR
`TRADEMARK NO.
`
`[] Amendment
`DATE OF PATENT
`OR TRADEMARK
`
`] Answer
`
`L] Cross Bill
`
`HOLDER OF PATENT OR T
`
`L] Other Pleading
`RAL
`
`In the above—entitled case, the following decision has been rendered or judgementissued:
`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 1—Uponinitiation of action, mail this copy to Director©Copy 3—Upon termination of action, mail this copy to Director
`Copy 2—Uponfiling document adding patent(s), mail this copy to Director Copy 4—Casefile copy
`
`Page 1 of 496
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`SAMSUNG EXHIBIT 1004
`
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`SAMSUNG EXHIBIT 1004
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`

`

`Trials@uspto.gov
`571-272-7822
`
`Paper 7
`Entered: June 27, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`
`V.
`
`UNILOC LUXEMBOURGS.A.,
`Patent Owner.
`
`Case IPR2018-00389
`Patent 8,712,723 B1
`
`Before SALLY C. MEDLEY, JENNIFERS. 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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`IPR2018-00389
`Patent 8,712,723 Bl
`
`I.
`
`INTRODUCTION
`
`Apple Inc.(“Petitioner”) filed a Petition requesting inter partes review
`of claims 1-3, 5-7, and 10-18 of U.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. Paper6 (‘Prelim. Resp.”).
`Wehave jurisdiction under 35 U.S.C. § 314. Upon consideringthe
`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 patentis involved in Uniloc USA,
`Inc. v. Apple, Inc., Case No. 2-17-cv-00522 (E.D. Tex.) and other
`
`proceedings. Pet. 2; Paper 3.
`
`B. The ’723 Patent
`
`The ’723 patentrelates to monitoring and counting periodic human
`motions, such as steps. Ex. 1001, 1:12-14. The °723patentstates that
`inertial sensors (e.g., accelerometers) are used in step counting devices
`allowing an individual to track the numberof daily steps. Jd. at 1:18-29.
`One problem recognized in the *723 patentis the limitations of these step
`counting devices concerningthe orientation of the device during use. Td. at
`1:29-34. Further, motion noise often confuses these devices resulting in
`missed steps or counting false steps, with a particular problem identified of
`inaccurate step measurementsfor slow walkers. Jd. at 1:35-43.
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`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. Jd. at 2:33-38. In particular, the °723 patent
`describes assigning a dominantaxis after determining an orientation of the
`inertial sensor, where the orientation ofthe inertial sensor is continuously
`
`determined. Jd. at 2:15-19. In one embodiment, the ’723 patent method
`determinesrolling averages of the accelerations of each axis monitored by
`the inertial sensor in the device. Jd. at 6:15-21. The largest absolute rolling
`
`average indicates the axis most influenced by gravity, which may change
`overtime, as the device’s orientation changes becauseofrotation. Jd. 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 dominantaxis to detect, and count, steps. Seeid. at 12:30-35.
`
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`IPR2018-00389
`Patent 8,712,723 Bl
`
`Start a
`
`Take Measurement(s) of Acceleration Data 805
`
`Filter Measurement(s)
`
`810
`
`Orient Device by Assigning Dominant Axis
`
`812
`
`Measurement(s) Within Cadence
`Window?
`815
`
`
`
`
`Acceleration Along Dominant Axis
`Greater Than Lower Threshold?
`
`No
`
`820
`
`Yes
`
`
` Acceleration Greater Than
`Previous Measurement(s)?
`
`
`
`Acceleration Lower Than
`Upper Threshold?
`No
`
`
`Yes
`un
`
`830
`
`p 838
`
`Figure 8
`
`No Step
`Counted 840
`
`Figure8illustrates a diagram for a method of recognizing a step.
`After measurementsof acceleration data (step 805) andfiltering 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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`IPR2018-00389
`Patent 8,712,723 B1
`
`whether a measurementis within a cadence window (step 815). The
`
`cadence windowis the allowable time window for steps to occur. Jd. at
`
`3:65—66. In one embodiment, the cadence windowis determined based on
`
`the actual stepping period or actual motion cycle, but default limits or other
`determiners maybe used to set the cadence window. Jd. at 4:7-27. After
`eachstep is counted, the minimum and/or maximum ofthe cadence window,
`or window length, may be adjusted based on actual cadence changes. Jd.
`Therefore, the cadence window is dynamic sothat it continuously updates.
`
`Id. at 4:31-33.
`
`If the measurementofacceleration along the dominant axis is within
`the cadence window,andis within the range of acceleration thresholds
`(steps 820, 830), the motion is determinedto 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
`
`Ofthe challenged claims, claims 1, 5, 10, and 14 are independent.
`Each ofclaims 2, 3, 6, 7, 11-13, and 15-18 depends directly or indirectly
`
`from oneof 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 dominantaxis based on the change; and
`5
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`IPR2018-00389
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`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
`motioncriteria is detected within a cadence window; and
`
`updating the cadence windowas actual cadence changes.
`
`Ex. 1001, 15:13-24.
`
`D. Asserted Prior Art and Grounds of Unpatentability
`
`This proceedingrelies on the following prior art references:
`
`a) Fabio: U.S. Patent No. 7,698,097 B2,filed in the record as Exhibit
`
`1006; and
`
`b) Pasolini: U.S. 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. Pct. 15.
`
`Petitioner also relies on a Declaration of Joseph A. Paradiso, Ph.D.,
`
`filed as Exhibit 1003 (“Paradiso Declaration”).
`
`II.
`
`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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`skill in the relevant art at the time of the invention. Trivascular, Inc. v.
`
`Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016).
`
`When aclaim term does not include the word “means,” a rebuttable
`
`presumptionthatthe 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 withoutreciting
`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 presumptionis overcome, “{alpplication of
`§ 112, J 6 requires identification of the structure in the specification which
`performsthe 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. Wenotethat only those claim termsthat 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).
`Wefirst address the “logic” termsrecited in claim 10: a dominant
`axis logic, a counting logic, and a cadence logic. Pet. 10-15. Petitioner
`contendsthat these terms would have been understoodto include “hardware,
`software, or both” to perform the functionsrecited. See id. at 10, 12, 13
`(citing Ex. 1003, 19, 21, 22). Petitioner also contendsthat “to the extent that
`Patent Owner overcomesthe 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. Jd. Moreparticularly,
`
`7
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`Petitioner contends that these terms “under a narrowerPhillips standard” are
`
`directed to “logic” which invokes § 112 9 6 butfails to meet the definiteness
`requirement of § 112 2. Pet. 14. Patent Ownercontendsthat noneof these
`“logic” terms are governed by 35 U.S.C. § 112, 4 6 andthat no construction
`
`is necessary. Prelim. Resp. 6-9.
`Wedeterminethat, at this juncture, the presumption against
`application of § 112 6 has not been overcome, andthat no construction is
`necessary for purposes of determining whetherto institute.
`First, noneof these “logic” terms recite the word “means,” and,
`therefore, there is a presumption thatthe 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 ofordinary 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 {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”ofits 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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`‘logic’ is a nonce word requiring the disclosure ofan algorithm, the Board
`maystill find that the claims are obvious in view of the software and
`hardware disclosed in the priorart cited in this Petition”). More importantly,
`there is no evidence, proposedby either party, in the record, to support the
`construction of these “logic” terms, as nonce words, under § 112 6, and,
`therefore, the presumption against application of § 112 {6 is unrebutted.
`See Zeroclick LLC v. Apple Inc., 891 F.3d 1003, 1007-08 (Fed. Cir. 2018).
`Wenowturn to the remaining terms for which Petitioner proposes a
`
`construction: dominant axis and cadence window.
`
`1. Dominant Axis
`Petitioner proposesthat this term is properly construed as “the axis
`mostinfluenced 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 becausethe claimsof the ’723 patentrecite that the “dominant axis”
`is assigned “with respect to gravity based on anorientation 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
`ofitself may be sufficient to identify the recited axis, the surrounding claim
`language makesclear that gravity influences which axis is dominant. Id.
`The Specification supports Petitioner’s proposal(id. at 6:23-26) and
`also explains that “{i]n alternative embodiments, the dominant axis does not
`
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`correspondto one ofthe actual axesof 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 dominantaxis, whether a
`virtual axis or otherwise, is assigned on the basis of gravity: “most
`influencedby gravity” and “approximately aligned to gravity.” Further, the
`claim language expressly requires the assignmentofthe 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 “dominantaxis”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 Ownerarguesthat the Board does not need to construe this term.
`Prelim. Resp. 5. We agree that we do not need to construe this term for
`purposesof this Decision.
`
`B.
`
`Level of Ordinary Skill in the Art
`
`In determiningthe level ofordinary skill in the art, various factors
`may heconsidered,including the “type ofproblems encountered in theart;
`prior art solutions to those problems; rapidity with which innovations are
`made; sophistication of the technology, and educational level of active
`workersin the field.” In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
`10
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`(internal quotation andcitation omitted). In that regard, Petitioner asserts
`that a person ofordinary skill in the art would include someone with:
`(i) a
`Bachelor’s degree in Electrical Engineering, Computer Engineering, and/or
`ComputerScience, 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 ofordinary 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 4 13. Although these competing proposals use
`differing language, any differences do notalter the obviousness analysis for
`purposesofrendering this decision oninstitution. See, e.g., Ex. 2001 4 14
`(Mr. Easttom expressing disagreement with the level proposed in the
`Paradiso Declaration, but otherwise reaching the sameopinionsregardless of
`whichlevel is adopted).
`Accordingly, for purposes of this Decision, we adopt Petitioner’s
`proposed levelofordinary skill in theart.
`
`C.
`
`Summaries ofFabio and Pasolini
`
`3. Overview of Fabio (Exhibit 1006)
`Fabiois directed to controlling a pedometer based ontheuse of
`inertial sensors. Ex. 1006, 1:10-11, Abstract, Title. Fabio describes that
`pedometerreliability depends in part on “recognizing and ignoring events
`not correlated to the gait, which, however, cause perturbations resembling
`
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`those produced byastep.” Jd. at 1:22-27. Pedometersthat use inertial
`sensors detect accelerations along a substantially vertical axis and recognize
`a step when the pedometerdetects a positive acceleration peak followed by a
`negative acceleration peak, both of these peaks within certain thresholds. Jd.
`at 1:32—38. Random events, however, can interfere with step recognition,
`
`causing “false positives” (steps are recognized whentheyare notsteps). Jd.
`at 1:38-44, Rest periods also produce events that are detected by the
`pedometer, and “isolated”steps or brief sequences ofstepsare irrelevant to
`assessmentofactivity for which a pedometeris used. Jd. at 1:44—52.
`Fabio overcomes the above-described problems by detecting whether
`sequences ofdetected steps satisfy pre-determined conditionsof regularity.
`Id. at 1:63-2:3. If the condition of regularity is satisfied, the valid step count
`is updated; andif the condition of regularity is not satisfied, the number of
`valid steps is not updated. Jd. In particular Fabio describes a method that
`
`involves two counting procedures, as shownin Figure 3, reproduced below.
`
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`Figure 3 depicts a flowchart of a control method executed by a control
`unit of a pedometer. Ex. 1006, 2:17-19, 3:1 1-12. In particular, upon
`switching on the pedometer, aninitialization step 100 sets to zero the
`countersfor valid steps (Nvr), valid control steps (Nvc), and invalid steps
`(Nv). Jd. at 3:13-18. Then, during the first counting procedure
`(COUNTI,step 110), the acceleration signal output by the accelerometer of
`the pedometeris sampled and evaluated to recognize sequencesofsteps that
`are “close to one another, which satisfy [the] pre-determined conditions of
`regularity.” Jd. at 3:19-27. In particular, for each step thatis validated
`duringthis first counting procedure, the numberof valid control steps is
`increased, until the numberof valid control steps matches a pre-determined
`threshold: Jd. at 5:40—45 (describing that regularity is sufficient when Nvc
`reaches a threshold Ny). The first counting procedure terminates after
`updating the valid steps counter, Nyt, to equal the numberof “regular” steps
`just detected. Id. at Fig. 4, step 265 (Nvt=NvrtNr).
`Fabio describesthis first counting procedure as enabling the
`pedometerto wait for a sequenceof events that satisfies regularity and to
`detect events that are irregular (or when a wait time between stepsis too
`long) so the counterfor valid control steps Nvc is decreased or reset to zero
`accordingly. Id. at 5:40-49. Fabio states that programming thresholds for
`the first counting procedure, such as Nr» described above, enables
`modification ofthe sensitivily of the pedometer. Jd. at 5:62-6:11. The user
`can program lowervalues of the threshold number ofsteps whenregularity
`of gait is not possible, such as whenin an office, enabling the pedometerto
`
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`validate and count shorter sequencesofsteps as “regular” steps. Jd. On the
`
`other hand, by programming higher values for the thresholds for intense
`activity, such as running, short step sequences can be ignored. Id.
`Whenthefirst counting procedure passes control to the second
`counting procedure,the user is considered to be moving and the second
`
`counting procedure counts valid steps Nvr. Id. at 3:41-44. The second
`counting procedure also checks for continued regularity of the sequences of
`steps by counting the numberofvalid control steps Nvc and the numberof
`invalid steps Ninv. Jd. at 6:40-62. If the numberof invalid steps Ninv is
`lowerthan a threshold, the method assumesregularity of steps and continues
`
`/d. at 7:7-13. Validation of steps in both counting
`counting validated steps.
`proceduresis described moreparticularly with respect to Figure6,
`
`reproduced below.
`
`
`
`
`
`Talt) se*|Ta(K-2) Tr(2) Ta(K-T)
`
`
`
`
`
`
`Figure 6 is a graph plotting the time of recognition Tr of a sequence
`of steps (1, 2,...K-2, K-1, K). Jd. at Fig. 6. Fabio validates a step when
`the duration of a current step K (ATx) is “substantially homogeneous with
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`respect to the duration [] of an immediately preceding step K-1 [(ATx.1)].”
`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 Ta(K-1),” according to a specific equation. Id.
`at 4:35—-42. Fabio describes the validation interval TV as having an
`“amplitude” equal to “3ATx.1/2,” but could have a different“amplitude.” Id.
`
`at 50-53.
`
`4, Overview of Pasolini (Exhibit 1005)
`Pasolini is also directed to a pedometerfor detecting and counting
`steps. Ex. 1005, Abstract. Specifically, Pasolini describes using an
`accelerometerthat detects an acceleration component along axis Z ofthe
`vertical acceleration generated during a step. Id. at 3:16-19. Pasolini
`applies positive and negative thresholds S* and S” to the acceleration signal
`for identifying the positive phase and the negative phase ofastep. Id. at
`3:35—41. The valuesof these thresholds are modified at each acquisition of
`anew sample. Id. at 3:42-54. In particular, Pasolini utilizes an algorithm
`for determiningpositive 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 ofthe envelope values E* and E-. Jd. at
`5-42-54, In this manner, the pedometer adapts to variations in the detection
`conditions due, for example,to a different type ofterrain, or to an increase in
`
`the speed ofthe gait. Jd. at 3:54—-59.
`
`Pasolini also states that,
`
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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 accountof 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 accountvariations in the orientation of
`the pedometer device 1, and consequently of the
`accelerometer 2 arranged insideit.
`
`Td. at 8:16-24,
`
`5. Reasonable Likelihood Determination
`After considering Petitioner’s contentions and Patent Owner’s
`arguments in opposition, we are persuadedthat Petitioner has demonstrated
`a reasonablelikelihoodofprevailing on showingthat the challenged claims
`would have been obvious over Fabio in combination with Pasolini.
`
`Independent Claims 1, 5, 10, and 14
`i.
`Onthis record, we are satisfied that Pctitioner has demonstrated how
`the combination of Fabio and Pasolini teach the limitations of the
`independent claims. Wefocus on the languageof claim | to address the
`similarly recited limitations of claims1, 5, 10, and 14. Claim 5 recites
`limitationsnot recited in claims 1, 10, and 14, and,thus, those limitations are
`
`reviewed separately.
`
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`a) assigning a dominantaxis 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
`
`correspondingto the detection axis nearest to the vertical to teach the
`“assigning” limitation. Jd. 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 componentofthe respective acceleration signal,
`whichis 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 howit 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 enclosingit. 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 ofinstitution. Wealsofind
`persuasive Petitioner’s reliance on Pasolini’s teaching as further evidence of
`the “orientation of the inertial sensor,” as recited.
`Patent Ownerargues 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 donot 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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`axis with respectto gravity. Further, we are not persuaded by Patent
`Owner’s argumentthat Fabio selects the vertical axis without any regard for
`orientation.
`Jd. Fabio detects the vertical axis based onorientation so the
`
`pedometercan be used independently of howit is oriented. Ex. 1006,
`8:32-33. Pasolini, similarly, takes into accountthe orientation ofthe
`
`acceleration in detecting the main vertical axis. Ex. 1005, 8:20—24. Lastly,
`to the extent Patent Ownerreadsinto the claim a requirementthat there be
`
`more than one axis or direction from which to choose a dominantaxis, the
`
`argumentis not commensurate with claim scope, at this time, as neither
`party has argued for a construction for “dominantaxis” 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 changein the orientation of the inertial sensor and
`updating the dominant axis based onthe change(Pet. 28-31)
`(“updating dominantaxis”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. Jd. at 30 (citing Ex.
`1005:20-22). Accordingto Petitioner, a person of ordinaryskill in the art
`would understand that Pasolini detects a change in orientation oftheinertial
`
`sensor based on the acceleration samples because Pasolini takes into account
`variations in the orientation of the pedometer when identifying the main
`
`vertical axis. Jd. (citing Ex. 1003, 40; Ex. 1005, 8:22—24).
`
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`Patent Ownerchallenges these contentions and argues that Pasolini’s
`
`disclosures are silent concerning “detecting a changein the orientation ofthe
`
`inertial sensor.” Prelim, Resp. 15. We do not agree with Patent Owner’s
`argument. Pasolini identifies the main (read here “dominant”) verticalaxis,
`out of a 3-axis accelerometer, as the axis that has the highest mean
`
`acceleration value, on accountof 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 becausethe orientation (e.g.,
`rotation) may change, thus changing whichaxis 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 accountthe variation
`
`in the orientation” of the accelerometerinside the pedometer. Jd.
`c) 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(Pet.at 31-36) (“counting”limitation)
`
`With regard to the “counting”limitation, Petitioner relies on Fabio’s
`evaluation of the acceleration signal Az to identify and count a total number
`
`of valid steps Nvr. 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).
`
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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. /d. 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. /d. 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 windowas actual cadence changes(Pet.
`36-37)
`
`ThePetition relies on Fabio’s disclosures ofthe validation interval TV
`
`as teaching that the cadence windowis updated as actual cadence changes.
`For instance,Petitioner quotes Fabio where validation occurs when the
`duration of a currentstep is substantially homogeneous with respect to the
`duration of an immediately preceding step. Jd. at 35 (citing Ex. 1006,
`4:28-31). Patent Owner challenges Fabio’s validation interval TV as not
`teaching updating the cadence window. Prelim. Resp. 17-18. More
`specifically, Patent Ownercharacterizes the validation interval T’'V as
`occurring only during the first validation test to determineif the event
`received correspondsto regular steps. Jd. at 17 (citing Ex. 1006, 4:26-27).
`Wedo not agree with Patent Owner’s characterization of Fabioin this
`regard. The validation intervalis 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 secondvalidation test is altogether similar to thefirst
`validation test carried out in block 230 of FIG. 3”). Thus, Fabio uses the
`
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`IPR2018-00389
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`validation interval TV during the second counting procedure, where regular
`steps are continuously countedif they occur during the validation interval.
`Wealso are not persuaded by Patent Owner’s argumentthat Fabio
`does not update the cadence window becausethe “last recognized step in
`Fabio comesat 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 contendsthat the use
`of a previous step’s duration for calculating Fabio’s validation intervalin
`any way disqualifies that interval from being updated as the cadence of the
`steps changes, The evidenceat this juncture of the proceedingis to the
`contrary. As the Petition states, Fabio’s equation for calculating the
`validation interval TV represents changing the cadence window in
`accordance with cadence changes because Fabio adjusts the validation
`interval ‘I'Vto account for the changing duration,if any, of the preceding
`step. See Pet. 37 (citing Ex. 1006, 4:40-41).! None of Patent Owner’s
`
`| We note here that the Fabio equation seemsconsistent with the 723 patent
`Specification, which describes updating the cadence window based on the
`stepping period,after each step is counted. Ex. 1001, 4:31-45, 3:67—4:3
`(“current stepping period maybea rolling ave

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