Trials@uspto.gov
`571-272-7822
`
`Paper 10
`Date: January 13, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNDER ARMOUR,INC.,
`Petitioner,
`
`Vv.
`
`ADIDASAG,
`Patent Owner.
`
`¢
`
`Case IPR2015-01528
`Patent 8,721,502 B2
`
`Before JENNIFER S. BISK, MICHAELJ. FITZPATRICK, and JUSTIN
`BUSCH,Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. $ 42.108
`
`
`571-272-7822
`
`Paper 10
`Date: January 13, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNDER ARMOUR,INC.,
`Petitioner,
`
`Vv.
`
`ADIDASAG,
`Patent Owner.
`
`¢
`
`Case IPR2015-01528
`Patent 8,721,502 B2
`
`Before JENNIFER S. BISK, MICHAELJ. FITZPATRICK, and JUSTIN
`BUSCH,Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. $ 42.108
`
`
`
`IPR2015-01528
`Patent 8,721,502 B2
`
`I.
`
`INTRODUCTION
`
`Petitioner, Under Armour,Inc., filed a Petition to institute an inter
`
`partes review of claims 10-16 of U.S. Patent No. 8,721,502 B2 (Ex. 1001,
`
`“the ’502 patent’). Paper 1 (“‘Pet.””). Patent Owner, adidas AG,filed a
`
`Preliminary Response pursuantto 35 U.S.C. § 313. Paper 8 (“Prelim.
`
`Resp.”).
`
`We have authority to determine whetherto institute an inter partes
`
`review. 35 U.S.C. § 314(b); 37 C.F.R. § 42.4(a). Upon consideration ofthe
`
`Petition and the Preliminary Response, and for the reasons explained below,
`
`we determine that the information presented showsa reasonable likelihood
`
`that Petitioner would prevail with respect to at least one claim. See 35
`
`U.S.C. § 314(a). Accordingly, weinstitute an inter partes review.
`
`A. Related Matters
`
`Patent Ownerhasasserted the ’502 patent along with additional
`
`patents, against Petitioner in adidas AG,et. al. v. Under Armour, Inc. and
`
`MapMyFitness, Inc., Case No. 14-130-GMS(D. Del.). Pet. 2; Paper 5, 1.
`
`Petitioner has filed several petitions to institute inter partes reviews of
`
`related patents. See Paper5, 1.
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`IPR2015-01528
`Patent 8,721,502 B2
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`B. The Asserted Grounds
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`Petitioner identifies the following as asserted grounds of
`
`unpatentability:
`
`
`
`§ 102
`
`
`Fry (Ex. 1006)’
`Fry and Ohlenbusch(Ex. 1007)
`
`Claims Challenged
`
`C.
`
`The ’502 Patent
`
`The 502 patent describes computer-based systemsthat track and map
`
`an individual’s performance during physicalactivities. Ex. 1001 Abstract,
`
`1:6-11. Sports-related measurement devices available in the prior art
`
`included “modern electronic units capable of monitoring and displaying a
`
`numberof performancecharacteristics.” Jd. at 1:15—20. The ’502 patent
`
`describes adding a global positioning satellite (GPS) receiver along with
`
`other sensors, including heart-rate sensors and weather condition sensors, to
`such prior art devices. Jd. at 2:5—50, 3:7-12. The resulting device is capable
`of interfacing with an external computerso that the data collected may be
`
`displayed on the screen of that computer.
`
`/d. 2:64-3:6. Figure 46 ofthe
`
`°502 patent is reproduced below.
`
`"U.S. Patent No. 6,002,982 (“Fry”).
`U.S. Patent No. 6,882,955 B1 (“Ohlenbusch”).
`
`
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`IPR2015-01528
`Patent 8,721,502 B2
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`4672
`
`4674
`
`4676
`
`4678
`
`4662 4664 4666
`
`Figure 46 showsanillustrative overview display, including collected
`
`position, performance, and annotation data for a workout session.
`
`/d. at
`
`43:9-11. Graphs 4610-4650 are displayed relative to a commontimeline.
`
`Id. at 43:11-13. The graphsdisplay the following performance parameters
`
`for a particular workout session: Graph 4610—elevation versus time; Graph
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`4620—-speedversus time; Graph 4630—heart rate versus time; Graph
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`4640—stride length versus time; and Graph 4650—«cadenceversus time.
`
`/d.
`
`at 43:13-19. Figure 47 of the °502 patent is reproduced below.
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`
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`IPR2015-01528
`Patent 8,721,502 B2
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`
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`FILE TIME
`
`DATA
`
`VIEW
`
`
`
`4720
`
`4730
`
`4740
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`f
`4700
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`6/7104
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`6.2
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`8.1
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`8.1
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`4750
`
`
`
`
`7/5/04
`
`
`6.4
`AVG SPD
`
`
`MAX SPD
`
`
`Figure 47 showsanillustrative comparison display, including
`
`collected position, performance, and annotation data for multiple workout
`
`sessions in which the user followed the same route.
`
`/d. at 43:50—53. Graphs
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`4720, 4730, and 4740 are displayed relative to a commondistanceline. /d.
`
`at 43:53-54. The graphs show the following performance parametersfor the
`
`commonroute or portion of the route: Graph 4720—elevation versus
`
`distance; Graph 4730—-speedversusdistancefor the first session or portion
`
`of the session on date 4735; Graph 4740— speed versusdistance for the
`
`second session or portion of the session on date 4745. Id. at 43:55-59.
`
`Figure 48 of the ’502 patent is reproduced below.
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`IPR2015-01528
`Patent 8,721,502 B2
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`FIG 48
`
`4812
`
`4814
`
`4816
`
`. 4818 .
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`FILE NOTES DATA_VIEW 4810
`
`4800
`
`Below Zone
`——- AtZone
`Above Zone
`
`
`
`
`4860
`
`Figure 48 showsan illustrative map view display, including collected
`
`position, performance, and annotation data for a particular workoutsession
`
`in relation to a map. Jd. at 44:16-18. Date field 4820 showsthe date of the
`
`session being viewed.
`
`/d. at 44:18-19. Road indicator 4830 showsthe
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`roads, trail, and other fixed items from the region in which the session
`
`occurred. Jd. at 44:20-21. Route indicator 4840 (erroneously labeled 1540
`
`in Fig. 48) indicates the actual route followed by the user during the session
`
`and “may have different characteristics to indicate different performance
`
`data.” Id. at 44:22-25. “For example, there may be three different line
`
`styles used to indicate heart rate above a desired zone, within a desired zone,
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`and below a desired zone.” Jd. at 25-27. “Any suitable data divided into
`
`any suitable number of zones may be drawn on the map.” /d. at 44:29-30.
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`
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`IPR2015-01528
`Patent 8,721,502 B2
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`D. The Challenged Claims
`Petitioner challenges claims 10-16. Pet. 1. Claim 10 is independent
`
`and is reproduced below:
`
`10. A method of displaying information about a
`physical activity conducted by an individual, the method
`comprising:
`
`receiving and storing in a memory device data associated
`with the physical activity, wherein the data comprises:
`a plurality of position points that were collected as
`the individual traversed a geographic route during the
`physicalactivity;
`a plurality of first performance parameter data
`points that were collected and correlated with the
`plurality of position points; and
`
`a plurality of second performance parameter data
`points that were collected and correlated with the
`plurality of position points; and
`
`initiating a graphical display that comprises a
`representation of the physical activity on a display screen based
`on the received data,
`
`wherein the representation of the physical activity has a
`first visual characteristic that correspondsto thefirst
`performance parameter data points values, and
`
`wherein the representation of the physical activity has a
`secondvisual characteristic that is different that [sic] the first
`visual characteristic that corresponds to the second performance
`parameter data points values.
`
`Ex. 1001, 72:12-34.
`
`Il. ANALYSIS
`
`A. Claim Construction
`
`“A claim in an unexpired patent shall be given its broadest reasonable
`
`construction in light of the specification of the patent in whichit appears.”
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`
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`IPR2015-01528
`Patent 8,721,502 B2
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`37 C.F.R. § 42.100(b). Pursuant to that standard, the claim language should
`
`be readin light of the specification, as it would be interpreted by one of
`
`ordinary skill in the art. Jn re Suitco Surface, Inc., 603 F.3d 1255, 1260
`
`(Fed. Cir. 2010). Thus, we generally give claim terms their ordinary and
`
`customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
`
`(Fed. Cir. 2007) (“The ordinary and customary meaningis the meaningthat
`
`the term would haveto a person ofordinary skill in the art in question.”)
`
`(internal quotation marks omitted).
`
`Petitioner proposes express constructions for several terms. Pet. 11-
`
`17. Patent Owner does not propose any express constructions. Prelim.
`
`Resp. 8. For purposesof this decision, we determine that only the phrase
`
`“visual characteristic that correspondsto .
`
`.
`
`. performance parameter data
`
`points values” needs explicit construction, Neither party explicitly proposes
`
`a construction for this phrase. Petitioner asserts that the broadest reasonable
`
`interpretation of “graphical display that comprises a representation of the
`physical activity” is “a display that comprises a representation of the
`
`physical activity that includes non-textual elements.” Pet. 14-15. In
`
`addition, Petitioner asserts that the broadest reasonable interpretation of “a
`
`second visual characteristic that is different that [sic] the first visual
`
`characteristic” is “a second visual characteristic that is distinguishablefrom
`
`thefirst visual characteristic.” Pet. 16-17.
`
`Petitioner’s anticipation analysis, however, relies on the further
`
`consideration that the visual characteristic used to distinguish performance
`
`parameter data points does not exclude purely textual representations—e.g.
`
`labels. Pet. 40-46, 50. In other words, Petitioner argues that the
`construction of the term “visual characteristics that correspond to...
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`IPR2015-01528
`Patent 8,721,502 B2
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`performance parameter data points values” is broad enough to encompass
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`textual labels that point to non-textual representations of performancedata
`
`points. Petitioner relies on Figures 46, 47, and 48 and the corresponding
`
`description in the °502 patent to support its assertions. Pet. 17. Petitioner, in
`
`particular, relies on the fact that Figures 46 and 47 both usetext labels to
`
`distinguish between non-textual representations of different performance
`
`parameters on the graphical display.
`
`/d.
`
`In addition, Petitioner notes that
`
`although both Figure 48 and claim 16 describe using different line styles to
`
`distinguish between different performance data, the “commonthread in each
`
`example from the specification and claimsis that the second visual
`
`characteristic is distinguishable from thefirst visual characteristic,” but not
`
`necessarily using a methodotherthan a textual label. Jd.
`
`Patent Ownerdisagrees, arguing that “a label is not within the
`
`Patentee’s intended definition of ‘visual characteristic.’” Prelim. Resp. 11.
`
`Instead, Patent Ownerarguesthatin order to qualify as a “visual
`
`characteristic that correspondsto .
`
`.
`
`. performance parameter data points
`
`values” there must be something “visually distinct” about either the lines
`
`used to plot the performance parameterdata points values or the font or style
`
`of the text used to label the plotted information—merely using different
`
`letters in the label does not qualify as “visually distinct.” Jd. According to
`
`Patent Owner, Figures 46 and 47 “do not have visual characteristics that
`distinguish the plotted performance information”andare not relevant to the
`construction of this term.
`/d. at 11-12. Patent Ownerasserts that because
`
`only the discussion of Figure 48 refers to visual characteristics, it is the only
`
`embodiment encompassedbythe challenged claims.
`
`/d. at 12 (quoting Ex.
`
`1001, 44:23-27 ((“Route indicator 4840 may have different characteristics
`
`
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`IPR2015-01528
`Patent 8,721,502 B2
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`to indicate different performance data. For example, there may be three
`
`different line styles used to indicate heart rate above a desired zone, within a
`
`desired zone, and below a desired zone.””) (Emphases added by Patent
`
`Owner)).
`
`At this point in the proceeding, we are persuadedthat the broadest
`
`reasonable interpretation of “visual characteristic that corresponds to...
`
`performance parameterdata points values” encompassestextual labels
`
`pointing to graphical representations of performance parameter data points
`
`values. We are not persuaded by Patent Owner’s arguments that Figures 46
`
`and 47 do not have visual characteristics that distinguish the plotted
`
`performance information. Instead, we are persuadedthat the plain and
`
`ordinary meaning of that phrase includes the commonpractice of
`
`distinguishing between graphsusing textual labels and that using different
`
`letters in a label itself qualifies as a visual distinction. The language
`
`describing Figure 48, which explicitly notes that line styles are simply one
`
`example of differentiating characteristics, does not persuade us that patentee
`
`explicitly defined the term more narrowly. See Ex. 1001, 44:23-27.
`
`B. Anticipation by Fry
`Petitionerasserts that claims 10-15 are anticipated by Fry. Pet. 32—
`
`50.
`
`1. Overview ofFry
`Fry discloses a sports computer having an integral GPS and the
`
`capability to interface with a computerin orderto track and analyze
`
`performancecharacteristics as a function of geographical position and
`
`elevation. Ex. 1006, Abstract. The computer includes sensors to measure
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`10
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`Patent 8,721,502 B2
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`physiological parameters such as heart rate and weather conditions such as
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`temperature. Jd. The stored data may be downloadedto an external
`personal computer (PC) so that it may be reviewed and analyzed on the PC’s
`screen. Jd. Figure 4 of Fry is reproduced below:
`
` Figure - 4
`
`Figure 4 showsa sports computer connected to a PC “to view route
`
`information and performancecharacteristics through pull-down menus
`
`associated with various points along a particular workout route.” Jd. at
`
`3:36-41. On the PC’s display 426, the route taken on a particular workoutis
`
`displayed as plot 438 superimposed over map 432. Jd. at 5:58-64. Pop-up
`
`menus 444 appearin response to an operator clicking with pointing device
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`450 on a point of path 438. Jd. at 7:6-9. As an alternative to the “map-
`
`based display shownonthe display screen in Fig. 4,” ride characteristics
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`may be shownasa function ofincline by plotting altitude and connecting
`
`various points.
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`/d. at 7:15—24.
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`Patent 8,721,502 B2
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`2. Analysis
`
`Patent Ownerarguesthat Fry does not anticipate claims 10—15
`because it does not disclose the limitations ““wherein the representation of
`the physical activity has a first visual characteristic that correspondsto the
`
`first performance parameter data points values” and “wherein the
`
`representation of the physical activity has a second visual characteristic that
`
`is different that [sic] the first visual characteristic that correspondsto the
`
`second performance parameter data points values”(“the visual characteristic
`
`limitations”). Prelim. Resp. 9-16.
`
`Petitioner asserts that Fry provides two examples of graphical display
`
`that comprise the visual characteristic limitations: (1) the display shownin
`
`Figure 4; and (2) the display described as plotting performance as a function
`
`of altitude (“the altitude example”). Pet. 40-45.
`
`For the display shownin Figure 4, Petitioner asserts that “Menu 444
`
`has a first visual characteristic (“SPEED’ label) correspondingtothefirst
`
`performance parameter data points values (speed).” Jd. at 42; Ex. 1003 { 74.
`
`Petitioner asserts that “Menu 444 has a second visual characteristic that is
`
`distinguishable from the first visual characteristic (i.e., the ‘ALT’ labelis
`
`distinguishable from the ‘SPEED’ label) corresponding to the second
`
`performance parameterdata points values(altitude).” Jd. at 44.
`
`Forthe altitude example, Petitioner asserts that Fry’s statement
`
`“plotting in a concurrent synchronized mannerthe cyclist’s heart rate, speed,
`
`gear ratio, and so forth” inherently discloses that each of the plotted
`
`performance parameters would have a different visual characteristic. Jd. at
`
`43-45; Ex. 1003 4 78. Thus, the first parameter would havea first visual
`
`12
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`Patent 8,721,502 B2
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`characteristic and the second parameter would havea second visual
`
`characteristic. Jd.
`
`Patent Ownerarguesthat neither example discloses the visual
`
`characteristic limitations because there is nothing visually distinct about the
`labels shownin Figure 4 or described by the altitude example because only
`
`the letters of the labels are different. Jd. at 9-16. As discussed above, we do
`
`not agree that the scope of the claims is as narrow as Patent Ownerargues.
`
`Thus, we are not persuaded by this argument.
`
`Patent Owneralso arguesthat neither of the examplesin Fry discloses
`
`that the visual characteristic limitations apply to “an actual representation of
`
`the physical activity at multiple data points.” Prelim. Resp. 13-14. For this
`
`argument, Patent Owner focuses on the claim language “a representation of
`the physicalactivity ... where the representation ... hasa... visual
`characteristic that correspondsto the .
`.
`. performance parameter data points
`
`values,” emphasizing that the words points values are plural. Jd. According
`
`to Patent Owner, Figure 4’s popup menu, whichidentifies a single data
`
`point for various performance parameters at each position on the route
`
`indicator, does not satisfy the claim language. Jd. Patent Owner addsthat in
`
`Figure 4, Petitioner is relying on route indicator 438 as “the representation of
`the physical activity,” but then improperly relies on a textual pop-up menu
`
`of different performance parametersat a single position on that route for the
`
`visual characteristic limitations of the representation. Jd. at 14.
`
`Weagree with Patent Ownerthat Petitioner has not shownthat Figure
`
`4 and its corresponding description anticipates the challenged claims.
`
`“Because the hallmark of anticipation is prior invention,the prior art
`
`reference—inorderto anticipate under 35 U.S.C. § 102—-mustnot only
`
`13
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`IPR2015-01528
`Patent 8,721,502 B2
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`disclose all elements of the claim within the four corners of the document,
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`but must also disclose those elements arrangedas in the claim.” Net
`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008)
`(internal quotation marks omitted). Accordingly, an anticipatory reference |
`
`must showall of the limitations of the claims “arranged or combinedin the
`
`same wayasrecited in the claims.” /d. at 1370; see Finisar Corp. v DirecTV
`
`Group, Inc., 523 F.3d 1323, 1334-37 (Fed. Cir. 2008); Ecolochem, Inc.v.
`
`Southern California Edison Co., 227 F.3d 1361 (Fed. Cir. 2000). Here,
`
`Petitioner’s argumentdoes not showall the limitations of the claim
`
`combinedas in the claim. Weare not persuaded that the popup menu of
`
`Figure 4 or its contents are a visual characteristic of route indicator 438 as
`
`required by the challenged claims (“wherein the representation of the
`
`. .”).
`. visual characteristic .
`.
`_ physicalactivity [route indicator 438] has a .
`Weare also not persuaded that the popup menuofFigure 4 orits contents,
`whichrepresent a single data point for each of the listed performance
`parameters shown, correspond to “performance parameter data points
`
`|
`
`values.”
`
`Weare also not persuadedthat the altitude example anticipates the
`
`challenged claims. The entirety of the altitude example disclosure states as
`
`follows:
`
`Asan alternative to the map-based display shownon the
`display screen in FIG.4,if altitude information is available, it
`may be moreelucidating to plot altitude along with other ride
`characteristics, particularly if the cyclist is more interested in
`improving his or her technique than seeing where they went. In
`other words, by plotting altitude and connecting the various
`points to show ride incline, and by plotting in a concurrent,
`synchronized mannerthe cyclist’s heart rate, speed, gearratio,
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`14
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`it may be easy to see how hard the cyclist was
`and so forth,
`working as a function of incline, when and if the correct gears
`were being used, and so forth. It will be apparent to one ofskill
`that other display modes are also possible according to the
`invention.
`
`Ex. 1001, 7:15—26. Petitioner concedesthat the altitude example does not
`disclose explicitly the visual characteristic limitations, but asserts that they
`are inherently disclosed. Pet. 43, 44; Ex. 1003 { 78. Petitioner presents
`
`testimony of Dr. Selker that “it is inherent that the parameters must have
`distinguishable visual characteristics in order to serve the purpose described |
`in Fry of identifying each parameter on the plot and revealing relationships
`
`between the parameters.” Jd. at 44-45. Weare not persuaded, however,that
`
`the display described bythe altitude example would necessarily be
`
`implemented in a mannerdifferent from that shownin Figure 4. Thus, for
`
`the same reasonsthat weare not persuadedthat Figure 4 anticipates the
`
`challenged claims, we are not persuadedthat the altitude example anticipates
`
`the challenged claims.
`
`Having considered the information presented in the Petition and the
`
`Preliminary Response, we determinethere is not a reasonable likelihood that
`
`Petitioner would prevail in showing claims 10-15 are anticipated by Fry.
`
`C. Obviousness over Fry and Ohlenbusch
`
`Petitioner asserts that claims 10—16 would have been obvious over the
`
`combination of Fry and Ohlenbusch under 35 U.S.C. § 103. Pet. 50-56.
`
`1. Overview of Ohlenbusch
`
`Ohlenbusch describes monitoring activity of a user on foot. Ex. 1007,
`
`1:21-22. Ohlenbusch discloses a unit that may be mounted on a user’s body
`
`including sensors such as an altimeter.
`
`/d. at 70:38-52, 71:24-32. The data
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`stored from the sensors may be transferred to an external computer for
`display and analysis. Jd. at 71:32-37. Figure 33A of Ohlenbuschis
`
`reproduced below.
`
`30:15
`
`—— SPEED
`“ttt STRIDE LENGTH
`
`
`
`(SY3L3W)HLONST
`
`
`
`{ONOD3S/S48]L3W)C3345
`
`eae
`50
`
`100
`
`150
`
`200
`DISTANCE (METERS)
`Fig. 33A
`
`250
`
`300
`
`350
`
`+-0.00
`400
`
`Figure 33A shows both measured speed and measuredstride lengths
`
`of the user as a function of distance during a 400 meter race. Jd. at 72:21—
`
`23. Curve 3302A represents the measured speed of the user and curve
`3304A represents measuredstride lengths of the user. Jd. at 72:23-27.
`
`I. 2. Analysis
`
`Petitioner relies on Fry forall the limitations recited by independent
`
`claim 10, but notes that Ohlenbuschalso provides support for “initiating a
`
`graphical display that comprises a representation of the physical activity ona
`display screen based on the received data” (“the graphical display
`limitation”) and the visual characteristic limitations. Pet. 50-53; Ex. 1003
`
`{7 88-91. According to Petitioner, Ohlenbusch discloses “plotting
`
`numerous performance parameters as a function of distance traversed.” Pet.
`
`16
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`Patent 8,721,502 B2
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`51 (quoting Ex. 1007, 70:38-52). Petitioner points to Figures 33A through
`36B and the corresponding description as showing performance parameters
`graphed together, each with a different line style. Jd. at 52.
`
`Petitioner also provides testimony from Dr. Ted Selker (Ex. 1003)
`
`whoexplains that it would have been obvious to combine the teachings of
`
`Fry and Ohlenbusch to graph multiple data sets using different visual
`
`characteristics such as line style for each type of data. Pet. 54-55; Ex. 1003
`
`4 94-95. Dr. Selker adds that such graphing techniques were well known
`
`to a person of ordinary skill in the art and were used in many commercial
`
`software programs.
`
`/d. Patent Ownerarguesthat this is not an adequate
`
`motivation to combine the two references. Prelim. Resp. 16-21. According
`
`to Patent Owner, the referencesare not related to the same subject matter
`
`because Fry only discloses an embodimentfeaturing a bicycle computer
`
`mounted onto a bicycle while Ohlenbuschis directed to a user whois on
`
`foot—walking or running.
`
`/d. Thus, Patent Ownerstates that “the systems
`
`described in Fry and Ohlenbusch are wholly unrelated.” Jd. at 19.
`
`Weare persuadedthat, on this record, Petitioner’s rationale for
`
`combining Fry and Ohlenbuschis reasonable. See Wyers v. Master Lock
`
`Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010):
`
`. directs us to construe
`.
`The Supreme Court’s decision in KSR .
`the scope of analogousart broadly, stating that “familiar items
`may have obvious uses beyond their primary purposes, and a
`person ofordinary skill often will be able to fit the teachings of
`multiple patents together like pieces of a puzzle.”
`
`Moreover, Patent Owner concedesthat Fry states that “the inventionis
`
`readily applicable to other sports involving travel over time” and
`
`“Ohlenbusch indicates that the foot-mounted unit may alternatively be
`
`17
`
`
`
`IPR2015-01528
`Patent 8,721,502 B2
`
`mounted at other locations.” Prelim. Resp. 17, 19. We are persuadedthat a
`
`personof ordinary creativity in the relevant art would look to both
`references, no matter whetheroneis primarily focused on biking and the
`
`other on walking and running, whenlookingto solve the problem of how to
`display to users certain performance parameters collected by “portable
`personal devices” (Ex. 1001, 1:30-31). Under these circumstances, weare
`
`persuadedthat Petitioner has shown a reasonable likelihood of prevailing in
`
`its assertion that claims 10-16 would have been obvious overthe
`
`combination of Fry and Ohlenbusch.
`
`Ill. CONCLUSION
`
`For the foregoing reasons, based on the information presented in the
`Petition and the Preliminary Response, weare persuadedthat there is a
`reasonable likelihood that Petitioner would prevail in showing
`
`unpatentability of claims 10—16 of the ’502 patent.
`
`At this stage of the proceeding, we have not madea final
`
`determination on the patentability of the challenged claims.
`
`Accordingly,it is
`
`IV. ORDER
`
`ORDEREDthat, pursuant to 35 U.S.C. § 314, an inter partes review
`
`of U.S. Patent No. 8,721,502 B2 is hereby instituted on the groundthat
`
`claims 10-16 would have been obvious over Fry and Ohlenbusch;
`
`FURTHER ORDEREDthat no other ground of unpatentability
`
`alleged in the Petition for any claim is authorized for this inter partes
`
`review; and
`
`
`
`
`
`IPR2015-01528
`Patent 8,721,502 B2
`
`FURTHER ORDEREDthat pursuantto 35 U.S.C. § 314(c) and
`
`37 C.F.R. § 42.4, notice is hereby given ofthe institution ofa trial; thetrial
`
`commenceson the entry date of this decision.
`
`19
`
`
`
`IPR2015-01528
`Patent 8,721,502 B2
`
`Petitioner:
`
`Brian E. Ferguson
`Anish Desai
`WEIL GOTSHAL & MANGES LLP
`brian.ferguson@weil.com
`anish.desai@weil.com
`
`Patent Owner:
`
`Mitchell Stockwell
`Wab Kadaba
`KILPATRICK TOWNSEND & STOCKTON LLP
`mstockwell@kilpatricktownsend.com
`wkadaba@kilpatricktownsend.com
`
`20
`
`
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