Petition for Inter Partes Review of U.S. 8,725,276
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
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`
`
`Under Armour, Inc.
`Petitioner,
`
`v.
`
`adidas AG,
`Patent Owner
`
`———————
`
`
`
`PETITION FOR INTER PARTES REVIEW
`
`OF
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`U.S. PATENT NO. 8,725,276
`
`CHALLENGING CLAIMS 1, 3, 6-10, 15-19, and 21-23
`
`
`
`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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`Petition for Inter Partes Review of U.S. 8,725,276
`
`TABLE OF CONTENTS
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`I. MANDATORY NOTICES ........................................................................... 1
`A. Real Party-in-Interest ......................................................................... 1
`B.
`Related Matters ................................................................................... 1
`C.
`Lead and Back-up Counsel and Service Information...................... 2
`II. GROUNDS FOR STANDING ...................................................................... 2
`III.
`IDENTIFICATION OF CHALLENGE AND RELIEF
`REQUESTED ................................................................................................. 2
`A.
`Introduction ......................................................................................... 3
`B.
`The 276 Patent and its Claims ............................................................ 5
`IV. STATUTORY GROUNDS FOR THE CHALLENGES ........................... 8
`V. CLAIM CONSTRUCTION ........................................................................ 10
`A.
`“position data” (all claims) ............................................................... 11
`B.
`“during the athletic activity” (claims 1, 3), “during [the]
`traversal of the route” (claim 16), and “during an athletic
`performance” (claim 10) ................................................................... 13
`VI. THE 276 PATENT CLAIMS ARE UNPATENTABLE .......................... 14
`A. GROUND 1: Claims 1, 3, 6-9, 16-19, and 21-23 are
`Anticipated by Satava ....................................................................... 14
`1.
`Claim 1 ..................................................................................... 15
`2.
`Claim 3 – The method of claim 1, wherein the
`correlating occurs during the athletic activity. .................... 24
`Claim 6 – The method of claim 1, wherein the
`performance data comprises heart rate data. ...................... 24
`Claim 7 – The method of claim 1, wherein the
`displayed athletic performance information is not
`based on the received position data. ...................................... 24
`Claim 8 – The method of claim 1, further comprising
`displaying the athletic performance information with
`information based on the athlete position data on a
`map. .......................................................................................... 25
`
`3.
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`4.
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`5.
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`Petition for Inter Partes Review of U.S. 8,725,276
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`6.
`
`7.
`8.
`
`9.
`
`Claim 9 – The method of claim 1, further comprising
`displaying the athletic performance information with
`information based on the athlete position data on an
`elevation profile. ...................................................................... 25
`Claim 16 ................................................................................... 26
`Claim 17 – The method of claim 16, wherein the
`position monitor is separate from the performance
`monitor. .................................................................................... 36
`Claim 18 – The method of claim 16, wherein the
`position monitor comprises a global positioning
`satellite receiver. ...................................................................... 36
`10. Claim 19 – The method of claim 16, wherein the
`performance monitor comprises a heart rate monitor. ....... 36
`11. Claim 21 – The method of claim 16, wherein the route
`data comprises map data for the route. ................................ 36
`12. Claim 22 – The method of claim 16, wherein the route
`data comprises elevation profile data for the route. ............ 37
`13. Claim 23 – The method of claim 16, wherein the
`displaying is provided on a remote computer. ..................... 38
`B. GROUND 2: Claims 16-19 and 21-23 are Obvious in view of
`Satava.................................................................................................. 39
`C. GROUND 3: Claims 9 and 22 are Obvious over Satava in
`view of Garmin eTrex Summit ......................................................... 41
`D. GROUND 4: Claims 10 and 15 are Anticipated by Stubbs .......... 48
`1.
`Claim 10 ................................................................................... 49
`2.
`Claim 15 – The method of claim 10, wherein the
`content comprises one of audio and visual content.............. 54
`E. GROUND 5: Claims 10 and 15 are Anticipated by Gardner ....... 54
`1.
`Claim 10 ................................................................................... 55
`2.
`Claim 15 – The method of claim 10, wherein the
`content comprises one of audio and visual content.............. 59
`VII. CONCLUSION ............................................................................................ 60
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`Petition for Inter Partes Review of U.S. 8,725,276
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`PETITIONER’S EXHIBIT LIST
`
`September 10, 2015
`
`U.S. Patent No. 8,725,276 to Ellis et al.
`Second Amended Complaint in Co-Pending Litigation, Dkt. No.
`44, served Sept. 11, 2014
`Expert Declaration of Dr. Ted Selker
`Richard Satava et al., The Physiologic Cipher at Altitude:
`Telemedicine and Real-Time Monitoring of Climbers on Mount
`Everest, 6 TELEMEDICINE J. AND E-HEALTH 303 (dated
`Sept. 2000)
`Garmin eTrex Summit (owner’s manual dated May 2000)
`U.S. Pat. No. 6,736,759 to Stubbs (filed November 9, 1999)
`U.S. Pat. No. 7,454,002 to Gardner (filed January 8, 2001)
`Screenshot of publisher’s website relating to Satava prior art
`reference
`Screenshot relating to eTrex Summit prior art reference and
`Internet Archives affidavit supporting date that webpage was
`available
`District Court’s Markman Order in Co-Pending Litigation, Dkt.
`No. 161
`Plaintiffs’ Responsive Claim Construction Brief in Co-Pending
`Litigation, Dkt. No. 93
`Screenshot from www.Thesaurus.com for term “route”
`Garmin declaration in support of eTrex Summit publication date
`Excerpt of Patent Owner’s Infringement Contentions Regarding
`U.S. 8,725,276 served in Co-Pending Litigation
`Excerpt of Lawrence Letham, GPS MADE EASY, USING GLOBAL
`POSITIONING SYSTEMS IN THE OUTDOORS (2nd ed. 1998)
`Expert Report of Dr. Scott Bennett in Co-Pending Litigation
`regarding publication dates of prior art
`
`UA-1001
`UA-1002
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`UA-1003
`UA-1004
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`UA-1005
`UA-1006
`UA-1007
`UA-1008
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`UA-1009
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`UA-1010
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`UA-1011
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`UA-1012
`UA-1013
`UA-1014
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`UA-1015
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`UA-1016
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`iii
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`Petition for Inter Partes Review of U.S. 8,725,276
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`I. MANDATORY NOTICES
`A. Real Party-in-Interest
`The Petitioner and real parties-in-interest are Under Armour, Inc.
`
`
`
`(“Petitioner” or “Under Armour”) and MapMyFitness, Inc. (“MapMyFitness”).
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`MapMyFitness is a wholly-owned subsidiary of Under Armour.
`
`B. Related Matters
`U.S. Patent No. 8,725,276 (the “276 Patent,” UA-1001) is involved in one
`
`
`
`pending litigation naming Under Armour and MapMyFitness as defendants.
`
`adidas AG v. Under Armour, Inc. and MapMyFitness, Inc., Case No. 14-130-GMS
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`(D. Del.) (“Co-Pending Litigation”), wherein adidas AG is the Plaintiff
`
`(“Plaintiff”). Petitioner has filed petitions to institute inter partes reviews of five
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`patents that are related to the 276 Patent (IPR2015-00698 (U.S. 8,092,345),
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`IPR2015-00697 (U.S. 7,905,815), IPR2015-01532 (U.S. 8,652,009), IPR2015-
`
`01528 (U.S. 8,721,502), and IPR2015-00700 (U.S. 8,579,767)), and three other
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`patents asserted in the Co-Pending Litigation (IPR2015-00694 (U.S. 7,292,867),
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`IPR2015-00695 (U.S. 7,805,149), and IPR2015-00696 (U.S. 8,068,858)).
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`
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`To the best of Petitioner’s knowledge, no applications or patents claim
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`priority to the 276 Patent. In addition, to the best of Petitioner’s knowledge, the
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`276 Patent claims priority to (or could claim priority to) the following applications
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`and patents: 13/789,266, filed 03-07-2013, now U.S. 8,652,009; 12/617,871, filed
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`1
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`Petition for Inter Partes Review of U.S. 8,725,276
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`11-13-2009; 10/645,713, filed 08-20-2003, now U.S. 7,670,263; PCT/US02/04947,
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`filed 02-20-2002; Provisional App. No. 60/270,400, filed 02-20-2001.
`
`C. Lead and Back-up Counsel and Service Information
`Petitioner designates Brian Ferguson (Reg. No. 36,801), available at 1300
`
`
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`I Street NW, Suite 900, Washington, DC 20005 (T: 202-682-7516) as lead counsel,
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`and Anish Desai (Reg. No. 73,760), available at the same address (T: 202-682-
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`7103) as backup counsel. Please address all correspondence to both lead and
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`backup counsel. Petitioner consents to service by electronic email
`
`(brian.ferguson@weil.com; anish.desai@weil.com).
`
`II. GROUNDS FOR STANDING
`Petitioner certifies that the 276 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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`present petition is filed not more than one year after Petitioner was given notice of
`
`its alleged infringement of the 276 Patent in the Co-Pending Litigation. See UA-
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`1002 (Dkt. No. 44, Second Amended Complaint, served Sept. 11, 2014).
`
`III.
`
`
`IDENTIFICATION OF CHALLENGE AND RELIEF REQUESTED
`
`Claims 1, 3, 6-10, 15-19, and 21-23 of the 276 Patent are challenged in this
`
`Petition. Petitioner respectfully requests that the Board review the prior art and
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`analysis herein, institute a trial for inter partes review of those claims, and cancel
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`those claims as unpatentable.
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`
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`2
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`Petition for Inter Partes Review of U.S. 8,725,276
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`
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`This Petition describes the 276 Patent, its claims, and the prior art relied on,
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`and also sets forth illustrative examples of how the prior art discloses each
`
`limitation of the challenged claims. The attached expert declaration of Dr. Selker
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`further elaborates on and supports each such position. UA-1003 (“Selker Decl.”).
`
`Introduction
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`A.
`The challenged claims can be grouped into two sets. The first set of claims,
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`
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`based on independent claims 1 and 16, cover methods for monitoring and
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`displaying athletic position and performance data. 276 Patent at 71:29-72:3,
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`72:32-59. The methods include receiving position data (for example with a GPS
`
`receiver), receiving performance data about an athletic activity (for example heart
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`rate data via a heart rate monitor), correlating the position data with the
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`performance data, and displaying the position data and the performance data, at
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`times over a graphical representation of the athlete’s traveled route. Id.
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`
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`Such methods were already well known in the art prior to the supposed
`
`invention of the 276 Patent. For example, an article titled The Physiologic Cipher
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`at Altitude: Telemedicine and Real-Time Monitoring of Climbers on Mount Everest
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`by Richard Satava et al. (UA-1004, published in the Telemedicine Journal and e-
`
`Health in September 2000, “Satava”) describes a May 1999 experiment on Mt.
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`Everest wherein three climbers wore portable monitoring devices that tracked data
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`such as the climbers’ locations, heart rates, and other physiological vital signs. See
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`Petition for Inter Partes Review of U.S. 8,725,276
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`Satava at 1004.004-.005. As explained more fully below, Satava discloses a GPS
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`receiver to monitor position and a heart rate monitor to monitor heart rate. Id. at
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`.006. The system stamped vital sign data with position data, and transmitted the
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`data to Yale University during the climbers’ ascent, where researchers used
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`computers to analyze and display the data and the climbers’ trails in real-time
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`using various display interfaces. See, e.g., id. at .004-.005, .007. Through such
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`disclosures, Satava anticipates the first set of challenged claims, as detailed herein.
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`
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`The challenged second set of claims (claims 10 and 15) cover a method for
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`monitoring athletic performance including receiving position data with a GPS
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`receiver, and controlling audible and/or visible playback content to indicate to the
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`athlete that a position-based performance characteristic has departed from a
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`predetermined range. 276 Patent at 72:4-15, 29-30. In other words, claims 10 and
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`15 basically claim a method for alerting a user that a performance characteristic
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`such as speed or pace has departed from a target zone.
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`
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`Such a simple method was also well known in the art prior to the purported
`
`invention of the 276 Patent. For example, the prior art Stubbs patent (UA-1006,
`
`U.S. Pat. No. 6,736,759) teaches that its exercise monitoring system “may also
`
`include one or more alarms 79 which provide an audible and/or visible indication
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`to the subject or other individual monitoring the subject’s performance. Data
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`display component 7 may be programmed such that an alarm 79 will be activated if
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`Petition for Inter Partes Review of U.S. 8,725,276
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`a data value departs from a predetermined limit or range. For example, the
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`monitoring system of the present invention may be programmed such that an alarm
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`79 will be activated if the subject’s velocity, pace, distance traveled, blood oxygen
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`level or heart rate is outside a predetermined range.” UA-1006 at 16:39-48.
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`Stubbs thereby anticipates the second set of challenged claims, as detailed herein.
`
`
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`In his accompanying declaration, Dr. Selker elaborates on the state of the art
`
`at the time of the alleged invention of the 276 Patent, and how at that time such
`
`teachings were already within the public domain. Selker Decl. at ¶¶ 18, 23-26.
`
`The 276 Patent and its Claims
`
`B.
`The 276 Patent issued from App. No. 13/791,174, filed March 8, 2013, and
`
`
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`claims priority to provisional application no. 60/270,400, filed on Feb. 20, 2001.
`
`
`
`Independent claim 1 of the 276 Patent is reproduced below:
`
`[1a] A method for monitoring an athletic activity, comprising:
`1.
`[1b] receiving position data relating to the geographical positions of
`an individual during the athletic activity with a global positioning
`satellite receiver;
`[1c] receiving performance data about the individual during the
`athletic activity with a performance monitor that is physically separate
`from the global positioning satellite receiver;
`[1d] displaying athletic performance information with a display screen
`during the athletic activity based on the performance data received by
`the performance monitor; and
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`Petition for Inter Partes Review of U.S. 8,725,276
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`[1e] correlating the performance data received by the performance
`monitor with the position data received by the global positioning
`satellite receiver with at least one processor.
`
`
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`Independent claim 16 covers a method of displaying athletic performance
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`information comprising steps very similar to the steps of claim 1.
`
`
`
`Independent claim 10 covers a method of monitoring athletic performance
`
`that is different from independent claims 1 and 16, and is reproduced below:
`
`[10a] A method for monitoring athletic performance,
`10.
`comprising:
`[10b] receiving with a global positioning satellite receiver position
`data relating to a position of an individual during an athletic
`performance; and
`[10c] controlling with at least one processor playback of content
`provided to the individual based at least on the position data when the
`position data indicates that the individual has fallen outside of a
`predetermined performance zone having upper and lower limits for a
`performance characteristic.
`
`
`
`In more detail than noted above, the 276 Patent describes athletic monitoring
`
`systems in the form of modular personal networks that contain individual
`
`components that can be worn or carried by a user, and added to or removed from a
`
`network to customize its functions. 276 Patent at 1:20-25. The patent explains
`
`that while there were existing “individual portable personal devices” such as
`
`“mobile phones, personal digital assistants, medical monitoring devices, personal
`
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`Petition for Inter Partes Review of U.S. 8,725,276
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`entertainment systems, and athletic monitoring systems,” supposedly “none of
`
`these individual devices [could] combine with any of the other devices to provide
`
`improved functions.” Id. at 1:27-37. The patent thus sought to create “a system in
`
`which individual portable device modules [could] be combined in a multitude of
`
`ways to provide an infinite variety of functions.” Id. at 1:41-43.
`
`
`
`The 276 Patent addressed this purported problem by disclosing a “modular
`
`personal network (MPN)” that “allows multiple individual network components
`
`(INCs), each with one or more primary functions, to be used in a wireless personal
`
`network, and that INCs may be added and removed modularly to add or remove
`
`functions of the MPN.” Id. at 3:32-38. The “INCs are personal, in that they may
`
`be worn, carried, mounted on personal equipment, or otherwise used in proximity
`
`to the person associated with the MPN.” Id. at 3:40-42. The disclosed system may
`
`include a display device (id. at 3:63-64), “[g]uidance functions” such as “providing
`
`position, elevation, and speed information” (id. at 4:47-48), and “[a]thletic
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`functions” such as “measur[ing] distance, speed, heart rate, cadence, stride length,
`
`and other athletic data” (id. at 4:54-62). Further, “[o]utdoor-related functions may
`
`include direction, position, elevation, route, and weather features.” Id. at 5:22-24.
`
`
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`The positions of a user can be collected using a GPS monitor (id. at 10:7-
`
`11), and “position information may be correlated with simultaneously collected
`
`performance information” (id. at 41:42-43). In addition, “collected performance
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`Petition for Inter Partes Review of U.S. 8,725,276
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`data may be displayed during the session. It may also be displayed or printed on a
`
`personal computer at a later time. It may be displayed in a table, in a graph, on a
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`map, on an elevation profile, or any other suitable format.” Id. at 41:51-55.
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`
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`Finally, the system “may provide an audio output function. … For example,
`
`if the system is being used for athletic monitoring, audio feedback may be used to
`
`prompt the user to work out harder or easier, to provide performance information,
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`or to inform the user what workout zone he or she is in.” Id. at 8:36-45.
`
`IV. STATUTORY GROUNDS FOR THE CHALLENGES
`This Petition requests inter partes review on the following grounds:
`
`
`Ground 1 Anticipation of claims 1, 3, 6-9, 16-19, 21-23 under 35 U.S.C. § 102
`based on the Satava reference.
`
`Ground 2 Obviousness of claims 16-19, 21-23 under 35 U.S.C. § 103 based on
`the Satava reference.
`
`Ground 3 Obviousness of claims 9 and 22 under 35 U.S.C. § 103 based on the
`Satava reference in view of the Garmin eTrex Summit reference.
`
`Ground 4 Anticipation of claims 10 and 15 under 35 U.S.C. § 102 based on the
`Stubbs patent.
`
`Ground 5 Anticipation of claims 10 and 15 under 35 U.S.C. § 102 based on the
`Gardner patent.
`
`
`
`The Satava article (UA-1004, Richard Satava et al., The Physiologic Cipher
`
`at Altitude: Telemedicine and Real-Time Monitoring of Climbers on Mount
`
`Everest, 6 TELEMEDICINE J. AND E-HEALTH 303) is prior art. In the Co-
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`Petition for Inter Partes Review of U.S. 8,725,276
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`Pending Litigation, Dr. Scott Bennett, a retired librarian and expert, submitted
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`sworn testimony that the Satava article attached hereto as UA-1004 was publicly
`
`available at least as early as November 29, 2000 (see UA-1016.006-.007), the same
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`day the article was date-stamped “RECEIVED” by the Tufts University Health
`
`Sciences Library (see UA-1004.002). Further, the journal issue is dated September
`
`2000 (see, e.g., Satava at 1004.001, .003 noting “Fall 2000”; see also UA-1008,
`
`webpage abstract from publisher noting “September 2000, Vol. 6, No. 3: 303-
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`313”).1 Thus Satava is prior art under 35 U.S.C. § 102(a).2 Dr. Selker agrees that
`
`Satava is prior art. Selker Decl. at ¶ 36.
`
`
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`The Garmin eTrex Summit reference (UA-1005, owner’s manual) is dated
`
`May 2000. See UA-1005.002. Furthermore, the third page of the document
`
`attached hereto as UA-1009 is a screen shot of a webpage from August 17, 2000
`
`(captured using the WayBackMachine, and supported by an affidavit Petitioner
`
`obtained from the Internet Archives, attached at UA-1009.001) showing that the
`
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`1 The Board has found that similar evidence is sufficient to show publication of a
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`journal article. See, e.g., Case IPR2014-00527, Final Written Decision at 10-11
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`(“We accept the publication information on the IEEE copyright line on page 1 of
`
`Stadler as evidence of its date of publication and public accessibility.”).
`
`2 Citations to 35 U.S.C. herein refer to pre-AIA sections.
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`Petition for Inter Partes Review of U.S. 8,725,276
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`eTrex Summit manual was publicly available for download at least as early as
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`August 17, 2000. UA-1009. As explained in the affidavit, the number
`
`“20000817” in the URL at the bottom of the webpage screen shot means that the
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`screen shot was captured August 17, 2000. UA-1009.001. Moreover, attached as
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`UA-1013 is a declaration from a Garmin employee regarding certain Garmin user
`
`manuals, including the eTrex Summit May 2000 version attached hereto as UA-
`
`1005 (see UA-1013.005 at Exh. 5, version 190-00193-00 / Rev. A). According to
`
`that declaration, the eTrex Summit manual ver. 190-00193-00 / Rev. A (UA-1005)
`
`was publicly available as early as June 2000, the same time the corresponding
`
`product was first offered for public sale. See UA-1013. eTrex Summit is thus
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`prior art at least under 35 U.S.C. § 102(a). Dr. Selker agrees. Selker Decl. at ¶ 37.
`
`
`
`The Stubbs patent (UA-1006, U.S. Pat. No. 6,736,759) was filed on
`
`November 9, 1999, and thus qualifies as prior art at least under 35 U.S.C. § 102(e).
`
`
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`The Gardner patent (UA-1007, U.S. Pat. No. 7,454,002) was filed on
`
`January 8, 2001, and thus qualifies as prior art at least under 35 U.S.C. § 102(e).
`
`V. CLAIM CONSTRUCTION
`
`This Petition analyzes the challenged 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. 8,725,276
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`“position data” (all claims)
`
`A.
`Petitioner submits that the broadest reasonable interpretation of the term
`
`
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`“position data” in light of the specification is “data relating to geographic
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`position,” which is the construction Petitioner proposed and the District Court
`
`adopted in the Co-Pending Litigation. UA-1010.005. For example, claim 1 itself
`
`recites “receiving position data relating to the geographical positions of an
`
`individual during the athletic activity with a global positioning satellite receiver.”
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`276 Patent at claim 1. Similarly, claim 10 recites “receiving with a global
`
`positioning satellite receiver position data relating to a position of an individual
`
`during an athletic performance.” Id. at claim 10. The specification is in accord,
`
`explaining that “[p]osition data collected in one session may also be used to
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`simulate the same route in a later session. For example, a user may travel the
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`route of an upcoming competition in one or more sessions and collect position and
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`elevation information.” Id. at 42:33-36. Dr. Selker agrees that a person having
`
`ordinary skill in the art would understand “position data” to mean data relating to
`
`geographic position.3 Selker Decl. at ¶¶ 29-30.
`
`
`3 Dr. Selker opines that a person having ordinary skill in the art would have at
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`least, through training or experience, an understanding of basic analog and digital
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`circuits, microcontrollers, transmitters, receivers, signaling, sensing, and embedded
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`Petition for Inter Partes Review of U.S. 8,725,276
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`
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`In the Co-Pending Litigation, Plaintiff proposed a broader construction for
`
`“position data” than did Petitioner, which the District Court ultimately rejected.
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`Namely, Plaintiff asserted that “position data” can include not only data relating to
`
`geographic position, but also data relating to, for example, orientation of a human
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`body. See, e.g., UA-1011, Plaintiffs’ Responsive Claim Construction Brief, Dkt.
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`No. 93, at .019-.020 (asserting that the patent “indicates that the position monitor
`
`can collect the directional orientation of a user through a compass. … Thus, the
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`measurement of a user’s position as used in the claims and specification is broader
`
`than simply geographic position.”). While Petitioner asserts that the broadest
`
`reasonable interpretation is not as broad as Plaintiff’s proposal in the Co-Pending
`
`Litigation, the prior art discussed herein nevertheless invalidates the asserted
`
`claims under either proposal, because both parties’ proposed constructions would
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`at least capture the geographic “position data” disclosed by the prior art.
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`software, and that such a person would have at least a bachelor’s degree in
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`electrical engineering, computer engineering, or computer science, and three or
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`more years of practical experience with, or a working knowledge equivalent of,
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`sensing, signaling, and embedded and/or mobile systems, or the equivalent. Selker
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`Decl. at ¶¶ 12-14.
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`12
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`Petition for Inter Partes Review of U.S. 8,725,276
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`Thus, while the analysis below assumes that Petitioner’s and the District
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`Court’s construction of “position data” is correct, none of Petitioner’s arguments
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`herein would be affected if Plaintiff’s broader construction were to be adopted.
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`B.
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`“during the athletic activity” (claims 1, 3), “during [the] traversal
`of the route” (claim 16), and “during an athletic performance”
`(claim 10)
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`
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`Petitioner submits that these three claim terms do not require construction
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`and should be given their plain and ordinary meanings, which are readily
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`understandable. In other words, “during the athletic activity” simply requires that
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`the claimed steps occur while the athletic activity is occurring, “during [the]
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`traversal of the route” simply requires that the claimed steps occur while the
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`individual traverses the route, and “during an athletic performance” simply
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`requires that the claimed step occurs while the athletic performance is occurring.
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`
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`These three terms were not proposed for construction in the Co-Pending
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`Litigation. Nevertheless, Petitioner includes these terms here because Plaintiff in
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`the Co-Pending Litigation proposed that a similar term from two patents in the
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`same family and having the same specification as the 276 Patent—the term,
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`“during the physical activity”—should have been narrowly construed to mean “in
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`substantially real-time.” However, the District Court rejected Plaintiff’s argument,
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`and construed the term to have its plain and ordinary meaning. UA-1010.006.
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`Petition for Inter Partes Review of U.S. 8,725,276
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`Indeed, there is no legal basis for substituting the readily understood words
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`of these three claim terms with a completely different set of words having different
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`and narrower meaning. The 276 Patent does not even use the term “real-time” or
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`“in substantially real-time.” Further, Dr. Selker agrees that these three claim terms
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`are readily understood by a person of ordinary skill in the art and do not require
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`further construction. Selker Decl. at ¶ 31.
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`
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`Nonetheless, Petitioner submits that the prior art herein invalidates the
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`challenged claims under either the plain meaning of these three terms, or under an
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`improperly narrow construction that Plaintiff may assert such as “in substantially
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`real-time.” Thus, while these three claim terms should carry their plain and
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`ordinary meanings, Petitioner submits that none of its arguments herein would be
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`affected if a construction such as “in substantially real-time” were to be adopted.
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`VI. THE 276 PATENT CLAIMS ARE UNPATENTABLE
`A. GROUND 1: Claims 1, 3, 6-9, 16-19, and 21-23 are Anticipated by
`Satava
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`
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`As noted above, the Satava article was published in the Telemedicine
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`Journal and e-Health in September 2000 (Volume 6, Number 3), and is titled The
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`Physiologic Cipher at Altitude: Telemedicine and Real-Time Monitoring of
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`Climbers on Mount Everest. During the documented May 1999 experiment, three
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`Everest climbers wore portable monitoring devices that tracked data such as the
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`climbers’ locations, heart rates, and other physiological vital signs. See Satava at
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`UA-1004.004-.005. The disclosed system included a GPS receiver to monitor
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`position, and a physically separate heart rate monitor to monitor heart rate, among
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`other elements. Id. at .006. The article explains that each climber’s system
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`transmitted data in real-time to Everest base camp, which subsequently
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`retransmitted the data in real-time to Yale University. Id. at .004-.005.
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`Researchers at Yale used computers to analyze and display the data in real-time
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`using various display interfaces. Id. at .007.
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`1.
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`Claim 1
`a)
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`A method for monitoring an athletic activity,
`comprising…
`
`
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`Satava discloses the preamble of claim 1 of the 276 Patent. As explained
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`immediately above, Satava discloses a system that monitors an athletic activity—
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`namely, climbing/hiking parts of Mt. Everest. See, e.g., Satava at UA-1004.004;
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`see also Selker Decl. at ¶ 42.
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`b)
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`receiving position data relating to the geographical
`positions of an individual during the athletic activity
`with a global positioning satellite receiver;
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`
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`Satava discloses receiving position data relating to the geographical
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`positions of an individual during the athletic activity with a global positioning
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`satellite receiver. For example, Satava teaches that its portable system includes
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`“[a]ccurate position tracking using the Global Positioning Satellite (GPS) system
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`(Lassen SK-8, Trimple, Inc., San Jose, CA).” Satava at UA-1004.006. Satava
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`further discloses that, during the climbers' ascent, "vital signs and position were
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`acquired every 5 minutes and archived and transmitted every 5 minutes.
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`These data (Table 1) consisted of. .. GPS location .. .. During the daily morning
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`telemedicine conference between Yale University and EBC on the day of the trek
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`to Camp 1, vital signs were retransmitted to Yale University in real time from the
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`climbers, allowing physicians at Yale University to follow vital signs and
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`location while the climbers were ascending through the icefall." Id. at .008-.009;
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`see also Selker Deel. at if 43. Satava's dedicated GPS module is depicted on the
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`right side of Figure 2, reproduced here:
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`VlTALSIGNS
`MONITOR
`VSM #3
`
`I
`
`I
`•
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`Id. at .006, Fig. 2 (annotated) (Caption: "FIG. 2. The vital-signs monitoring
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`(VSM) system of Fitsense, Inc., demonstrating (right to left) the global
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`positioning satellite (GPS) module, .. .. ").
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`Accordingly, Satava discloses the step of receiving position data relating to
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`16
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`the geographical positions of an individual during the athletic activity with a global
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`positioning satellite receiver. Selker Decl. at ¶ 45.
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`c)
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`receiving performance data about the individual
`during the athletic activity with a performance
`monitor that is physically separate from the global
`positioning satellite receiver;
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`
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`Satava discloses receiving performance data about the individual during the
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`athletic activity with a performance monitor that is physically separate from the
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`global positioning satellite receiver—for example, receiving heart rate data with a
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`physically separate heart rate monitor during the climbers’ ascent.
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`
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`For instance, Satava explains that “Figure 2 illustrates the three modules
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`which comprise the system: 1. Non-invasive physiologic sensors to