UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Under Armour, Inc.
`Petitioner
`
`v.
`
`adidas AG,
`Patent Owner
`
`
`
`
`Case No. IPR2015-01891
`
`Patent No. 8,725,276
`
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 § C.F.R. 42.107(a)
`
`
`
`
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`

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`U.S. Pat. No. 8,725,276
`IPR2015-01891
`Preliminary Response
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`I.
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................... 1
`
`II.
`
`THE ‘276 PATENT ......................................................................................... 2
`
`III. RELATED PROCEEDINGS .......................................................................... 4
`
`IV. LEGAL STANDARDS ................................................................................... 5
`
`A.
`
`B.
`
`C.
`
`Petitioner Bears the Burden of Demonstrating That There is a
`Reasonable Likelihood That at Least One of the Claims
`Challenged in the Petition is Unpatentable ........................................... 5
`
`Anticipation ........................................................................................... 5
`
`The Law of Obviousness ....................................................................... 6
`
`V.
`
`CLAIM CONSTRUCTION ............................................................................ 9
`
`A.
`
`B.
`
`C.
`
`Legal Standard ....................................................................................... 9
`
`“information based on athlete position data” (Claims 8 and 9) ............ 9
`
`“route” (Claims 16, 21, and 22) .......................................................... 11
`
`VI. TRIAL SHOULD NOT BE INSTITUTED ON CLAIMS 1, 3, 6,
`AND 7 ............................................................................................................ 12
`
`VII. PETITIONER HAS NOT SATISFIED ITS BURDEN UNDER
`35 U.S.C. § 314(A) WITH RESPECT TO CLAIMS 8-10, 15-19,
`AND 21-23 .................................................................................................... 14
`
`A. Ground 1 – Satava does not Anticipate Claims 8-9, 16-19, or
`21-23 .................................................................................................... 14
`1.
`Satava does not disclose “displaying athletic
`performance information with a display screen during
`the athletic activity based on the performance data
`
`i
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`U.S. Pat. No. 8,725,276
`IPR2015-01891
`Preliminary Response
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`2.
`
`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`received by the performance monitor” as required by
`claim 1. .................................................................................. 14
`Satava does not disclose “[t]he method of claim 1,
`further comprising displaying the athletic performance
`information with information based on the athlete
`position data on a map” as required by Claim 8. .................. 17
`Satava does not disclose “[t]he method of claim 1,
`further comprising displaying the athletic performance
`information with information based on the athlete
`position data on an elevation profile” as required by
`Claim 9. ................................................................................. 21
`Satava does not disclose “receiving data related to a
`route” as required by claim 16. ............................................. 23
`Satava does not disclose “during traversal of the route”
`or “during the traversal of the route” as required by
`claim 16. ................................................................................ 27
`Satava does not disclose “simultaneously displaying
`the position data and the performance data over a
`graphical representation of the route data during the
`traversal of the route with a display screen” as required
`by Claim 16. .......................................................................... 29
`Satava does not disclose “wherein the route data
`comprises map data for the route” as required by claim
`21 ........................................................................................... 31
`Satava does not disclose “wherein the route data
`comprises elevation profile data for the route” as
`required by claim 22. ............................................................. 32
`
`B.
`
`C.
`
`Ground 2 – Satava does not render Obvious Claims 16 – 19 and
`21-23 .................................................................................................... 34
`
`Ground 3 – The combination of Satava and Garmin eTrex
`Summit does not render Obvious Claims 9 and 22 ............................. 36
`1.
`Petitioner has not demonstrated a Motivation to
`Combine Satava and eTrex Summit ...................................... 36
`
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`Preliminary Response
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`Satava in view of eTrex Summit does not render
`obvious claim 9. ..................................................................... 39
`Satava in view of eTrex Summit does not disclose
`“wherein the route data comprises elevation profile
`data for the route” as required by claim 22. .......................... 39
`
`2.
`
`3.
`
`D. Ground 4 – Stubbs does not anticipate Claims 10 and 15 .................. 41
`1.
`Stubbs does not disclose “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” as required by claim 10. ................................ 41
`Stubbs does not disclose “wherein the content
`comprises one of audio and visual content,” as required
`by claim 15. ........................................................................... 44
`
`2.
`
`E.
`
`Ground 5 - Gardner does not anticipate Claims 10 and 15 ................. 45
`1.
`Gardner does not disclose “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” as required by claim 10. ................................ 45
`Gardner does not disclose “wherein the content
`comprises one of audio and visual content,” as required
`by claim 15. ........................................................................... 48
`
`2.
`
`VIII. CONCLUSION .............................................................................................. 48
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`
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`iii
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`U.S. Pat. No. 8,725,276
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`
`Exhibit
`Number
`2001
`
`2002
`
`
`
`Patent Owner’s Exhibit List
`
`Description
`
`Statutory Disclaimer of Claims 1, 3, 6, and 7 of U.S. Patent
`No. 8,725,276
`USPTO Availability Outage
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`iv
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`U.S. Pat. No. 8,725,276
`IPR2015-01891
`Preliminary Response
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`I.
`
`INTRODUCTION
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`Petitioner has challenged the patentability of claims 1, 3, 6-10, 15-19, 21-23
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`(“the Challenged Claims”) of U.S. Patent No. 8,725,276 (“the ‘276 patent”). The
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`Board should not institute trial because the Petition fails to show a reasonable
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`likelihood that any of claims 8-10, 15-19, 21-23 the ‘276 patent are unpatentable.
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`37 C.F.R. § 42.104(b)(4).
`
`The Petition fails to demonstrate that the primary references, Satava, Stubbs,
`
`and Gardner, disclose all elements of independent claims 1, 10, and 16. With
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`respect to Satava, Petitioner’s obviousness arguments fail to cure the defects in
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`Satava and do not demonstrate that the Challenged Claims would be unpatentable
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`as obvious over Satava alone. Additionally, Petitioner fails to demonstrate an
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`adequate motivation to combine Satava and eTrex Summit, such that the
`
`combination of references would render obvious claims 9 and 22. For at least
`
`these reasons, Petitioner has not met its burden under 35 U.S.C. § 314(a) and 37
`
`C.F.R. § 42.108(c) to prove that there is a reasonable likelihood that at least one of
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`the Challenged Claims is unpatentable. Thus, the Board should deny the Petition
`
`and decline to institute inter partes review of the Challenged Claims.
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`Additionally, the Board should not institute trial with respect to challenged
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`claims 1, 3, 6, and 7 because Patent Owner has disclaimed those claims in
`
`compliance with 37 C.F.R. § 1.321(a).
`
`II. THE ‘276 PATENT
`
`The ‘276 patent generally describes methods of monitoring the athletic
`
`performance of an individual. Ex. 1001 at Abstract. The ‘276 patent includes two
`
`classes of claims. Independent claim 10 recites a method for monitoring athletic
`
`performance and providing feedback to an individual based on his performance.
`
`A method for monitoring athletic performance, comprising:
`
`receiving with a global positioning satellite receiver position
`
`data relating to a position of an individual during an athletic
`
`performance; and
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`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.
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`Id. at 72:4-15. Claim 15, which depends on claim 10, recites that the content
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`comprises one of audio and visual content. Id. at 72:30-31.
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`Independent claim 16 recites a method of displaying athletic performance
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`information:
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`A method of displaying athletic performance information, comprising:
`
`receiving data relating to a route;
`
`receiving with a position monitor position data relating to a
`
`position of an individual during traversal of the route by the
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`individual;
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`receiving with a performance monitor performance data about
`
`the individual during the traversal of the route;
`
`correlating the performance data with the position data with at
`
`least one processor; and
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`simultaneously displaying
`
`the position data and
`
`the
`
`performance data over a graphical representation of the route
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`data during the traversal of the route with a display screen.
`
`Id. at 72:32-45. Claim 19 recites that the performance monitor is a heart rate
`
`monitor. Id. at 72:50-51. Claims 21 and 22 recite, respectively, that the received
`
`route data comprises map data for the route or elevation profile data for the route.
`
`Id. at 72:54-57. Claim 23 recites that the display occurs on a remote computer. Id.
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`at 72:58-59.
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`U.S. Pat. No. 8,725,276
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`Preliminary Response
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`The ‘276 patent issued from U.S. Patent Application No. 13/791,174 filed on
`
`March 8, 2013. The ‘276 patent claims priority to U.S. Provisional Application
`
`No. 60/270,400 filed on February 20, 2001.
`
`III. RELATED PROCEEDINGS
`
`The ‘276 patent has been asserted against Petitioner in the District of
`
`Delaware in the litigation styled as: adidas AG, et. al. v. Under Armour, Inc. and
`
`MapMyFitness, Inc., Case No. 14-130-GMS (D. Del.). Petitioner previously filed
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`a petition to institute inter partes review of the ‘276 patent on July 1, 2015. See
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`IPR2015-01531. On September 10, Petitioner filed an unopposed motion to
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`dismiss its Petition. See id. at Paper 7. The Board dismissed the petition on
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`September 21, 2015. See id. at Paper 8.
`
`Petitioner filed petitions to institute inter partes reviews of five patents that
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`are related to the ’276 patent, IPR2015-00697 (U.S. 7,905,815), IPR2015-00698
`
`(U.S. 8,092,345) IPR2015-00700 (U.S. 8,579,767), IPR2015-01528 (U.S.
`
`8,721,502) and IPR2015-01532 (U.S. 8,652,009), and three other patents asserted
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`in
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`the
`
`litigation: IPR2015-00694 (U.S. 7,292,867), IPR2015-00695 (U.S.
`
`7,805,149), and IPR2015-00696 (U.S. 8,068,858).
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`IV. LEGAL STANDARDS
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`A.
`
`Petitioner Bears the Burden of Demonstrating That There is a
`Reasonable Likelihood That at Least One of the Claims
`Challenged in the Petition is Unpatentable
`
`35 U.S.C. § 314(a) identifies the threshold standard that must be met to
`
`institute an inter partes review:
`
`(a) Threshold.— The Director may not authorize an inter partes
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`review to be instituted unless the Director determines that the
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`information presented in the petition filed under section 311 and
`
`any response filed under section 313 shows that there is a reasonable
`
`likelihood that the petitioner would prevail with respect to at least 1 of
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`the claims challenged in the petition.
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`35 U.S.C. § 314(a (emphasis added); see also 37 C.F.R. § 42.108(c).
`
`B. Anticipation
`
`“A claim is anticipated only if each and every element as set forth in the
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`claim is found, either expressly or inherently described, in a single prior art
`
`reference.” Medtronic, Inc. v. Norred, M.D., IPR2014-00111, 2015 WL 1906726,
`
`at *9 (P.T.A.B. Apr. 23, 2015 (quoting Verdegaal Bros. v. Union Oil Co., 814 F.2d
`
`628, 631 (Fed. Cir. 1987)). “The identical invention must be shown in as complete
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`detail as is contained in the . . . claim.” Id. (quoting Richardson v. Suzuki Motor
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`Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989)). “[U]nless a reference discloses within
`
`the four corners of the document not only all of the limitations claimed but also all
`
`of the limitations arranged or combined in the same way as recited in the claim, it
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`cannot be said to prove prior invention of the thing claimed and, thus, cannot
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`anticipate under 35 U.S.C. § 102.” Id. (quoting Net MoneyIN, Inc. v. VeriSign,
`
`Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
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`C. The Law of Obviousness
`
`An obviousness analysis under 35 U.S.C. § 103(a) examines the differences
`
`between the claimed invention and the prior art to determine whether “the subject
`
`matter as a whole would have been obvious at the time the invention was made” to
`
`a person having ordinary skill in the art. Alza Corp. v. Mylan Labs., Inc., 464 F.3d
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`1286, 1289 (Fed. Cir. 2006). The factual underpinnings, often referred to as the
`
`Graham factors, include 1) the scope and content of prior art; 2) the level of
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`ordinary skill in the art; 3) the differences between the claimed invention and the
`
`prior art; and 4) evidence of secondary considerations of non-obviousness.
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`Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
`
`“Rejections on obviousness cannot be sustained by mere conclusory
`
`statements; instead, there must be some articulated reasoning with some rational
`
`underpinning to support the legal conclusion of obviousness.” KSR Int’l Co. v.
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`Teleflex Inc., 550 U.S. 398, 418 (2007 (quoting In re Kahn, 441 F.3d 977, 988
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`(Fed. Cir. 2006). See also Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688
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`F.3d 1342, 1366 (Fed. Cir. 2012) (“Even if the references disclosed all of the
`
`limitations of the asserted claims, which they do not, S & N still needed to proffer
`
`evidence indicating why a person having ordinary skill in the art would combine
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`the references to arrive at the claimed invention.”). Instead, obviousness requires
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`the additional showing that a person of ordinary skill at the time of the invention
`
`would have selected and combined those prior art elements in the normal course of
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`research and development to yield the claimed invention. KSR Int’l, 550 U.S. at
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`421. Petitions providing “unexplained citations [to references] are inadequate to
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`demonstrate a reason to modify the teachings of a particular reference or to
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`combine the teachings of two or more references to teach or suggest a limitation of
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`a challenged claim.” Gracenote, Inc. v. Iceberg Indus. LLC, IPR2013-00552, 2014
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`WL 1384070, at 10 (P.T.A.B. Mar. 7, 2014).
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`The Board emphasizes this requirement in Heart Failure Technologies, LLC
`
`v. Cardiokinetix, Inc., IPR2013-00183, 2013 WL 4181227, at *5 (P.T.A.B. July
`
`31, 2013. In Heart Failure Technologies, the Board denied an IPR petition,
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`stating:
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`The fact that Murphy, Khairkhahan, and Lane all concern human heart
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`repair is not in itself sufficient rationale for making the combination.
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`Many heart repair devices exist. That fact alone would not make it
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`obvious to combine their features. Petitioner must show some reason
`
`why a person of ordinary skill in the art would have thought to
`
`combine particular available elements of knowledge, as evidenced by
`
`the prior art, to reach the claimed invention. See KSR Int’l Co. v.
`
`Teleflex, Inc., 550 U.S. 398, 418 (2007. This, the Petitioner has not
`
`done. That the references relied upon all relate to human heart repair
`
`does not amount to “some articulated reasoning with some rational
`
`underpinning to support the legal conclusion of obviousness.” See id.
`
`(internal quotations omitted).
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`Id. (emphasis in original). See also The Scotts Co. LLC v. Encap LLC, IPR2013-
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`00491, 2013 WL 8595755, at *7 (P.T.A.B. Feb. 5, 2013).
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`It is also improper for Petitioner to use hindsight reconstruction for
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`obviousness based on Applicant’s own disclosure. In re NTP, Inc., 654 F.3d 1279,
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`1299 (Fed. Cir. 2011) (“Care must be taken to avoid hindsight reconstruction by
`
`using ‘the patent in suit as a guide through the maze of prior art references,
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`combining the right references in the right way so as to achieve the result of the
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`claims in suit.’”).
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`V. CLAIM CONSTRUCTION
`
`A. Legal Standard
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`The Petition must identify how each challenged claim is to be construed.
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`37 C.F.R. § 42.104(b)(3). Because the ‘276 Patent has not expired, all claims are
`
`to be construed with the broadest reasonable interpretation in light of the
`
`specification. See 37 C.F.R. § 42.100(b).
`
`B.
`
`“information based on athlete position data” (Claims 8 and 9)
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`Claims 8 and 9 both recite displaying “information based on the athlete
`
`position data.” Petitioner offers no construction of this term. Patent Owner
`
`submits that the broadest reasonable interpretation of the term “information based
`
`on the athlete position data” is information that is derived from or calculated using
`
`the position data. The patentee plainly did not intend that “position data” should
`
`be construed to mean the same thing as “information based on the athlete position
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`data.” The claims of the ‘276 patent use the term “position data” extensively. Had
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`the patentee intended to require display of “position data” in claims 8 and 9, the
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`patentee easily could have done so. However, the patentee did not, instead
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`requiring display of “information based on the athlete position data.”
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`U.S. Pat. No. 8,725,276
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`Patent Owner’s proposed construction is fully supported by the specification
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`of the ‘276 patent. The specification describes throughout how second order
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`information may be determined or calculated “based on” the collected information.
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`See, e.g. Ex. 1001 2:64-67 (users “need a system that collects performance data,
`
`detects and corrects errors in the collected data, and estimates secondary data,
`
`based on the collected primary data”) (emphasis added); id. at 10:46-53
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`(“Secondary data, such as cadence, stride length, VO2 max, oxygen uptake,
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`maximum heart rate, percent of maximum heart rate, percent of heart rate reserve,
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`energy consumed, power exerted, or lactate threshold may be derived based on the
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`collected personal data and other personal data. The collected data or the derived
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`secondary data may be displayed for the user during a workout, and it may be used
`
`to modify a workout.”) (emphasis added); id. at 56:63-57:4 (“In step 7040, a
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`position monitor may be provided as an INC in the MPN. . . . The position
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`monitor may send position data to a control unit or other component with storage
`
`capabilities at regular intervals. . . . In step 7050, the position monitor may be used
`
`to measure the user's speed, which can be calculated as distance traveled divided
`
`by time. In step 7060, stride length may be calculated based on the speed and
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`cadence of the user.”) (emphasis added).
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`Accordingly, the broadest reasonable interpretation of “information based on
`
`the athlete position data” in light of the plain language of the claim and the
`
`specification is information that is derived from or calculated using the position
`
`data.
`
`C.
`
`“route” (Claims 16, 21, and 22)
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`The term “route” appears throughout Challenged Claim 16, 21, and 22.
`
`Petitioner has not offered a construction of this term. Patent Owner submits that
`
`the broadest reasonable interpretation of the term “route” as it appears in these
`
`Challenged Claims is a predetermined collection of waypoints.
`
`Patent Owner’s construction is fully supported by the plain language of the
`
`claims. Claim 16 states that the first step in its method is “receiving data relating
`
`to a route.” Then, the method recites “receiving with a position monitor position
`
`data relating to a position of an individual during traversal of the route.”
`
`Additionally, claim 16 recites “simultaneously displaying the position data and the
`
`performance data over a graphical representation of the route data during the
`
`traversal of the route with a display screen.”
`
`To receive information “during traversal of the route,” the received route
`
`data cannot merely be a collection of previous position points. Basic logic dictates
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`that information about an individual cannot be received during traversal of the
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`route if that route is not predetermined. Similarly, position information and
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`performance information cannot be displayed during traversal of the route if the
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`route is not already known. Additionally, the plain language of claim 16 requires a
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`comparison between the user’s position (position data) and a route. If the route
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`data merely consisted of points that the user had traversed, then the received route
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`data would be the same as the received position data. That is clearly not intended
`
`by the patentee, as it would make the first two steps of claim 16 wholly redundant.
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`Instead, the intended objective of this claim necessarily requires that the “route” be
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`predetermined, such that the individual can compare his position to something,
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`namely, the predetermined collection of waypoints.
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`Accordingly, the broadest reasonable interpretation of “route” in light of the
`
`plain language of the claim 16 is a predetermined collection of waypoints.
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`VI. TRIAL SHOULD NOT BE INSTITUTED ON CLAIMS 1, 3, 6, AND 7
`
`Patent Owner has disclaimed claims 1, 3, 6, and 7 of the ’276 Patent via
`
`Statutory Disclaimer under 35 U.S.C. § 253(a) in compliance with 37 C.F.R.
`
`§ 1.321(a). See Ex. 2001.
`
`The Statutory Disclaimer does not constitute an admission or acquiescence
`
`by Patent Owner with regard to the Petition. Rather, Patent Owner disagrees with
`
`Petitioner’s arguments set forth in the Petition and has made the Statutory
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`Disclaimer without prejudice to Patent Owner’s ability to rebut Petitioner’s
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`arguments (including characterizing and distinguishing the prior art references
`
`cited in the Petition) in any forum, including, but not limited to, the related action
`
`in the District of Delaware adidas AG, et. al. v. Under Armour, Inc. and
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`MapMyFitness, Inc., Case No. 14-130-GMS (D. Del.).
`
`Because “no inter partes review will be instituted based on disclaimed
`
`claims” (37 C.F.R. § 42.107(e)) and because claims 1, 3, 6, and 7 have been
`
`disclaimed, Patent Owner respectfully submits that institution of a trial as to claims
`
`1, 3, 6, and 7 claims of the ’276 patent would be improper and requests that the
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`Petition be dismissed with respect to those claims. See Tandus Flooring, Inc. v.
`
`Interface, Inc., Case IPR2013-00526 (PTAB Feb. 14, 2014) (Paper 7); CoolIT
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`Systems, Inc. v. Asetek Danmark A/S, Case IPR2014-01172 (Jan. 29, 2015) (Paper
`
`12); RPX Corp. v. Cedatech Holdings, LLC, Case IPR2015-00736 (PTAB Aug. 13,
`
`2015) (Paper 8).
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`U.S. Pat. No. 8,725,276
`IPR2015-01891
`Preliminary Response
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`VII. PETITIONER HAS NOT SATISFIED ITS BURDEN UNDER
`35 U.S.C. § 314(A) WITH RESPECT TO CLAIMS 8-10, 15-19, AND
`21-23
`
`A. Ground 1 – Satava does not Anticipate Claims 8-9, 16-19, or 21-23
`
`1.
`
`Satava does not disclose “displaying athletic performance
`information with a display screen during the athletic activity
`based on the performance data received by the performance
`monitor” as required by claim 1.
`
`Independent claim 1 recites that the collected athletic performance
`
`information must be displayed during the athletic activity. Petitioner asserts that
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`the article “The Physiologic Cipher at Altitude: Telemedicine and Real-Time
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`Monitoring of Climbers on Mount Everest” by Richard Satava et al. (“Satava”)
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`satisfies this claim element wherein it allegedly discloses “displaying the climbers’
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`heart rate information (based on the heart rate data gathered by the portable heart
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`rate monitors) on display screens at Yale during the climbers’ ascent.” Petition at
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`18-19. Petitioner overstates and mischaracterizes the disclosures from Satava.
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`First, Petitioner points to disclosures regarding Figure 4 of Satava. “Figure
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`4 illustrates the home screen of the laptop computer that was the interface for
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`viewing the data from the climbers. . . . On the right side of the screen are
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`‘thumbnail’ graphics of the continuous vital-signs summaries of the three climbers
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`(two being active at the time of the screen capture) along with their latest updated
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`values. . . . The data were monitored in real time and stored on both the receiving
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`computer and the wearable data logger.” Ex. 1004 at 010. Petitioner also points to
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`Satava’s disclosure that “[d]uring the daily morning telemedicine conference
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`between Yale University and EBC on the day of the trek to Camp 1, vital signs
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`were retransmitted to Yale University in real time from the climbers, allowing
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`physicians at Yale University to follow vital signs and location while the climbers
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`were ascending through the icefall.” Id. at 008-009. Finally, Petitioner relies on
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`disclosures in Satava that describe Figure 5 as providing “specific overall
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`information as well as the chronological, high fidelity presentation of data points
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`acquired in real time and plotted every five minutes.” Id. at 010.
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`Petitioner is incorrect to conclude that these passages disclose that
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`performance parameters are displayed “during the activity.” First, every time that
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`the phrase “real time” is used, it does not relate to displaying the performance
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`information. Instead, that phrase is used to describe how data is “monitored” (Ex.
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`1004 at 010), “retransmitted” (id. at 008-009) or “acquired” (id. at 010). Thus,
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`contrary to Petitioner’s arguments, nothing in Satava discloses that data is
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`displayed in “real time.”
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`Additionally, in describing how researchers at Yale viewed the data, Satava
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`states that “[d]uring the daily morning telemedicine conference between Yale
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`University and EBC on the day of the trek to Camp 1, vital signs were
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`retransmitted to Yale University in real time from the climbers, allowing
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`physicians at Yale University to follow vital signs and location while the climbers
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`were ascending through the icefall.” Id. at 008-009. This sentence clearly states
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`that data is being retransmitted, meaning it is not the first time that the data was
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`sent from the data collection devices on the climbers. Further, the sentence makes
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`clear that this retransmission occurs “during the daily morning telemedicine
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`conference between Yale and EBC on the day of the trek.” The sentence does not
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`state that the retransmission occurred during the climber’s trek, but rather ties the
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`retransmission to the morning teleconference between Everest Base Camp and
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`Yale. The reference to real-time transmission is merely stating that retransmission
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`occurs in real-time, i.e., during the morning telemedicine conference. Moreover, it
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`is not even clear from this language whether the morning teleconference occurs
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`during morning hours at Everest Base Camp at Yale. Further, Satava does not
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`state that researchers at Yale were using a display to follow the ascent live, but
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`rather that the researchers were following vital signs and location information
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`collected while the climbers were ascending through the icefall.
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`In sum, Satava does not disclose within its four corners that data is displayed
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`on the laptop at Yale during the climber’s ascent. Satava’s description that “vital
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`signs were retransmitted” suggests that this data was transmitted to base camp for
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`storage and only later, after conclusion of the climb, “retransmitted” to New
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`Haven. Thus, Petitioner is incorrect to conclude that Satava discloses displaying
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`performance information “during the athletic activity.”
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`For at least these reasons, Satava does not disclose “displaying athletic
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`performance information with a display screen during the athletic activity based on
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`the performance data received by the performance monitor.” Thus, Satava does
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`not anticipate claim 1 and does not anticipate any claim that depends on claim 1,
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`including Challenged Claims 8 and 9.
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`2.
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`Satava does not disclose “[t]he method of claim 1, further
`comprising displaying the athletic performance information
`with information based on the athlete position data on a map”
`as required by Claim 8.
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`Petitioner asserts that Satava satisfies the limitations of claim 8 based on the
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`disclosures of Figure 4. Figure 4 of Satava is reproduced below.
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`Ex. 1004 at 008. Petitioner asserts that “Satava discloses displaying heart rate data
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`along with climber position data on a map, all on the same display.” Petition at 25
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`(emphasis added).
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`As an initial matter, Petitioner wholly ignores that claim 8 does not recite
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`displaying position data on a map, but instead recites displaying “information
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`based on the athlete position data” on a map. As discussed above, the proper
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`construction of “information based on the athlete position data” is information that
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`is derived from or calculated using the position data. Satava does not disclose
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`displaying information derived from or calculated using the position data on the
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`map. Instead, it only discloses that Figure 4 shows a display with the climber’s
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`position on the terrain map. See Ex. 1004 at 008. Nothing in Satava discloses
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`displaying other information based on that position data on the terrain map.
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`Accordingly, Satava does not satisfy the claim limitations of claim 8 wherein it
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`does not disclose displaying information based on the athlete position data on a
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`map.
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`Additionally, Petitioner and Dr. Selker’s analysis ignores the plain language
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`of claim 8, which requires displaying athletic performance information with
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`information based on the athlete position data on a map. Petitioner reads claim 8
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`as to require only that the information based on the athlete position needs to be
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`displayed on a map. Presumably, Petitioner’s reading of the claim is informed by
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`its improper understanding that the claim recites displaying position data on a map.
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`However, that is not what is claimed. Instead, claim 8 clearly requires that both
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`the information based on the athlete position data and athletic performance
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`information are displayed on a map. This understanding of the plain language of
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`claim 8 is fully supported by the specification of the ‘276 patent:
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`In step 4350, position information may be correlated with
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`simultaneously collected performance information. This may be
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`useful in an MPN that is also used to support athletic workouts. . . .
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`The performance information may, for example, be speed in substep
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