IPR2023-00438
`U.S. Patent No. 8,620,413
`
`lululemon athletica canada inc. et al.
`v.
`Nike, Inc.
`April 16, 2024
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`1
`
`
`U.S. Patent No. 8,620,413
`
`lululemon athletica canada inc. et al.
`v.
`Nike, Inc.
`April 16, 2024
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`1
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`
`
`Roadmap
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`1.
`
`’413 Patent
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`2. Claim Construction
`
`3. Amano
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`4. Matsumoto
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`5. Lubell and Ceci
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`6. Gorman/Flach
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`2
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`’413 Patent
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`3
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`
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`’413 Patent
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`’413 patent (Ex. 1001), 15:18-20
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`’413 patent (Ex. 1001), 15:24-26
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`POR (Paper 22), 3
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`4
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`’413 Patent, Claim 1
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`5
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`’413 Patent, Claim 1
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`[1C]
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`[1D]
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`6
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`
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`Claim Construction:
`
`“wherein an exertion level is based
`on a level of physical fitness of a user”
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`7
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`
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`Proposed Constructions
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`Petitioner’s Construction
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`Patent Owner’s Construction
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`“wherein an exertion level is
`adaptive to a user’s physical fitness”
`
`“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”
`
`Reply (Paper 26), 1
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`POR (Paper 22), 24
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`8
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`
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`Specification
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`’413 Patent
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`’413 patent (Ex. 1001), 15:54-56
`
`Patent Owner’s Expert
`Q. And would sitting heart rate be an
`cardiorespiratory endurance?
`A. Heart rate -- resting heart -- if you mean by resting heart
`rate could be an indicator of -- it could be an indicator of
`-- of cardiovascular endurance. It could be.
`Bergeron Depo Trans. (Ex. 1017), 28:3-9
`
`indicator of
`
`Petition (Paper 2), 4; Reply (Paper 26), 1
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`9
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`Prosecution History
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`Prosecution History (Ex. 1014), 8
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`Petition (Paper 2), 42
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`10
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`
`
`Caspersen
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`Caspersen
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`Caspersen (Ex. 2009), 130
`
`Patent Owner’s Expert
`Q. Okay. Do you agree with Caspersen,
`Exhibit 2009, that physical fitness is a
`matter of degree?
`
`A. Degree.
`(Witness reviews document.)
`I'm not sure how he's using "degree"
`here, but... (Witness reviews
`document.) If he's saying -- if he's
`saying going from low to high is a -- is
`a matter of degree, then yes.
`Bergeron Depo Trans. (Ex. 1017), 49:16-24
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`Reply (Paper 26), 1
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`11
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`
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`Caspersen
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`Caspersen
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`Caspersen (Ex. 2009), 129
`
`Patent Owner’s Expert
`Q. Okay. Now, let me direct you to the term
`"Physical fitness" in the glossary of terms.
`A. Okay.
`
`following
`the
`glossary provides
`Q. The
`definition: (As read): "A set of attributes that
`people have or achieve that relates to the
`ability to perform physical activity." Do you
`see that definition?
`I do, yes.
`
`A.
`
`Q. And do you agree with that definition of
`physical fitness as set forth in Exhibit 2009?
`A. Seems reasonable.
`Bergeron Depo Trans. (Ex. 1017), 46:17-47:5
`
`Reply (Paper 26), 2
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`12
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`
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`Level Of Physical Fitness
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`Petitioner’s Expert
`Q. Right. So what I'm getting at is I'm trying to understand
`if, in your opinion, there's any difference between a level
`of physical fitness of a user and the characteristics that
`you were referring to earlier, like weight, age, stride
`length?
`
`A. So a level of physical fitness, as I said before, is a very
`broad term and there's no way to provide a definitive
`calculation of somebody's level of physical fitness.
`So what do we do? We look to indicators or aspects of
`that physical fitness, and there are many, many.
`Lynch Depo Trans. (Ex. 2012), 139:7-18
`
`
`
`Reply (Paper 26), 4
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`13
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`
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`Level Of Physical Fitness
`
`Q.
`
`Patent Owner’s Expert
`. . . Do you think that the plain and ordinary meaning of
`“wherein an exertion level is based on a level of physical
`fitness of a user” could also mean that the “exertion
`level takes into account an individual user’s fitness
`condition criteria such as that user’s cardiorespiratory
`endurance”?
`
`A. I think that’s basically what it says, yes.
`Bergeron Depo Trans. (Ex. 2017), 77:2-10
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`Reply (Paper 26), 5
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`14
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`
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`Caspersen
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`Caspersen
`
`Patent Owner’s Expert
`Q. And would sitting heart rate be an indicator
`of cardiorespiratory endurance?
`
`A. Heart rate -- resting heart -- if you mean by
`resting heart rate could be an indicator of -- it
`could be an indicator of -- of cardiovascular
`endurance. It could be.
`Bergeron Depo Trans. (Ex. 1017), 28:3-9
`
`Caspersen (Ex. 2009), 128
`
`Reply (Paper 26), 2; Lynch Reply Dec. (Ex. 1018), ¶10
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`15
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`
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`Caspersen
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`Caspersen
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`Patent Owner’s Expert
`
`Q.
`
` Do you agree that cardiorespiratory
`endurance, muscular endurance,
`muscular strength, body
`composition, and flexibility are
`components of physical fitness?
`
`A. Yes.
`
`Caspersen (Ex. 2009), 128
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`Bergeron Depo Trans. (Ex. 1017), 52:9-13
`
`Reply (Paper 26), 2; Lynch Reply Dec. (Ex. 1018), ¶10
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`16
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`Components Of Physical Fitness
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`Reply (Paper 26), 2
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`17
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`Caspersen (Ex. 2009), 129
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`Patent Owner’s Rewrite
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`Reply (Paper 26), 2
`
`Patent Owner’s Expert
`Q. Is the term “based on” different than the term “that takes into account,”
`in your view?
`A. (Witness reviews document.)
`Well, I think the “takes into account” is less inclusive. “Based on” is
`more inclusive.
`
`Bergeron Depo Trans. (Ex. 1017), 71:3-7
`
`Reply (Paper 26), 2
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`18
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`
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`Patent Owner’s Rewrite
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`Patent Owner’s Expert
`Q. So you think that the plain and ordinary meaning of
`"wherein exertion level is based on a level of physical
`fitness of a user" could also mean "an exertion level that
`takes
`into account an
`individual user's particular
`cardiorespiratory endurance"?
`
`A. For example, yes.
`
`Bergeron Depo Trans. (Ex. 1017), 76:10-17
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`Reply (Paper 26), 3-4
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`19
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`Instituted Grounds
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`20
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`Instituted Grounds
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`21
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`Petition (Paper 2), 19
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`Amano
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`22
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`Amano
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`Amano (Ex. 1002), 2:64-67
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`Amano (Ex. 1002), Fig. 27
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`Petition (Paper 2), 9, 24
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`23
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`Amano
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`24
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`Reply
`(Paper 26),
`6
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`
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`Amano
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`Reply (Paper 26), 6-7
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`25
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`Amano
`(Ex. 1002),
`Fig. 6
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`
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`Amano’s Calculation Display Processing
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`Reply (Paper 26), 7
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`26
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`Amano
`(Ex. 1002),
`Fig. 7
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`
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`Amano’s Calculation Display Processing (Fig. 7)
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`Petition (Paper 2), 23; Reply (Paper 26), 5
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`27
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`Amano
`(Ex. 1002),
`11:63-12:14
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`
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`Amano’s Calculation Display Processing (Fig. 7)
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`Petition (Paper 2), 9-11, 22, 27; Reply (Paper 26), 5-6
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`28
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`Amano
`(Ex. 1002),
`12:15-38
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`
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`Amano’s Calculation Display Processing (Fig. 7)
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`Reply (Paper 26), 5
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`29
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`Amano
`(Ex. 1002),
`12:39-61
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`
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`Amano’s Calculation Display Processing (Fig. 7)
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`Reply (Paper 26), 5
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`30
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`Amano
`(Ex. 1002),
`12:61-13:12
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`
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`Amano’s Calculation Display Processing (Fig. 7)
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`Reply (Paper 26), 5
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`31
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`Amano (Ex. 1002), 13:13-26
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`
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`Amano
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`Reply (Paper 26), 7
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`32
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`Amano (Ex. 1002), Fig. 8
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`
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`Amano’s Exercise Intensity Increase Notifying Means (Fig. 8)
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`Petition (Paper 2), 10; Reply (Paper 26), 6
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`33
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`Amano
`(Ex. 1002),
`13:27-51
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`
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`Amano’s Exercise Intensity Increase Notifying Means (Fig. 8)
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`Petition (Paper 2), 22; Reply (Paper 26), 6
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`34
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`Amano
`(Ex. 1002),
`13:52-14:3
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`
`
`Limitation [1C]
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`35
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`
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`’413 Patent, Claim 1
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`[1C]
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`36
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`Amano Teaches Limitation [1C]
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`Amano
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`Amano (Ex. 1002), 12:15-20
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`Decision on Institution
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`Petition (Paper 2), 22; Reply (Paper 26), 4
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`37
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`DI (Paper 11), 26
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`Amano’s 10% Pitch Increases Vary For Each User
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`Reply (Paper 26), 6-8
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`38
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`Amano (Ex. 1002), 13:40-45
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`
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`Amano’s 10% Pitch Increases Vary For Each User
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`Decision on Institution
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`39
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`DI (Paper 11), 26
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`
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`Amano’s 10% Increases
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`Patent Owner’s Expert
`Q. Okay. So looking at the equation that
`you wrote on Exhibit 1016, if stride
`and weight are constant values,
`would you agree that exercise
`intensity is proportional to pitch?
`
`A. Well, if stride and weight are held
`constant and pitch is increased, which
`is the number of steps per minute or
`per time, then intensity would also
`increase in proportion to that
`according to this equation, yes.
`
`Bergeron Depo Trans. (Ex. 1017), 128:2-11
`
`Petitioner’s Expert
`
`Lynch Reply Dec. (Ex. 1018), ¶21
`
`Reply (Paper 26), 7-8
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`40
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`Amano’s “exercise intensity”
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`Amano
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`Amano (Ex. 1002), 13:55-60
`Decision on Institution
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`Reply (Paper 26), 7-8
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`41
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`DI (Paper 11), 26
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`
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`Amano’s “exercise intensity”
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`Calculation Display Processing
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`Amano (Ex. 1002), 13:55-60
`
`Exercise Intensity Increase
`Notifying Means
`Amano (Ex. 1002), 13:40-43
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`Amano (Ex. 1002), 12:12-14
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`Amano (Ex. 1002), 13:40-43
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`Reply (Paper 26), 7-8
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`42
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`
`
`Limitation [1D]
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`43
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`
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`’413 Patent, Claim 1
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`[1D]
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`44
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`
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`Amano’s Heart Rate Zones
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`Amano (Ex. 1002), 11:66-12:3
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`Amano (Ex. 1002), 20:14-28
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`Petition (Paper 2), 10, 23; Reply (Paper 26), 9-10;
`POR (Paper 22), 36
`
`Amano (Ex. 1002), Fig. 14
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`45
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`
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`Amano’s 1st, 4th, And 8th Embodiments Are Connected
`
`∗ ∗ ∗
`
`Amano (Ex. 1002), 19:8-51
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`Amano (Ex. 1002), 38:22-25
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`Petition (Paper 2), 10, 23;
`Reply (Paper 26), 10-11; POR (Paper 22), 6, 38
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`46
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`
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`Matsumoto
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`47
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`Matsumoto
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`Matsumoto (Ex. 1003), 1:6-8
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`Matsumoto (Ex. 1002), 4:33-35
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`Petition (Paper 2), 12, 31
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`48
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`
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`Limitation [1C]
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`49
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`
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`’413 Patent, Claim 1
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`[1C]
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`50
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`
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`Matsumoto Teaches Limitation [1C]
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`Matsumoto
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`Matsumoto (Ex. 1002), 4:33-35
`Decision on Institution
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`Petition (Paper 2), 31
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`51
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`DI (Paper
`11), 32
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`
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`Limitation [1D]
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`52
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`
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`’413 Patent, Claim 1
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`[1D]
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`53
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`
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`Matsumoto’s Heart Rate Zones
`
`Patent Owner’s Expert
`Q. Okay. So would it be fair to say that, in
`your opinion, a [heart rate] zone has --
`is a range defined by a lower limit, for
`example, 65 percent, and an upper
`limit, for example, 75 percent?
`
`A. So if we’re talking zone . . . A zone
`would be some number, some
`percentage of that above -- above and
`below --
`
`-- the target.
`
`* * *
`
`Matsumoto (Ex. 1002), 7:48-51
`
`Bergeron Depo Trans. (Ex. 1017), 128:2-11 (objections omitted)
`
`Petition (Paper 2), 12; Reply (Paper 26), 8
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`54
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`
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`Matsumoto’s Pulses While Exercising
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`∗ ∗ ∗
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`Matsumoto (Ex. 1002), 6:3-6, 6:10-11
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`Matsumoto (Ex. 1002), 8:28-31
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`Petition (Paper 2), 12; POR (Paper 22), 11
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`55
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`
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`Matsumoto’s Exercise Program
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`Matsumoto (Ex. 1003), 4:33-38
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`Petition (Paper 2), 31;
`Lynch Reply Dec. (Ex. 1018), ¶40
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`Matsumoto (Ex. 1003), 4:54-58
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`56
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`
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`Immediately Apparent To A POSITA
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`Reply (Paper 26), 13-15
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`57
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`Lynch Reply Dec.
`(Ex. 1018), ¶42
`
`
`
`Heart Rate Zones
`
`Patent Owner’s Expert
`Q. . . . would you agree that in 2003 it
`would be common to use heart rate
`zones?
`
`
`
`∗ ∗ ∗
`A. . . . it’s still common today - - to, say,
`maintain your heart rate within that
`range, within that zone . . .
`Bergeron Depo Trans. (Ex. 1017), 138:8-17 (objections omitted)
`
`Reply (Paper 26), 14
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`58
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`
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`Lubell And Ceci
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`59
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`
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`Lubell
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`Lubell (Ex. 1004), 2:46-51
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`Lubell (Ex. 1004), 3:55-57
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`60
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`Lubell (Ex. 1004), Fig. 1
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`Petition (Paper 2), 13;
`Lynch Dec. (Ex. 1009), ¶¶ 46, 48
`
`
`
`Lubell
`
`Lubell (Ex. 1004), 3:59-64
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`Petition (Paper 2), 13; Reply (Paper 26), 16-17;
`Lynch Reply Dec. (Ex. 1018), ¶48
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`61
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`Lubell (Ex. 1004), 3:44-46
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`
`
`Motivation To Combine Lubell And Ceci
`
`Surgeon General Report
`
`Lubell
`
`∗ ∗ ∗
`
`Surgeon General Report (Ex. 2010), 34
`
`Lubell (Ex. 1004), 5:6-14
`
`Petition (Paper 2), 13; Reply (Paper 26), 16-17
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`62
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`
`
`Motivation To Combine Lubell And Ceci
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`Patent Owner’s Expert
`Q. Are there any other benefits, as you sit here
`today, with respect to using the submaximal
`exercise protocol for estimating VO2 max?
`
`A. It's quicker. It's less -- puts less stress on the
`user, on the persons -- participants.
`Bergeron Depo Trans. (Ex. 1017), 38:1-16
`
`Reply (Paper 26), 17
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`63
`
`
`
`Motivation To Combine Lubell And Ceci
`
`Lubell
`
`Patent Owner’s Expert
`Q. Well -- can a submaximal exercise
`protocol for estimating VO2 max be
`used for cycling?
`A. Should be able to, yes.
`
`Q. Swimming?
`A. Should be.
`
`Lubell (Ex. 1004), 5:12-14
`
`Q. Other exercises?
`A. Running, walking.
`Bergeron Depo Trans. (Ex. 1017), 38:17-24
`
`Petition (Paper 2), 13; Reply (Paper 26), 16-17
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`64
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`
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`Ceci
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`Petition (Paper 2), 14, 45; Reply (Paper 26), 19
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`65
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`Ceci (Ex. 1005), 734
`
`Ceci (Ex. 1005), 733
`
`
`
`Ceci
`
`Ceci
`
`Ceci (Ex. 1005), 733
`
`Patent Owner’s Expert
`Q. Okay. So if the RPE -- the maximum RPE is in Ceci, would you
`agree that Ceci's protocol is a submaximal test?
`∗ ∗ ∗
`A. The 15, that would correspond to an 80 percent VO2 max,
`which is below max; yes, submaximal.
`Bergeron Depo Trans. (Ex. 1017), 113:9-114:11
`
`Petition (Paper 2), 24; Reply (Paper 26), 19;
`Lynch Reply Dec. (Ex. 1018), ¶48
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`66
`
`
`
`Lubell And Ceci
`
`Lubell
`
`Lubell (Ex. 1004), Abstract
`
`Ceci
`
`Petition (Paper 2), 44; Reply (Paper 26), 19;
`POR (Paper 22), 11
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`67
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`Ceci (Ex. 1005), 737-738
`
`
`
`Motivation To Combine Lubell And Ceci
`
`Reply (Paper 26), 19
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`68
`
`Lynch Reply Dec. (Ex. 1018),¶53
`
`
`
`Limitation [1D]
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`69
`
`
`
`’413 Patent, Claim 1
`
`[1D]
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`70
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`
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`Lubell And Ceci: 60-80% VO2max
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`Ceci
`
`Lubell
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`Ceci (Ex. 1005), 733
`
`Lubell (Ex. 1004), 10:33-36
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`Petition (Paper 2), 45-46; Reply (Paper 26), 19-20
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`71
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`
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`Lubell’s % VO2max
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`Lubell
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`Lubell (Ex. 1004), 10:15
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`Lubell (Ex. 1004), 4:1-3
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`Lubell (Ex. 1004), 12:16-24
`
`Petition (Paper 2), 41, 45; Reply (Paper 26), 20-21
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`72
`
`
`
`Ceci’s Measured Heart Rates And Lubell’s % VO2max
`
`Lubell
`
`Ceci
`
`Lubell (Ex. 1004), 10:15
`
`Ceci (Ex. 1005), 733
`
`Lubell (Ex. 1004), 12:16-24
`
`Petition (Paper 2), 45; Reply (Paper 26), 20-21
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`73
`
`
`
`Lubell’s Corresponding Heart Rate Zones
`
`Lubell (Ex. 1004), 10:33-38
`
`Petition (Paper 2), 46
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`74
`
`
`
`Gorman/Flach
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`75
`
`
`
`’413 Patent, Dependent Claims
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`76
`
`
`
`Gorman
`
`Gorman (Ex. 1007), Abstract
`
`Gorman (Ex. 1007), Fig. 3A
`
`Gorman (Ex. 1007), 4:45-47
`
`Petition (Paper 2), 15-16;
`DI (Paper 11), 20; Lynch Dec. (Ex. 1009), ¶85
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`77
`
`
`
`Flach
`
`Petition (Paper 2), 17
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`78
`
`Flach (Ex. 1008), Fig. 8
`
`
`
`The Gorman/Flach Combinations
`
`Petition
`
`Amano
`
`Amano (Ex. 1002), 37:6-14
`
`Petition (Paper 2), 49
`
`Petition (Paper 2), 49, 54-55;
`Lynch Dec. (Ex. 1009),¶72
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`79
`
`
`
`Encoding, Identification Information, And Time Slots
`
`Petitioner’s Expert
`
`Reply (Paper 26), 24
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`80
`
`Lynch Reply Dec.
`(Ex. 1018),¶32
`
`
`
`Encoding And Identification Information
`
`Q.
`
`Petitioner’s Expert
` . . . In your opinion, what aspect of Amano would have
`led a POSITA to consider combining its devices with the
`teachings of Gorman?
`
`A. . . . To allow multiple devices to talk to each other, the
`idea -- first of all, encoding, it’s common to any kind of
`communication, and
`then specifically putting an
`identification message as part of your message is - - has
`been demonstrated to be a successful technique when
`multiple devices are communicating
`Lynch Depo Trans. (Ex. 2012), 241:5-16
`
`Reply (Paper 26), 22-23
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`81
`
`
`
`Encoding, Identification Information, And Time Slots
`
`Patent Owner’s Expert
`
`Q.
`
` And would it be also fair to say that
`TDMA -- time-division multiple access
`-- protocol was known as of 2003?
`∗ ∗ ∗
`
`A. That's fair, yes.
`
`Bergeron Depo Trans. (Ex. 1017), 24:1-5
`
`Q. Are there any other components required in a wired
`communication system?
`
`A.
`
`∗ ∗ ∗
` You might have -- if there's -- if there's noise on the
`line -- on the wire for some reason, you'd have to
`have some way to either filter the noise out –
`∗ ∗ ∗
`A. -- or, depending what would -- if we're talking
`computer or analog, whatever. If we're talking, say,
`computer, you'd probably have maybe a checksum
`or some way to encode the original data so that you
`could make sure it reached the destination intact
`by checking the -- the checks -- doing -- adding up
`the bits to see if the numbers were correct.
`
`Reply (Paper 26), 23
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Bergeron Depo Trans. (Ex. 1017), 92:22-93:19
`82
`
`
`
`IPR2023-00438
`
`Certificate of Service (37 C.F.R. § 42.6(e)(4))
`
`I hereby certify that the attached PETITIONER’S DEMONSTRATIVES
`
`was served as of the below date on the Patent Owner via e-mail (by agreement) to
`
`the following counsel of record:
`
`Christopher J. Renk (Reg. No. 33,761)
`Michael J. Harris (Reg. No. 62,957)
`Aaron P. Bowling (Reg. No. 67,311)
`Jonathan Swisher (pro hac vice)
`Arnold & Porter Kaye Scholer LLP
`70 West Madison Street, Suite 4200
`Chicago, IL 60602-4231
`Email: chris.renk@arnoldporter.com
`Email: michael.harris@arnoldporter.com
`Email: xNIKE-lululemonIPRs@arnoldporter.com
`
`Dated: April 12, 2024
`
`By: /s/ Jean Nguyen
`Jean Nguyen, Reg. No. 71,051
`
`
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