UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________________
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`APPLE INC.
`Petitioner
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`v.
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`UNILOC 2017 LLC
`Patent Owner
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`_______________________
`
`Case No. IPR2018-01093
`Patent No. 7,994,353
`_______________________
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`
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`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
`Table of Contents
`INTRODUCTION ........................................................................................... 1
`I.
`II. PRELIMINARY MATTER—APPLE IS NOT CONTRACTUALLY
`PREVENTED FROM CHALLENGING THE ’353 PATENT .......................... 1
`III. ARGUMENT ................................................................................................ 1
`A. The Board Correctly Found the Prior Art Teaches Distinct Steps of (1)
`Determining an Event Context and (2) Assessing its Criticality .................... 1
`i. Lemelson’s medical alert monitoring first identifies an “abnormal medical
`condition” and then assesses whether a “variance of [a] predefined degree”
`exists .................................................................................................................. 2
`ii. Patent Owner ignores two separate mappings of Lemelson’s assessing
`criticality for audio events ................................................................................. 6
`B. Patent Owner Misinterprets Claims 6-8 .................................................... 9
`C. Claim 12’s “Communicatively Coupled” Phrase Requires Only That the
`Claimed Components Communicate ............................................................... 12
`D. Patent Owner Mischaracterizes the Petition’s Mapping for Claims 13
`and 14 ................................................................................................................. 14
`E. Lemelson in view of Zhou Teaches a Reporting Subsystem that
`Configures and Broadcasts an Alarm as Recited in Claim 16 ...................... 14
`i. Lemelson in view of Zhou teaches configuring and broadcasting an alarm
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`15
`ii. The prior art teaches Claim 16’s “broadcasting” ...................................... 16
`F. Assessing the Severity of an Emergency to Determine a Response is
`Grading the Urgency of a Reported Event ..................................................... 18
`G. Claim 19 Requires Only Filtering Out Invalid Events ........................... 20
`IV. CONCLUSION ........................................................................................... 22
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`i
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`I.
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`INTRODUCTION
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`Having declined to depose Petitioner’s expert and having failed to submit a
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`competing expert declaration of its own, Patent Owner’s Response consists entirely
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`of attorney argument that mischaracterizes the Petition and the prior art discussed
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`therein. When these mischaracterizations are corrected, it is clear that the Board’s
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`preliminary findings at institution should be adopted in its Final Written Decision,
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`concluding the Challenged Claims are obvious.
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`II.
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`PRELIMINARY MATTER—APPLE IS NOT CONTRACTUALLY
`PREVENTED FROM CHALLENGING THE ’353 PATENT
`Based on pure speculation, Patent Owner suggests Apple may be “bound by
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`a license agreement that forbids Apple to challenge the validity of the ’353 Patent[.]”
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`Patent Owner provides no evidence in support of its assertion. No license agreement.
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`No testimony. Nothing. And, not surprisingly, Patent Owner is incorrect. The
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`undersigned counsel has investigated this speculation and can represent for the
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`Board that Apple has never been, and is not now, bound by any agreement that would
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`limit its ability to challenge the ’353 Patent.
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`III. ARGUMENT
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`A. The Board Correctly Found the Prior Art Teaches Distinct Steps
`of (1) Determining an Event Context and (2) Assessing its
`Criticality
`Patent Owner’s primary argument is that Petitioner has conflated the claimed
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`steps of “determining an event context” and “assessing a criticality of the determined
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`1
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`event context.” Paper 11, Response at 5-6. In support, Patent Owner
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`mischaracterizes both the prior art and Petitioner’s reliance on the same. At
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`institution, the Board correctly found that both embodiments of Lemelson relied
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`upon by Petitioner—medical condition and audio monitoring—involve separate
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`steps of determining an event context and assessing its criticality. Paper 8,
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`Institution Decision (“ID”) at 15-18. Patent Owner’s mischaracterizations should
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`not deter the Board from making its preliminary findings final.
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`i.
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`Lemelson’s medical alert monitoring first identifies an
`“abnormal medical condition” and then assesses whether a
`“variance of [a] predefined degree” exists
`The Board correctly concluded at institution that “Lemelson teaches analyzing
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`a user’s biometrics or medical history data to determine an abnormal medical
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`condition[,]” which meets the “determin[ing] an event context” limitation. Paper 8,
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`ID at 15-17. The Board also correctly concluded that Lemelson teaches “the
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`computer [that] detects a variance of predefined degree between the person’s current
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`and normal medical conditions,” which meets the “assessing a criticality” limitation.
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`Id. at 17-18. Finally, the Board correctly concluded that Lemelson teaches informing
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`the control center of the variance, which satisfies the reporting response responsive
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`to the criticality assessment—the final limitation of Claim 1. Id. at 18-19.
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`Patent Owner challenges the Board’s conclusions, arguing that “Lemelson
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`expressly defines its “abnormal medical condition” as being “a variance of a
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`2
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`predefined degree . . . between the person’s current and normal medical conditions.”
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`Paper 11, Response at 7 (citing Ex. 1003, Lemelson at 4:32-41). According to Patent
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`Owner, if detecting an abnormal medical condition and detecting a variance of a
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`predefined degree are one and the same, Petitioner and the Board have erred in
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`finding this single process satisfies two distinct limitations. Id.
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`Patent Owner is incorrect. The single citation proffered in support of its
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`strained Lemelson interpretation does not combine these steps. Instead, Lemelson is
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`clear that detecting a variance of a predefined degree is a separate inquiry, the result
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`of which triggers a communication process with a “command control center” and
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`defines what information is contained within the communication—an indication of
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`the specific variance. Ex. 1003, Lemelson at 4:32-41.1 In order words, the criticality
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`assessment in Lemelson goes beyond simply determining that an abnormal medical
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`condition exists. It defines the degree of abnormality and provides that assessment
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`to the central command center. As explained in the following excerpt, though
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`certainly related to each another, Lemelson teaches distinct steps of (1) determining
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`1 Patent Owner advances a related point, arguing that because the control center
`receives the emergency transmission and determines appropriate medical assistance
`based on the severity of the situation, no prior assessment of criticality could have
`occurred. Paper 11, Response at 7-8. Patent Owner does not explain how the central
`control center performing a severity assessment for purposes of determining
`appropriate medical assistance precludes a prior assessment of criticality for
`purposes of determining whether an emergency message should be sent to the central
`control center at all.
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`3
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`abnormal medical conditions, (2) assessing the level of abnormality, and (3)
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`reporting that level of abnormality to the central control center:
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`The computer is programmed to compare the signals generated by the
`medical monitoring system to the data stored in memory defining
`abnormal medical conditions. If a variance of predefined degree
`exists between the person’s current and normal medical conditions, the
`computer generates and causes the transmission circuit to transmit
`signals defining the variance to the command control center.
`Id. at 4:34-41 (emphasis added).
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`The following excerpt reiterates that multiple distinct steps are performed.
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`Namely, the system (1) determines whether the user is experiencing abnormal
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`medical conditions, (2) determines whether those conditions are so severe that
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`medical attention is required, and, if so, (3) transmits an appropriate emergency
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`message:
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`The warning unit has the capability to monitor a person’s heart rate,
`blood pressure, blood sugar level, breathing level, and/or other
`measurable indicators and medical signs that determine a need for
`emergency medical attention. It analyzes that data by, among other
`things, comparing it to medical history data for the user. If the system
`detects abnormal medical signs for an individual and the individual
`is in need of medical attention, an emergency transmission is made
`from the personal monitoring unit to a remote control center along with
`the G.P.S. coordinates of the monitoring system to request appropriate
`medical assistance.
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`4
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`Id. at 7:42-54 (emphasis added).
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`As the Board previously held, Lemelson treats detecting abnormal medical
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`conditions as a separate precursor to assessing criticality and the need for medical
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`attention. Because Patent Owner’s attempt to equate these processes is without
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`support and directly contrary to the disclosure in Lemelson, the Board should make
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`its preliminary finding final and conclude that Lemelson’s medical alert monitoring
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`process satisfies both determining an event context and assessing its criticality.
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`Even if Patent Owner were correct that Lemelson’s detecting an abnormal
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`medical condition and determining its criticality is performed in a single step and
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`that Claim 1 precludes a single step process of detecting an event context and
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`assessing its criticality, the Petition discusses an alternative criticality assessment in
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`Lemelson. Namely, Lemelson teaches that “[t]he command control center determines
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`the severity of the emergency and dispatches the proper emergency assistance.”
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`Paper 1, Petition at 35 (discussing Ex. 1003, Lemelson at 4:43-49). As discussed in
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`the Petition, this centralized reporting response based on the criticality assessment
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`aligns with specific embodiments describing the same in the ’353 Patent. Paper 1,
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`Petition at 34-35 (citing ’353 Patent at 2:6-10 and 8:9-15). So even setting aside the
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`abnormal medical condition and variance of a predefined degree that results in a
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`transmission to the command control center, there is a separate severity assessment
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`performed by the command control center that determined an additional reporting
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`5
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`response. See Paper 1, Petition at 29-35; Ex. 1005, Fyfe Decl. at 45-46, 50-52.
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`Patent Owner concedes that such a severity analysis is performed by Lemelson’s
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`system and does not dispute that such an analysis would satisfy the claimed
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`criticality assessment, but suggests that the claimed criticality assessment must be
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`performed on the user-device. Paper 11, Response at 7-8. No such limitation is
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`imposed by Claim 1—a method claim, agnostic as to the location at which the
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`claimed steps are performed. Accordingly, regardless of whether the Board accepts
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`Patent Owner’s primary argument that Lemelson collapses two steps into one,
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`Lemelson’s centralized severity assessment and resulting reporting response satisfies
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`Claim 1.
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`ii.
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`Patent Owner ignores two separate mappings of Lemelson’s
`assessing criticality for audio events
`Two separate mappings support concluding that Lemelson satisfies the
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`assessing criticality limitation. First, the Board focused its analysis at institution on
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`Lemelson’s express disclosure that loud noises are recognized by the portable unit,
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`which alerts the central command center where “fuzzy logic” is used to assess
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`criticality by identifying the degree of danger and determining the appropriate
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`reporting response:
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`The sound recognition system detects loud noises, riot sounds,
`gunshots, and other such noises. If such noises are detected, the
`warning unit alerts the central command center, and the central
`command center dispatches the appropriate assistance to the
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`6
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`individual in distress. The command control center receives the
`transmitted signals from the portable warning unit and uses fuzzy logic
`to define the emergency condition. The command control center
`generates and transmits signals to an emergency response unit
`defining the type of emergency, the fuzzy logic degree of danger and
`the current geographic location of the user.
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`Ex. 1003, Lemelson at 4:67-5:10 (discussed in Paper 8, ID at 18) (emphasis added).
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`Second, Lemelson teaches that the same fuzzy logic could be used on the user-
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`based monitoring unit itself to assess a “degree of danger” prior to reporting the
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`situation to the central command center:
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`The computer controller of the portable warning unit’s expert
`system comprises fuzzy logic inference rules and a fuzzy logic
`controller to compute a degree of danger index for the person
`carrying the portable warning unit.
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`Ex. 1003, Lemelson at 5:26-29 (cited in Paper 1, Petition at 31) (emphasis added);
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`see also Ex. 1005, Fyfe Decl. at ¶¶ 45-46 (explaining that it would have been obvious
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`to implement the degree of danger assessment on the portable unit for audio events,
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`which would be nothing more than combining two compatible embodiments).
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`Whether reporting to the central command center as a result of assessing
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`criticality on the portable unit or reporting an emergency response as a result of
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`assessing criticality at the central command center, both audio event mappings
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`satisfy the claimed process of (1) determining an event context, (2) assessing its
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`7
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`criticality, and (3) determining a reporting response as a result of the criticality
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`assessment. See Paper 1, Petition at 31-35.
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`Patent Owner levies a number of criticisms, none of which acknowledge the
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`two mappings addressed above. First, Patent Owner criticizes Petitioner for citing
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`Lemelson at 5:26-28 because this excerpt describes degree of danger calculations
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`performed on the portable unit that are not expressly tied to audio monitoring. Paper
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`11, Response at 8-9. This argument ignores Petitioner’s reliance on its expert’s
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`opinion that a PHOSITA would have recognized the disclosed degree of danger
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`calculations are equally applicable to audio events. Paper 1, Petition at 31-35; Ex.
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`1005, Fyfe Decl. at ¶¶ 45-46. Not only does Patent Owner ignore Petitioner’s expert,
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`but it completely fails to provide any rebuttal expert testimony of its own.
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`Second, Patent Owner acknowledges the Lemelson teaching relied upon by
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`the Board—that a degree of danger assessment may be performed by the central
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`command center—but suggests that such reliance is misplaced because the
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`assessment must occur “locally . . . before reporting to a centralized public safety
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`subsystem.” Paper 11, Response at 9-11. Despite having proposed no claim
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`constructions, Patent Owner appears to be inserting a structural requirement that
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`assessing criticality must be performed by the portable unit before reporting to a
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`central command center. Such a requirement is certainly not required by the plain
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`language of the challenged claims. Not only is such a “division of labor”
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`8
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`embodiment not described in the ’353 Patent, importing this nonexistent
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`embodiment into the Challenged Claims would be wholly improper. Thus, even if
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`Patent Owner were correct that the assessment of the criticality occurred only at the
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`centralized command control system, rather than on the portable wearing unit, that
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`would still satisfy Claim 1—a method claim, which does not require that all of the
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`steps be performed by a single device.
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`In sum, Patent Owner’s arguments ignore the nature of both mappings—
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`degree of danger assessments performed either by the portable unit or the central
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`command center—and should be rejected.
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`B.
`Patent Owner Misinterprets Claims 6-8
`Claims 6-8 recite the following:
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`6. The method of claim 1, wherein the assessing a criticality comprises
`determining whether the event data meets a threshold setting, the
`threshold setting being part of a configuration data.
`7. The method of claim 6, wherein responsive to the event data
`meeting a threshold setting, filtering the event data based on a
`configuration setting.
`8. The method of claim 7, wherein the filtering comprises inhibiting
`the reporting response.
`Ex. 1001, ’353 Patent (emphasis added). There are two inquiries based on separate
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`configurations (or “settings”) recited in these claims—(1) whether the event meets
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`a threshold based on a “threshold setting” and (2) whether the event should be
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`9
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`filtered/inhibited based on a “configuration setting.” Consistent with the claim
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`language, the ’353 Patent makes clear that these two inquiries are performed
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`separately based on separate and distinct configurations. For example, Fig. 5
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`illustrates this two-inquiry process. First, “block 540 . . . determine[s] whether the
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`event context should be reported [using] a threshold setting indicator that functions
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`to filter out events that should not be reported.” Second, “block 550 . . . determine[s]
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`whether an event should be reported based on a configuration setting, i.e. whether
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`an event is inhibited.” Ex. 1001, ’353 Patent at 8:53-62. Illustrated below, the two-
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`step inquiry asks first whether the event meets a threshold level. If not, the event is
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`rejected and never reported. Assuming the threshold is met at block 540, the second
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`inquiry asks whether the event should be filtered/inhibited based on a separate
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`configuration. Only if this second inquiry permits the event to continue uninhibited
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`does the event get reported.
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`Id. at Fig. 5. The ’353 Patent confirms elsewhere the independent nature of the
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`threshold inquiry and filtering/inhibiting inquiry. See id. at 7:43-48 (explaining that
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`non-threshold “configuration criteria [can] define the criticality or importance of an
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`event and determine whether an alert is necessary or required” such as filtering our
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`all “glass breaking event[s]” as unimportant).
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`Petitioner mapped a similar two-inquiry process to these limitations. Namely,
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`the Petition lays out a two-step process by which an event can survive a first
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`threshold inquiry, but the reporting may be filtered/inhibited if it fails to satisfy the
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`second inquiry (a second, separate threshold). Paper 1, Petition at 44-47.
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`Patent Owner ignores that the claims, consistent with the specification, recite
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`two separate inquiries, arguing that Petitioner’s mapping “fails to disclose, and
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`indeed teaches away from, ‘filtering the event data’ ‘ responsive to the event data
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`meeting a threshold setting,’ as recited in dependent claims 6 and 7 (emphasis
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`added).” Paper 11, Response at 11. In other words, Patent Owner argues that the
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`filtering/inhibiting must be the result of the event meeting the threshold setting. This
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`conflates the claimed two-step inquiry by equating “a filtering setting” and “a
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`configuration setting.” Because nothing in the claim language suggests these settings
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`are the same and the specification teaches they are in fact distinct settings applied to
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`distinct inquiries, Patent Owner’s position must be rejected.
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`11
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`C. Claim 12’s “Communicatively Coupled” Phrase Requires Only
`That the Claimed Components Communicate
`Claim 12 recites “a reporting subsystem, communicatively coupled to the
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`analysis subsystem, that receives the event context determined by the analysis
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`subsystem.” Petitioner identified Lemelson’s portable monitor, depicted in Fig. 2
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`(reproduced below), that includes an analysis subsystem for assessing event contexts
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`and a reporting system comprised of a “transmit/receive (TX/RX) radio 48 and
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`antenna system 50”:
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`Paper 1, Petition at 51-52. In other words, a single portable device has an internal
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`processing system that maps to the claimed “analysis subsystem” and communicates
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`its information to the command control center using a transceiver and antenna that
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`12
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` Petitioner’s Reply to Patent Owner’s Response
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`IPR2018-01093
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`maps to the “reporting subsystem.” Petitioner’s position is simple—in order for the
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`processing system to send its data using the transceiver/antenna, it must
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`communicate that data to the transceiver/antenna (i.e., the transceiver/antenna must
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`receive the data in order to communicate the data). Id.
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`Patent Owner argues that Petitioner “attempts to eliminate certain claim
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`requirements” by showing only that the reporting subsystem receives data from the
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`analysis subsystem and not separately that they are “communicatively coupled.”
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`Paper 11, Response at 12-13. Patent Owner fails to explain how two subsystems
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`that communicate are not “communicatively coupled.” Patent Owner provides no
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`claim construction for “communicatively coupled” that would read out such a simple
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`scenario. Nor does Patent Owner provide any expert testimony supporting its
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`position here. Instead, Patent Owner summarily concludes that the phrase must have
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`some meaning beyond that one subsystem receives data from the other subsystem.
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`Id. Having agreed no claim language requires construction, Patent Owner cannot
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`avoid that the broadest reasonable meaning of two components “communicatively
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`coupled” is simply that the components are able to communicate. This is the meaning
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`that Petitioner applied and nothing more is required by Claim 12. Accordingly,
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`Patent Owner’s argument should be rejected.
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`13
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` Petitioner’s Reply to Patent Owner’s Response
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`D.
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`Patent Owner Mischaracterizes the Petition’s Mapping for
`Claims 13 and 14
`Patent Owner claims that Petitioner failed to provide any “argument or theory
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`as to how the cited references render [Claim 13] obvious.” Paper 11, Response at
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`13. Patent Owner is incorrect. As noted by the Board at institution, Claims 13 and
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`14 were addressed together. The evidence and arguments at pp. 52-53 of the Petition
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`demonstrate that Lemelson teaches the limitations recited in both claims. Patent
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`Owner does not contend that this discussion is substantively deficient. Instead,
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`Patent Owner simply seeks to mischaracterize the form of the Petition as a means of
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`manufacturing a deficiency where none exists. Accordingly, Patent Owner’s
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`argument should be rejected.
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`E.
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`Lemelson in view of Zhou Teaches a Reporting Subsystem that
`Configures and Broadcasts an Alarm as Recited in Claim 16
`Patent Owner advances a number of misleading arguments, challenging
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`Petitioner’s mapping of the prior art to Claim 16. First, Patent Owner
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`mischaracterizes Petitioner’s mapping, claiming “[t]he sole argument in the Petition
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`is the conclusory statement that ‘Lemelson in view of Zhou teaches this limitation’
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`and a vague reference to ‘claim 9.’” Paper 11, Response at 14. In fact, the “vague
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`reference” to Claim 9 was a proper cross reference—the mapping for Claim 9
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`provides full support for Petitioner’s proposition that the prior art also teaches Claim
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`14
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` Petitioner’s Reply to Patent Owner’s Response
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`16. Second, Patent Owner argues that “broadcast” in Claim 16 requires a one-to-
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`many transmission. Neither argument has merit.
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`i.
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`Lemelson in view of Zhou teaches configuring and
`broadcasting an alarm
`Starting with Patent Owner’s suggestion that reliance on the Claim 9 mapping
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`is insufficient, the Petition explains that Lemelson’s portable unit generates an alarm
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`that is subsequently broadcast to the central command center. Paper 1, Petition at
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`47-49. Relying on Dr. Fyfe, the Petition further explains that a PHOSITA would
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`have considered the process of creating the alarm message and populating it with the
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`event context data is “configuring” the alarm (or alert) as required by Claims 9 and
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`16. Id.
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`Patent Owner further suggests that because Claim 16 depends on Claim 12,
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`all functionality attributed to the “reporting subsystem” in Claim 16 must be
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`performed exclusively by the components identified as the “reporting subsystem” in
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`underlying independent Claim 12. Paper 11, Response at 14. This argument ignores
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`that the reporting subsystem functions addressed by these two separate claims
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`implicate different components within the reporting subsystem. To be sure, the
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`transceiver/antenna components relied upon for Claim 12’s reporting subsystem
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`functionalities are also relied upon for broadcasting the alarm in Claim 16. But
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`Patent Owner’s suggestion that the transceiver/antenna must alone “configure[] an
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`alarm” as required by Claim 16 is without merit. Indeed, as mapped in the Petition,
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` Petitioner’s Reply to Patent Owner’s Response
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`additional processing components create and populate the alarm message, thereby
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`configuring the alarm, which is subsequently broadcast by the transceiver/antenna.
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`These additional processing components—also part of the “reporting subsystem”—
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`were not referenced in the Claim 12 mapping for the simple reason that their
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`functionalities are not addressed by Claim 12. This, however, does not make them
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`any less of a component of the “reporting subsystem” than the transceiver/antenna
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`that were expressly discussed in the Claim 12 mapping. Further, even if the
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`additional processing components were required to be discussed in the Claim 12
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`mapping, both the Claim 12 and Claim 16 mappings include citations to Lemelson
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`at 4:29-47, which provides the description of the reporting subsystem components
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`creating and populating the alarm message that is subsequently broadcast by the
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`transceiver/antenna. Because the Petition’s reliance on the Claim 9 mapping satisfies
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`Claim 16 and is consistent with the underlying analysis of independent Claim 12,
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`Patent Owner’s arguments should be rejected.
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`ii.
`The prior art teaches Claim 16’s “broadcasting”
`Patent Owner advances a separate argument that “broadcasting” an alarm
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`notice in Claim 16 requires a one-to-many transmission, rather than simply
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`communicating to a specific single location. Paper 11, Response at 14-15. Patent
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`Owner does not itself contend that “broadcasting” should be construed as such, nor
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`does it provide any expert testimony suggesting such an argument, but instead argues
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`16
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` Petitioner’s Reply to Patent Owner’s Response
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`that Petitioner has implicitly offered this construction through its other mappings.
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`Id. Petitioner has done no such thing. That Petitioner has mapped one-to-many
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`communications elsewhere in the Petition cannot be read as a blanket statement that
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`all “broadcasting” requires such communications. Indeed, such a narrow
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`interpretation is at odds with the intrinsic record. The ’353 Patent repeatedly uses
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`the term “broadcast” to describe communications to a single recipient. See, e.g., Ex.
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`1001, ’353 Patent at 3:42-44 (“…enables an alert or alarm to be reported or
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`broadcast to a public safety network or other network or entity for an immediate
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`response.”), 8:19-20 (“SensAlert may be enabled to broadcast a personal alert or
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`alarm specific to a user to warn the user of the event.”), 9:18-20 (For example, an
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`alert or alarm may be scheduled to be broadcast to a particular organization, such
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`as a missing persons bureau or a traffic control agency.”). Accordingly, Patent
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`Owner’s overly narrow construction of “broadcast,” requiring one-to-many
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`communications, is inconsistent with the intrinsic record and should be rejected.
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`But even if the Board were persuaded that the claimed “broadcast” requires
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`more than a single, one-to-one communication, the prior art teaches the same one-
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`to-many embodiment described in the ’353 Patent. Namely, the following excerpt
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`describes an embodiment by which the reporting subsystem broadcasts an alert by
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`sending it to a separate, single subsystem that then distributes the alert to multiple
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`additional recipients:
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`17
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`IPR2018-01093
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`The reporting subsystem 330 may also broadcast an alert through a
`public safety subsystem 340. The public safety subsystem 340 may be
`configured to receive alerts from the reporting subsystem 330. It may
`also be configured to receive alerts from disparate or alternate reporting
`subsystems. The received alerts may be analyzed and distributed
`through an infrastructure to the appropriate personnel.
`Id. at 8:9-15 (emphasis added), see also id. at 7:33-64. A explained in the Petition,
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`the combination of Lemelson and Zhou teaches this same process. A reporting
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`subsystem (Lemelson’s radio and antenna) “broadcasts” an alert through a public
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`safety subsystem (Lemelson’s central command center), which thereafter distributes
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`alerts to appropriate personnel (described with reference to Zhou’s PD 300). Paper
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`1, Petition at 47-49, 51-53.
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`Accordingly, whether “broadcast” is construed (consistent with the intrinsic
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`record) to capture one-to-one communications or more narrowly (pursuant to more
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`specific embodiments in the intrinsic record) to capture only alerts that are ultimately
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`distributed to multiple recipients, Lemelson in view of Zhou renders obvious Claim
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`16.
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`F. Assessing the Severity of an Emergency to Determine a Response
`is Grading the Urgency of a Reported Event
`Patent Owner next argues that Lemelson in view of Zhou does not teach “a
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`prioritizing mechanism that grades the urgency of the received reported event” as
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`recited in Claim 18. Paper 11, Response at 15; Petition at 58-59. As shown in the
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`18
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`IPR2018-01093
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`Petition, however, Lemelson clearly teaches determining how severe a user’s need
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`is for emergency assistance, thus determining (or “grading”) its urgency. Petition at
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`58; Fyfe Decl. at ¶ 45. Further, both the Petition and Dr. Fyfe discuss Zhou’s
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`additional teaching that user-defined threshold settings may be used to further
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`customize responses based on the urgency of a reported event. Petition at 58-59;
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`Fyfe Decl. at ¶ 51. Dr. Fyfe’s declaration supporting the Petitioner’s statements that
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`a PHOSITA would have understood Lemelson’s and Zhou’s disclosures of
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`“determining the severity” of an emergency to teach “grading the urgency” of an
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`event are un-refuted by Patent Owner, who does nothing but provide bare attorney
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`argument and no expert testimony. Fyfe Dec. at ¶ 45, 51. And bare attorney argument
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`is insufficient to rebut the evidence submitted by Petitioner in this case. See, e.g.,
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`Elbit Sys. of Am., LLC v. Thales Visionix, Inc., 881 F.3d 1354, 1359 (Fed. Cir. 2018)
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`(“‘[a]ttorney argument is not evidence’ and cannot rebut other admitted
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`evidence[.]”) (quoting Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034,
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`1043 (Fed. Cir. 2017)).
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`While Lemelson and Zhou do not recite verbatim the exact phrase, “grades the
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`urgency of the received reported event,” recitation of claim language is not required.
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`See, e.g., ParkerVision, Inc. v. Qualcomm Inc., 621 Fed. App’x 1009, 1018–19 (Fed.
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`Cir. 2015) (“We have held, however, that the failure of a reference to disclose a
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`claim limitation in the same words used by the patentee is not fatal to a claim of
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`invalidity”); see also In re Bond, 910 F.2d 831, 832–33 (Fed. Cir. 1990) (The prior
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`art elem