UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`LULULEMON ATHLETICA CANADA INC.
`and LULULEMON USA INC.
`Petitioner,
`
`v.
`
`NIKE, INC.,
`Patent Owner.
`
`Patent No. 8,620,413
`
`_______________
`Inter Partes Review No. IPR2023-00438
`
`____________________________________________________________
`REPLY DECLARATION OF DR. KEVIN LYNCH, PH.D.
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 1
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`
`
`
` 
`
` 
`
`I. 
`II. 
`
`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1 
`CLAIM CONSTRUCTION ............................................................................ 2 
`  A POSITA Would Have Understood “wherein an exertion level
`is based on a level of physical fitness of a user” According to
`Its Ordinary and Customary Meaning ................................................... 3 
`III.  AMANO .......................................................................................................... 7 
`  Amano Teaches “prompt[ing] a user to exercise at a plurality of
`successive exertion levels, wherein an exertion level is based on
`a level of physical fitness of a user” (Limitation [1C]) ......................... 7 
`Amano Teaches “determin[ing] a plurality of heart rate zones
`based on first heart rate measurements received from a sensor
`while the user exercises at the plurality of successive exertion
`levels” (Limitation [1D]) ..................................................................... 14 
`Amano’s First, Fourth, and Eighth Embodiments Are Not
`Distinct Embodiments ......................................................................... 15 
`  Amano Teaches Dependent Claims 5 and 7 ....................................... 16 
`IV.  AMANO AND GORMAN/FLACH ............................................................. 16 
`The Dependent Claims Encompass Both Wired and Wireless
` 
`Communications .................................................................................. 16 
`A POSITA Would Have Combined Amano and Gorman/Flach ........ 17 
` 
`V.  MATSUMOTO .............................................................................................. 20 
`  Matsumoto Teaches “prompt[ing] a user to exercise at a
`plurality of successive exertion levels, wherein an exertion level
`is based on a level of physical fitness of a user” (Limitation
`[1C]) .................................................................................................... 20 
`  Matsumoto Teaches “a plurality of heart rate zones based on
`first heart rate measurements received from a sensor while the
`user exercises at the plurality of successive exertion levels”
`(Limitation [1D]) ................................................................................. 21 
`1.  Matsumoto teaches a plurality of heart rate zones .................... 21 
`2.  Matsumoto teaches heart rate zones and heart rate
`measurements in the same embodiment ................................... 22 
`
`i
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 2
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`Matsumoto Teaches “determin[ing] whether the second heart
`rate measurements are within the particular heart rate zone”
`(Limitation [1G]) ................................................................................. 25
`Matsumoto Teaches Dependent Claims 5 and 7 ................................. 26
`VI. MATSUMOTO AND GORMAN/FLACH ................................................... 26
`VII. LUBELL AND CECI .................................................................................... 28
`A POSITA Would Have Combined Lubell and Ceci ......................... 28
`1.
`Lubell does not teach away from using a self-regulated
`protocol ..................................................................................... 30
`A POSITA would have combined Lubell and Ceci with a
`reasonable expectation of success ............................................. 31
`Lubell and Ceci Teach “determin[ing] a plurality of heart rate
`zones based on first heart rate measurements received from a
`sensor while the user exercises at the plurality of successive
`exertion levels” (Limitation [1D]) ....................................................... 32
`VIII. LUBELL-CECI AND GORMAN/FLACH ................................................... 33
`
`2.
`
`ii
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 3
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`I, Kevin Lynch, make this reply declaration in connection with the proceeding
`
`identified above.
`
`I.
`
`INTRODUCTION
`
`1.
`
`I have been retained by counsel for lululemon athletica canada inc. and
`
`lululemon usa inc. (collectively, “lululemon” or “Petitioner”) as a technical expert
`
`in connection with the proceeding identified above. I submit this reply declaration
`
`in support of lululemon’s Reply to Nike’s Patent Owner Response in the Inter Partes
`
`Review of U.S. Patent No. 8,620,413 (“the ’413 patent”) (EX1001). I described my
`
`qualifications in detail in my opening declaration dated January 4, 2023, which I
`
`understand is Exhibit 1009 to this proceeding. (January 4, 2023, Lynch Decl.
`
`(EX1009.)
`
`2.
`
`I am being compensated at my standard consulting rate. I am also being
`
`reimbursed for expenses that I incur during my work. My compensation does not
`
`depend on the results of my study and analysis, the substance of my opinions, or the
`
`outcome of any proceeding involving the Challenged Claims. I have no personal or
`
`financial interest in the outcome of this matter or in any litigation involving the ’413
`
`patent.
`
`3.
`
`I have personal knowledge of the facts and opinions set forth in this
`
`declaration and believe them to be true. If called upon to do so, I would testify
`
` 1
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 4
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`competently thereto. I have been warned that willfully false statements (and the like)
`
`are punishable by fine or imprisonment or both.
`
`4.
`
`Although I am not a lawyer and will not provide any legal opinions, I
`
`have been advised to apply certain legal standards in forming my opinions. I set forth
`
`my understanding of those legal standards in my opening declaration. (EX1009,
`
`¶¶14-19, 41-43.)
`
`5.
`
`I understand that Nike and/or Dr. Bergeron have argued that the prior
`
`art does not teach certain limitations of the Challenged Claims of the ’413 patent,
`
`including under their proposed constructions of “wherein an exertion level is based
`
`on a level of physical fitness of a user.” (EX1001, 18:11-12 (Claim 1, in part).) I
`
`offer the following opinions in response.
`
`II. CLAIM CONSTRUCTION
`
`6.
`
`I understand that Nike proposes construing “wherein an exertion level
`
`is based on a level of physical fitness of a user” as “an exertion level that takes into
`
`account an individual user’s particular physical fitness condition, as assessed by
`
`fitness condition criteria such as cardiorespiratory endurance.” (POR, 19-20.) I
`
`understand that Nike’s expert, Dr. Bergeron, proposes the same construction for this
`
`term. (EX2008, ¶27.) I disagree with their construction for the reasons set forth
`
`below.
`
` 2
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 5
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
` A POSITA Would Have Understood “wherein an exertion level is
`based on a level of physical fitness of a user” According to Its
`Ordinary and Customary Meaning
`
`7.
`
`A POSITA would have understood that the ordinary and customary
`
`meaning of “wherein an exertion level is based on a level of physical fitness of a
`
`user” is “wherein an exertion level is adaptive to a user’s physical fitness.” This
`
`construction is supported by both intrinsic evidence, particularly the prosecution
`
`history (EX1014, 8), and extrinsic evidence from the perspective of a POSITA.
`
`8. With respect to the intrinsic evidence, the ’413 specification
`
`exemplarily describes setting an exertion level based on cardiorespiratory
`
`endurance, measured by a user’s physical attributes, such as the user’s heart rate or
`
`breathing. As the specification describes, “an easy level of [exertion] is one that only
`
`slightly elevates the user’s heart rate. This level of exercise should not feel
`
`challenging, but should instead feel as if the user is performing a warm-up routine,
`
`so that the user feels at ease. The user should be able to maintain this workout
`
`intensity for approximately 30 minutes to one hour with his or her breathing only
`
`slightly greater than when the user began exercising.” (EX1001, 15:54-61.) The
`
`specification also provides similar descriptions for a “medium level of exertion” at
`
`16:18-23 and a “hard level of exertion” at 16:48-55. (Id., 16:18-23, 16:48-55.)
`
`9.
`
`In terms of the prosecution history, the Examiner rejected the claims
`
`over Lubell. The Applicants
`
`then argued
`
`that Lubell’s
`
`test protocol
`
`is
`
` 3
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 6
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`“predetermined” and not “adaptive to the physical fitness of a user,” and this
`
`distinction was reflected by amending the claims with the disputed limitation.
`
`(EX1014, 8; EX2012 (Lynch Sept. 27, 2023 deposition), 113:20-22 (“So I
`
`understand the addition of this language to try to address making the test protocol
`
`adaptive to the physical fitness of a user.”).) Lubell’s predetermined protocol is: “the
`
`subject, wearing the device, is paced to run at speeds of approximately four miles
`
`per hour for the first three minutes, and then at six miles per hour, eight miles per
`
`hour, ten miles per hour, twelve miles per hour, and fourteen miles per hour for the
`
`successive three minute intervals.” (Ex.1004, 3:59-63.) That is, because every user
`
`runs at the same speed for the same amount of time (four miles per hour for the first
`
`three minutes, six miles per hour for the next three minutes, eight miles per hour for
`
`the next three minutes, etc.), Lubell’s protocol is “not adaptive to the physical fitness
`
`of a user.” (EX1014, 8.)
`
`10. With respect to extrinsic evidence, as an example, Nike’s own
`
`evidence, Caspersen and the Surgeon General Report, describes “physical fitness.”
`
`Caspersen describes the five “components” of health-related physical fitness to be
`
`cardiorespiratory endurance, muscular endurance, muscular strength, body
`
`composition, and flexibility. (EX2009, 128.) It provides that “physical fitness” is “a
`
`set of attributes that people have or achieve that relates to the ability to perform
`
`physical activity,” and
`
`the Surgeon General Report adopted Caspersen’s
`
` 4
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 7
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`understanding. (Id.; EX2010, 21.) These attributes “can be measured with specific
`
`tests.” (EX2009, 126.) Measurable attributes of physical fitness include a user’s
`
`maximum oxygen uptake, body mass index, and others. (Id., 129.) As I testified in
`
`my deposition on September 27, 2023 in this proceeding, a level of physical fitness
`
`“is obviously a very broad term that relates to a person’s ability to perform physical
`
`exercise and relates to characteristics of that person, like their body mass index or
`
`their weight or their age or their stride length or many other aspects.” (EX2012
`
`(Lynch Sept. 27, 2023 deposition), 114:2-7.) I further note that Dr. Bergeron agreed
`
`with Caspersen’s and the Surgeon General Report’s understanding of “physical
`
`fitness” as a “set of attributes that people have or achieve that relates to the ability
`
`to perform physical activity.” (EX2008, ¶24; EX1017 (Bergeron Dec. 21, 2023
`
`deposition), 46:17-47:5.)
`
`11. Caspersen also describes physical fitness as levels: “[n]o person has no
`
`fitness—all are active or fit to greater or lesser degrees.” (EX2009, 130.) Thus, a
`
`construction of “wherein an exertion level is based on a level of physical fitness of
`
`a user” as “wherein an exertion level is adaptive to a user’s physical fitness” would
`
`reflect the user’s level of physical fitness.
`
`12. Other extrinsic evidence supports my construction. For example,
`
`Matsumoto designed “an exercise program that is suited to the individual user’s
`
`physical fitness.” (EX1003, 4:33-35.) In doing so, Matsumoto uses the user’s sex,
`
` 5
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 8
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`age, and weight as measurable physical attributes to design the exercise program
`
`suited to the individual user’s physical fitness. (Id., 3:4-18.) A POSITA would
`
`understand weight to be a measurable physical attribute related to a level of physical
`
`fitness of a user. (EX2010, 35 (“body composition has been estimated by measuring
`
`body height and weight and calculating body mass index (weight/height2)”).) In
`
`addition, the Surgeon General Report notes that cardiorespiratory fitness is “largely
`
`determined by habitual activity, but other factors influence cardiorespiratory fitness,
`
`including age, sex, heredity, and medical status.” (Id., 33 (emphasis added).)
`
`13. Dr. Bergeron argues that physical characteristics such as height, weight,
`
`sex, and stride length do not by themselves indicate a person’s level of physical
`
`fitness. (EX2008, ¶29.) To support his argument, Dr. Bergeron relies on the
`
`specification’s passage at 15:7-10, which states that heart rate monitors “typically
`
`require[] that the athlete employ a mathematical formula incorporating the athlete’s
`
`sitting heart rate, the athlete’s age, and a general estimate of the athlete’s fitness
`
`condition.” (EX1001, 15:7-10.) However, this passage does not suggest that these
`
`physical attributes, including sitting heart rate and the athlete’s age, cannot be
`
`indicators of a user’s physical fitness. Even Dr. Bergeron agreed that sitting heart
`
`rate is an indicator of cardiorespiratory endurance, which I understand reflects a
`
`user’s physical fitness according to Nike. (EX1017 (Bergeron Dec. 21, 2023
`
`deposition), 28:3-9; POR, 25.)
`
` 6
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 9
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`III. AMANO
` Amano Teaches “prompt[ing] a user to exercise at a plurality of
`successive exertion levels, wherein an exertion level is based on a
`level of physical fitness of a user” (Limitation [1C])
`
`14. Amano consistently describes “exercise intensity” in units of power,
`
`which can be expressed in the SI units of Watts or the currently less standard unit of
`
`kpm/min (used in the Astrand-Ryhming nomogram of EX1002, Fig. 3), where 1
`
`kpm/min = 0.1653 W. (EX1002, 8:17-20.) In running, for example, exercise
`
`intensity is obtained as the product of the user’s weight by their speed. Speed is
`
`obtained as the product of the user’s pitch and stride length. (Id., 7:30-37, 12:15-21.)
`
`15. Below I provide a flowchart that depicts an overview of Amano’s
`
`operation as described in Section “1.2 Operation of the embodiment.” (Id.,
`
`9:58-14:3). In steps S1-S7, Amano determines, updates, and/or stores the sex, body
`
`weight, and stride (stride length) of the user. (Id., 10:1-54.) In step S8, Amano
`
`detects whether the user has started running, and if so, in step S9, detects the initial
`
`pitch of the user running. (Id., 10:55-65.) In step S10, an alarm generates an alarm
`
`sound corresponding to the detected pitch. (Id., 10:65-11:4.) Then, in step S11, two
`
`processes, or interrupt service routines, begin to execute in parallel: (1) “calculation
`
`display processing” and (2) “exercise intensity increase” notifying means. (Id., 11:5-
`
`13.) The “calculation display processing” process (figure below) calculates an
`
`exercise intensity-beat pair every 30 seconds to obtain least three exercise intensity-
`
` 7
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 10
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`beat rate pairs forming a straight line relationship, as described at 11:63-13:26. (Id.,
`
`11:63-13:26, Fig. 4.) The “exercise intensity increase notifying means” prompts
`
`the user to increase exercise intensity every 120 seconds and is described at 13:27-
`
`14:3. (Id., 13:27-14:3.)
`
`Overview of Amano’s Operation
`
`Steps S1‐S7 (Ex. 1002, 10:1‐54, Fig. 6)
`determine, update, and/or store the sex, 
`body weight, and stride of the user
`
`Steps S8, S9 (Ex. 1002, 10:55‐65, Fig. 6)
`detect whether user has started 
`running, and if so, detect initial pitch
`
`Step S10 (Ex. 1002, 10:65‐11:4, Fig. 6)
`synchronize alarm to initial pitch 
`
`Step S11 (Ex. 1002, 11:5‐13, Fig. 6)
`execute in parallel
`
`execute “calculation 
`display processing” every 
`30 seconds
`(Ex. 1002, Fig. 7, 11:63‐
`13:26)
`
`execute “exercise 
`intensity increase 
`notifying means” every 
`120 seconds (Ex. 1002, 
`Fig. 8, 13:27‐14:3)
`
`
`
` 8
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 11
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`16. The steps of Amano’s “calculation display processing” are:
`
`
`
`Step Sa1
`Step Sa2
`
`Step Sa3
`
`Step Sa4
`Step Sa5
`
`Step Sa6
`
`Steps Sa7-Sa9
`
`determine the user’s pulse rate (beat rate) (id., 12:9-11)
`detect the running pitch of the user (id., 12:12-14) (same as step
`S9)
`calculate exercise intensity as the product of the pitch (detected
`in step Sa2), stride length, and body weight (id., 12:15-20)
`store exercise intensity-beat rate pair in memory (id., 12:21-23)
`if there are fewer than three exercise intensity-beat rate pairs,
`exit the calculation display processing until the next 30 second
`increment, otherwise, continue (id., 12:24-38)
`if the three or more exercise intensity-beat rate pairs do not form
`a straight line relationship (id., Fig. 4), tell the user to stop
`exercising and stop processing the interrupts (steps Sa10, Sa11)
`(id., 13:1-12), concluding the VO2max/wt estimation process;
`otherwise, continue
`estimate and display the maximum oxygen uptake quantity
`(VO2max/wt) from the most recent exercise intensity-beat rate
`pair and exit the calculation display processing until the next 30
`second increment (id., 12:39-67)
`
`These steps are repeated every 30 seconds and are executed to calculate and display
`
`maximum oxygen uptake quantity VO2max/wt. (Id., 13:13-26.)
`
`17. The steps of Amano’s “exercise intensity increase notifying means”
`
`are:
`
`Step Sb1
`
`Step Sb2
`
`detect the pitch of the user running “calculating display
`processing” (same as step Sa2 and step S9) (id., 13:40-43)
`determine the pitch at which there is a 10% increase over the pitch
`detected in step Sb1 and generate a corresponding alarm (id.,
`13:43-51, 14:43-57)
`
`These steps prompt the user to increase exercise intensity to generate three or more
`
`exercise intensity-beat rate pairs and are repeated every 120 seconds. (Id., 6:59-66,
`
`12:24-47.)
`
` 9
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 12
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`18. Amano describes an example of the system in operation in “1.3 Specific
`
`operation.” (Id., 14:4-16:14.) In this example, Amano describes that the user first
`
`runs at a constant pitch for 120 seconds, and the calculation display processing
`
`executes four times during this time. VO2max/wt is not yet displayed, as the exercise
`
`intensity (product of the user’s weight and pitch) is constant during this 120 second
`
`period, so only one exercise intensity-beat rate pair is obtained. (Id., 14:38-51.) After
`
`120 seconds, the exercise intensity increase notifying means sounds an alarm to
`
`increase running pitch (and therefore exercise intensity, since exercise intensity is
`
`the product of pitch, stride, and weight) by 10%. Calculation display processing is
`
`again carried out four times, and again VO2max/wt is not yet displayed, as the user
`
`has now only exercised at two exercise intensities. (Id., 14:52-65). After 120
`
`seconds, exercise intensity increase notifying means again prompts the user to a 10%
`
`increase in exercise intensity. (Id., 14:66-15:5.) When calculation display processing
`
`is carried out 30 seconds later, there are now three exercise intensity-beat rate pairs,
`
`and VO2max/wt is displayed. (Id., 15:6-18.) An example timeline is illustrated in the
`
`figure below, where “CDP” refers to “calculation display processing” and “EIINM”
`
`refers to “exercise intensity increase notifying means.” The estimation procedure
`
`continues until an exercise intensity-beat rate pair is obtained that does not fit a
`
`straight line with the other pairs.
`
` 10
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 13
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`
`
`19. Amano’s estimation protocol can function properly even if the user
`
`decides not to increase running pitch by 10% when prompted. The only requirement
`
`for the estimation of VO2max/wt is that at least three exercise intensity-beat rate pairs,
`
`in a straight line relationship, are obtained. (Id., 13:56-67, Fig. 4.) Additionally, Dr.
`
`Bergeron states that the passage at 13:56-67 describes the “exercise intensity” as not
`
`obtained during the steps where Amano is notifying the test subject to increase
`
`exercise by 10%. (Ex. 2008, ¶67.) However, this passage merely explains which of
`
`the two processes (“calculation display processing” or “exercise intensity increase
`
`notifying processing” (also referred to as “exercise intensity increase notifying
`
`means”)) obtains the exercise intensity. The passage at 13:56-67 does not suggest
`
`that “exercise intensity” has two different meanings.
`
`20. Amano’s teachings describe “prompt[ing] a user to exercise at a
`
`plurality of successive exertion levels, wherein an exertion level is based on a level
`
`of physical fitness of a user” (limitation [1C]), under either Nike’s or my
`
`construction.
`
` 11
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 14
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`21. As described above, the exercise intensity level during each exercise
`
`period is calculated as the product of pitch, stride length (associated with height),
`
`and weight, (id., 7:30-37, 12:15-21), and at least weight is an attribute “that the user
`
`has or achieves that relates to the ability to perform physical work.” (EX2009, 129.)
`
`Amano’s 10% pitch increase (prompted every 120 seconds) corresponds to a 10%
`
`exercise intensity increase, because exercise intensity is the product of pitch, stride
`
`length, and weight. (EX1002, 7:30-37, 12:15-21.) Just as each exercise intensity
`
`level is based on a level of physical fitness of a user, each increase, which is 10% of
`
`the previous exercise intensity level, is also based on a level of physical fitness of a
`
`user. (Id., 13:44-50, 14:43-58.)
`
`22. Dr. Bergeron agrees that Amano discloses calculating exercise
`
`intensities based on the weight and stride length of the individual user. (EX2001,
`
`¶111; EX2008, ¶¶67-68.) But Dr. Bergeron argues that Amano does not teach
`
`limitation [1C] based on Nike’s construction of “wherein an exertion level is based
`
`on a level of physical fitness of a user.” (EX2008, ¶64.) Dr. Bergeron states that
`
`Amano’s protocol for estimating VO2max is without regard to an individual user’s
`
`physical fitness condition. (Id., ¶65.)
`
`23. To support his position, Dr. Bergeron offers an incorrect theory that
`
`Amano provides two distinct usages of the term “exercise intensity.” (EX2008,
`
`¶¶40-42, 67-69.) Dr. Bergeron alleges that Amano’s “column 12” describes
`
` 12
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 15
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`“exercise intensity” in the context of power (in Watts [W]), but that the 10% exercise
`
`intensity increase of the exercise intensity increase notifying means is different,
`
`because it refers to 10% increases in pitch. (Id., ¶¶67-69.) This argument is flawed.
`
`Since Amano consistently defines exercise intensity as pitch times stride length
`
`times weight, a 10% increase in pitch equates to a 10% increase in exercise intensity.
`
`Prompting the user for a 10% increase in pitch is the same as asking for a 10%
`
`increase in exercise intensity. There is no ambiguity in the meaning of exercise
`
`intensity in Amano.
`
`24. Dr. Bergeron argues that Amano’s 10% pitch increases are the same for
`
`all users. (EX2008, ¶¶66, 67, 69.) While the percentage is 10% for all users, the
`
`increase in pitch (expressed in steps per minute, for example) is not, because the
`
`initial pitch depends on the user. (EX1002, 12:12-14.) Amano detects the initial
`
`pitch; the first 10% increase is an increase over the detected initial pitch; and then
`
`the second 10% increase is an increase over the pitch from the first 10% increase.
`
`(Id., 12:36-41, 13:44-55, 14:43-65.) The initial pitch is proportional to the initial
`
`exercise intensity, the initial exercise intensity is based on a level of physical fitness
`
`of a user, and as a result, the first and second 10% increases (and corresponding
`
`prompts) are also based on a level of physical fitness of a user. That is, Amano “takes
`
`into account an individual user’s particular physical fitness condition” (part of
`
`Nike’s construction).
`
` 13
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 16
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
` Amano Teaches “determin[ing] a plurality of heart rate zones
`based on first heart rate measurements received from a sensor
`while the user exercises at the plurality of successive exertion
`levels” (Limitation [1D])
`
`25. Amano determines its VO2max using “three or more exercise intensity
`
`beat rate pairs,” which include first heart rate measurements received from a sensor
`
`while the user exercises at a plurality of successive exertion levels. (EX1002, 12:36-
`
`37.) Amano uses the estimated VO2max to determine upper and lower limits UL and
`
`LL for heart rate (pulse rate). (Id., 19:40-43, 20:19-28.) Amano determines a
`
`plurality of heart rate zones based on upper and lower heart rate limits UL and LL,
`
`as shown in Figure 27 (annotated with red, green, and yellow colors, below). (Id.,
`
`20:19-28; Decision on Institution (DI) (Paper 11), 28.)
`
`
`
` 14
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 17
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`26.
`
` Dr. Bergeron argues that because Amano uses a standardized pulse rate
`
`table based on VO2max, the upper and lower heart rate limits UL and LL are “without
`
`regard to any heart rate measurements taken while that user exercised.” (EX2008,
`
`¶71.) I disagree. Amano determines the heart rate zones based on VO2max estimated
`
`from the “calculation display processing” process (described above), which is based
`
`on heart rate measurements received from a sensor. (EX1002, 19:49-51.) Therefore,
`
`Amano teaches “determin[ing] a plurality of heart rate zones based on first heart rate
`
`measurements received from a sensor,” regardless of whether a table and user input
`
`“based on” VO2max are consulted.
`
` Amano’s First, Fourth, and Eighth Embodiments Are Not Distinct
`Embodiments
`
`27. Dr. Bergeron argues
`
`that Amano’s first, fourth, and eighth
`
`embodiments are multiple, distinct embodiments. (EX2008, ¶¶70, 72.) Dr. Bergeron
`
`does not explain why these embodiments are distinct. Regardless, Amano explicitly
`
`connects the teachings of “Embodiments” 1, 4, and 8 of Amano. Amano explicitly
`
`connects its first and fourth embodiments, stating for the fourth embodiment that,
`
`“[t]he user estimates his own VO2max in advance using the methods explained in the
`
`first . . . embodiment[].” (EX1002, 19:49-50 (emphasis added); EX2012 (Lynch
`
`Sept. 27, 2023 deposition), 166:5-17.) Amano also explicitly connects its first and
`
`eighth embodiments, stating for the eighth embodiment that, “[t]he user[’]s VO2max
`
`was obtained in the preceding first . . . embodiment[].” (EX1002, 38:23-25
`
` 15
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 18
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`(emphasis added).) I note that it is irrelevant whether VO2max “could have been
`
`calculated using [other] methods,” as Dr. Bergeron argues. (EX2008, ¶71.) Amano’s
`
`first, fourth, and eighth embodiments are not distinct.
`
` Amano Teaches Dependent Claims 5 and 7
`
`28. Dr. Bergeron does not make separate arguments for claims 5 and 7.
`
`(EX2008, ¶73.) Instead, Dr. Bergeron concludes that Amano does not teach
`
`dependent claims 5 and 7 solely on the basis that it does not disclose claim 1. (Id.)
`
`Because Dr. Bergeron’s arguments for claim 1 are incorrect, his arguments for
`
`dependent claims 5 and 7 also incorrect.
`
`IV. AMANO AND GORMAN/FLACH
` The Dependent Claims Encompass Both Wired and Wireless
`Communications
`
`29. The challenged dependent claims of the ’413 patent encompass both
`
`wired and wireless communications. In other words, nothing in the language of the
`
`challenged dependent claims or the specification suggest that the dependent claims
`
`are limited to wireless. Claims 2, 13, and 18 recite limitations directed to encoded
`
`messages; claim 3 is directed to decoding; claims 3, 4, 13, and 18 relate to
`
`identification data of the sensor; claim 9 is directed to the time at which a message
`
`is received; and claims 14 and 19 are directed to a time channel for communicating
`
`with the sensor. (EX1001, 18:24-31, 18:46-49, 19:9-16, 20:17-21.) The specification
`
`discusses wired sensor interfaces at 5:30-32. And 7:16-36 describes encoding
`
` 16
`
`lululemon athletica canada inc. and lululemon usa inc. Exhibit 1018 Page 19
`lululemon athletica canada inc. and lululemon usa inc. v. Nike, Inc. IPR2023-00438
`
`

`

`IPR2023-00438
`
`messages, which a POSITA would understand applies to wired or wireless
`
`communications. (EX2012 (Lynch Sept. 27, 2023 deposition), 213:21-24, 214:3-6;
`
`251:16-252:3; EX1017 (Bergeron Dec. 21, 2023 deposition), 92:23-93:19.) Other
`
`aspects, such as identification data in messages, are applied to both wired and
`
`wireless communications. (EX2012 (Lynch Sept. 27, 2023 deposition), 221:18-
`
`222:8, 223:5-16, 226:19-227:6, 241:5-16.)
`
`30.
`
`In short, a POSITA reading the ’413 claims in 2003 would have
`
`understood that the concepts of (1) encoding and decoding messages, (2) including
`
`sensor identification data in messages (e.g., in the message identification portions of
`
`Controller Area Network (CAN) bus messages), and (3) providing time channels for
`
`message senders and recognizing message senders based on the time of receipt (e.g.,
`
`time-division multiple access (TDMA)) were known and used in both wired and
`
`wireless systems.
`
` A POSITA Would Have Combined Amano and Gorman/Flach
`
`31. Dr. Bergeron argues that there are no teachings or suggestions in
`
`Amano that its wired device suffers from the problems that Gorman and Flach claim
`
`to solve for their wireless features. (EX2008, ¶¶74, 80, 81.) Gorman teaches
`
`transmitters including sender identification data in their encoded messages, and
`
`Flach teaches a TDMA method assigning different communication timeslots to
`
`different transmitters. Dr. Bergeron specifically argues that with wired dev