Paper No. 30
`Filed: October 30, 2023
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________
`
`APPLE INC.,
`Petitioners,
`
`
`v.
`
`
`LOGANTREE LP
`Patent Owner
`______________
`
`Case IPR2022-00040
`
`Patent 6,059,576
`______________
`
`PATENT OWNER’S NOTICE OF APPEAL TO
`THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`
`

`

`Paper No. 30
`Filed: October 30, 2023
`Pursuant to 35 U.S.C. §§ 141, 142, and 319; 28 U.S.C. § 1295; 37 C.F.R. §§ 90.2–90.3;
`
`Federal Rule of Appellate Procedure 15; and Federal Circuit Rule 15, Patent Owner LoganTree,
`
`LP (“LoganTree”) hereby provides notice that it appeals to the United States Court of Appeals for
`
`the Federal Circuit from the Final Written Decision of the Patent Trial and Appeal Board (“Board”)
`
`entered on August 30, 2023 in IPR2022-00040 (Paper No. 29) (“Final Written Decision”) and from
`
`all underlying findings, determinations, rulings, opinions, orders, issues, and decisions regarding
`
`the inter partes review of U.S. Patent No. 6,059,576 (the “’576 Patent”). This notice is timely
`
`under 37 C.F.R. § 90.3, having been filed no later than 63 days after the Final Written Decision.
`
`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), Petitioner states that the issues on appeal
`
`may include, but are not limited to: the Board’s determination that claims 1–5, 8–11, 20, 25, 30–
`
`32, 36, 39–42, 45–51, 61–65, 144, and 147 of the ’576 Patent have been shown to be unpatentable,
`
`including any underlying questions of law or fact; the Board’s determination that the publications
`
`at issue (U.S. Patent No. 5,919,149 (“Allum”), U.S. Patent No. 5,573,013 (“Conlan”), U.S. Patent
`
`No. 5,412,801 (“de Remer”), U.S. Patent No. 6,018,705 (“Gaudet”), U.S. Patent No. 5,803,740
`
`(“Gesink”), and U.S. Patent No. 5,778,882 (“Raymond”)) alone or in combination render obvious
`
`the ’576 Patent; the Board’s consideration of the expert testimony, fact witness testimony, and
`
`other evidence in the record; and the Board’s factual findings, conclusions of law, or other
`
`determinations supporting or related to the foregoing issues, as well as all other issues decided
`
`adversely to Patent Owner in any orders, decisions, rulings, or opinions. This Notice of Appeal is
`
`being e-filed with the Clerk’s Office for the United States Court of Appeals for the Federal Circuit,
`
`along with payment of the required docketing fees. In addition, a true and correct copy of this
`
`Notice of Appeal is being filed simultaneously with the Director of the United States Patent and
`
`Trademark Office.
`
`

`

` 
`
`Dated: October 30, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Paper No. 30
`Filed: October 30, 2023
`
`Respectfully submitted,
`
`/s/ Jason McManis
`David E. Warden
`Reg. No. 35,733
`Jason McManis (Pro Hac Vice)
`Colin Phillips (Pro Hac Vice)
`AHMAD, ZAVITSANOS & MENSING, PLLC
`1221 McKinney Street, Suite 2500
`Houston, TX 77010
`T: 713-655-1101
`F: 713-655-0062
`dwarden@azalaw.com
`jmcmanis@azalaw.com
`cphillips@azalaw.com
`
`
`Attorneys for Patent Owner
`
`

`

`CERTIFICATE OF SERVICE
`
`Paper No. 30
`Filed: October 30, 2023
`
`I hereby certify that the Original of PETITIONER’S NOTICE OF APPEAL TO THE
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT is being sent
`
`priority overnight via FedEx on October 30, 2023, to the United States Patent and Trademark
`
`Office at the following address:
`
`Office of the General Counsel
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, Virginia 22313–1450
`
` A
`
` copy of this Notice of Appeal is being filed and served on October 30, 2023, as follows:
`
`To the USPTO Patent Trial and Appeal Board:
`
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, Virginia 22313–1450
`
`(via P-TACTS – as authorized by the Board)
`
`To the U.S. Court of Appeals for the Federal Circuit:
`
`Clerk of the Court
`U.S. Court of Appeals for the Federal Circuit
`717 Madison Place, N.W.
`Washington, DC 20439
`
`(via CM/ECF – with filing fee)
`
`
`
`
`
`
`
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`
`
`
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`

`

`Paper No. 30
`Filed: October 30, 2023
`
`To Attorneys for Petitioner:
`
`W. Karl Renner, Reg. No. 41,265
`Andrew B. Patrick, Reg. No. 63,471
`Usman A. Khan, Reg. No. 70,439
`Kim Leung, Reg. No. 64,399
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
`
`(via email pursuant to 37 C.F.R. § 42.6(e))
`
`
`Dated: October 30, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Jason McManis
`David E. Warden
`Reg. No. 35,733
`Jason McManis (Pro Hac Vice)
`Colin Phillips (Pro Hac Vice)
`AHMAD, ZAVITSANOS & MENSING, PLLC
`1221 McKinney Street, Suite 2500
`Houston, TX 77010
`T: 713-655-1101
`F: 713-655-0062
`dwarden@azalaw.com
`jmcmanis@azalaw.com
`cphillips@azalaw.com
`
`
`Attorneys for Patent Owner
`
`

`

`Trials@uspto.gov
`571-272-7822
`
`Paper 29
`Entered: August 30, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`v.
`LOGANTREE, LP,
`Patent Owner.
`
`IPR2022-00040
`Patent 6,059,576 C1
`
`
`
`
`
`
`
`
`
`Before PATRICK R. SCANLON, MITCHELL G. WEATHERLY, and
`JAMES A. WORTH, Administrative Patent Judges.
`SCANLON, Administrative Patent Judge.
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`
`INTRODUCTION
`I.
`Apple Inc. (“Petitioner”) challenges claims 1–5, 8–11, 20, 25, 30–32,
`36, 39–42, 45–51, 61–65, 144, and 147 of U.S. Patent No. 6,059,576 C1
`(Ex. 1001, “the ’576 patent”), which is assigned to LoganTree, LP (“Patent
`Owner”). We have jurisdiction under 35 U.S.C. § 6, and this Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has shown by a
`preponderance of the evidence that claims 1–5, 8–11, 20, 25, 30–32, 36,
`39–42, 45–51, 61–65, 144, and 147 of the ’576 patent are unpatentable.
`A. Procedural History
`Petitioner filed a Petition (Paper 3, “Pet.”) requesting an inter partes
`review of the challenged claims. Patent Owner did not file a Preliminary
`Response.
`We instituted a trial as to all challenged claims. Paper 10 (“Decision
`on Institution” or “Dec. Inst.”).
`After institution, Patent Owner filed a Patent Owner Response
`(Paper 17, “PO Resp.”), Petitioner filed a Reply (Paper 21, “Reply”), and
`Patent Owner filed a Sur-reply (Paper 22, “Sur-reply”).
`Petitioner relies on the Declaration of Dr. Thomas W. Kenny
`(Ex. 1003) in support of its contentions. Patent Owner relies on the
`Declaration of Vijay K. Madisetti (Ex. 2005) in support of its contentions.1
`
`
`1 When citing to Dr. Madisetti’s declaration in the Patent Owner Response,
`Patent Owner identifies it as Exhibit 2001 instead of Exhibit 2005. Patent
`Owner explains that this discrepancy was due to a filing error and confirms
`that Dr. Madisetti’s declaration is Exhibit 2005. Sur-reply 19–20.
`Accordingly, we change any of Patent Owner’s citations to Dr. Madisetti’s
`declaration to Exhibit 2005 in this Decision.
`
`2
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`An oral hearing was held on June 2, 2023. A transcript of the hearing
`is included in the record. Paper 28 (“Tr.”).
`B. Real Parties in Interest
`Petitioner identifies itself as the real party in interest. Pet. 94. Patent
`Owner identifies itself as the real party in interest. Paper 8, 1.
`C. Related Matters
`The parties identify the following proceedings as related matters
`involving the ’576 patent: LoganTree LP v. Apple, Inc., Case No. 6:21-cv-
`00397 (W.D. Tex.);2 LoganTree LP v. LG Electronics, Inc., Case No. 4:21-
`cv-00332 (E.D. Tex.); LoganTree LP v. Huawei Technologies USA Inc.,
`Case No. 4:21-cv-00119 (E.D. Tex.); and LoganTree LP v. Fossil Group,
`Case No. 1:21-cv-00385 (D. Del.). Pet. 94 (citing Exs. 1031–1037);
`Paper 8, 2.
`In addition, Petitioner states that it has filed another petition for inter
`partes review of the ’576 patent, IPR2022-00037.3 Pet. 94–95. Petitioner
`states that two other inter partes review proceedings challenging the ’576
`patent (IPR2017-00256 and IPR2017-00258) terminated after the filing of a
`petition but before any decision on institution, and final written decisions
`were entered in two more inter partes review proceedings challenging
`the ’576 patent (IPR2018-00564 and IPR2018-00565). Id. at 95. Patent
`Owner also identifies these proceedings. Paper 8, 3.
`
`
`2 This proceeding was transferred from the Western District of Texas to the
`Northern District of California on May 16, 2022, and is now styled
`LoganTree LP v. Apple, Inc., Case No. 5:22-cv-02892 (N.D. Cal.).
`Paper 6, 2.
`3 The Board instituted a trial in this proceeding on September 1, 2022.
`IPR2022-00037, Paper 10.
`
`3
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`
`D. The ’576 Patent4
`The ’576 patent is titled “Training and Safety Device, System and
`Method to Aid in Proper Movement During Physical Activity” and relates to
`“the field of electronic training and safety devices used to monitor human
`physical activity.” Ex. 1001, code (54), 1:6–7. More specifically, the
`’576 patent discloses a method that detects, measures, records, and/or
`analyzes the time, date, and other data associated with movement of the
`device and produces meaningful feedback regarding the measured
`movement. Id. at 1:8–11.
`The ’576 patent discloses that certain prior art devices recorded the
`number of times that a predetermined angle was exceeded but were not
`convenient to operate and served to report rather than analyze the
`information. Id. at 1:45–54. The ’576 patent discloses that it is also
`important to measure angular velocity to monitor and analyze improper
`movement. Id. at 1:55–67.
`The ’576 patent discloses an electronic device that tracks and
`monitors an individual’s motion through the use of a movement sensor
`capable of measuring data associated with the wearer’s movement. Id.
`at 2:10–13. The device of the ’576 patent includes a user-programmable
`microprocessor, which receives, interprets, stores and responds to the
`movement data based on customizable operation parameters; a clock
`connected to the microprocessor; memory for storing the movement and
`analysis data; a power source; a port for downloading the data from the
`
`
`4 An ex parte reexamination certificate issued on March 17, 2015, with all
`claims either amended from their original form or newly added during
`reexamination. Ex. 1001, code (45) C1, cols. 1–12 C1.
`
`4
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`device to other computation or storage devices contained within the system;
`and various input and output components. Id. at 2:13–21.
`Figure 4 of the ’576 patent is a block diagram of the movement
`measuring device (id. at 3:11–12):
`
`
`
`Figure 4 depicts a block diagram of the components of the device.
`The self-contained device can be worn at various positions along the
`torso or appendages being monitored depending on the specific physical task
`being performed. Id. at 2:21–24. The device also monitors the speed of the
`movements made while the device is being worn. Id. at 2:24–25. When a
`pre-programmed event is recognized, the device records the time and date of
`the event while providing feedback to the wearer via visual, audible and/or
`tactile warnings. Id. at 2:25–29. Periodically, data from the device may be
`downloaded into an associated computer program, which analyzes the data.
`
`5
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`Id. at 2:29–31. The program can then format various reports to aid in
`recognizing and correcting trends in incorrect physical movement. Id.
`at 2:31–33.
`
`E. Challenged Claims
`As noted above, Petitioner challenges claims 1–5, 8–11, 20, 25,
`30–32, 36, 39–42, 45–51, 61–65, 144, and 147. Of these claims, claims 1
`and 20 are independent. Claim 1, as amended in the reexamination
`proceeding, is illustrative of the subject matter and is reproduced below,
`with bracketed numbering added to track those used in the Petition:
`1. [1pre] A portable, self-contained device for monitoring
`movement of body parts during physical activity, said device
`comprising:
`[1a] a movement sensor capable of measuring data associated
`with unrestrained movement in any direction and generating
`signals indicative of said movement;
`[1b] a power source;
`[1c] a microprocessor connected to said movement sensor and
`to said power source, [1d-1] said microprocessor capable of
`receiving, interpreting, storing and responding to said
`movement data based on user-defined operational
`parameters, [1d-2] detecting a first user-defined event based
`on the movement data and at least one of the user-defined
`operational parameters regarding the movement data, and
`[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;
`[1e] at least one user input connected to said microprocessor for
`controlling the operation of said device;
`[1f] a real-time clock connected to said microprocessor;
`[1g] memory for storing said movement data; and
`
`6
`
`

`

`Ground Claim(s) Challenged
`1–5, 8–11, 20, 25, 30, 36,
`39–42, 45–51, 61–63,
`144, 147
`31, 32
`
`1A/2
`
`1
`
`IPR2022-00037
`Patent 6,059,576 C1
`[1h] an output indicator connected to said microprocessor for
`signaling the occurrence of user-defined events;
`[1i] wherein said movement sensor measures the angle and
`velocity of said movement.
`Ex. 1001, 1:25–50 C1 (emphasis omitted); Pet. vi–vii.
`F. Instituted Grounds of Unpatentability
`We instituted inter partes review of the challenged claims based on
`the following grounds of unpatentability asserted by Petitioner:5
`35
`U.S.C. § Reference(s)/Basis
`103(a) Allum,6 Raymond,7
`Conlan8
`103(a) Allum, Raymond,
`Conlan, de Remer9
`103(a) Allum, Raymond,
`Conlan, Gaudet10
`103(a) Gesink,11 Raymond
`
`64, 65
`3
`20, 25
`4
`Dec. Inst. 22; Pet. 1–2.
`
`II. ANALYSIS
`A. Legal Standards
`To prevail in its challenge, Petitioner must demonstrate by a
`preponderance of the evidence that the claims are unpatentable. 35 U.S.C.
`
`5 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. § 103. Because the ’576 patent has an
`effective filing date before the effective date of the applicable AIA
`amendments, we apply the pre-AIA version of 35 U.S.C. § 103.
`6 US 5,919,149, issued July 6, 1999 (Ex. 1008).
`7 US 5,778,882, issued July 14, 1998 (Ex. 1009).
`8 US 5,573,013, issued Nov. 12, 1996 (Ex. 1010).
`9 US 5,412,801, issued May 2, 1995 (Ex. 1013).
`10 US 6,018,705, issued Jan. 25, 2000 (Ex. 1012).
`11 US 5,803,740, issued Sept. 8, 1998 (Ex. 1014).
`
`7
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`§ 316(e); 37 C.F.R. § 42.1(d) (2020). “In an IPR, the petitioner has the
`burden from the onset to show with particularity why the patent it challenges
`is unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363
`(Fed. Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (2012) (requiring inter partes
`review petitions to identify “with particularity . . . the evidence that supports
`the grounds for the challenge to each claim”)). This burden of persuasion
`never shifts to the patent owner. See Dynamic Drinkware, LLC v. Nat’l
`Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) (discussing the burden
`of proof in inter partes review).
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter 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 said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) when in evidence, objective
`indicia of non-obviousness (also called secondary considerations), such as
`commercial success, long-felt but unsolved needs, and failure of others.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). We analyze grounds
`based on obviousness in accordance with the above-stated principles.12
`
`
`12 The record does not include any evidence of objective indicia of non-
`obviousness.
`
`8
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`B. Level of Ordinary Skill in the Art
`In determining whether an invention would have been obvious at the
`time it was made, 35 U.S.C. § 103 requires us to resolve the level of
`ordinary skill in the pertinent art at the time of the effective filing date of the
`claimed invention. Graham, 383 U.S. at 17. The person of ordinary skill in
`the art is a hypothetical person who is presumed to have known the relevant
`art. In re GPAC, Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995). Factors that
`may be considered in determining the level of ordinary skill in the art
`include, but are not limited to, the types of problems encountered in the art,
`the sophistication of the technology, and educational level of active workers
`in the field. Id. In a given case, one or more factors may predominate. Id.
`Petitioner contends that a person having ordinary skill in the art
`would have had a Bachelor of Science degree in an academic
`discipline emphasizing the design of electrical, computer, or
`software technologies, in combination with training or at least
`one to two years of related work experience with capture and
`processing of data or information, including but not limited to
`physical activity monitoring technologies. Alternatively, the
`person could have also had a Master of Science degree in a
`relevant academic discipline with less than a year of related
`work experience in the same discipline.
`Pet. 2–3 (citing Ex. 1003 ¶ 22–23).
`Patent Owner argues that a person of ordinary skill in the art “would
`have had a bachelor’s degree in electrical engineering or computer
`engineering or equivalent, and two years of experience in embedded signal
`processing and/or systems, or equivalent.” PO Resp. 18 (citing Ex. 2005
`¶ 43). Patent Owner adds that “[a]dditional industry experience or technical
`training may offset less formal education, while advanced degrees or
`
`9
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`additional formal education may offset lesser levels of industry experience.”
`Id.
`
`In the Decision on Institution, we adopted Petitioner’s proposed level
`of ordinary skill in the art, stating it was “consistent with the evidence of
`record, including the asserted prior art.” Dec. Inst. 8. In proposing a
`different level of ordinary skill in the art, Patent Owner does not explain
`why its proposed skill level is more appropriate.13 PO Resp. 18. In addition,
`the parties’ proposed definitions are substantially similar.
`Accordingly, for the purposes of this Decision, we apply Petitioner’s
`definition, although our conclusions with respect to obviousness would be
`the same if we were to apply Patent Owner’s definition.
`C. Claim Construction
`In inter partes reviews, the Board interprets claim language using the
`district-court-type standard, as described in Phillips v. AWH Corp., 415 F.3d
`1303 (Fed. Cir. 2005) (en banc). See 37 C.F.R. § 42.100(b) (2021). Under
`that standard, we generally give claim terms their ordinary and customary
`meaning, as would be understood by a person of ordinary skill in the art at
`the time of the invention, in light of the language of the claims, the
`specification, and the prosecution history. See Phillips, 415 F.3d at
`1313–14. Although extrinsic evidence, when available, may also be useful
`when construing claim terms under this standard, extrinsic evidence should
`be considered in the context of the intrinsic evidence. See id. at 1317–19.
`Petitioner argues that one of ordinary skill in the art would have
`understood that the term “a movement sensor” encompasses one or more
`
`
`13 Petitioner does not address the level of ordinary skill in the art in its
`Reply.
`
`10
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`sensors capable of detecting movement and measuring movement data
`associated with the detected movement. Pet. 5 (citing Ex. 1003 ¶¶ 52–53).
`Petitioner contends that the prosecution history of the ’576 patent supports
`this construction. Id. at 19 (citing Ex. 1003 ¶ 54; Ex. 1007, 248, 250–51,
`491–99).
`Patent Owner disagrees, arguing that “movement sensor” is a
`straightforward claim term and should be given its plain and ordinary
`meaning. PO Resp. 18–19. Patent Owner also argues that “Petitioner has
`not suggested that its interpretation would resolve the question of the
`relevance of any of its references.” Id. at 19 (citing Vivid Techs., Inc. v. Am.
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999); Nidec Motor Corp. v.
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017)).
`We determine that we need not expressly construe “movement
`sensor” to resolve the parties’ disputes because doing so would have no
`effect on the analysis below. See Realtime Data, LLC v. Iancu, 912 F.3d
`1368, 1375 (Fed. Cir. 2019) (“The Board is required to construe ‘only those
`terms that . . . are in controversy, and only to the extent necessary to resolve
`the controversy.’”) (quoting Vivid Techs, 200 F.3d at 803 (Fed. Cir. 1999)).
`To the extent the parties raise claim construction issues in addressing the
`asserted grounds, we address such issues below.
`D. Dr. Madisetti’s Testimony
`Petitioner argues that Dr. Madisetti’s testimony should not be given
`any weight. Reply 29–30. First, Petitioner contends that the Patent Owner
`Response does not provide a single citation to Dr. Madisetti’s declaration,
`Exhibit 2005. Id. at 29. However, Patent Owner explains that the Patent
`Owner Response mistakenly cites to Exhibit 2001 instead of Exhibit 2005
`due to a filing error and confirms that Dr. Madisetti’s declaration is
`
`11
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`Exhibit 2005. Sur-reply 19–20. Accordingly, Petitioner’s argument is not
`persuasive.
`Petitioner also argues that Dr. Madisetti’s testimony in Exhibit 2005 is
`not based on underlying facts because, in the 60-paragraph declaration, only
`paragraphs 32–35 and 59 have any citations. Reply 29. Petitioner also
`asserts that Dr. Madisetti refused to answer questions and provide
`clarification during his deposition. Id. at 30 (citing Ex. 1040, 30:3–20,
`52:2–14, 78:16–84:4). Patent Owner states that it served a supplemental
`declaration in response to Petitioner’s Objection to Evidence months before
`the deposition of Dr. Madisetti.14 Sur-reply 20.
`On this record, we decline to discount Dr. Madisetti’s testimony in its
`entirety as suggested by Petitioner. Instead, we consider Dr. Madisetti’s
`testimony, as we do all expert testimony, in accordance with governing law
`and Board rules.
`E. Ground 1: Asserted Obviousness Based on Allum, Raymond, and Conlan
`Petitioner asserts that claims 1, 3–5, 8, 10, 20, 25, 30, 39, 41, 42, and
`61–65 of the ’576 patent are unpatentable under 35 U.S.C. § 103(a) based on
`Allum, Raymond, and Conlan. Pet. 6–63. Patent Owner provides
`arguments addressing this asserted ground of unpatentability. PO Resp.
`20–39. We first summarize the references and then address the parties’
`contentions.
`
`1. Allum
`Allum relates to “providing non-invasive testing of the postural sway
`of a human subject,” and more particularly to the “direct measurement of
`body position using displacement or motion transducers or other sensing
`
`
`14 The supplemental declaration has not been made of record. Tr. 56:2–57:4.
`
`12
`
`

`

`IPR2022-00037
`Patent 6,059,576 C1
`devices attached to the body.” Ex. 1008, 1:11–16. We reproduce Figure 1
`below.
`
`
`Figure 1 is a block diagram of an angular position and velocity based body
`sway diagnosis and rehabilitation system. Id. at 6:29–31. The system
`includes body sway sensors 12 that are attached to a subject and provide
`body sway signals to system processor 14, which derives body sway angle
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`and angular velocity from the signals. Id. at 6:67–7:3. The system further
`includes memory 16, operator’s display unit 18, and operator’s input
`device 22. Id. at 7:8–13. Visual, auditory, tactile, and electro-vestibular
`feedback systems 24, 26, 28, 30 provide feedback on body sway angle and
`angular velocity information. Id. at 7:49–61.
`Body sway sensors 12 can be attached to the chest of the subject to
`register the roll, or side-to-side, and pitch, or forward and backward, motion
`of the subject’s upper body. Id. at 8:29–32. A third sensor may be used to
`capture the yaw or turning motion of the subject. Id. at 8:48–51.
`Allum discloses providing a warning if the subject’s angular sway has
`approached within a certain percentage of the angular cone of stability. Id.
`at 14:7–11. The “cone of stability” is defined as “the maximum leaning
`position of the upper body, i.e[.], the trunk, that a subject can achieve
`standing for two seconds, without falling, while attempting to keep his body
`as straight as possible.” Id. at 11:2–6.
`2. Raymond
`Raymond discloses health tracking system 100 having central
`database 102 connected to health trackers 104. Ex. 1009, 4:62–64. Each
`health tracker 104 includes multi-parametric physiological monitor 108 and
`data logger 106. Id. at 4:65–67. Monitor 108 includes a variety of sensors
`that detect a parameter and output signals to monitor hardware 144. Id.
`at 6:19–26. The sensors include accelerometer 134 for detecting motion and
`inclination of the patient’s body. Id. at 6:41–42. Monitor 108 also includes
`batteries 129. Id. at 6:15–18.
`Monitor hardware 144 includes real time (“RT”) controller 148 that
`coordinates sampling of the sensor outputs, organizes the data and transmits
`it to memory server controller 150 for later uploading to database 102. Id.
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`at 8:32–36, Fig. 4. The system includes multiple clocks, including real time
`(“RT”) clock 155 that provides a “wakeup” pulse to CPU 141. 9:63–10:11.
`3. Conlan
`Conlan relates to an apparatus and methods for monitoring activity of
`the human body, and more particularly, methods by which the occurrence
`and length of certain types of body movements (which form activity
`phenomenon) can be selectively observed and quantified. Ex. 1010,
`1:14–19. Conlan describes a problem with prior art devices, i.e., that
`saturation of memory occurred when the volume of data being monitored
`exceeded capacity, and states that this problem was aggravated because prior
`activity monitors were not selectively configurable to collect data only for a
`particular activity. Id. at 1:65–2:9.
`Conlan discloses an activity monitor worn on the skin and preferably
`on a user’s non-dominant wrist. Id. at 2:52–59. In a preferred embodiment,
`activity monitor 10 includes a pair of user-input pushbuttons 22, 23. Id.
`at 6:39–40. The user can depress one of the pushbuttons upon the
`occurrence of dizziness or pain so that the occurrence is recorded in the
`internal memory of the monitor. Id. at 6:43–46.
`4. Independent Claim 1
`Petitioner articulates reasons that one of ordinary skill in the art
`allegedly would have combined the teachings Allum, Raymond, and Conlan
`in the manner proposed. Pet. 15–18, 21–24. Petitioner contends that the
`proposed combination of Allum, Raymond, and Conlan discloses the
`limitations of claim 1. Id. at 24–40. Patent Owner argues that Petitioner’s
`reasons for combining Allum, Raymond, and Conlan lack merit. PO
`Resp. 20–22. Patent Owner also argues that the proposed combination fails
`to satisfy limitation [1d-3]. Id. at 23–27.
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`a) The Combination of Allum, Raymond, and Conlan
`Petitioner first contends that it would have been obvious to one of
`ordinary skill in the art “to incorporate Raymond’s power supply and RT
`clock into Allum’s measuring device because doing so would have merely
`involved combining prior art elements according to known methods to yield
`predictable results.” Pet. 15–16 (citing Ex. 1003 ¶ 67). In particular,
`Petitioner argues that, although it would have been obvious to a skilled
`artisan that Allum’s device would have included a power source, one of
`ordinary skill in the art would have added Raymond’s batteries 129 to Allum
`to include a power supply and support unobtrusive, low-power monitoring
`operation in Allum. Id. at 16 (citing Ex. 1003 ¶ 68; Ex. 1009, 9:38–46,
`5:7–11, 6:15–18, Fig. 2). Petitioner also asserts that it would have been
`obvious to incorporate Raymond’s real time clock so that Allum’s device
`can use a clock for logging time information and synchronize each data
`sampling event by initiating a data collection sequence. Id. at 17 (citing
`Ex. 1008, 14:47–54, 10:10–13; Ex. 1009, 10:16–36; Ex. 1003 ¶ 70). In
`addition, Petitioner asserts that Raymond discloses time stamping data as it
`is collected and it would have been obvious to incorporate this time
`stamping of collected data so that the subject’s health can be tracked and
`assessed over time. Id. at 18 (citing Ex. 1008, 14:47–54, 10:10–13;
`Ex. 1009, 1:42–57, 2:23–30; Ex. 1003 ¶ 71).
`Next, Petitioner contends that, given Conlan’s teaching of gathering
`additional data relating to a particular event, such as a feeling of dizziness, it
`would have been obvious to one of ordinary skill in the art to modify the
`device of the Allum-Raymond combination “to include Conlan’s buttons to
`enable the device to gather data (e.g., subject’s balance or movement) as it
`relates to a particular event specified by the user input buttons.” Id. at 21–22
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`(citing Ex. 1003 ¶ 79). Petitioner asserts that “[t]he identification of event-
`specific balance data would allow a clinician to better understand a subject’s
`balance or postural problems (e.g., by contrasting balance data related to the
`particular event and not related to the particular event) and use this
`understanding to aid in rehabilitation.” Id. at22 (citing Ex. 1003 ¶ 79).
`Patent Owner argues that Petitioner has failed to provide a sufficient
`reason for one of ordinary skill in the art to combine the references in the
`manner proposed.15 PO Resp. 20–21 (citing KSR, 550 U.S. at 421; Micro
`Chemical, Inc. v. Great Plains Chemical Co., 103 F.3d 1538, 1546 (Fed.
`Cir. 1997)). Specifically, Patent Owner argues that Allum discloses a
`“design scheme” in which the device tells the user about the user’s
`conditions, but Conlan’s pushbuttons are designed for the user to tell the
`device about the user’s condition. Id. at 21 (citing Ex. 1008, 3:61–62;
`Ex. 1010, 6:38–46). Thus, according to Patent Owner, “Allum does not
`teach or suggest to a [person of ordinary skill in the art] that it should be
`modified to include Conlan’s pushbuttons for user input because the design
`scheme of Allum neither requires, nor provides a means for, user input about
`his or her own stability condition.” Id. (citing Ex. 2005 ¶ 48).
`Petitioner replies by arguing that Allum does not preclude user input,
`particularly using buttons to input the user’s conditions such as dizziness.
`Reply 2–3. Petitioner contends that neither Patent Owner nor Dr. Madisetti
`provides any support for the assertion that Allum’s design scheme precludes
`
`
`15 Although the Patent Owner states “Petitioner has not set forth clear-and-
`convincing evidence” of a reason to combine, Patent Owner explains that
`referencing the clear and convincing standard in the Response was an
`inadvertent error and Patent Owner did not rely on that standard.
`Sur-reply 1; see also Tr. 68:18–69:5 (providing the same explanation).
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`user input buttons. Id. at 3. In Petitioner’s view, because “Allum relates to
`providing ‘a diagnostic and a rehabilitory tool for subjects who are prone to
`abnormal falling and who wish to improve their movement control,’
`providing an additional means of capturing user-specified event information
`. . . , would be consistent with Allum’s goals.” Id. (citing Ex. 1008,
`3:55–64). Also, regarding Patent Owner’s assertion that Allum does not
`