Nintendo of America Inc.v.iLife Technologies, Inc.

Patent Trial and Appeal Board

Apr 28, 2016

09396991 (P.T.A.B. Apr. 28, 2016)

Trials@uspto.gov Paper No. 35
Tel: 571.272.7822 Filed: April 28, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
NINTENDO OF AMERICA INC. and NINTENDO CO., LTD.,
Petitioner,

v.

ILIFE TECHNOLOGIES,
Patent Owner.
_______________

Case IPR2015-00105
Patent 6,307,481 B1
_______________

Before JACQUELINE WRIGHT BONILLA, MICHELLE R. OSINSKI, and
HYUN J. JUNG, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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I. INTRODUCTION
A. Background
Nintendo of America Inc. and Nintendo Co., Ltd. (collectively,
“Petitioner”) filed a Corrected Petition (Paper 4, “Pet.”) requesting an inter
partes review of claims 1–24 of U.S. Patent No. 6,307,481 B1 (Ex. 1001,
“the ’481 patent”). iLife Technologies, Inc. (“Patent Owner”) filed a
Preliminary Response (Paper 9, “Prelim. Resp.”). On April 29, 2015,
pursuant to 35 U.S.C. § 314, we instituted an inter partes review of claims
1–24 on the following grounds of unpatentability asserted by Petitioner:
Reference Basis Claims
Unuma1 § 103(a) 1–7, 10–13, 15, 17, and 21–24
Unuma and Sellers2 § 103(a) 8
Unuma and Kurokawa3 § 103(a) 9
Unuma and Tuch4 § 103(a) 14
Unuma and Samuels5 § 103(a) 16
Unuma and Okuno6 § 103(a) 18 and 19
Unuma and Nitta7 § 103(a) 20
Decision on Institution (Paper 12, “Dec. Inst.”), 6, 33–34.
Patent Owner filed a Patent Owner Response (Paper 14, “PO Resp.”),
and Petitioner filed a Reply (Paper 21, “Pet. Reply”).

1 Unuma et al., EP 0 816 986 A2 (published Jan. 7, 1998) (Ex. 1003).
2 Sellers, US 5,678,562 (issued Oct. 21, 1997) (Ex. 1004).
3 Kurokawa et al., JP H10-165395 (published June 23, 1998) (Ex. 1005).
4 Tuch et al., US 5,040,175 (issued Aug. 13, 1991) (Ex. 1006).
5 Samuels, Analog Dialogue, Vol. 30, No. 4 (1996) (Ex. 1007).
6 Okuno et al., JP H10-40483 (published Feb. 13, 1998) (Ex. 1008).
7 Nitta et al., US 5,757,360 (issued May 26, 1998) (Ex. 1009).
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Petitioner relies on declarations of Dr. Gregory Francis Welch in
support of its Petition (Ex. 1002) and Reply (Ex. 1014). Patent Owner relies
on the declaration of Dr. Robert H. Sturges in support of its Response (Ex.
2006). Petitioner refers to the deposition testimony of Dr. Sturges in its
Reply (Ex. 1013).
Patent Owner filed a Motion to Exclude seeking to exclude certain of
Petitioner’s evidence (Paper 27, “Mot. Excl.”). Petitioner filed an
Opposition to Patent Owner’s Motion to Exclude (Paper 29, “Opp. Mot.
Excl.”) and Patent Owner filed a Reply (Paper 32, “Reply Mot. Excl.”).
Patent Owner filed a Notice regarding New Arguments and Belated
Support (Paper 28) to which Petitioner filed a Response (Paper 30).
A combined oral hearing in this proceeding and Cases IPR2015-
00106, IPR2015-00109, IPR2015-00112, IPR2015-0113, and IPR2015-
00115 was held on January 27, 2016. A transcript is entered in the record as
Paper 34 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
For the reasons that follow, we determine that Petitioner has shown by a
preponderance of the evidence that claims 1–24 of the ’481 patent are
unpatentable under 35 U.S.C. § 103(a). We also deny Patent Owner’s
Motion to Exclude.
B. Related Proceedings
The parties indicate that district court cases involving the ’481 patent
include iLife Technologies, Inc. v. Nintendo of America Inc., No. 3:13-cv-
04987 (N.D. Tex.), as well as other cases involving other defendants
including iLife Technologies Inc. v. AliphCom, No. 3:14-cv-03345 (N.D.
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Cal.); iLife Technologies Inc. v. Body Media, Inc., No. 2:2014-cv-00990
(W.D. Pa.); and iLife Technologies Inc. v. Fitbit, Inc., No. 3:2014-cv-03338
(N.D. Cal.). Pet. 1; Paper 7, 1.
Upon considering the other Petitions filed by the same Petitioner on
the same day, we also instituted inter partes review of claims in related U.S.
Patent Nos. 6,703,939 B2 (Case IPR2015-00106), 6,864,796 B2 (Case
IPR2015-00109), 7,095,331 B2 (Case IPR2015-00112), 7,145,461 B2 (Case
IPR2015-00113), and 7,479,890 B2 (Case IPR2015-00115).
C. The ’481 Patent
The ’481 patent relates to systems, and methods of operation thereof,
for evaluating movement of a body relative to an environment. Ex. 1001,
1:5–8. The ’481 patent indicates that prior art methods fail to discern
normal, acceptable, or unacceptable changes in levels of body activity. Id. at
1:32–37. The Specification acknowledges that “accelerometers that measure
both static and dynamic acceleration are known,” but states that “their
primary use has heretofore been substantially confined to applications
directed to measuring one or the other, but not both.” Id. at 1:46–50.
The Specification distinguishes between “static acceleration, or
gravity,” which is “a gauge of position,” versus “dynamic acceleration (i.e.,
vibration, body movement, and the like).” Id. at 1:44–47. The system
includes a sensor associated with the body that is operable to sense
repeatedly accelerative phenomena of the body (i.e., changes in velocity of
the body, whether in magnitude, direction, or both). Id. at 2:10–14, 4:36–40.
The system is concerned with measuring both static and dynamic
acceleration of the body. Id. at 1:41–50, 2:56–58. The system further
includes a processor that processes the sensed accelerative phenomena as a
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function of at least one accelerative event characteristic to determine
whether the body movement is within environmental tolerance. Id. at 2:10–
19. The ’481 patent defines “accelerative events” as “occurrences of change
in velocity of the body (or acceleration), whether in magnitude, direction or
both.” Id. at 4:38–40. The ’481 patent describes that the accelerative event
characteristic “will largely be defined by the specific application.” Id. at
8:58–60.
The processor “generates state indicia relative the environment of
interest, and determines whether the evaluated body movement is within
tolerance in the context of that environment.” Id. at 8:61–64. The ’481
patent describes that “‘tolerance’ would . . . be very different for a monitored
body of an elderly person . . . , a toddler, a box in a freight car, a container of
combustible gas, etc.” Id. at 8:64–67.
Figure 4 of the ’481 patent is reproduced below.

Figure 4 depicts an operational flow diagram of exemplary method 400 of
programming processor 47 in accordance with a fall detection application of
the principles of the ’481 patent. Id. at 4:12–15, 7:31–35. Step 405 involves
generating a request for sampling measurements, either in response to an
executing operations program or upon initiation by a user. Id. at 7:46–50.
Sensor 25 senses x and y acceleration values and outputs measurement
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signals that are filtered in step 410 to reduce the probability that an out-of-
tolerance abnormal movement will be determined incorrectly in response to
a single sharp impact. Id. at 7:53–57. Step 415 involves processor 47 using
the outputs from sensor 25 to determine a last stable position of the body.
Id. at 7:60–62. In Step 420, processor 47 uses ac voltage components of
each output from sensor 25 to check against a G force threshold value to see
if the threshold is exceeded, and thus, qualifies as a potential fall. Id. at
8:12–17. In Step 425, processor 47 determines a fall by testing a post-
impact stream of samples against a tolerance. Id. at 8:22–25. In Step 430, a
change of body position greater than 45° or more from the last stable
position may lead to classification of the event as a debilitating fall. Id. at
8:31–34.
In Step 435, processor 47 adds the absolute values of the x and y last
stable positions and then determines whether the body is lying down if the
added value exceeds a value corresponding to 90° plus or minus 25%, after
setting the last stable position. Id. at 8:39–43. In Step 440, any impact that
exceeds a G force threshold is treated as a debilitating fall. Id. at 8:43–47.
“Exemplary processor 47 is programmed to distinguish between normal and
abnormal accelerative events . . . and, when an abnormal event is identified,
indicates whether the abnormal event is tolerable, or within tolerance.” Id.
at 11:24–29.
D. Illustrative Claims
Independent claims 1 and 21 are illustrative of the claimed subject
matter, and are reproduced below.
1. A system that evaluates movement of a body relative to an
environment, said system comprising:
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a sensor, associable with said body, that senses dynamic
and static accelerative phenomena of said body; and
a processor, associated with said sensor, that processes
said sensed dynamic and static accelerative phenomena as a
function of at least one accelerative event characteristic to
thereby determine whether said evaluated body movement is
within environmental tolerance.

21. A method of operating a system to evaluate movement of a
body relative an environment wherein a sensor is associated with
said body, said method of operation comprising the step of
processing, with a processor, repeatedly sensed dynamic and
static accelerative phenomena of said body as a function of at
least one accelerative event characteristic to thereby determine
whether said evaluated body movement is within environmental
tolerance.
II. DISCUSSION
A. Claim Construction
In an inter partes review, claim terms in an unexpired patent are
interpreted according to their broadest reasonable construction in light of the
specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14,
2012); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir.
2015), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
890 (mem.) (2016). There is a presumption that a claim term carries its
ordinary and customary meaning. CCS Fitness, Inc. v. Brunswick Corp.,
288 F.3d 1359, 1366 (Fed. Cir. 2002); In re Translogic Tech., Inc., 504 F.3d
1249, 1257 (Fed. Cir. 2007). A patentee may rebut this presumption,
however, by acting as his own lexicographer, providing a definition of the
term in the specification with “reasonable clarity, deliberateness, and
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precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the
absence of such a definition, limitations are not to be read from the
specification into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993).
In the Decision on Institution, we interpreted various claim terms of
the ’481 patent as follows:
Term Interpretation
“dynamic accelerative
phenomena”
“acceleration indicating vibration or
movement”
“static accelerative
phenomena”
“acceleration indicating position of the
body relative to the earth”

“within environmental
tolerance”
“acceptable based on criteria including a
specified value given the environment for
which body movement is being
evaluated”
Dec. Inst. 7–12.
The parties do not dispute these interpretations in the Patent Owner
Response or in the Petitioner Reply. See PO Resp. 7 (“[F]or purposes of this
Response, the following preliminary claim constructions from the Board’s
decision to institute trial . . . are used.”); see Pet. Reply 1–12. Based on our
review of the complete record, we do not perceive any reason or evidence
that now compels any deviation from these interpretations.
In addition to the terms construed above, we address the construction
of “processor” and “accelerative event characteristic.”
1. “processor”
The specification of the ’481 patent defines “processor” to mean “any
device, system or part thereof that controls at least one operation, such a
device may be implemented in hardware, firmware or software, or some
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suitable combination of at least two of the same.” Ex. 1001, 3:53–57. Both
parties cite the definition and propose it as the construction for “processor.”
Pet. 6 (citing Ex. 1001, 3:53–57); PO Resp. 8 (citing Ex. 1001, 3:53–57).
We adopt that claim construction here.
2. “accelerative event characteristic”
The specification defines “accelerative events” or “accelerative
phenomena” as “occurrences of change in velocity of the body (or
acceleration), whether in magnitude, direction or both, and including
cessation of activity or inactivity.” Ex. 1001, 4:36–40. Both parties cite the
definition and propose it as the construction for “accelerative event” or
“accelerative phenomena.” Pet. 5 (citing Ex. 1001, 4:36–40); PO Resp. 8
(citing Ex. 1001, 4:36–40). Consistent with that definition, we construe an
“accelerative event characteristic” as a characteristic of an accelerative
event, as defined above.
B. Obviousness Over Unuma
Petitioner contends that claims 1–7, 10–13, 15, 17, and 21–24 of the
’481 patent would have been obvious over Unuma. Pet. 12–34, 47–60.
Petitioner provides a claim chart and relies on a Declaration by Dr. Gregory
Francis Welch (Ex. 1002). Id.
1. Overview of Unuma
Unuma discloses a method and system for automatically recognizing
motions and actions of moving objects, such as humans. Ex. 1003, Abstract,
2:3–6. Figures 1 and 2 of Unuma are reproduced below.
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Figure 1 provides a block diagram of a motion and action recognition
device, and Figure 2 depicts a view of outputs from an acceleration sensor
attached to the waist of an object under observation. Id. at 4:23–25. The
sensor in Figure 2 “takes measurements of acceleration applied to the human
body in the direction of its height,” and output results 20 indicate time series
data derived from human motions, where “data items 21 and 22 denote
cyclic acceleration changes during walking or running, data item 23
represents a single acceleration change, and data item 24 stands for a state of
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no acceleration in which gravitational acceleration is not detected because
the object is lying down.” Id. at 6:31–37.
When discussing Figure 2, Unuma explains that “[a]fter the above
data items [21-24] are digitized by the A/D converter 4 [shown in Figure 1],
the digitized data are subjected to time-frequency analysis (e.g., Fourier
transformation), which is a typical technique of signal analysis.” Id. at 6:38–
39. The result of that time-frequency analysis “is a frequency spectrum
body 25,” such that “data items 21 through 24 are matched with frequency
spectra 26, 27, 28 and 29 respectively.” Id. at 6:39–41; Fig. 2. Unuma
states that “[b]ar graphs of the analyzed result represent spectrum intensities
of the frequency components acquired through Fourier transformation,”
where “[t]he frequency characteristic differs from one motion to another,”
and “[t]he differences constitute the characteristic quantities of the motions
involved.” Id. at 6:41–43. Unuma goes on to state:
With this embodiment, the characteristic quantities that
serve as reference data used by the signal processing unit 7 for
motion/action recognition are extracted and saved in advance
from the motions and actions whose characteristic quantities are
known. The reference data thus saved are stored into the
characteristic quantity database 6 via a path 9 in Fig. 1 (process
30 in Fig. 2).
The signal processing unit 7 for motion/action recognition
continuously receives characteristic quantity data 10 from the
characteristic quantity extraction unit 5, the data 10 being derived
from the ongoing motions/actions of the object 1 under
observation. The data 10 are compared with the reference data
11 made up of the stored characteristic quantities of various
motions/actions in the database 6. That is, the currently
incoming characteristic quantity is correlated with the stored
characteristic quantities in the database 6. At any point in time,
the motion/action corresponding to the characteristic quantity
having the highest level of correlation is judged to be the
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motion/action currently performed by the object 1 under
observation. The judged result is output by the output unit 8.
Id. at 6:44–54.
Unuma also teaches that “[o]ne way of correlating measurements with
reference data is shown illustratively in Fig. 29, but is not limited thereto.”
Id. at 6:55. That correlation involves “acquiring a frequency component
F(m) which corresponds to characteristic quantity data 10 in the form of
measured waveform spectra representing the motions/actions of the object
1,” where data 10 is “normalized so as to satisfy” a particular expression
(i.e., equation), as presented on page 7 of Unuma. Id. at 6:55–7:54 (referring
to frequency component F(m), corresponding to data 10, and frequency
component G(m), corresponding to reference data 11, and that both are
“normalized”).
Figure 3 of Unuma is reproduced below:

Figure 3 depicts “an explanatory view of typical results of time
frequency analysis based on wavelet transformation.” Ex. 1003, 4:26. As
presented in Figure 1, processing unit 7 compares data 10 with reference
data 11 made up of “stored characteristic quantities of various
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motions/actions in . . . database 6.” Id. at 6:50–51. In accordance with a
wavelet transformation analysis method illustrated in Figure 3, “a motion of
‘walk’ yields characteristic values 214 on level C (213),” “a ‘squatting’
motion produces characteristic values 215 on level A (211),” and “a
‘running’ motion generates characteristic values 216 on levels B (212) and C
(213).” Id. at 8:14–16.
Unuma states that its system applies “to a setup where supervisors or
custodians in charge of people who are socially vulnerable and need
protection or of workers working in isolation are automatically notified of a
dangerous situation into which their charge may fall for whatever reason.”
Id. at 16:5–7. Unuma discloses that a processing unit stores and
continuously monitors “history data” in reference to “motion patterns” held
in a specific motion pattern storage unit. Id. at 16:22–23. In this context,
Unuma explains that:
A specific motion pattern is a combination of multiple
motions necessary for recognizing a specific action such as “a
sudden collapse onto the ground” or “a fall from an elevated
location.”
For example, the action of “a sudden collapse onto the
ground” is recognized as a motion pattern made up of a motion
of “a walking or standing still posture” followed by a motion of
“reaching the ground in a short time” which in turn is followed
by a motion “lying still on the ground.” Similarly, the action of
“a fall from an elevated location” is recognized as a motion
pattern constituted by motions of “climbing,” “falling,” “hitting
obstacles,” “reaching the ground” and “lying still,” occurring in
that order.
Id. at 16:23–30.
In addition, Unuma discloses that its system allows “reporting or not
reporting the recognized motion pattern depending on where the incident is
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observed,” which is “useful in averting a false alarm provoked by an
apparent collapsing motion of the object under observation when in fact the
object is lying on a couch for examination at a hospital or climbing onto the
bed at home.” Id. at 17:3–7.
Unuma also presents Figures 33–36. Figures 33 and 36 are depicted
below.

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Figures 33 and 36 each show “an example wherein a motion is
recognized by using the method of recognition provided by the present
invention,” where “a result of the recognition is displayed by animation
using computer graphics.” Id. at 27:45–47. Specifically, diagram (a) in
each figure shows a “measured waveform,” where the horizontal and vertical
axes represent time and acceleration, respectively. Id. at 27:53–55.
“[D]iagram (b) shows an average value of the measured waveform shown in
the diagram (a) or the direct-current component of the waveform.” Id. at
27:56–58. Diagram (e) presents a body-movement spectrum “obtained as a
result of carrying out a frequency analysis of the measured waveform shown
in the diagram (a),” and diagram (g) “shows the result of the recognition by
animation using computer graphics.” Id. at 28:1–30. In Figure 33, diagram
(g) depicts a computer animation of a subject in a briskly walking motion; in
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Figure 36, diagram (g) depicts a subject in a state of a lying-down posture.
Id. at Figs. 33, 36.
Unuma further presents Figure 43, shown below.

Figure 43 depicts a diagram showing a display of a sequence of
motion states leading to an emergency. Id. at 5:47–48; 31:28–45. Figure 43
depicts time period 1130, during which a patient walks briskly; period 1131,
during which the patient walks more slowly; period 1132, during which the
patient stands still; period 1133, during which the patient collapses; and
period 1134, during which the patient is “lying down and does not move any
more.” Id. at 31:36–39. Unuma states that, by repeating the process, “a
sequence of motion states leading to the event of an emergency can be
displayed repeatedly.” Id. at 31:39–41.
In relation to Figures 47–49, Unuma teaches that the “state of a
motion is recognized” (id. at 24:58) and, “[i]n addition, the gradient of a
human body, that is, the state of the upright/leaning posture of the human
body, can be recognized from an average value of variations in acceleration
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observed by an acceleration sensor. . . . The magnitude of the direct-current
component is used to find the gradient of the human body which is, in turn,
utilized for forming a judgment on the state of the upright/leaning posture of
the human body. Id. at 24:58–25:26.
2. Analysis—claims 1–7, 10–13, 15, 17, and 21–24
Petitioner contends that claims 1–7, 10–13, 15, 17, and 21–24 of the
’481 patent would have been obvious over Unuma. Pet. 12–34, 47–60.
Petitioner argues that all recited elements are disclosed in Unuma. Id. at 16.
For example, Petitioner argues that Unuma discloses a system that evaluates
movement of a body relative to an environment, e.g., a particular motion,
action, and/or work of a patient. Id. (citing Ex. 1003, 30:30–32, 2:3–6,
13:47–49, Fig. 1; Ex. 1002 ¶ 44, App. C). Petitioner also contends that
“signal processing unit 7” in Unuma corresponds to the “processor” of the
challenged claims, and the “acceleration sensor,” associated with processing
unit 7 in Unuma, corresponds to the recited “sensor . . . that senses dynamic
and static accelerative phenomena” of the body. Id. at 17–18, 30. We
discuss particular claim limitations below.
a. “sensor, associable with said body, that senses
dynamic and static accelerative phenomena of said
body” or “a sensor . . . associated with said body”
Petitioner argues that Unuma discloses continuous measurement of
both dynamic and static acceleration of the body. Id. (citing Ex. 1003, 6:31–
37, 48–50, 11:53–54, 16:31–34, Figs. 2–3; Ex. 1002 ¶ 45, App. C).
Petitioner contends the sensor in Figure 2, for example, “takes
measurements of acceleration applied to the human body in the direction of
its height.” Id. In addition, “[o]utput results 20 from the acceleration sensor
indicate specific time series data items 21 through 24 derived from human
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motions of ‘walking,’ ‘running,’ ‘squatting’ and ‘lying down.’” Id. at 18.
Petitioner also points to “data item 24” as indicating “a state of no
acceleration in which gravitational acceleration is not detected because the
object is lying down.” Id. Because Unuma teaches that the sensor’s
measured waveform has a direct current component corresponding to
gravitational acceleration (Ex. 1003, Figs. 2–3, 33(a), 6:36–37, 27:52–28:1),
we are persuaded that Unuma teaches “a sensor, associable with said body,
that senses dynamic and static accelerative phenomena of said body” as
recited in independent claim 1 and “a sensor . . . associated with said body”
as recited in independent claim 21. Pet. 17–18, 30.
b. “processor, associated with said sensor, that
processes said sensed dynamic and static accelerative
phenomena as a function of at least one accelerative
event characteristic” or “processing, with a
processor . . . dynamic and static accelerative
phenomena of said body as a function of at least one
accelerative event characteristic”
Petitioner further contends that Unuma’s processing unit 7 senses the
above-mentioned “dynamic and static (gravitational) acceleration of the
body as a function of at least one accelerative event characteristic, as
illustrated in Fig. 3.” Id. As noted above, “accelerative event” means
“occurrences of change in velocity of the body (or acceleration), whether in
magnitude, direction or both, and including cessation or activity or
inactivity.” Ex. 1001, 4:36–40. Petitioner argues that Unuma’s processing
unit 7 continuously receives characteristic quantity data 10 from
characteristic quantity extraction unit 5, “the data 10 being derived from the
ongoing motions/actions of the object” under observation. Pet. 18 (citing
Ex. 1003, 6:48–50, Fig. 2). In relation to “ongoing motions/actions” data,
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the sensor in Unuma, as depicted in Figure 2, for example, “takes
measurements of acceleration applied to the human body in the direction of
its height,” and generates output results 20 that indicate the motions of
“walking,” “running,” “squatting,” and “lying down.” Id. at 17–18, 31
(citing Ex. 1003, 6:31–37, 16:31–34).
Patent Owner responds that the processor of Unuma only processes
sensed dynamic acceleration information, but not both dynamic and static
accelerative information/phenomena, as required in challenged independent
claims 1 and 21. Specifically, Patent Owner asserts “[i]n using the
accelerometer output illustrated in Figures 2 and 3, Unuma processes only
dynamic acceleration to recognize motion patterns and disregards or filters
out static acceleration.” PO Resp. 13 (emphasis omitted). In support, Patent
Owner relies on teachings in Unuma and a declaration by Dr. Sturges (Ex.
2006). Id. at 12–21.
Patent Owner contends that the time frequency analysis used in
Unuma, such as Fourier or wavelet transformation, uses “only the dynamic
(vibration) component of the sensed total acceleration” to create the
frequency spectrum shown in Figure 2 or the wavelet components shown in
Figure 3. Id. at 14–21 (citing Ex. 2006 ¶¶ 37–51, 56–58, 60–64, 72).
In support, in relation to Figure 3, for example, Patent Owner
contends that “frequency components F(m) and G(m) form the sole basis for
the comparison of the observed and reference motion using a correlation
function H(m).” Id. at 14–15 (referring to Ex. 1003, 7:20–24; Ex. 2006
¶¶ 56–58). According to Patent Owner, that comparison is what the
processor 7 does when it processes data, and Unuma only processes
frequency components generated from the dynamic acceleration
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information, and “does not suggest using any aspect of the sensed static
acceleration data to correlate or recognize motions.” Id. at 15 (citing Ex.
2006 ¶¶ 48–50), 18 (stating that “static acceleration information is
effectively filtered out, and is not employed”) (citing Ex. 2006 ¶¶ 39–42,
48). Patent Owner contends that “[e]ven with respect to lying down, the
absence of wavelet components in Figure 3 merely indicates the absence of
dynamic acceleration.” Id. at 15 (citing Ex. 2006 ¶ 49).
Patent Owner presents similar arguments regarding the “frequency
analysis” depicted in Figure 2. PO Resp. 16–18. In relation to both Figures
2 and 3, Patent Owner repeats its contention that Unuma “teaches and
encourages use of methods that filter out and disregard static acceleration.”
Id. at 19 (Ex. 2006 ¶¶ 42, 47). According to Patent Owner (id. at 19–21),
Unuma does not “disclose or teach processing both dynamic and static
acceleration to thereby determine whether motion is within environmental
tolerance.” Id. at 21.
In a related fashion, Patent Owner further contends that Unuma does
not teach or suggest “process[ing] . . . sensed dynamic and static accelerative
phenomena as a function of at least one accelerative event characteristic to
thereby determine whether said evaluated body movement is within
environmental tolerance,” as recited in claims 1 and 21. Id. at 21 (emphasis
modified). Patent Owner discusses how the claim term “accelerative events”
refers to “occurrences of change in velocity of the body (or acceleration),
whether in magnitude, direction or both.” Id. at 21–22. Patent Owner then
argues that when Unuma normalizes “both the frequency components F(m)
of observed motion and the frequency components G(m) of the reference
motion,” that normalization removes “magnitude information” for the sensed
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dynamic acceleration. Id. at 22–23 (citing Ex. 1003, 6:55–7:15; Ex. 2006
¶ 57). Patent Owner also argues that Unuma’s “use of absolute values of the
frequency component differences removes direction information from the
sensed dynamic acceleration.” Id. at 23–26 (referring to Ex. 1003, 6:55–
7:24, Fig. 29). Thus, according to Patent Owner, Unuma does not process
the recited phenomena “as a function of at least one accelerative event
characteristic.” Ex. 1001, claims 1 and 21.
The analysis by Patent Owner and its expert, Dr. Sturges, however,
does not persuade us that Unuma fails to teach processing of sensed dynamic
and static accelerative phenomena as a function of at least one accelerative
event characteristic For example, Unuma’s system obtains data from an
acceleration sensor, such as data items 21–24 in Figure 2, or acceleration
changes 210 in Figure 3, for example—which include gravitational (static)
acceleration information—and such data “are digitized by the A/D converter
4” and “subjected to time-frequency analysis.” Ex. 1003, 6:31–39. Patent
Owner proposes that the digitation and/or time-frequency analysis causes all
static data to be “effectively filtered out” before any comparison/processing
step takes place. PO Resp. 18, 13, 15, 19. In support, Patent Owner and its
expert rely on disclosures in Unuma regarding “[o]ne way of correlating
measurements with reference data [that] is shown illustratively in Fig. 29.”
Ex. 1003, 6:55–7:54; PO Resp. 14–16, 23–26 (referring to Ex. 1003, 6:55–
7:54). Patent Owner also cites to paragraphs in Dr. Sturges’ Declaration
discussing an “average value T (denoted by reference numeral 2003) of the
powers of all spectrum components excluding the direct-current component
(that is, the 0th-order harmonic),” as depicted in Figure 47C. Ex. 1003,
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21:22–34; PO Resp. 17–18 (referring to Ex. 2006 ¶ 42, which cites Exhibit
1003, 21:22–34).
We agree with Petitioner, however, that other disclosures in Unuma
describe processing both “static and dynamic components of the acceleration
signal to determine both movement of the body and the ‘gradient’ (position)
of the body relative to earth.” Pet. Reply 1–2. For instance, when
discussing Figures 47–49, Unuma indicates that the “state of a motion is
recognized” (Ex. 1003, 24:58), but also that “the gradient of a human body,
that is, the state of the upright/leaning posture of the human body, can be
recognized from an average value of variations in acceleration observed by
an acceleration sensor.” Ex. 1003, 24:58–25:26. Unuma states that “[t]he
magnitude of the direct-current component is used to find the gradient of the
human body which is, in turn, utilized for forming a judgment on the state of
the upright/leaning posture of the human body.” Ex. 1003, 25:24–26; see
also Ex. 1001, 5:38–40 (describing a direct current “[(]dc[)] voltage
component” as corresponding “to an angle relative to earth (i.e., static
acceleration component related to gravity”); Pet. Reply 2.
In addition, in Figures 33–36 of Unuma, “diagram (b) shows an
average value of the measured waveform shown in the diagram (a) or the
direct-current component of the waveform.” Ex. 1003, 27:56–28:1. We
agree with Petitioner that Unuma’s teachings in relation to Figure 33
indicate “that an ‘acceleration average’, as shown in [diagram] (b), of the
measured waveform can be calculated in order to analyze the static
component of the waveform for purposes of determining the posture of the
body relative to earth,” as depicted in diagram (g), which shows “the result
of the recognition by animation using computer graphics,” i.e., body
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movement (dynamic acceleration) and posture (static acceleration). Pet.
Reply 3–5; Ex. 1003, 28:1–30. Figure 36 depicts similar processing of such
information, but presents a lying-down posture in diagram (g), rather than a
brisk upright walking motion, as shown in diagram (g) in Figure 33. Pet.
Reply 5.
Moreover, even to the extent that we were to agree that Unuma filters
out static acceleration as part of its wavelet or frequency analysis, this in and
of itself is an indication of processing, in that the processor would subject
the static acceleration data to examination so as to filter it out. See Merriam-
Webster Dictionary, available at http://www.merriam-
webster.com/dictionary/process (Ex. 3003) (defining “process” as “to
subject to examination or analysis .”).
Accordingly, even if “the absence of wavelet components in Figure 3 merely
indicates the absence of dynamic acceleration” “[e]ven with respect to lying
down” (PO Resp. 15 (citing Ex. 2006 ¶ 49)), for example, Unuma’s
processor examines the static acceleration data so as to filter it out. Thus,
we find that Unuma processes both “sensed dynamic and static accelerative
phenomena,” as required in claims 1 and 21.
In addition, we agree with Petitioner that Unuma teaches or suggests,
when discussing Figures 33–36, for example, processing “sensed dynamic
and static accelerative phenomena as a function of at least one accelerative
event characteristic” as recited in claim 1 and similarly recited in 21, i.e.,
teaches or suggests processing relevant accelerative phenomena as a
function of magnitude and direction. Ex. 1003, 27:45–28:55; Pet. Reply 9.
As discussed above, in relation to its “normalization” position, Patent
Owner refers us to “[o]ne way of correlating measurements with reference
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data [that] is shown illustratively in Fig. 29.” PO Resp. 22–26 (referring to
Ex. 1003, 6:55–7:54). Even assuming such “normalization” “scales all of
the frequency component magnitudes so that the sum of all frequency
components F(m) is equal to 1 and the sum of all frequency components
G(m) is equal to 1” (PO Resp. 22), we are not persuaded that doing so
eliminates any and all information regarding magnitude and direction from
the sensed accelerations.
Petitioner presents responsive evidence that “the normalization data
used by Unuma still has a magnitude, it is just in the form of a normalized
magnitude.” Pet. Reply 10 (citing Ex. 1013, 151:1–153:8) (Dr. Sturges
agreeing that “the sine is clearly used to get that average”); Ex. 1014 ¶ 24
(indicating that a “proper average cannot be calculated without using the
magnitude and direction (up and down) of the waveform”). Petitioner also
presents evidence that the normalized magnitudes “distinguish between
similarly normalized accelerative events.” Pet. Reply 10 (citing Ex. 1003,
16:26–30).
Moreover, the processing of such “normalized” information results in
an output corresponding to dynamic and static accelerative information, as
depicted by computer graphics or pictures of sensed objects, as shown in
Figures 1, 33–36 and 43 in Unuma. Because the processing results in such
an output, Unuma’s system must, at least in some capacity, “process”
dynamic and static accelerative information as a function of occurrences of
change in velocity or acceleration of the sensed body, in magnitude and/or
direction. See Merriam-Webster Dictionary, available at
http://www.merriam-webster.com/dictionary/process (Ex. 3004) (defining
“process” as “to take in and organize for use ”).
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We determine that Petitioner establishes sufficiently that Unuma
teaches or suggest a “processor, associated with said sensor, that processes
said sensed dynamic and static accelerative phenomena as a function of at
least one accelerative event characteristic” as recited in claim 1 and
“processing, with a processor, . . . sensed dynamic and static accelerative
phenomena of said body as a function of at least one accelerative event
characteristic” as recited in claim 21. Pet. 18–19, 30–31.
c. “to thereby determine whether said evaluated body
movement is within environmental tolerance”
Petitioner contends that Unuma’s processor processes the recited
phenomena, sensed as a function of an accelerative event characteristic to
determine “whether said evaluated body activity is within environmental
tolerance” as recited in the challenged claims, “or, conversely, in an
emergency state of collapse.” Pet. 20–21.
As Petitioner points out, Unuma’s system recognizes “a motion
pattern made up of a motion of ‘a walking or standing still posture’ followed
by a motion of ‘reaching the ground in a short time’ . . . followed by a
motion ‘lying still on the ground’” as “the action of ‘a sudden collapse onto
the ground.’” Id. at 20 (citing Ex. 1003, 16:26–30, 13:26–34, Figs 39, 42
and 43). We agree with Petitioner that Unuma’s system makes a
determination (in a hospital environment, for example) as to whether the
body movement is indicative of an emergency state of collapse or,
conversely, within environmental tolerance. Id. at 20–21. We also agree
with Petitioner that the recognized motion pattern may, or may not, be
reported as an emergency state of collapse “depending on where the incident
is observed.” Id. (citing Ex. 1003, 17:3–7).
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Patent Owner contends that Unuma “merely attempts to recognize
different types of motions through pattern matching, without regard for
whether that body movement is within tolerance.” PO Resp. 26. Patent
Owner contends that “mere recognition of movement as consistent with a
fall is insufficient to determine whether such movement is acceptable, or
within tolerance.” Id. at 27. Patent Owner also argues that Unuma indicates
that some collapses result in false alarms, and that Unuma “suggests various
techniques for verifying that an apparent collapse” is a state of emergency.
Id. Thus, according to Patent Owner, Unuma fails to teach or suggest
determining tolerability based on processing sensed static and dynamic
acceleration. Id.
Patent Owner’s contentions do not persuade us. In Figure 39, for
example, Unuma discloses detecting whether a collapse corresponds to a
state of emergency, which also involves determining whether body activity
is within environmental tolerance, i.e., not in a state of emergency. Ex.
1003, 30:24–42, Fig. 39. When considering disclosures in Unuma regarding
Figures 39 and 42, for example, we agree with Petitioner that “[a]t a
minimum[,] a person of ordinary skill in the art would have found it obvious
in view of Unuma’s disclosed determinations regarding body movements
within particular environments that trigger, for example, alarms and reports,
to provide a determination of whether said evaluated body movement is
within an environmental tolerance.” Pet. 21; see also Ex. 1003, 17:3–7
(discussing “reporting”). Moreover, we are persuaded that a determination
of whether an evaluated body movement is “within an environmental
tolerance” results from previously described processing of sensed dynamic
and static accelerative phenomena as a function of at least one accelerative
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event characteristic, as taught by Unuma. Thus, we are persuaded that
Unuma teaches or suggests the subject matter recited in the “thereby”
language of the claims. See Oxford Dictionaries, available at
http://www.oxforddictionaries.com/us/definition/american_english/thereby
(Ex. 3005) (defining “thereby” as “By that means; as a result of that”).
We determine that Petitioner establishes sufficiently that Unuma
teaches or suggests “to thereby determine whether said evaluated body
activity is within environmental tolerance,” as recited in claims 1 and 21.
Pet. 20–21, 31–33.
d. Conclusion regarding claims 1–7, 10–13, 15, 17, and
21–24
We determine that Petitioner has shown by a preponderance of the
evidence that Unuma teaches or suggests a system or method comprising all
limitations of independent claims 1 and 21. Independent claim 21 is “[a]
method of operating a system to evaluate movement of a body relative [to]
an environment” that includes limitations similar to the “system” of
independent claim 1. Ex. 1001, 12:60–67. Claim 21, however, additionally
recites “processing, with a processor, repeatedly sensed dynamic and static
accelerative phenomena of said body as a function of at least one
accelerative event characteristic.” Id. (emphasis added).
In addition to the above, Petitioner points to Figure 3 of Unuma as
showing that Unuma’s acceleration sensors substantially continuously
measure dynamic and static (gravitational) acceleration of the body. Pet. 30.
Petitioner also points us to where Unuma teaches that “processing unit 7 for
motion/action recognition continuously receives characteristic quantity data
10 from the characteristic quantity extraction unit 5, the data 10 being
derived from the ongoing motions/actions of the object 1 under observation.”
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Id. at 17, 30–31 (citing Ex. 1003, 6: 31–37, 48–50, 16:31–34) (emphasis
added). Petitioner adequately establishes that Unuma discloses the
“repeatedly” component in independent claim 21. Patent Owner does not
address the patentability of independent claim 21 separately from
independent claim 1. See PO Resp. 12–28. The information presented in
the Petition satisfies Petitioner’s burden with respect to independent claim
21.
Petitioner presents detailed arguments and evidence that dependent
claims 2–7, 10–13, 15, 17, and 22–24 are unpatentable as obvious over
Unuma. See Pet. 21–29, 33–34 (citing Ex. 1003, 3:31–33, 6:22–24, 26, 48–
50, 8:41–45, 10:39–43, 11:52–54, 13:26–33, 14:17–32, 15:2–3, 18–20, 53–
56, 16:31–34, 47–51, 23:51–56, 18:45–46, 49–56, 22:14–20, 23:55–56,
Figs. 1, 3, 8, 15–17, 23, 24, 42, 43; Ex. 1002 ¶¶ 49, 51–54, 57–72, 78–83,
App. C). Patent Owner does not address the patentability of those claims
separately from independent claim 1. See PO Resp. 12–28. The information
presented in the Petition satisfies Petitioner’s burden with respect to those
dependent claims.
C. Obviousness of Claim 8 Over Unuma and Sellers
Petitioner contends that dependent claim 8 would have been obvious
over Unuma and Sellers. Pet. 34–36.
1. Overview of Sellers
Sellers discloses an “ambulatory physiological monitor” that includes
a disk cartridge for storing physiological data and analysis software. Ex.
1004, Abstract, 2:24–37. The monitor may include a wireless data modem
for communicating with a remote computer system as to the patient’s
condition through a cellular telephone. Id. at Abstract, 3:29–35, 8:1–16.
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Figure 7 in Sellers illustrates wireless data modem 28 and a cellular
telephone site communicating with remote computer 110 through telephone
network 120. Sellers discloses that “[c]ommunication through the telephone
network 120 may utilize a dial-up line or may utilize the Internet.” Id. at
8:12–14.
2. Analysis
Claim 8 recites that the processor communicates tolerance indicia to a
monitoring controller using the Internet. Ex. 1001, 12:27–29. Petitioner
relies on Sellers’s teaching of “disclos[ing] communicating information on a
monitored patient to a monitoring controller using the Internet.” Pet. 35
(citing Ex. 1004, 8:11–16, Abstr., Fig. 7). Petitioner asserts that “adding
communication through the Internet to Unuma, as taught by Sellers, would
have been obvious to a [person of ordinary skill in the art] and provided the
predic[t]able and beneficial result of sending the information using an
available and reliable communication system.” Id. at 36 (citing Ex. 1002
¶¶ 85–86).
Patent Owner does not address the patentability of claim 8 separately
from independent claim 1. PO Resp. 28 (emphasis omitted) (“For the
reasons discussed above, Unuma does not disclose or teach one or more
elements of independent [c]laim 1, and does not render such claim invalid as
obvious. Because Sellers also does not disclose or teach the claim features
identified above as missing from Unuma, Sellers does not render [c]laim 8
unpatentable when taken in combination with Unuma.”). The information
presented in the Petition satisfies Petitioner’s burden with respect to
dependent claim 8.
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D. Obviousness of Claim 9 Over Unuma and Kurokawa
Petitioner contends that dependent claim 9 would have been obvious
over Unuma and Kurokawa. Pet. 36–37.
1. Overview of Kurokawa
Kurokawa discloses a “walking observation method” that comprises
detecting acceleration during walking using a sensor worn by an individual,
judging output signals from the sensor “or their processed data” according to
preset judgment conditions, and “affirming abnormal walking,” e.g.,
staggering, stumbling, and/or falling, if judgment conditions are all satisfied.
Ex. 1005, 2:2–6, 4:14–26 (¶¶ 5, 6). Kurokawa discloses that the number and
type of occurrences of abnormal walking can be stored in a memory card.
Id. at 6:15–27 (¶ 11). In this context, Kurokawa discloses that “statistical
processing and/or analytical processing can be conducted and even printout
can be made if necessary by demounting the memory card 4oc and
transferring the stored data to a computer.” Id. at 10:25–11:3 (¶ 28).
Kurokawa further discloses that “depending on whether the absolute value
of the number of occurrences is great” or has “a tendency to relatively
increase, it is possible to catch abnormal signs characteristic . . . and predict
dementia, weakened legs/hips, and/or the like beforehand, and treat the aged
properly.” Id.
2. Analysis
Claim 9 recites that the monitoring controller generates statistics. Ex.
1001, 12:30–31. Petitioner relies on Kurokawa’s teaching that “statistical
processing and/or analytical processing can be conducted.” Pet. 37 (quoting
Ex. 1005 ¶¶ 11, 28). Petitioner asserts that “adding the feature of generating
statistics to Unuma, as taught by Kurokawa would have been obvious to a
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[person of ordinary skill in the art] and simply would have provided the
predic[t]able result of a monitoring controller that provides statistics for use
in further analyzing the activity of the body.” Id. (citing Ex. 1002 ¶¶ 88–
89).
Patent Owner does not address the patentability of claim 9 separately
from independent claim 1. PO Resp. 28–29 (emphasis omitted) (“For the
reasons discussed above, Unuma does not disclose or teach one or more
elements of independent [c]laim 1, and does not render such claim invalid as
obvious. Because Kurokawa also does not disclose or teach the claim
features identified above as missing from Unuma, Kurokawa does not render
[c]laim 9 unpatentable when taken in combination with Unuma.”). The
information presented in the Petition satisfies Petitioner’s burden with
respect to dependent claim 9.
E. Obviousness of Claim 14 Over Unuma and Tuch
Petitioner contends that dependent claim 14 would have been obvious
over Unuma and Tuch. Pet. 37–39.
1. Overview of Tuch
Tuch discloses “a method of transmitting information between a
plurality of stations in a local area network, which alleviates the problem of
collision detection when a wireless radio communication medium is
utilized.” Ex. 1006, 1:51–55. Tuch discloses the transmission of
“synchronizing packets” or “heartbeat packets” to “maintain network
synchronization.” Id. at 3:55–61, 4:56–66.
2. Analysis
Claim 14 recites that the processor generates heartbeat indicia. Ex.
1001, 12:43–44. Heartbeat indicia generally “indicates that the system is in
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an operable state.” Id. at 3:24–26. Petitioner relies on Tuch’s teaching of
the “transmission of ‘heartbeat packets’ to synchronize the system, thereby
providing an indication that the system is operational.” Pet. 38–39 (citing
Ex. 1006, 3:55–61, 2:26–34; Ex. 1002 ¶ 91). Petitioner asserts that “it
would have been obvious to a [person of ordinary skill in the art] to provide
Unuma’s system with the heartbeat packets of Tuch to provide[] the
predic[t]able and beneficial result of providing an indication that Unuma’s
body monitoring devices are operational.” Id. at 39 (citing Ex. 1002 ¶ 92).
Patent Owner does not address the patentability of claim 14 separately
from independent claim 1. PO Resp. 29 (emphasis omitted) (“For the
reasons discussed above, Unuma does not disclose or teach one or more
elements of independent [c]laim 1, and does not render such claim invalid as
obvious. Because Tuch also does not disclose or teach the claim features
identified above as missing from Unuma, Tuch does not render [c]laim 14
unpatentable when taken in combination with Unuma.”). The information
presented in the Petition satisfies Petitioner’s burden with respect to
dependent claim 14.
F. Obviousness of Claim 16 Over Unuma and Samuels
Petitioner contends that dependent claim 16 would have been obvious
over Unuma and Samuels. Pet. 39–41.
1. Overview of Samuels
Samuels discloses “[t]he ADXL250, a single monolithic chip (Figure
5), [that] measures both the x and y coordinates of acceleration in a given
plane (e.g., forward-back and side-to-side).” Ex. 1007, 5. Samuels further
discloses that “[b]ecause the sensitive axis of the ADXL150’s sensor is in
the plane of the chip, twin sensors can be fabricated on the same die, with
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one rotated 90 degrees from the other. The ADXL250 is the world’s first
commercially available two-axis monolithic accelerometer.” Id.
2. Obviousness of claim 16
Claim 16 recites that the “sensor is a single monolithic IC including a
resiliently mounted sensor layer oriented in x and y axes.” Ex. 1001, 12:47–
49. Petitioner relies on Samuels’s teaching of “the ‘ADXL250’ acceleration
sensor, which is a single monolithic IC.” Pet. 40–41 (citing Ex. 1007, 5,
Fig. 5). Petitioner asserts that “it would have been obvious to a [person of
ordinary skill in the art] to provide Unuma’s system with the accelerometer
of Samuels to provide[] the predic[t]able and beneficial result of a single
monolithic IC including a resiliently mounted sensor layer oriented in x and
y axes to provide, among other things, the advantages of twin sensors on the
plan of a single chip thereby reducing the number of components in the
system.” Id. at 41 (citing Ex. 1002 ¶¶ 94–95).
Patent Owner does not address the patentability of claim 16 separately
from independent claim 1. PO Resp. 29–30 (emphasis omitted) (“For the
reasons discussed above, Unuma does not disclose or teach one or more
elements of independent [c]laim 1, and does not render such claim invalid as
obvious. Because Samuels also does not disclose or teach the claim features
identified above as missing from Unuma, Samuels does not render [c]laim
16 unpatentable when taken in combination with Unuma.”). The
information presented in the Petition satisfies Petitioner’s burden with
respect to dependent claim 16.
G. Obviousness of Claims 18 and 19 Over Unuma and Okuno
Petitioner contends that dependent claims 18 and 19 would have been
obvious over Unuma and Okuno. Pet. 41–44.
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1. Overview of Okuno
Okuno discloses a “whereabouts detection system.” Ex. 1008,
Abstract, ¶¶ 4–6. The system is a mobile remote handset apparatus that
comprises a GPS receiver for receiving signals to detect current position
information, a sensor that detects “emergency situation information,” e.g.,
that a person is falling down, a control apparatus into which information
detected by the GPS receiver and sensor are input, and a wireless
communication apparatus that transmits information to the control apparatus.
Id. In addition, Okuno discloses that the sensor comprises acceleration
sensors. Id. at ¶ 5. Okuno further discloses that “power supply 15 such as a
lithium rechargeable battery and/or the like is housed in the body housing 16
of the remote handset apparatus 5.” Id. at ¶ 19. Voltage is measured, and
results of those measurements are provided to the control apparatus, which
can modify function to extend life of the power supply. Id.
2. Analysis
Claim 18 recites that the “processor is associable with a power
supply,” and claim 19 recites that the “processor is operable to manage
power supply consumption.” Ex. 1001, 12:52–55. Petitioner relies on
Okuno’s teachings of “power supply 15” and regular measurement of the
voltage of power supply 15 and actions taken to delay exhaustion of power
supply 15. Pet. 42–44 (citing Ex. 1008 ¶ 19). Petitioner asserts that “having
a power supply to power the processor that processes the accelerometer data
would have been obvious to a [person of ordinary skill in the art] and
provided the predic[t]able and beneficial result of providing the necessary
power to the processor.” Id. at 43 (citing Ex. 1002 ¶ 97, App. C). Petitioner
also argues that it would have been obvious to a person of ordinary skill in
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the art “to provide a device with a processor operable to manage power
supply consumption in order to provide the predictable and beneficial result
of extending the useful life of the power supply in the portable device.” Id.
at 44 (citing Ex. 1002 ¶ 99–100, App. C).
Patent Owner does not address the patentability of claims 18 and 19
separately from independent claim 1. PO Resp. 30 (emphasis omitted) (“For
the reasons discussed above, Unuma does not disclose or teach one or more
elements of independent [c]laim 1, and does not render such claim invalid as
obvious. Because Okuno also does not disclose or teach the claim features
identified above as missing from Unuma, Okuno does not render [c]laims
18–19 unpatentable when taken in combination with Unuma.”). The
information presented in the Petition satisfies Petitioner’s burden with
respect to dependent claims 18 and 19.
H. Obviousness of Claim 20 Over Unuma and Nitta
Petitioner contends that dependent claim 20 would have been obvious
over Unuma and Nitta. Pet. 44–46.
1. Overview of Nitta
Nitta discloses a hand-held, accelerometer-based device used to
control on-screen animated characters presented on a computer display. Ex.
1009, Abstract, 1:5–11. Nitta teaches an embodiment that is “orientation
irrelevant,” where “accelerations are normalized to the local gravitational
field vector both to provide a stationary reference for the analysis of the
accelerations regardless of the orientation of the device within the hand, and
also to resolve any aliasing or 180 degree ambiguity.” Id. at 3:60–65. In
one embodiment, “accelerations in the X and Y directions are referenced to
the local gravity vector, making it unnecessary to ascertain the orientation”
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of the device. Id. at 4:52–58, 6:61–65, Fig. 2. In relation to an embodiment,
Nitta describes that “data below 0.1 hertz is deemed to be gravitational data,
whereas the data above 0.1 hertz is deemed to be user data,” and that “all the
data can be represented as an X, Y vector with the gravity information being
in a given direction and the user data in another direction.” Id. at 8:32–33.
2. Analysis
Claim 20 recites that the “processor determines whether said
evaluated body movement is within environmental tolerance independent of
a starting attitude of said sensor.” Ex. 1001, 12:56–59. Petitioner relies on
Nitta’s teaching where “the accelerations are normalized to the local
gravitational field vector both to provide a stationary reference for the
analysis of the accelerations regardless of the orientation of the device
within the hand, and also to resolve any aliasing or 180 degree ambiguity,
making device orientation irrelevant.” Pet. 45–46 (quoting Ex. 1009, 3:60–
65, 4:52–58, 6:61–65; Ex. 1002 ¶ 103, App. C). Petitioner asserts that “it
would have been obvious to a [person of ordinary skill in the art] to provide
Unuma’s processor with this feature taught by Nitta so that environmental
tolerance determinations can be made without the need to consider and
account for the starting attitude of the sensor worn by the user.” Id. at 46.
Petitioner further asserts that such modification “would facilitate Unuma’s
disclosed feature of continuously providing the processor with data derived
from the ongoing motions of the object under observation and analyzing
those motions at any point in time.” Id. (citing Ex. 1003, 6:48–54; Ex. 1002
¶¶ 104–105).
Patent Owner does not address the patentability of claim 20 separately
from independent claim 1. PO Resp. 30–31 (emphasis omitted) (“For the
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reasons discussed above, Unuma does not disclose or teach one or more
elements of independent [c]laim 1, and does not render such claim invalid as
obvious. Because Nitta also does not disclose or teach the claim features
identified above as missing from Unuma, Nitta does not render [c]laim 20
unpatentable when taken in combination with Unuma.”). The information
presented in the Petition satisfies Petitioner’s burden with respect to
dependent claim 20.
III. PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
The party moving to exclude evidence bears the burden of proof to
establish that it is entitled to the relief requested, e.g., that the material
sought to be excluded is inadmissible under the Federal Rules of Evidence.
See 37 C.F.R. §§ 42.20(c), 42.62(a).
Patent Owner moves to exclude paragraphs 10 and 11 of Exhibit 1014
(Reply declaration testimony of Petitioner’s expert, Dr. Welch) as
comprising new claim construction arguments regarding “what is required to
‘process’ sensed static and dynamic accelerative phenomena in the context
of claim 1.” According to Patent Owner, Petitioner should have presented
such arguments in the Petition. Mot. Excl. 1–2 (citing 37 C.F.R.
§ 42.104(b)(3); 77 Fed. Reg. 48,756, 48,768; The Scotts Co. v. Encap, LLC,
IPR2013-00110, Paper 79, 5–6 (PTAB June 24, 2014)).
Petitioner opposes and argues that “[a] motion to exclude is not a
mechanism to argue that a reply contains new arguments.” Opp. Mot. Excl.
2 (citing Vibrant Media, Inc. v. General Electric Co., IPR2013-00170, Paper
56, 31 (PTAB June 26, 2014)). Petitioner further argues that it properly
submitted Dr. Welch’s Reply declaration testimony in direct response to
arguments and evidence raised by Patent Owner in its Response. Id. More
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particularly, Petitioner points out that Patent Owner affirmatively asserted,
in its Patent Owner Response, that “Unuma does not teach processing
dynamic and static acceleration using criteria including specified values for
magnitude and/or direction of accelerative events to evaluate body
movement.” Id. (quoting PO Resp. 22).
Patent Owner also moves to exclude paragraphs 12–14, 18, 22, 24, 25,
27, and 36 of Exhibit 1014 as comprising new arguments discussing new
portions of Unuma that were not presented in the Petition nor Dr. Welch’s
opening declaration (Exhibit 1002). Mot. Excl. 2–3. More particularly,
Patent Owner argues that those paragraphs discuss Figs. 5(b), 33–36, and 48
along with their accompanying text in Unuma, but neither the Petition nor
Patent Owner’s Response examine those portions of Unuma. Id. at 2.
Petitioner opposes and argues that Dr. Welch’s Reply declaration
testimony is directly responsive to Patent Owner’s assertion that “Unuma
does not teach processing dynamic and static acceleration using criteria
including specified values for magnitude and/or direction of accelerative
events to evaluate body movement.” Opp. Mot. Excl. 3 (quoting PO Resp.
22). Petitioner further argues that paragraph 27 of Dr. Welch’s reply
declaration testimony is directly responsive to Patent Owner’s assertion that
“Unuma’s systems do not make tolerability determinations for body
movement as described and claimed in the ’481 Patent.” Id. (quoting PO
Resp. 26).
As Petitioner points out, normally, a motion to exclude is available to
parties to explain why certain evidence is inadmissible, and is not the proper
place to raise arguments regarding the scope of a reply. Trial Practice
Guide, 77 Fed. Reg. 48756, 48767 (Aug. 14, 2012); Liberty Mutual
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Insurance Co. v. Progressive Casualty Insurance Co., Case No. CBM2012-
00002, Paper 66, slip op. at 62 (PTAB Jan. 23, 2014) (stating that a motion
to exclude “is not a mechanism to argue that a reply contains new arguments
or relies on evidence necessary to make out a prima facie case”). That said,
rather than deny Patent Owner’s motion on that basis, we address the points
raised in the Motion to Exclude to clarify the issues raised therein.
As an initial matter, we do not rely on paragraphs 10 and 11 when
making our decision here. Moreover, we determine that Patent Owner’s
Response contains affirmative contentions that Unuma fails to disclose
processing of static acceleration to determine whether evaluated body
movement is within environmental tolerance (see, e.g., PO Resp. 1, 4, 26).
Such contentions differ from mere argument that Petitioner has failed to
offer adequate evidence in its Petition to establish that Unuma discloses the
claimed processing. We, therefore, determine that Petitioner properly
submitted paragraphs 12–14, 18, 22, 24, 25, 27, and 36 of Dr. Welch’s
Reply declaration to rebut Patent Owner’s arguments made in its Patent
Owner Response. Accordingly, we deny Patent Owner’s Motion to Exclude.
IV. NOTICE REGARDING NEW ARGUMENTS AND BELATED
SUPPORT
Patent Owner filed a “Notice Regarding New Arguments and Belated
Support.” Paper 28. Patent Owner contends that certain pages of
Petitioner’s Reply include new arguments regarding how Petitioner contends
Unuma (i) “processes static acceleration;” (ii) “discloses processing
magnitude and direction of acceleration’” and (iii) “discloses using
tolerances.” Id. at 1. Patent Owner further contends that certain pages of
Petitioner’s Reply rely on certain portions of Unuma “not cited or mentioned
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in their Petition or supporting declaration.” Id. Patent Owner contends that
it “had no opportunity to respond [to] or address in its Response or
responsive evidence” these new arguments and evidence. Id.
Petitioner filed a Response to Patent Owner’s Notice, in which
Petitioner asserts that the arguments “are directly responsive to [Patent
Owner’s] assertion that Unuma does not ‘disclose or teaching processing
static acceleration,’” as well as directly responsive to Patent Owner’s
assertions that Unuma does not teach “. . . processing dynamic and static
acceleration using criteria including specified values for magnitude and/or
direction of accelerative events to evaluate body movement” or “ . . .
mak[ing] tolerability determinations for body movement.” Paper 30, 1–2.
During trial, we stated that “[i]n rendering its Final Written Decision,
the Board will determine what weight, if any, is to be given to all of the
presented evidence and arguments in accordance with the rules of the
Board.” Paper 23, 3.
The mere fact that a petitioner submits rebuttal testimony that relies
on new evidence not previously identified in the petition does not suffice to
establish its impropriety. The very nature of a reply is to rebut the patent
owner’s response. 37 C.F.R. § 42.23(b). As described above in connection
with our analysis of Patent Owner’s Motion to Exclude, we determine that
Petitioner’s reliance on the identified arguments and evidence was
responsive to arguments raised in the Patent Owner Response as to the
entirety of the teachings of Unuma, and accordingly, have given appropriate
consideration to the identified arguments and evidence relating to the
contentions regarding the entirety of Unuma.
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V. CONCLUSION
Taking account of the arguments and evidence presented during trial,
we determine that Petitioner establishes by a preponderance of the evidence
that claims 1–24 of the ’481 patent are unpatentable based on the following
grounds of obviousness under 35 U.S.C. § 103(a):
A. Claims 1–7, 10–13, 15, 17, and 21–24 are unpatentable
as obvious over Unuma;
B. Claim 8 is unpatentable as obvious over the combination
of Unuma and Sellers;
C. Claim 9 is unpatentable as obvious over the combination
of Unuma and Kurokawa;
D. Claim 14 is unpatentable as obvious over the
combination of Unuma and Tuch;
E. Claim 16 is unpatentable as obvious over the
combination of Unuma and Samuels;
F. Claims 18 and 19 are unpatentable as obvious over the
combination of Unuma and Okuno; and
G. Claim 20 is unpatentable as obvious over the
combination of Unuma and Nitta.
VI. ORDER
For the foregoing reasons, it is
ORDERED that claims 1–24 of the ’481 patent are unpatentable;
FURTHER ORDERED that Patent Owner’s Motion to Exclude is
denied; and
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FURTHER ORDERED that, because this is a Final Written Decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.
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FOR PETITIONER:

Joseph S. Presta
Robert W. Faris
NIXON & VANDERHYE, P.C.
jsp@nixonvan.com
rwf@nixonvan.com
rfaris@nixonvan.com

FOR PATENT OWNER:

Daniel E. Venglarik
David M. Doyle
Michael C. Wilson
S. Wallace Dunwoody
MUNCK WILSON MANDALA LLP
PTAB-ILIF@munckwilson.com
dvenglarik@munckwilson.com
ddoyle@munckwilson.com
mwilson@munckwilson.com
wdunwoody@munckwilson.com