Paper No. 28
`
`
`
`
`
`Trials@uspto.gov
`571-272-782 Entered: March 11, 2019
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FITBIT, INC. and WAHOO FITNESS LLC.,
`Petitioner,
`
`v.
`
`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES, LLC
`Patent Owner.
`____________
`
`Case IPR2017-020121
`Patent 6,434,212 B2
`____________
`
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`1 IPR2018-00275 has been joined to this proceeding.
`
`
`
`
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`

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`IPR2017-02012
`Patent 6,434,212 B2
`
`
`
`INTRODUCTION
` We have authority to hear this inter partes review under 35 U.S.C.
`§ 6(c), and 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 FitBit, Inc. and Wahoo Fitness LLC. (collectively, “Petitioner”) has not
`shown by a preponderance of the evidence that claims 2, 5, and 6 of U.S.
`Patent No. 6,434,212 (Ex. 1001, “the ’212 Patent”) are unpatentable.
`
`Procedural History
`
` Petitioner filed a Petition requesting an inter partes review of claims
`2, 5, and 6 of U.S. Patent No. 6,434,212 B2 (Paper 1 (“Pet.”)). Petitioner
`relied on the following references in asserting its grounds:
`
`References
`
`Patent Number
`
`Exhibit
`
`1003
`1004
`
`US 6,241,684 B1
`US 5,033,013
`
`Amano, et al., (hereinafter, “Amano”)
`Kato et al. (hereinafter, “Kato”)
`
`Petitioner also relies on the Declaration of Dr. Tanzeem Choudhury
`(Ex. 1005). Blackbird Tech LLC (“Patent Owner”) filed a Preliminary
`Response (Paper 7 (“Prelim. Resp.”)). Pursuant to 35 U.S.C. § 314(a), we
`instituted an inter partes review (“Dec.”) of claims 2 and 5 as unpatentable
`under 35 U.S.C. § 103(a) 2 over Amano; and claim 6 as unpatentable under
`35 U.S.C. § 103(a) over Kato and Amano.
`
`
`2 The Leahy-Smith America Invents Act (“AIA”) included revisions to
`35 U.S.C. § 100 et seq. effective on March 16, 2013. The ’212 Patent issued
`2
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`Patent 6,434,212 B2
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`
`On April 24, 2018, the Supreme Court held that a decision to institute
`under 35 U.S.C. § 314 may not institute on fewer than all claims challenged
`in the petition (SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348. 1359–60 (2018)).
`Subsequent to the holding in SAS we modified our institution decision to
`institute on all challenged claims and all grounds presented in the Petition
`(Paper 11). Specifically, we modified our institution decision to include
`review of
` Claims 2 and 5 as anticipated under 35 U.S.C. § 1023 by Amano;
`
` Claims 2 and 5 as unpatentable under 35 U.S.C. § 103(a) over
`Amano; and
`
`Claim 6 as unpatentable under 35 U.S.C. § 103(a) over Kato and
`Amano
`
`
`(id.).
`After institution of trial, Patent Owner filed a Patent Owner Response
`(Paper 16, “PO Resp.”), to which Petitioner filed a Reply (Paper 20,
`“Reply”). Pursuant to guidance provided in the Patent Trial and Appeal
`Board issued guidance for requesting sur-replies in an updated Trial Practice
`Guide (PTAB Trail Practice Guide Update (August 2018)). Patent Owner
`requested authorization to file a sur-reply (Exhibit 3001). We authorized
`
`
`from an application filed before March 16, 2013; therefore, we apply the
`pre-AIA versions of the statutory bases for unpatentability.
`3 The Leahy-Smith America Invents Act (“AIA”) included revisions to
`35 U.S.C. § 100 et seq. effective on March 16, 2013. The ’212 Patent issued
`from an application filed before March 16, 2013; therefore, we apply the
`pre-AIA versions of the statutory bases for unpatentability.
`3
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`Patent Owner to file a sur-reply (id.; Paper 25), and Patent Owner thus filed
`a Sur-Reply (Paper 24).
`At the parties’ request (Papers 22, 23), an Oral Hearing was held on
`December 11, 2018, a transcript of which is included in the record (Paper
`27, “Tr.”).
`
` BACKGROUND
`
`Related Matters
`
`The parties advise us that the ’212 Patent is at issue in the following:
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Sony Corp. et
`al., Case No. 16-CV-685 (D. Del.),
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Timex Group
`USA, Inc., Case No. 16-CV-686 (D. Del.),
`Blackbird Tech LLC d/b/a Blackbird Technologies v. TomTom, Inc.,
`Case No. 16-CV-687 (D. Del.),
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Wahoo Fitness,
`Inc., Case No. 16-CV-688 (D. Del.)
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Garmin
`International, Inc. and Garmin USA, Inc., Case No. 16-CV-689 (D. Del.),
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Fitbit, Inc., Case
`No. 16-CV-683 (D. Del.), and
`Blackbird Tech LLC d/b/a Blackbird Technologies v. Aliphcom d/b/a
`Jawbone, Case No. 16-CV-684 (D. Del.)
` (Pet. 4–5; Paper 4, 2).
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`
`Additionally, the ’212 Patent was at issue in IPR2017-01058 (Garmin
`International, Inc. v. Blackbird Tech LLC d/b/a Blackbird Technologies),
`now terminated and IPR2017-02025 (TomTom, Inc. v. Blackbird Tech LLC
`d/b/a Blackbird Technologies), not instituted; and remains at issue in
`IPR2017-02023 (TomTom International, B.V. v. Blackbird Tech LLC d/b/a
`Blackbird Technologies).
`
`The ’212 Patent
`
`The ’212 Patent, entitled “Pedometer,” relates to a “pedometer having
`improved accuracy by calculating actual stride lengths of a user based on
`relative stride rates” (’212 Patent, Abstract). More particularly, the patent
`relates to “pedometers having a waist mounted stride-counting device and
`transmitter, and a wrist-mounted receiver and display” (id. at 1:9–11). The
`device calculates a distance walked or run based on converting a base stride
`length and a base stride rate to an actual stride length and using that to
`calculate distance traveled (id. at 1:12–16).
`Specifically, a step counter which is an inertia device, counts the
`number of steps a user takes (id. at 3:7–8). A data processor includes a data
`archive that stores historic data on stride length and pace and closed loop or
`fuzzy logic programming that continually or periodically replaces the base
`stride rate and length with recently calculated stride rates and lengths (id. at
`3:39–47).
`The pedometer of the ’212 Patent may optionally require the user to
`operate a “sampling mode” (id. at 3:56–57). In this mode, a user walks or
`runs a predetermined distance with the distance then divided by the number
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`of strides counted (id. at 3:58–62). The result is the average stride length,
`which is stored in the data archive as the “Base Stride Length” (id. at 3:62–
`64). The data processor further divides the number of strides by the time of
`the run or walk to calculate a “Base Stride Rate” (id. at 3:65–67).
`According to the ’212 Patent, using a fixed average stride length does
`not account for changes in the user’s pace or improved performance (id. at
`4:19–29). To correct for this, a “Use Mode” is activated that causes the data
`processor to calculate an “Actual Stride Rate” (id. at 4:30–33). The “Actual
`Stride Rate” is calculated periodically, based on data from the stride counter
`and the clock (id. at 4:30–36). An “Actual Stride Length” is calculated by
`determining a percentage change between the Actual Stride Rate and the
`Base Stride Rate (id. at 4:36–38). More specifically, the Actual Stride
`Length is calculated by:
`Actual Stride Length=Base Stride Length + Base Stride Length
`*(((Actual Stride Rate-Base Stride Rate)N)/Base Stride Rate)
`Where: N=1 When Actual Stride Rate is less than or equal to
`Base Stride Rate multiplied by 1.02, and N=3 When Actual
`Stride Rate is greater than Base Stride Rate multiplied by 1.02,
`although other N values in the range of one to three can be used
`(id. at 4:50–58). To further improve accuracy, an N value is derived for the
`user by using a number of samples to establish Stride Length and N (id. at
`5:1–6:9).
`Once the actual stride length is calculated for a given period of
`time, the value can be multiplied by the number of strides in that
`period to obtain a total distance for that period to be stored in a
`data archive file for that particular walk or run and added to other
`actual stride lengths or distances for other periods in which stride
`length was calculated
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`(id. at 6:34–38).
`
`Challenged Claims
`
`Petitioner challenges independent claims 2, 5, and 6 of the ’212 Patent
`(Pet. 6–7). Claims 2 and 6 are illustrative of the challenged claims and are
`reproduced below:
`2.
`An exercise monitoring device comprising:
`a strap for releasably securing the exercise monitoring
`device to a user;
`a step counter joined to the strap;
`a heart rate monitor joined to the strap; and
`a data processor programmed to calculate a distance
`traveled by multiplying a number of steps counted by the
`step counter by a stride length that varies in accordance
`with a stride rate, wherein the stride length is determined
`with reference to a plurality of calibrations that each
`calculate a stride length as a function of a known stride
`rate.
`
`
`
`6. A pedometer comprising:
`a step counter;
`a transmitter in communication with the step counter to
`generate a step count signal corresponding to each step and
`transmit the step count signal;
`a receiver mountable on a user body portion to receive the step
`count signal transmitted from the transmitter; and
`a data processor programmed to calculate a distance traveled by
`multiplying a number of steps counted by a stride length that
`varies according to a rate at which steps are taken, and further
`programmed to derive an actual stride length from a range of
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`stride lengths calculated from a range of corresponding stride
`rates.
`
` ANALYSIS
`
`Claim Construction
`
`In an inter partes review filed before November 13, 2018, a district
`court-type claim construction approach may be applied if a party requests
`such a construction and certifies that the involved patent will expire within
`18 months from the entry of the Notice of Filing Date Accorded to Petition,
`in a motion under 37 C.F.R. § 42.20 within thirty days from the filing of the
`petition (37 C.F.R. § 42.100(b)). Here, Petitioner submitted a Motion for
`District Court-Type Claim Construction in accordance with 37 C.F.R.
`§ 42.100(b), certifying that the challenged patent will expire within 18
`months of the entry of the Notice of Filing Data Accorded to Petition,
`indicating Patent Owner did not oppose the motion (Paper 6). Patent Owner
`did not file an opposition within one month as permitted under 37 C.F.R.
`§ 42.25(a)(1). Additionally, Patent Owner asserted in the Preliminary
`Response that district court-type claim construction should apply (Prelim.
`Resp. 14) and did not oppose that construction in the Patent Owner’s
`Response (PO Resp. 8). We thus apply district court-type claim
`construction.
`Under district court-type claim construction, claim terms are given
`their ordinary and customary meaning, as would be understood by a person
`of ordinary skill in the art, at the time of the invention, in light of the
`language of the claims, the specification, and the prosecution history of
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`record (Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc);
`see also In re Rambus Inc., 694 F.3d 42, 46 (Fed. Cir. 2012) (“While claims
`are generally given their broadest possible scope during prosecution, the
`Board’s review of the claims of an expired patent is similar to that of a
`district court’s review.”) (internal citation omitted)). “In determining the
`meaning of the disputed claim limitation, we look principally to the intrinsic
`evidence of record, examining the claim language itself, the written
`description, and the prosecution history, if in evidence” (DePuy Spine, Inc.
`v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006)
`(citing Phillips, 415 F.3d at 1312–17)). There is a “heavy presumption,”
`however, “that a claim term carries its ordinary and customary meaning”
`(CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)
`(citation omitted)).
`We determine that no claim terms require express construction (see
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`1999) (Only terms which are in controversy need to be construed, and only
`to the extent necessary to resolve the controversy)).
`
`Principles of Law
`
`A claim is anticipated if a single prior art reference either expressly or
`inherently discloses every limitation of the claim (Orion IP, LLC v. Hyundai
`Motor Am., 605 F.3d 967, 975 (Fed. Cir. 2010)).
`A claim is unpatentable under 35 U.S.C. § 103(a) if “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
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`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)). The question of obviousness is resolved on the basis of underlying
`factual determinations, including (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of skill in the art; and (4) objective evidence of nonobviousness,
`i.e., secondary considerations (see Graham v. John Deere Co. of Kansas
`City, 383 U.S. 1, 17–18 (1966)).
`“A determination of whether a patent claim is invalid as obvious
`under § 103 requires consideration of all four Graham factors, and it is error
`to reach a conclusion of obviousness until all those factors are considered”
`(Apple v. Samsung Elecs. Co., 839 F.3d 1034, 1048 (Fed. Cir. 2016) (en
`banc) (citations omitted)). “This requirement is in recognition of the fact
`that each of the Graham factors helps inform the ultimate obviousness
`determination” (id.).
`“In an [inter partes review], the petitioner has the burden from the
`onset to show with particularity why the patent it challenges is unpatentable”
`(Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016)
`(citing 35 U.S.C. § 312(a)(3) (requiring inter partes review petitions to
`identify “with particularity . . . the evidence that supports the grounds for the
`challenge to each claim”))). This burden never shifts to Patent Owner (see
`Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378
`(Fed. Cir. 2015) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d
`1316, 1326–27 (Fed. Cir. 2008)) (discussing the burden of proof in inter
`partes review)). Furthermore, Petitioner cannot satisfy its burden of proving
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`obviousness by employing “mere conclusory statements” (In re Magnum Oil
`Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016)).
`Thus, to prevail in an inter partes review, Petitioner must explain how
`the proposed combinations of prior art would have rendered the challenged
`claims unpatentable. At this final stage, we determine whether a
`preponderance of the evidence of record shows that the challenged claims
`would have been obvious over the proposed combinations of prior art.
`We analyze the instituted grounds of unpatentability in accordance
`with the above-stated principles.
`
`Level of Ordinary Skill in the Art
`
`In determining whether an invention would have been obvious at the
`time it was made, we consider the level of ordinary skill in the pertinent art
`at the time of the invention (Graham, 383 U.S. at 17). “The importance of
`resolving the level of ordinary skill in the art lies in the necessity of
`maintaining objectivity in the obviousness inquiry” (Ryko Mfg. Co. v.
`Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991)). The person of ordinary
`skill in the art is a hypothetical person who is presumed to have known the
`relevant art at the time of the invention (In re GPAC, Inc., 57 F.3d 1573,
`1579 (Fed. Cir. 1995)). The level of ordinary skill in the art may be
`reflected by the prior art of record (Okajima v. Bourdeau, 261 F.3d 1350,
`1355 (Fed. Cir. 2001)). Factors that may be considered in determining the
`level of ordinary skill in the art include, but are not limited to, the types of
`problems encountered in the art, the sophistication of the technology, and
`educational level of active workers in the field (GPAC, 57 F.3d at 1579). In
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`a given case, one or more factors may predominate (id.). Generally, it is
`easier to establish obviousness under a higher level of ordinary skill in the
`art (Innovention Toys, LLC v. MGA Entm’t, Inc., 637 F.3d 1314, 1323 (Fed.
`Cir. 2011) (“A less sophisticated level of skill generally favors a
`determination of nonobviousness . . . while a higher level of skill favors the
`reverse.”)).
`The level of skill in the art is a factual determination that provides a
`primary guarantee of objectivity in an obviousness analysis (Al-Site Corp. v.
`VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999) (citing Graham, 383
`U.S. at 17–18; Ryko Mfg. Co. at 718)).
`Petitioner asserts that a person of ordinary skill in the art at the time of
`the invention
`would have been [1] a person with a bachelor’s degree in
`mechanical engineering, electrical engineering, computer
`science, or a similar field with at least two years of experience in
`motion tracking, motion analysis, inertial sensing, or signal
`analysis, or [2] a person with a master’s degree in mechanical
`engineering, electrical engineering, computer science, or a
`similar field with a specialization in motion tracking, motion
`analysis, inertial sensing, or signal analysis
`or “[a] person with less education but more relevant practical
`experience. . . .” (Pet. 26–27 (citing Ex. 1005 ¶ 45–47)). Patent Owner does
`not dispute the educational level or experiential aspects of Petitioner’s
`definition in its Response (see generally PO Resp.).
`We note that the assessment appears consistent with the level of
`ordinary skill in the art at the time of the invention as reflected in the prior
`art in the instant proceeding (see Okajima at 1355). Based on our review of
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`the ’212 Patent, the types of problems and solutions described in the ’212
`Patent and cited prior art, and the testimony of Dr. Choudhury and Dr.
`Michael Caloyannides, we adopt and apply Petitioner’s description of a
`skilled artisan as possessing (1) a bachelor’s degree in mechanical
`engineering, electrical engineering, computer science, or a similar field with
`at least two years of experience in motion tracking, motion analysis, inertial
`sensing, or signal analysis, or (2) a master’s degree in mechanical
`engineering, electrical engineering, computer science, or a similar field with
`a specialization in motion tracking, motion analysis, inertial sensing, or
`signal analysis, is supported by the current record.
`
` Overview of the Asserted Prior Art
`
`1. Amano
`Amano is a patent entitled “Exercise Workout Support Device”
`(Amano, [54]). Amano is “suitable for use in a maximum oxygen uptake
`quantity estimating device, which enables the user to determine his own
`maximum oxygen uptake quantity easily” (Amano, 1:9–12). Amano’s
`system includes a pulse wave detector that detects the user’s pulse
`waveform; a body motion detector that detects body motion when the user is
`running; a recorder to record information relating to user’s stride, sex, and
`weight; and an exercise intensity calculator that calculates exercise intensity
`from an obtained pitch, user’s stride and body weight (id. at 7:6–7, 18–19,
`27–28, 29–31).
`
`The pulse wave detector is a sensor that detects the user’s pulse
`waveform that, because the heartbeat rate equals the pulse rate, is assumed
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`to be the heartbeat rate (id. at 7:13–14). The body motion detector obtains
`“[t]he pitch during running, i.e., the number of steps per unit time. . .” (id. at
`7:24–26). Amano describes when a user is running, “(1) an acceleration
`signal accompanying vertical motion, and (2) an acceleration signal
`accompanying the swinging motion of the arms are superimposed in the
`body motion signal at body motion detector 104” (id. at 11:19–23). The
`exercise intensity calculator calculates exercise intensity from the obtained
`pitch and the user’s stride and body weight (id. at 7:30–32). Exercise
`intensity may be calculated as distance run per unit time and the user’s body
`weight (id. at 7:33–35). “The distance run per unit time can be obtained by
`multiplying the [user’s] stride and pitch” (id. at 7:35–37).
`
`2. Kato
`Kato is a patent entitled “Method and Apparatus for Measuring the
`Amount of Exercise” (Kato, [54]). Kato is directed to “[a] method and
`apparatus for accurately measuring an amount of exercise taken by a walker
`in terms of a walking speed, the distance traveled[,] and the energy
`consumed” (id. at Abstract). Kato construes the term “walker” as including
`“literally a walking person,” “a jogger[,] and a runner,” and construes the
`terms “walking” or “walk” as including “its literal meaning,” “jogging[,] and
`running” (id. at 3:59–63). Kato teaches a detector 100 “designed to detect
`impacts made by the contacts of the foot of a walker with the ground, i.e.,
`the steps of a walker”; processing means 106 for processing data received
`from the detector with other data including walker information; and display
`means 120 for receiving the processed data from processing means 106 (id.
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`at 6:58–7:16, Fig. 3). Transmitter 104, attached to detector 100, allows
`detector 100 to communicate with wireless receiver 110 which is attached to
`processing means 106 (id. at 6:67–7:4, Fig. 3).
`
`3. Alleged Anticipation of Claims 2 and 5 over Amano
`Petitioner contends that claims 2 and 5 are anticipated by Amano (Pet.
`29–50) and are obvious over Amano (id. at 50–57). Petitioner provides
`supporting testimony from its expert, Dr. Choudhury (Ex. 1005).
`Specifically, Patent Owner asserts Amano does not disclose or render
`obvious “programmed to calculate a distance travelled by multiplying a
`number of steps counted by the step counter by a stride length,” as recited in
`claims 2 and 5 (P.O. Resp. 16–25). Further, with respect to the asserted
`obviousness ground, Patent Owner contends Petitioner has not established a
`motivation to “‘calculate a distance travelled by multiplying a number of
`steps counted by the step counter by a stride length,’ instead of the
`calculation actually described by Amano” (id. at 21–25).
`Analysis
`Petitioner asserts Amano teaches “multiplying the user’s ‘pitch’ (i.e.,
`number of steps per unit time) by the user’s stride length to determine a
`distance travelled by the user over a period of time” (Pet. 43 (citing Ex. 1005
`¶¶ 106–108)). Specifically, Petitioner contends Amano teaches detection of
`the pitch of running, where “pitch” is defined as “the number of steps per
`unit time” (id. at 43–44 (citing Amano, 7:24–26, 10:63–65, 12:12–15)).
`Petitioner then asserts Amano discloses “CPU 201 multiplies the pitch by
`‘the subject[‘s] stride which is stored in RAM 203 . . . to calculate the
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`distance run by the test subject per unit time” (id. at 44 (citing Amano,
`12:15–18)).
`Amano discloses obtaining a user’s “pitch during running, i.e., the
`number of steps per unit time (stride rate or “rate at which steps are
`counted”) from processing the user’s body motion (Amano, 7:24–26).
`Amano further discloses “the distance run per unit time can be obtained by
`multiplying the test subject[’]s stride and pitch” (id. at 7:34–36). According
`to Amano, the step count is determined through use of acceleration signals
`(id. at 11:19–40). “[T]he pitch of the running can . . . be detected as a result
`of . . . processing carried out by CPU 201 on the body motion signal from
`body motion detector 104 (id. at 11:50–62).
`Patent Owner contends, however, Amano discloses a system in which
`the user’s pitch—the number of steps per unit of time or the “stride rate,” as
`that term is used in the ’212 Patent—is sampled at time intervals and this
`sampling is used “to calculate the distance run by the test subject per unit of
`time” (PO Resp. 16–17 (citing Amano 12:4–21)). Thus, according to Patent
`Owner, Amano describes calculating the “[d]istance run per unit of time”
`which is “a measure of speed, not distance” and “at no point . . . disclose[s]
`calculating the actual distance traversed by the user” (id. at 17 (citing
`Amano, 12:17–21; Ex. 2001 ¶ 38)). Patent Owner further argues “even if
`these disclosures could be read to disclose a distance calculation, that
`calculation does not involve multiplying the number of steps ‘counted by the
`step counter by a stride length’ as required by the claims” (id. at 17).
` In its Reply, Petitioner explains “Amano teaches determining the
`pitch of a runner . . . by using FFT [(Fast Fourier Transform)] processing of
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`the body signal motion, and [ ] CPU 201 can be setup to execute calculations
`at specific time intervals” (Pet. Reply 6 (citing Amano, 12:4–7, 13:25–26)).
`According to Petitioner, Amano’s CPU 201 calculates the distance run by
`the test subject (id. at 6–7 (citing Amano, 12:15–18; Ex. 2001 ¶ 38)).
`Amano describes pitch detection operation, executed in step S9 of
`Figure 6 (Amano, 11:15–62, Fig. 6) and further describes “in step Sa2 [of
`Figurue 7], the body motion signal from body motion detector 104 is
`processed in the same way as in step S9, to detect the pitch of running”
`(Amano, 12:12–14, Fig. 7). Figure 7, reproduced below, illustrates a flow
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`chart showing the processing for calculation display in a first embodiment
`(Amano, 4:13–15):
`
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`Figure 7 describes steps Sa1 through Sa11 for calculation display
`processing which includes pitch detection step Sa2. To determine pitch in
`step Sa2 of Figure 7 of Amano, FFT (Fast Fourier Transform) processing is
`used:
`
`When the test subject is running, then it may be considered that (1) an
`acceleration signal accompanying vertical motion, and (2) an
`acceleration signal accompanying the swinging motion of the arms are
`superimposed in the body motion signal at body motion detector 104
`
`
`(Amano, 11:19–23). Amano further explains, components of the
`acceleration signal are detected and the period of the acceleration signal
`accompanying body motion is identified (id. at 11:24–36). Amano describes
`“the acceleration signal accompanying the arm swing is synchronized with
`the acceleration signal accompanying the vertical motion.” (id. at 11:36–40).
`Amano then processes the first order harmonic wave component (vertical
`motion) and the second order harmonic wave component (arm swinging
`motion) (id. at 11:41–52) to determine pitch:
`it is typically the case in running that the acceleration accompanying
`the arm swinging motion is greater than the acceleration
`accompanying the vertical movement. Thus, the second order
`harmonic wave from the arm swinging motion is characteristically
`expressed in the body motion signal. Accordingly, the pitch of the
`running can, for example, be detected as a result of the [ ] processing
`carried out by CPU 201 on the body motion signal from body motion
`detector 104
`
`(id. at 11:52–55 (emphasis added)). Notably, Amano states the pitch is
`detected as a result of processing of the body motion signal. Amano further
`explains:
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`Namely, first, CPU 201 carries out FFT processing of the body
`motion signal from body motion detector 104. Second, the harmonic
`wave component having the largest pitch is defined as the second
`order harmonic wave component, and the peak frequency thereof is
`detected. Third, the aforementioned peak frequency is determined,
`and multiplied by ½, to obtain the pitch
`
`
`(Amano, 11:56–62). Amano therefore, determines the pitch through use of
`FFT processing of the body motion signal and in particular, by identifying
`the peak frequency of the second order harmonic wave component, and
`multiplying the determined peak frequency of the second order harmonic
`wave component by ½.
`Petitioner does not identify any disclosure in Amano that describes
`calculating pitch based on any distance. That pitch has a length/time
`measurement does not change the lack of disclosure of Amano of any
`counting of steps in determining the distance traveled. Indeed, Amano’s
`FFT processing merely determines when a step has occurred through
`identification of peak frequency of the second order harmonic wave
`component, to determine pitch; however, the FFT processing does not count
`steps to be used in further calculation.
`Petitioner further argues the next step, step Sa3, supports its
`contention that distance run is calculated (Pet. 44 (citing Amano 12:15–18)).
`Amano describes in step Sa3, exercise intensity is calculated –– “CPU 201
`multiplies the test subject[’s] stride which is stored in RAM 203 with the
`pitch detected on the immediately preceding step, to calculate the distance
`run by the test subject per unit time” (Amano, 12:15–18). Exercise intensity
`is measured in watts (id. at 12:20)
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`Thus, Petitioner contends that in Amano’s step Sa3, CPU 201 calculates the
`distance traveled by the test subject per unit time (Pet. 44 (citing Ex. 1005
`¶ 106)). Specifically, Petitioner contends the CPU 201 performs the
`following calculation:
`
` (cid:4666)(cid:1871)(cid:1872)(cid:1870)(cid:1861)(cid:1856)(cid:1857) (cid:1864)(cid:1857)(cid:1866)(cid:1859)(cid:1872)(cid:1860)(cid:4667) (cid:1876)(cid:4672)(cid:3041)(cid:3048)(cid:3040)(cid:3029)(cid:3032)(cid:3045) (cid:3042)(cid:3033) (cid:3046)(cid:3047)(cid:3032)(cid:3043)(cid:3046)
`(cid:3048)(cid:3041)(cid:3036)(cid:3047) (cid:3047)(cid:3036)(cid:3040)(cid:3032)
`
`(cid:4673)(cid:3404) (cid:3031)(cid:3036)(cid:3046)(cid:3047)(cid:3028)(cid:3041)(cid:3030)(cid:3032) (cid:3045)(cid:3048)(cid:3041)
`(cid:3048)(cid:3041)(cid:3036)(cid:3047) (cid:3047)(cid:3036)(cid:3040)(cid:3032)
`
`(id. (citing Ex. 1005 ¶ 106)).
`In response, Patent Owner asserts that Amano’s set Sa3 is used to
`“measure exercise intensity,” and particularly, pitch, not distance run (PO
`Resp. 18–19 (citing Ex. 2001 ¶¶ 40, 41; Amano, 12:4–8, 15–18)).
`Amano describes in step Sa3, CPU 201 calculates the distance run by
`the test subject per unit time, not the distance traveled (Amano, 12:15–18).
`Exercise intensity may then be calculated as “the distance run per unit time
`and the test subject’s body weight” (id. at 7:33–35; 12:18–21). Thus,
`distance run is not being calculated. As noted by Patent Owner, the
`calculation in step Sa3 is multiplying the test subject’s stride with “the pitch
`detected on the immediately preceding step” (PO Resp. 18 (quoting Ex.
`1002, 12:15–18)). Whether the pitch is that determined in the immediately
`preceding step, step Sa2, or the runner’s immediately preceding step, Amano
`describes determining pitch, but does not include any calculation of distance
`traveled as recited by claims 2 and 5.
`Petitioner acknowledges that Amano’s teaching of the pitch is
`determined by use of the FFT processing (Tr. 15:17–16:13). Petitioner,
`however, argues in determining the pitch, Amano describes that the distance
`run is determined over 30 seconds (Pet. Resp. 8; Tr. 21:12–16). As noted by
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`Patent Owner, however, Figure 7’s annotation states the steps are
`“EXECUTED EVERY 30S AFTER PERMISSION” (PO Resp. 19–20
`(Amano, Fig. 7)). Thus, the steps are executed every 30 seconds. The
`accompanying description of Figure 7 does not indicate the unit time used in
`the pitch detection step. Rather, it merely describes that CPU 201 “gives
`permission to execute the calcul