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`Petition for Inter Partes Review of U.S. 7,292,867
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`———————
`
`
`
`Under Armour, Inc.
`Petitioner,
`
`v.
`
`adidas AG,
`Patent Owner
`
`———————
`
`
`
`PETITION FOR INTER PARTES REVIEW
`
`OF
`
`U.S. PATENT NO. 7,292,867
`
`CHALLENGING CLAIMS 1, 3, 9, 10, 12, 14-18, 23, 24
`
`
`
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`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P. O. Box 1450
`Alexandria, VA 22313-1450
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`

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`
`
`I.
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`II.
`III.
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`IV.
`V.
`VI.
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`VII.
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`Petition for Inter Partes Review of U.S. 7,292,867
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`Table of Contents
`
`MANDATORY NOTICES ................................................................................................. 1
`A.
`Real Parties-in-Interest ........................................................................................ 1
`B.
`Related Matters ..................................................................................................... 1
`C.
`Lead and Back-up Counsel and Service Information ....................................... 1
`GROUNDS FOR STANDING ........................................................................................... 1
`IDENTIFICATION OF CHALLENGE AND RELIEF REQUESTED ............................. 2
`A.
`Overview ................................................................................................................ 2
`B.
`The 867 Patent and Its Claims ............................................................................. 4
`C.
`The 289 Application .............................................................................................. 6
`STATUTORY GROUNDS FOR THE CHALLENGES .................................................... 7
`LEVEL OF ORDINARY SKILL IN THE ART ................................................................ 9
`CLAIM CONSTRUCTION ................................................................................................ 9
`A.
`“waypoint” (claim 1) and “time-stamped waypoint” (claim 16) .................... 10
`B.
`“athletic performance information” (claims 1, 16) .......................................... 10
`C.
`“differential athletic performance information” (claim 12) ........................... 10
`IDENTIFICATION OF HOW THE CLAIMS ARE UNPATENTABLE ....................... 11
`A.
`Ground 1: Gardner (U.S. 7,454,002) ................................................................ 11
`1.
`Claim 1 ..................................................................................................... 11
`2.
`Claim 9 ..................................................................................................... 17
`3.
`Claim 10 ................................................................................................... 18
`4.
`Claim 12 ................................................................................................... 19
`5.
`Claim 14 ................................................................................................... 20
`6.
`Claim 15 ................................................................................................... 22
`7.
`Claim 16 ................................................................................................... 23
`8.
`Claim 23 ................................................................................................... 25
`9.
`Claim 24 ................................................................................................... 25
`Ground 2: Gardner in view of Satava .............................................................. 25
`1.
`Reasons to Combine Gardner and Satava ............................................ 25
`2.
`Claims 1 and 16 ....................................................................................... 27
`3.
`Claims 9 and 24 ....................................................................................... 29
`4.
`Claim 14 ................................................................................................... 30
`
`B.
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`Petition for Inter Partes Review of U.S. 7,292,867
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`C.
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`A.
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`Ground 3: Gardner in view of Seiple ............................................................... 33
`1.
`Reasons to Combine Gardner and Seiple ............................................. 33
`2.
`Claim 17 ................................................................................................... 33
`Ground 4: Benefon 2001 .................................................................................... 35
`1.
`Claim 1 ..................................................................................................... 35
`2.
`Claim 3 ..................................................................................................... 41
`3.
`Claim 9 ..................................................................................................... 42
`4.
`Claim 10 ................................................................................................... 43
`5.
`Claim 12 ................................................................................................... 44
`6.
`Claim 15 ................................................................................................... 44
`7.
`Claim 16 ................................................................................................... 45
`8.
`Claim 18 ................................................................................................... 47
`9.
`Claim 23 ................................................................................................... 47
`10.
`Claim 24 ................................................................................................... 48
`Ground 5: Benefon 2001 in view of eTrex ....................................................... 48
`1.
`Reasons to Combine Benefon 2001 and eTrex ..................................... 48
`2.
`Claim 17 ................................................................................................... 49
`VIII. CONCLUSION ................................................................................................................. 50
`
`
`B.
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`Petition for Inter Partes Review of U.S. 7,292,867
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`PETITIONER’S EXHIBIT LIST
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`February 5, 2015
`
`UA-1001
`
`U.S. Patent No. 7,292,867 to Werner et al.
`
`UA-1002
`
`File History of U.S. Patent No. 7,292,867 (excerpt)
`
`UA-1003
`
`Docket Report for Civil Action No. 1:14-cv-00130-GMS
`
`UA-1004
`
`Declaration of Dr. Shawn Burke
`
`UA-1005
`
`U.S. Patent No. 7,454,001 to Gardner
`
`UA-1006
`
`Benefon ESC!, Owner’s Manual (2001)
`
`UA-1007
`
`R. Satava, et. al., The Physiologic Cipher at Altitude:
`Telemedicine and Real-Time Monitoring of Climbers on Mount
`Everest, Telemedicine Journal and e-Health, Vol. 6, No. 3
`(2000)
`
`UA-1008
`
`Declaration of Jukka Nieminen
`
`UA-1009
`
`U.S. Patent No. 6,032,108 to Seiple
`
`UA-1010
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`UA-1011
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`UA-1012
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`UA-1013
`
`eTrex Summit Personal Navigator, Owner’s Manual and
`Reference Guide (February 2001)
`
`J. Hjelm, Creating Location Services for the Web (2002)
`(excerpt)
`
`J. Hjelm, Creating Locating Services for the Web (date stamped
`copyright page from Library of Congress)
`
`Internet Archive Wayback Machine
`(www.garmin.com/products/etrexsummit/manual.html)
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`
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`Petition for Inter Partes Review of U.S. 7,292,867
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`I. MANDATORY NOTICES
`
`A. Real Parties-in-Interest
`
`
`
`The Petitioner Under Armour, Inc (“Petitioner” or “Under Armour”) and
`
`MapMyFitness, Inc., (“MapMyFitness”) which is a wholly-owned subsidiary of
`
`Under Armour, are the real parties-in-interest.
`
`B. Related Matters
`
`
`
`As of the filing of this Petition, U.S. Patent No. 7,292,867 (the “867 Patent”)
`
`is involved in one pending litigation naming Petitioner and MapMyFitness as
`
`defendants: adidas AG, et. al. v. Under Armour, Inc. and MapMyFitness, Inc.,
`
`Case No. 14-130-GMS (D. Del.). UA-1003.
`
`C. Lead and Back-up Counsel and Service Information
`
`
`
`Petitioner designates Brian Ferguson (Reg. No. 36,801), available at 1300 I
`
`Street NW, Suite 900, Washington, DC 20005 (T: 202-682-7516), as Lead Counsel
`
`and Adrian Percer (Reg. No. 46,986), available at 201 Redwood Shores Parkway,
`
`Redwood Shores, CA 94065 (T: 650-802-3124), as Backup Counsel. Please
`
`address all correspondence to lead and backup counsel. Petitioner consents to
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`service by electronic email (brian.ferguson@weil.com; adrian.percer@weil.com).
`
`II. GROUNDS FOR STANDING
`
`
`
`Petitioner certifies that the 867 Patent is available for inter partes review and
`
`that Petitioner is not barred or estopped from requesting inter partes review
`
`challenging the patent claims on the grounds identified in this Petition. The
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`1
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`present petition is being filed within one year of Petitioner being served with the
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`Petition for Inter Partes Review of U.S. 7,292,867
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`complaint in the co-pending litigation (Case No. 14-130-GMS). UA-1003.
`
`III.
`
`IDENTIFICATION OF CHALLENGE AND RELIEF REQUESTED
`
`
`
`Claims 1, 3, 9, 10, 12, 14-18, 23, and 24 of the 867 Patent (“Challenged
`
`Claims”) are challenged in this Petition. Petitioner respectfully requests that the
`
`Board review the accompanying prior art and analysis, institute a trial for inter
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`partes review of the Challenged Claims, and Petitioner respectfully requests that
`
`the Board cancel those claims as unpatentable.
`
`A. Overview
`
`
`
`The 867 Patent claims a mobile phone including a GPS receiver that can
`
`determine athletic performance information (e.g., velocity) using data describing
`
`waypoints (e.g., latitude and longitude) received from the GPS receiver. UA-1001
`
`at 17:25-45. The athletic performance information and waypoints are also
`
`transmitted over a wireless wide-area network while the user is traversing a route.
`
`Id. During prosecution of the application that led to the 867 Patent the claims were
`
`amended to require a “mobile phone” and transmission of athletic performance
`
`information over the network in order to overcome a rejection by the Examiner.
`
`UA-1002.006 (2/26/2007 Amendment). The Applicant contended that “the prior
`
`art of record does not teach or suggest the combination of a mobile phone with an
`
`apparatus that determines athletic performance information to permit the
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`transmission on a wireless network of during traversal of a route of an athletic
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`Petition for Inter Partes Review of U.S. 7,292,867
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`activity” and that “for the 31 years that mobile phones were known and the 23
`
`years that mobile telephone systems were deployed prior to the filing of the present
`
`application, there is no evidence of record that a mobile phone was combined with
`
`the other claimed elements to achieve the combination set forth in the present
`
`claims.” UA-1002.015-016.
`
`
`
`Petitioner submits that those claimed features were in fact known in a GPS-
`
`enabled mobile phone and described in multiple prior art references that were not
`
`of record. Specifically, the prior art at issue here—U.S. 7,452,002 (“Gardner”), the
`
`Benefon Esc!: Owner’s Manual (“Benefon 2001”), R. Satava, The Physiologic
`
`Cipher at Altitude: Telemedicine and Real-Time Monitoring of Climbers on Mount
`
`Everest (“Satava”), U.S. 6,032,108 (“Seiple”), and Garmin eTrex Summit Personal
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`Navigator: Owner’s Manual and Reference Guide (“eTrex”)—either alone or in
`
`combination, discloses each and every limitation of the Challenged Claims.
`
`Petitioner accordingly requests that the Board institute inter partes review and
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`cancel these Challenged Claims as invalid. The remainder of this Petition
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`describes the 867 Patent, the Challenged Claims, the prior art cited in the Petition,
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`and the reasons why the Challenged Claims are invalid.
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`Petition for Inter Partes Review of U.S. 7,292,867
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`B.
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`The 867 Patent and Its Claims
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`The 867 Patent issued from U.S. Patent Application No. 10/759,289 (“the
`
`289 Application”), filed on January 16, 2004, and claims priority to a provisional
`
`application, 60/440,519 (“519 Provisional”), filed on January 16, 2003.
`
`
`
`Claim 1 of the 867 Patent, reproduced below, is directed to a mobile phone
`
`with a GPS receiver, determining athletic performance information (“API”) at GPS
`
`waypoints, and transmitting the waypoints and API over a wireless wide-area
`
`network during traversal of a route:
`
`1. A portable fitness device, comprising:
`
`a mobile phone including:
`
`a global positioning system (GPS) receiver;
`
`a wireless wide-area network transceiver supporting bi-
`
`directional voice communication over-the-air with a wireless
`
`communication network; and
`
`a processing unit coupled to the GPS receiver and the wireless
`
`wide-area network transceiver, wherein the processing unit
`
`receives from said GPS receiver data describing a plurality of
`
`waypoints within a route of a fitness activity, determines
`
`athletic performance information at multiple of the plurality of
`
`waypoints, said athletic performance information including
`
`athletic performance information indicative of velocity and at
`
`least some of said athletic performance information being
`
`determined from the waypoints, and outputs said plurality of
`
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`Petition for Inter Partes Review of U.S. 7,292,867
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`waypoints within the route and at least a portion of said athletic
`
`performance information to said wireless communication
`
`network during traversal of the route via said wireless wide-
`area network transceiver.1
`
`Independent claim 16 is directed to a computer readable medium for
`
`controlling a mobile phone that determines API at GPS waypoints, and
`
`automatically transmits the waypoints and API over a wireless wide-area network
`
`during traversal of a route. Claims 2, 3, 5, 6, 9, 10, 12, 14 and 15 depend from
`
`claim 1, while claims 17, 18, 20, 21, 23 and 24 depend from claim 16.
`
`
`
`Dependent claim 17 requires receiving elevation information over the
`
`wireless network, and using the elevation information to determine API.
`
`
`1 Petitioner contends that independent claim 1 and dependent claims 2-15 recite
`
`both an apparatus (e.g., “mobile phone including…a processing unit”) and a
`
`method (e.g., “wherein the processing unit…receives…determines…and outputs”).
`
`Accordingly, these claims are invalid as indefinite under § 112 for reciting both a
`
`method and apparatus. Rembrandt Data Technologies, LP v. AOL, LLC, 641 F.3d
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`1331, 1339 (Fed. Cir. 2011) (“This court has held that ‘reciting both an apparatus
`
`and a method of using that apparatus renders a claim indefinite under section 112,
`
`paragraph 2.’”) (quoting IPXL Holdings L.L.C. v. Amazon.com, Inc., 430, F.3d
`
`1377, 1384 (Fed. Cir. 2005)).
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`Petition for Inter Partes Review of U.S. 7,292,867
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`Dependent claims 3 and 18 require receiving route information for a
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`predetermined route over the wireless network and presenting said route
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`information.
`
`
`
`Dependent claims 9 and 24 require a storage device that stores the API in
`
`association with waypoints. Dependent claim 10 further requires a presentation
`
`device and presentation interface for presenting the API in real-time.
`
`
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`Dependent claim 12 requires that the API include at least one of a set
`
`including differential API and cumulative API.
`
`
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`Dependent claim 14 requires an athletic performance sensor coupled to the
`
`processing unit, associating sensed API with particular waypoints, and transmitting
`
`the sensed API in association with the waypoints over the wireless network.
`
`
`
`Dependent claim 15 requires that the processing unit initiate transmission of
`
`the waypoints within the route to the wireless network independent of any request
`
`received from the wireless network.
`
`C. The 289 Application
`
`The 289 Application was filed on January 16, 2004. Claim 1 as originally
`
`filed required a portable fitness device comprising a GPS receiver, a wireless wide-
`
`area network transmitter, and a processing unit that received GPS waypoints,
`
`determined API and route information, and outputted the API and route
`
`information to the wireless network during a fitness activity. UA-1002.039-043
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`6
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`
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`(1/16/2004 Claims). Following a rejection on May 3, 2006, claim 1 was amended
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`Petition for Inter Partes Review of U.S. 7,292,867
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`to require that the API include API indicative of velocity, and that only the
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`waypoints were transmitted. UA-1002.033-038 (5/3/2006 Non-Final Rejection);
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`UA-1002.023 (8/7/2006 Amendment). Following a final rejection on October 26,
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`2006, claim 1 was amended to require not just a device, but a “mobile phone” and
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`the requirement for transmitting API over the wireless network was re-inserted.
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`UA-1002.006 (2/26/2007 Amendment). In this amendment, the Applicant
`
`contended that “the prior art of record does not teach or suggest the combination of
`
`a mobile phone with an apparatus that determines athletic performance information
`
`to permit transmission on a wireless network of during traversal of a route of an
`
`athletic activity” and that “for the 31 years that mobile phones were known and the
`
`23 years that mobile telephone systems were deployed prior to the filing of the
`
`present application, there is no evidence that a mobile phone was combined with
`
`the other claimed elements to achieve the combination set forth in the present
`
`claims.” UA-1002.015-016.
`
`IV. STATUTORY GROUNDS FOR THE CHALLENGES
`
`This Petition request inter partes review on the following grounds:
`
`
`
`Ground 1 Anticipation of claims 1, 9, 10, 12, 14, 15, 16, 23, and 24 under 35
`
`U.S.C. § 102(e) based on U.S. Patent No. 7,454,002 to Gardner
`
`(“Gardner”)
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`Ground 2 Obviousness of claims 1, 9, 10, 12, 14, 15, 16, 23, and 24 under 35
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`Petition for Inter Partes Review of U.S. 7,292,867
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`U.S.C. § 103 based on Gardner in view of R. Satava, The Physiologic
`
`Cipher at Altitude: Telemedicine and Real-Time Monitoring of
`
`Climbers on Mount Everest, Telemedicine Journal and e-Health, Vol.
`
`6, No. 3, 2000 (“Satava”)
`
`Ground 3 Obviousness of claim 17 under 35 U.S.C. § 103 based on Gardner in
`
`view of Seiple
`
`Ground 4 Anticipation of claims 1, 3, 9, 10, 12, 15, 16, 18, 23, and 24 under 35
`
`U.S.C. § 102(b) based on Benefon ESC!: Owner’s Manual (2001)
`
`(“Benefon 2001”)
`
`Ground 5 Obviousness of claim 17 under 35 U.S.C. § 103 based on Benefon
`
`2001 in view of eTrex
`
`
`
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`Gardner is a U.S. patent granted on November 18, 2008 from an application
`
`filed on January 8, 2001 and is prior art under § 102(e). UA-1005.001.
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`
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`Satava is a publication from the Telemedicine Journal and e-Health, Volume
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`6, Number 3, 2000, and therefore, is prior art under § 102(b). UA-1007.001.
`
`
`
`As set forth in the declaration of Mr. Jukka Nieminen, Benefon 2001 is a
`
`manual that was published on a public website (www.benefon.com) at least as
`
`early as June 14, 2001. UA-1008 at ¶¶ 9-11. The manual itself is dated 2001.
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`UA-1006.001. In addition, more than 8000 Benefon Esc! mobile phones were sold
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`to the general public in 2001 and 2002, and the manual was included with each
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`Petition for Inter Partes Review of U.S. 7,292,867
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`phone. UA-1008 at ¶¶ 7, 8. Accordingly, Benefon 2001 is a printed publication
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`that is prior art under § 102(b).
`
`
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`Seiple is a U.S. patent granted on February 29, 2000 and is prior art under §
`
`102(b). UA-1009.001.
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`
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`eTrex is a manual that was published on Garmin’s public website at least as
`
`early as February 3, 2001. UA-1013. The manual itself is dated February 2001.
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`UA-1010.002. Accordingly, eTrex is a printed publication that is prior art under §
`
`102(b).
`
`V. LEVEL OF ORDINARY SKILL IN THE ART
`
`
`
`A person of ordinary skill in the art would have, through training or
`
`experience, an understanding of basic analog and digital circuits, microcontrollers,
`
`transmitters, receivers, signaling, sensing, and embedded software. Such a person
`
`would have at least a bachelor’s degree in electrical, computer, or mechanical
`
`engineering and three or more years of practical experience with sensing,
`
`signaling, and embedded systems. UA-1004 at ¶¶ 7-9.
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`VI. CLAIM CONSTRUCTION
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`
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`This Petition analyzes the claims consistent with the broadest reasonable
`
`interpretation in light of the specification. See 37 C.F.R. § 42.100(b).
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`Petition for Inter Partes Review of U.S. 7,292,867
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`A.
`
` “waypoint” (claim 1) and “time-stamped waypoint” (claim 16)
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`The term “waypoint” is a commonly used term in the field of navigation and
`
`refers to a geographic point. UA-1004 at ¶ 38. The geographic point can be
`
`specified, for example, in two-dimensions via latitude and longitude, or in three-
`
`dimensions via latitude, longitude, and elevation. Id. A time-stamped waypoint
`
`includes time along with two-dimensional or three-dimensional coordinates. Id.
`
`The 867 Patent uses these terms consistent with their common meaning. See UA-
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`1001 at 4:56-58, 7:20-22.
`
`B.
`
` “athletic performance information” (claims 1, 16)
`
`
`
`The 867 Patent uses the term “athletic performance information” to broadly
`
`refer to any data regarding a person’s traversal of a route (e.g., elapsed distance,
`
`elapsed time, pace, distance to go, heart rate, etc.). UA-1001 at 4:64-67; UA-1004
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`at ¶ 39.
`
`C.
`
` “differential athletic performance information” (claim 12)
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`
`
`The 867 Patent provides no explanation regarding the meaning of
`
`“differential athletic performance information.” UA-1001 at 6:25-29; see also UA-
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`1004 at ¶ 40. However, one of ordinary skill in the art would understand
`
`“differential athletic performance information” to encompass any athletic
`
`performance information that is determined using a differential, e.g., a difference
`
`between two pieces of athletic performance information. UA-1004 at ¶ 40. For
`
`example, maximum speed during a route is a determination of differential athletic
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`performance information because it involves evaluating the difference between an
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`Petition for Inter Partes Review of U.S. 7,292,867
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`instantaneous measure of speed and a historic measure of speed. Id. Another
`
`example of determining differential athletic performance information would be
`
`evaluating the difference between an instantaneous measure of heart rate and a
`
`target heart rate. Id.
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`VII. IDENTIFICATION OF HOW THE CLAIMS ARE UNPATENTABLE
`
`A. Ground 1: Gardner (U.S. 7,454,002)
`
`1.
`
`Claim 1
`
`A portable fitness device comprising: a mobile phone including: a global
`positioning system (GPS) receiver…a wireless wide-area network
`transceiver supporting bi-directional voice communication…and a
`processing unit
`
`Gardner discloses a need for “a portable device which will provide users
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`
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`with convenient access to information concerning their exercise level and will
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`effectively assist the users in their fitness activity.” UA-1005 at 1:50-53. In order
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`to fulfill this need, Gardner discloses a “portable sports appliance (PSA) 10” (id.
`
`at 3:54-55) or “personal data capture device 10” (id. at 3:66-67) that “may be used
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`by a person engaged in a fitness activity” (id. at 3:61-62).
`
`Gardner further discloses in one embodiment that the “personal data
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`capturing functionality is provided by incorporating components of the personal
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`data capture device into a device 150 which may be a wireless communication
`
`device, a portable computing device, or a multi-purpose device combining a
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`wireless communication and portable computing device” (id. at 8:12-17) and “the
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`Petition for Inter Partes Review of U.S. 7,292,867
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`wireless communication device may be, for example, a radiotelephone, a cellular
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`phone, or a pager, etc” (id. at 9:7-9).
`
`Gardner explains “the device 150 may include a GPS receiver 230” (id. at
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`8:18-19) and “the device 150 further includes a microprocessor 110 which is
`
`coupled to memory 116 and a software program 282” (id. at 8:29-31).
`
`Accordingly, Gardner discloses the claimed portable fitness device
`
`comprising a mobile phone that includes the required components: a GPS receiver,
`
`a wireless wide-area network transceiver supporting bi-directional voice
`
`communication over-the-air2, and a processing unit. UA-1004 at ¶¶ 49-50.
`
`a processing unit coupled to the GPS receiver and the wireless wide-
`area network transceiver, wherein the processing unit receives from
`said GPS receiver data describing a plurality of waypoints within a
`route of a fitness activity
`
`Gardner discloses a “global positioning system (GPS) signal receiver 230”
`
`
`
`
`that “receives GPS signals” (UA-1005 at 6:11-12) which “may include three-
`
`dimensional positional information and velocity of the user when the user is
`
`walking or running, or is engaged in some other relevant activity” (id. at 6:13-
`
`
`2 A wireless wide-area network transceiver supporting bi-directional voice
`
`communication and a processing unit were necessary components of a mobile
`
`phone well before the 867 Patent was filed. UA-1004 at ¶ 50.
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`12
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`16). Thus, Gardner discloses receiving data describing a plurality of waypoints
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`Petition for Inter Partes Review of U.S. 7,292,867
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`within a route of a fitness activity.
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`Gardner further discloses the GPS receiver is coupled to the microprocessor
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`(id. at Fig. 2) and “[u]pon receiving a signal, any of the receivers 225 through 250
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`[which includes GPS signal receiver 230] outputs data to the microprocessor 260”
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`(id. at 6:41-43). Finally, Gardner discloses the “microprocessor 110 is configured
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`to transmit the personal data from the memory 116 to the network server 122 over
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`the wireless network 120” (id at 8:42-44), and the “wireless network 120 may be a
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`fixed wireless network, [or] a mobile wireless network (e.g., a cellular phone
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`network)” (id. at 7:41-43). Gardner, therefore, discloses that the microprocessor is
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`also coupled to a wireless wide-area network transceiver.
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`Accordingly, Gardner discloses the claimed processing unit coupled to the
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`GPS receiver and the wireless wide-area network transceiver, wherein the
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`processing unit receives from said GPS receiver data describing a plurality of
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`waypoints within a route of a fitness activity. UA-1004 at ¶¶ 51-52.
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`wherein the processing unit…determines athletic performance
`information at multiple of the plurality of waypoints, said athletic
`performance information including athletic performance information
`indicative of velocity and at least some of said athletic performance
`information being determined from the waypoints
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`Gardner discloses a GPS receiver that obtains GPS signals including
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`positional information and velocity when a user is engaged in physical activity, and
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`further that the GPS signals are sent to the microprocessor. UA-1005 at 6:12-16,
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`Petition for Inter Partes Review of U.S. 7,292,867
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`6:41-43. Gardner further discloses that the device may provide digital audio
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`feedback to the user for “provid[ing] various real time information (e.g., a distance
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`or average speed).” Id. at 6:63-66.3 The device may also include “a display 114
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`for displaying various information pertaining to the user’s personal data, e.g., the
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`user’s heart rate, the number of steps counted during the user’s fitness activity or
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`during the day, the amount of calories burned by the user during the user’s fitness
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`activity or during the day, etc.” Id. at 8:51-56.
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`Velocity, average speed and distance are all athletic performance
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`information, where speed is the magnitude of velocity. UA-1004 at ¶¶ 53-55.
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`Velocity, average speed and distance, however, are not contained within GPS
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`signals, and therefore, one of ordinary skill in the art would understand that
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`velocity, average speed and distance disclosed in Gardner are necessarily
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`determined by the microprocessor using the data describing waypoints obtained
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`from the GPS receiver. Id.
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`Accordingly, Gardner discloses the claimed processing unit that determines
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`athletic performance information at multiple of the plurality of waypoints,
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`including athletic performance information indicative of velocity. Id.
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`3 All emphasis added unless otherwise noted.
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`Petition for Inter Partes Review of U.S. 7,292,867
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`wherein the processing unit…outputs said plurality of waypoints within
`the route and at least a portion of said athletic performance information
`to said wireless communication network during traversal of the route
`via said wireless wide-area network transceiver.
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`Gardner discloses a device that includes various receivers 225 to 250, which
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`collect personal data while a user is traversing a route. UA-1005 at 8:9-20. The
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`receivers include a GPS receiver 230, which receives GPS signals including
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`positional information (i.e., data describing a plurality of waypoints). Id. at 6:11-
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`14. Gardner further discloses that the device can display “various information
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`pertaining to the user’s personal data, e.g., the user’s heart rate, the number of
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`steps counted during the user’s fitness activity or during the day, the amount of
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`calories burned by the user during the user’s fitness activity or during the day, etc.”
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`Id. at 8:51-56. Heart rate, steps, and calories burned are athletic performance
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`information. UA-1004 at ¶ 56.
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`Gardner also discloses that “the personal data is transmitted from the
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`wireless communication device to a network server over a wireless network.” UA-
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`1005 at 9:29-31. The “microprocessor 110 which receives the personal data…and
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`transmits any portion of the personal data from the memory 116 to a network
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`server 122 over a wireless network 120.” Id. at 7:38-41. Gardner further discloses
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`that the wireless network may be a wide-area wireless network, such as a cellular
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`network. Id. at 7:42-43. The personal data transmitted to the server is then used to
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`generate “feedback information” (id. at 9:35-36) which can be presented “in the
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`form of graphs, tables, map overlays, progressive charts, and comparisons with
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`Petition for Inter Partes Review of U.S. 7,292,867
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`data of other users” (id. at 9:35-40). One of ordinary skill in the art would
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`understand that the disclosure in Gardner of transmitting personal data over the
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`wireless network includes transmitting a plurality of waypoints defining a route
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`taken by the user, particularly given the disclosure of using the transmitted
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`personal data to create “map overlays.” UA-1004 at ¶ 57.
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`Gardner also discloses that the “personal data is transmitted to the network
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`server periodically” or “[a]lternatively, the personal data is transmitted upon
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`receiving a user request.” Id. at 9:31-33. One of ordinary skill in the art would
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`have understood that transmitting the data “periodically” includes transmitting the
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`personal data while the user is engaged in the fitness activity, particularly in view
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`of the disclosure in Gardner that the device is a portable wireless communication
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`that “may be used by a person engaged in a fitness activity” (id. at 3:61-62). UA-
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`1004 at ¶ 58.
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`Accordingly, Gardner discloses the claimed processing unit that outputs a
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`plurality of waypoints and athletic performance information to a wide-area
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`wireless communication network during traversal of a route. UA-1004 at ¶¶ 56-58.
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`2.
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`Claim 9
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`Petition for Inter Partes Review of U.S. 7,292,867
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`a data storage device coupled to said processing unit, wherein said
`processing unit stores at least some of said athletic performance
`information pertaining to particular ones of the plurality of waypoints
`within said data storage device in association with said particular ones
`of the plurality of waypoints
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`Gardner discloses “the device 150 further includes microprocessor 110
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`which is coupled to a memory 116” and therefore, discloses a data storage device
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`coupled to the microprocessor. UA-1005 at 8:29-30. The microprocessor receives
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`data from at least a GPS receiver, motion sensor, and heart rate receiver. UA-1005
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`at 8:17-19. Further “[u]pon receiving a signal, any of the receivers 225 through
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`250 outputs data to the microprocessor 110 [and] [t]he microprocessor 110 stores
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`this data in the memory.” Id. at 8:31-33. Gardner further discloses that “the
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`user’s personal data [is presented] in the form of graphs, tables, map overlays,
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`pro