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

Patent Trial and Appeal Board

Apr 28, 2016

10796595 (P.T.A.B. Apr. 28, 2016)

Trials@uspto.gov Paper No. 39
571-272-7822 Entered: April 28, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

NINTENDO OF AMERICA, INC. and NINTENDO CO., LTD.,
Petitioner,

v.

iLIFE TECHNOLOGIES, INC.,
Patent Owner.
____________

Case IPR2015-00112
Patent 7,095,331 B2
____________

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

JUNG, Administrative Patent Judge.

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

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I. INTRODUCTION
Nintendo of America, Inc. and Nintendo Co., Ltd. (collectively,
“Petitioner”) filed a corrected Petition (Paper 4, “Pet.”), requesting
institution of an inter partes review of claims 1, 2, 11, and 12 of
U.S. Patent No. 7,095,331 B2 (Ex. 1001, “the ’331 patent”). iLife
Technologies, Inc. (“Patent Owner”) timely filed a Preliminary Response
(Paper 9, “Prelim. Resp.”). Based on these submissions, we instituted inter
partes review of claims 1, 2, 11, and 12 of the ’331 patent. 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. 1012, “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, deposition transcripts were filed for Dr.
Sturges (Ex. 1011) and Dr. Welch (Ex. 2038).
Patent Owner moves to exclude portions of the Welch Reply
Declaration. Paper 29. Petitioner filed a Response (Paper 32), 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). Patent
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Owner also filed a Motion for Observations (Paper 31), and Petitioner filed a
response (Paper 34) to the motion.
A combined oral hearing in this proceeding and Cases IPR2015-
00105, IPR2015-00106, IPR2015-00109, IPR2015-00113, and IPR2015-
00115 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). This Final Written
Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
For the reasons that follow, we determine that Petitioner has shown by a
preponderance of the evidence that claims 1, 2, 11, and 12 of the ’331 patent
are unpatentable. We also deny Patent Owner’s motion to exclude.
A. Grounds of Unpatentability at Issue
We instituted inter partes review on the grounds, under 35 U.S.C.
§ 103, that (1) claims 1, 2, 11, and 12 are obvious over Yasushi, JP10-
295649 (published Nov. 10, 1998) (Ex. 1003, “Yasushi”) and (2) claims 1,
2, 11, and 12 are obvious over EP 0 816 986 A2 to Unuma (published Jan. 7,
1998) (Ex. 1004, “Unuma”). Dec. on Inst. 36.
B. Related Proceedings
The parties indicate that district court cases involving the ’331 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.
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Upon considering other Petitions filed by the same Petitioner on the
same day, we also instituted inter partes reviews 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), 7,145,461 B2 (Case IPR2015-
00113), and 7,479,890 B2 (Case IPR2015-00115).
C. The ’331 Patent (Ex. 1001)
The ’331 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, 1:27–31, 2:25–27. The ’331
patent indicates that prior art methods fail to discern normal, acceptable, or
unacceptable changes in levels of body activity. Id. at 1:56–61. 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 2:4–7.
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 2:1–4. The system of the
’331 patent includes a sensor associated with the body that operates to
repeatedly sense dynamic and static accelerative phenomena of the body. Id.
at 2:35–37. The sensor “senses one or more absolute values, changes in
value, or some combination of the same and may be “a plural-axis sensor.”
Id. at 2:48–50, 2:53–56, 5:55–57. In one embodiment, the sensor generates
voltage signals that include “an alternating current (ac) component
proportional to G forces (i.e., dynamic acceleration component related to
vibrations of sensor layer 31) and a direct current (dc) component
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proportional to an angle relative to earth (i.e., static acceleration component
related to gravity).” Id. at 6:26–33.
The system further includes a processor that processes “sensed
accelerative phenomena as a function of at least one accelerative event
characteristic” to determine whether evaluated body movement is within
“environmental tolerance.” Id. at 2:40–44, 6:60–65. The ’331 patent
defines “accelerative events” as “occurrences of change in velocity of the
body (or acceleration), whether in magnitude, direction or both.” Id. at
5:27–30. The ’331 patent states that an accelerative event characteristic
“will largely be defined by the specific application.” Id. at 9:47–52. The
Specification also states that the “relevant environment may be statically or
dynamically represented” and the “sophistication of any such representation
may be as complex or as uncomplicated as needed by a given application.”
Id. at 2:66–3:2.
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 9:52–56. The ’331
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 9:56–59.
Figure 4 of the ’331 patent is reproduced below.
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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 ’331 patent. Id. at 8:23–27. 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 8:37–41.
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 8:42–50. Step 415 involves processor 47 using
the outputs from sensor 25 to determine a last stable position of the body.
Id. at 8:52–55. 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 9:4–
9. In Step 425, processor 47 determines a fall by testing a post-impact
stream of samples against a tolerance. Id. at 9:14–17. 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 9:23–27.
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
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setting the last stable position. Id. at 9:30–35. In Step 440, any impact that
exceeds a G force threshold is treated as a debilitating fall. Id. at 9:37–39.
“Exemplary processor 47 is programmed to distinguish between normal and
abnormal accelerative events (e.g., walking, sitting, lying down, etc. versus
tripping, falling down, etc.), and, when an abnormal event is identified,
indicates whether the abnormal event is tolerable, or within tolerance.” Id.
at 12:18–23.
D. Illustrative Claims
The ’331 patent has 20 claims, of which claims 1, 2, 11, and 12 are
being challenged. Claims 1 and 11 are independent and 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;
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 to thereby determine
whether said evaluated body movement is within an
environmental tolerance, and to thereby determine whether said
body has experienced acceleration that represents one of a
plurality of different types of motion; and
a controller containing said processor, said controller
capable of receiving from said plurality of acceleration
measuring devices a plurality of values of acceleration of body
motion.

11. A method of operating a system to evaluate
movement of a body relative to an environment, said method of
operation comprising the steps of:
sensing, with a sensor associated with said body,
accelerative phenomena of said body relative to a three
dimensional frame of reference in said environment, wherein
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said sensor comprises a plurality of accelerative measuring
devices;
processing, with a processor associated with said sensor,
repeatedly sensed dynamic and static accelerative phenomena of
said body as a function of at least one accelerative event
characteristic to thereby determine whether said evaluated body
movement is within an environmental tolerance;
determining whether said body has experienced
acceleration that represents one of a plurality of different types
of motion; and
receiving in a controller containing said processor a
plurality of values of acceleration of body motion from said
plurality of acceleration measuring devices of said sensor.

II. CLAIM CONSTRUCTION
In an inter partes review, claim terms in an unexpired patent are
interpreted according to their broadest reasonable construction in light of the
specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14,
2012); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir.
2015), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
890 (mem.) (2016). There is a presumption that a claim term carries its
ordinary and customary meaning. CCS Fitness, Inc. v. Brunswick Corp.,
288 F.3d 1359, 1366 (Fed. Cir. 2002); In re Translogic Tech., Inc., 504 F.3d
1249, 1257 (Fed. Cir. 2007). A patentee may rebut this presumption,
however, by acting as his own lexicographer, by 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
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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 ’331 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. on 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. 32. 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 terms construed above, we address the construction
of “controller,” “processor,” “a sensor . . . that senses accelerative
phenomena of said body relative to a three dimensional frame of reference in
said environment,” and “sensing, with a sensor . . . accelerative phenomena
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of said body relative to a three dimensional frame of reference in said
environment”.
A. “controller” and “processor” (claims 1 and 11)
The specification of the ’331 patent defines “controller” and
“processor” to mean “any device, system or part thereof that controls at least
one operation, such a device may be implemented in hardware, firmware or
software, or some suitable combination of at least two of the same.” Ex.
1001, 4:13–17. Petitioner cites the same definition for its proposed
construction of “controller” and “processor” (Pet. 6 (citing Ex. 1001, 4:12–
17)), and Patent Owner does not dispute the construction. PO Resp. 32. We
adopt that claim construction here.
B. “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.
1012 ¶ 17 (“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 25. 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
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system.” Paper 26 (Patent Owner’s Supplemental Claim Construction
Briefing), 1; see also Ex. 2006 ¶ 106 (stating that 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
plurality of acceleration measuring devices.” Ex. 1001, 19:55–57. 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, 13:17–24), 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 15:28–38).
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 13:17–24 (“In one arrangement . . . accelerometer 910 is aligned
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parallel to the x-axis . . . Accelerometer 920 is aligned parallel to the y-axis .
. . Accelerometer 930 is aligned parallel to the z-axis”), 15:28–38 (“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
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) (Ex. 3003) (defining “relative to” as “[w]ith
regard to; concerning”); Merriam-Webster Dictionary, available at
http://www.merriam-webster.com/dictionary/relative%20to (last visited Apr.
26, 2016) (Ex. 3004) (defining “relative to” as “with regard to: in connection
with”); The Oxford English Dictionary, available at
http://www.oed.com/view/Entry/161819?redirectedFrom=relative#eid (last
visited Apr. 26, 2016) (Ex. 3005) (defining “relative to” as “[h]aving
application or reference to; relating to”).
There is nothing in the Specification that indicates a deviation from
this ordinary meaning. Accordingly, the plain language of the claim means
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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, 2:25–27 (“the present invention
introduces systems, as well as methods of operating such systems, for
evaluating movement of a body relative to an environment”), 2:53–56 (“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”). 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, 2:48–51. 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 2:51–56. The Specification explains that sensor
25 of Figure 1 is “for illustrative purposes only” (id. at 6:47–48), that “any
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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 6:48–
51), and that “alternate orientations of sensor 25 may be used for different
applications” (id. at 6:51–53). 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 8:3–18. 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
may each comprise a plural axis measuring device. Id. at 12:54–64. 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 13:17–24. 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 15:28–38.
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
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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.”); Van Geuns, 988 F.2d at 1184 (“[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, 6:47–51,
2:27–31). For example, as discussed above, the ’331 patent describes a “fall
detection application” (id. at 8:23–27), 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. at 8:3–22). Thus, in this embodiment, the ’331 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 a 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
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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. 1008, 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
measuring relative to the one-dimensional frame of reference established by
each device. Ex. 1012 ¶¶ 16–17.
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, 8:3–22); 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.
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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. 1012 ¶ 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. (citing Ex. 1001, 13:4–67). 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
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.
C. “sensing, with a sensor . . . accelerative phenomena of said body
relative to a three dimensional frame of reference in said
environment”(claim 11)
Claim 1 recites a system that includes “a sensor . . . that senses
accelerative phenomena of said body relative to a three dimensional frame of
reference in said environment,” and independent claim 11 recites a “method
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of operating a system” that includes “sensing, with a sensor . . . accelerative
phenomena of said body relative to a three dimensional frame of reference in
said environment.” We determine that sensing with a sensor, as opposed to
a sensor that senses, accelerative phenomena of a body relative to a three
dimensional frame of reference, does not affect our above-described
analysis.
Therefore, for the preceding reasons, we construe “sensing, with a
sensor . . . accelerative phenomena of said body relative to a three
dimensional frame of reference in said environment” as “sensing with 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.”
D. “accelerative event characteristic”
The specification of the ’331 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, 5:27–30. Both parties cite the
definition and propose it as the construction for “accelerative event” or
“accelerative phenomena” Pet. 6 (citing Ex. 1001, 5:27–30); PO Resp. 32
(citing Ex. 1001, 5:27–30). Consistent with that definition, we construe an
“accelerative event characteristic” as a characteristic of an accelerative
event, as defined above.

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III. CHALLENGE BASED ON YASUSHI
To prevail in its challenge of claims 1, 2, 11, and 12 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).
A. Priority Date
The ’331 patent issued from an application, which is a continuation of
application 09/909,404 (“the parent application”) filed on July 19, 2001,
now U.S. Patent No. 6,703,939, which Petitioner challenges in IPR2015-
00106. Ex. 1001, 1:6–8. The parent application is a continuation-in-part of
application 09/396,991 (“the grandparent application”) filed on September
15, 1999, now U.S. Patent No. 6,307,481, which Petitioner challenges in
IPR2016-00105. Id. at 1:9–13. The grandparent application is related to
provisional application 60/265,521 filed on January 31, 2001. Id. at 1:13–
16.
Petitioner argues that claims 1 and 11 of the ’331 patent “recite ‘a
controller’ and the feature of sensing acceleration ‘relative to a three
dimensional frame of reference’” and “[t]hese features were first disclosed
. . . in Provisional Application No. 60/265,521, filed January 31, 2001.” Pet.
10 (citing Ex. 1001, claim 1; Ex. 1009). Petitioner asserts that the feature of
sensing relative to a three dimensional frame of reference was not added
until the parent application, 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 priority date to which the claims of
the ’331 patent are entitled is January 31, 2001.” Pet. 10 (citing Ex. 1010).
Petitioner also states that Yasushi “was published on November 10, 1998”
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and “Yasushi is prior art under §102(b) to claims 1, 2, 11, and 12 of the ’331
patent.” Id. at 11.
In the Decision on Institution, we determined that Patent Owner
showed that independent claims 1 and 11 are supported by the written
description of the grandparent application filed on September 15, 1999,
because both the ’331 patent and the grandparent application describe a
controller and sensing acceleration relative to a three dimensional frame of
reference, as required by these claims. Dec. on Inst. 17 (citing Ex. 1001,
6:26–28, 8:2–3; Ex. 1008, 46:2–18).
We considered Yasushi prior art under § 102(a)1 for purposes of the
Decision on Institution because Yasushi’s November 10, 1998 publication
date indicates that Yasushi’s portable accident monitoring device 1 was
described in a printed publication in a foreign country before September 15,
1999—the earliest priority date of the ’331 patent. Id. In our Decision on
Institution, we stated that “[a]t this stage of the proceeding, the Board has
not made a final determination as to . . . any underlying factual and legal
issues.” Id. at 36.
By presenting evidence and argument for antedating Yasushi, Patent
Owner appears to rely on the preliminary determination in the Decision on
Institution, and does not provide further evidence or argument showing why
the challenged claims are supported by the written description of the priority
application so as to be entitled to a priority date of at least September 15,
1999. See, e.g., PO Resp. 1.

1 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.
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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; see
Tronzo v. Biomet, Inc., 156 F.3d 1154, 1158 (Fed. Cir. 1998) (discussing
requirements of claiming benefit of priority date of earlier application under
35 U.S.C. § 120).2 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

2 The subsequent application must also be filed before the patenting or
abandonment of or termination of proceedings on the first application or on
an application similarly entitled to the benefit of the filing date of the
previously filed application and contain or be amended to contain a specific
reference to the previously filed application. 35 U.S.C. § 120; see also 37
C.F.R. § 1.78. In this case, the application that matured into the ’331 patent
was filed on March 9, 2004, which is on the same day as the patenting of the
application that matured into the ’939 patent on March 9, 2004. Ex. 1001, 1;
Ex. 1007, 8. The application that matured into the ’331 patent contained a
specific reference to the application that matured into the ’939 patent. Ex.
1006, 36.
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respect to the limitation of independent claims 1 and 11 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.” Ex.
1001, 19:55–57, 20:63–65. In its arguments regarding the construction of
“relative to a three dimensional frame of reference in said environment,”
Patent Owner explains that the Specification “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 movement of a body left/right (x axis),
forward/backward (y axis), and falling to the ground (z axis).” Id. (citing
Ex. 1001, 8:3–22).
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. 1011, 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
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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. 1008, 37 (the
grandparent application patent referring to “FIGURES 3a to 3d illustrate
exemplary strip chart records of output of the sensor introduced in
FIGURES 1 and 2 taken during illustrative situations”); Ex. 1001; 4:38–40
(the ’331 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”).
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. 1011, 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
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system” (Ex. 1011, 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 can
provide information regarding a body relative to a 3D frame of reference.
See id. at 9:25–10:22. As discussed above, the ’331 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 along two axes to obtain information about (sense accelerative
phenomena of) a body relative to a 3D frame of reference. Ex. 1001, 8:19–
22.
As to Dr. Sturges’ further testimony that a dual-axis accelerometer
would not establish a three-dimensional coordinate system (Ex. 1011, 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. 1011, 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
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determine that Patent Owner has shown sufficiently how the grandparent
application (filed on September 15, 1999) describes sensing acceleration
phenomena of a body relative to a 3D frame of reference, as recited in the
challenged claims.
Petitioner also argues that two inventors of the ’331 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 5
(citing Ex. 2007, 11; Ex. 2008, 19). We also are not persuaded by this
argument, which essentially contends that disclosure of three acceleration
measuring devices is required to establish written description support here.
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 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 to a description of a relevant
system in the priority document that is not exactly the same as a system
described in the ’331 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 is
very different from inferring.” Id. (citations omitted). As explained above,
we construe the claims to refer to 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.
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There is nothing in this construction that would require sensing along each
of the three axes. Petitioner does not dispute that there is sensing in at least
the x and y directions of the frame of reference in the grandparent
application to which priority is claimed, such that there is sensing of
accelerative phenomena 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, 18:13–16, 20:9–45.
Petitioner further argues that that the disclosures in the grandparent or
’481 application:
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.
Petitioner’s argument does not persuade us the written description of
the grandparent application lacked support for sensing accelerative
phenomena of a body relative to a three dimensional frame of reference.
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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 of a body with regard to a system of axes (in three dimensions)
in relation to which position or motion can be defined. The ’331 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 acceleration along the x
and y axes, i.e., sensing accelerative phenomena relative to a three
dimensional frame of reference. Ex. 1001, 8:3–22 (referring to “x and y
outputs of sensor 25 during a fall by a body to the right”). The grandparent
priority document likewise describes measuring movement along two axes
to detect a fall. Ex. 1007, 18:13–16, 20:9–5.
The grandparent application to which Patent Owner asserts priority
describes that “[s]ystem 11 includes circuit boards 13 and 15 . . . associated
with a housing (generally designated 17),” that “[h]ousing 17 may comprise
. . . halves 19 and 21 that encase boards 13 and 15,” and that “[s]ystem 11
includes a processor . . . and a sensor 25.” Ex. 1007, 39:10–12, 39:16–19,
40:4–5; see also Ex. 1001, 5:31–33, 5:38–39, 5:50–51. Figure 2 illustrates
system 11, “which includes processing circuitry 39, indicating means 41, . . .
along with sensor 25” and shows sensor 25 on board 15 within housing 17.
Ex. 1007, 42:18–21; see also Ex. 1001, 6:54–57. Based on our construction
of “controller” as “any device, system or part thereof that controls at least
one operation, such a device may be implemented in hardware, firmware or
software, or some suitable combination of at least two of the same” (see Ex.
1001, 4:12–17), we find that the grandparent application provides written
description support for processing circuitry 39 in system 11 or “a controller
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containing said processor, said controller capable of receiving from said
plurality of acceleration measuring devices a plurality of values of
acceleration of body motion,” as recited by claim 1, and “receiving in a
controller containing said processor a plurality of values of acceleration of
body motion from said plurality of acceleration measuring devices of said
sensor,” as recited by claim 11. Ex. 1001, 20:1–4, 21:10–13.
For the foregoing reasons, we determine that Patent Owner has shown
sufficiently that the written description of the grandparent application filed
on September 15, 1999, conveyed with reasonable clarity that the inventors
were in possession of a sensor that sensed accelerative phenomena 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 claim as set forth above. Accordingly, we determine
that claims 1 and 11 are entitled to a priority date of September 15, 1999.
In the Decision on Institution, we also noted that “entitlement to
priority is decided on a claim-by-claim basis, and various claims may be
entitled to different priority dates.” Dec. on Inst. 16 (quoting X2Y
Attenuators, LLC v. Int’l Trade Comm’n, 757 F.3d 1358, 1366 (Fed. Cir.
2014)). Petitioner’s basis for asserting that dependent claims 2 and 12 lack
written description support in the parent application filed on September 15,
1999 appears to be their dependence on independent claims 1 and 11. Reply
6 (citing Ex. 1012 ¶¶ 13–25). Patent Owner makes no assertion that
dependent claims 2 and 12 are entitled to the September 15, 1999 priority
date. Prelim. Resp. 12–14.
Petitioner bears the burden of going forward with evidence that there
is art prior to the application date of the ’331 patent that either anticipates or
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renders obvious the claims of the ’331 patent, which it has. Patent Owner
then has the burden of going forward with evidence (i) that the prior art does
not actually anticipate or render obvious the claims, or (ii) that the alleged
prior art is not actually prior art because the challenged claim is entitled to
the benefit of a filing date prior to the date of the alleged prior art. The
second item requires Patent Owner to show why the written description in
the earlier application supports the claim. See Tech. Licensing Corp. v.
Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008).
Dependent claims 2 and 12 recite “wherein one of said plurality of
different types of motion is one of: no motion, a successful attempt to
change position, an unsuccessful attempt to change position, an unsuccessful
attempt to change position, a motion of a body moving with a gait, a motion
of a body moving with a gait associated with a disability, a swaying motion,
a near fall, and a fall.” Ex. 1001, 20:5–10, 21:14–20. Patent Owner has
made no effort to come forward with evidence as to why dependent claims 2
and 12 are entitled to the benefit of the filing date of the grandparent
application to which priority is claimed.
For the foregoing reasons, we determine that Patent Owner has not
met its burden of production to show sufficiently that the written description
of the grandparent application filed on September 15, 1999 conveyed with
reasonable clarity that the inventors were in possession of the subject matter
of dependent claims 2 and 12. Accordingly, we determine that dependent
claims 2 and 12 are not entitled to a priority date of September 15, 1999.
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B. 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
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).
Yasushi was published on November 10, 1998. As described above,
claims 1 and 11 of the ’331 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

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).
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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
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 the listed inventors of
the ’331 patent (Exs. 2007–2011), who also are listed inventors of the parent
application and, except for Mr. Massman, are listed inventors of the
grandparent application.4 Patent Owner also proffers the Declarations of

4 Patent Owner states that “[a]ll the inventors filed certificates of correction
. . . , reflecting that Michael L. Lehrman, Alan R. Owens, Michael D.
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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).
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

Halleck, and Michael E. Halleck, were all co-inventors of all the iLife
Patents.” PO Resp. 19.
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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
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,
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made, and tested fall detection systems embodying the subject claims of the
patent at issue in August and September of 1998. PO Resp. 3–14, 38–39
(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
1998. Id. (citing Ex. 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 15–18 (citing Ex. 2007 ¶ 26; Exs. 2008–
2010, 2012–2013 ¶¶ 27–30; Exs. 2018, 2030, 2032), 41 (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
39 (citing Ex. 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 “that evaluates movement of a body relative to an
environment” (Ex. 1001, 19:53–54) and “a system to evaluate movement of
a body relative to an environment” (id. at 20:60–61).
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. 39 (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
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the sensed static and dynamic acceleration.” Id. at 39 (citing 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. at 40 (citing Ex. 2007 ¶ 30; Exs. 2008–2010, 2012–2013 ¶ 34).
This corresponds to the claimed “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, 19:55–59) and “sensing, with a
sensor associated with said body, accelerative phenomena of said body
relative to a three dimensional frame of reference in said environment,
wherein said sensor comprises a plurality of acceleration measuring devices”
(id. at 20:63–67). As to a plurality of acceleration measuring devices in the
working embodiment, we determine that a sensor comprising at least two
dual axis accelerometers is a plurality of acceleration measuring devices.
Patent Owner has provided evidence indicating that its working embodiment
included “multi-vector sensors,” i.e., a plurality of sensors. 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
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real fall as opposed to normal daily activities.” PO Resp. 39 (citing Ex.
2007 ¶ 19; Exs. 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 as a function of at least one
accelerative event characteristic” (Ex. 1001, 19:60–62) and “processing,
with a processor associated with said sensor, repeatedly sensed dynamic and
static accelerative phenomena of said body as a function of at least one
accelerative event characteristic” (id. at 21:1–4).
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. 39 (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 40
(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”).
This corresponds to the phrases “to thereby determine whether said body has
experienced acceleration that represents one of a plurality of different types
of motion” (Ex. 1001, 19:64–67) and “determining whether said body has
experienced acceleration that represents one of a plurality of different types
of motion” (id. at 21:7–9).
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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. 39–40 (citing Ex. 2007 ¶ 23; Exs. 2008–2010, 2012–2013 ¶ 24) see
also id. at 3 (citing Ex. 2016), 10 (citing Ex. 2007 ¶ 19; Exs. 2008–2010,
2012–2013 ¶ 20). This corresponds to the phrase “to thereby determine
whether said evaluated body movement is within an environmental
tolerance.” Ex. 1001, 19:63–64, 21:4–6.
Patent Owner’s evidence further supports that the working
embodiment 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 such as walking,
sitting, standing, or lying down.” PO Resp. 39; Ex. 2007 ¶ 18; Ex. 2008 ¶
19, Ex. 2009 ¶ 19; Ex. 2010 ¶ 19, Ex. 2012 ¶ 19; Ex. 2013 ¶ 19; Ex. 2019
at 1 (stating that “it would be be possible to tell if that person were standing
or laying down or in a position somewhere between those two”). This
corresponds to the recitations “to thereby determine whether said body has
experienced acceleration that represents one of a plurality of different types
of motion” and “determining whether said body has experienced
acceleration that represents one of a plurality of different types of motion.”
Ex. 1001, 19:64–67, 21:7–9.
Patent Owner’s evidence supports that the “newly-created system
used both static and dynamic acceleration outputs from an ADXL202 dual-
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axis accelerometer to detect that a person wearing the sensor had fallen
down, with such information then being used to activate an automatic
telephone dialing module to call for help.” PO Resp. 13 (citing Ex. 2019 at
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 corresponds to the phrases “a controller containing
said processor, said controller capable of receiving from said plurality of
acceleration measuring devices a plurality of values of acceleration of body
motion” (Ex. 1001, 20:1–4) and “receiving in a controller containing said
processor a plurality of values of acceleration of body motion from said
plurality of acceleration measuring devices of said sensor” (id. at 21:10–13).
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–
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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
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. See Reply 2–7 (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
with respect to claims 1 and 11 of the ’331 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. Claims 2 and 12
Petitioner argues that claims 1, 2, 11, and 12 are rendered obvious in
view of Yasushi with citations to the disclosures in Yasushi, a claim chart,
and the Welch Declaration (Ex. 1002). Pet. 11–26, 43–60.
1. Yasushi (Ex. 1003)
Yasushi discloses a portable accident monitoring device and system
that may be carried by an individual. Ex. 1003, 1:5–7, 2:30–3:2. The
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accident monitoring device comprises acceleration sensor 11 “which detects
acceleration along three axes orthogonal to each other and outputs
acceleration data.” Id. at 1:8–10; see also id. at 6:16–18. Acceleration
sensor 11 “comprises three sensing segments 11A each consisting of a
semiconductor element and connected to the mounting surface . . . of a
printed substrate.” Id. at 5:13–15. Sensing elements 11A are configured “to
detect the acceleration along three axes orthogonal to each other.” Id. at
5:15–16. Sensing elements 11A include sensor parts 11c that detect
acceleration. Id. at 5:17–26. Data memory 12 stores acceleration data. Id.
at 6:18–19.
The accident monitoring device further comprises analyzer 13 that
“analyzes the acceleration data of the three axes to distinguish the state of
the individual, walking, running, standing still, or falling, thereby constantly
knowing the body condition.” Id. at 5:29–6:1; see also id. at 7:7–8, Figs. 3–
6.
Figures 3–6 of Yasushi are reproduced below.

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Figures 3–6 depict acceleration data describing acceleration along the X-,
Y-, and Z-axes in a time series manner while an individual is walking,
running, standing still, or falling due to a seizure, respectively. Id. at 6:20–
7:6.
“[A] given length of time for which the state of falling lasts and a
given value of acceleration exceeding a normal range are preset.” Id. at 6:1–
3. Yasushi further discloses that “[i]f the state of falling lasting for a given
or longer length of time or an acceleration equal to or higher than a given
value is detected, . . . analyzer 13 outputs an abnormal signal.” Id. at 6:3–5.
Similarly, Yasushi discloses that “if the individual encounters a traffic
accident or the like and an acceleration equal to or higher than a given value
is detected, an abnormal signal is output.” Id. at 7:9–11.
2. Analysis
Petitioner argues that all of the claimed elements are disclosed by
Yasushi, but that “even if a difference between Yasushi 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 Yasushi.” Pet.
14.
In particular, Petitioner argues that Yasushi discloses a “system that
evaluates movement of a body relative to an environment” because Yasushi
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evaluates movement of a body, such as an aged person, relative to the
person’s environment. Id. (citing Ex. 1003, 2:30–3:2, 5:23–26, 5:29–6:1;
Ex. 1002 ¶ 45, App. C).
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,” Petitioner argues that Yasushi discloses a sensor attached
to the lower back of an individual to detect acceleration relative to a three
dimensional frame of reference as the individual moves. Pet. 14 (citing Ex.
1003, 5:23–26, 6:16–18; Ex. 1002 ¶ 46, App. C). For a “sensor comprising
a plurality of acceleration measuring devices,” Petitioner argues that
acceleration sensor 11 of Yasushi comprises three sensing elements 11A. Id.
at 14–15 (citing Ex. 1003, 5:13–22; Ex. 1002 ¶ 47, App. C).
Regarding “a processor, associated with said sensor, that processes
said sensed accelerative phenomena as a function of at least one accelerative
event characteristic,” Petitioner argues that Yasushi discloses an analyzer 13
that receives signals from sensor 11 regarding sensed accelerative
phenomena and processes the acceleration data as a function of at least one
accelerative event characteristic when Yasushi’s system distinguishes
between various movements or conditions. Pet. 15–16 (citing Ex. 1003,
1:11–13, 4:9–12, 5:29–6:1, 6:20–7:6, Figs. 3–6; Ex. 1002 ¶ 48, App. C).
For “to thereby determine whether said evaluated body movement is
within environmental tolerance,” Petitioner argues that “Yasushi’s analyzer
13 determines whether the evaluated body movement is within an
environmental tolerance, such as whether the state of falling lasts for ‘a
given or longer length of time’ or whether an acceleration is ‘equal to or
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higher than a given value.’” Pet. 16 (citing Ex. 1003, 6:1–5; Ex. 1002 ¶ 49,
App. C).
For “to thereby determine whether said body has experienced
acceleration that represents one of a plurality of different types of motion,”
Petitioner argues that analyzer 13 of Yasushi “determines whether the body
has experienced acceleration representative of, e.g., walking, running,
standing still, or failing, which are different types of motion.” Pet. 16–17
(citing Ex. 1003, 5:29–6:1; Ex. 1002 ¶ 50, App. C).
Regarding “a controller containing said processor, said controller
capable of receiving from said plurality of acceleration measuring devices a
plurality of values of acceleration of body motion,” Petitioner argues that the
combination of analyzer 13 with data memory 12 is a controller containing a
processor and is “capable of receiving a plurality of values of acceleration of
body motion from sensor 11.” Pet. 17–18 (citing Ex. 1003, 5:11–13, 5:29–
6:1, 6:20–7:6; Ex. 1002 ¶ 51, App. C).
Independent claim 11 recites a “method of operating a system to
evaluate movement of a body relative to an environment,” and Petitioner
provides arguments similar to the ones described above for the
corresponding limitations of claim 1. Pet. 19–24 (citing Ex. 1003, 1:11–13,
2:30–3:2, 4:9–12, 5:11–22, 5:23–26, 5:29–6:5, 6:16–18, 6:20–7:6, Figs. 3–6;
Ex. 1002 ¶¶ 55–62, App. C).
For claims 2 and 12, Petitioner argues that the “plurality of different
types of motion determined by Yasushi’s system include several of the types
identified” in claims 2 and 12, “including no motion (e.g., “standing still”)
and a fall, among others.” See Pet. 18–19, 24–26 (citing Ex. 1003, 1:11–13,
5:29–6:1, 6:28–7:3, Figs. 5, 6; Ex. 1002 ¶¶ 53, 64, App. C).
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As described in connection with our analysis of the priority date, we
determined that Patent Owner did not meet its burden of production to show
sufficiently that the written description of the parent application filed on
September 15, 1999 conveyed with reasonable clarity that the inventors were
in possession of the subject matter of dependent claims 2 and 12. Because
dependent claims 2 and 12 have not been shown to be entitled to a priority
date of September 15, 1999, Yasushi (with its printed publication date of
November 10, 1998, which is more than one year before the January 31,
2001 priority date to which dependent claims 2 and 12 are entitled) remains
prior art under 35 U.S.C. § 102(b) as to dependent claims 2 and 12.5
a. Dependent Claim 2
In its Patent Owner Response, for dependent claim 2, Patent Owner
does not provide any evidence or testimony contrary to the evidence and
testimony provided by Petitioner regarding the disclosure of Yasushi. See
PO Resp. 38–45. Our Scheduling Order in this case cautioned Patent Owner
that “any arguments for patentability not raised in the [Patent Owner]

5 Even assuming arguendo that dependent claims 2 and 12 were entitled to a
priority date of September 15, 1999, thereby enabling Patent Owner to
antedate Yasushi with respect to the subject matter embodying dependent
claims 2 and 12, Patent Owner has not sought to antedate the subject matter
of dependent claims 2 and 12. See PO Resp. 1 (Patent Owner asserting that
Yasushi “cannot be used to invalidate these claims, and the Board should
find that claims 1 and 11-12 of the ’331 patent are patentable over Yasushi”);
id. at 38 (“The evidence submitted with this Response antedates Yasushi and
eliminates it as a ground for rejection by showing prior conception and
reduction to practice of these claims before the date of publication on
November 10, 1998.”); id. at 39 (citing Ex. 2006 ¶¶ 110–115) (“Patent
Owner’s expert, Dr. Sturges, also supports that the inventors had practiced
the inventions of claims 1 and 11 by that date.”).
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[R]esponse will be deemed waived.” Paper 13, 3. The Board’s Trial
Practice Guide, furthermore, states that the Patent Owner Response “should
identify all the involved claims that are believed to be patentable and state
the basis for that belief.” Office Patent Trial Practice Guide, 77 Fed. Reg.
48,756, 48,766 (Aug. 14, 2012). As the Board has stated, our governing
statute and Rules “clearly place some onus on the patent owner, once trial is
instituted, to address the material facts raised by the petition as jeopardizing
patentability of the challenged claims.” Johnson Health Tech Co. v. Icon
Health & Fitness, Inc., Case IPR2013-00463, slip op. at 12 (PTAB Jan. 29,
2015) (Paper 41). By providing evidence only of conception and reduction
to practice before the November 10, 1998 publication date of Yasushi (see,
e.g., PO Resp. 1, 3–19, 35–38), Patent Owner has conveyed to the Board
that the only basis for its belief that claim 2 is are patentable is that Yasushi
does not qualify as prior art.
After considering Petitioner’s and Patent Owner’s positions, as well as
their supporting evidence, we conclude that Petitioner has demonstrated, by
a preponderance of the evidence, that dependent claim 2 would have been
obvious over Yasushi under 35 U.S.C.§ 103(a).
b. Dependent Claim 12
For claims 11 and 12, Patent Owner argues that Yasushi “does not
teach using both static and dynamic acceleration to evaluate both movement
and orientation of the body.” PO Resp. 42 (citing Ex. 2006 ¶¶ 97–100).
Patent Owner asserts that Yasushi “describes only . . . (1) detecting
‘[w]hen an individual falls . . . ’ from a gravitational acceleration offset in
one direction; and (2) detecting when the monitored person ‘encounters a
traffic accident . . . ’ from detection of ‘an acceleration equal to or higher
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than a given value.’” Id. at 43 (citing Ex. 1003 ¶¶ 21–22; Ex. 2006 ¶¶ 97–
100). Patent Owner, thus, argues that Yasushi “teaches using only static
acceleration to determine orientation” and “using dynamic acceleration to
determine movement” but “does not teach or suggest sensing and processing
both static and dynamic accelerative phenomena to evaluate both movement
of the body and the body’s orientation” and determining “the acceptability of
the evaluated body movement based on both sensed static and dynamic
acceleration.” Id.
Patent Owner contends that Yasushi does not extract or separate static
and dynamic components from total acceleration and does not evaluate
separately static and dynamic acceleration outputs from the accelerometer.
Id. at 44 (citing Ex. 1003 ¶¶ 14–16, 22). Patent Owner asserts that Yasushi
“evaluates (a) total acceleration to a given value, and (b) duration of a
particular acceleration to a given time.” Id. (citing Ex. 2006 ¶¶ 97–100).
We agree with Petitioner that claim 11 and its dependent claim 12 do
not require evaluating both body movement and orientation. Reply 8 (citing
PO Resp. 44). Independent claim 11 does not require evaluating both
movement of the body and the body’s orientation, and instead recites a
“method of operating a system to evaluate movement of a body relative to an
environment, said method of operation comprising . . . processing . . .
repeatedly sensed dynamic and static accelerative phenomena of said body
as a function of at least one accelerative event characteristic to thereby
determine whether said evaluated body movement is within an
environmental tolerance.” Ex. 1001, 20:60–21:6.
Even if the challenged claims could be construed to require sensing
and processing both static and dynamic accelerative phenomena to evaluate
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both movement and orientation of the body, we agree with Petitioner that
Yasushi uses both static and dynamic acceleration to determine both body
movement and orientation because Yasushi teaches (1) that the magnitude of
the dynamic component of acceleration is used to distinguish between
walking, running, and being still and (2) that the static component of the
same sensed acceleration is used to indicate angle or position relative to the
earth. Reply 8–11 (citing Ex. 1003, 6:24–7:6, Figs. 3–6).
After considering Petitioner’s and Patent Owner’s positions, as well as
their supporting evidence, we conclude that Petitioner has demonstrated, by
a preponderance of the evidence, that dependent claim 12 would have been
obvious over Yasushi under 35 U.S.C.§ 103(a).

IV. CHALLENGE BASED ON UNUMA
Petitioner argues that claims 1, 2, 11, and 12 are rendered obvious in
view of Unuma with citations to the disclosures in Unuma, a claim chart,
and the Welch Declaration. Pet. 26–42, 43–60.
A. 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.
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Figure 1 provides a block diagram of a motion and action recognition
device, and Figure 2 depicts a view of outputs from an acceleration sensor
attached to the waist of an object under observation. Id. at 4:23–25. The
sensor in Figure 2 “takes measurements of acceleration applied to the human
body in the direction of its height,” and output results 20 indicate time series
data derived from human motions, where “data items 21 and 22 denote
cyclic acceleration changes during walking or running, data item 23
represents a single acceleration change, and data item 24 stands for a state of
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no acceleration in which gravitational acceleration is not detected because
the object is lying down.” Id. at 6:31–37.
When discussing Figure 2, Unuma explains that “[a]fter the above
data items [21-24] are digitized by the A/D converter 4 [shown in Figure 1],
the digitized data are subjected to time-frequency analysis (e.g., Fourier
transformation), which is a typical technique of signal analysis.” Id. at 6:38–
39. The result of that time-frequency analysis “is a frequency spectrum
body 25,” such that “data items 21 through 24 are matched with frequency
spectra 26, 27, 28 and 29 respectively.” Id. at 6:39–41; Fig. 2. Unuma
states that “[b]ar graphs of the analyzed result represent spectrum intensities
of the frequency components acquired through Fourier transformation,”
where “[t]he frequency characteristic differs from one motion to another,”
and “[t]he differences constitute the characteristic quantities of the motions
involved.” Id. at 6:41–43.
Unuma goes on to state:
With this embodiment, the characteristic quantities that
serve as reference data used by the signal processing unit 7 for
motion/action recognition are extracted and saved in advance
from the motions and actions whose characteristic quantities are
known. The reference data thus saved are stored into the
characteristic quantity database 6 via a path 9 in Fig. 1 (process
30 in Fig. 2).
The signal processing unit 7 for motion/action
recognition continuously receives characteristic quantity data
10 from the characteristic quantity extraction unit 5, the data 10
being derived from the ongoing motions/actions of the object 1
under observation. The data 10 are compared with the
reference data 11 made up of the stored characteristic quantities
of various motions/actions in the database 6. That is, the
currently incoming characteristic quantity is correlated with the
stored characteristic quantities in the database 6. At any point
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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:

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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.
Figures 16A and 16B in Unuma are reproduced below.

Figures 16A and 16B depict views of calculating differences between a
measured motion and a reference motion. Id. at 4:45–48.
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Unuma states that its system applies “to a setup where supervisors or
custodians in charge of people who are socially vulnerable and need
protection or of workers working in isolation are automatically notified of a
dangerous situation into which their charge may fall for whatever reason.”
Id. at 16:5–7. Unuma discloses that a processing unit stores and
continuously monitors “history data” in reference to “motion patterns” held
in a specific motion pattern storage unit. Id. at 16:22–23. In this context,
Unuma explains that:
A specific motion pattern is a combination of multiple
motions necessary for recognizing a specific action such as “a
sudden collapse onto the ground” or “a fall from an elevated
location.”
For example, the action of “a sudden collapse onto the
ground” is recognized as a motion pattern made up of a motion
of “a walking or standing still posture” followed by a motion of
“reaching the ground in a short time” which in turn is followed
by a motion “lying still on the ground.” Similarly, the action of
“a fall from an elevated location” is recognized as a motion
pattern constituted by motions of “climbing,” “falling,” “hitting
obstacles,” “reaching the ground” and “lying still,” occurring in
that order.
Id. at 16:23–30.
In addition, Unuma discloses that its system allows “reporting or not
reporting the recognized motion pattern depending on where the incident is
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.
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Unuma also presents Figures 33–36. Figures 33 and 36 are depicted
below.

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

Figure 43 depicts a diagram showing a display of a sequence of
motion states leading to an emergency. Id. at 5:47–48; 31:28–45. Figure 43
depicts time period 1130, during which a patient walks briskly; period 1131,
during which the patient walks more slowly; period 1132, during which the
patient stands still; period 1133, during which the patient collapses; and
period 1134, during which the patient is “lying down and does not move any
more.” Id. at 31:36–39. Unuma states that, by repeating the process, “a
sequence 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
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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.
B. Independent Claims 1 and 11
Petitioner argues that Unuma teaches or suggests a system that
comprises all of the claimed elements, but 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.” Pet. 29. For example, Petitioner argues that
Unuma discloses a “system that evaluates movement of a body relative to an
environment,” e.g., a particular motion, action, and/or work of a patient. Id.
at 29–30 (citing Ex. 1004, 2:3–6, 13:47–49, 30:30–32, Fig. 1; Ex. 1002 ¶ 69,
App. D). Petitioner also contends that “signal processing unit 7” in Unuma
corresponds to the “processor” of the challenged claims (id. at 31–32 (citing
Ex. 1004, 6:17–20, 6:41–43, 8:7–10, 16:31–34; Ex. 1002 ¶ 72, App. D)),
and the “acceleration sensor,” associated with processing unit 7 in Unuma,
corresponds to the recited “a sensor, associable with said body, that senses
accelerative phenomena” of the body (id. at 30–31 (citing Ex. 1004, 8:41–
45, 11:53–54, Fig. 8; Ex. 1002 ¶ 70, App. D)).
For a “sensor comprising a plurality of acceleration measuring
devices,” Petitioner argues that “Unuma discloses that ‘[e]ither a single or a
plurality of measuring instruments may be used’” and “describes
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acceleration sensors as typical measuring instruments.” Id. at 31 (citing Ex.
1004, 6:26, 6:31; Ex. 1002 ¶ 71, App. D).
Regarding “a controller containing said processor, said controller
capable of receiving from said plurality of acceleration measuring devices a
plurality of values of acceleration of body motion,” Petitioner argues that
characteristic quantity extraction unit 5 and signal processing unit 7 of
Unuma can be implemented by a memory and data processor, and
characteristic quantity extraction unit 5 receives signals from measuring
instruments 2 and 3. Pet. 34–35 (citing Ex. 1004, 6:27–29; Ex. 1002 ¶ 75,
App. D).
For “to thereby determine whether said body has experienced
acceleration that represents one of a plurality of different types of motion,”
Petitioner argues that the processor of Unuma can determine whether a body
is walking, running, squatting, or lying down. Pet. 34 (citing Ex. 1004,
6:31–37, Fig. 2; Ex. 1002 ¶ 74, App. D).
Independent claim 11 recites a “method of operating a system to
evaluate movement of a body relative to an environment,” and Petitioner
provides arguments similar to the ones described above for the
corresponding limitations of claim 1. Pet. 36–37, 39–42 (citing Ex. 1004,
2:3–6, 6:17–20, 6:26, 6:27–29, 8:41–45, 11:53–54, 13:26–34, 13:47–49,
16:26–30, 17:3–7, 29:43–45, 30:30–32, Figs. 1, 3, 8, 39, 42, 43; Ex. 1002
¶¶ 79–81, 83–85, App. D).
We are persuaded that Petitioner adequately shows the claim
limitations discussed above. We discuss particular claim limitations below.
1. “processor . . . that processes said sensed accelerative
phenomena of said body as a function of at least one
accelerative event characteristic”
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Petitioner argues that Unuma’s “processor 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. 31. Petitioner asserts that “‘[b]ar graphs of the
analyzed result represent spectrum intensities of the frequency components
acquired through Fourier transformation,” “[t]he frequency characteristic
differs from one motion to another’” and the “differences constitute the
characteristic quantities of the motions involved.” Id. at 31–32 (citing Ex.
1004, 6:41–43). Petitioner contends that “wavelet transformation, time
frequency analysis or any other appropriate frequency analysis scheme may
be implemented.” Id. (citing Ex. 1004, 8:7–10). Petitioner also argues that
“[b]y processing the acceleration data as a function of characteristics of the
accelerative event, the system is able to distinguish between various
accelerative events using characteristics thereof.” Id. at 32. Petitioner
contends that Unuma recognizes climbing by detecting an upward
acceleration greater than gravitational acceleration, recognizes falling by
detecting zero acceleration in all directions, recognizes hitting obstacles by
detecting intense acceleration occurring in different directions in a short
time, and recognizes reaching the ground by detecting a strong acceleration.
Id. (citing Ex. 1004 , 16:31–34; Ex. 1002 ¶ 72, App. D).
Patent Owner responds that the processor of Unuma only processes
sensed dynamic acceleration information, but not both dynamic and static
accelerative phenomena, as required in challenged independent claims 1 and
11.
Specifically, Patent Owner asserts “[i]n using the accelerometer
output illustrated in Figures 2 and 3, Unuma processes only dynamic
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acceleration to recognize motion patterns and disregards or filters out static
acceleration.” PO Resp. 46. In support, Patent Owner relies on teachings in
Unuma and the Sturges Declaration (Ex. 2006). Id. at 46–51.
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 47–51 (citing Ex. 2006 ¶¶ 38–39, 40–50, 56–58, 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 47 (referring to Ex. 1004, 7:20–24; Ex. 2006 ¶¶ 56–
58). According to Patent Owner, that comparison is what processor 7 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 47, 50–51 (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 48 (citing Ex 2006 ¶ 49).
Patent Owner presents similar arguments regarding the “frequency
analysis” depicted in Figure 2. PO Resp. 49–50. 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. 51–52 (Ex. 2006 ¶¶ 42, 47). According to Patent Owner (id. at
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51–53), Unuma does not “disclose or teach processing of static acceleration
to evaluate changes in orientation.” Id. at 52.
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 53–54. 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 54. Patent Owner then argues that when Unuma
normalizes “both the frequency components F(m) of observed motion and
the frequency components G(m) of the reference motion,” that normalization
removes “magnitude information” for the sensed dynamic acceleration. Id.
at 54 (citing Ex. 1004, 6:55–7:15). 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 55–58
(discussing to Ex. 1004, 7:20–24, 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 57; 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 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)
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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. 51–52; see also, id. at 46, 48. In support, with
the exception of attorney argument and/or conclusory statements, 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. 47 (citing Ex. 1004, 7:20–24), 54–
58 (referring to Ex. 1004, 7:1–5); Ex. 2006 ¶¶ 42, 49. Patent Owner also
cites to paragraphs in Dr. Sturges’ Declaration discussing an “average value
T (denoted by reference numeral 2003) of the powers of all spectrum
components excluding the direct-current component (that is, the 0th-order
harmonic),” as depicted in Figure 47C. Exhibit 1004, 21:22–34; PO Resp.
51–52 (referring to Ex. 2006 ¶ 42, which cites Exhibit 1004, 21:22–34).
Petitioner argues that Unuma discloses repeatedly sensed dynamic and
static acceleration of the body. Pet. 38–39 (citing Ex. 1004, 6:31–37, 6:48–
50, 16:31–34, Fig. 3; Ex. 1002 ¶ 82, App. D). Petitioner contends the sensor
in Figure 2, for example, “takes measurements of acceleration applied to the
human body in the direction of its height.” Id. at 38. In addition, “[o]utput
results 20 from the acceleration sensor indicate specific time series data
items 21 through 24 derived from human motions of ‘walking,’ ‘running,’
‘squatting’ and ‘lying down.’” Id. Petitioner also points to “data item 24”
as indicating “a state of no acceleration in which gravitational acceleration is
not detected because the object is lying down.” Id. at 39 (citing Ex. 1004,
6:31–37).
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2. “to thereby determine whether said evaluated body
movement is within an environmental tolerance”
Petitioner argues that Unuma determines whether a patient is in an
emergency state of collapse and position measurement unit 41 can measure
specific motion patterns and then report the recognized motion pattern
depending on where the motion is observed to avoid false alarms. Pet. 33–
34 (citing Ex. 1004, 13:26–34, 16:26–30, 17:3–7, 29:43–45, Figs. 39, 42, 43;
Ex. 1002 ¶ 73, App. D).
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. 28, 33 (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. at 33–34. 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. at 33–34 (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. 58. 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
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some collapses result in false alarms, and that Unuma “suggests various
techniques for verifying that an apparent collapse” is a state of emergency.
Id. (citing Ex. 1004, 17:3–7, 29:19–23, 30:3–5, 31:30–39; Ex. 2006 ¶ 82).
Thus, according to Patent Owner, Unuma fails to teach or suggest
determining tolerability based on processing sensed static and dynamic
acceleration. Id.
Patent Owner’s contentions do not persuade us. In Figure 39, for
example, Unuma discloses detecting whether a collapse corresponds to a
state of emergency, which also involves determining whether body activity
is within environmental tolerance, i.e., not in a state of emergency. Ex.
1003, 30:24–42, Fig. 39. When considering disclosures in Unuma regarding
Figures 39 and 42, for example, we agree with Petitioner that “[a]t a
minimum[,] a [person of ordinary skill in the art] would have found it
obvious in view of Unuma’s disclosed determinations regarding body
movements within particular environments that trigger, for example, alarms
and reports, to provide a determination of whether said evaluated body
movement is within an environmental tolerance.” Pet. 34; see also Ex.
1004, 17:3–7 (discussing “reporting”). Moreover, we are persuaded that a
determination of whether an evaluated body movement is “within an
environmental tolerance” results from the previously described processing of
sensed dynamic and static accelerative phenomena as a function of at least
one accelerative event characteristic, as taught Unuma. Thus, we are
persuaded that Unuma teaches or suggests the subject matter recited in the
“thereby” language of the claims. See Oxford Dictionaries, available at
http://www.oxforddictionaries.com/us/definition/american_english/thereby
(defining “thereby” as “By that means; as a result of that”) (Ex. 3007).
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We determine that Petitioner establishes sufficiently that Unuma
teaches or suggests “to thereby determine whether said evaluated body
movement is within an environmental tolerance,” as recited in claims 1 and
11.
3. “processing . . . repeatedly sensed dynamic and static
accelerative phenomena of said body as a function of at
least one accelerative event characteristic”
Claim 11 includes certain limitations also recited in claim 1, but claim
11 recites processing “repeatedly sensed dynamic and static accelerative
phenomena of said body as a function of at least one accelerative event
characteristic.” Ex. 1001, 21:1–3 (emphasis added). In addition to the
above, Petitioner points us to where Unuma teaches that “processing unit 7
for motion/action recognition continuously receives characteristic quantity
data 10 from the characteristic quantity extraction unit 5, the data 10 being
derived from the ongoing motions/actions of the object 1 under observation.”
Pet. 38–39 (citing Ex. 1004, 6:31–37, 6:48–50, 16:31–34; Ex. 1002 ¶ 82,
App. D) (emphasis added). Petitioner contends that Unuma’s processing
unit 7 “processes repeatedly sensed dynamic and static (gravitational)
acceleration of the body, as illustrated in Fig. 3.” Pet. 38. As noted above,
“accelerative event” means “occurrences of change in velocity of the body
(or acceleration), whether in magnitude, direction or both, and including
cessation or activity or inactivity.” Petitioner argues that Unuma’s
processing unit 7 continuously receives characteristic quantity data 10 from
characteristic quantity extraction unit 5, “the data 10 being derived from the
ongoing motions/actions of the object” under observation. Pet. 38 (citing
Ex. 1004, 6:48–50); Ex. 1004, Fig. 1. In relation to “ongoing
motions/actions” data, the sensor in Unuma, as depicted in Figure 2, for
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example, “takes measurements of acceleration applied to the human body in
the direction of its height,” and generates output results 20 that indicate the
motions of “walking,” “running,” “squatting,” and “lying down.” Id. at 38
(citing Ex. 1003, 6:31–37, 16:31–34).
Patent Owner addresses the patentability of independent claim 11
separately from independent claim 1 with respect to whether Unuma
discloses processing of both dynamic and static accelerative phenomena, as
required in independent claim 11 (but not in independent claim 1). PO Resp.
45–53. More particularly, Patent Owner responds to Petitioner’s contentions
by arguing that the processor of Unuma only processes sensed dynamic
acceleration information, but not both dynamic and static accelerative
information/phenomena, as required in challenged independent claim 21.
Specifically, Patent Owner asserts “[i]n using the accelerometer output
illustrated in Figures 2 and 3, Unuma processes only dynamic acceleration to
recognize motion patterns and disregards or filters out static acceleration.”
PO Resp. 46 (emphasis omitted). In support, Patent Owner relies on
teachings in Unuma and a declaration by Dr. Sturges (Ex. 2006). Id. at 45–
53.
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 47 (citing Ex. 2006 ¶¶ 48, 49, 56).
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
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function H(m).” Id. (referring to Ex. 1004, 7:20–24). According to Patent
Owner, that comparison is what the processor 7 does when it processes data,
and Unuma only processes frequency components generated from the
dynamic acceleration information, and “does not suggest using any aspect of
the sensed static acceleration data to correlate or recognize motions.” Id.
(citing Ex. 2006 ¶¶ 56–58), 50–51 (stating that “static acceleration
information is effectively filtered out, and is not employed”) (citing Ex.
2006 ¶ 42). 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 48.
Patent Owner presents similar arguments regarding the “frequency
analysis” depicted in Figure 2. PO Resp. 45–51. In relation to both Figures
2 and 3, Patent Owner repeats its contention that Unuma “teaches and
encourages use of methods that filter out and disregard static acceleration.”
Id. at 51–52 (citing Ex. 2006 ¶¶ 42, 47). According to Patent Owner (id. at
51–53), Unuma does not “disclose or teach processing both dynamic and
static acceleration to thereby determine whether motion is within
environmental tolerance.” Id. at 53.
The analysis by Patent Owner and its expert, Dr. Sturges, however,
does not persuade us that Unuma fails to teach processing of sensed dynamic
and static accelerative phenomena as a function of at least one accelerative
event characteristic For example, Unuma’s system obtains data from an
acceleration sensor, such as data items 21–24 in Figure 2, or acceleration
changes 210 in Figure 3, for example—which include gravitational (static)
acceleration information—and such data “are digitized by the A/D converter
4” and “subjected to time-frequency analysis.” Ex. 1004, 6:31–39. Patent
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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, 50–51. 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. 45–53 (referring to Ex. 1004, 6:55–7:54).
Patent Owner also cites to paragraphs in Dr. Sturges’ Declaration discussing
an “average value T (denoted by reference numeral 2003) of the powers of
all spectrum components excluding the direct-current component (that is, the
0th-order harmonic),” as depicted in Figure 47C. Ex. 1004, 6:55–7:54; PO
Resp. 51–52 (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, 6:31–33 (describing a “direct current (dc) voltage
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component” as corresponding “to an angle relative to earth (i.e., static
acceleration component related to gravity”); Reply 13.
Moreover, even to the extent that we were to agree that Unuma filters
out static acceleration as part of its wavelet or frequency analysis, this in and
of itself is an indication of processing, in that the processor would subject
the static acceleration data to examination so as to filter it out. See Merriam-
Webster Dictionary, available at http://www.merriam-
webster.com/dictionary/process (Ex. 3008) (defining “process” as “to
subject to examination or analysis .”).
Accordingly, even if “the absence of wavelet components in Figure 3 merely
indicates the absence of dynamic acceleration” “[e]ven with respect to lying
down” (PO Resp. 41–42 (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 claim 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 claim 21, i.e., teaches or suggests
processing relevant accelerative phenomena as a function of magnitude and
direction. Ex. 1004, 27:45–28:55; Pet. Reply 10–11. The processing of
“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
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some capacity, “process” dynamic and static accelerative information as a
function of occurrences of change in velocity or acceleration of the sensed
body, in magnitude and/or direction. See Merriam-Webster Dictionary,
available at http://www.merriam-webster.com/dictionary/process (Ex. 3009)
(defining “process” as “to take in and organize for use ”).
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).
C. Dependent Claims 2 and 12
We further determine that Petitioner has established by a
preponderance of the evidence that that dependent claims 2 and 12 would
have been obvious over Unuma under 35 U.S.C. § 103(a) for the reasons set
forth in the Petition. See Pet. 35–36 (for claim 2, citing Ex. 1004, 6:31–37,
14:42, Figs. 2, 3; Ex. 1002 ¶¶ 77–78, App. D), 42 (for claim 12, citing Ex.
1004, 6:31–37; Ex. 1002 ¶ 87, App. D.), 51–52 (citing Ex. 1004, 6:31–37,
14:42, Figs. 2, 3), 60 (citing Ex. 1004, 6:31–37, 14:42, Figs. 2, 3). Patent
Owner does not present sufficient arguments to the contrary in relation to
any of dependent claims 2 and 12 in particular, but rather focuses on
limitations recited in the independent claims, as discussed and addressed
above. PO Resp. 45–59.
We determine Petitioner has established by a preponderance of the
evidence that independent claims 2 and 12 would have been obvious over
Unuma under 35 U.S.C. § 103(a).

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V. MOTION TO EXCLUDE
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, 13–34, and App. 1 at
page 65 of Exhibit 1012 (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.” Paper 29, 2.
Patent Owner also argues that the paragraphs comprise new claim
construction 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 1–2. Patent Owner
also moves to exclude paragraphs 37–41 of Exhibit 1012 as comprising new
claim construction arguments regarding “what is required to ‘process’
sensed static and dynamic accelerative phenomena in the context of claim
1.” Id. at 3. According to Patent Owner, the paragraphs present legal
arguments without basis, and Petitioner should have presented such
arguments in the Petition. Paper 29, 1–3 (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.” Paper 32, 2
(citing Vibrant Media, Inc. v. General Electric Co., IPR2013-00170, Paper
56, 31 (PTAB June 26, 2014)). Petitioner further argues that it properly
submitted Dr. Welch’s Reply declaration testimony in direct response to
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arguments and evidence raised by Patent Owner in its Response. Id. More
particularly, Petitioner points out that Patent Owner affirmatively asserts, in
its Patent Owner Response, that Yasushi “does not qualify as prior art and
cannot be used to invalidate these claims” and that “the challenged claims
are allegedly not obvious over Unuma ‘because the claims at issue require
[certain elements] none of which is disclosed or taught by Unuma.’” Id. at
2–3 (citing PO Resp. 1, 24).
Patent Owner moves to exclude paragraphs 52–56, 58, 62, 64, 65, and
67 of Exhibit 1012 as comprising new arguments discussing new portions of
Unuma that were not presented in the Petition nor Dr. Welch’s opening
declaration (Exhibit 1002). Paper 29, 3. More particularly, Patent Owner
argues that those paragraphs discuss Figures 5(b), 33–36, and 48 along with
their accompanying text in Unuma, but neither the Petition nor Patent
Owner’s Response examine those portions of Unuma. Id.
Petitioner opposes and argues that Dr. Welch’s Reply declaration
testimony is directly responsive to Patent Owner’s assertion that “the
challenged claims are allegedly not obvious over Unuma” because the
claims at issue require elements “none of which is disclosed or taught by
Unuma.” Paper 32, 3.
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
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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” (Paper 29, 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
contentions that Unuma fails to disclose sensing and processing of both body
movement and changes in orientation of the body, evaluation of movement
according to accelerative event characteristics, and making an acceptability
determination based on the specified criteria relative to the environment of
interest (see, e.g., PO Resp. 2, 45–59). Such contentions differ from mere
argument that Petitioner has failed to offer adequate evidence in its Petition
to establish that Unuma discloses the subject matter of recited elements in
the challenged claims. 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.

VI. 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 arguments regarding (i) “an acceleration
sensor 25 with two sensing axes 27 and 29,” (ii) the “proper construction of
‘senses’ or ‘measuring,’” and (iii) “infer[ring] orientation in a third
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dimension.” Id. at 1. Patent Owner also contends that certain pages of
Petitioner’s Reply include new arguments regarding how Petitioner contends
Unuma (i) “processes static acceleration;” (ii) “discloses processing
magnitude and direction of acceleration” and (iii) “discloses using
tolerances.” Id. at 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.
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 these claims.’” 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” certain things. 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
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Patent 7,095,331 B2

74
responsive to arguments raised in the Patent Owner Response as to Yasushi
and the entirety of the teachings of Unuma, and accordingly, have given
appropriate consideration to the identified arguments and evidence relating
to contentions regarding Yasushi and Unuma.

VII. 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, 2, 11, and 12 of the ’331 patent are unpatentable based on the
following grounds of obviousness under 35 U.S.C. § 103(a):
A. Claims 2 and 12 under 35 U.S.C. § 103(a) as obvious
over Yasushi; and
B. Claims 1, 2, 11, and 12 under 35 U.S.C. § 103(a) as
obvious over Unuma.

VIII. ORDER
For the reasons given, it is:
ORDERED that claims 1, 2, 11, and 12 of U.S. Patent No.
7,095,331 B2 have been shown, by a preponderance of the evidence, to be
unpatentable;
FURTHER ORDERED that Patent Owner’s Motion to Exclude
is denied; and
FURTHER ORDERED that, because this is a Final Written
Decision, the parties to the proceeding seeking judicial review of the
decision must comply with the notice and service requirement of 37 C.F.R.
§ 90.2.
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Patent 7,095,331 B2

75

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

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