Trials@uspto.gov
`571-272-7822
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`
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`Paper No. 10
`Entered: February 1, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`____________
`
`Case IPR2018-01027
`Patent 8,712,723 B1
`____________
`
`
`
`
`Before SALLY C. MEDLEY, MIRIAM L. QUINN, and
`SEAN P. O’HANLON, Administrative Patent Judges.
`
`O’HANLON, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`35 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`

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`IPR2018-01027
`Patent 8,712,723 B1
`
`
`I. INTRODUCTION
`On May 4, 2018, Apple Inc. (“Petitioner”) filed a Petition (Paper 2,
`
`“Pet.”) for inter partes review of claims 4 and 19 of U.S. Patent No.
`8,712,723 (Ex. 1001, “the ’723 patent”). On August 21, 2018, Uniloc
`Luxembourg S.A., a predecessor in interest of Uniloc 2017 LLC (“Patent
`Owner”), filed a Preliminary Response. Paper 7 (“Prelim. Resp.”). In our
`Decision dated October 18, 2018 (Paper 8, “Decision” or “Dec.”), we
`declined to institute inter partes review. Dec. 23. On November 19, 2018,
`Petitioner filed a Request for Rehearing (Paper 9, “Request” or “Req.
`Reh’g”). For the reasons set forth below, Petitioner’s Request is denied.
`
`II. STANDARD OF REVIEW
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition,
`
`a panel will review the decision for an abuse of discretion.” A request for
`rehearing is not an opportunity merely to disagree with the panel’s
`assessment of the arguments or weighing of the evidence, or to present new
`arguments or evidence. “The burden of showing a decision should be
`modified lies with the party challenging the decision.” 37 C.F.R. § 42.71(d).
`Further, “[t]he request must specifically identify all matters the party
`believes the Board misapprehended or overlooked, and the place where each
`matter was previously addressed in a motion, an opposition, or a reply.” Id.
`
`III. ANALYSIS
`In its Request, Petitioner argues that the Board overlooked or
`
`misapprehended several items. See Req. Reh’g 3–14. We address each of
`these items separately below.
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`IPR2018-01027
`Patent 8,712,723 B1
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`
`A. Application of Harris
`As set forth in the Decision, we determined that Petitioner’s challenge
`
`failed to establish a reasonable likelihood that Petitioner would prevail in
`showing the unpatentability of claims 4 and 19 because, inter alia, we found
`that Harris does not support either (1) Petitioner’s arguments that Harris
`teaches the limitation recited in claim 5 (Exhibit 1011) or (2) Petitioner’s
`stated rationale for modifying Richardson (Exhibit 1007). See Dec. 15–17.
`
`Petitioner argues that “the Board misapprehended how the evidence
`within Harris is applicable to the combination of Fabio, Pasolini, and
`Richardson.” Req. Reh’g 3. Specifically, Petitioner argues that “[t]he
`contradiction perceived by [the] Board is predicated on the ‘current period’
`in Harris being analogous to the ‘stepping/sample period’ in Richardson.”
`Id. at 4. Petitioner argues that “[t]he ‘current period’ in Harris is not
`analogous to the ‘stepping/sample period’ in Richardson” because “[t]he
`term ‘stepping/sample period’ in Richardson reflects acceleration data
`associated with multiple footfalls stored in one of Richardson’s buffers at a
`given time.” Id.
`
`Not appreciating that Richardson’s “sample/stepping
`periods” contain data about multiple footfalls that are used to
`generate a moving average, led the Board to conclude
`incorrectly that “Petitioner’s stated rationale or the teachings of
`Harris” do not comport with “Petitioner’s contention that using
`data from only the current stepping period would ‘yield a
`smoother acceleration threshold.’”
`Id. at 5.
`
`We disagree with Petitioner’s contentions. Initially, we disagree with
`Petitioner’s improper attempt to broaden its assertions made in the Petition.
`Petitioner defined its “smaller sample size” as a “stepping period,” not a
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`IPR2018-01027
`Patent 8,712,723 B1
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`“sample period.” See Pet. 45 (“a smaller sample size (i.e., one stepping
`period)”). By common definition, a “stepping period” is the length of time
`required for one step to occur. See http://www.oed.com/view/Entry/140968
`(last visited January 22, 2019) (defining period as “Physics. The interval of
`time between successive occurrences of the same state or phase in an
`oscillatory or cyclic phenomenon (e.g. a mechanical vibration, an alternating
`current, or a variable star).”). Petitioner has not explained persuasively how
`a “stepping period,” as asserted in the Petition, is understood to be the same
`as a “sample period” that includes “multiple footfalls.”
`
`Turning to the Decision, in contradistinction to Petitioner’s
`contentions, we recognized that the data in Richardson’s buffers is acquired
`during and indicative of multiple footfalls. See Dec. 14–15 (reproducing and
`discussing Richardson’s Figure 13a). The inconsistency we noted was not in
`regard to the number of footfalls within Richardson’s buffer data; rather, it
`was in regard to the Petitioner’s assertions regarding the teaching of Harris.
`Petitioner relied on Harris to teach “that a moving average is often used in
`data analysis ‘to smooth the curve of a data series and make general trends
`more visible.’” Pet. 45 (quoting Ex. 1011, 243); Dec. 16. Harris explains
`that “[e]ach point on a moving average curve is generally calculated by
`averaging the value for the current period plus a fixed number of prior
`periods” and “the greater the number of intervals, the smoother the moving
`average curve.” Ex. 1011, 243 (emphases added); Dec. 17. Thus, Harris
`teaches that a greater number of data points used in the calculation of the
`moving average results in a smoother curve.
`
`Petitioner contradicts this teaching of Harris by reducing the number
`of data points used to calculate the moving average: “applying a moving
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`IPR2018-01027
`Patent 8,712,723 B1
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`average of accelerations with a smaller sample size (i.e., one stepping
`period), as disclosed in Richardson, would be beneficial to Pasolini in that it
`would yield a smoother acceleration threshold.” Pet. 45. We remain
`persuaded that Harris does not support Petitioner’s contention that it would
`have been obvious to use a smaller sample size to generate a smoother
`moving average.
`
`Accordingly, Petitioner’s assertions do not persuade us that we
`misapprehended the application of Harris to the combination of Fabio,
`Pasolini, and Richardson.
`
`B. Richardson’s Moving Average
`Petitioner contends that we “incorrectly concluded that ‘there is no
`
`explicit disclosure in Richardson that the moving average, or baseline, is
`generated based on data in only the current sample period.’” Req. Reh’g 6
`(quoting Dec. 18). Petitioner argues that “the ‘current sample period’ in
`Richardson is all the data in the buffer (which reflects multiple steps), and
`the explicit disclosure in Richardson indicates that the data in a single buffer
`is analyzed.” Id. (citing Ex. 1007, 28:34–36). Petitioner argues that “the
`first step in this analysis is computing the moving average for the data in the
`buffer.” Id. (citing Ex. 1007, 28:36–39).
`
`We agree that Richardson uses two buffers and that the data in one
`buffer is analyzed while data is input into the other buffer. See Dec. 14
`(citing Ex. 1007, 27:60–28:36). We also agree that the first step of
`Richardson’s analysis is to compute a moving average. See id. (citing Ex.
`1007, 28:36–39). We disagree, however, with Petitioner’s assertion that
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`IPR2018-01027
`Patent 8,712,723 B1
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`Richardson discloses, explicitly or otherwise, that the moving average is
`computed using only data in a single buffer.
`
`The portion of Richardson cited in the Decision and the Request is
`reproduced below:
`Two buffers are maintained to hold background scans. While
`one buffer, A or B is being filled with data, the data in the
`other, B or A, is being analyzed. The first step is to compute at
`each sample time a moving average of acceleration 168, which
`serves as a baseline for describing the acceleration 168
`waveform of a locomotor step.
`Ex. 1007, 28:33–39. As noted in the Decision, this is the sole description
`Richardson provides regarding its moving average calculation. See Dec. 18.
`Conspicuously absent from this description is an explicit statement, as
`asserted by Petitioner, that the moving average is calculated using only data
`from a single buffer. The implicit disclosure, as explained in the Decision,
`is to the contrary. As we noted, the baseline is illustrated in Richardson’s
`Figure 13a, which was reproduced at page 14 of the Decision. See id.
`As seen in Figure 13a, the baseline smoothing is substantially
`constant throughout the entire baseline curve, including at the
`initiation of the sample period at time 0.0. If, as asserted by
`Petitioner, the moving average begins anew at each sample
`period, one would expect the baseline curve to lag the
`acceleration curve at initiation, given that there would be no
`prior values to include in the averaging calculation. See Ex.
`1011, 243 (“the fewer the time intervals used in the averaging
`process, the more closely the moving average curve resembles
`the curve of the actual data”). As illustrated in Figure 13a,
`however, this is not the case. Moreover, we note that the
`smoothing of Richardson’s baseline curve appears to have a
`high level of smoothing, indicating the use of a greater number
`of intervals in the moving average. See id. (“the greater the
`number of intervals, the smoother the moving average curve”).
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`IPR2018-01027
`Patent 8,712,723 B1
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`Id.
`Neither Petitioner nor Petitioner’s declarant explain how, according to
`
`their proffered interpretation of Richardson, a baseline would be available to
`compare against the first several data points from a single buffer. If a
`moving average is “compute[d] at each sample time” (id. at 28:36–39
`(emphasis added)) and the moving average is based on previously analyzed
`data samples as noted by Petitioner (see, e.g., Req. Reh’g 5), there would be
`no prior samples by which to calculate a moving average for the first sample
`time in a buffer if, as asserted by Petitioner, only data from that buffer is
`used in the calculation. Indeed, there would be insufficient data for the next
`several sample times as well. Thus, Petitioner’s arguments about
`Richardson’s moving average calculation do not make sense. Only when
`analyzing data for the sample time corresponding to the number of data
`points needed to calculate a moving average would there be a meaningful
`moving average to use in determining the presence of a footfall.
`
`As noted in the Decision, Petitioner and Petitioner’s declarant present
`conclusory statements that do not explain the inconsistencies noted above.
`Nor do Petitioner’s contentions in the Request persuade us that we
`misapprehended the Petition’s or the declarant’s analyses of Richardson in
`combination with Fabio and Pasolini.
`
`C. Pasolini’s Lower Threshold
`1. Based on a Rolling Average of Accelerations
`Petitioner contends that we “misapprehended how Pasolini calculates
`
`its threshold values” in our determination that “Pasolini does not use an
`average of the acceleration data in its calculation of the threshold values.”
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`IPR2018-01027
`Patent 8,712,723 B1
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`Req. Reh’g 7 (quoting Dec. 20). According to Petitioner, because Pasolini’s
`reference threshold values (S+, S-) are calculated “as a function” of the
`envelope values (Env+, Env-), and the envelope values are calculated for
`each new acceleration datum (CalAcc), and the acceleration datum is
`calculated by subtracting the mean acceleration sample value (Accm) from
`the acceleration sample (Acc), “the threshold values (S+ and S-) are
`mathematically dependent on the mean (e.g., average) value of acceleration
`data.” Id. at 7–9. We disagree.
`
`As explained in the Decision, Pasolini (Exhibit 1005) subtracts the
`mean acceleration sample value from each acceleration sample so that “the
`d.c. component of said acceleration value (due substantially to the
`acceleration of gravity) is eliminated so as to determine the acceleration
`datum CalAcc[] with zero mean value.” Ex. 1005, 5:57–61 (emphasis
`added); Dec. 20. As also explained in the Decision, this centers the
`acceleration curve along the x axis. Dec. 20; compare Ex. 1005, Figs. 2, 5, 6
`(illustrating acceleration curves with the d.c. component removed as
`centered along the x axis), with Ex. 1007, Fig. 13a (illustrating an
`acceleration curve without the d.c. component removed as centered around 1
`G); see also Ex. 1007, 28:57–58 (stating that the “baseline . . . is usually
`around 1 G”). Centering the acceleration curve along the x axis “allows the
`positive and negative peaks to be compared via their absolute values.” Dec.
`20; see also Ex. 1005, 3:20–29 (discussing a comparison of the absolute
`values of the acceleration peaks).
`
`As explained in the Decision, “it is the distance from the average
`value to the peak that i[s] used to set the envelope values [in Pasolini], from
`which the thresholds are set. This distance would be the same regardless if
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`IPR2018-01027
`Patent 8,712,723 B1
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`the mean value is centered along the x axis (with the d.c. component
`removed) or elsewhere.” Dec. 21. Thus, the threshold values are not
`mathematically dependent on the mean acceleration value.
`
`We further explained in the Decision that Petitioner’s arguments are
`further unpersuasive because they are directed to the threshold values
`themselves, and claims 4 and 19 set forth how the lower threshold is
`adjusted. Dec. 21. As set forth in the Decision, even if we agreed that
`Pasolini’s acceleration datum is based on the mean value of the acceleration
`sample, the mean value has no material effect on the adjustment of the
`threshold because it is “subtracted from each acceleration datum—the datum
`used to establish the existing lower threshold and the datum used to set the
`updated lower threshold.” Id. Petitioner disagrees by setting forth a
`hypothetical scenario “where you subtract a small value as opposed to
`subtracting a large value, particularly where you are re-performing the
`subtraction repeatedly” in support of its contentions. Req. Reh’g 9.
`
`Petitioner’s hypothetical is not commensurate with how Pasolini
`discloses that its threshold value is adjusted. As explained in the Decision,
`Pasolini updates the positive and negative envelope values
`based on the peaks of the acceleration signal. Ex. 1005, 6:6–53.
`Specifically, regarding the negative envelope value, Pasolini
`compares each acceleration datum CalAcc (from which the d.c.
`component has been eliminated) to the existing value Env−,
`and, if CalAcc is less than Env−, the new value for Env− is set
`equal to CalAcc. Id. at 6:21–25. If CalAcc is greater than
`Env−, the new value for Env− is set equal to a proper fraction of
`the previous Env− value. Id. at 6:25–28. Once the new value of
`the negative envelope value is determined, the value of the
`negative reference threshold S− is set equal to a certain proper
`fraction of the negative envelope. Id. at 6:44–47. Thus, it is the
`distance from the average value to the peak that it used to set
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`IPR2018-01027
`Patent 8,712,723 B1
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`the envelope values, from which the thresholds are set. This
`distance would be the same regardless if the mean value is
`centered along the x axis (with the d.c. component removed) or
`elsewhere.
`Dec. 20–21. Thus, Pasolini sets the envelope values by comparing the
`current acceleration datum to the existing envelope value, from both of
`which the d.c. component/mean acceleration sample value has been
`removed. The mathematical expression of this comparison is:
`
`(A−x) − (B−x),
`where A is the measured acceleration datum, B is the previous acceleration
`datum used to set the current envelope value, and x is the d.c.
`component/mean acceleration sample value. Thus, as “the mean value of the
`acceleration sample is subtracted from each acceleration datum” used in the
`comparison, the mean value has “no material effect on the difference
`between successive acceleration datum measurements and, therefore, the
`adjustment of the lower threshold.” Dec. 21. Additionally, as described
`above, removing the d.c. component from each acceleration sample, by
`subtracting the mean acceleration sample value, shifts the acceleration curve
`downward so that it is centered along the x axis (that is, it has a zero mean
`value) rather than being centered at 1 G, but does not alter the distances from
`the average value to the peaks. The adjustment of the lower threshold,
`therefore, is not dependent on the mean acceleration value.
`
`Accordingly, Petitioner’s assertions do not persuade us that we
`misapprehended how Pasolini calculates its threshold values.
`
`2. Based on Sensor Orientation
`Petitioner contends that we “incorrectly concluded that ‘Petitioner has
`
`not demonstrated that Pasolini adjusts its lower threshold based on the
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`IPR2018-01027
`Patent 8,712,723 B1
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`orientation of the sensor.’” Req. Reh’g 11 (quoting Dec. 22). Petitioner’s
`contentions are premised on an interpretation that “the term ‘based on’ in the
`claim allows any type of relationship between the orientation of the inertial
`sensor and the adjustment of the lower threshold.” Id.
`
`We disagree with Petitioner’s interpretation of “based on” as used in
`the ’723 patent. Notably, Petitioner did not offer such an interpretation in
`the Petition. See Pet. 10–11. Thus, Petitioner appears to present an
`improper new argument in its Request. Moreover, Petitioner’s proposed
`interpretation is inconsistent with how the term is used in the ’723 patent.
`As set forth in the ’723 patent, “based on” is used to convey that the
`referenced criteria is actively considered rather than allowing for any passive
`relationship as suggested by Petitioner. For example, the ’723 patent sets
`forth that a threshold “based on” the orientation of the sensor requires active
`consideration of the sensor orientation in setting the threshold. Ex. 1001,
`13:24–36. This consideration may be in the form of using a variable
`threshold having a larger value when a sensor axis is closely aligned to
`gravity and progressively lower values as an axis most closely aligned with
`gravity is moved out of line with gravity, and implemented using a data
`structure, comparison to a virtual axis, or by performing trigonometric
`calculations. Id.
`
`Accordingly, Petitioner’s assertions do not persuade us that we
`misapprehended or overlooked Petitioner’s analysis of Pasolini.
`
`D. Discretion Under 35 U.S.C. §§ 314(a), 325(d)
`We stated in the Decision that, although we were declining to institute
`
`review based on the shortcomings of the Petition and, therefore, need not
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`IPR2018-01027
`Patent 8,712,723 B1
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`consider Patent Owner’s arguments that we should exercise our discretion
`not to institute inter partes review, the record appears to support some of
`Patent Owner’s contentions. Dec. 23. As an example, we noted that
`Petitioner actually relied solely on the Pasolini and Fabio references in
`challenging claims 4 and 19, which were considered in Petitioner’s previous
`challenge (“the ’389 IPR”) of the ’723 patent. Id.
`
`Petitioner argues that “[t]o the extent the Board may consider denying
`this Petition” by exercising our discretion not to institute review, “such
`action is unwarranted here.” Req. Reh’g 13. Because we denied the Petition
`on the merits, we do not address Petitioner’s contentions seeking to explain,
`belatedly, why we should not exercise our discretion to not institute. We
`note, nevertheless, that we are not persuaded by Petitioner’s assertion that it
`did not fully consider the Richardson reference prior to relying on it in
`IPR2018-00294. Nothing further needs to be addressed with regard to
`Petitioner’s arguments.
`
`Accordingly, we are not persuaded that we should modify our
`Decision on Institution in this regard.
`
`IV. CONCLUSION
`For the reasons above, we conclude that Petitioner has not met its
`
`burden of showing an abuse of discretion, or that we misapprehended or
`overlooked any of Petitioner’s arguments, in our determination that
`Petitioner failed to establish a reasonable likelihood that it would prevail in
`its challenge to claims 4 and 19 of the ’723 patent.
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`IPR2018-01027
`Patent 8,712,723 B1
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`
`V. ORDER
`In consideration of the foregoing, it is hereby ordered that Petitioner’s
`
`Request for Rehearing is denied.
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`IPR2018-01027
`Patent 8,712,723 B1
`
`For PETITIONER:
`Andrew Ehmke
`Michael Parsons
`Calmann Clements
`HAYNES AND BOONE, LLP
`andy.ehmke.ipr@haynesboone.com
`michael.parsons.ipr@haynesboone.com
`calmann.clements.ipr@haynesboone.com
`For PATENT OWNER:
`Ryan Loveless
`Brett Mangrum
`James Etheridge
`Jeffrey Huang
`ETHERIDGE LAW GROUP
`ryan@etheridgelaw.com
`brett@etheridgelaw.com
`jim@etheridgelaw.com
`jeff@etheridgelaw.com
`
`Ray A. King
`Uniloc USA, Inc.
`ray.king@unilocusa.com
`
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