Paper 10
`
`
`
`
`Trials@uspto.gov
`Date: January 13, 2016
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`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNDER ARMOUR, INC.,
`Petitioner,
`
`v.
`
`ADIDAS AG,
`Patent Owner.
`
`
`
`Case IPR2015-01528
`Patent 8,721,502 B2
`
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and JUSTIN
`BUSCH, Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`
`
`
`Trials@uspto.gov
`Date: January 13, 2016
`
`
`
`
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNDER ARMOUR, INC.,
`Petitioner,
`
`v.
`
`ADIDAS AG,
`Patent Owner.
`
`
`
`Case IPR2015-01528
`Patent 8,721,502 B2
`
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and JUSTIN
`BUSCH, Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`IPR2015-01528
`Patent 8,721,502 B2
`
`
`I.
`INTRODUCTION
`Petitioner, Under Armour, Inc., filed a Petition to institute an inter
`partes review of claims 10–16 of U.S. Patent No. 8,721,502 B2 (Ex. 1001,
`“the ’502 patent”). Paper 1 (“Pet.”). Patent Owner, adidas AG, filed a
`Preliminary Response pursuant to 35 U.S.C. § 313. Paper 8 (“Prelim.
`Resp.”).
`We have authority to determine whether to institute an inter partes
`review. 35 U.S.C. § 314(b); 37 C.F.R. § 42.4(a). Upon consideration of the
`Petition and the Preliminary Response, and for the reasons explained below,
`we determine that the information presented shows a reasonable likelihood
`that Petitioner would prevail with respect to at least one claim. See 35
`U.S.C. § 314(a). Accordingly, we institute an inter partes review.
`
`A. Related Matters
`Patent Owner has asserted the ’502 patent along with additional
`patents, against Petitioner in adidas AG, et. al. v. Under Armour, Inc. and
`MapMyFitness, Inc., Case No. 14-130-GMS (D. Del.). Pet. 2; Paper 5, 1.
`Petitioner has filed several petitions to institute inter partes reviews of
`related patents. See Paper 5, 1.
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`
`Claims Challenged
`10–15
`10–16
`
`B. The Asserted Grounds
`Petitioner identifies the following as asserted grounds of
`unpatentability:
`Basis
`References
`§ 102
`Fry (Ex. 1006)1
`Fry and Ohlenbusch (Ex. 1007)2
`§ 103
`The ’502 Patent
`C.
`The ’502 patent describes computer-based systems that track and map
`an individual’s performance during physical activities. Ex. 1001 Abstract,
`1:6–11. Sports-related measurement devices available in the prior art
`included “modern electronic units capable of monitoring and displaying a
`number of performance characteristics.” Id. at 1:15–20. The ’502 patent
`describes adding a global positioning satellite (GPS) receiver along with
`other sensors, including heart-rate sensors and weather condition sensors, to
`such prior art devices. Id. at 2:5–50, 3:7–12. The resulting device is capable
`of interfacing with an external computer so that the data collected may be
`displayed on the screen of that computer. Id. 2:64–3:6. Figure 46 of the
`’502 patent is reproduced below.
`
`
`1 U.S. Patent No. 6,002,982 (“Fry”).
`2 U.S. Patent No. 6,882,955 B1 (“Ohlenbusch”).
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`Figure 46 shows an illustrative overview display, including collected
`position, performance, and annotation data for a workout session. Id. at
`43:9–11. Graphs 4610–4650 are displayed relative to a common time line.
`Id. at 43:11–13. The graphs display the following performance parameters
`for a particular workout session: Graph 4610—elevation versus time; Graph
`4620—speed versus time; Graph 4630—heart rate versus time; Graph
`4640—stride length versus time; and Graph 4650—cadence versus time. Id.
`at 43:13–19. Figure 47 of the ’502 patent is reproduced below.
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`Figure 47 shows an illustrative comparison display, including
`collected position, performance, and annotation data for multiple workout
`sessions in which the user followed the same route. Id. at 43:50–53. Graphs
`4720, 4730, and 4740 are displayed relative to a common distance line. Id.
`at 43:53–54. The graphs show the following performance parameters for the
`common route or portion of the route: Graph 4720—elevation versus
`distance; Graph 4730—speed versus distance for the first session or portion
`of the session on date 4735; Graph 4740— speed versus distance for the
`second session or portion of the session on date 4745. Id. at 43:55–59.
`Figure 48 of the ’502 patent is reproduced below.
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`Figure 48 shows an illustrative map view display, including collected
`position, performance, and annotation data for a particular workout session
`in relation to a map. Id. at 44:16–18. Date field 4820 shows the date of the
`session being viewed. Id. at 44:18–19. Road indicator 4830 shows the
`roads, trail, and other fixed items from the region in which the session
`occurred. Id. at 44:20–21. Route indicator 4840 (erroneously labeled 1540
`in Fig. 48) indicates the actual route followed by the user during the session
`and “may have different characteristics to indicate different performance
`data.” Id. at 44:22–25. “For example, there may be three different line
`styles used to indicate heart rate above a desired zone, within a desired zone,
`and below a desired zone.” Id. at 25–27. “Any suitable data divided into
`any suitable number of zones may be drawn on the map.” Id. at 44:29–30.
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`D. The Challenged Claims
`Petitioner challenges claims 10–16. Pet. 1. Claim 10 is independent
`and is reproduced below:
`10. A method of displaying information about a
`physical activity conducted by an individual, the method
`comprising:
`receiving and storing in a memory device data associated
`with the physical activity, wherein the data comprises:
`a plurality of position points that were collected as
`the individual traversed a geographic route during the
`physical activity;
`a plurality of first performance parameter data
`points that were collected and correlated with the
`plurality of position points; and
`a plurality of second performance parameter data
`points that were collected and correlated with the
`plurality of position points; and
`initiating a graphical display that comprises a
`representation of the physical activity on a display screen based
`on the received data,
`wherein the representation of the physical activity has a
`first visual characteristic that corresponds to the first
`performance parameter data points values, and
`wherein the representation of the physical activity has a
`second visual characteristic that is different that [sic] the first
`visual characteristic that corresponds to the second performance
`parameter data points values.
`
`Ex. 1001, 72:12–34.
`
`II. ANALYSIS
`A. Claim Construction
`“A claim in an unexpired patent shall be given its broadest reasonable
`construction in light of the specification of the patent in which it appears.”
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`37 C.F.R. § 42.100(b). Pursuant to that standard, the claim language should
`be read in light of the specification, as it would be interpreted by one of
`ordinary skill in the art. In re Suitco Surface, Inc., 603 F.3d 1255, 1260
`(Fed. Cir. 2010). Thus, we generally give claim terms their ordinary and
`customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
`(Fed. Cir. 2007) (“The ordinary and customary meaning is the meaning that
`the term would have to a person of ordinary skill in the art in question.”)
`(internal quotation marks omitted).
`Petitioner proposes express constructions for several terms. Pet. 11–
`17. Patent Owner does not propose any express constructions. Prelim.
`Resp. 8. For purposes of this decision, we determine that only the phrase
`“visual characteristic that corresponds to . . . performance parameter data
`points values” needs explicit construction. Neither party explicitly proposes
`a construction for this phrase. Petitioner asserts that the broadest reasonable
`interpretation of “graphical display that comprises a representation of the
`physical activity” is “a display that comprises a representation of the
`physical activity that includes non-textual elements.” Pet. 14–15. In
`addition, Petitioner asserts that the broadest reasonable interpretation of “a
`second visual characteristic that is different that [sic] the first visual
`characteristic” is “a second visual characteristic that is distinguishable from
`the first visual characteristic.” Pet. 16–17.
`Petitioner’s anticipation analysis, however, relies on the further
`consideration that the visual characteristic used to distinguish performance
`parameter data points does not exclude purely textual representations—e.g.
`labels. Pet. 40–46, 50. In other words, Petitioner argues that the
`construction of the term “visual characteristics that correspond to . . .
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`performance parameter data points values” is broad enough to encompass
`textual labels that point to non-textual representations of performance data
`points. Petitioner relies on Figures 46, 47, and 48 and the corresponding
`description in the ’502 patent to support its assertions. Pet. 17. Petitioner, in
`particular, relies on the fact that Figures 46 and 47 both use text labels to
`distinguish between non-textual representations of different performance
`parameters on the graphical display. Id. In addition, Petitioner notes that
`although both Figure 48 and claim 16 describe using different line styles to
`distinguish between different performance data, the “common thread in each
`example from the specification and claims is that the second visual
`characteristic is distinguishable from the first visual characteristic,” but not
`necessarily using a method other than a textual label. Id.
`Patent Owner disagrees, arguing that “a label is not within the
`Patentee’s intended definition of ‘visual characteristic.’” Prelim. Resp. 11.
`Instead, Patent Owner argues that in order to qualify as a “visual
`characteristic that corresponds to . . . performance parameter data points
`values” there must be something “visually distinct” about either the lines
`used to plot the performance parameter data points values or the font or style
`of the text used to label the plotted information—merely using different
`letters in the label does not qualify as “visually distinct.” Id. According to
`Patent Owner, Figures 46 and 47 “do not have visual characteristics that
`distinguish the plotted performance information” and are not relevant to the
`construction of this term. Id. at 11–12. Patent Owner asserts that because
`only the discussion of Figure 48 refers to visual characteristics, it is the only
`embodiment encompassed by the challenged claims. Id. at 12 (quoting Ex.
`1001, 44:23–27 ((“Route indicator 4840 may have different characteristics
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`to indicate different performance data. For example, there may be three
`different line styles used to indicate heart rate above a desired zone, within a
`desired zone, and below a desired zone.”) (Emphases added by Patent
`Owner)).
`At this point in the proceeding, we are persuaded that the broadest
`reasonable interpretation of “visual characteristic that corresponds to . . .
`performance parameter data points values” encompasses textual labels
`pointing to graphical representations of performance parameter data points
`values. We are not persuaded by Patent Owner’s arguments that Figures 46
`and 47 do not have visual characteristics that distinguish the plotted
`performance information. Instead, we are persuaded that the plain and
`ordinary meaning of that phrase includes the common practice of
`distinguishing between graphs using textual labels and that using different
`letters in a label itself qualifies as a visual distinction. The language
`describing Figure 48, which explicitly notes that line styles are simply one
`example of differentiating characteristics, does not persuade us that patentee
`explicitly defined the term more narrowly. See Ex. 1001, 44:23–27.
`
`B. Anticipation by Fry
`Petitioner asserts that claims 10–15 are anticipated by Fry. Pet. 32–
`
`50.
`
`
`1. Overview of Fry
`Fry discloses a sports computer having an integral GPS and the
`capability to interface with a computer in order to track and analyze
`performance characteristics as a function of geographical position and
`elevation. Ex. 1006, Abstract. The computer includes sensors to measure
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`physiological parameters such as heart rate and weather conditions such as
`temperature. Id. The stored data may be downloaded to an external
`personal computer (PC) so that it may be reviewed and analyzed on the PC’s
`screen. Id. Figure 4 of Fry is reproduced below:
`
`
`Figure 4 shows a sports computer connected to a PC “to view route
`information and performance characteristics through pull-down menus
`associated with various points along a particular workout route.” Id. at
`3:36–41. On the PC’s display 426, the route taken on a particular workout is
`displayed as plot 438 superimposed over map 432. Id. at 5:58–64. Pop-up
`menus 444 appear in response to an operator clicking with pointing device
`450 on a point of path 438. Id. at 7:6–9. As an alternative to the “map-
`based display shown on the display screen in Fig. 4,” ride characteristics
`may be shown as a function of incline by plotting altitude and connecting
`various points. Id. at 7:15–24.
`
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`2. Analysis
`Patent Owner argues that Fry does not anticipate claims 10–15
`because it does not disclose the limitations “wherein the representation of
`the physical activity has a first visual characteristic that corresponds to the
`first performance parameter data points values” and “wherein the
`representation of the physical activity has a second visual characteristic that
`is different that [sic] the first visual characteristic that corresponds to the
`second performance parameter data points values” (“the visual characteristic
`limitations”). Prelim. Resp. 9–16.
`Petitioner asserts that Fry provides two examples of graphical display
`that comprise the visual characteristic limitations: (1) the display shown in
`Figure 4; and (2) the display described as plotting performance as a function
`of altitude (“the altitude example”). Pet. 40–45.
`For the display shown in Figure 4, Petitioner asserts that “Menu 444
`has a first visual characteristic (‘SPEED’ label) corresponding to the first
`performance parameter data points values (speed).” Id. at 42; Ex. 1003 ¶ 74.
`Petitioner asserts that “Menu 444 has a second visual characteristic that is
`distinguishable from the first visual characteristic (i.e., the ‘ALT’ label is
`distinguishable from the ‘SPEED’ label) corresponding to the second
`performance parameter data points values (altitude).” Id. at 44.
`For the altitude example, Petitioner asserts that Fry’s statement
`“plotting in a concurrent synchronized manner the cyclist’s heart rate, speed,
`gear ratio, and so forth” inherently discloses that each of the plotted
`performance parameters would have a different visual characteristic. Id. at
`43–45; Ex. 1003 ¶ 78. Thus, the first parameter would have a first visual
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`characteristic and the second parameter would have a second visual
`characteristic. Id.
`Patent Owner argues that neither example discloses the visual
`characteristic limitations because there is nothing visually distinct about the
`labels shown in Figure 4 or described by the altitude example because only
`the letters of the labels are different. Id. at 9–16. As discussed above, we do
`not agree that the scope of the claims is as narrow as Patent Owner argues.
`Thus, we are not persuaded by this argument.
`Patent Owner also argues that neither of the examples in Fry discloses
`that the visual characteristic limitations apply to “an actual representation of
`the physical activity at multiple data points.” Prelim. Resp. 13–14. For this
`argument, Patent Owner focuses on the claim language “a representation of
`the physical activity . . . where the representation . . . has a . . . visual
`characteristic that corresponds to the . . . performance parameter data points
`values,” emphasizing that the words points values are plural. Id. According
`to Patent Owner, Figure 4’s popup menu, which identifies a single data
`point for various performance parameters at each position on the route
`indicator, does not satisfy the claim language. Id. Patent Owner adds that in
`Figure 4, Petitioner is relying on route indicator 438 as “the representation of
`the physical activity,” but then improperly relies on a textual pop-up menu
`of different performance parameters at a single position on that route for the
`visual characteristic limitations of the representation. Id. at 14.
`We agree with Patent Owner that Petitioner has not shown that Figure
`4 and its corresponding description anticipates the challenged claims.
`“Because the hallmark of anticipation is prior invention, the prior art
`reference—in order to anticipate under 35 U.S.C. § 102—must not only
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`disclose all elements of the claim within the four corners of the document,
`but must also disclose those elements arranged as in the claim.” Net
`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008)
`(internal quotation marks omitted). Accordingly, an anticipatory reference
`must show all of the limitations of the claims “arranged or combined in the
`same way as recited in the claims.” Id. at 1370; see Finisar Corp. v DirecTV
`Group, Inc., 523 F.3d 1323, 1334–37 (Fed. Cir. 2008); Ecolochem, Inc. v.
`Southern California Edison Co., 227 F.3d 1361 (Fed. Cir. 2000). Here,
`Petitioner’s argument does not show all the limitations of the claim
`combined as in the claim. We are not persuaded that the popup menu of
`Figure 4 or its contents are a visual characteristic of route indicator 438 as
`required by the challenged claims (“wherein the representation of the
`physical activity [route indicator 438] has a . . . visual characteristic . . .”).
`We are also not persuaded that the popup menu of Figure 4 or its contents,
`which represent a single data point for each of the listed performance
`parameters shown, correspond to “performance parameter data points
`values.”
`We are also not persuaded that the altitude example anticipates the
`challenged claims. The entirety of the altitude example disclosure states as
`follows:
`
`As an alternative to the map-based display shown on the
`display screen in FIG. 4, if altitude information is available, it
`may be more elucidating to plot altitude along with other ride
`characteristics, particularly if the cyclist is more interested in
`improving his or her technique than seeing where they went. In
`other words, by plotting altitude and connecting the various
`points to show ride incline, and by plotting in a concurrent,
`synchronized manner the cyclist’s heart rate, speed, gear ratio,
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`and so forth, it may be easy to see how hard the cyclist was
`working as a function of incline, when and if the correct gears
`were being used, and so forth. It will be apparent to one of skill
`that other display modes are also possible according to the
`invention.
`
`Ex. 1001, 7:15–26. Petitioner concedes that the altitude example does not
`disclose explicitly the visual characteristic limitations, but asserts that they
`are inherently disclosed. Pet. 43, 44; Ex. 1003 ¶ 78. Petitioner presents
`testimony of Dr. Selker that “it is inherent that the parameters must have
`distinguishable visual characteristics in order to serve the purpose described
`in Fry of identifying each parameter on the plot and revealing relationships
`between the parameters.” Id. at 44–45. We are not persuaded, however, that
`the display described by the altitude example would necessarily be
`implemented in a manner different from that shown in Figure 4. Thus, for
`the same reasons that we are not persuaded that Figure 4 anticipates the
`challenged claims, we are not persuaded that the altitude example anticipates
`the challenged claims.
`Having considered the information presented in the Petition and the
`Preliminary Response, we determine there is not a reasonable likelihood that
`Petitioner would prevail in showing claims 10–15 are anticipated by Fry.
`
`C. Obviousness over Fry and Ohlenbusch
`Petitioner asserts that claims 10–16 would have been obvious over the
`combination of Fry and Ohlenbusch under 35 U.S.C. § 103. Pet. 50–56.
`
`1. Overview of Ohlenbusch
`Ohlenbusch describes monitoring activity of a user on foot. Ex. 1007,
`1:21–22. Ohlenbusch discloses a unit that may be mounted on a user’s body
`including sensors such as an altimeter. Id. at 70:38–52, 71:24–32. The data
`
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`stored from the sensors may be transferred to an external computer for
`display and analysis. Id. at 71:32–37. Figure 33A of Ohlenbusch is
`reproduced below.
`
`
`Figure 33A shows both measured speed and measured stride lengths
`of the user as a function of distance during a 400 meter race. Id. at 72:21–
`23. Curve 3302A represents the measured speed of the user and curve
`3304A represents measured stride lengths of the user. Id. at 72:23–27.
`
`1. 2. Analysis
`Petitioner relies on Fry for all the limitations recited by independent
`claim 10, but notes that Ohlenbusch also provides support for “initiating a
`graphical display that comprises a representation of the physical activity on a
`display screen based on the received data” (“the graphical display
`limitation”) and the visual characteristic limitations. Pet. 50–53; Ex. 1003
`¶¶ 88–91. According to Petitioner, Ohlenbusch discloses “plotting
`numerous performance parameters as a function of distance traversed.” Pet.
`
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`51 (quoting Ex. 1007, 70:38–52). Petitioner points to Figures 33A through
`36B and the corresponding description as showing performance parameters
`graphed together, each with a different line style. Id. at 52.
`Petitioner also provides testimony from Dr. Ted Selker (Ex. 1003)
`who explains that it would have been obvious to combine the teachings of
`Fry and Ohlenbusch to graph multiple data sets using different visual
`characteristics such as line style for each type of data. Pet. 54–55; Ex. 1003
`¶¶ 94–95. Dr. Selker adds that such graphing techniques were well known
`to a person of ordinary skill in the art and were used in many commercial
`software programs. Id. Patent Owner argues that this is not an adequate
`motivation to combine the two references. Prelim. Resp. 16–21. According
`to Patent Owner, the references are not related to the same subject matter
`because Fry only discloses an embodiment featuring a bicycle computer
`mounted onto a bicycle while Ohlenbusch is directed to a user who is on
`foot—walking or running. Id. Thus, Patent Owner states that “the systems
`described in Fry and Ohlenbusch are wholly unrelated.” Id. at 19.
`We are persuaded that, on this record, Petitioner’s rationale for
`combining Fry and Ohlenbusch is reasonable. See Wyers v. Master Lock
`Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010):
`The Supreme Court’s decision in KSR . . . directs us to construe
`the scope of analogous art broadly, stating that “familiar items
`may have obvious uses beyond their primary purposes, and a
`person of ordinary skill often will be able to fit the teachings of
`multiple patents together like pieces of a puzzle.”
`
`Moreover, Patent Owner concedes that Fry states that “the invention is
`readily applicable to other sports involving travel over time” and
`“Ohlenbusch indicates that the foot-mounted unit may alternatively be
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`mounted at other locations.” Prelim. Resp. 17, 19. We are persuaded that a
`person of ordinary creativity in the relevant art would look to both
`references, no matter whether one is primarily focused on biking and the
`other on walking and running, when looking to solve the problem of how to
`display to users certain performance parameters collected by “portable
`personal devices” (Ex. 1001, 1:30–31). Under these circumstances, we are
`persuaded that Petitioner has shown a reasonable likelihood of prevailing in
`its assertion that claims 10–16 would have been obvious over the
`combination of Fry and Ohlenbusch.
`
`III. CONCLUSION
`For the foregoing reasons, based on the information presented in the
`Petition and the Preliminary Response, we are persuaded that there is a
`reasonable likelihood that Petitioner would prevail in showing
`unpatentability of claims 10–16 of the ’502 patent.
`At this stage of the proceeding, we have not made a final
`determination on the patentability of the challenged claims.
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that, pursuant to 35 U.S.C. § 314, an inter partes review
`of U.S. Patent No. 8,721,502 B2 is hereby instituted on the ground that
`claims 10–16 would have been obvious over Fry and Ohlenbusch;
`
`FURTHER ORDERED that no other ground of unpatentability
`alleged in the Petition for any claim is authorized for this inter partes
`review; and
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`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial; the trial
`commences on the entry date of this decision.
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`Petitioner:
`
`Brian E. Ferguson
`Anish Desai
`WEIL GOTSHAL & MANGES LLP
`brian.ferguson@weil.com
`anish.desai@weil.com
`
`Patent Owner:
`
`Mitchell Stockwell
`Wab Kadaba
`KILPATRICK TOWNSEND & STOCKTON LLP
`mstockwell@kilpatricktownsend.com
`wkadaba@kilpatricktownsend.com
`
`
`
`20
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