UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`APPLE INC.,
`Apples,
`
`
`v.
`
`
`LOGANTREE LP
`LoganTree
`______________
`Case IPR2022-00040
`Patent 6,059,576
`______________
`
`LOGANTREE’S SUR-REPLY
`
`
`
`
`
`
`
`
`

`

`TABLE OF CONTENTS
`
`TABLE OF CONTENTS ..................................................................................................... i
`I.
`INTRODUCTION ........................................................................................................ 1
`II. APPLE’S ARGUMENTS ......................................................................................... 2
`A. GROUND 1: Allum, Raymond, and Conlan ..................................................... 2
`
`A POSITA would not have combined Allum, Raymond and Conlan. ............................... 2
`[1d-3] (“storing first event information related to the detected first user-defined event
`along with first time stamp information reflecting a time at which the movement data
`causing the first user-defined event occurred;”) ................................................................. 4
`B. Apple cannot go back in time to save the conclusory and deficient manner in
`
`which its Petition relied on unexplained string cites. ............................................................. 8
`
`C. GROUND 1A/2 (Allum, Raymond, Conlan, and de Remer) .......................... 13
`
`D. GROUND 3 (Allum, Raymond, Conlan, and Gaudet) .................................... 14
`
`E. GROUND 4 (Gesink and Raymond) ............................................................... 15
`
`III. CONSTRUCTION OF MOVEMENT SENSOR ................................................... 18
`IV. OBJECTIONS TO DR. MADISETTI’S TESTIMONY ........................................ 19
`V. CONCLUSION ....................................................................................................... 20
`
`
`
`
`
`
`
`i
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`

`

`TABLE OF AUTHORITIES
`
`
`CASES
`
`BAE Sys. Info. and Elec. Sys. Integration, Inc. v. Cheetah Omni, LLC, IPR2013-00175, (PTAB
`
`June 19, 2014) ............................................................................................................................. 5
`
`Cisco Sys., Inc. v. C-Cation Techs., LLC, Case IPR2014-00454, (PTAB Aug. 29, 2014) ............. 9
`
`In re Bigio, 381 F.3d 1320, (Fed. Cir. 2004) ................................................................................ 13
`
`In re Klein, 647 F.3d 1343, (Fed. Cir. 2011) ................................................................................ 13
`
`In re Oetiker, 977 F.2d 1443, (Fed. Cir. 1992) ............................................................................. 14
`
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, (Fed. Cir. 1999) ............................... 19
`
`STATUTES
`
`35 U.S.C. § 312(a)(3) ...................................................................................................................... 9
`
`REGULATIONS
`
`37 C.F.R. § 42.104(b)(4)-(5) ........................................................................................................... 9
`
`37 C.F.R. § 42.22(a)(2) ................................................................................................................... 9
`
`37 C.F.R. § 42.23 ............................................................................................................................ 4
`
`37 C.F.R. § 42.24(a)(1)(i) ............................................................................................................... 9
`
`
`
`
`
`
`
`ii
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`

`

`LoganTree, LP submits the following Sur-Reply to Petitioner Apple, Inc.’s Reply in Inter
`
`Partes Review No. 2022-00040, instituted against U.S. Patent No. 6,059,576 (’576 patent).
`
`
`
`I.
`
`INTRODUCTION
`
`Apple’s Reply confirms that its attempt to invalidate the ’576 Patent fails for two reasons.
`
`First, Apple has failed to support its numerous, conclusory suggestions at combinations of different
`
`prior art references. Second, even if the Panel credits these hind-sight combinations supported by
`
`say-so attorney argument, the “combinations” are still missing key elements that LoganTree
`
`pointed out in its Reply. As the most notable example, Apple has failed to meet its burden to show
`
`that the prior art it relies on, whether individually in or in combination, discloses the required
`
`independent claim limitation that the system save to memory a time stamp that is associated with
`
`movement data that caused a user-defined event to occur.
`
`Unable to meet its own burden as the Petitioner, Apple makes much hay of LoganTree’s
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`inadvertent error in referencing a clear-and-convincing, rather than a preponderance, evidentiary
`
`standard. To be clear: LoganTree has never premised any of its arguments on a particular
`
`evidentiary standard. There has been no argument that Apple fails its burden to meet a higher
`
`evidentiary standard, but may have met a lower. Instead, LoganTree has argued since the beginning
`
`that Apple simply cannot justify its various combinations, and even if those combinations were
`
`credited, key claim elements remain undisclosed.
`
`Viewed in the correct lens of who has the burden (Apple), and what the substantive
`
`arguments on the merit are, Apple has failed to show that the challenged claims of the ’576 Patent
`
`are unpatentable over its various contended prior art grounds.
`
`
`
`
`
`
`
`1
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`

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`II. APPLE’S ARGUMENTS
`
`A.
`
`GROUND 1: Allum, Raymond, and Conlan
`
`
`
`A POSITA would not have combined Allum, Raymond and Conlan.
`
`In a nutshell, Apple essentially argues two things:
`
`• LoganTree has not shown that Allum cannot be modified to be combined with Conlan1;
`and
`
`• LoganTree’s arguments have not established, as a matter of law, that there would have
`been no motivation to combine Allum with Conlan.2
`
`Now, if LoganTree had the burden to show that a POSITA would not have combined Allum with
`
`Conlan, Apple’s arguments may be appropriate. But LoganTree need not disprove that a POSITA
`
`would never have combined Allum with Conlan. The burden is the opposite. As a result, Apple’s
`
`Reply arguments do nothing to advance its affirmative burden to show a POSITA would have
`
`combined Allum with Conlan.
`
`
`
`The key distinction that would have prevented a POSITA from combining the two
`
`references, as LoganTree pointed out and as Apple quotes, is:
`
`
`
`
`1 See Reply at 3 (“LoganTree nor its expert provides any support for asserting that Allum’s design
`scheme and stated purpose cannot incorporate user buttons. Thus, LoganTree’s arguments and
`its expert’s statements should be entitled to little or no weight.”)
`
` See Reply at 4 (citing Ruiz to argue that written motivation to combine is not required before
`finding obviousness), at 5-6 (citing Allied Erecting & Dismantling Co. and Bayer Pharma AG
`to argue that the existence of advantages and disadvantages to a proposed combination do not
`necessarily preclude a finding of motivation to combine.)
`2
`
`
`
` 2
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`

`

`Apple does not genuinely dispute either the characterization of Allum’s fall detection scheme as
`
`“the device tells the user” or the description of the Conlan pushbuttons function as “the user tells
`
`the device.” Instead, Apple argues that Allum does not expressly prohibit adding pushbuttons
`
`(Reply at 2-3) and that users who use Allum’s device may still be able to sense a fall event (Reply
`
`at 3-4) on their own. Apple’s first argument distorts the burden of proof. Its second argument
`
`misses the mark on the actual disputed issue.
`
`
`
`First, while it is true that nothing in Allum expressly prohibits adding pushbuttons, that by
`
`itself is not enough—Apple still has the burden of proof to show that a POSITA actually would
`
`have added those pushbuttons. And the undisputed fundamentals of Allum’s design scheme are
`
`that the device that tells the user device that the monitored event has occurred. Nor can Apple
`
`genuinely contest that pushbuttons, such as those in Conlan, are for the user to tell the device that
`
`a particular event has occurred. So, in the context of Allum, what would those pushbuttons even
`
`do? They would be purposeless. When the Allum device automatically alerts a user of an
`
`impending fall, would the user then push a button to tell the device “you just told me that I’m about
`
`to fall, so now let me tell you I’m about to fall?” That is nonsensical.
`
`
`
`Second, LoganTree has not based its argument on the contention that no user of Allum
`
`could ever detect a potential fall on her own. Instead, LoganTree’s argument is focused on the
`
`difference between the “design scheme” of Allum and the purpose and function of the Conlan
`
`pushbuttons. Even if a potential user of the Allum device could detect a fall, no POSITA would
`
`need to add or would have wanted to add pushbuttons to the Allum device itself when those
`
`pushbuttons would be superfluous and contrary to the purpose of the designed functions of that
`
`device. A POSITA would not add a gas tank to a Tesla even if there is nothing in the Tesla manual
`
`
`
`3
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`

`

`that says “do not add a gas tank.” Nor would a POSITA put open air vents in an umbrella just
`
`because the structure of an umbrella technically allows for it.
`
`
`
`Accordingly, Apple’s motivation-to-combine arguments misapply the burden of proof and
`
`contradict product design logic. The Panel should reject it.
`
`[1d-3] (“storing first event information related to the detected first user-defined event
`along with first time stamp information reflecting a time at which the movement
`data causing the first user-defined event occurred;”)
`
`
`1. Apple invents a brand-new argument in its Reply; that is inappropriate.
`
`
`In its Reply, Apple runs afoul of clear statutory guidance that requires that a reply only
`
`“respond to arguments raised in the corresponding opposition, patent owner preliminary response,
`
`patent owner response, or decision on institution.” 37 C.F.R. § 42.23. Apple had clearly argued in
`
`their Petition that “Allum explains that the system processor ‘save[s] in the processor system
`
`memory’ the ‘circumstances’ of the fall warning, including the ‘time of day’”. Petition at 33.
`
`Apple makes clear with a parenthetical quote that it is arguing that the “time of day” information
`
`described in Allum discloses the claim language reciting “along with first time stamp
`
`information.” Id. There can be no confusion about this argument as Apple affirms its position by
`
`later introducing its alternate argument by stating that “[t]o the extent LoganTree argues that time
`
`of day is not timestamp information, ARC renders obvious using timestamp information…” Id.
`
`(emphasis added).
`
`Apple now changes directions and argues that a different aspect of Allum discloses
`
`Element 1d-3. In its Reply, Apple now argues that an entirely new function––“time histories of
`
`the subject's angular sway deviations and angular velocity”––discloses the “first time stamp
`
`information...” See Reply at 7; 12 (citing EX1008 at 4:23-32). However, it is well settled that a
`
`reply is not the proper juncture for novel arguments. See Section II(I) of the PTAB Consolidated
`
`
`
`4
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`

`

`Trial Practice Guide (“while replies and sur-replies can help crystalize issues for decision, a reply
`
`or sur-reply that raises a new issue or belatedly presents evidence may not be considered”); see
`
`also BAE Sys. Info. and Elec. Sys. Integration, Inc. v. Cheetah Omni, LLC, IPR2013-00175, Paper
`
`45 (PTAB June 19, 2014) (the Board declining to consider petitioner’s argument that Fig.20
`
`disclosed certain features because, although cited in the petition, it was not cited for that particular
`
`disclosure). On this basis alone, the Court should dismiss Apple’s “time histories” disclosure
`
`argument.
`
`2. Regardless, the “time histories” function discussed in Allum does not disclose
`“first time stamp information reflecting a time at which the movement data
`causing the first user-defined event occurred.”
`
`
`
`Aside from its procedural flaws, Apple’s argument is also without substantive merit
`
`because of two major deficiencies, each of which is fatal.
`
`i. Allum’s “body sway angle and angular velocity” is not time stamped.
`
`Apple cites Fig.3 of Allum heavily to support this new argument, yet Fig.3 does not
`
`measure any of the purported “movement data” against a time axis. See Reply at 8. Instead, the
`
`time histories provided under Fig.3 are merely demonstrations of the overall movement of the
`
`subject reflecting “maximum values of roll and pitch angle and angular velocity in each direction
`
`indicated 60 and 62.” See EX1008 at 10:28-31; see also Reply at 18 (Apple’s modified Fig.3).
`
`
`
`5
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`

`

`
`
`Allum simply samples the sensors for information regarding the magnitude of movement
`
`in a certain direction during an examination trial period without regard to the time, or “time stamp,”
`
`of each individual movement or whether that movement has caused a user-defined event to occur.
`
`See EX1008 at Fig.6. Thus, even assuming that Allum’s fall warnings are at all related to these
`
`time histories (which they are not), Allum’s fall warnings cannot “reflect[] a time at which the
`
`movement data causing the first user-defined event occurred” because Allum’s time histories
`
`solely record the magnitude of data in a particular direction without recording the time of each
`
`individual movement, and more importantly, does not record any time of movement associated
`
`with that movement having caused any “user defined event” to occur. See id.
`
`
`
`6
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`

`

`ii.
`
`There is no cognizable nexus between “time histories” and the logged fall warnings.
`
`The other problem with Apple’s reliance on the “time histories” function is that there is no
`
`disclosed connection in Allum between the “time histories” and the “time of day” associated with
`
`Allum’s fall warnings. Apple claims that the “time history is part of the ‘circumstances’ data that
`
`is obtained during the examination period and saved along with the logged fall warning.” Reply at
`
`11 (emphasis omitted). However, Apple goes on to say that “the ‘circumstances’ data that is stored
`
`along with the fall warnings include time history or time of day information.” Reply at 11-12. It is
`
`unclear whether Apple conflates “time of day” and “time history,” or whether Apple is arguing
`
`that the time history is distinct from “time of day” but still included within the “circumstances”
`
`data—in either case, it is of no consequence as both readings are incorrect and find no support in
`
`the language of Allum itself.
`
`
`
`Apple’s only support for this fictitious connection is Apple and its expert’s own conclusory
`
`statements concluding that the “time history is part of the ‘circumstances’ data,” and unrelated
`
`language from Allum that does not even mention of “time history.” Reply at 11 (citing to (APPLE-
`
`1008, 14:47-57; APPLE1003, ¶[120]). Indeed, this portion of Allum on circumstances data
`
`specifically discusses “time of day” and “preceding pitch and roll velocities.” EX1008 at 14:47-
`
`57 (“…along with the circumstances involved (e.g., time of day, preceding pitch and roll velocities,
`
`etc.”). Here, “time of day” cannot also mean “time history” as the time history already includes
`
`“preceding pitch and roll velocities.” See EX1008 at 10:10-12 (“[a] time history of the subject's
`
`angular sway deviations 46 and angular sway velocity 48 in the roll and pitch directions, over a
`
`selected examination trial period.”). Apple’s argument essentially reads out the distinction Allum
`
`itself draws between “time of day” and “preceding pitch and roll velocities” that Allum expressly
`
`makes. See EX1008 at Fig.3 (no mention of time stamp on the time history). If the prior art itself
`
`
`
`7
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`

`

`does not say X is Y, and in fact distinguishes X from Y, then Apple cannot meet its burden as the
`
`Petitioner by simply using conclusory expert and attorney arguments to conflate X and Y.
`
`B.
`
`Apple cannot go back in time to save the conclusory and deficient
`manner in which its Petition relied on unexplained string cites.
`
`To be clear, Apple’s original argument on how its purported “ARC combination” discloses
`
`the time stamp element is replicated below:
`
`To the extent LoganTree argues that time of day is not timestamp information, ARC
`renders obvious using timestamp information to store time information associated
`with events and sensor data (“reflecting a time at which the movement data causing
`the first user-defined event occurred”), as explained above in Section III.A.3. Id.;
`APPLE1008, 10:10-13, 11:26-50, 14:47-54, 17:1-5; APPLE-1009, 1:42-67, 2:17-
`30, 10:16-36.
`
`Petition at 33.
`
`After LoganTree pointed out that this manner of arguments violates this tribunal’s rules
`
`against argument by unexplained string cites, in its Reply, Apple claims its conduct was excused
`
`because the Petition and Apple’s expert provide “detailed explanations as to teachings of the
`
`references individually and in combination.” Reply at 13. This cannot be the case. Apple cites to
`
`Section III.A.3 of its Petition which discussed Apple’s theory for combining Allum with Raymond,
`
`while Apple claims that “ARC” (the combination of Allum, Raymond, and Conlan) disclose this
`
`specific claim. See Reply at 12. Apple cites to argument explaining a different prior art
`
`combination separate from the combination it is arguing discloses claim 1d-3. Apple provided
`
`neither particularity nor substance to its argument, and certainly no specificity as it cited argument
`
`specific to a different prior art combination. Overall, the Petition’s arguments remain conclusory
`
`and obfuscated by unexplained citations. The Reply cannot save them by incorporating “Dr.
`
`Kenny’s detailed explanations” by reference without pointing out which of those advances Apples’
`
`arguments. Reply at 13. As LoganTree pointed out in its Response (Response at 26-27), Apple
`
`
`
`8
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`

`

`argues without explanation, relying instead only on long, unexplained string cites. Specifically,
`
`Apple argues that its purported “ARC combination” discloses the time stamp element without any
`
`explanation, relying only on a cross-reference to Section III.A.3., (which contains the following
`
`string cites: “APPLE-1008, 1:11-21; APPLE-1009, Abstract, 1:58-67, 7:45-50, 12:35-65, 14:27-
`
`37,” “APPLE-1008, 10:10-13, 11:26-50, 17:1-5; APPLE-1009, 1:58-67, 2:17-30,” “APPLE-1009,
`
`1:42-57; APPLE-1008, 14:47-54, 10:10-13; APPLE-1003, ¶[71]”) along with another long,
`
`unexplained string cite (“APPLE1008, 10:10-13, 11:26-50, 14:47-54, 17:1-5; APPLE-1009, 1:42-
`
`67, 2:17-30, 10:16-36"). Petition at 15-18; 33.
`
` The sheer volume of cited material routinely obfuscates the evidentiary support for
`
`Apple’s assertions and makes it essentially impossible to determine what Apple’s arguments are.
`
`In short, the Petition’s marshaling of evidence in support of its burden fails the particularity and
`
`specificity required by 35 U.S.C. § 312(a)(3), 37 C.F.R. § 42.22(a)(2), and 37 C.F.R.
`
`§ 42.104(b)(4)-(5).3
`
`
`
`Putting aside improper reliance on unexplained string cites, Apple’s argument equally
`
`suffers from a lack of underlying merit and support from actual prior art language. Assuming,
`
`arguendo, that Apple’s ARC concoction could exist, Apple is still incorrect because the ARC
`
`combination would still fail to disclose storing time stamp information “reflecting a time at which
`
`the movement data causing the first user-defined event occurred.”
`
`
`3 “One purpose of the prohibition against incorporation by reference is to eliminate abuses” of
`the word count limits established for the parties’ substantive papers, because “[i]ncorporation by
`reference amounts to a self-help increase in the length of the brief.” See Cisco Sys., Inc. v. C-
`Cation Techs., LLC, Case IPR2014-00454, Paper 12 at 10 (PTAB Aug. 29, 2014) (Paper 12)
`(citations and internal quotations omitted) (informative). This is especially significant here,
`because Petitioner’s opening brief is 13,880 words—only 120 words below the limit set in 37
`CFR § 42.24(a)(1)(i). See Petition at 97. The amount of argument that Petitioner is now trying to
`incorporate by reference from Dr. Kenny’s declaration would have pushed the Petition well
`beyond the 14,000-word limit.
`
`
`
`9
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`

`

`
`
`Even if the Raymond real-time clock was used to stamp Allum’s circumstances data, this
`
`does not cure the difference between what Apple claims is the “first event information related to
`
`the detected first-user defined event” being stored (Allum’s fall warnings) and this “circumstances
`
`data.” Apple claims that in the “ARC system, Raymond’s time-stamp information, which can be
`
`provided in a minute packet, is stored in Allum’s memory 16 as part of the circumstances data
`
`stored along with the fall warnings in Allum, similar to the manner in which time of day
`
`information is stored in Allum.” Reply at 13. Yet, for the same reasons outlined above, this time-
`
`stamp would still fail to “reflect[] a time at which the movement data causing the first user-
`
`defined event occurred.” The circumstances data includes the “time of day” and “preceding pitch
`
`and roll velocities.” EX1008 at14:51 (emphasis added). As discussed in depth in LoganTree’s
`
`Response, the “time of day” function relates to the time of the device’s warning to the user, not
`
`the time the user’s movement caused the “event” to occur. See Response at 23-26. Moreover, even
`
`if Raymond’s real-time clock stamped the “preceding pitch and roll velocities” associated with the
`
`circumstances data, this is merely time stamping the preceding body sway data and not the
`
`“movement data causing the first user-defined event.” Therefore, even with the help of
`
`Raymond’s real-time clock, Apple’s “ARC combination” still suffers from its failure to connect
`
`what Apple claims to be the “first event information” with the underlying “movement data
`
`causing the first user-defined event” limitation required by the claim language.
`
`[1e]
`
`
`As discussed above (in Section II(A) supra) Apple does not meet its burden in proving that
`
`a POSITA would be motivated to combine Allum with both Conlan and Raymond to create the
`
`device that Apple claims discloses Element 1e.
`
`
`
`10
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`

`

`[2] (“The device of claim 1 further comprising at least one input/output port
`connected to said microprocessor for downloading said data and uploading said
`operational parameters to and from a computer.”)
`
`In order to satisfy Claim 2, three main requirements must be met: (i) the device must have
`
`at least one input/output port connected to the microprocessor, (ii) the input/output port must be
`
`for downloading data and uploading operational parameters, (iii) to and from a computer. See
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`Response at 31.
`
`
`
`As LoganTree points out in its Response, the Allum device does not provide a single
`
`functionality that utilizes an external computer, much less one that utilizes a computer “for
`
`downloading and uploading operational parameters.” See Id. Apple mischaracterizes Allum’s
`
`language that provides for a specific implementation that allows Allum’s microprocessor to be
`
`implemented as a computer system, while the claim language clearly requires Allum’s system
`
`processor to be “have at least one input/outport port” that connects “to and from a computer” for
`
`the purpose of “downloading data and uploading operational parameters.” See Reply at 19-20.
`
`Indeed, as Apple cites in its Reply, “[t]he system processor 14 may be implemented as a
`
`conventional microprocessor based computer system having computer memory 16, an operator's
`
`display unit 18, e.g., a 10 standard 14-inch computer display console, a printer or plotter 20, and
`
`an operator's input device 22, such as a conventional computer keyboard.” EX1008 at 7:8-13
`
`(emphasis added).
`
`Boiled down: Apple has only shown that Allum discloses implementing its system
`
`processor as a computer that is connected to a keyboard and display, but not any disclosure of
`
`connecting to an external computer, much less a connection “for downloading data” as the claim
`
`requires.
`
`
`
`
`
`11
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`

`

`[20c] (“interpreting, using a microprocessor included in the portable, self-contained
`movement measuring device, said physical movement data based on user-defined
`operational parameters and a real-time clock;”)
`
`Element 20c requires that the microprocessor: (i) “interpret physical movement data,”
`
`and (ii) interpret said data “based on user-defined operational parameters and a real-time
`
`clock.” Even assuming that Allum’s microprocessor interprets physical movement data, it does
`
`not do so “based on user-defined operational parameters and a real-time clock.” Petition at
`
`33.As an initial concern, Apple takes issue with LoganTree’s assertion that “interpreting physical
`
`movement data” necessarily requires an analysis of the underlying physical movement data. Reply
`
`at 15. In support, Apple tries to insert a novel claim construction argument in its Reply, arguing
`
`that “interpreting” should mean to “explain or tell the meaning of; translate into intelligible or
`
`familiar language or terms present in understandable terms; to represent by means of art.” Id.
`
`“Interpreting” should be assigned its plain and ordinary meaning as Apple did not plead this claim
`
`construction argument in its petition.
`
`1. Allum does not interpret physical movement data based on both a real-time clock
`and user-defined operational parameters.
`
`As a threshold issue, the parties agree that Allum does not disclose a real-time clock.
`
`Petition at 17 (“Allum does not explicitly teach that its device includes a clock.”). Indeed, for this
`
`precise reason, Apple requires the combination of ARC; so that the Allum device can borrow the
`
`real-time clock from Raymond. Alone, Allum cannot disclose Element 20c, because the claim
`
`language unambiguously requires that the microprocessor “interpret physical movement data,”
`
`“based on… a real-time clock.”
`
`Apple argues in Reply that Allum can also incorporate Raymond’s RT Clock to disclose
`
`this element. Reply at 18-19. Putting aside Apple’s failure to justify the ARC combination (as
`
`explained above), Apple still falls short. Even assuming there could be an ARC device with a real-
`12
`
`
`
`

`

`time clock, Apple cites no specific arguments or disclosures explaining how any interpreting of
`
`movement data is done “based on” data from the RTC, as the claim language requires. Id.
`
`C. GROUND 1A/2 (Allum, Raymond, Conlan, and de Remer)
`
`
`De Remer is not analogous art.
`
`
`Apple’s argument –– “De Remer and Gaudet are analogous art to ARC” (Reply at 23) –– relies
`
`on the wrong standard. “Two separate tests define the scope of analogous prior art: (1) whether
`
`the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the
`
`reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably
`
`pertinent to the particular problem with which the inventor is involved.” In re Bigio, 381 F.3d
`
`1320, 1324 (Fed. Cir. 2004). Furthermore, a “reference qualifies as prior art for an obviousness
`
`determination only when it is analogous to the claimed invention.” In re Klein, 647 F.3d 1343,
`
`1348 (Fed. Cir. 2011) (emphasis added). Thus, Apple’s argument that De Remer and Gaudet are
`
`analogous to Allum, Raymond, and Conlan, even if correct (which it is not), does not establish that
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`De Remer and Gaudet are analogous to the claimed invention: the ‘576 Patent.
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`Apple does not challenge that De Remer is from an entirely different field of endeavor. See
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`Reply at 23. Instead, Apple argues that De Remer is reasonably pertinent to the problem faced by
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`the inventor. Id. Yet, Apple fails to establish that a POSITA would ever look to De Remer, an
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`invention “creating a control record for use in future machine recovery of gaps in a complete series
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`of journal data formed by a computing machine from a complete series of transactional data,” as a
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`reference for a device that monitors movement data. Specifically, Apple argues that the ‘576 Patent
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`inventor would “have to consider the problem of how to obtain and store first time stamp
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`information when using a real-time clock” and that “De Remer explains how the date and time
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`information from a RT clock (part of ARC’s device) can be used to fill up the fields in a time
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`stamp.” Reply at 24 (citing EX1013at 23:13-23).
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`This argument is nonsensical word salad. What does “fill up the fields in a time stamp” even
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`mean? The portion of De Remer Apple cites simply says “placing the current time and date from
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`the real-time clock 8 in the ending timestamp field.” EX1013 at 23:18-19. There is no disclosure
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`of how to get time information from a real-time clock and turn it into a saved time stamp that
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`would have helped the inventor solve a problem he was facing. Apple’s argument, once one wades
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`through the word jumble and unexplained string cites, is this: De Remer has the words “real-time
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`clock,” so does the `576 Patent, ignore everything else and find them analogous. This cannot be
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`sufficient to meet Apple’s burden under Federal Circuit precedents.
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`Indeed, the Federal Circuit has warned that courts must consider “the reality of the
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`circumstances” and “common sense” in deciding which fields a POSITA “would reasonably be
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`expected to look for a solution to the problem facing the inventor.” In re Oetiker, 977 F.2d 1443,
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`1447 (Fed. Cir. 1992) (holding that although, in hindsight, both patents dealt with “a hooking
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`problem,” the Board’s decision to include it as a prior art reference was improper because there
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`was no expectation for a POSITA to look at the reference for a solution). Apple has not shown that
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`the ‘576 Patent’s inventor would have looked to De Remer, an invention aimed at preventing loss
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`of complex business data, for a solution related to a device that monitors movement data.
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`D. GROUND 3 (Allum, Raymond, Conlan, and Gaudet)
`A POSITA would not have combined ARC with Gaudet.
`Again, LoganTree need not disprove that a POSITA would never have combined Gaudet with
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`three other prior art references. The burden is the opposite. Apple’s Reply arguments do nothing
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`to advance its affirmative burden to show a POSITA would have combined Gaudet with Allum,
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`Raymond, and Conlan. Instead, Apple argues that, even if Gaudet is not “athletic” in nature, it
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`could have still been combined with ARC. Reply at 25. However, Apple fails to address how
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`Gaudet measures user movement and for what purpose. As LoganTree’s Response argued,
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`“Gaudet’s derivation of pace from the time of surface contact is not concerned with the safety of
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`the patient as is the case in Allum, Raymond, and Conlan.” Response at 41. Gaudet’s purpose is
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`to measure pace as evidenced by its placement of an accelerometer in the shoe. Id. Apple’s Reply
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`argues that “adding Gaudet’s ability to track a subject’s walking movements would have been
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`consistent with Allum and Raymond’s objectives of providing a health history of the user,” but
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`aside from this conclusory attorney argument, Apple provides no support for this conclusion and
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`does not advance its affirmative burden. Reply at 25.
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`GROUND 4 (Gesink and Raymond)
`E.
`A POSITA would not have combined Gesink with Raymond.
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`Apple claims that LoganTree mischaracterizes Raymond and challenges LoganTree’s
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`assertion that Raymond is designed for the user to tell the device about the user’s condition. See
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`Reply at 26. In support, Apple argues that Raymond’s use of “objective data on the patient's
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`physical condition via a plurality of automatically-controlled physiological sensors” disproves that
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`Raymond is intended and designed for the user to tell the device about the user’s condition. Id.
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`Apple is wrong.
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`LoganTree does not dispute that Raymond collects objective data. In fact, LoganTree describes
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`Raymond as “‘health monitoring system’ that is composed of a ‘plurality of physiological and
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`subjective data collection devices.’” Response at 11. While it is true that there is an objective
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`component to the data collected, Raymond relies on the user to flag mood changes, pain intensity,
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`or even write notes when feeling discomfort. See EX1009 at figs. 16, 16b, 17, 20a.
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` Apple’s Reply arguments do nothing to address the clearly distinct design mechanisms
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`between Raymond and Gesink. Raymond is “not anticipatory of any specific medical condition,
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`but is instead broadly related to the general