`Tel: 571-272-7822
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`Paper No. 38
`Entered: August 14, 2017
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`ZEPP LABS, INC.,
`Petitioner,
`
`v.
`
`BLAST MOTION, INC.,
`Patent Owner.
`_______________
`
`Case IPR2016-00675
`Patent 8,941,723 B2
`_______________
`
`Before MICHAEL W. KIM, RAMA G. ELLURU, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`ELLURU, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`I.
`
`INTRODUCTION
`Background
`A.
`Zepp Labs, Inc. (“Petitioner”) filed a Petition to institute an inter
`partes review of claims 1–4, 6, 7, 13, 14, 19–22, 25, and 32 of U.S. Patent
`No. 8,941,723 B2 (Ex. 1001, the “’723 patent”). Paper 1, 1 (“Pet.”). Blast
`Motion, Inc. (“Patent Owner”) filed a Preliminary Response. Paper 7
`(“Prelim. Resp.”).
`On August 29, 2016, we instituted an inter partes review of claims 1,
`7, 13, 14, 19–22, and 32 on certain grounds of unpatentability set forth in the
`Petition. Paper 10, 26 (“Dec.”). Subsequent to institution of trial, Patent
`Owner filed a Patent Owner’s Response (Paper 23, “PO Resp.”) and
`Petitioner filed a Reply (Paper 27, “Pet. Reply”). Petitioner relies on the
`Declaration of Dr. Steven M. Nesbit (Ex. 1003). Patent Owner relies on the
`Declaration of Dr. Roozbeh Jafari (Ex. 2001). An oral hearing was held on
`May 8, 2017, and a transcript of the hearing is included in the record. Paper
`37 (“Tr.”).
`The Board has jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has failed to show
`by a preponderance of the evidence that claims 1, 7, 13, 14, 19–22, and 32 of
`the ’723 patent are unpatentable.
`
`Related Proceedings
`B.
`Petitioner and Patent Owner identify the following district court
`proceeding concerning the ’723 patent: Blast Motion, Inc. v. Zepp Labs, Inc.,
`No 3:15-cv-00700 (S.D. Cal.). Pet. 2; Paper 5, 2.
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`Petitioner and Patent Owner identify further the following related
`patents, for each of which Petitioner has filed a respective petition for inter
`partes review: U.S. Patent No. 8,905,855 (IPR2016-00676, trial instituted);
`U.S. Patent No. 8,944,928 (IPR2016-00677, trial instituted); U.S. Patent No.
`8,903,521 (IPR2016-00672, institution denied); U.S. Patent No. 9,039,527
`(IPR2016-00674, institution denied). Id.
`
`The ’723 Patent (Ex. 1001)
`C.
`According to the ’723 patent, an exemplary field of the
`invention is directed to portable wireless mobile device computer
`systems, radio frequency identification, and optionally motion capture
`elements, such as visual markers and sensors utilized in the capture of
`motion data. Ex. 1001, 1:18–23.
`A user may perform motion capture and/or display with a
`software application that, for example, executes on a mobile device
`having a visual display and an optional camera, and is capable of
`obtaining data from at least one motion capture element, such as a
`visual marker and/or a wireless sensor. Id. at 2:41–46. The system
`enables a user to analyze and display the motion capture data in a
`variety of ways that provide immediate, easy-to-understand graphical
`information associated with the motion capture data. Id. at 2:48–51.
`
`Illustrative Claim
`D.
`We instituted trial for claims 1, 7, 13, 14, 19–22, and 32. Claim 1, the
`only independent claim at issue, is reproduced below:
`1. A portable wireless mobile device motion capture and analysis
`system comprising:
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`at least one motion capture element configured to couple with a user or
`piece of equipment, wherein said at least one motion capture element
`comprises
`a memory;
`a sensor configured to capture any combination of values
`associated with an orientation, a position, a velocity, and an
`acceleration of said at least one motion capture element;
`a radio;
`a microcontroller coupled with said memory, said sensor and
`said radio, wherein said microcontroller is configured to
`collect data that comprises sensor values from said
`sensor;
`store said data in said memory;
`transmit said data via said radio;
`an application configured to execute on a mobile device, wherein said
`mobile device comprises
`a computer;
`a display; and,
`a wireless communication interface configured to
`communicate with said radio to obtain said data, and
`communicate with a remote database that is remote to
`said mobile device;
`wherein said computer is coupled with said display and said
`wireless communication interface, and
`wherein said computer is configured to execute said application
`to configure said computer to
`recognize said at least one motion capture element
`associated with said user or said piece of equipment and
`associate said at least one motion capture element with
`assigned locations on said user or said piece of
`equipment based on movement of each of said at least
`one motion capture element respectively;
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`receive said data associated with said at least one motion
`capture element via said wireless communication
`interface;
`analyze said data to form motion analysis data;
`display said motion analysis data on said display; and,
`store said data, or said motion analysis data, or both said
`data and said motion analysis data in said remote
`database.
`
`E. Grounds of Unpatentability Instituted for Trial
`We instituted review of claims 1, 7, 13, 14, 19–22, and 32 based on
`the following grounds and items of prior art:
`References
`Basis
`Mahajan,1 Otto,2 and Lee3
`§ 103(a)
`
`Claims Challenged
`1, 7, 21, 22, and 32
`
`Mahajan, Otto, and Edis4
`
`§ 103(a)
`
`13, 14, 19, and 20
`
`Dec. 26.
`
`II. ANALYSIS
`Claim Interpretation
`A.
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`
`
`1 U.S. Patent Application Publication No. 2006/0025229 A1, pub. Feb. 2,
`2006 (Ex. 1005, “Mahajan”).
`2 Chris Otto et al., System Architecture of a Wireless Body Area Sensor
`Network for Ubiquitous Health Monitoring, JOURNAL OF MOBILE
`MULTIMEDIA, VOL. 1, NO. 4 (2006) (Ex. 1012).
`3 U.S. Patent No. 6,224,493 B1, issued May 1, 2001 (Ex. 1006, “Lee”), is
`incorporated by reference in Mahajan. Pet. 3.
`4 U.S. Patent Application Publication No. 2010/0144414 A1, pub. June 10,
`2010 (Ex. 1007, “Edis”).
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`patent in which they appear. 37 C.F.R. § 42.100(b); see Cuozzo Speed
`Techs., LLC v. Lee, 136 S. Ct. 2131, 2146 (2016). Under the broadest
`reasonable construction standard, claim terms are presumed to have their
`ordinary and customary meaning, as would be understood by one of ordinary
`skill in the art in the context of the entire disclosure. In re Translogic Tech.,
`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special definition for a
`claim term must be set forth in the specification with reasonable clarity,
`deliberateness, and precision. In re Paulson, 30 F.3d 1475, 1480 (Fed. Cir.
`1994). We must be careful not to read a particular embodiment appearing in
`the written description into the claim if the claim language is broader than
`the embodiment. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
`For the purposes of this Decision, we determine that no claim term needs
`express interpretation. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200
`F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that
`are in controversy, and only to the extent necessary to resolve the
`controversy.”).
`
`Level of Ordinary Skill in the Art
`B.
`Section 103(a) forbids issuance of a patent when “the differences
`between the subject matter sought to be patented and the prior art
`are such that 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 to which said subject matter pertains.”
`
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007).
`Petitioner asserts that a person of ordinary skill in the art with respect
`to the ’723 patent is “a person with a Bachelor’s degree in mechanical or
`electrical engineering or a related field with two to three years of experience
`working with data acquisition systems.” Pet. 9 (citing Ex. 1003 ¶ 19).
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`According to Petitioner, “[w]ith more education, such as additional graduate
`degrees and/or study, less experience is needed to attain the ordinary level of
`skill.” Id.
`Patent Owner does not expressly advocate for a particular level of
`ordinary skill. However, in opining on the weight to be afforded to Dr.
`Nesbit’s testimony, Patent Owner notes that Dr. Nesbit “acknowledged
`during his cross-examination that he has no experience designing wireless
`motion capture sensors in his own research.” PO Resp. 3. Patent Owner
`appears to assert implicitly that one of ordinary skill would have had
`experience in designing wireless motion capture sensors. See id. at 3–4. We
`agree to an extent.
`The ’723 patent is entitled “PORTABLE WIRELESS MOBILE
`DEVICE MOTION CAPTURE AND ANALYSIS SYSTEM AND
`METHOD.” The “Field of the Invention” section of the ’723 patent contains
`various terminology concerning capture of motion data. Ex. 1001, 1:17–26.
`Nearly every paragraph in the “Description of the Related Art” section of the
`’723 patent refers to one or more of “motion capture,” “motion capture
`data,” and “motion data.” Id. at 1:27–2:35. The same is true for the “BRIEF
`SUMMARY OF THE INVENTION” section of the ’723 patent. Id. at 2:37–
`6:62. The ’723 patent discloses that “[k]nown systems generally utilize
`several passive or active markers or several sensors.” Id. at 1:47–48. The
`“BRIEF SUMMARY OF THE INVENTION” section of the ’723 patent
`refers repeatedly to motion data capture via markers and sensors. Id. at
`2:41–46, 3:24–29, 3:55–61, 4:29–34, 5:39–6:56. Independent claim 1
`recites “a sensor configured to capture any combination of values associated
`with an orientation, a position, a velocity, and an acceleration of said at least
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`one motion capture element.”
`Based on the above, we modify Petitioner’s proffered level of
`ordinary skill as follows: “a person with a Bachelor’s degree in mechanical
`or electrical engineering or a related field with two to three years of
`experience working with data acquisition systems, including motion data
`capture using markers and sensors.” We decline, however, to limit the level
`of ordinary skill to “designing wireless motion capture sensors,” as we are
`unpersuaded that the ’723 patent is so limited to “design” and “wireless”
`sensors.
`We note, however, that, in this case, the prior art itself reflects an
`appropriate skill level. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
`Cir. 2001). For example, the prior art of record, such as Mahajan, has been
`shown to relate to the field of data acquisition systems, and, in particular,
`motion capture sensors.
`
`C.
`
`Claims 1, 7, 21, 22, and 32 as Unpatentable
`Over Mahajan, Otto, and Lee
`Petitioner asserts that Mahajan, Otto, and Lee render obvious claims
`1, 7, 21, 22, and 32. Pet. 20–38. Patent Owner disagrees. PO Resp. 9–48.
`Petitioner replies. Pet. Reply 6–15. Claim 1 is the only independent claim
`at issue.
`
`1. Mahajan (Ex. 1005)
`Majahan is directed to motion tracking and analysis. Ex. 1005 ¶ 2.
`More specifically, Mahajan discloses:
`The present invention provides for an orientation and position
`tracking system in three-dimensional space installed on or in a
`moveable object that utilizes inertial and other sensors for
`determining real-time motion parameters and real-time wireless
`transmission of that motion information to an external computer
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`system (including PDA, cellular phone, or over a network).
`Id. at ¶ 30. According to Mahajan, the information can then be displayed
`and presented to the user through a variety of means, including audio, visual,
`and tactile. Id. at ¶ 8. For example, “[i]n one embodiment, the present
`invention provides for an intelligent golf club . . . that provides golfers with
`real-time, precise and dynamically presented data, including swing
`analysis.” Id. at ¶ 30.
`Petitioner’s Overall Positions
`2.
`Independent claim 1 recites “at least one motion capture element . . .
`[comprising] a sensor configured to capture any combination of values
`associated with an orientation, a position, a velocity, and an acceleration of
`said at least one motion capture element.” Petitioner cites Mahajan for
`disclosing sensors that determine orientation, position, acceleration, and
`angular velocity of a moveable object. Pet. 22. Independent claim 1 recites
`further “at least one motion capture element . . . [comprising] a radio; [and] a
`microcontroller” configured to collect, store, and transmit sensor data.
`Petitioner cites Mahajan for disclosing wireless data transmission 20, which
`includes transmitter circuit 52 and antenna 54, and microcontroller 50,
`which receives data from angular rate sensors 42, 44, 46 and delivers data to
`the transmission system. Id. at 23–24.
`Independent claim 1 recites further
`a mobile device . . . [comprising] a computer . . . configured
`to . . . receive said data associated with said at least one motion
`capture element via said wireless communication interface;
`analyze said data to form motion analysis data; display said
`motion analysis data on said display; and, store said data, or said
`motion analysis data, or both said data and said motion analysis
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`data in said remote database.
`Petitioner cites Mahajan for disclosing interface device 24, such as a
`personal computer (“PC”), a personal digital assistant (“PDA”), cellular
`phone, or network that includes software to process the sensor data. Id. at
`26. Specifically, Mahajan discloses that
`the system enters an iterative loop in which sensor data is used
`to update an internal 3D model of a golf club. The software
`system processes both the sensor data and the 3D club model to
`match for a possible golf swing pattern. If a match occurs, the
`system creates an internal Swing Object representing that golf
`swing, storing both the sensor data and 3D model history inside
`this object. This Swing Object can then be saved directly . . . or
`[on] a remotely [sic] server accessible through available
`networks.
`
`Ex. 1005 ¶ 57; see Pet. 31.
`With respect to the “display” limitation, Petitioner asserts that
`interface device 24 of Mahajan includes a display. Pet. 26. Independent
`claim 1 recites also “at least one motion capture element compris[ing] a
`memory.” Petitioner provides the following analysis concerning this
`“memory” limitation:
`By the time the ’723 patent was filed in 2010, motion capture
`elements with memory were known components readily
`available off-the-shelf. Ex. 1003, ¶ 115. In fact, any system with
`data processing capabilities would be expected to include some
`form of memory. Id. Mahajan discloses “said at least one motion
`capture element comprising a memory” as recited in elements
`[1C]. Mahajan explains that the motion capture element may
`include “an on-board memory for storing the orientation and
`position information.” Ex. 1005, ¶ 42; Ex. 1003, ¶ 115;
`Appendix A limitation [1C]. Mahajan teaches that “[t]he
`apparatus can be used alone or in conjunction with other
`hardware . . . or software . . . and may be adapted for wired
`transmission of data, wireless transmission of data, or for
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`storage of data on the apparatus.” Ex. 1005, ¶ 127; Ex. 1003,
`¶ 115; Appendix A limitation [1C]. Thus, Mahajan teaches that
`the on-board memory component for storage of data on the
`apparatus is an obvious design choice. Ex. 1003, ¶ 115. Further,
`being a microprocessor-based system, Mahajan inherently
`discloses the use of some form of memory for buffering digital
`data as the analog sensor signals are digitized and packaged for
`wireless transmission. See id., ¶¶ 38 and 43; see also, id., ¶ 6
`(incorporating Lee by reference which discloses the claimed
`memory on the motion capture element as a [sic] “internal ring
`buffer memory for capturing data.” See, e.g., Ex. 1006, Abstract
`and 2:51–53.
`
`Id. at 21–22 (emphasis in original). Petitioner provides similar analyses for
`dependent claims 7, 21, 22, and 32. Id. at 34–38.
`3.
`Analysis of Claims 1, 7, 21, 22, and 32 as Unpatentable
`Over Mahajan, Otto, and Lee
`Claim 1, the only independent claim challenged, recites “an
`application configured to execute on a mobile device, wherein said mobile
`device comprises . . . a wireless communication interface configured to . . .
`communicate with a remote database that is remote to said mobile device.”
`The Petition refers to Mahajan’s disclosure of “the application ‘creat[ing] an
`internal Swing Object representing that golf swing’ (i.e., motion analysis
`data). . . . This Swing Object can then be saved directly to an available
`storage medium, such as a local hard drive or a remotely [sic] server
`accessible through available networks.’” Pet. 27 (citing Ex. 1005 ¶ 57; Ex.
`1003 ¶ 165; Appendix A limitation [1N]); Pet. Reply 14. The Reply further
`refers to Mahajan’s disclosure of “the use of a ‘database’ in its system.” Pet.
`Reply 14 (citing Ex. 1005 ¶¶ 116, 127). Mahajan teaches that the disclosed
`“apparatus can be used alone or in conjunction with other hardware . . . or
`software (data analysis systems, database systems, etc.) and may be adapted
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`for . . . storage of data on the apparatus.” Ex. 1005 ¶ 127; id. at ¶ 116
`(“Within the iClub System a database of information is kept on all users
`including user’s name and an identification number of the user’s Pitcher.”).
`Petitioner concludes that a skilled artisan would recognize that Mahajan
`discloses “storage of the motion analysis data in an available storage
`medium, such as a remote server and/or database.” Pet. Reply 14–15.
`Patent Owner asserts that Mahajan does not disclose or suggest “a
`remote database.” PO Resp. 44–48. With respect to Mahajan’s disclosure
`that a Swing Object can be saved to a “remotely [sic] server,” Patent Owner
`states that “[w]hile it is true that a database, like many types of software,
`might be found on a server, it does not follow that disclosure of a server
`necessarily teaches or suggests the claimed database.” PO Resp. 44–45.
`Patent Owner argues that a server and database serve different functions,
`wherein a server “store[s] files,” but a database “allows for storage and
`queries of database files, which typically are organized as record and fields.”
`Id. at 45 (emphasis added); see also id. at 45–47. According to Patent
`Owner, a database allows a user to “search for, access, and recombine
`information stored in the database files,” whereas a remote server used for
`data storage “could simply be a location where files are archived, allowing
`for retrieval when requested by a client but not providing the capability to
`search for and manipulate the data as in a database.” Id. at 45 (citations
`omitted); see Ex. 2001 ¶¶ 56–59. Patent Owner further contends that Dr.
`Nesbit, Petitioner’s expert, “acknowledged that a database is not needed for
`server storage as discussed in Mahajan” and that “his declaration provides
`no analysis as to whether a remote database would have been obvious in
`view of Mahajan’s disclosure of a remote server.” PO Resp. 47 (citing Ex.
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`2011, 123:8–15, 124:15–19). Patent Owner also refers to disclosure from
`the ’723 patent differentiating a remote server and a remote database. Id. at
`46–47 (citing Ex. 1001, 4:55–59, 13:12–15, 15:31–34; Ex. 2001 ¶ 60).
`Patent Owner concludes that “[p]ut simply, a person of ordinary skill in the
`art would understand that while a remote database may be located on a
`remote server, a remote server is not the same thing as a remote database.”
`Id. at 46 (citing Ex. 2001 ¶ 59). In addition, Patent Owner argues, based on
`Dr. Nesbit’s testimony, that Mahajan’s remote server analyzes sensor data,
`and, thus, “Mahajan at best either discloses a mobile device that analyses
`sensor data to form motion analysis data or a remote database, but not both.”
`PO Resp. 48 (emphasis in original). Petitioner disagrees that Mahajan fails
`to disclose the claimed “remote database.” Pet. Reply 14–15.
`We determine that Petitioner’s evidence and argument are insufficient
`to demonstrate that Mahajan teaches a “remote database.” As an initial
`matter, Petitioner does not explain sufficiently how Mahajan’s teaching of
`storing information informs a skilled artisan that that storage is a “database,”
`as required by claim 1. See Pet. 27; Pet. Reply 14–15. Petitioner also does
`not adequately explain why a storage medium, such as a hard drive or a
`server, sufficiently equates with a “database.” Id. Indeed, in response to the
`question—“[s]o Mahajan’s disclosure of a remote server is not the same
`thing as disclosing a remote database, correct?”—Dr. Nesbitt testified, “[n]ot
`exclusively.” Ex. 2011, 123:8–12; see id. at 120:19–21. Dr. Nesbitt further
`testified that,
`[a] server would be more of a hardware device, where a database
`would be more of a software. It would be a place where the data
`is actually stored within a remote computer or remote server. So
`it’s the hardware versus what’s in the hardware is the distinction
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`between the two.
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`Id. at 122:17–23; see Ex. 2001 ¶ 59 (Patent Owner’s expert opining that
`“[d]isclosure of sending data to remote server for storage, without more, is
`insufficient to convey to a person of ordinary skill in the art that the server
`contains a database.”). The ’723 patent also distinguishes between a
`“remote database” and a “remote server.” See Ex. 1001, 4:55–57 (“[t]he
`data uploaded to the Internet, i.e., a remote database or remote server or
`memory remote to the system”); id. at 15:31–34 (“the motion capture
`archived data may be stored on the mobile device or remotely on computer
`105, or in database 172 accessed via network 170 and/or via Internet 171.”).
`At oral argument, Petitioner’s counsel stated the following:
`JUDGE ELLURU: But you can also have a server without a
`database.
`MR. KOHM: Yes. I agree with that.
`Tr. 33:16–18.
`Although we acknowledge that Mahajan discloses that its system can
`be used in conjunction with database systems generally, Petitioner does not
`explain sufficiently why a skilled artisan would have modified Mahajan to
`include a “remote database.” See Pet. 27; Pet. Reply 14–15; Ex. 1003 ¶ 165
`(emphasis added). Similarly, Petitioner also does not explain sufficiently
`why a skilled artisan would have modified the disclosed remote “server” of
`Mahajan to include a “database.” See id.
`4.
`Conclusion
`For the reasons set forth above, we are not persuaded that Petitioner
`has met its burden of showing, by a preponderance of the evidence, that
`claim 1 is unpatentable over Mahajan, Otto, and Lee. Petitioner’s analysis
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`for dependent claims 7, 21, 22, and 32 does not alter its analysis of the
`“remote database” limitation. See Pet. 34–38. Thus, for the same reasons as
`with respect to claim 1, we are not persuaded that Petitioner has met its
`burden of showing, by a preponderance of the evidence, that dependent
`claims 7, 21, 22, and 32 are unpatentable over Mahajan, Otto, and Lee.
`
`D. Dependent Claims 13, 14, 19, and 20 as Unpatentable
`Over Mahajan, Otto, and Edis
`Dependent claims 13, 14, 19, and 20 depend from claim 1.
`Petitioner’s analysis for dependent claims 13, 14, 19, and 20 does not alter
`its analysis of the “remote database” limitation. See Pet. 53–58. Thus, for
`the same reasons as with respect to claim 1, we are not persuaded that
`Petitioner has met its burden of showing, by a preponderance of the
`evidence, that dependent claims 13, 14, 19, and 20 are unpatentable over
`Mahajan, Otto, and Edis.
`
`III. CONCLUSION
`Petitioner has failed to demonstrate by a preponderance of the
`evidence that claims 1, 7, 13, 14, 19–22, and 32 of the ’723 patent are
`unpatentable.
`
`
`
`IV. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that claims 1, 7, 13, 14, 19–22, and 32 of the ’723 patent
`have not been shown by a preponderance of the evidence to be unpatentable;
`and
`
`FURTHER ORDERED that, because this is a Final Written Decision,
`the parties to the proceeding seeking judicial review of the decision must
`comply with the notice and service requirements of 37 C.F.R. § 90.2.
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`PETITIONER:
`
`Dargaye Churnet
`Bryan A. Kohm
`Michael Sacksteder
`FENWICK & WEST LLP
`dchurnet@fenwick.com
`bkohm@fenwick.com
`msacksteder@fenwick.com
`
`
`PATENT OWNER:
`
`Matthew A. Argenti
`Michael T. Rosato
`James C. Yoon
`WILSON SONSINI GOODRICH & ROSATI
`margenti@wsgr.com
`mrosato@wsgr.com
`jyoon@wsgr.com
`
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