IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`Theodore L. Brann
`In re Patent of:
`6,059,576 Attorney Docket No.: 50095-0041IP2
`U.S. Patent No.:
`May 9, 2000
`
`Issue Date:
`Appl. Serial No.: 08/976,228
`
`Filing Date:
`November 21, 1997
`
`Title:
`TRAINING AND SAFETY DEVICE, SYSTEM AND METHOD
`TO AID IN PROPOER MOVEMENT DURING PHYSICAL
`ACTIVITY
`
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`PETITION FOR INTER PARTES REVIEW OF UNITED STATES PATENT
`NO. 6,059,576 PURSUANT TO 35 U.S.C. §§ 311–319, 37 C.F.R. § 42
`
`
`
`

`

`
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`
`TABLE OF CONTENTS
`
`I. 
`
`II. 
`
`REQUIREMENTS FOR IPR UNDER 37 C.F.R. § 42.104 ............................ 1 
`A.  Grounds for Standing ................................................................................ 1 
`B.  Challenge and Relief Requested ............................................................... 1 
`C.  Level of Ordinary Skill in the Art ............................................................. 2 
`D.  Claim Construction ................................................................................... 3 
`THE ’576 PATENT ......................................................................................... 3 
`A.  Brief Description ....................................................................................... 3 
`B.  Prosecution History of the ’576 Patent ..................................................... 5 
`C.  Construction of “movement sensor” ......................................................... 5 
`III.  THE CHALLENGED CLAIMS ARE UNPATENTABLE ............................ 6 
`A.  GROUND 1: Claims 1-5, 8-11, 20, 25, 30, 36, 39-42, 45-51, 61-63, 144,
`and 147 are obvious over Allum, Raymond, and Conlan ......................... 6 
`1.  Overview of Allum .......................................................................... 6 
`2.  Overview of Raymond .................................................................. 10 
`3. 
`Combination of Allum and Raymond ........................................... 15 
`4.  Overview of Conlan ...................................................................... 18 
`5. 
`Combination of Allum, Raymond, and Conlan ............................ 21 
`6.  Manner in which the Prior Art Renders the Claims Obvious ....... 24 
`B.  GROUNDS 1A/2: Claims 31 and 32 are obvious over ARC alone or in
`combination with de Remer .................................................................... 63 
`1.  Overview of de Remer .................................................................. 63 
`2.  Manner in which the Prior Art Renders the Claims Obvious ....... 64 
`C.  GROUND 3: Claims 64 and 65 are obvious over Allum, Raymond,
`Conlan, and Gaudet ................................................................................. 67 
`1.  Overview of Gaudet ...................................................................... 67 
`2. 
`Combination of ARC and Gaudet ................................................. 69 
`3.  Manner in which the Prior Art Renders the Claims Obvious ....... 71 
`D.  GROUND 4: Claims 20 and 25 are obvious over Gesink and
`Raymond… ............................................................................................. 71 
`1.  Overview of Gesink....................................................................... 71 
`2. 
`Combination of Gesink and Raymond .......................................... 76 
`3.  Manner in which the Prior Art Renders the Claims Obvious ....... 78 
`IV.  PTAB DISCRETION SHOULD NOT PRECLUDE INSTITUTION .......... 87 
`A.  The Fintiv Factors do not favor Discretionary Denial—§ 314(a) .......... 87 
`1. 
`Factor 1: Either Party May Request Stay ...................................... 87 
`
`i
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`

`

`2. 
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`Factor 2: The FWD will likely issue within one month of Trial
`(assuming that Trial is not delayed) .............................................. 88 
`Factor 3: Petitioner’s Diligence and Investment in IPR Outweighs
`the Parties’ Minimal Investment in Litigation .............................. 89 
`Factor 4: The Petition’s Grounds are Materially Different from
`any that Might be Raised in Litigation .......................................... 90 
`Factor 5: Institution Would Promote Judicial Efficiency ............. 91 
`5. 
`Factor 6: The Merits of this Petition Strongly Favor Institution .. 91 
`6. 
`B.  The Advanced Bionics Test Favors Institution—§ 325(d) ..................... 93 
`V. 
`CONCLUSION .............................................................................................. 94 
`VI.  PAYMENT OF FEES ................................................................................... 94 
`VII.  MANDATORY NOTICES UNDER 37 C.F.R § 42.8(a)(1) ......................... 94 
`A.  Real Party-In-Interest Under 37 C.F.R. § 42.8(b)(1) .............................. 94 
`B.  Related Matters Under 37 C.F.R. § 42.8(b)(2) ....................................... 94 
`C.  Lead And Back-Up Counsel Under 37 C.F.R. § 42.8(b)(3) ................... 95 
`D.  Service Information ................................................................................ 95 
`
`
`
`
`
`
`3. 
`
`4. 
`
`ii
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`

`

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`
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`
`
`EXHIBITS
`
`APPLE-1001
`
`U.S. Patent No. 6,059,576 to Brann. (“the ’576 Patent”)
`
`APPLE-1002
`
`Prosecution History of the ’576 Patent (“the Prosecution
`History”)
`
`APPLE-1003
`
`APPLE-1004
`
`
`APPLE-1005
`
`APPLE-1006
`
`
`APPLE-1007
`
`
`APPLE-1008
`
`APPLE-1009
`
`APPLE-1010
`
`APPLE-1011
`
`
`APPLE-1012
`
`APPLE-1013
`
`APPLE-1014
`
`APPLE-1015
`
`
`Declaration and Curriculum Vitae of Dr. Thomas Kenny
`
`Complaint, Logantree LP, v. Apple, Inc., 6:21-cv-00397, W.D.
`Tex., Apr. 23, 2021
`
`Stipulation by Petitioner
`
`Ex Parte Reexamination Certificate of U.S. Patent No.
`6,059,576
`
`Excerpts from Ex Parte Reexamination No. 90/013,201
`Prosecution History
`
`U.S. Patent No. 5,919,149 (“Allum”)
`
`U.S. Patent No. 5,778,882 (“Raymond”)
`
`U.S. Patent No. 5,573,013 (“Conlan”)
`
`Decision Dismissing Petitions, Fitbit, Inc.. v. LoganTree LP,
`IPR2017-00256 and IPR2017-00258, April 7, 2017
`
`U.S. Patent No. 6,018,705 (“Gaudet”)
`
`U.S. Patent No. 5,412,801 (“de Remer”)
`
`U.S. Patent No. 5,803,740 (“Gesink”)
`
`EP0045656B1 (“Beadles”)
`
`iii
`
`

`

`
`APPLE-1016
`
`APPLE-1017
`
`APPLE-1018
`
`APPLE-1019
`
`
`APPLE-1020
`
`
`APPLE-1021
`
`
`APPLE-1022
`
`
`APPLE-1023
`
`APPLE-1024
`
`
`APPLE-1025
`
`
`APPLE-1026
`
`
`APPLE-1027
`
`
`
`
`International Publication WO 97/39677 (“Lim”)
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`U.S. Patent 8,001,096 (“Farber”)
`
`U.S. Patent 5,212,774 (“Grider”)
`
`ADXL50 Datasheet: Monolithic Accelerometer with Signal
`Conditioning, Analog Devices, Inc., 1996
`
`Airbags Boom When IC Accelerometer Sees 50G, Frank
`Goodenough, Electronic Design, Penton Publishing, Aug. 8,
`1991
`
`Northrop Grumman LITEF: µFORS-36m / -1 - Fiber Optic
`Rate Sensors,
`https://www.litef.de/fileadmin/user_upload/ablage/Produkte/Da
`tenblaetter/Datasheet_uFORS-36m_-
`1_Fiber_Optic_Rate_Sensors_01.pdf, Northrop Grumman, last
`visited Sept. 3, 2021
`
`ADS-C232 Specification, https://watson-gyro.com/wp-
`content/uploads/delightful-downloads/2020/10/ADS-C232-
`1AD_Spec.pdf, Watson Industries, Inc., last visited Sept. 3,
`2021
`
`Analog Dialogue, Analog Devices, Vol. 30, No. 4, 1996
`
`Scheduling Order, Logantree LP, v. Apple, Inc., 6:21-cv-00397,
`W.D. Tex., Aug. 13, 2021
`
`“2021 Discretionary Denials Have Passed 100, But Are
`Slowing,” Dani Krass, Law360, July 21, 2021
`
`Cimoo Song et al., Commercial Vision of silicon-based inertial
`sensors, Sensors and Actuators A 66, pp. 231-236, 1998
`
`C.V. Ramakrishnan, Current Trends in Engineering Practice,
`ISBN-10: 81-7319-689-3, 2006
`
`iv
`
`

`

`
`APPLE-1028
`
`APPLE-1029
`
`
`
`APPLE-1030
`
`
`APPLE-1031
`
`
`APPLE-1032
`
`
`APPLE-1033
`
`
`APPLE-1034
`
`
`APPLE-1035
`
`
`APPLE-1036
`
`
`APPLE-1037
`
`
`
`
`
`U.S. Patent 5,818,568 (“Onaga”)
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`“Leahy And Cornyn Introduce Bipartisan Bill To Support
`American Innovation And Reduce Litigation”, Sep. 29, 2021,
`available at: https://www.leahy.senate.gov/press/leahy-and-
`cornyn-introduce-bipartisan-bill-to-support-american-
`innovation-and-reduce-litigation
`
`Restoring the America Invents Act, S. 2891, 117th
`Cong. (2021).
`
`Complaint, Logantree LP, v. Fitbit Inc., 2:15-cv-01575, E.D.
`Tex., Oct. 2, 2015
`
`Complaint, Logantree LP, v. Garmin International, Inc., 5:17-
`cv-00098, W.D. Tex., Feb. 10, 2017
`
`Complaint, Logantree LP, v. Garmin International, Inc., 6:17-
`cv-01217, D. Kan., Aug. 23, 2017
`
`Complaint, Logantree LP, v. Omron Healthcare, Inc., 1:18-cv-
`01617, D. Del., Oct. 18, 2018
`
`Complaint, Logantree LP, v. Misfit, Inc., 1:21-cv-00385, D.
`Del., Mar. 16, 2021
`
`Complaint, Logantree LP, v. Huawei Technologies Co., Ltd,
`6:21-cv-00119, E.D. Tex., Mar. 25, 2021
`
`Complaint, Logantree LP, v. LG Electronics, Inc., 4:21-cv-
`00332, E.D. Tex., Apr. 27, 2021
`
`
`
`v
`
`

`

`
`
`
`
`Claim 1
`[1pre]
`
`[1a]
`
`[1b]
`
`[1c]
`
`[1d-1]
`
`[1d-2]
`
`[1d-3]
`
`[1e]
`
`[1f]
`
`[1g]
`
`[1h]
`
`
`LISTING OF CHALLENGED CLAIMS
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`A portable, self-contained device for monitoring movement of body
`parts during physical activity, said device comprising:
`
`a movement sensor capable of measuring data associated with
`unrestrained movement in any direction and generating signals
`indicative of said movement;
`
`a power source;
`
`a microprocessor connected to said movement sensor and to said
`power source,
`
`said microprocessor capable of receiving, interpreting, storing and
`responding to said movement data based on user-defined operational
`parameters,
`
`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
`
`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;
`
`at least one user input connected to said microprocessor for controlling
`the operation of said device;
`
`a real-time clock connected to said microprocessor;
`
`memory for storing said movement data; and
`
`an output indicator connected to said microprocessor for signaling the
`occurrence of user-defined events;
`
`vi
`
`

`

`
`
`[1i]
`
`Claim 2
`[2]
`
`Claim 3
`[3]
`
`Claim 4
`[4]
`
`Claim 5
`[5]
`
`Claim 8
`[8]
`
`Claim 9
`[9]
`Claim 10
`[10]
`Claim 11
`[11]
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`wherein said movement sensor measures the angle and velocity of said
`movement.
`
`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.
`
`The device of claim 1 wherein said device is compact and weighs less
`than one pound.
`
`The device of claim 1 wherein said movement sensor comprises at
`least one accelerometer.
`
`The device of claim 1 wherein said movement sensor can
`simultaneously detect real time movement along at least two
`orthogonal axes.
`
`The device of claim 1 wherein said data measured by said movement
`sensor includes the distance of said movement.
`
`The device of claim 1 wherein said output indicator is visual.
`
`The device of claim 1 wherein said output indicator is audible.
`
`The device of claim 1 wherein said output indicator is tactile.
`
`vii
`
`

`

`
`
`
`
`Claim 20
`[20pre] A method to monitor physical movement of a body part comprising
`the steps of:
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`[20a]
`
`[20b]
`
`[20c]
`
`[20d]
`
`[20e]
`
`[20f]
`
`attaching a portable, self-contained movement measuring device to
`said body part for measuring unrestrained movement in any direction;
`
`measuring data associated with said physical movement;
`
`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;
`
`storing said data in memory;
`
`detecting, using the microprocessor, 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
`
`storing, in said memory, 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.
`
`Claim 25
`[25]
`
`Claim 30
`[30]
`
`Claim 31
`[31]
`
`The method of claim 20 wherein said movement measuring device is
`an accelerometer.
`
`The device of claim 1, wherein said microprocessor is configured to
`store, in said memory, date information associated with the first time
`stamp information.
`
`The device of claim 1, wherein said microprocessor is configured to
`retrieve said first time stamp information from said real-time clock and
`
`viii
`
`

`

`
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`associate the retrieved first time stamp information with said first user-
`defined event.
`
`Claim 32
`[32]
`
`Claim 36
`[36]
`
`Claim 39
`[39]
`
`Claim 40
`[40]
`
`Claim 41
`[41]
`
`Claim 42
`[42]
`
`The device of claim 31, wherein said microprocessor is configured to
`retrieve said first time stamp information from said real-time clock
`based on the detection of the user-defined event.
`
`The device of claim 1, wherein said output indicator is configured to
`display information signaling the occurrence of the first user-defined
`event based on the detection of the first user-defined event.
`
`The device of claim 1, wherein said at least one of the user-defined
`operational parameters is a predetermined threshold, and said first
`user-defined event occurs when the movement data reaches the
`predetermined threshold.
`
`The device of claim 39, wherein said output indicator is configured to
`display information signaling the occurrence of the first user-defined
`event when the movement data reaches the predetermined threshold.
`
`The device of claim 39, wherein said memory is configured to store
`said first event information indicating that the predetermined threshold
`is met.
`
`The device of claim 41, wherein said memory is configured to store
`the first time stamp information in association with said first event
`information.
`
`
`ix
`
`

`

`
`
`Claim 45
`[45]
`
`Claim 46
`[46]
`
`Claim 47
`[47]
`
`Claim 48
`[48]
`
`Claim 49
`[49]
`
`Claim 50
`[50]
`
`Claim 51
`[51]
`
`Claim 61
`[61]
`
`
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`The device of claim 1, wherein said movement data stored in the
`memory is configured to be downloaded to a computer.
`
`The device of claim 45, further comprising: software configured to
`communicate with external software, wherein the external software is
`configured to present the downloaded movement data to the user.
`
`The device of claim 46, wherein said external software is configured
`to run on the computer.
`
`The device of claim 47, wherein said downloaded movement data is
`configured to be analyzed by said user via said external software.
`
`The device of claim 46, wherein said external software is configured
`to interpret said movement data and produce at least one report.
`
`The device of claim 46, wherein said external software is configured
`to interpret said movement data and produce at least one history
`report.
`
`The device of claim 50, wherein said at least one history report
`includes dates and times of said movement data.
`
`The device of claim 39, wherein said microprocessor is configured to
`detect occurrence of the first user-defined event by comparing said
`movement data to said predetermined threshold.
`
`x
`
`

`

`
`
`Claim 62
`[62]
`
`Claim 63
`[63]
`
`Claim 64
`[64]
`
`
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`The device of claim 1, wherein said device is configured to be placed
`on said user's arm to monitor and record said movement data.
`
`The device of claim 62, wherein said movement sensor is configured
`to measure movement of said user's arm.
`
`The device of claim 1, wherein said movement sensor is configured to
`measure a walking distance.
`
`Claim 65
`[65]
`
`The device of claim 64, wherein said device is configured to be
`wearable by the user, and said movement sensor is configured to
`measure said walking distance of said user.
`Claim 144
`[144]
`The device of claim 1, wherein said first user-defined event is a
`predetermined type of movement.
`Claim 147
`[147]
`The device of claim 144, wherein the predetermined type of
`movement is no movement for a predetermined amount of time.
`
`
`
`xi
`
`

`

`
`
`
`
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`Apple Inc. (“Petitioner”) petitions for Inter Partes Review (“IPR”) of 1-5, 8-11,
`
`20, 25, 30-32, 36, 39-42, 45-51, 61-65, 144, and 147 (“the Challenged Claims”) of U.S.
`
`Patent No. 6,059,576 (“the ’576 Patent”). For the reasons explained below, there exists
`
`a reasonable likelihood that Petitioner will prevail with respect to at least one of the
`
`Challenged Claims.
`
`I.
`
`REQUIREMENTS FOR IPR UNDER 37 C.F.R. § 42.104
`A. Grounds for Standing
`Petitioner certifies that the ’576 Patent is available for IPR. Petitioner is not barred
`
`or estopped from requesting review. Petitioner was served with a complaint of
`
`infringement of the ’576 Patent less than one year prior to the filing of this Petition.
`
`APPLE-1004.
`
`B. Challenge and Relief Requested
`Petitioner requests IPR of the Challenged Claims on the obviousness grounds listed
`
`below. A declaration from Dr. Kenny (APPLE-1003, ¶¶[1]-[197]) supports this Petition.
`
`Ground
`
`Claim(s)
`
`35 U.S.C. § 103 Combination
`
`1
`
`1-5, 8-11, 20, 25, 30,
`36, 39-42, 45-51, 61-
`63, 144, 147
`
`1A/2
`
`31, 32
`
`Allum in view of Raymond and Conlan
`
`Allum in view of Raymond, Conlan, and
`optionally de Remer
`
`1
`
`

`

`
`
`Ground
`
`3
`
`4
`
`Claim(s)
`
`64, 65
`
`
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`35 U.S.C. § 103 Combination
`
`Allum in view of Raymond, Conlan, and
`Gaudet
`
`20, 25
`
`Gesink in view of Raymond
`
`As shown below, each reference predates the ’576 Patent’s filing date (11/21/1997)
`
`and qualifies as prior art under 35 U.S.C. § 102(b) or § 102(e).
`
`Reference
`Allum
`(USPN 5,919,149)
`Raymond
`(USPN 5,778,882)
`Conlan
`(USPN 5,573,013)
`
`de Remer
`(USPN 5,412,801)
`Gesink
`(USPN 5,803,740)
`Gaudet
`(USPN 6,018,705)
`
`Filing Date
`Mar. 14, 1997
`
`Feb. 24, 1995
`
`Jun. 7, 1995
`
`
`Issue Date
`
`Jul. 6, 1999
`
`Jul. 14, 1998
`
`Nov. 12, 1996
`
`Jan. 17, 1990
`
`May 2, 1995
`
`Apr. 22, 1997
`
`Oct. 2, 1997
`
`Sept. 8, 1998
`
`Jan. 25, 2000
`
`
`
`C. Level of Ordinary Skill in the Art
`A person of ordinary skill in the art at the time of the ’576 Patent (a “POSITA”)
`
`would have had a Bachelor of Science degree in an academic discipline emphasizing the
`
`2
`
`

`

`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`
`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. APPLE-1003, ¶¶[22]-[23].
`
`D. Claim Construction
`
`Petitioner construes a “movement sensor,” as noted below in Section II.C.
`II. THE ’576 PATENT
`A. Brief Description
`The ’576 Patent discloses a “self-contained movement measuring device 12” with
`
`a “movement sensor 13.” APPLE-1001, 3:32-50. As shown below in FIGS. 2B and 2C,
`
`the movement sensor 13 can be implemented together (FIGS. 2A, 2B) or “separate[ly]
`
`from the remaining components 15 of the device 12” (FIG. 2C). Id; APPLE-1003,
`
`¶¶[43]-[44].
`
`3
`
`

`

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`
`
`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
`
`
`
`APPLE-1001, FIGS. 2B, 2C1
`
`
`
`The ’576 Patent’s movement sensor detects movement and measures angle, speed,
`
`angular velocity, and distance of the physical movement. APPLE-1001, 4:38-45, 2:40-41.
`
`The “movement sensor [ ] is electronically connected to a microprocessor 32 which
`
`receives the signals generated by the movement sensor [ ] for analysis and subsequent
`
`processing.” APPLE-1001, 4:52-55. Once the microprocessor has received and analyzed
`
`the movement data, the microprocessor responds based on “user-programmable
`
`configuration information” such as “an event threshold.” Id., 4:40-65, 5:67-6:9; APPLE-
`
`
`1 Annotations to the figures throughout this petition are shown in color.
`4
`
`

`

`
`1003, ¶¶[45]-[48].
`
`
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`Attorney Docket No. 50095-0041IP2
`IPR of U.S. Patent No. 6,059,576
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`
`
`B.
`Prosecution History of the ’576 Patent
`The ’576 Patent initially issued from U.S. App. No. 08/976,228. See generally
`
`APPLE-1002. A reexamination request was subsequently granted and the reexamined
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`claims were allowed after the independent claims were amended to recite new features
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`(e.g., “detecting a first user-defined event …”). APPLE-1007, 13-17, 19, 494, 499, 502,
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`246-300. The reexamined ’576 Patent ultimately issued with 185 claims (including 156
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`new claims). Id., 168-206; see also APPLE-1006; APPLE-1003, ¶¶[49]-[51].
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`C. Construction of “movement sensor”
`The ’576 Patent describes several implementations of a movement sensor.
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`APPLE-1001, 4:35-48. In some implementations, the movement sensor is an
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`accelerometer capable of detecting velocity and angles of movement in multiple planes.
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`Id. In some implementations, a movement sensor includes “multiple accelerometers,
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`each capable of measuring angles of movement in only one plane.” Id. Consistent with
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`both implementations, claim 170 recites “wherein said movement sensor comprises at
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`least one accelerometer.” APPLE-1001, 11:19-21. In view of the intrinsic description of
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`“a movement sensor,” a POSITA would have understood that “a movement sensor”
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`encompasses one or more sensors capable of detecting movement and measuring
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`movement data associated with the detected movement. The movement data may
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`include angle, velocity, and/or distance measurements. APPLE-1003, ¶¶[52]-[53].
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`The ’576 prosecution history supports this construction. During reexamination,
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`Patent Owner argued that a plurality of sensors in a prior art reference together disclose
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`the “movement sensor” in the claims. APPLE-1007, 491-99. The Examiner agreed.
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`APPLE-1007, 248, 250-51. Accordingly, Petitioner’s construction is supported by
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`intrinsic evidence, the prosecution history, the Patent Owner’s remarks, and the
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`Examiner. APPLE-1003, ¶[54].
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`
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`III. THE CHALLENGED CLAIMS ARE UNPATENTABLE
`A. GROUND 1: Claims 1-5, 8-11, 20, 25, 30, 36, 39-42, 45-51, 61-63,
`144, and 147 are obvious over Allum, Raymond, and Conlan
`1. Overview of Allum2
`Allum discloses a wearable motion measuring device that includes (i) “light-
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`weight wearable body sway sensors that don’t restrict the subject’s movement (id.,
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`6:10-11)” (ii) a “portable processor attached to the subject” (id., 16:17-19) and (iii)
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`a “feedback system . . . also attached to the subject’s body” (id., 8:8-12). Allum’s
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`2 General descriptions provided for the references and combinations discussed in Section
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`III are incorporated into each subsection addressing/applying those references, as are the
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`discussions of combinations.
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`FIG. 2 (reproduced below) illustrates the body sway measurement device. APPLE-
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`1003, ¶[55].
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`APPLE-1008, FIG. 2
`In Allum, “[v]arious different types of sensors 12 may be used to measure the body
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`sway angle and body sway angular velocity of the subject.” APPLE-1008, 8:66-9:1. The
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`sensors can measure movement along three orthogonal axes: (i) side-to-side or “roll”
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`motion about a first axis, (ii) front-to-back or “pitch” motion about a second axis, and
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`(iii) turning or “yaw” motion about a third axis. Id., 8:27-65. “Signals from the body
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`sway sensors on the subject are provided to a microprocessor based system processor”
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`which is “programmed to transform the angular position and velocity information
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`provided by the sensors into useful information formats.” Id., 4:18-23; APPLE-1003,
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`¶[56].
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`Allum’s measuring device is configured to “test[] for the presence of balance
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`disorders,” one of which is unintended “body sway” that causes falling. APPLE-1008,
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`6:1-8; 5:13-21, 6:25. The microprocessor collects and interprets movement data from the
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`sensors, and detects whether a subject’s “body sway is approaching or has exceeded the
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`limits of safety, i.e., the subject’s angular sway has approached within a certain
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`percentage of the angular cone of stability.” APPLE-1008, 14:7-11. If so, a “fall
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`warning” is provided by visual, auditory, and/or tactile feedback systems. Id., 15:48-50,
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`7:56-64; APPLE-1003, ¶[57].
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`Allum teaches that the detection step is based on the movement data collected by
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`the sensor and several user-defined “variable parameters” such as the subject’s “cone of
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`stability” and the “proximity to the cone of stability which the subject’s upper body
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`deviation angle must approach” before a warning is issued. APPLE-1008, 13:16-28;
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`APPLE-1003, ¶[58]. When the feedback system issues a fall warning, the system saves
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`the “circumstances involved” including the “time of day” in a memory. APPLE-1008,
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`14:47-54, 15:48-53; APPLE-1003, ¶[59]. Relatedly, Allum teaches that a “remote”
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`system processor is in communication with the processor attached to the subject,
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`allowing body sway information to be transmitted to the remote processor for formatting
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`and displaying of movement data, reports, and “time histories,” as shown below in FIG.
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`3. APPLE-1008, 8:3-19, 7:8-13, 10:10-67, 11:27-50, 14:61-15:16, 4:18-32, 17:1-5;
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`APPLE-1003, ¶[60].
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`APPLE-1008, FIG. 3
`2. Overview of Raymond
`Raymond discloses a system that tracks a patient’s health and creates a patient
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`chronological health history by automatically measuring and recording physiological data
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`from health trackers or sensors in contact with the patient’s body. APPLE-1009,
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`Abstract, 1:58-67. Data collected from the sensors includes “a set of timestamped serial
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`streams from a subject.” APPLE-1009, 1:42-57. “As the data is collected, it is time
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`stamped, … uploaded to the database, [and] labeled for the patient in question. The
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`resulting health history is a combined format of objective physical parameters and
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`subjective patient data which is time-indexed for subsequent retrieval and analysis. From
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`these stored datastreams, trends in the data may be identified.” APPLE-1009, 2:24-30;
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`APPLE-1003, ¶[61].
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`Raymond’s monitoring system is shown in FIGS. 2 and 2A (reproduced below)
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`and depicts a self-contained chest strap 124 strapped around a patient 120. APPLE-1009,
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`5:45-6:18. APPLE-1003, ¶[62].
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`APPLE-1009, FIG. 2
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`APPLE-1009, FIG. 2A
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`Small, light batteries 129 power the monitoring system to support real-time data
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`processing and low-power operation modes. APPLE-1009, 9:38-46, 5:7-11, 6:15-18,
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`FIG. 2. The chest strap 124 includes accelerometer 134 to record movement of the
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`patient. APPLE-1009, 7:45-50, 12:35-65, 14:27-37, FIGS. 2, 3 (reproduced below);
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`APPLE-1003, ¶[63].
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`APPLE-1009, FIG. 3
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`A monitor hardware 144 receives sensor data from the sensors. APPLE-1009,
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`6:18-33. As shown in FIG. 4 below, the monitor hardware 144 includes “a real-time
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`(RT) controller 148 which coordinates the sampling of the sensor outputs, organizes the
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`data into an appropriate format and transmits it to [a] memory server (MS) controller
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`150.” APPLE-1009, 8:31-46. The monitor hardware 144 also includes clocks such as
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`“real-time (RT) clock 155, and RC instruction clocks of the CPUs 141,151.” APPLE-
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`1009, 9:65-67, FIG. 4. Rechargeable batteries 129 are used to power the controllers 148,
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`150. APPLE-1009, 9:38-46, 5:7-11, 6:15-18, FIG. 2; APPLE-1003, ¶[64].
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`APPLE-1009, FIG. 4
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`
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`The RT clock 155 runs continuously and “includes a timer which every thirteenth
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`oscillation provides a ‘wakeup’ pulse to CPU 141.” APPLE-1009, 10:1-15. The wakeup
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`pulse is used to initiate data collection sequence and synchronize each data sampling
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`event. APPLE-1009, 10:16-36. Collected data are categorized into groups (see e.g., FIG.
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`6) and time-stamped. APPLE-1009, 1:50-57, 2:24-26, 3:36-46, 5:12-18, 12:20-65,
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`13:12-20, 14:5-18, 14:48-58, 17:5-52, FIG. 7 (reproduced below). For example, data
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`samples from the accelerometer are part of Groups B and D body monitor service groups,
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`which utilize data packets that include a minute packet. APPLE-1009, 12:12-65, 14:1-18,
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`FIGS. 6, 7; APPLE-1003, ¶[65]. The minute packet includes four bytes corresponding to
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`a timestamp, two bytes corresponding to the maximum value of the accelerometer signal
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`over the last minute, and one byte corresponding to the average duty cycle of the
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`accelerometer signal over the last minute. APPLE-1009, 14:5-38. In some cases,
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`intervals between successive timestamps are calculated and stored in RAM 152. APPLE-
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`1009, 17:5-52. In some cases, the MS controller 150 can store the actual timestamp. Id.;
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`APPLE-1003, ¶[66].
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`APPLE-1009, FIG. 7
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`3.
`Combination of Allum and Raymond
`It would have been obvious to a POSITA to incorporate Raymond’s power supply
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`and RT clock into Allum’s measuring device because doing so would have merely
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`involved combining prior art elements according to known methods to yield predictable
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`results, as explained in more detail below. APPLE-1003, ¶[67].
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`Both Allum and Raymond are directed to monitoring a subject’s health and
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`movements. APPLE-1008, 1:11-21; APPLE-1009, Abstract, 1:58-67, 7:45-50, 12:35-65,
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`14:27-37. While it would have been obvious to a POSITA that Allum’s measuring
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`device would have included a power source to provide power to its components (e.g.,
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`sensors and processors), to the extent the presence and use of a power supply is disputed
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`in Allum, it would have been obvious for a POSITA to implement Raymond’s batteries
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`129 in Allum. APPLE-1003, ¶[68]. A POSITA would have done so to include a power
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`supply to Allum’s measuring device and support unobtrusive, low-power monitoring
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`operation modes in Allum. Id.; APPLE-1009, 9:38-46, 5:7-11, 6:15-18. For instance,
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`recall that Raymond’s small, light batteries 129 (“power source”) power the monitoring
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`system so that subject monitoring can be unobtrusive while performing real-time data
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`processing and support low-power operation modes. APPLE-1009, 9:38-46, 5:7-11,
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`6:15-18, FIG. 2.
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`Incorporating Raymond’s batteries in Allum would have been predictable and
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`foreseeable because electronic components need power to operate, and Allum’s
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`monitoring systems would have benefitted from low-power operation modes to provide
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`“power saving strategies [that] are a key element to allowing the physiological
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`monitor[ing].” APPLE-1009, 9:38-46. Moreover, Allum’s device is configured to
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`Attorney Docket No. 50095-00