Trials@uspto.gov
`571-272-7822
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`
`
`
`Paper 8
`Entered: August 10, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NIKE, INC.,
`Petitioner,
`
`v.
`
`MAYFONK ATHLETIC, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-00655
`Patent 8,860,584 B1
`____________
`
`
`Before SALLY C. MEDLEY, KARL D. EASTHOM,
`and JASON J. CHUNG, Administrative Patent Judges.
`
`EASTHOM, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
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`

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`IPR2015-00655
`Patent 8,860,584 B1
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`I. INTRODUCTION
`
`Petitioner filed a Petition requesting an inter partes review of claims
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`3–27 of U.S. Patent No. 8,860,584 B1 (Ex. 1001, “’854 patent”). Paper 1
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`(“Pet.”). Patent Owner filed a Preliminary Response. Paper 6 (“Prelim.
`
`Resp.”). We have jurisdiction under 35 U.S.C. § 314.
`
`Under 35 U.S.C. § 314(a) (“Threshold”), “the Director may not
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`authorize an inter partes review . . . unless the Director determines . . . there
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`is a reasonable likelihood that the petitioner would prevail with respect to at
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`least 1 of the claims challenged in the petition.” Considering the Petition
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`and Preliminary Response, we determine that Petitioner has met the
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`threshold by establishing a reasonable likelihood of prevailing in showing
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`the unpatentability of challenged claims. Accordingly, we institute inter
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`partes review of claims 3–27.
`
`A. Related Proceedings
`
`According to Petitioner, Patent Owner asserts infringement by
`
`Petitioner of claims in the ’584 patent and a related parent patent, U.S.
`
`Patent No. 8,253,586 B2, in Mayfonk, Inc. v. Nike, Inc. No. 3:14–cv–00423–
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`MO (D. Ore.). See Pet. 1. Petitioner also filed a petition seeking inter
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`partes review of claims 3, 4, 6–13, 15–27 of the ’584 patent in Case
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`IPR2015-00656, a decision for which issues concurrently herewith.
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`B. The ’584 Patent
`
`The ’584 patent describes network systems for tracking and sharing
`
`athletic data. Ex. 1001, Abstract. In one embodiment, the system involves
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`the following major components: sensor 440 and computing unit 430 that an
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`athlete may wear for gathering and transmitting athletic data, an external
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`personal computing device 410 communicating with sensor 440 and
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`Patent 8,860,584 B1
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`computing unit 430, and “Mayfunk” website 400 communicating with
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`multiple external personal computing devices for sharing data from various
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`athletes. See id. at Fig. 4, 7:14–47.
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`
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`Figure 4 of the ’584 patent follows:
`
`
`
`
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`Figure 4 depicts sensor 440, computing unit 430, external computing
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`unit 430, and Mayfunk website 400.
`
`In a general reading of some elements of claim 3 (listed below) on
`
`Figure 4, “computing unit” 430 is “configured to transmit and receive
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`electrical signals relating to athletic performance parameters” that “at least
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`one sensor” 440 is “configured to generate.” “[C]omputing unit” 430 is
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`“specifically paired” with “external computing device” 410. Finally,
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`3
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`“remote server” 400 connects to “external computing device” 410 and stores
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`“activity data” uploaded therefrom.
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`C. Challenged Claims 3 and 21
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`3. A system for tracking athletic movements comprising:
`
`computing unit configured to transmit and receive
`
`electrical signals relating to athletic performance parameters;
`
`at least one sensor configured to generate electrical
`
`signals relating to athletic performance parameters from
`physical movement, wherein said at least one sensor and said
`computing unit are communicatively connected to enable the
`computing unit to receive electrical signals generated by said at
`least one sensor in real time;
`
`at least one external computing device configured to
`
`communicate electrical signals relating to athletic performance
`parameters with said computing unit, wherein said at least one
`external computing device and said computing unit are
`specifically paired, defined by at least one of a wired serial
`connection and wireless bonding which enables the computing
`unit to authenticate the identity of the external computing
`device prior to communicating electrical signals therewith; and
`
`a remote server communicatively connected to said
`
`external computing device through a computer network,
`wherein said external computing device is operable to
`automatically upload activity data, defined as data generated
`from electrical signals relating to athletic performance
`parameters from the physical movement of the at least one
`sensors, over said network and said server stores said activity
`data, enabling interactive subscriber communication whereby
`uploaded activity data can be retrieved over the computer
`network.
`
`21. A social networking system for the sharing of athletic
`statistics comprising:
`
`
`a plurality of measurement apparatus, each a having
`
`computing unit which is associated with one or more sensors,
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`
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`wherein said computing unit is configured to control the
`operation of associated sensors and acquire athletic statistic data
`defined as electrical signals relating to the physical movement
`or orientation of associated sensors;
`
`
`a server connected to a computer network, wherein said
`
`service is configured to provide for real time automated storage
`of athletic statistic data acquired by a plurality of computing
`units and retrieval;
`
`
`at least one personal processing unit configured to
`
`receive athletic statistic data relating to a plurality of
`measurement apparatus from the server over the computer
`network, wherein the at least one personal processing unit is
`configured to receive stored athletic statistic data through a
`personal computing client software application; and
`
`
`wherein the personal computing client software
`
`application additionally enables the at least one personal
`processing unit to be operable to configure at least one of said
`computing units to control the operation of associated sensors
`and acquire athletic statistic data through the uploading of
`activity programs to said computing units.
`
`
`D. Claim Challenges––35 U.S.C. § 103(a)
`
`Petitioner challenges the claims of the ’584 patent on the following
`
`pre-AIA grounds.1 See Pet. iii.
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284 (2011), revised 35 U.S.C. §§ 102 and 103, effective March 16,
`2013, after the effective filing date of the ’584 patent.
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`Patent 8,860,584 B1
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`Claims
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`Reference(s)
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`3–7, 9, 11–16, 18, and 20
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`3–7, 9, 11–16, 18, and 20
`
`Teller2
`Teller and Molyneux3
`Teller and Shum4
`Teller, Molyneux, and Case5
`7, 8, 10, 16, 17, and 19
`3–6, 9, 11–15, 18, and 20 Gardner6 and Molyneux
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`6 and 15
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`Basis
`
`§ 102(e)
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
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`§ 103(a)
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`10 and 19
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`21–27
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`Gardner, Molyneux, and Case
`Root7
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`
`
`II. ANALYSIS
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`A. Claim Construction
`
`The Board interprets unexpired claims using the “broadest reasonable
`
`construction in light of the specification of the patent in which [they]
`
`appear[].” 37 C.F.R. § 42.100(b); see also In re Cuozzo Speed Techs., LLC,
`
`No. 2014-1301, 2015 WL 4097949, at *6 (Fed. Cir. July 8, 2015); Office
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`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
`
`1) “specifically paired”
`
`
`
`Claims 3 and 12 recite “wherein said at least one external computing
`
`device and said computing unit are specifically paired, defined by at least
`
`one of a wired serial connection and wireless bonding which enables the
`
`
`2 U.S. Patent No. 7,689,437 B1 (Ex. 1005).
`3 U.S. Patent No. 8,172,722 B2 (Ex. 1008).
`4 U.S. Patent Application Publication No. 2007/0021269 (Ex. 1011).
`5 U.S. Patent Application Publication No. 2007/0247306 (Ex. 1007).
`6 U.S. Patent No. 7,454,002 B1 (Ex. 1006).
`7 U.S. Patent No. 6,013,007 (Ex. 1012).
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`computing unit to authenticate the identity of the external computing device
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`prior to communicating electrical signals therewith.” (Emphasis added).
`
`Petitioner contends that “specifically paired” means either “a wired
`
`serial connection” or “wireless bonding which enables the computing unit to
`
`authenticate the identity of the external computing device prior to
`
`communicating electrical signals therewith.” See Pet. 12. Petitioner
`
`contends the prosecution history of the ’584 patent supports this broadest
`
`reasonable construction. See Pet. 9 (discussing Ex. 1002, 67–68). For
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`example, Petitioner points out that Patent Owner argued during prosecution
`
`that “‘the claims have been amended to specify the nature of the pairing
`
`between the computing unit and the external computing device as either a
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`wired serial connection or an authenticated wireless bond (such as a
`
`Bluetooth connection).’” Pet. 9 (quoting Ex. 1002, 67–68 (emphasis
`
`added)).
`
`
`
`Although Patent Owner argues that the clause does not require a
`
`construction, Patent Owner disagrees with Petitioner’s construction. Prelim.
`
`Resp. 13. Patent Owner contends that Petitioner’s construction reads out the
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`“‘authentication’ limitation for a ‘wired’ connection.” Id. at 17. To support
`
`a requirement for authentication of a wired connection, Patent Owner argues
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`that its amendments to claims 3 and 12 during prosecution distinguished a
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`prior art reference to Vock.8 Id. at 15–17. Patent Owner describes Vock as
`
`
`8 Recently, the Federal Circuit indicated that even for non-expired patents
`that return to the PTO, prosecution history may be an important component
`of intrinsic evidence in construing claims (notwithstanding that Patent
`Owner may amend the claims and a broadest reasonable construction
`standard applies). See Tempo Lighting, Inc. v. Tivoli, LLC, 742 F.3d 973,
`977 (Fed. Cir. 2014) (“In claim construction, this court gives primacy to the
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`disclosing two types of “broadcast[] RF signals” that were at issue during
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`prosecution. See id. at 15 (citing Ex. 2001).
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`On this record, the prosecution history is consistent with Petitioner’s
`
`construction. Patent Owner did not argue that Vock failed to disclose an
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`authenticated wired connection and argued instead that the claims require
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`“either a wired serial connection or an authenticated wireless bond (such as
`
`a Bluetooth connection).” Ex. 1002, 68 (emphasis added). Patent Owner
`
`generally argued that Vock could not “accomplish Applicant’s specific[]
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`pairing of the computing unit and the external computer.” Id. The
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`prosecution history tracks the plain and ordinary reading of claims 3 and 12.
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`The disputed clause does not have a comma directly before “which,”
`
`indicating that that the phrase that follows “which” and imposes an
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`authentication requirement only imposes that requirement on the “wireless
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`bonding” term that it immediately follows.
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`Further, during prosecution, Patent Owner pointed to Figure 10 of the
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`’584 patent for support of the amendment at issue here––i.e., the “wherein”
`
`clause. See Ex. 1002, 67. Figure 10 supports Petitioner’s construction and
`
`
`language of the claims, followed by the specification. Additionally, the
`prosecution history, while not literally within the patent document, serves as
`intrinsic evidence for purposes of claim construction. This remains true in
`construing patent claims before the PTO.”) (citing In re Morris, 127 F.3d
`1048, 1056 (Fed. Cir. 1997)); Microsoft Corp. v. Proxyconn, Inc., No. 2014-
`1542, 2015 WL 3747257, at *3 (Fed. Cir. June 16, 2015) (“The PTO
`should also consult the patent’s prosecution history in proceedings in which
`the patent has been brought back to the agency for a second review.”)
`(citing Tempo Lighting, 742 F.3d at 977). On the other hand, in Tempo
`Lighting, 742 F.3d at 978, the “court also observes that the PTO is under no
`obligation to accept a claim construction proffered as a prosecution history
`disclaimer, which generally only binds the patent owner.”
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`tracks Patent Owner’s arguments during prosecution, because it describes
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`using “USB or Bluetooth.” Ex. 1001, Fig. 10.
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`Therefore, for purposes of this Institution Decision and on this record,
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`according to the plain language of the claims in light of the Specification,
`
`and the prosecution history, “specifically paired, [is] defined by . . . a wired
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`serial connection,” or “by . . . wireless bonding which enables the computing
`
`unit to authenticate the identity of the external computing device prior to
`
`communicating electrical signals therewith.”
`
`2) “conditions in real time electrical signals relating to one or more
`athletic performance parameters generated by said sensors into data
`corresponding to units of measurement for physical movement which is
`useable by a display component”
`
`Claims 4, 6, 13, and 15 recite the above phrase or an immaterial
`
`variation of it. Claims 4 and 13 require a “computing unit” (i.e., connected
`
`to the sensors) to condition the signals. Claims 6 and 13 require the
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`“external computing device” (i.e., which is more remote from the sensors
`
`than the “computing unit”) to condition the signals. Neither party offers a
`
`construction of the phrase, but Patent Owner states that “real time
`
`conditioning of signals” does not require a construction. See Prelim. Resp.
`
`17.
`
`According to the ’584 patent Specification, data from sensors in the
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`“computing unit” [i.e., not the external computing device], “can include a
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`local display such as an led read out, a data logging device such as a micro-
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`SD card which is later read by a personal computer, or one of many wired or
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`wireless communications options for near-real time transmission to another
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`[i.e., external] computing device.” Ex. 1001, 13:34–39 (emphases added).
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`In other words, after transmission of the sensor data, that data may later be
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`transmitted in “near-real time,” according to this passage. Another passage
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`that discusses “real-time broadcasts” (id. at 10:39–40), describes how a
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`processor collects data from a sensor in an article of clothing, and then sends
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`it to another “processing unit . . . for the local display of the athletic statistics
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`or for forwarding of the sensor data onto another communication media such
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`as the internet, interactive television or some other network.” See id. at
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`10:46–52.
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`On this record, the passages reveal that the term “real time” is a
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`relative term that does not preclude processing and transmission delays.
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`Therefore, on this record, the phrase “conditions in real time electrical
`
`signals . . . generated by said sensors into data . . .useable for display” means
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`processing signals into useable display data nearly contemporaneously after
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`transmitting the parameters from the sensors and receiving the
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`corresponding signals (related to the parameters).
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`B. Teller
`
`Teller discloses a personal monitoring system for providing feedback
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`during physical exercise and other activities. Ex. 1005, Abstract, 2:26–52;
`
`10:29–33. The system enables people to track their physical performance by
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`carrying sensor device 10 that has at least one sensor 12 and microprocessor
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`20. See id. at Figs. 1–2; 7:30–37. The sensor transmits gathered
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`physiological data to personal computer 35 by short-wave wireless
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`transmission 45 or by wired serial connection 40, using an RS232 or USB
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`port. See id. at Fig. 1, 8:31–47. Personal computer types include a personal
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`digital assistant (Palm VII) or 2-way pager. Id. at 8:52–57. Personal
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`computer 35 transmits the data to remote central monitoring unit 30. Id. at
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`Fig. 1, 8:48–52; 12:59–64. Under one alternative, “rather than storing data
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`in memory 22, sensor device 10 may continuously upload data in real time.”
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`Id. at 8:28–30.
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`Central monitoring unit 30 can update or reprogram sensor
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`microprocessor 20, including adjusting sample rates or timing for
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`monitoring of sensors. Id. at 10:39–47. Under an alternative transmission,
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`microprocessor 20 encrypts and compresses the data and transmits it to
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`wireless device 50, which may be integral with sensor 10 and
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`microprocessor 20, and wireless device 50 transmits it to tower 60 and
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`computer 65, which transmits the data to central monitoring unit 30 over the
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`Internet. Id. at 8:58–9:6.
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`C. Teller, Anticipation Challenge
`
`
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`Relying on its declarant, Dr. Darrin Young (Ex. 1004), Petitioner
`
`contends that Teller anticipates claims 3–7, 9, 11–16, 18, and 20. Pet. 13–
`
`24. Addressing the preamble of independent claims 3 and 12, Petitioner
`
`contends Teller discloses tracking athletic movements including individuals’
`
`physiological state. Pet. 14 (citing Ex. 1005, 1:6–12). As an example,
`
`Teller discloses monitoring “calories burned during a workout” and
`
`determining if “a high heart rate or respiration rate has been encountered.”
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`Ex. 1005, 10: 29–34.
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`Petitioner reads “the computing unit” recited in claims 3 and 12 on
`
`Teller’s microprocessor 20 of sensing device 10. Pet. 14–15 (citing Fig. 2,
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`7:63–75). Petitioner reads “the external computer device” recited in claims
`
`3 and 12 on Teller’s personal computer 35 or wireless device 50. Pet. 17
`
`(citing Ex. 1005, 8:33–35). Petitioner points out that Teller’s sensor data
`
`can be collected and transmitted in real time to a remote computer site,
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`reading that disclosure on the “real time” sensor signal generation element of
`
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`claim 3. Pet 16 (citing Ex. 1005, 4:15–21, 8:28–30).
`
`Claim 3 and claim 12 recite “wherein said at least one external
`
`computing device and said computing unit are specifically paired, defined by
`
`at least one of a wired serial connection and wireless bonding which enables
`
`the computing unit to authenticate the identity of the external computing
`
`device prior to communicating electrical signals therewith.” Petitioner
`
`contends that Teller’s serial connection involving either RS-232 or a USB
`
`port satisfies the “specifically paired, defined by . . . a wired serial
`
`connection.” Pet. 17 (citing Ex. 1005, 8:36–37). On this record, Teller’s
`
`serial connection satisfies the “wherein” clause, because “specifically
`
`paired” is “defined by a wired serial connection” under one recited
`
`alternative. See supra Section II.A. (Claim Construction).
`
`
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`Petitioner reads “a remote server” as recited in claims 3 and 12 on
`
`Teller’s remote central monitoring unit 30, contending that it receives and
`
`stores activity data from external computing device 35 generated from at
`
`least one sensor. Pet. 19–20 (citing Ex. 1005, 4:15–21, 7:65–8:22, 8:28–30,
`
`Figs. 5–11). Petitioner also relies on Teller’s disclosure that uploaded data
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`“‘is stored in a database [of remote monitoring unit 30] for subsequent
`
`processing and presentation to the user . . . through a local or global
`
`electronic network such as the Internet.’” Pet. 20 (quoting Ex. 1005, 8:17–
`
`21).
`
`
`
`On this record, Petitioner demonstrates a threshold showing (i.e., “a
`
`reasonable likelihood that the petitioner would prevail,” 35 U.S.C. § 314(a))
`
`that Teller anticipates claim 3 and 12. See Pet. 13–20. Patent Owner does
`
`not present persuasive substantive arguments regarding Teller and the
`
`asserted anticipation of claims 3 and 12. Based on the foregoing discussion,
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`we determine that Petitioner demonstrates a reasonable likelihood of
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`prevailing on the ground that Teller anticipates claims 3 and 12.
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`D. Teller and Molyneux, Obviousness Challenge
`
`
`
`Citing the testimony of Dr. Young, Petitioner relies further on
`
`Molyneux to supplement the teachings of Teller to challenge claims 3–7, 9,
`
`11–16, 18, and 20 under an alternative analysis that addresses the second
`
`prong of the “wherein” claims in claims 3 and 12––the clause that requires a
`
`specific pairing to include an authenticated wireless bonding. Pet. 25–27
`
`(citing Ex. 1004 ¶¶ 58–61; Ex. 1009 ¶51, Ex. 1008, 11:34–36).9 According
`
`to Petitioner, the prosecution history and Figure 10 of the ’584 patent show
`
`that typical “Bluetooth” operations satisfy this type of authenticated pairing.
`
`See Pet 25–26 (citing Ex. 1001, claims 3, 12, Fig. 10 (showing
`
`“USB/Bluetooth”); Ex. 1002, 67–68 (’584 patent prosecution history)).
`
`
`
`Petitioner contends that the combination of Teller and Molyneux
`
`renders obvious authenticated pairing using Bluetooth because
`
`[a]t the time of the ’584 invention, Bluetooth was a well-known
`and popular mechanism for the type of short-range wireless
`communication contemplated by Teller. Bluetooth operates by
`authenticating the identities of two devices that are intent on
`communicating with one another before permitting subsequent
`exchange of data. In this manner, other Bluetooth wireless
`devices that are in range cannot eavesdrop, so to speak, on the
`data being exchanged. This is consistent with how the Patent
`Owner characterized Bluetooth and the “authentication” claim
`limitation during prosecution of the ’584 patent.
`
`
`9 To antedate the ’584 patent (effectively filed Apr. 24, 2009), Petitioner
`relies on a provisional application that Molyneux incorporates by reference,
`Prov. Pat. App. No. 61/200953 (filed Dec. 5, 2008) (Ex. 1009). See Ex.
`1008, 1:7–15 (incorporating by reference Prov. Pat. App. No. 61/200953;
`Pet. 13 (relying on Exs. 1008 & 1009).
`13
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`Pet. 26 (citing Ex. 1005, 8:44–47; Ex. 1004 ¶¶ 58–61). Petitioner also
`
`contends that Bluetooth, which Molyneux teaches as a known contactless
`
`transmission, provides ready access to uploaded data and for displaying web
`
`pages, and provides “physical freedom that wireless affords over wired
`
`connections.” Pet. 28 (citing Ex. 1004 ¶ 66); Ex. 1008, 11:34–37, Ex. 1009
`
`¶51).
`
`On this limited record, Petitioner demonstrates a reasonable likelihood
`
`of prevailing in showing that the combination of Teller and Molyneux
`
`renders obvious claims 3 and 12. See Pet. 25–28. Patent Owner does not
`
`present persuasive substantive arguments regarding Teller, Molyneux, and
`
`the asserted obviousness of claims 3 and 12.
`
`
`
`E. Dependent Claims 4–7, 9, 11, 13–16, 18, and 20
`Teller, or Teller and Molyneux
`
`
`
`As noted above in the analysis of claims 3 and 12, Petitioner asserts
`
`that Teller anticipates, or the combination of Teller and Molyneux renders
`
`obvious, dependent claims 4–7, 9, 11, 13–16, 18, and 20. Pet. 20–28.
`
`
`
`Claims 4 and 13 depend respectively from claims 3 and 12 and require
`
`the computing unit to condition real time data useable for display wherein
`
`said conditioning includes at least obtaining a peak performance quantity.
`
`According to Petitioner, Teller’s system tracks and displays a range of
`
`variables, including body movement, acceleration in “G Shocks per
`
`Minute,” the level of calories burned, heart rate, and respiration rate. See
`
`Pet. 15 (citing Ex. 1005, Table 1, 5:27–29; 14:63–65; Ex. 1004 ¶ 67).
`
`Petitioner also contends that Teller discloses real time display, via an LED
`
`or LCD that provides “‘[f]eedback . . .directly through sensor device 10.’”
`
`Pet. 20 (quoting Ex. 1005, 10:20–23).
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`Teller’s processor generally tracks and monitors data. Ex. 1005, 2:1–
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`34. Table 2 of Teller lists processor derived data that uses, summarizes, and
`
`analyzes sensor derived data listed in Table 1, and it includes tracking
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`“[m]aximum oxygen consumption rate,” and also “the time heart rate was
`
`above 85% of a target maximum.” See Ex. 1005, 5:38–6:46. Teller
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`discloses that “sensor device 10 may continuously upload data in real time.”
`
`Id. at 8:28–30. Therefore, on this record, as Petitioner contends, Teller’s
`
`sensor processor (i.e., computing unit) tracks a peak performance quantity
`
`including “G Shocks per Minute” or other maximum quantities and rates.
`
`See Pet. 15. To the extent that Teller does not disclose conditioning data and
`
`obtaining a peak performance quantity as claims 4 and 13 recite, Teller’s
`
`system generally tracks and analyzes all manner of physiological data and
`
`maximum quantities. On this limited record, Petitioner establishes a
`
`reasonable likelihood of showing that Teller discloses or renders obvious
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`providing peak quantities in a real time display to inform a user about
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`excessive conditions, including heart or respiration rate. See Pet. 15–16, 20–
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`22, 28.
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`Claims 5 and 14 respectively depend from claims 3 and 12 and recite
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`“wherein said external computing device is configured to provide software
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`updates from said server to said computing unit.” As indicated with respect
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`to claim 3, Petitioner relies on Teller’s disclosure of communication between
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`central monitoring unit 30 (“server”), external computing device 35
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`(“external computing device”), and sensor device 10 (“computing unit”),
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`wherein the communication includes data uploading from computing unit 10
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`through external computing device 35 to server 30. See Pet. 19 (citing Ex.
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`1005, Fig. 1 (showing communication link between the three devices).
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`15
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`Petitioner also relies on Teller’s firmware and reprogramming downloads
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`from central monitoring unit 30 to the processor in sensor device 10. See
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`Pet. 22 (citing Ex. 1005, 10:34–37). Teller describes data uploads from
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`device 10 through central monitoring computer to central monitoring unit
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`30, and describes firmware updates and reprogramming, as downloads using
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`“the reverse” of the process for uploads (i.e., via computing device 35). See
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`Ex. 1005, Fig. 1, 8:48–57, 10:36–40, 12:60–63. On this limited record,
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`Petitioner establishes a reasonable likelihood of showing that Teller
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`discloses or renders obvious providing the claimed updates via computing
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`device 35 from server 30 in order to communicate with and provide updates
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`to sensor device 10.
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`Claims 6 and 15 respectively depend from claims 3 and 13 and require
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`the external computing device to condition real time sensor data for display
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`“wherein said conditioning includes at least obtaining a peak performance
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`quantity.” Claims 6 is similar to claim 4, except that the latter requires the
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`computing unit, instead of the external computing device, “to condition[] in
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`real time signals relating to . . . athletic performance parameters generated
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`by said sensors into data . . . which is usable by a display component.”
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`Claim 15, by virtue of its dependency on claim 13, requires the external
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`computing device and the computing unit to condition electrical signals.
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`Petitioner relies on, among other things, Teller’s bar chart 205 at
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`Figure 7 that shows sensor accelerometer data, including peak data.
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`Petitioner also relies on Teller’s display in computer 35, “which is the device
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`to which sensor device 10 can upload data in real time.” See Pet. 22–23
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`(citing Ex. 1005, Figs. 5–11, 8:28–47). Petitioner also contends that under
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`one alternative described in Teller, “rather than storing data in memory 22,
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`16
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`sensor device 10 may continuously upload data in real time.” Ex. 1005,
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`8:28–30 (cited at Pet. 19, 22).
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`Nevertheless, it is not clear on this record that computer 35 both
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`uploads data in real time and also conditions that uploaded real time data to
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`be useable display. Teller describes that “once the [real time] data is
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`received by personal computer 35, it is optionally compressed and encrypted
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`. . . and then sent . . . to central monitoring unit 30.” Ex. 1005, 8:48–52.
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`Central monitoring unit processes the data in the form of web pages useable
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`for display. See id. at 8:11:40–45; 11:25–12:37. This type of processing of
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`web pages by central monitoring unit 30 to be viewed and downloaded by
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`personal computer 35 (even if computer 35 then processes that data for
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`display) does not satisfy the “real time” limitation of claims 6 and 15. See
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`supra Section II.A.2. In other words, Petitioner relies on personal computer
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`35 as the “external computing device,” but it appears from this record, that
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`central monitoring unit 30, the relied-upon “server” in claims 3 and 12,
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`processes the relied-upon data for display. See Ex. 1005, 12:8–37 (a user
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`can see stored web page data after authentication). Accordingly, Petitioner
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`fails to establish that Teller discloses, or that the combination of Teller and
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`Molyneux renders obvious, personal computer 35 conditioning real time
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`signals into data useable for display, as claims 6 and 15 require.
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`Claims 7 and 16 depend respectively from claims 3 and 12. Claims 7
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`and 16 require a sensor integrated with clothing and generation of electrical
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`signals by physical movement of the clothing. Petitioner relies on Teller’s
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`disclosure of sensor 10 “‘worn . . . for example as part of a garment such as
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`a form fitting shirt.’” Pet. 23 (quoting Ex. 1005, 4:28–30). Petitioner also
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`cites to a strain gauge sensor for monitoring chest volume change. Pet. 30
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`17
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`(citing Ex. 1005, Table 1, 5:7–8). On this record, claims 7 and 16 are broad
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`enough to cover clothing integrated with an accelerometer, GPS, or strain
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`gauge, or a sensor to monitor calories burned, for example, all of which
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`would generate electrical signals because those types of sensors respond to
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`movement. See Ex. 1005, 5:7–8, 14:63–65, 16:44–49.
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`Claims 9 and 18 depend respectively from claims 3 and 12 and require
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`wireless antenna transmission from the computing unit. Petitioner relies on
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`various wireless transmission disclosures in Teller, including transmission
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`from sensor device 10 to computer 35 as depicted in Figure 1 of Teller. See
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`Pet. 24 (citing Ex. 1005, 8:33–35, 8:52–63, 9:56–62). Teller depicts
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`wireless transmission 15 in Figure 1, disclosed as “short-range wireless
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`transmission,” or “radio transmission,” thereby rendering obvious an
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`antenna, if not implying an antenna, which must exist, necessarily, for such
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`transmission. See Ex. 1005, Fig. 1, 8:43–47.
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`Claims 11 and 20 depend respectively from claims 3 and 12 and
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`require a client software application to enable the external computing device
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`to access uploaded activity data on the server. Petitioner relies on Teller’s
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`disclosure of a browser on external computing device 35 for accessing data
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`from sensor 10 stored on server 30 via the Internet. See Pet. 25 (citing Ex.
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`1005, Fig. 1, 7:65–8:22, 11:59–61); Pet. 24–25, 28–29 (citing Ex. 1004 ¶ 68,
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`Ex. 1005, Figs. 5–11).
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`On this record, Petitioner demonstrates a reasonable likelihood of
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`prevailing in showing that Teller anticipates, or the combination of Teller
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`and Molyneux renders obvious, dependent claims 4, 5, 7, 9, 11, 13, 14, 16,
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`18, and 20. Petitioner’s showing is not sufficient to establish that Teller
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`18
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`anticipates, or the combination of Teller and Molyneux renders obvious,
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`dependent claims 6 and 15.
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`F) Dependent Claims 6 and 15, Teller and Shum
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`
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`Petitioner contends that the combination of Teller and Shum renders
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`obvious claims 6 and 15. Pet. 29–30 (citing Ex. 1005, Ex. 1011). Claims 6
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`and 15 respectively depend from claims 1 and 13 and require the external
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`computing device of those claims to “condition[]” “in real time electrical
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`signals relating to one or more athletic performance parameters generated by
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`said sensors” wherein said conditioning “includes at least obtaining a peak
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`performance quantity.” Petitioner points out that Teller discloses real time
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`sensing and a sensor array that tracks body position, a sensor that tracks
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`physical body movement, and an accelerometer to track sleep patterns over
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`time. See Pet. 22 (citing Ex. 1005, 8:28–47); Pet. 30 (citin