UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`HTC CORPORATION and HTC AMERICA, INC.
`Petitioners,
`v.
`UNILOC LUXEMBOURG S.A.,
`Patent Owner
`_______________
`
`Declaration of Joseph A. Paradiso, PhD
`under 37 C.F.R. § 1.68
`
`
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`HTC v. Uniloc Luxembourg
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`Page 1 of 96
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`HTC Ex. 1003
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`SAMSUNG EXHIBIT 1003
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`

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`Paradiso Decl.
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`Inter Partes Review of U.S. 7,653,508
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`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 4
`I.
`QUALIFICATIONS AND PROFESSIONAL EXPERIENCE ...................... 5
`II.
`III. LEVEL OF ORDINARY SKILL IN THE ART ...........................................10
`IV. RELEVANT LEGAL STANDARDS ...........................................................12
`A. Anticipation .........................................................................................12
`B.
`Obviousness .........................................................................................13
`V. OVERVIEW OF THE ’508 PATENT ..........................................................14
`A.
`Summary of the Patent ........................................................................14
`B.
`Prosecution History .............................................................................16
`VI. BROADEST REASONABLE INTERPRETATION ...................................17
`A.
`“dominant axis” ...................................................................................17
`B.
`“cadence window” ...............................................................................18
`C.
`“a dominant axis logic to continuously determine an orientation
`of a device, to assign a dominant axis, and to update the
`dominant axis as the orientation of the device changes” ....................18
`“a counting logic to count periodic human motions by
`monitoring accelerations relative to the dominant axis” .....................20
`“a counting logic to identify and count periodic human
`motions” ..............................................................................................21
`“a cadence logic to continuously update a dynamic cadence
`window” ..............................................................................................22
`“a mode logic, to switch the device from a non-active mode to
`an active mode after a number of periodic human motions are
`detected within appropriate cadence windows by the counting
`logic” ...................................................................................................23
`
`G.
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`D.
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`E.
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`F.
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`VII.
`
`IDENTIFICATION OF HOW THE CLAIMS ARE
`UNPATENTABLE ........................................................................................24
`A.
`State of the Art at the Time of the ’508 Patent ...................................24
`B.
`Summary of Pasolini ...........................................................................26
`C.
`Summary of Fabio ...............................................................................28
`D.
`Challenge #1: Claims 1-2 and 11-12 are obvious under 35
`U.S.C. § 103(a) over Pasolini. .............................................................32
`Challenge #2: Claims 6-8, 15-16, and 19 are obvious under 35
`U.S.C. § 103(a) over Fabio. ................................................................47
`Challenge #3: Claims 3-4, 13-14, and 20 are unpatentable
`under 35 U.S.C. § 103 over Pasolini in view of Fabio. ......................79
`1.
`Reasons to Combine Pasolini and Fabio...................................79
`2.
`Detailed Analysis ......................................................................82
`VIII. CONCLUSION ..............................................................................................95
`
`
`
`E.
`
`F.
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`Paradiso Decl.
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`Inter Partes Review of U.S. 7,653,508
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`I.
`
`INTRODUCTION
`
`1.
`
`I am making this declaration at the request of HTC Corporation and
`
`HTC America, Inc. in the matter of the Inter Partes Review of U.S. Patent No.
`
`7,653,508 (“the ’508 Patent”) to Kahn et al.
`
`2.
`
`I am being compensated for my work in this matter at the rate of
`
`$600/hour. I am also being reimbursed for reasonable and customary expenses
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`associated with my work and testimony in this investigation. My compensation is
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`not contingent on the outcome of this matter or the specifics of my testimony.
`
`3.
`
`I have been asked to provide my opinions regarding whether claims 1-
`
`4, 6-8, 11-16, 19, and 20 of the ’508 Patent are unpatentable, either because they are
`
`anticipated or would have been obvious to a person having ordinary skill in the art
`
`(“POSITA”) at the time of the alleged invention, in light of the prior art. It is my
`
`opinion that all of the limitations of claims 1-4, 6-8, 11-16, 19, and 20 would have
`
`been either anticipated or obvious to a POSITA.
`
`4.
`
`In the preparation of this declaration, I have studied:
`
`a)
`
`b)
`
`c)
`
`The ’508 Patent, Ex. 1001;
`
`The prosecution history of the ’508 Patent, Ex. 1002;
`
`U.S. Patent No. 7,463,997 to Fabio Pasolini et al. (“Pasolini”),
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`Ex. 1005; and
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`d)
`
`U.S. Patent No. 7,698,097 to Fabio Pasolini et al. (“Fabio”), Ex.
`
`1006.
`
`5.
`
`In forming the opinions expressed below, I have considered:
`
`a)
`
`The documents listed above, and
`
`b) My own knowledge and experience based upon my work in the
`
`field of wireless communications, as described below.
`
`II. QUALIFICATIONS AND PROFESSIONAL EXPERIENCE
`
`6. My complete qualifications and professional experience are described
`
`in my Curriculum Vitae, a copy of which can be found in Ex. 1004. The following
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`is a brief summary of my relevant qualifications and professional experience.
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`7.
`
`As shown in my curriculum vitae, I have devoted my career to various
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`fields of physical, electrical, and computer science with more than two decades
`
`focused on embedding sensing, including wearable and wireless sensors. I have 20
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`years of experience in wearable devices and computing, during which I invented and
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`fielded many types of wearable activity tracking devices that utilized a variety of
`
`power management and wakeup protocols.
`
`8.
`
`I am the Alexander W. Dreyfoos (1954) Professor in Media Arts and
`
`Sciences at the Massachusetts Institute of Technology (MIT), where I direct the
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`Responsive Environments Group, which explores how sensor networks augment and
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`mediate human experience, interaction and perception. I also have served as co-
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`director of the Things That Think Consortium, a group of MIT Media Lab
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`researchers and industrial partners focused on the future of embedded computation
`
`and sensing, and am now serving as our Associate Department Head.
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`9.
`
`I received my B.S. in electrical engineering and physics summa cum
`
`laude from Tufts University in 1977 and my PhD in physics from MIT in 1981.
`
`From 1981 to 1984, I did post-doctoral research at the Swiss Federal Institute of
`
`Technology (ETH) in Zurich, working on sensor technology for high-energy particle
`
`physics. From 1984-1994, I was a physicist at the Draper Laboratory in Cambridge,
`
`Massachusetts, where, as a member of the NASA Systems and Advanced Sensors
`
`and Signal Processing Directorates, my research included spacecraft control systems
`
`and sensor technology for both sonar systems and high-energy physics. I also
`
`worked at Draper Lab as an undergraduate (1974-1978) on software for advanced
`
`strategic inertial measurement units and guidance systems. From 1992-1994, I
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`directed the development of precision alignment sensors for the GEM muon detector
`
`at the Superconducting Supercollider, and worked on design of particle detectors at
`
`the CERN Large Hadron Collider (LHC).
`
`10.
`
`I joined the MIT Media Lab in 1994. The MIT Media Lab was founded
`
`in 1985 to actively promote a unique, anti-disciplinary culture that focuses on
`
`research projects joining different technological and academic fields. As described
`
`further below, researchers at the MIT Media Lab have pioneered areas such as
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`wearable computing, tangible interfaces, and affective computing. Examples of
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`products or platforms spun off Media Lab research include electronic ink readers
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`such as the Amazon Kindle and Barnes & Noble Nook, the popular video game
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`Guitar Hero, the MPEG-4 structured audio format, the first bionic lower-leg system
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`for amputees, wireless mesh networks developed by Nortel, and the Mercury RFID
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`Reader, commercialized by spin-off ThingMagic. Today, the Lab is supported by
`
`more than 70 sponsors/members, comprising some of the world’s leading
`
`corporations and representing the fields of electronics, entertainment, fashion, health
`
`care, greeting cards, and telecommunications, among others. Faculty members,
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`research staff, and students at the Lab work in more than 25 research groups on more
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`than 350 projects that range from digital approaches for treating neurological
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`disorders, to a stackable, electric car for sustainable cities, to advancing imaging
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`technologies that can see around corners.
`
`11. Upon joining the Media Lab, I focused on developing new sensing
`
`modalities for human-computer interaction, then by 1997 evolved my research into
`
`wearable wireless sensing and distributed sensor networks. This work anticipated
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`and influenced transformative products and industries that have blossomed in recent
`
`years. For example, the sensor-laden wireless shoe I developed for interactive dance
`
`in 1997 is recognized as a watershed in the field of wearable wireless sensing and
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`was an inspiration for the Nike+, one of the very first activity trackers and the first
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`commercial product to integrate dynamic music with monitored exercise. My team
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`went on to pioneer clinical gait analysis with wearable wireless sensors in
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`collaboration with the Massachusetts General Hospital (MGH) in 2002, and then
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`broke new ground in sports medicine with another MGH collaboration that
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`developed an ultra-wide-range wireless inertial measurement unit system for
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`evaluating professional baseball pitchers in 2007. My team and I have also been
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`leaders on wearable sensing for Human-Computer Interfaces, over the past decade
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`fielding, for example, wristbands to measure finger position, wristbands to enable
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`pointing interaction and control of heating and lighting, and even a wireless
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`touchpad mounted on a fingernail.
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`12. Leading to over 300 publications, 17 issued patents, and a string of
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`awards in the Pervasive Computing, Human Computer Interaction, and sensor
`
`network communities, my research has become the basis for widely established
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`curricula. Many of these publications are directed to wearables. I have also advised
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`over 55 graduate (MS and PhD) theses for students who have done their work in my
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`research group, and served as a reader for roughly 100 MS and PhD students in other
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`groups and at other universities. Some of my own students have gone on to
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`prominence in their own careers that have involved wearables—for example, Dr.
`
`Nan-Wei Gong (PhD 2013) was the R&D lead of Project Jacquard (integrating
`
`electronics and textiles) at Google ATAP before becoming founder and CEO of her
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`own companies with a wearable focus ‘Circular2’ and ‘Figure8’, and Dr. Stacy
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`Morris Bamberg (PhD 2004) became a tenured professor at the University of Utah
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`doing wearable gait analysis, then started a company in this space (Veristride). I
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`have given over 300 invited talks, panel appearances, and seminars worldwide,
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`recently keynoting on topics relating to ubiquitous sensing and the Internet of Things
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`(IoT) for prestigious venues ranging from the Sensors Expo (the main industrial
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`sensors conference) to the World Economic Forum. I am frequently asked to address
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`industrial groups on wearables and IoT, and often engage with the Media Lab’s
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`extensive list of industrial partners in strategizing these areas.
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`13.
`
`I belong to and participate in various professional organizations. I am
`
`a senior member of the IEEE (Institute of Electrical and Electronics Engineers), and
`
`also belong to the ACM (Association for Computer Machinery). I also belong to the
`
`APS American Physical Society (the major professional society in physics), and am
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`a senior member in the AIAA (the American Institute of Aeronautics and
`
`Astronautics). Within the IEEE, I belong to the Signal Processing Society, the
`
`Controls Society, and the Computer Society. As detailed in my CV, I have served
`
`on many Technical Program Committees (TPCs, which solicit, review, and select
`
`papers for academic conferences) and journal editorial boards, plus have organized
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`academic conferences in areas such as wireless sensor networks, wearable
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`computing and wearable sensing, human-computer
`
`interfaces, ubiquitous
`
`computing, etc.
`
`14. One of the themes of my research has been on low-power embedded
`
`systems and energy harvesting. I have written several well-regarded papers on these
`
`topics that well predate the ’508 Patent—for example, the review article that I wrote
`
`for IEEE Pervasive Computing in 2005, ‘Energy Scavenging for Mobile and
`
`Wireless Electronics’ has become their most popular article and is widely cited. My
`
`work on smart wakeup systems (e.g., as described in my papers such as ‘A
`
`Framework for the Automated Generation of Power-Efficient Classifiers for
`
`Embedded Sensor Nodes’ and ‘CargoNet: A Low-Cost MicroPower Sensor Node
`
`Exploiting Quasi-Passive Wakeup for Adaptive Asynchronous Monitoring of
`
`Exceptional Events,’ both presented at SenSys 2007), are also of relevance here.
`
`III. LEVEL OF ORDINARY SKILL IN THE ART
`
`15.
`
`I understand there are multiple factors relevant to determining the level
`
`of ordinary skill in the pertinent art, including (1) the levels of education and
`
`experience of persons working in the field at the time of the invention; (2) the
`
`sophistication of the technology; (3) the types of problems encountered in the field;
`
`and (4) the prior art solutions to those problems.
`
`16.
`
`I am familiar with accelerometers (including those found in portable
`
`devices such as mobile phones). I am also aware of the state of the art at the time
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`the application resulting in the ’508 Patent was filed. I have been informed by
`
`Apple’s counsel that the earliest alleged priority date for the ’508 Patent is December
`
`22, 2006. Based on the technologies disclosed in the ’508 Patent, I believe that a
`
`person of ordinary skill in the art (“POSITA”) would include someone who had, at
`
`the priority date of the ’508 Patent, (i) a Bachelor’s degree in Electrical Engineering,
`
`Computer Engineering, Computer Science, or equivalent training, as well as (ii)
`
`approximately two years of experience working in hardware and/or software design
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`and development related to MEMS (micro-electro-mechanical) devices and body
`
`motion sensing systems. Lack of work experience could have been remedied by
`
`additional education, and vice versa. Such academic and industry experience would
`
`be necessary to appreciate what was obvious and/or anticipated in the industry and
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`what a POSITA would have thought and understood at the time. Based on this
`
`criteria, as of the relevant time frame for the ’508 Patent, I possessed at least such
`
`experience and knowledge of a POSITA, as well as trained many of them by then,
`
`hence am qualified to opine on the ’508 Patent.
`
`17. For purposes of this Declaration, in general, and unless otherwise noted,
`
`my statements and opinions, such as those regarding my experience and the
`
`understanding of a POSITA generally (and specifically related to the references I
`
`consulted herein), reflect the knowledge that existed in the field as of December 22,
`
`2006. Unless otherwise stated, when I provide my understanding and analysis
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`below, it is consistent with the level of a POSITA prior to the priority date of the
`
`’508 Patent.
`
`IV. RELEVANT LEGAL STANDARDS
`
`18.
`
`I understand that prior art to the ’508 Patent includes patents and printed
`
`publications in the relevant art that predate the priority date of the alleged invention
`
`recited in the ’508 Patent. For purposes of this Declaration, I have been asked to
`
`apply December 22, 2006, the earliest alleged priority date, as the priority date.
`
`19.
`
`I am not an attorney. In preparing and expressing my opinions and
`
`considering the subject matter of the ’508 Patent, I am relying on certain basic legal
`
`principles that counsel have explained to me. These principles are discussed below.
`
`20.
`
`I understand that a claim is unpatentable if it is anticipated under 35
`
`U.S.C. § 102 or obvious under 35 U.S.C. § 103.
`
`A. Anticipation
`
`21.
`
`I have been informed by counsel that a patent claim is unpatentable as
`
`anticipated if each element of that claim is present either explicitly or inherently in
`
`a single prior art reference. I have also been informed that, to be an inherent
`
`disclosure, the prior art reference must necessarily disclose the limitation, and the
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`fact that the reference might possibly practice or contain a claimed limitation is
`
`insufficient to establish that the reference inherently teaches the limitation.
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`B. Obviousness
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`22.
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`I have been informed that a claimed invention is unpatentable under 35
`
`U.S.C. § 103 if the differences between the invention and the prior art are such that
`
`the subject matter as a whole would have been obvious at the time the invention was
`
`made to a person having ordinary skill in the art to which the subject matter pertains.
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`I have also been informed by counsel that the obviousness analysis takes into
`
`account factual inquiries including the level of ordinary skill in the art, the scope and
`
`content of the prior art, and the differences between the prior art and the claimed
`
`subject matter.
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`23.
`
`I have been informed by counsel that the Supreme Court has recognized
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`several rationales for combining references or modifying a reference to show
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`obviousness of claimed subject matter. Some of these rationales include the
`
`following: (a) combining prior art elements according to known methods to yield
`
`predictable results; (b) simple substitution of one known element for another to
`
`obtain predictable results; (c) use of a known technique to improve a similar device
`
`(method, or product) in the same way; (d) applying a known technique to a known
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`device (method, or product) ready for improvement to yield predictable results; (e)
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`choosing from a finite number of identified, predictable solutions, with a reasonable
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`expectation of success; and (f) some teaching, suggestion, or motivation in the prior
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`art that would have led one of ordinary skill to modify the prior art reference or to
`
`combine prior art reference teachings to arrive at the claimed invention.
`
`
`V. OVERVIEW OF THE ’508 PATENT
`
`A.
`
`Summary of the Patent
`
`24. The ’508 patent is directed to “a method of monitoring human activity,
`
`and more particularly, to counting periodic human motions such as steps.” Ex. 1001,
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`1:5-7. As admitted by the Applicant, “inertial sensors (e.g., accelerometers)” are
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`commonly used in commercial electronic devices such as “cellular phones, portable
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`music players, pedometers, game controllers, and portable computers.” Ex. 1001,
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`1:13-18. These conventional “[s]tep counting devices are used to monitor an
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`individual’s daily activity by keeping track of the number of steps that he or she
`
`takes.” Ex. 1001, 1:19-21. These devices, however, “are often confused by motion
`
`noise experienced by the device throughout a user’s daily routine. This noise causes
`
`false steps to be measured and actual steps to be missed in conventional step
`
`counting devices.” Ex. 1001, 1:27-31.
`
`25. The claims of the ’508 patent are directed to two separate concepts that
`
`allegedly improve conventional step counting devices. The first concept (associated
`
`with independent claims 1 and 11) relates to determining and assigning a “dominant
`
`axis,” and counting steps along that axis. See Ex. 1001, claim 1. In the ’508 patent,
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`the dominant axis is the axis “with the largest absolute rolling average . . . most
`
`influenced by gravity, which may change over time (e.g. as the electronic device is
`
`rotated). Therefore, a new dominant axis may be assigned when the orientation of
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`the electronic device . . . changes.” Ex. 1001, 6:16-21.
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`26. The second concept (associated with independent claims 6 and 15)
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`relates to counting steps in two different modes—a non-active mode and an active
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`mode. In the non-active mode, steps are detected but not yet added to the total step
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`count. Instead, such steps are buffered until the device switches to the active mode,
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`which occurs when a certain number of steps have been detected and validated.
`
`Steps are determined to be valid if they fall within a particular time interval, referred
`
`to in the ’508 patent as a “cadence window.” The cadence window is based on a
`
`user’s motion cycle or stepping period: “once a stepping period (or other motion
`
`cycle period) is determined, that period may be used to set the cadence window (the
`
`allowable time window for steps to occur).” Once in the active mode, the detected
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`steps are added to the total step count as they are detected.
`
`27. Before the ’508 Patent was filed, a developer named Fabio Pasolini was
`
`actively working on pedometer devices that included the concepts described and
`
`claimed in the ’508 patent. Mr. Pasolini filed two patent applications (issued as U.S.
`
`Patent No. 7,698,097 (“Fabio”) and U.S. Patent No. 7,463,997 (“Pasolini”)) before
`
`the ’508 patent was filed. The Pasolini reference describes a pedometer updates the
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`vertical axis with each acquisition of an acceleration sample to take into account
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`variations of the orientation of the pedometer device during use. Ex. 1005, 8:20-24.
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`The Fabio reference, on the other hand, describes applying a regularity condition to
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`the detected step data so that a step is counted when it occurs within a “validation
`
`interval.” In my opinion, the disclosures provided in the Fabio and Pasolini
`
`references either anticipate or render obvious each and every element of the claims
`
`discussed below.
`
`
`
`B.
`
`Prosecution History
`
`28. The ’508 patent issued on January 26, 2010 from U.S. Patent
`
`Application No. 11/644,455 filed on December 22, 2006.
`
`29. The first Office Action issued on August 31, 2009, and included no
`
`prior art rejections. See Ex. 1002, p. 70. The Action did, however, include multiple
`
`objections to the drawings and other informalities. On October 9, 2009, the
`
`Applicant filed a response to replace drawings and amended the specification to
`
`address the other objections. See Ex. 1002, p. 54. A Notice of Allowance then
`
`issued on November 30, 2009. See Ex. 1002, p. 16. In the Allowance, the Examiner
`
`did not provide any specific reason but instead quoted the independent claims and
`
`merely stated that a few cited references did not teach the limitations of the claims.
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`See Ex. 1002, p. 22. As can be observed from the prosecution history, the Fabio and
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`Pasolini references discussed below were not cited or applied by the Examiner.
`
`VI. BROADEST REASONABLE INTERPRETATION
`
`30.
`
`It is my understanding that in order to properly evaluate the ’508 Patent,
`
`the terms of the claims must first be interpreted. It is my understanding that for the
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`purposes of this inter partes review, the claims are to be given their broadest
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`reasonable interpretation in light of the specification. It is my further understanding
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`that claim terms are given their ordinary and accustomed meaning as would be
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`understood by one of ordinary skill in the art, unless the inventor has set forth a
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`special meaning for a term. In order to construe the following claim terms, I have
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`reviewed the entirety of the ’508 Patent, as well as its prosecution history.
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`A.
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`“dominant axis”
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`31. This term appears in at least claims 1 and 11. In the specification of the
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`’508 patent, the dominant axis is determined based on the accelerometer’s alignment
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`with gravity. For example, the specification states that “[i]n one embodiment, the
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`dominant axis is assigned after identifying a gravitational influence. The
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`gravitational influence may be identified by calculating total acceleration based upon
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`the acceleration on each axis.” Ex. 1001, 14:34-38. The specification also states that
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`“[i]n one embodiment, once the orientation is determined, a dominant axis is
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`assigned based upon the orientation. Determining an orientation of the electronic
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`device 100 may include identifying a gravitational influence.” Ex. 1001, 6:12-15. In
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`other words, the dominant axis is “the axis most influenced by gravity, which may
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`change over time (e.g., as the electronic device is rotated).” Ex. 1001, 6:16-18.
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`32. Thus, for the purposes of this proceeding, it is my opinion that a
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`POSITA would understand the broadest reasonable interpretation of the term
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`“dominant axis” to include “the axis most influenced by gravity.”
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`B.
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`“cadence window”
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`33. This term appears in at least claims 3, 6, 7, 10, 13, 15, 16, 19, and 20.
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`The specification specifically defines this term as “a window of time since a last step
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`was counted that is looked at to detect a new step.” Ex. 1001, 3:64-65.
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`34. Thus, for the purposes of this proceeding, it is my opinion that a
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`POSITA would understand the broadest reasonable interpretation of the term
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`“cadence window” to include “a window of time since a last step was counted that
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`is looked at to detect a new step.”
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`C.
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`“a dominant axis logic to continuously determine an orientation of
`a device, to assign a dominant axis, and to update the dominant axis
`as the orientation of the device changes”
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`35. This term appears in at least claim 11. The specification describes that
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`“dominant axis logic 127 is used to determine an orientation of the electronic device
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`100 and/or an inertial sensor within the electronics device 100.” See Ex. 1001, 3:4-8.
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`“At processing block 812, in one embodiment the inertial sensor is oriented by
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`Paradiso Decl.
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`assigning a dominant axis. Assigning a dominant axis may include calculating
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`rolling averages of acceleration and assigning the dominant axis based on the rolling
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`averages of acceleration.” Ex. 1001, 12:42-43. The specification further describes
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`that the present invention may be performed by hardware, software, or a combination
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`of both. See Ex. 1001, 14:50-56.
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`36. Accordingly, it is my opinion that a POSITA would have understood
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`the broadest reasonable interpretation of this claim term to include “hardware,
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`software, or both to continuously determine an orientation of a device, to assign a
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`dominant axis, and to update the dominant axis as the orientation of the device
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`changes.”
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`37. However, to the extent that Patent Owner overcomes the presumption
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`against construction under 35 U.S.C. § 112, sixth paragraph, a POSITA would have
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`understood the claim itself and the specification to provide:
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`Function: continuously determine an orientation of a device, to assign
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`a dominant axis, and to update the dominant axis as the orientation of
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`the device changes;
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`Structure: software, hardware, or combination thereof to perform
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`actions in block 812. See Ex. 1001, 12:42-43, 14:50-56;
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`D.
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`“a counting logic to count periodic human motions by monitoring
`accelerations relative to the dominant axis”
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`38. This term appears in at least claim 11. The specification describes “step
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`counting logic 130” that is used “to determine if a step has occurred” and indicate if
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`“a step may be counted . . . .” Ex. 1001, 6:40-45, 7:2. In one example, at block 615,
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`“measurement data is checked to determine whether an additional step is
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`recognized.” Ex. 1001, 11:19-21. At block 620, “[i]f an additional step is
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`recognized, then it is added to the final or actual step count.” Ex. 1001, 11:21-22.
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`The specification further describes that the present invention may be performed by
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`hardware, software, or a combination of both. See Ex. 1001, 14:50-56.
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`39. Accordingly, it is my opinion that a POSITA would have understood
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`the broadest reasonable interpretation of this claim term to include “hardware,
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`software, or both to count periodic human motions by monitoring accelerations
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`relative to the dominant axis, or identify and count periodic human motions.”
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`40. However, to the extent that Patent Owner overcomes the presumption
`
`against construction under 35 U.S.C. § 112, sixth paragraph, a POSITA would have
`
`understood the claim itself and the specification to provide:
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`Function: count periodic human motions by monitoring accelerations
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`relative to the dominant axis;
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`Structure: software, hardware, or combination thereof to perform
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`actions in blocks 615 and 620. See Ex. 1001, 7:46-60, 14:50-56.
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`E.
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`“a counting logic to identify and count periodic human motions”
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`41. This term appears in at least claim 15. The specification describes “step
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`counting logic 130” that is used “to determine if a step has occurred” and indicate if
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`“a step may be counted . . . .” Ex. 1001, 6:40-45, 7:2. In one example, at block 615,
`
`“measurement data is checked to determine whether an additional step is
`
`recognized.” Ex. 1001, 11:19-21. At block 620, “[i]f an additional step is
`
`recognized, then it is added to the final or actual step count.” Ex. 1001, 11:21-22.
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`The specification further describes that the present invention may be performed by
`
`hardware, software, or a combination of both. See Ex. 1001, 14:50-56.
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`42. Accordingly, it is my opinion that a POSITA would have understood
`
`the broadest reasonable interpretation of this claim term to include “hardware,
`
`software, or both to count periodic human motions by monitoring accelerations
`
`relative to the dominant axis, or identify and count periodic human motions.”
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`43. However, to the extent that Patent Owner overcomes the p