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

Patent Trial and Appeal Board

Apr 28, 2016

11633672 (P.T.A.B. Apr. 28, 2016)

Trials@uspto.gov Paper 39
571-272-7822 Entered: April 28, 2015

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, INC.,
Patent Owner.
____________

Case IPR2015-00115
Patent 7,479,890 B2
____________

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

BONILLA, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

IPR2015-00115
Patent 7,479,890 B2

2
I. INTRODUCTION
Nintendo of America Inc. and Nintendo Co., Ltd. (“Petitioner”) filed a
Corrected Petition requesting inter partes review of claims 1 and 11 of U.S.
Patent No. 7,479,890 B2 (Ex. 1001, “the ’890 patent”). Paper 4 (“Pet.”).
iLife Technologies, Inc. (“Patent Owner”) filed a Preliminary Response.
Paper 9 (“Prelim. Resp.”). Upon considering those submissions, we
instituted inter partes review of claims 1 and 11 of the ’890 patent based on
two obviousness ground. Paper 12 (“Dec. on Inst.”).
After institution, Patent Owner filed a Response (Paper 14 (“PO
Resp.”)), and Petitioner filed a Reply (Paper 21 (“Reply”)). Petitioner
proffered a Declaration of Gregory Francis Welch, Ph.D. (Ex. 1002, “Welch
Declaration”) with its Petition and a Reply Declaration of Gregory Francis
Welch, Ph.D. (Ex. 1013, “Welch Reply Declaration”) with its Reply. Patent
Owner proffered Declarations of Dr. Robert H. Sturges (Ex. 2006, “the
Sturges Declaration”), Michael L. Lehrman (Ex. 2007), Michael D. Halleck
(Ex. 2008), Michael E. Halleck (Ex. 2009), Alan Owens (Ex. 2010), Edward
L. Massman (Ex. 2011), Don James (Ex. 2012), and Greg Younger (Ex.
2013) with its Response. Also, transcripts from depositions of Dr. Sturges
(Ex. 1012) and Dr. Welch (Ex. 2038) were filed.
In addition, Patent Owner filed a Motion to Exclude seeking to
exclude certain evidence. Paper 29 (“ Mot. Excl.”). Petitioner filed an
Opposition to Patent Owner’s Motion to Exclude (Paper 32) (“Opp. Mot
Excl.”), and Patent Owner filed a Reply (Paper 36).
Patent Owner also filed a Notice Regarding New Arguments and
Belated Support (Paper 30), to which Petitioner filed a Response (Paper 33).
IPR2015-00115
Patent 7,479,890 B2

3
Patent Owner further filed a Motion for Observations (Paper 31), and
Petitioner filed a Response (Paper 34) to that Motion.
A combined oral hearing in this proceeding and Cases IPR2015-
00105, IPR2015-00106, IPR2015-00109, IPR2015-00112, and IPR2015-
00113 was held on January 27, 2016; a transcript of the hearing is included
in the record (Paper 38, “Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). We issue this Final
Written Decision 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 and 11 of the ’890 patent are
unpatentable based on one obviousness ground. We also deny Patent
Owner’s Motion to Exclude.
A. Grounds of Unpatentability at Issue
Petitioner contends that challenged claims 1 and 11 are unpatentable
under 35 U.S.C. § 103 based on the following grounds.
Claims Challenged Basis Reference(s)
1 and 11 § 103 Yasushi (Ex. 1003)1
1 and 11 § 103 Unuma (Ex. 1004)2

Dec. on Inst. 35.

1 Yasushi, Japanese Patent Application JP10-295649, published Nov. 10,
1998 (Ex. 1003).
2 Unuma et al, European Patent Application EP 0 816 986 A2, published
Jan. 7, 1998 (Ex. 1004).
IPR2015-00115
Patent 7,479,890 B2

4
B. Related Proceedings
The parties indicate that district court cases involving the ’890 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.
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 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. 6,307,481 B1 (Case IPR2015-00105), 6,703,939 B2 (IPR2015-
00106), 6,864,796 B2 (Case IPR2015-00109), 7,095,331 B2 (Case IPR2015-
00112), and 7,145,461 B2 (Case IPR2015-00113).
C. The ’890 Patent (Ex. 1001)
The ’890 patent relates to systems, and methods of operation thereof,
for evaluating movement of a body relative to an environment, such as falls,
irregular movement, inactivity, etc. Ex. 1001, 1:30–34, 2:47–50. The ’890
patent indicates that prior art methods fail to discern normal, acceptable, or
unacceptable changes in levels of body activity. Id. at 1:58–64. 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 2:24–27.
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 2:20–24. The system of the
IPR2015-00115
Patent 7,479,890 B2

5
’890 patent includes a sensor associated with the body that operates to
repeatedly sense dynamic and static accelerative phenomena of the body. Id.
at 2:60–63. The sensor “senses one or more absolute values, changes in
value, or some combination of the same” and may be “a plural-axis sensor”
that “generates an output signal to the processor indicative of measurements
of both dynamic and static acceleration of the body in plural axes.” Id. at
3:6–15, 6:36–44. In one embodiment, the sensor generates voltage signals
that include “an alternating current (ac) voltage component proportional to G
forces (i.e., dynamic acceleration component related to vibrations of sensor
layer 31),” as well as “a direct current (dc) voltage component proportional
to an angle relative to earth (i.e., static acceleration component related to
gravity).” Id. at 7:9–23.
The system further includes a processor that processes “sensed
dynamic and static accelerative phenomena as a function of at least one
accelerative event characteristic and an environmental representation” to
determine whether evaluated body activity is within “environmental
tolerance.” Id. at 2:60–67. The ’890 patent defines “accelerative events” as
“occurrences of change in velocity of the body (or acceleration), whether in
magnitude, direction or both, and including cessation of activity or
inactivity.” Id. at 6:12–16. The ’890 patent states that an accelerative event
characteristic “will largely be defined by the specific application.” Id. at
10:52–56. The specification also defines “environmental representation” as
“any mathematical or other suitable depiction, delineation, model or like
measured description of the environment associated with the body.” Id. at
3:15–19.
IPR2015-00115
Patent 7,479,890 B2

6
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 10:57–60. The ’890
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 10:60–64.
Figure 4 of the ’890 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 ’890 patent. Id. at 5:24–28, 9:31–44. 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 9:45–49.
Sensor 25 senses x and y acceleration values and outputs measurement
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 9:49–58. Step 415 involves processor 47 using
the outputs from sensor 25 to determine a last stable position of the body.
Id. at 9:59–61. 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
IPR2015-00115
Patent 7,479,890 B2

7
10:10–15. In Step 425, processor 47 determines a fall by testing a post-
impact stream of samples against a tolerance. Id. at 10:20–23. 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
10:29–33.
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 10:36–41. In Step 440, any impact that
exceeds a G force threshold is treated as a debilitating fall. Id. at 10:41–45.
“Exemplary processor 47 is programmed to distinguish between normal and
abnormal accelerative events (e.g., walking, sitting, lying down, etc. versus
tripping, falling down, inactivity over time, etc.), and, when an abnormal
event is identified, indicates whether the abnormal event is tolerable, or
within tolerance.” Id. at 13:34–39.
D. Challenged Claims
Petitioner challenges independent claims 1 and 11 of the ’890 patent,
which are reproduced below.
1. A system that evaluates movement of a body relative to an
environment, said system comprising:
a sensor, associable with said body, that senses
accelerative phenomena of said body relative to a three
dimensional frame of reference in said environment,
said sensor comprising a plurality of acceleration
measuring devices; and
a processor, associated with said sensor, that processes
said sensed accelerative phenomena of said body as a function
of at least one accelerative event characteristic
IPR2015-00115
Patent 7,479,890 B2

8
to thereby determine whether said evaluated body
movement is within an environmental tolerance, and
to thereby determine whether said body has experienced
no movement for a predetermined period of time.
11. A method of operating a system to evaluate movement of a
body relative to an environment wherein a sensor is associated
with said body, said method comprising the steps of:
substantially continuously measuring dynamic and static
acceleration of said body with a plurality of acceleration
measuring devices relative to a three dimensional frame of
reference and providing output signals indicative thereof;
processing said sensed 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 an environmental tolerance; and
determining whether said body has experienced no
movement for a predetermined period of time.
Ex. 1001, 21:57–22:3, 46–61 (paragraph indentations added).
II. ANALYSIS
A. Claim Construction
In an inter partes review, “[a] claim in an unexpired patent shall be
given its broadest reasonable construction in light of the specification of the
patent in which it appears.” 37 C.F.R. § 42.100(b); 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
IPR2015-00115
Patent 7,479,890 B2

9
own lexicographer, providing a definition of the term in the specification
with “reasonable clarity, deliberateness, and 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 ’890 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. to Inst. 8–13.
Patent Owner states that “for purposes of this Response, the
preliminary claim constructions from the Board’s Decision to institute trial
(Paper 12) are used.” PO Resp. 28. Also, Petitioner presents no arguments
disputing these preliminary claim constructions in its Reply. 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
above, we provide other claim constructions below.
IPR2015-00115
Patent 7,479,890 B2

10
1. “a sensor . . . that senses accelerative phenomena of said body
relative to a three dimensional frame of reference in said
environment”(claim 1)
Petitioner advocates a construction for the above-referenced claim
limitation in which a three-dimensional (“3D”) frame of reference is
“established by the sensor so that measurements can be taken relative to
each of the three axes of the 3D frame of reference.” Reply 4; see also Ex.
1013 ¶ 18 (“In order to constitute a sensor that senses relative to a 3D frame
of reference as claimed, the sensor must have sensing capability in all three
axes to establish the required 3D frame of reference.”).
We authorized Patent Owner to file a sur-reply addressing the
construction of “relative to a three dimensional frame of reference” in this
proceeding. Paper 26 (Patent Owner’s Supplemental Claim Construction
Briefing). In the sur-reply, Patent Owner argues that a proper construction
of the claim language “does not require sensing or measuring simultaneously
in three directions or a three-dimensional coordinate system.” Id. at 1; see
also Ex. 2006 ¶ 106 (“The claim limitation recites sensing accelerative
phenomena ‘relative to a three dimensional frame of reference in said
environment,’ not ‘in each of three dimensions.’”).
Patent Owner argues that Petitioner’s construction would require at
least three accelerometers, rendering the term “plurality” superfluous. Paper
26, 1 (citing Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1159–60 (Fed. Cir. 2007)). We understand Patent Owner to be asserting that
if “a sensor . . . that senses accelerative phenomena . . . relative to a three
dimensional frame of reference” were to be construed to require sensing
along three axes, this would necessarily require three accelerometers,
thereby rendering it superfluous to recite that the “sensor compris[es] a
IPR2015-00115
Patent 7,479,890 B2

11
plurality of acceleration measuring devices.” Ex. 1001, claims 1 and 11.
We are not persuaded by Patent Owner’s argument.
Although the plurality of acceleration devices can be three
accelerometers each aligned along one axis of a three dimensional
coordinate system (Ex. 1001, 14:35–42), as discussed in more detail below,
the plurality of acceleration devices can alternatively be two plural-axis
accelerometers in which a first plural-axis accelerometer is aligned within a
first plane of a three dimensional coordinate system and in which a second
plural-axis accelerometer is aligned within a second plane, and this alternate
configuration would also allow sensing along three axes (id. at 16:51–61).
Thus, the reference to “a plurality of acceleration measuring devices” in
claim 1 is inclusive of at least two alternate embodiments, where each
comprise more than one, i.e., a plurality of, acceleration measuring devices.
See id. at 14:35–42 (“In one arrangement . . . accelerometer 910 is aligned
parallel to the x-axis . . . Accelerometer 920 is aligned parallel to the y-axis .
. . Accelerometer 930 is aligned parallel to the z-axis”), 16:51–61 (“In an
alternative advantageous embodiment . . . first axis of accelerometer 910 is
aligned parallel to the x axis and the second axis of accelerometer [910] is
aligned parallel to the y axis . . . first axis of accelerometer 920 is aligned
parallel to the negative y axis and the second axis of accelerometer 920 is
aligned parallel to the z axis”). Accordingly, we do not agree with Patent
Owner’s premise that Petitioner’s claim construction would render the term
“plurality” superfluous per se.
Although we are not persuaded by Patent Owner’s arguments as set
forth above, we consider that claim terms are given their ordinary and
customary meaning as understood by one of ordinary skill in the art in the
IPR2015-00115
Patent 7,479,890 B2

12
context of the entire disclosure. Translogic Tech., 504 F.3d at 1257. The
ordinary and customary meaning of the term “relative to” is “with regard
to.” See The American Heritage Dictionary of the English Language,
available at https://www.ahdictionary.com/word/search.html?q=relative+to
(last visited Apr. 26, 2016) (defining “relative to” as “[w]ith regard to;
concerning”) (Ex. 3003); Merriam-Webster Dictionary, available at
http://www.merriam-webster.com/dictionary/relative%20to (last visited Apr.
26, 2016) (defining “relative to” as “with regard to: in connection with”)
(Ex. 3004); The Oxford English Dictionary, available at
http://www.oed.com/view/Entry/161819?redirectedFrom=relative#eid (last
visited Apr. 26, 2016) (defining “relative to” as “[h]aving application or
reference to; relating to.”) (Ex. 3005).
There is nothing in the specification that indicates a deviation from
this ordinary meaning. Accordingly, the plain language of the claim means
that the sensor senses accelerative phenomena of said body with regard to a
three dimensional frame of reference. We also interpret “three dimensional
frame of reference” to refer to “a system of axes (in three dimensions) in
relation to which position or motion can be defined.” See The Oxford
English Dictionary, available at
http://www.oed.com/view/Entry/317084?redirectedFrom=frame+of+referen
ce#eid (last visited Apr. 26, 2016) (Ex. 3006) (defining “frame of reference”
as “[a] system of coordinate axes in relation to which size, position, or
motion, can be defined;” see also Ex. 1001, 2:48–50 (“the present invention
introduces systems, as well as methods of operating such systems, for
evaluating movement of a body relative to an environment”), 3:11–15 (“the
sensor may be a plural-axis sensor that senses accelerative phenomena and
IPR2015-00115
Patent 7,479,890 B2

13
generates an output signal to the processor indicative of measurements of
both dynamic and static acceleration of the body in plural axes”). In other
words, the plain language of the claim refers to a sensor that senses
accelerative phenomena of said body with regard to a system of axes (in
three dimensions) in relation to which position or motion can be defined.
The specification describes the term “sensor” broadly as “a device that
senses one or more absolute values, changes in value, or some combination
of the same, of at least the sensed accelerative phenomena.” Ex. 1001, 3:6–
9. The specification describes “an advantageous embodiment” in which “the
sensor may be a plural-axis sensor that senses accelerative phenomena and
generates an output signal to the processor indicative of measurements of
both dynamic and static acceleration of the body in plural axes.” Id. at 3:9–
15. The specification explains that sensor 25 of Figure 1 is “for illustrative
purposes only” (id. at 7:31–32), that “any sensor that is capable of sensing
accelerative phenomena relative to a body may be used in lieu of, or even in
conjunction with, sensor 25” (id. at 7:33–35), and that “alternate orientations
of sensor 25 may be used for different applications” (id. at 7:35–36).
Notably, the specification also describes that the x and y outputs of
illustrative sensor 25 can distinguish a “fall” from “normal body movement”
(i.e., “disruption of a stable position”) “by a concussive force followed by a
distinctly different ending stable position.” Id. at 8:64–9:14. Thus,
measurements taken along two axes (i.e., x and y axes) “sense,” i.e., obtain
information about, accelerative phenomena of a body relative to a 3D frame
of reference, i.e., a fall.
Later on, the specification further describes “an alternate
advantageous embodiment” with three acceleration measuring devices that
IPR2015-00115
Patent 7,479,890 B2

14
may each comprise a plural axis measuring device. Id. at 14:4–16. In one
arrangement, each acceleration measuring device is aligned parallel to the x-
axis, y-axis, and z-axis, respectively, of a three dimensional Cartesian
coordinate system, and measures accelerations in the x direction, y direction,
and z direction, respectively. Id. at 14:35–42. The specification further
describes another “alternate advantageous embodiment” in which a first
plural-axis accelerometer has a first axis aligned parallel to the x axis and a
second axis aligned parallel to the y axis, and a second plural-axis
accelerometer has a first axis aligned parallel to the negative y axis and a
second axis aligned parallel to the z axis. Id. at 16:51–61.
Even though the specification describes particular embodiments in
which acceleration measuring devices are aligned parallel to (and
accelerations are measured in) the x direction, y direction, and z direction of
a three dimensional Cartesian coordinate system, we decline to import into
the claims limitations based on specific embodiments in the specification.
See, e.g., SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875
(Fed. Cir. 2004) (“[A] particular embodiment appearing in the written
description may not be read into a claim when the claim language is broader
than the embodiment.”); In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
1993) (“[L]imitations are not to be read into the claims from the
specification.”) (citations omitted).
We determine that the claim language is broader than the particular
embodiments that measure acceleration along all three axes, and mirrors the
specification’s broader reference to the use of any sensor that is capable of
sensing accelerative phenomena “relative to a body” (Ex. 1001, 7:31–35,
2:47–54). For example, as discussed above, the ’890 patent describes a “fall
IPR2015-00115
Patent 7,479,890 B2

15
detection application” (id. at 8:64–9:14), and indicates that the fall by a body
is detected through movement of the body in a left/right and/or forward/back
directions as well as position of the body, such as when a person is lying
down (id.). Thus, in this embodiment, the ’890 patent refers to taking
measurements (using devices) from two axes to “sense” accelerative
phenomena of the body relative to a three dimensional frame of reference,
i.e., a “fall” of the body. Id.. The described fall detection application
provides context for how one of ordinary skill in the art would understand
the term “relative to.” Construing the claims to encompass a system that
measures acceleration along either two or three axes (using devices within
the sensor), as way to “sense” acceleration phenomena of the body in
relation to a three dimensional frame of reference (e.g., a fall), is consistent
with the specification.
For the foregoing reasons, we are not persuaded that the claim should
be construed to require the sensor to take measurements in all three axes, as
asserted by Petitioner. Petitioner argues that the claim cannot simply mean
“sensing or existing in 3D space regardless of the number of sensing axes on
the sensor” because such a construction would essentially render the claim
language meaningless. Reply 4. Petitioner argues that a two dimensional
(“2D”) sensor “exists in 3D space does not change the fact that it only senses
relative to a 2D frame of reference defined by the two sensing axes 27 and
29.” Id. (citing Ex. 1007, 68 (Fig. 1)). Petitioner’s declarant, Dr. Welch,
also states that “a 2D sensor only senses relative to a 2D frame of reference
(the two axes defined by the 2D sensor)” and notes the examples of a tape
measure and an altimeter that each exist in 3D space, but are only capable of
IPR2015-00115
Patent 7,479,890 B2

16
measuring relative to the one-dimensional frame of reference established by
each device. Ex. 1013 ¶¶ 17–18.
We are not persuaded by Petitioner’s argument. As discussed above,
not only does the specification describe a sensor that exists and operates in
3D space, but the specification also “show[s] use of a dual axis
accelerometer to distinguish movement of a body left/right (x axis),
forward/backward (y axis), and falling to the ground (z axis).” Paper 26, 2
(citing Ex. 1001, 8:66–9:17); see also Ex. 2006 ¶¶ 105–107. Accordingly,
the sensor senses accelerative phenomena of a body with regard to a system
of axes (in three dimensions) in relation to which position or motion can be
defined. Thus, because we do not consider the recited sensor “to essentially
mean sensing or existing in 3D space regardless of the number of sensing
axes on the sensor” (Reply 4), Petitioner does not persuade us that a “proper
reading of the claim language . . . requires that a 3D frame of reference be
established by the sensor so that measurements can be taken relative to each
of the three axes of the 3D frame of reference.” Id. at 4.
Petitioner also argues that a person of ordinary skill in the art would
understand that sensing relative to a three dimensional frame of reference
requires three outputs from the sensor. Reply 4 (citing Ex. 1013 ¶ 17).
Petitioner asserts that, for example, sensing position relative to a 3D frame
of reference requires three outputs, X, Y, and Z in a 3D Cartesian frame of
reference, or R, θ, Φ in a 3D Polar frame of reference, as supported by the
specification. Id. at 4–5 (citing Ex. 1001, 14:22–15:16). We are not
persuaded by Petitioner’s additional argument. As discussed above, even if
the specification describes specific embodiments in which a sensor obtains
measurements along three axes, this does not mean that one of ordinary skill
IPR2015-00115
Patent 7,479,890 B2

17
in the art would understand three outputs (i.e., three devices) must be present
to meet the broader claim language of sensing relative to a three dimensional
frame of reference.
For the foregoing reasons, we construe “a sensor . . . that senses
accelerative phenomena of said body relative to a three dimensional frame of
reference in said environment” as “a sensor that senses accelerative
phenomena of a body with regard to a system of axes (in three dimensions)
in relation to which position or motion can be defined in the environment.”
The recited “sensor” comprises a plurality of acceleration devices, i.e., at
least two devices, that measure acceleration along at least two axes.
2. “measuring dynamic and static acceleration of said body with a
plurality of acceleration measuring devices relative to a three
dimensional frame of reference” (claim 11)
The above-mentioned term recited in claim 11 is similar to the
corresponding limitation in claim 1 discussed above in that it refers to
measuring acceleration, i.e., “dynamic and static acceleration” (claim 11) vs.
“accelerative phenomena” (claim 1), “of said body . . . relative to a three
dimensional frame” using “a plurality of acceleration measuring devices.”
We determine that “measuring dynamic and static acceleration,” as opposed
to “senses accelerative phenomena,” does not affect our above-described
analysis.
Thus, for the preceding reasons, we construe “measuring dynamic and
static acceleration of said body with a plurality of acceleration measuring
devices relative to a three dimensional frame of reference” as “measuring
dynamic and static acceleration of a body with regard to a system of axes (in
three dimensions) in relation to which position or motion can be defined in
an environment.”
IPR2015-00115
Patent 7,479,890 B2

18
3. “accelerative event characteristic”
The specification of the ’890 patent 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, 6:13–16. Both parties cite the
definition and propose it as the construction for “accelerative event” or
“accelerative phenomena.” Pet. 6 (citing Ex. 1001, 6:13–16); PO Resp. 29
(citing Ex. 1001, 6:13–16). Consistent with that definition, we construe an
“accelerative event characteristic” as a characteristic of an accelerative
event, as defined above.
B. Obviousness over Yasushi
Petitioner contends that claims 1 and 11 of the ’890 patent would have
been obvious over Yasushi. Pet. 11–24, 42–59. To prevail in its challenge
of claims 1 and 11 as obvious over Yasushi, Petitioner must prove
unpatentability by a preponderance of the evidence. 35 U.S.C. § 316(e); 37
C.F.R. § 42.1(d).
1. Priority Date
The ’890 patent issued from an application, which is a continuation of
application of U.S. patent application Ser. No. 10/057,739 (“the parent
application”) filed on Jan. 25, 2002, now U.S. Pat. No. 7,145,461, which
Petitioner challenges in IPR2015-00113. Ex. 1001, 1:11–13. The parent
application is a continuation-in-part of application 09/909,404 (“the
grandparent application”) filed Jul. 19, 2001, now U.S. Pat. No. 6,703,939
(“the ’939 patent”), which Petitioner challenges in IPR2016-00106. Id. at
1:13–16. The grandparent application is a continuation-in-part of
application 09/396,991 (“the great grandparent application”) filed on
IPR2015-00115
Patent 7,479,890 B2

19
September 15, 1999, now U.S. Patent No. 6,307,481, which Petitioner
challenges in IPR2016-00105. Id. at 1:16–21. The ’890 patent also claims
priority to provisional application 60/265,521 filed on January 31, 2001. Id.
at 1:4–7.
Petitioner argues that claims 1 and 11 of the ’890 patent “recite the
feature of sensing or measuring acceleration ‘relative to a three dimensional
frame of reference’” and “[t]his feature was first disclosed by Applicant in
Provisional Application No. 60/265,521 filed January 31, 2001.” Pet. 10
(citing Ex. 1001, claims 1, 11; Ex. 1010). Petitioner asserts that the feature
of sensing relative to a three dimensional frame of reference was not added
until the grandparent application (the ’939 patent), filed July 19, 2001, with
a priority claim to provisional application No. 60/265,521, filed January 31,
2001. Reply 3. Petitioner, thus, argues that “the earliest possible priority
date to which the claims of the ’890 patent are entitled is January 31, 2001.”
Pet. 10. Petitioner also states that Yasushi “was published on November 10,
1998” and “Yasushi is prior art under §102(b) to claims 1 and 11 of the ’890
patent.” Id. at 11.
In its Response, Patent Owner argues, and provides evidence, that it
antedates Yasushi and eliminates the ground based on that reference by
showing prior conception and reduction to practice of claims 1 and 11 before
Yasushi’s date of publication on November 10, 1998. PO Resp. 35–41.
In order to receive benefit of the filing date of an application
previously filed in the United States, the subsequent application for patent
must be for an invention disclosed in the manner provided in 35 U.S.C.
§ 112, first paragraph. 35 U.S.C. § 120; see also 37 C.F.R. § 1.78; Tronzo v.
Biomet, Inc., 156 F.3d 1154, 1158 (Fed. Cir. 1998) (discussing requirements
IPR2015-00115
Patent 7,479,890 B2

20
of claiming benefit of priority date of earlier application under 35 U.S.C.
§ 120). To satisfy 35 U.S.C. §112, first paragraph, the written description
must convey with reasonable clarity to those skilled in the art that the
inventor was in possession of the claimed invention. Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1563–64 (Fed. Cir. 1991). One shows
“possession” of the invention by describing the invention using such
descriptive means as words, structures, figures, diagrams, formulas, etc. that
fully set forth the claimed invention. Lockwood v. Am. Airlines, Inc., 107
F.3d 1565, 1572 (Fed. Cir. 1997). The issue of whether the written
description requirement has been satisfied is a question of fact. Wang Labs.,
Inc. v. Toshiba Corp., 993 F.2d 858, 865 (Fed. Cir. 1993).
We determine whether Patent Owner has provided sufficient evidence
to support that the written description requirement has been satisfied with
respect to the limitation of claim 1 for “a sensor, associable with said body,
that senses accelerative phenomena of said body relative to a three
dimensional frame of reference in said environment,” as well as the
limitation of claim 11 for “measuring dynamic and static acceleration of said
body with a plurality of acceleration measuring devices relative to a three
dimensional frame of reference” Ex. 1001, claims 1, 11. In its arguments
regarding the construction of “relative to a three dimensional frame of
reference in said environment,” Patent Owner explains that the specification
of the ’890 patent “describes using two accelerometers oriented along
perpendicular axes to evaluate movement of a body relative to a three-
dimensional environment.” Paper 26, 2. Patent Owner also explains that the
specification “show[s] use of [a] dual axis accelerometer to distinguish
IPR2015-00115
Patent 7,479,890 B2

21
movement of a body left/right (x axis), forward/backward (y axis), and
falling to the ground (z axis).” Id. (citing Ex. 1001, 8:66–9:17).
The Sturges Declaration further explains that
[t]he ‘481 Patent describes . . . two accelerometers as being
employed to evaluate body movement “relative to an
environment.” IPR2015-00105, Exhibit 1001 at Abstract, 1:66
to 2:2. The ‘481 Patent also describes how measurements by
the two accelerometers in the x and y directions allow
inferences regarding body orientation with respect to three
dimensions (x, y and z): when static acceleration measurements
from either accelerometer change from less than 1 G (when a
monitored person is standing upright) to about 1 G in the
combined x and y directions (after the person has fallen).
IPR2015-00105, Exhibit 1001 at 7:9–30 and 8:39–49. The x
and y accelerometers described in the ‘481 Patent thus sense
accelerative phenomena “relative to a three dimensional frame
of reference in said environment.”

Ex. 2006 ¶ 107; see also Ex. 1012, 200:21–201:1 (“[Using a two-axis
accelerometer to measure acceleration or accelerative phenomena relative to
a three-dimensional frame of reference] can be accomplished by
understanding that gravity in this context is constant and in one direction and
that if the X and Y axis are – are reading a number and one considers the
overall magnitude of those two numbers taken together, one can conclude
what the third axis would be reading.”). See also Ex. 1007, 18 (the ’481
patent referring to “FIGS. 3a to 3d illustrate exemplary strip chart records of
output of the sensor introduced in FIGS. 1 and 2 taken during illustrative
situations”); Ex. 1001; 5:21–23 (the ’890 patent referring to “FIGS. 3A to
3D illustrate exemplary strip chart records of output of the sensor introduced
in FIGS. 1 and 2 taken during illustrative situations”).
IPR2015-00115
Patent 7,479,890 B2

22
Petitioner argues that Patent Owner is wrong that “the two axes sensor
[of Figure 1] also senses along a third axis.” Reply 5. We do not find this
argument persuasive for the reasons discussed above in relation to claim
construction. In view of how we have construed the claims at issue, Patent
Owner does not need to show written description support in its priority
documents for a system that measures acceleration along all three axes, but
rather must show support for a sensor that senses accelerative phenomena
with regard to a system of axes (in three dimensions) in relation to which
position or motion can be defined. As discussed above, in certain
embodiments, such sensing can be accomplished by measuring acceleration
along two axes.
Petitioner also argues that “a third sensor would need to be added to a
two axis accelerometer in order to sense relative to a 3D frame of reference.”
Reply 5 (citing Ex. 1012, 9:25–10:22; 26:20–27:8). Although Dr. Sturges
indicates that he “would have had to add another accelerometer orthogonal
to the other two” in order “to establish a three-dimensional coordinate
system” (Ex. 1012, 10:18–22), we do not find this testimony persuasive to
support that a third sensor would be needed in order to sense relative to a
three dimensional frame of reference. This portion of testimony relates to
how three accelerometers can establish a three-dimensional coordinate
system, not whether acceleration measurements in two dimensions provides
information regarding a body relative to a 3D frame of reference. See id. at
9:25–10:22. As discussed above, the ’890 patent describes a system that
specifically contemplates a fall detection application for a body, which
contemplates the up/down (z axis) of interest, i.e., measures acceleration
IPR2015-00115
Patent 7,479,890 B2

23
along two axes to obtain information about (sense acceleration phenomena
of) a body relative to a 3D frame of reference. Ex. 1001, 8:64–9:17.
As to Dr. Sturges’ further testimony that a dual-axis accelerometer
would not establish a three-dimensional coordinate system (Ex. 1012, 27:4–
8), we do not find this testimony persuasive to support a finding that a third
sensor is needed in order to sense relative to a three dimensional frame of
reference. A dual axis accelerometer alone, without additional information
regarding the system/environment in which it will be operating, is different
from a dual axis accelerometer defined to be in a particular orientation. For
example, consistent with our discussion above regarding disclosures in the
specification, Dr. Sturges has testified that a third axis could be defined even
if there was no sensing along that axis. See, e.g., Ex. 1012, 45:15–21 (“Q.
So how is that Z axis—so it’s drawn in there as a third dimension, but what
is defining that Z axis? A. That those axes are relative to the space in which
the instrument exists, and the axes are attached so that we can see the – the
frame of reference clearly in that figure.”). Accordingly, we determine that
Patent Owner has shown sufficiently how the great-grandparent application
(filed on September 15, 1999) describes sensing acceleration phenomena
(claim 1), and measuring dynamic and static acceleration (claim 11), of a
body relative to a 3D frame of reference, as recited in the challenged claims.
Petitioner also argues that two inventors of the ’890 patent “confirmed
that sensing acceleration relative to a 3D frame of reference requires sensing
along three axes (‘up and down, front to back, and side to side’)” Reply 6
(citing Ex. 2007, 11; Ex. 2009, 15). We are also not persuaded by this
argument, which essentially contends that disclosure of three acceleration
measuring devices is required to establish written description support here.
IPR2015-00115
Patent 7,479,890 B2

24
As discussed above, a sensor that comprises two acceleration devices, which
measure acceleration in two axes, can suffice to show written description
support of the claims at issue. Accordingly, Petitioner has not persuaded us
that the great-grandparent application, to which priority is claimed, lacks a
sensor that senses accelerative phenomena relative to a three dimensional
frame of reference, even if Patent Owner refers us a description of a relevant
system in the priority document that is not exactly the same as a system
described in the ’890 patent.
Petitioner also argues that inferring orientation in a third dimension
does not meet the language of the claim that refers to a sensor that “senses
accelerative phenomena . . . relative to a three dimensional frame of
reference.” Reply 6. In other words, Petitioner argues that “[s]ensing (or
measuring) is very different from inferring.” Id. (citations omitted). As
explained above, we construe the claims to refer to a sensor that senses
accelerative phenomena, or something that measures dynamic and static
acceleration, of a body with regard to a system of axes (in three dimensions)
in relation to which position or motion can be defined in the environment.
There is nothing in this construction that would require sensing or measuring
along each of the three axes. Petitioner does not dispute that there is sensing
or measuring in at least the x and y directions of the frame of reference in the
great-grandparent application to which priority is claimed, such that there is
sensing of accelerative phenomena, or measuring dynamic and static
acceleration, relative to a system of axes. Position or motion is then defined
in the system of axes in three dimensions in order to detect a fall. Ex. 1007,
18 (4:13–16), 20 (7:9–45).
IPR2015-00115
Patent 7,479,890 B2

25
Petitioner further argues that that the disclosures in the ’481
specification:
explain that the x and y outputs of the accelerometers, as shown
in Figs. 3a to 3d, can be used to determine if the body has fallen
over (or rotated) to the left or right, and/or has fallen over (or
rotated) in the forward or backward direction. These
disclosures confirm the well-known fact that accelerometers
can be used as tilt sensors, for sensing pitch and/or roll of a
body, due to the fact that gravity provides a constant
acceleration (i.e., ‘static acceleration’).

Tellingly absent from the disclosure of the ’481
application is any suggestion that orientation around a third or
vertical Z axis (often referred to as the up/down or ‘yaw’ axis)
can be sensed or inferred through the use of accelerometers.
This is because it is well-known to one skilled in the art that it
is not possible to sense (or even infer) yaw rotation using the
accelerometers disclosed in the ’481 application. (Ex. 1012,
par. 27). Thus, contrary to Dr. Sturges’ declaration, sensing or
even inferring orientation with respect to a 3D frame of
reference is not possible using the accelerometers as disclosed
in the ’481 application. Dr. Sturges even admitted this fact at
his deposition. (See Ex. 1011 at 56:25–58:2; 71:20–72:3.)

Reply 7–8.
Petitioner’s argument does not persuade us the written description of
the great-grandparent application lacked support for sensing accelerative
phenomena of a body relative to a three dimensional frame of reference.
Even if “yaw” (i.e., rotation about the z axis, as discussed in the block quote
above) cannot be determined with the disclosed dual axis accelerometer, this
does not take away from the fact that the sensor senses accelerative
phenomena (and measures dynamic and static acceleration) of a body with
regard to a system of axes (in three dimensions) in relation to which position
IPR2015-00115
Patent 7,479,890 B2

26
or motion can be defined. The ’890 patent describes a relevant system that
detects a fall, i.e., a movement along all three axes, including the up/down z
axis, by sensing or measuring acceleration along the x and y axes, i.e.,
sensing accelerative phenomena, and measuring dynamic and static
acceleration, relative to a three dimensional frame of reference. Ex. 1001,
8:64–9:17 (referring to “x and y outputs of sensor 25 during a fall by a body
to the right”). The great-grandparent priority document likewise describes
measuring movement along two axes to detect a fall. Ex. 1007, 18 (4:13–
16), 20 (7:9–45).
For the foregoing reasons, we determine that Patent Owner has shown
sufficiently that the written description of the great-grandparent application
filed on September 15, 1999, conveyed with reasonable clarity that the
inventors were in possession of a sensor that sensed accelerative phenomena,
as recited in claim 1 (or measured dynamic and static acceleration, as recited
in claim 11), of a body with regard to a system of axes (in three dimensions)
in relation to which position or motion could be defined in the environment,
in accordance with the construction of the claims as set forth above.
Accordingly, we determine that claims 1 and 11 are entitled to a priority date
of September 15, 1999.
A. Antedating Yasushi
Patent Owner bears the burden to establish the facts necessary to
overcome Yasushi’s publication date.3 See In re Facius, 408 F.2d 1396,
1403–04 (CCPA 1969) (holding, in a prosecution context, that an earlier

3 Even though Patent Owner bears the burden of production in antedating a
reference, the burden of persuasion to prove unpatentability of the
challenged claims remains with Petitioner. See 35 U.S.C. § 316(e).
IPR2015-00115
Patent 7,479,890 B2

27
filed reference was prima facie available as prior art and placing the burden
on the party claiming prior invention to overcome that reference). Patent
Owner may meet its burden by providing evidence that the publication date
of the reference is not “before the invention thereof by the applicant for a
patent,” that is, antedating Yasushi. 35 U.S.C. § 102(a).4
Yasushi was published on November 10, 1998. As described above,
claims 1 and 11 of the ’890 patent are entitled to a priority date of September
15, 1999. Thus, Yasushi is available as prior art against these claims under
35 U.S.C § 102(a) unless Patent Owner establishes (i) a reduction to practice
before November 10, 1998, or (ii) conception before November 10, 1998,
followed by a diligent reduction to practice. Purdue Pharma L.P. v.
Boehringer Ingelheim GMBH, 237 F.3d 1359, 1365 (Fed. Cir. 2001) (“To
antedate . . . an invention, a party must show either an earlier reduction to
practice, or an earlier conception followed by a diligent reduction to
practice.”) (emphasis added) (citation omitted).
Reduction to practice is a question of law predicated on subsidiary
factual findings. Brown v. Barbacid, 276 F.3d 1327, 1332 (Fed. Cir. 2002).
To establish an actual reduction to practice, the inventor must prove that:
(1) an embodiment of the invention was constructed that meets all the
limitations of the claims at issue; and (2) the inventor appreciated that the
invention would work for its intended purpose. Cooper v. Goldfarb, 154
F.3d 1321, 1327 (Fed. Cir. 1998). The invention does not have to be at a
commercially satisfactory stage of development for an actual reduction to
practice, but must have been sufficiently tested to demonstrate that it will

4 Applications filed before March 16, 2013 are governed by pre-AIA 35
U.S.C. § 102 and 103. Manual of Patent Examining Procedure § 2159.01.
IPR2015-00115
Patent 7,479,890 B2

28
work for its intended purpose. See, e.g., Scott v. Finney, 34 F.3d 1058, 1062
(Fed. Cir. 1994) (citing numerous cases wherein the character of the testing
necessary to support an actual reduction to practice varied with the
complexity of the invention and the problem it solved).
It is well settled that an inventor’s testimony alone is insufficient to
establish an earlier reduction to practice. Medichem, S.A. v. Rolabo, S.L.,
437 F.3d 1157, 1170 (Fed. Cir. 2006). Instead, the party seeking to prove an
actual reduction to practice must proffer evidence corroborating that
testimony. Id. “Sufficiency of corroboration is determined by using a ‘rule
of reason’ analysis, under which all pertinent evidence is examined when
determining the credibility of an inventor’s testimony.” Id. (citation
omitted). Corroboration may be testimony of a witness, other than the
inventor, to the actual reduction to practice, or it may consist of evidence of
surrounding facts and circumstances independent of information received
from the inventor. Id.
Patent Owner proffers declarations from listed inventors of the ’890
patent (Exs. 2007–2011), who also are listed inventors of the grandparent
application and, except for Mr. Massman, are listed inventors of the great-
grandparent application.5 Patent Owner also proffers the Declarations of
Don James (Ex. 2012) and Greg Younger (Ex. 2013), who are identified as
corroborating witnesses. Patent Owner further provides several supporting
exhibits (Exs. 2015–2035).

5 Patent Owner states that “[a]ll the inventors filed certificates of correction
. . . , reflecting that Michael L. Lehrman, Alan R. Owens, Michael D.
Halleck, and Michael E. Halleck, were all co-inventors of all the iLife
Patents.” PO Resp. 19.
IPR2015-00115
Patent 7,479,890 B2

29
The inventor and witness declarations support a finding that the
inventors constructed a working prototype of a relevant fall detection device,
and tested it on human subjects in August 1998. Ex. 2007 ¶¶ 17–18 (stating
that “the first prototype did include the same Analog Devices ADXL220
accelerometer, Texas Instruments MSP430PM microprocessor, and RF
transmitter” and the “first prototype was actually tested on human subjects at
HWI in August 1998”); Ex. 2008 ¶ 15; Ex. 2009 ¶ 15; Ex. 2010 ¶ 15;
Ex. 2012 ¶ 19 (corroborating witness stating that the “first prototype was
actually tested on human subjects at HWI in August 1998” and the
“prototype used a dual-axis accelerometer to measure the person’s
movement and orientation, as well as a microprocessor with code configured
to process the sensed static and dynamic acceleration to determine if the user
had experienced a real fall”); Ex. 2013 ¶ 19. The inventors constructed a
working prototype on a solderless breadboard instead of a printed circuit
board, but included the same accelerometer, microprocessor, and RF
transmitter as later designs. Ex. 2007 ¶ 17; Ex. 2008 ¶ 18; Ex. 2009 ¶ 18;
Ex. 2010 ¶ 18; Ex. 2012 ¶ 18; Ex. 2013 ¶ 18. As stated by inventors, and
corroborated by other witnesses, “the prototype used a dual-axis
accelerometer to measure the person’s movement and orientation, as well as
a microprocessor with code configured to process the sensed static and
dynamic acceleration to determine if the user had experienced a real fall as
opposed to normal daily activities such as walking, sitting, standing, or lying
down.” Ex. 2007 ¶ 18; Ex. 2008 ¶ 19; Ex. 2009 ¶ 19; Ex. 2010 ¶ 19; Ex.
2012 ¶ 19; Ex. 2013 ¶ 19. The inventor and witness declarations further
support the finding that the inventors tested the prototype in August 1998,
and based on success in that testing, formal engineering drawings were
IPR2015-00115
Patent 7,479,890 B2

30
prepared for production release. Ex. 2007 ¶¶ 18, 20–21; Ex. 2008 ¶¶ 21–22;
Ex. 2009 ¶¶ 21–22; Ex. 2010 ¶¶ 21–22; Ex. 2012 ¶¶ 21–22; Ex. 2013 ¶¶ 21–
22.
Inventor and corroborating witness declarations support a finding that
the inventors prepared formal engineering drawings (Ex. 2031) that included
a printed circuit board layout. Ex. 2007 ¶ 21 (citing Ex. 2030 (“Drawing
Number Assignment Log”)); Ex. 2008 ¶ 22; Ex. 2009 ¶ 22; Ex. 2012 ¶ 22.
The inventors assembled additional field prototypes constructed of printed
circuit boards, loaded them with code, and tested them by late September
1998. Ex. 2007 ¶¶ 26, 30. The inventors also built a prototype with the
particular printed circuit board corresponding to drawing IAF680R1 on or
around September 23, 1998. Ex. 2008 ¶ 28 (citing Ex. 2032); Ex. 2009 ¶ 28
(citing Ex. 2032); Ex. 2012 ¶ 28 (citing Ex. 2032); Ex. 2013 ¶ 28 (citing Ex.
2032). The inventors also created a new layout IAF683R1 on September 23,
1998. Ex. 2008 ¶ 29 (citing Ex. 2030); Ex. 2012 ¶ 29 (citing Ex. 2030); Ex.
2013 ¶ 29 (citing Ex. 2030). The prototypes “performed as expected and
were suitable for their intended purpose of movement evaluation and fall
detection when tested in August and September of 1998.” Ex. 2007 ¶ 30;
Ex. 2009 ¶ 28; Ex. 2012 ¶ 28; Ex. 2013 ¶ 28.
Accordingly, Patent Owner has provided declarations from inventors
and corroborating witnesses supporting a finding that the inventors designed,
made, and tested fall detection systems embodying the subject claims of the
patent at issue in August and September of 1998. PO Resp. 3–18, 35–38
(citing Ex. 2007–2013). Patent Owner also has provided contemporaneous
notes and records from this time period supporting that a finding that the
inventors actually reduced to practice a first working embodiment in August
IPR2015-00115
Patent 7,479,890 B2

31
1998. Id. (citing Exs. 2015–2035). Patent Owner provides additional
evidence that the inventors created a second generation embodiment with the
same basic elements and component parts as the first embodiment on or
about September 23, 1998. Id. at 16–18 (citing Ex. 2007 ¶ 26; Ex. 2008–
2010, 2012–2013 ¶¶ 27–30; Exs. 2018, 2030, 2032), 37–38 (citing Ex. 2007
¶¶ 26, 28; Exs. 2008–2010, 2012–2013 ¶¶ 28, 34).
Patent Owner’s evidence also supports a finding that the first working
embodiment “was an intelligent personal emergency response system
(‘iPERS’) capable of monitoring the movements of an elderly person and
automatically detecting real falls as opposed to normal daily activity.” Id. at
35–36 (citing Exs. 2007–2010, 2012–2013 ¶ 4); see also id. at 11 (stating
“[a]ll witnesses agree that the device worked for its intended purpose of
distinguishing real falls from normal activities”). This corresponds to the
claimed system “evaluates movement of a body relative to an environment”
(Ex. 1001, claim 1) and “a system to evaluate movement of a body relative
to an environment” (id. at claim 11).
Patent Owner’s evidence supports a finding that the inventors created
a working embodiment that used a dual-axis accelerometer to measure the
person’s movement and orientation. PO Resp. 36 (citing Ex. 2007 ¶ 19;
Exs. 2008–2010, 2012–2013 ¶ 20); see also id. at 10–11. Patent Owner’s
evidence supports that the working embodiment was “configured to process
the sensed static and dynamic acceleration.” Id. at 37 (citing Ex. 2007 ¶ 18;
Exs. 2008–2010, 2012–2013 ¶ 19). Patent Owner’s evidence supports that
the working embodiment “evaluated movement of the body relative to a
three-dimensional frame of reference (up and down, front to back, and side
to side).” Id. (citing Ex. 2007 ¶ 30; Exs. 2008–2010, 2012–2013 ¶ 34). This
IPR2015-00115
Patent 7,479,890 B2

32
corresponds to the claimed “a sensor, associable with said body, that senses
accelerative phenomena of said body relative to a three dimensional frame of
reference in said environment, said sensor comprising a plurality of
acceleration measuring devices” (Ex. 1001, claim 1) and “substantially
continuously measuring dynamic and static acceleration of said body with a
plurality of acceleration measuring devices relative to a three dimensional
frame of reference” (id. at claim 11). As to a plurality of acceleration
measuring devices in the working embodiment, Patent Owner has provided
evidence indicating that its working embodiment included “multi-vector
sensors,” i.e., a plurality of sensors. See, e.g., See, e.g. Ex. 2007 ¶ 30; Ex.
2008 ¶ 34; Ex. 2009 ¶ 34; Ex. 2010 ¶ 34; Ex. 2012 ¶ 34; Ex. 2031, 15
(depicting two accelerometers); Cooper, 154 F.3d at 1327 (“In order to
establish an actual reduction to practice, the inventor must prove . . . he
constructed an embodiment . . . that met all the limitations”).
Patent Owner’s evidence (Ex. 2007 ¶ 19; Exs. 2008–2010, 2012–2013
¶ 20; Ex. 2019 at 1–2) supports a finding that the inventors conceived and
actually reduced to practice, before the critical date, a working embodiment
that used “a microprocessor with code configured to process the sensed
static and dynamic acceleration to determine if the user had experienced a
real fall as opposed to normal daily activities.” PO Resp. 36 (citing Exs.
2007 ¶ 19; Ex. 2008–2010, 2012–2013 ¶ 20); see also id. at 10–11. This
corresponds to the claimed “processor, associated with said sensor, that
processes said sensed accelerative phenomena of said body as a function of
at least one accelerative event characteristic” (Ex. 1001, claim 1) and
“processing said sensed accelerative phenomena of said body as a function
of at least one accelerative event characteristic” (id. at claim 11).
IPR2015-00115
Patent 7,479,890 B2

33
Patent Owner’s evidence supports a finding that the “first working
[prototype] . . . was an intelligent personal emergency response system
(‘iPERS’) capable of . . . automatically detecting real falls as opposed to
normal daily activity, such as walking, sitting, standing, and lying down”
(PO Resp. 35–36 (citing Exs. 2007–2010, 2012–2013 ¶ 4)) and that “the
device worked for its intended purpose of distinguishing falls from normal
activities, such as walking, sitting, standing, and lying down” (id. at 37
(citing Ex. 2007 ¶¶ 23–24; Exs. 2008–2010, 2012–2013 ¶ 24–25)). See also
Ex. 2019 at 1 (stating “it would be possible to tell if that person were
standing or lying down or in a position somewhere between those two” and
“[t]o accurately determine that the individual has fallen and not merely
laying down or going down stairs etc, software intelligence is programmed
into a microprocessor to accomplish the evaluation of the sensor output”).
Patent Owner’s evidence also supports that the working embodiment
was “programmed to measure both static and dynamic acceleration forces to
evaluate changes in the wearer’s movement and orientation to determine if
the person had fallen based on observed dynamic accelerative forces
indicating a hard impact of at least 3Gs coupled with a change in static
accelerative forces of at least 45 degrees within a specified timeframe.” PO
Resp. 36 (citing Ex. 2007 ¶ 23; Exs. 2008–2010, 2012–2013 ¶ 24) see also
id. at 11. This corresponds to the phrase “to thereby determine whether said
evaluated body movement is within an environmental tolerance.” Ex. 1001,
claims 1 and 11.
Patent Owner’s evidence supports that the “newly-created system
used both static and dynamic acceleration outputs from an ADXL202 dual-
axis accelerometer to detect that a person wearing the sensor had fallen
IPR2015-00115
Patent 7,479,890 B2

34
down, with such information then being used to activate an automatic
telephone dialing module to call for help.” PO Resp. 13 (citing Ex. 2019, 1;
Ex. 2007 ¶ 23; Exs. 2008–2010, 2012–2013 ¶ 24); see also Ex. 2007 ¶ 30
(stating that “[a]ll of the prototypes from this timeframe (August to
September 1998) included a sensor, attached to the monitored body, for
sensing both static and dynamic acceleration experienced by the body, and a
processor, associated with the body, for processing said sensed static and
dynamic acceleration for specified acceleration characteristics” and “[a]ll of
the prototypes from this timeframe (August to September 1998) generated
and communicated information indicating whether the evaluated body was
within tolerance to a base station for remote monitoring”); see also Ex.
2019, 1 (stating that the fall detector “detect[s] that a person wearing such a
sensor has fallen down and this information can be used to activate an
automatic telephone dialing module so as to alert others to the plight of the
fallen individual”). This also corresponds to the phrase “to thereby
determine whether said evaluated body movement is within an
environmental tolerance.” Ex. 1001, claims 1 and 11.
The filed declarations with associated exhibits sufficiently evidence
that the inventors conceived and reduced to practice a physical construct of
the invention, as well as engaged in testing of the invention in a manner that
demonstrated that it worked for its intended purpose, by September 1998.
Ex. 2007 ¶¶ 17–21; Ex. 2008 ¶¶ 18–22; Ex. 2009 ¶¶ 18–22; Ex. 2010 ¶¶ 18–
22; Ex. 2012 ¶¶ 18–22; Ex. 2013 ¶¶ 18–22. Accordingly, Patent Owner has
presented sufficient evidence to support that the inventors actually reduced
to practice embodiments of claims 1 and 11 by September 1998, which is
before the first publication of Yasushi on November 10, 1998. The full
IPR2015-00115
Patent 7,479,890 B2

35
record indicates that Petitioner does not present adequate argument or
evidence to challenge the sufficiency of the testimony and evidence
submitted by Patent Owner that demonstrates an actual reduction to practice
prior to November 10, 1998. Reply 2– 8 (Petitioner arguing that its
construction of “relative to a three dimensional frame of reference”
disqualifies the accelerometers of Patent Owner’s reduction to practice
evidence); see also Tr. 140:9–13 (Patent Owner’s counsel stating “there is
substantial uncontroverted, well corroborated evidence in the record,
uncontroverted by the Petitioner, that establish iLife conceived and reduced
to practice the invention before the publication date of Yasushi, November
10, 1998”). Thus, we determine that Yasushi does not qualify as prior art to
the ’890 patent.
Because Yasushi is not prior art as to claims 1 and 11, Petitioner has
failed to demonstrate, by a preponderance of the evidence, that claims 1 and
11 would have been obvious over Yasushi under 35 U.S.C. § 103(a).
C. Obviousness over Unuma
Petitioner contends that claims 1 and 11 of the ’890 patent would have
been obvious over Unuma. Pet. 24–59. In its Petition, Petitioner provides a
claim chart, and relies on Dr. Welch’s Declaration (Ex. 1002). Id.
1. Unuma (Ex. 1004)
Unuma discloses a method and system for automatically recognizing
motions and actions of moving objects, such as humans. Ex. 1004, Abstract,
2:3–6. Figures 1 and 2 of Unuma are reproduced below.
IPR2015-00115
Patent 7,479,890 B2

36

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
IPR2015-00115
Patent 7,479,890 B2

37
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 “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
IPR2015-00115
Patent 7,479,890 B2

38
in time, the motion/action corresponding to the characteristic
quantity having the highest level of correlation is judged to be
the 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:

IPR2015-00115
Patent 7,479,890 B2

39
Figure 3 depicts “an explanatory view of typical results of time frequency
analysis based on wavelet transformation.” Ex. 1004, 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 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.
IPR2015-00115
Patent 7,479,890 B2

40
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
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.

IPR2015-00115
Patent 7,479,890 B2

41

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 Figure 36,
IPR2015-00115
Patent 7,479,890 B2

42
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
IPR2015-00115
Patent 7,479,890 B2

43
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. . . . 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
Petitioner argues that Unuma teaches or suggests a system that
comprises all recited elements of claims 1 and 11. Pet. 28. For example,
Petitioner contends that Unuma discloses a system that evaluates movement
of a body relative to an environment. Id. at 28–29, 34 (citing Ex. 1004, 2:3–
6, 13:47–49, 30:30–32, Fig. 1; Ex. 1002 ¶ 73, 80, App. D). Petitioner
contends that “signal processing unit 7,” as depicted in Figure 2 of 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. Id. at 29–31. Petitioner also contends that
“even if a difference between Unuma and the claims could be shown, a
[person of ordinary skill in the art] would have found any such alleged
difference to be insignificant and obvious in view of Unuma.” Id. at 28.
We discuss particular claim limitations below.
a. “sensor, associable with said body, that senses accelerative
phenomena of said body relative to a three dimensional
frame of reference in said environment, said sensor
comprising a plurality of acceleration measuring devices;
and a processor, associated with said sensor, that processes
said sensed accelerative phenomena of said body as a
function of at least one accelerative event characteristic”
(claim 1)
IPR2015-00115
Patent 7,479,890 B2

44
or
“substantially continuously measuring dynamic and static
acceleration of said body with a plurality of acceleration
measuring devices relative to a three dimensional frame of
reference and providing output signals indicative thereof;
processing said sensed accelerative phenomena of said body
as a function of at least one accelerative event
characteristic” (claim 11)
Petitioner contends that Unuma discloses a sensor attached to an
object under observation. Pet. 29, 34 (citing Ex. 1004, 11:53–54).
Petitioner argues that the sensor senses accelerative phenomena of the body
relative to a three dimensional frame of reference in the environment. Id. at
29, 36–37 (citing Ex. 1004, 8:41–45, Fig. 8; Ex. 1002 ¶ 74, App. D).
Petitioner further argues that the sensor comprises a plurality of acceleration
measuring devices. Id. at 29–30, 36–37 (citing Ex. 1004, 6:26, 31).
Petitioner also contends that Unuma’s acceleration measuring devices
provide output results 20, which are “output signals” indicative of dynamic
and static acceleration, as recited in claim 11. Id. at 37 (citing Ex. 1004,
6:31–37, Fig. 2; Ex. 1002 ¶ 84, App. D).
In relation to the limitation in claim 11 of “substantially continuously
measuring dynamic and static acceleration” of a body, Petitioner argues that
Unuma’s acceleration sensors continuously measure dynamic and static
(gravitational) acceleration of the body. Id. 34–35. Petitioner contends that
Figure 3 of Unuma shows that measurements are substantially continuous.
Id. at 35. Petitioner also points to where Unuma discloses that its processor
“for motion/action recognition continuously receives characteristic quantity
data 10 from the characteristic quantity extraction unit 5, the data 10 being
IPR2015-00115
Patent 7,479,890 B2

45
derived from the ongoing motions/actions of the object 1 under
observation.” Id. (emphasis added) (citing Ex. 1004, 6:48-50).
Petitioner further discusses Figure 2 in Unuma, depicting output
results 20 indicating specific time series data items 21–24 derived from the
motions of “walking,” “running,” “squatting,” and “lying down.” Id. at 35–
36 (citing Ex. 1004, 6:31–37, Fig. 2). Petitioner points to “data item 24,” for
example, as indicating “a state of no acceleration in which gravitational
acceleration is not detected because the object is lying down.” Id. (citing
Ex. 1004, 6:31–37).
In addition, Petitioner argues that Unuma’s processing unit 7
processes “acceleration signals (i.e., sensed accelerative phenomena of a
body) as a function of characteristic quantities of the motions involved (i.e.,
accelerative event characteristics).” Pet. 30, 37–38. Petitioner explains that
Unuma discloses various analysis methods for the sensed data, such as
Fourier transformation frequency analysis, wavelet transformation, time
frequency analysis, or any other appropriate frequency analysis scheme. Id.
at 30–31, 38 (citing Ex. 1004, 6:41–43, 8:7–10); see also id. at 25
(explaining that processing unit 7 correlates extracted data with reference
data containing previously acquired characteristic quantities of motions and
actions, and “[t]he motion or action represented by the characteristic
quantity with the highest degree of correlation is recognized [as] an[]
output.”).
Petitioner argues that Unuma’s “system is able to distinguish between
various accelerative events using characteristics thereof.” Id. at 31, 38. For
example, Petitioner points out that motions of “climbing,” “falling, “hitting
obstacles,” and “reaching the ground” can be recognized by their respective
IPR2015-00115
Patent 7,479,890 B2

46
characteristics of “upward acceleration greater than gravitational
acceleration,” “zero acceleration in all directions (because of free fall),”
“intense acceleration occurring in different directions in a short time,” and
“suffering a considerably strong acceleration.” Id. at 31, 38–39 (citing Ex.
1004, 16:31–34). Consequently, Petitioner argues that Unuma discloses a
processor that processes sensed accelerative phenomena as a function of an
accelerative event characteristic. Id. at 30–31, 39 (citing Ex. 1002 ¶¶ 76, 85
App. D).
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 claims 1 and 11.
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. 42. In support, Patent Owner relies on teaching in Unuma and a
declaration by Dr. Sturges (Ex. 2006). Id. at 42–50.
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 44–50 (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 44 (referring to Ex. 1004, 7:20–24; Ex. 2006 ¶¶ 56–
58). According to Patent Owner, that comparison is what the processor 7
IPR2015-00115
Patent 7,479,890 B2

47
does when it processes data, and Unuma only processes frequency
components generated from the dynamic acceleration information, and “does
not suggest using any aspect of the sensed static acceleration data to
correlate or recognize motions.” Id. at 44 (citing Ex. 2006 ¶¶ 48–50), 47
(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 44–
45 (citing Ex 2006 ¶ 49).
Patent Owner presents similar arguments regarding the “frequency
analysis” depicted in Figure 2. PO Resp. 46–47. 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.”
PO Resp. 48–49 (Ex. 2006 ¶¶ 42, 47). According to Patent Owner, Unuma
does not “disclose or teach processing both dynamic and static acceleration
to thereby determine whether motion is within environmental tolerance.” Id.
at 50.
In a related fashion, Patent Owner further contends that Unuma does
not teach or suggest “processing sensed 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 11. Id. at 50–55. 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 51. Patent Owner then argues that when Unuma
normalizes “both the frequency components F(m) of observed motion and
IPR2015-00115
Patent 7,479,890 B2

48
the frequency components G(m) of the reference motion,” that normalization
removes “magnitude information” for the sensed dynamic acceleration. Id.
at 51–52 (citing Ex. 1004, 6:55–7:15, Ex. 2006 ¶ 55-56, 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 52–55 (discussing Ex. 1004, 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.”
Id. at 54; Ex. 1001, claims 1 and 11.
The analysis by Patent Owner and its expert, Dr. Sturges, however,
does not persuade us that Unuma fails to teach processing of sensed or
measured 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.
1004, 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. 47; see also,
id. at 42, 45, 48.
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. 1004, 6:55–7:54; PO Resp. 42, 44–
45, 47–55 (referring to Ex. 1004, 6:55–7:54); Ex. 2006 ¶¶ 42, 49, 57. Patent
Owner also cites to paragraphs in Dr. Sturges’ Declaration discussing an
IPR2015-00115
Patent 7,479,890 B2

49
“average value T (denoted by reference numeral 2003) of the powers of all
spectrum components excluding the direct-current component (that is, the
Oth-order harmonic),” as depicted in Figure 47C. Exhibit 1004, 21:22–34;
PO Resp. 47–49 (referring to Ex. 2006 ¶ 42, which cites Exhibit 1004,
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.” Reply 11. For instance, when discussing
Figures 47–49, Unuma indicates that the “state of a motion is recognized”
(Ex. 1004, 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. 1004, 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. 1004, 25:24–26; see
also Ex. 1001, 7:16–28 (describing a “direct current (dc) voltage
component” as corresponding “to an angle relative to earth (i.e., static
acceleration component related to gravity”).
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. 1004, 27:56–28:1; Reply
12–13. 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
IPR2015-00115
Patent 7,479,890 B2

50
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 movement (dynamic
acceleration) and posture (static acceleration). Ex. 1004, 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.
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 (defining “process” as “to subject to examination or
analysis .”) (Ex. 3008). 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. 44–45
(citing Ex. 2006 ¶ 49)), for example, Unuma’s processor would examine the
static acceleration data so as to filter it out. Thus, even accepting the “filter
out” argument by Petitioner, we find that Unuma processes both “sensed
dynamic and static accelerative phenomena,” as required in claims 1 and 11.
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 claims 1 and 11, i.e., teaches or suggests
processing relevant accelerative phenomena as a function of magnitude and
direction. Ex. 1004, 27:45–28:55; Reply 14.
IPR2015-00115
Patent 7,479,890 B2

51
As discussed above, in relation to its “normalization” position, Patent
Owner refers us to “[o]ne way of correlating measurements with reference
data [that] is shown illustratively in Fig. 29.” Ex. 1004, 6:55–7:54; PO
Resp. 44–45, 51–55 (referring to Ex. 1004, 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. 51), 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.” Reply 14 (citing Ex. 1012, 151:1–153:8) (Dr. Sturges agreeing
“the sine is clearly used to get that average”); Ex. 1013 ¶¶ 65–66 (indicating
that a “proper average cannot be calculated without using the magnitude and
direction (up and down) values of the waveform”).
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 (defining “process” as
“to take in and organize for use ”) (Ex. 3009).
IPR2015-00115
Patent 7,479,890 B2

52
We determine that Petitioner establishes sufficiently that Unuma
teaches or suggests “process[ing] said sensed accelerative phenomena of
said body as a function of at least one accelerative event characteristic,” as
recited in claim 1 and 11.
b. “to thereby determine whether said evaluated body activity
is within environmental tolerance” (claim 1 and 11)
Petitioner argues that Unuma’s system determines whether the
evaluated body movement is within environmental tolerance, as recited in
both claims 1 and 11. Pet. 31–33, 39–40. In particular, Petitioner argues
that Unuma’s processing unit 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
32, 39. Petitioner argues 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 31–32, 39–40.
Petitioner also argues 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. at 32, 40 (citing Ex. 1004, 17:3–7). Petitioner
urges 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.” Id. at 32–
33, 40; see also id. at 46–47 (claim chart).
IPR2015-00115
Patent 7,479,890 B2

53
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.’” Pet. 31–32 (citing Ex. 1004, 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. 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. 1004, 17:3–7).
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. 55–56. 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. 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 state of emergency. Id.
at 56. 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
IPR2015-00115
Patent 7,479,890 B2

54
is within environmental tolerance, i.e., not in a state of emergency. Ex.
1004, 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. 32–33; see also Ex. 1004, 17:3–7
(discussing “reporting”). Moreover, we are persuaded that the determination
of whether said evaluated body movement is within an environmental
tolerance is as a result of the previously described processing of sensed
dynamic and static accelerative phenomena as a function of at least one
accelerative event characteristic to satisfy the “thereby” language of the
claims. See Oxford Dictionaries, available at
http://www.oxforddictionaries.com/us/definition/american_english/thereby
(defining “thereby” as “By that means; as a result of that”) (Ex. 3007).
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 11.
c. “to thereby determine whether said body has experienced no
movement for a predetermined period of time” (claim 1 and
11)
Petitioner contends that Unuma’s system determines whether a body
“has experienced no movement for a predetermined period of time,” as
recited in claims 1 and 11. Pet. 27, 33, 40–41. For example, Petitioner
points us to where Figure 43 in Unuma “includes time period 1134, during
which ‘the patient is lying down and does not move any more.’” Id. at 33,
IPR2015-00115
Patent 7,479,890 B2

55
40–41 (citing Ex. 1004 31:36–41, Fig. 43). In addition, Petitioner points us
to where Unuma states that its “‘recognition device is capable of recognizing
a single motion or action that takes place within a limited period of time.’”
Id. at 33, 40–41 (citing Ex. 1004, 16:18–19).
Based on the above, we determine that Petitioner establishes
sufficiently that Unuma teaches or suggests “to thereby determine whether
said body has experienced no movement for a predetermined period of
time,” as recited in claims 1 and 11. Patent Owner does not contend
otherwise.
d. Conclusion
We determine that Petitioner has shown by a preponderance of the
evidence that Unuma teaches or suggests a system comprising all limitations
of independent claims 1 and 11. In view of the foregoing, we determine
Petitioner has established by a preponderance of the evidence that
independent claims 1 and 11 would have been obvious over Unuma under
35 U.S.C. § 103(a).
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 6, 14–35, and Appendix 1
of Exhibit 1013 (Reply declaration testimony of Petitioner’s expert, Dr.
Welch) as “conclusory” and presenting “legal arguments, not technical ones;
therefore, this witness is not qualified to offer them.” Mot. Excl. 2. Patent
Owner also argues that the paragraphs comprise new claim construction
IPR2015-00115
Patent 7,479,890 B2

56
arguments regarding “what is required to sense accelerative phenomena of a
body ‘relative to a three dimensional frame of reference in said in
environment’ in the context of claim 1.” Id. at 2–3. According to Patent
Owner, Petitioner should have presented such arguments in the Petition. Id.
(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 opposes and 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 particularly, Petitioner points out that Patent Owner affirmatively
asserted, in its Patent Owner Response, that Yasushi “does not qualify as
prior art and cannot be used to invalidate the ‘890 patent.” Id. (quoting PO
Resp. 1).
Patent Owner also moves to exclude paragraphs 51–52 of Exhibit
1013 as comprising new claim construction arguments regarding “what is
required to ‘process’ sensed static and dynamic accelerative phenomena in
the context of claim 11.” Mot. Excl. 3. In addition, Patent Owner moves to
exclude paragraphs 53–57, 59, 63, 65–66, 68, and 77 of Exhibit 1013 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. 3–4. More particularly, Patent Owner argues that those
paragraphs discuss Figs. 5(b), 33–36, and 48 along with their accompanying
IPR2015-00115
Patent 7,479,890 B2

57
text in Unuma, but neither the Petition nor Patent Owner’s Response
examine those portions of Unuma. Id.
Petitioner opposes and argues that Dr. Welch’s Reply declaration
testimony is directly responsive to Patent Owner’s assertion that the
challenged claims were not obvious over Unuma “because the claims at
issue require (1) sensing and processing of both body movement and
changes in orientation of the body; (2) evaluation of movement according to
accelerative event characteristics, which are vectors including magnitude,
direction, or both; and/or (3) making an acceptability determination based on
the specified criteria relative to the environment of interest—none of which
is disclosed or taught by Unuma.” Opp. Mot. Excl. at 3 (citing PO’s
Response at 1–2).
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
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, Patent Owner’s assertions that the testimony is
“conclusory” and presents “legal argument” (Mot. Excl. 1–2) might impact
how we weigh the testimony, but does not persuade us to exclude it.
Moreover, we determine that Patent Owner’s Response contains affirmative
IPR2015-00115
Patent 7,479,890 B2

58
contentions that Yasushi does not qualify as prior art in view of Patent
Owner’s proposed claim construction, and that Unuma fails to disclose
sensing or measuring static acceleration, among other limitations of the
claims (see, e.g., PO Resp. 1–2, 35–38, 42–56). Such contentions differ
from mere argument that Petitioner has failed to offer adequate evidence in
its Petition to establish that Yasushi or Unuma discloses the subject matter
of recited elements in claims 1 and 11. Thus, we determine that Petitioner
properly submitted the identified paragraphs 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 30. Patent Owner contends that certain pages of
Petitioner’s Reply include new claim construction arguments regarding
“what elements are required to sense accelerative phenomena ‘relative to a
three dimensional frame of reference within said environment.’” Id. at 1–2.
In addition, Patent Owner contends that Petitioner’s Reply includes 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 2. Patent Owner
further contends that certain pages of Petitioner’s Reply rely on certain
portions of Unuma “not cited or mentioned 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. at 1.
IPR2015-00115
Patent 7,479,890 B2

59
Petitioner filed a Response to Patent Owner’s Notice, in which
Petitioner asserts that its arguments “are directly responsive to PO’s
assertions that Yasushi allegedly ‘does not qualify as prior art and cannot be
used to invalidate the ‘890 patent.’” Paper 33, 1. In addition, Petitioner
contends that its arguments “are directly responsive to PO’s assertion that
the challenged claims are allegedly not obvious over Unuma “because the
claims at issue require” items (i)–(iii) discussed above. Id. at 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 Yasushi and Unuma, and accordingly, have given
appropriate consideration to the identified arguments and evidence relating
to contentions regarding those references.
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 and 11 of the ’890 patent are unpatentable as obvious over
Unuma.
IPR2015-00115
Patent 7,479,890 B2

60
VI. ORDER
For the foregoing reasons, it is
ORDERED that claims 1 and 11 of the ’890 patent are unpatentable;
FURTHER ORDERED that Patent Owner’s Motion to Exclude is
denied; and
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.

IPR2015-00115
Patent 7,479,890 B2

61
PETITIONER:

Joseph S. Presta
Robert W. Faris
Nixon & Vanderhye, P.C.
jsp@nixonvan.com
rfaris@nixonvan.com

PATENT OWNER:

Daniel Venglarik
David Doyle
Munck, Wilson, Mandala, LLP
dvenglarik@munckwilson.com
ddoyle@munckwilson.com