Trials@uspto.gov Paper No. 7
`Tel: 571-272-7822
`Entered: May 21, 2018
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`FITBIT, INC.
`Petitioner,
`
`v.
`
`SMART WEARABLE TECHNOLOGIES INC.,
`Patent Owner.
`_______________
`
`Case IPR2018-00252
`Patent 6,997,882 B1
`_______________
`
`
`Before PATRICK R. SCANLON, ZHENYU YANG, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`YANG, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`Tel: 571-272-7822
`Entered: May 21, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`FITBIT, INC.
`Petitioner,
`
`v.
`
`SMART WEARABLE TECHNOLOGIES INC.,
`Patent Owner.
`_______________
`
`Case IPR2018-00252
`Patent 6,997,882 B1
`_______________
`
`
`Before PATRICK R. SCANLON, ZHENYU YANG, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`YANG, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`
`IPR2018-00252
`Patent 6,997,882 B1
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`INTRODUCTION
`Fitbit, Inc. (“Petitioner”) filed a Petition (Paper 2, “Pet.”), requesting
`an inter partes review of claims 8–10 of U.S. Patent No. 6,997,882 B1
`(Ex. 1001, “the ’882 patent”). Smart Wearable Technologies Inc. (“Patent
`Owner”) filed a Preliminary Response to the Petition. Paper 6 (“Prelim.
`Resp.”).
`For the reasons provided below, we determine Petitioner has satisfied
`the threshold requirement set forth in 35 U.S.C. § 314(a). Because
`Petitioner has established a reasonable likelihood that it would prevail in
`showing the unpatentability of at least one claim, we institute an inter partes
`review of the challenged claims.
`Related Proceedings
`According to the parties, the ’882 patent is the subject of numerous
`district court cases, including Smart Wearable Technologies Inc. v. Fitbit,
`Inc., Case No. 3:17-cv-05068 (N.D. Cal.). Pet. 76–78; Paper 4, 2–3.
`The ’882 patent is also the subject of a petition for an inter partes
`review filed by Microsoft Corporation. See IPR2017-01325, Paper 1.
`Because the parties settled shortly after that petition was filed, we terminated
`that case without deciding whether institution was warranted. Microsoft
`Corporation v. Smart Wearable Technologies Inc., IPR2017-01325 (PTAB
`October 2, 2017) (Paper 9).
`The ’882 patent is further the subject of a petition for an inter partes
`review filed by TomTom, Inc. and TomTom International, B.V. See
`IPR2017-01826, Paper 1. There, after we instituted a review to determine
`the patentability of claim 8 (id., Paper 12), the parties settled and we
`terminated the proceeding (id., Paper 15).
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`The ’882 Patent
`The ’882 patent relates to “devices and means for obtaining
`information related to the motion, position, and orientation of a subject in
`three-dimensional space, in combination with information indicative of the
`subject’s physiological status.” Ex. 1001, 3:15–20.
`According to the ’882 patent,
`The most widely accepted system of describing the movement of
`a subject in three-dimensional space is to describe the motion
`with respect to three mutually orthogonal axes—x, y, and z,
`referred to as Cartesian axes. For each of the three axes, it is
`possible for the subject to undergo two types of movement:
`1) along the axis (translational movement), or 2) about or around
`the axis (rotational movement). Given two types of movement
`occurring with respect to three axes, it will be appreciated that in
`order to fully describe the movement of a subject in three-
`dimensional space, one must simultaneously consider the motion
`in all “six degrees of freedom” (6-DOF), in the parlance of the
`art.
`Id. at 1:45–56; see also id. at 8:5–27 (explaining the three planes of a
`Cartesian reference-frame and the two types of movement with respect to
`each of the three axes). The ’882 patent discloses that 6-DOF information is
`measured using accelerometers. Id. at 1:61–63.
`The ’882 patent lists “[n]umerous types” of prior-art accelerometers
`(id. at 1:64–2:5), and acknowledges that “[t]he technology for acquiring
`6-DOF data with respect to rigid bodies [wa]s employed in a variety of
`fields” (id. at 2:17–36). According to the ’882 patent, in physiology and
`medicine, 1-DOF, 2-DOF, 3-DOF, and 4-DOF, accelerometer modules were
`available. Id. at 2:42–56.
`The ’882 patent also acknowledges that a field of prior art “far too
`large to inventory” taught how to use sensors to “collect physiological data,
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`process the data, and transmit them to a monitoring device.” Id. at 3:22–37.
`According to the ’882 patent, prior art taught combining physiological
`monitoring systems with accelerometers to enable the simultaneous
`monitoring of a subject’s physiological status and his/her movements,
`orientation, and position in three-dimensional space. Id. at 3:40–46,
`3:51–56.
`The ’882 patent, however, states that, before the ’882 patent, “the
`advantages of 6-DOF accelerometry ha[d] not been extended to subject-
`monitoring.” Id. at 2:40–42. According to the ’882 patent, this is due to
`“substantial technological hurdles to the application of 6-DOF techniques to
`subject-monitoring,” such as the requirement of “considerable additional
`computational effort” to “process[] large amounts of information very
`quickly.” Id. at 4:45–5:6. The ’882 patent purportedly overcomes those
`problems and “exploits and improves upon existing accelerometry
`technology as a means of enhancing subject-monitoring by obtaining and
`utilizing 6-DOF data.” Id. at 2:37–39.
`The Challenged Claim
`Claim 8, the only independent claim challenged, with the Certificate
`of Correction incorporated, is reproduced below:
`8. A method of monitoring a subject during a monitoring
`period, comprising the steps of:
`(a) attaching at least one accelerometer module to at least one
`body-segment of the subject;
`(b) acquiring from the acceleration module attached at step
`(a) acceleration signals representing the accelerations of the
`body-segment relative to each of the x, y, and z-axes of an
`anatomical reference frame;
`(c) processing the acceleration signals acquired at step (b) to
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`obtain six degrees of freedom (6-DOF) body-segment movement
`information descriptive of the movements of the body segment
`with respect to each of the x, y, and z-axes of an inertial
`reference-frame;
`(d) acquiring at least one type of physiological data regarding
`the subject;
`(e) processing the physiological data acquired at step (d) to
`obtain physiological information regarding the subject;
`(f) synchronizing the 6-DOF body-segment movement
`information obtained at step (c) with
`the physiological
`information obtained at step (e) to obtain synchronized 6-DOF
`body-segment movement
`information and physiological
`information; and,
`(g) displaying said synchronized 6-DOF body-segment
`movement information and physiological information obtained
`at step (f) in at least one format comprehensible to humans.
`Asserted Ground of Unpatentability
`Petitioner presents a single ground of unpatentability, asserting that
`claims 8–10 would have been obvious over the combination of Ng1 and
`Hutchings.2
`In support of its argument, Petitioner relies on the Declaration of
`Dr. Joseph Paradiso (Ex. 1003).
`
`
`1 Ng et al., Sensing and Documentation of Body Position During
`Ambulatory ECG Monitoring, COMPUTERS IN CARDIOLOGY 2000, 27:77–80
`(Ex. 1004).
`2 Hutchings et al., U.S. Patent No. 6,122,960, issued Sept. 26, 2000
`(Ex. 1005).
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`ANALYSIS
`Claim Construction
`In an inter partes review, the Board interprets a claim term in an
`unexpired patent according to its broadest reasonable construction in light of
`the specification of the patent in which it appears. 37 C.F.R. § 42.100(b);
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Under
`that standard, and absent any special definitions, we assign claim terms their
`ordinary and customary meaning, as would be understood by one of ordinary
`skill in the art at the time of the invention, in the context of the entire patent
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). Any special definitions for claim terms must be set forth with
`reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994).
`Petitioner proposes the following claim constructions:
`Claim term
`Proposed construction
`“reference-frame”
`a set of coordinate axes in relation to
`which measurements can be made
`a reference-frame that maintains
`orientation with respect to a body-
`segment
`a reference-frame that maintains
`orientation with respect to the earth
`
`“anatomical reference frame”
`
`“inertial reference frame”
`
`Pet. 20–24. In support, Petitioner relies on the specification of the ’882
`patent and the Declaration of Dr. Paradiso. Id. Patent Owner “elects not to
`offer a proposed construction,” arguing that “the ordinary and customary
`meaning applies to all the terms.” See Prelim. Resp. 6–7.
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`At this stage of the proceeding, we are persuaded by Petitioner’s
`arguments. In addition, Petitioner’s proposed constructions are consistent
`with our previous constructions of the same terms. See IPR2017-01826,
`Paper 12, 6. We, therefore, adopt Petitioner’s proposed constructions for
`these terms.
`Petitioner also proposes that we construe the term
`“synchronizing”/“synchronized” to mean “correlating/correlated based on
`time.” Pet. 18–20. Petitioner refers to the ’882 patent for stating that one
`objective of the alleged invention is to “integrat[e] movement information
`with the subject’s physiological data over the some Δt [i.e., “change in
`time”], for after-the-fact analysis and/or diagnostic procedures.” Id. at 18
`(quoting Ex. 1001 at 5:45–49) (internal alterations by Petitioner). Petitioner
`also directs our attention to the ’882 patent where it explains:
`The present invention . . . provides a device and methodology for
`collecting and analyzing 6-DOF data relevant to the subject’s
`acceleration, velocity, position, and orientation. In addition, it
`provides a device and methodology for combining 6-DOF data
`with physiological data indicative of the subject’s physiological
`status. When such activity and physiological data are combined
`and synchronized, a large amount of very useful information
`about the subject can be obtained. For example, information
`about whether some aspect of the subject’s physiology has
`caused a change in the subject’s position, such as a hypotensive
`event causing a fall. Or, conversely, information about whether
`and to what extent the subject’s movements have altered his
`physiology, such as the effect of exercise on heart rate. These
`are just two of the many ways movement and physiological
`information can be synchronized in order to monitor the
`physical and physiological activity of subjects.
`Id. at 18–19 (quoting Ex. 1001 at 3:64–4:15) (emphasis added by Petitioner).
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`Petitioner argues that the alleged invention of the ’882 patent seeks to
`find causal relationships through the comparison of movement data and
`physiological data with reference to time. Id. at 19. According to Petitioner,
`the causal relationship “would not be apparent by considering either piece of
`data individually or by comparing the two pieces of data without correlation
`based on time.” Id. (citing Ex. 1003 ¶ 77).
`Patent Owner, without explicitly proposing any construction for the
`term, asserts that “[t]his language [i.e., synchronizing/synchronized] is
`indicative of there being some type of transformation or combining of the
`two sets of input data to obtain the resulting synchronized information.”
`Prelim. Resp. 18. Patent Owner does not point to any persuasive evidence
`or otherwise explain why “some type of transformation” is required for the
`synchronization. Because this is mere attorney argument unsupported by
`evidence, we give it little weight.
`At this stage of the proceeding, we are persuaded by Petitioner’s
`arguments. In addition, the proposed construction of
`“synchronizing”/“synchronized” is consistent with our previous construction
`of the term “synchronize” in IPR2017-01826. See IPR2017-01826, Paper
`12, 6–8. We, therefore, adopt Petitioner’s proposed construction for the
`term for the purposes of this Decision.
`Claim terms need only be construed to the extent necessary to resolve
`the controversy. Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361
`(Fed. Cir. 2011). On this record and for purposes of this Decision, we see no
`need to expressly construe any other claim terms.
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`Ng
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`
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`Disclosures of Asserted Prior Art
`
`Ng teaches a system that can detect body position and record it
`continuously along with electrocardiography (“ECG”) signals. Ex. 1004, 77.
`According to Ng, “[t]he ability to monitor body position and physical
`activity during ambulatory recordings of ECGs can aid in clinical diagnosis
`in assessing both physiologic changes and motion artifacts.” Id.
`In Ng, “[p]osition sensing is accomplished with two sensor units: one
`strapped to the chest and one strapped to the left thigh. Each unit contains
`an Analog Devices ADXL202 dual axis accelerometer.” Id. “To record the
`ECG, a total of five electrodes are placed in Lead II and Lead III
`configuration. Each electrode is connected to the ECG/Body Position
`Recorder via standard Holter leads.” Id. at 78.
`Ng concludes that “[t]he recordings show that the assessment of body
`position and motion are highly reliable (90% accuracy) therefore allowing
`correlation with ECG signals.” Id. at 77.
`Hutchings
`Hutchings teaches “a device for measuring the performance of people
`or objects [that] utilizes accelerometers and rotational sensors to measure the
`speed, distance traveled, and height ascended or descended.” Ex. 1005,
`4:7–10. The device may be attached to the sole of a shoe or to any part of
`the body or object. Id. at 4:10–17. As an example, Hutchings teaches a
`measuring device that includes “linear accelerometers; rotational sensors; a
`microprocessor to calculate the distance and height of each step . . . and a
`radio transmitter . . . .” Id. at 7:30–33. Hutchings also teaches that the
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`information signals may be transmitted to the user’s watch or other means
`for display. Id. at 4:18–19.
`Application of Asserted Prior Art
`Petitioner contends that claims 8–10 would have been obvious over
`the combination of Ng and Hutchings. Pet. 43–76. Based on the current
`record, we determine Petitioner has established a reasonable likelihood that
`it would prevail on this assertion.
`Petitioner provides detailed analysis, matching the preamble, steps (a),
`(d), and (e) with the teachings of Ng.3 Pet. 51–53, 67–68. For steps (b) and
`(c), Petitioner argues that Ng in view of Hutchings teaches these limitations.4
`Id. at 55–57, 61–62. Patent Owner does not dispute these contentions.
`Based on the current record, we are persuaded that the combination of Ng
`and Hutchings teaches the preamble, steps (a), (b), (c), (d), and (e), as recited
`in claim 8.
`Petitioner also contends that Ng in view of Hutchings teaches or
`suggests steps (f) and (g). Id. at 69–73. In addition, Petitioner asserts that
`an ordinary artisan would have had a reason to combine the teachings of Ng
`and Hutchings. Id. at 43–50. Patent Owner disagrees. See Prelim. Resp.
`17–21.
`Steps (f) and (g)
`Step (f) of claim 8 recites “synchronizing the 6-DOF body-segment
`movement information obtained at step (c) with the physiological
`
`
`3 Petitioner also matches the preamble and step (a) with the teachings of
`Hutchings. Pet. 51–54.
`4 Petitioner also argues that Hutchings alone teaches these limitations. Pet.
`57–60, 62–67.
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`information obtained at step (e) to obtain synchronized 6-DOF body-
`segment movement information and physiological information.” Petitioner
`contends that Ng in view of Hutchings teaches step (f). Pet. 69–71.
`Petitioner relies on Hutchings for teaching the “6-DOF body-segment
`movement information” (id. at 71), which Patent Owner does not dispute,
`but otherwise relies on Ng for teaching the “synchronizing” aspect of this
`limitation (id. at 69–71).
`Petitioner argues that the system in Ng “acquires 2-DOF acceleration
`data and ECG data in a synchronized manner, as it can ‘simultaneously
`record body position information along with two channels of ECG.’” Id. at
`69 (citing Ex. 1004, Abstract) (emphasis added by Petitioner). According to
`Petitioner, in Ng, analyzing the data allows “observations of a subject’s heart
`rate with respect to body position.” Id. (citing Ex. 1004, § 4). Petitioner
`relies on Figure 5 as showing synchronizing movement information
`(acceleration) with physiological information (ECG). Id. at 70–71. Figure 5
`of Ng is reproduced below.
`
`
`Figure 5 shows “Body position and heart rate vs. time.” Ex. 1004, 79.
`As Petitioner correctly points out, it shows “on the top, a time plot of body
`position information derived from the acceleration data and, on the bottom, a
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`time plot of heart rate of the subject determined based on the ECG data.”
`Pet. 70 (citing Ex. 1004, § 4, Fig. 5). Petitioner argues that “[a]s indicated
`by the horizontal axes of the two plots, they correspond to the same time
`period.” Id. (citing Ex. 1004, Fig. 5). According to Petitioner, “[t]he plots
`are juxtaposed vertically so as to show that body position information is
`synchronized with the physiological information (i.e., heart rate), such that a
`vertical line through the plots would highlight the subject’s body position
`and heart rate at a particular time point.” Id. at 70–71 (citing Ex. 1003
`¶ 158; Ex. 1004, Fig. 5).
`Step (g) of claim 8 recites “displaying said synchronized 6-DOF
`body-segment movement information and physiological information
`obtained at step (f) in at least one format comprehensible to humans.”
`Petitioner again relies on Figure 5 of Ng, arguing that it teaches displaying,
`on a single display, body-position information and heart rate of a subject at a
`particular chosen point in time. Pet. 72 (citing Ex. 1004, Fig. 5, § 4;
`Ex. 1003 ¶ 160). In addition, Petitioner argues that Hutchings also teaches
`the display of sensor-gathered data for monitoring and analysis purposes. Id.
`(citing Ex. 1005, 7:36–43, 25:24–26, 25:33–35, 26:51–54).
`Patent Owner disputes that the combination of Ng and Hutchings
`teaches steps (f) and (g). Prelim. Resp. 17–21. Patent Owner contends that
`“[t]here is no connection between the two plots [of Figure 5 in Ng] other
`than the underlying data being collected during the same test period.” Id. at
`20. According to Patent Owner, Ng does nothing to transform the disparate
`sets of information. Id. We are not persuaded. As explained above, we
`construe the term “synchronize” to mean “correlate based on time,” and
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`reject Patent Owner’s unsupported attorney argument to require “some type
`of transformation.” See supra at 7–8.
`Patent Owner also argues that “the purported means of
`synchronization, i.e. placement of a ‘vertical line’ spanning the two plots, is
`not accommodated by the device disclosed in Ng but, rather, is manually
`performed by an observer, if at all.” Prelim. Resp. 20. We are not
`persuaded by this argument either. First, we disagree with Patent Owner’s
`characterization of Petitioner’s position. Petitioner in fact argues “[t]he plots
`are juxtaposed vertically so as to show that body position information is
`synchronized with the physiological information (i.e., heart rate), such that a
`vertical line through the plots would highlight the subject’s body position
`and heart rate at a particular time point.” Pet. 70–71 (citing Ex. 1003 ¶ 158;
`Ex. 1004, Fig. 5) (emphasis added). We do not interpret this as equating
`drawing a vertical line through the plots with synchronizing. Moreover,
`Patent Owner does not point to, and we do not find, any language in the
`challenged claim 8 that precludes performing the synchronizing step
`manually.
`Ng states that the purpose of the project is to “observe correlations
`between ECG characteristics and body position.” Ex. 1004, 77. And Ng
`concludes that its system is “highly reliable” and allows correlation of body
`position with ECG signals. Id. Indeed, as Dr. Paradiso points out, in Ng,
`“[e]xpected heart rate responses to body position changes can be seen in
`Figure 5,” which shows “significant increase in heart rate during walking
`and [] temporary increase during the transition from supine to standing.”
`Ex. 1003 ¶ 158 (citing Ex. 1004, § 4) (alterations by Petitioner). Thus, we
`agree with Petitioner that “[t]he fact that Ng is capable of correlating the
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`subject’s body position with heart rate is further evidence that Ng correlated
`body-segment movement information and physiological information based
`upon time.” Id.; Pet. 71.
`Patent Owner further contends that “even if manual overlay of a
`‘vertical line’ by an observer could be sufficient to demonstrate
`synchronization . . . doing so would be outside of the language of claim 8
`because it would require the ‘synchronization’ step to be performed after the
`‘displaying’ step.” Prelim. Resp. 20–21. As explained above, we do not
`interpret Petitioner’s position as equating drawing a vertical line through the
`plots with synchronizing. Moreover, Petitioner also relies on Hutchings for
`teaching the displaying step. Pet. 72 (citing Ex. 1005, 7:36–43, 25:24–26,
`25:33–35, 26:51–54). We find Petitioner’s argument persuasive. See, e.g.,
`Ex. 1005, 7:42–43 (“The processed information may be selectively
`displayed on display 18.”).
`In sum, based on the current record, we find there is a reasonable
`likelihood that Petitioner would prevail on showing that the asserted prior art
`teaches or suggests all the limitations, including steps (f) and (g), of claim 8.
`Reason to Combine Prior Art Teachings
`Petitioner further asserts that an ordinary artisan would have had a
`reason to combine the teachings of Ng and Hutchings. Pet. 43–50.
`Petitioner argues that both Ng and Hutchings are in the same field of art as
`the invention. Id. at 44–46. In addition, Petitioner contends Ng suggests
`combining its subject-monitoring system with an improved measurement
`system like Hutchings (id. at 46–48), and Hutchings suggests substituting
`Ng’s accelerometer units with its measurement system to obtain a
`predictable improved result (id. at 48–49). According to Petitioner,
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`combining Hutchings and Ng using known techniques to improve a similar
`method yields a predictable result. Id. at 49–50. Thus, Petitioner argues an
`ordinary artisan would have had a reason to combine the teachings of Ng
`and Hutchings. Id. at 43. Patent Owner disagrees. See Prelim. Resp. 21–26.
`We find Petitioner’s argument more persuasive.
`Patent Owner argues that “Ng and Hutchings are not within the same
`field.” Prelim. Resp. 22–23. We are not persuaded. The correct inquiry in
`an obviousness analysis, however, is whether the prior art is analogous art to
`the claimed invention. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
`2004). Moreover, we disagree that Ng and Hutchings are not in the same
`field because, as discussed below, we are persuaded that these references are
`in the same field as the invention.
`As Petitioner correctly points out, the ’882 patent characterizes the
`prior art as “subject-monitoring systems.” Pet. 44 (citing Ex. 1001, 1:26–
`33). According to the ’882 patent, “[t]wo aspects of subject-monitoring
`systems are of particular interest with respect to the present invention:
`accelerometry and monitoring physiological status.” Ex. 1001, 1:31–33; Pet.
`44 (citing Ex. 1001, 1:35–44, 1:64–2:5, 2:57–60, 3:22–34).
`Ng teaches detecting body position and motion using accelerometry.
`Ex. 1004, 77–78. It also teaches monitoring heart rate—one of the
`physiological parameters specified in the ’882 patent (Ex. 1001, 3:31–34)—
`by using ECG technology. Id. at 78. Similarly, Hutchings teaches “a device
`for measuring the performance of people or objects [that] utilizes
`accelerometers and rotational sensors to measure the speed, distance
`traveled, and height ascended or descended.” Ex. 1005, 4:7–10. Thus, we
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`agree with Petitioner that both Ng and Hutchings are in the same field as the
`’882 patent. See Pet. 45–46.
`Patent Owner also contends that Petitioner provides no rational
`motivation to implement Ng with the sensors of Hutchings. Prelim. Resp.
`24. According to Patent Owner, Petitioner’s position would require
`replacing the accelerometers of Ng with those of Hutchings, replacing the
`data storage component of Ng with a new system to accommodate additional
`data, and creating entirely new software to analyze the data. Id. These
`arguments do not demonstrate the absence of a reason to combine because
`“[t]he test for obviousness is not whether the features of a secondary
`reference may be bodily incorporated into the structure of the primary
`reference. . . . Rather, the test is what the combined teachings of those
`references would have suggested to those of ordinary skill in the art.” In re
`Keller, 642 F.2d 413, 425 (C.C.P.A. 1981).
`Here, Ng notes that, despite the overall 90% accuracy of its system,
`“[t]he performance of the position sensing system on patients is noticeably
`less than on the healthy subjects.” Ex. 1004, 80. It suggests that “with
`adjustments to the equipment and detection algorithms[, the system] has the
`potential to be reliable in patients in hospitals as well.” Id. Petitioner argues
`that “Ng therefore discloses a motivation to improve the sensitivity and
`accuracy of its ECG/Body Position Recording System in terms of its ability
`to monitor body positions and movements.” Pet. 47.
`According to Petitioner, because Ng uses dual axis accelerometer and,
`thus, can only acquire 2-DOF acceleration data, an ordinary artisan “would
`have recognized that one important limitation to Ng’s sensing system is the
`limited dimensionality of its accelerometers.” Id. (citing Ex. 1003 ¶ 126).
`
`16
`
`
`
`
`
`
`
`IPR2018-00252
`Patent 6,997,882 B1
`
`Such an artisan, Petitioner argues, “would have been motivated to combine
`the teachings of Ng with that of Hutchings,” which teaches acquiring 6-DOF
`motion monitoring. Id. at 48–49 (citing Ex. 1003 ¶¶ 125–126). Petitioner
`further contends that using the techniques in Hutchings to improve the
`device in Ng would have yielded predictable results. Id. at 49–50 (citing
`Ex. 1003 ¶¶ 129–131). Based on the current record, we find Petitioner’s
`arguments persuasive.
`In sum, we find Petitioner has established a reasonable likelihood that
`an ordinary artisan would have had a reason to combine the teachings of Ng
`and Hutchings, and that the combination of the prior art teaches or suggests
`each limitation of claim 8.
`
`CONCLUSION
`On April 24, 2018, the Supreme Court held that a final written
`decision under 35 U.S.C. § 318(a) must decide the patentability of all claims
`challenged in the petition. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018).
`Based on the current record, we find the information presented in the
`Petition and accompanying evidence establishes a reasonable likelihood that
`Petitioner would prevail in showing the unpatentability of at least one claim
`of the ’882 patent. Petitioner has offered sufficient evidence to institute an
`inter partes review.
`At this stage of the proceeding, the Board has not made a final
`determination as to the construction of any claim term or the patentability of
`any challenged claim. Thus, our view with regard to any conclusion reached
`in the foregoing could change upon completion of the current record.
`
`
`17
`
`
`
`
`
`IPR2018-00252
`Patent 6,997,882 B1
`
`
`
`
`ORDER
`
`Accordingly, it is
`ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review is
`hereby instituted to determine whether claims 8–10 of the ’882 patent would
`have been obvious over the combination of Ng and Hutchings;
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(a), inter
`partes review of the ’882 patent is hereby instituted commencing on the
`entry date of this Order, and pursuant to 35 U.S.C. § 314(c) and 37 C.F.R.
`§ 42.4, notice is hereby given of the institution of a trial.
`
`
`
`PETITIONER:
`Harper Batts
`Jeremy Taylor
`Baker Botts L.L.P.
`harper.batts@bakerbotts.com
`jeremy.taylor@bakerbotts.com
`
`PATENT OWNER:
`Richard A. Wojcio, Jr.
`Friedman, Suder & Cooke
`wojcio@fsclaw.com
`
`
`18
`
`
`
`
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