[00:00:00] Speaker 00:
We'll hear argument next in number 20-1306, Unlock 2017 LLC versus Apple Inc.

[00:00:08] Speaker 00:
Again, Mr. Stevens.

[00:00:15] Speaker 01:
Thank you, Your Honor.

[00:00:16] Speaker 01:
Again, Jeffrey Stevens for Unlock 2017 LLC.

[00:00:24] Speaker 01:
I will start by noting that the arguments that we have already addressed in the

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1028-1058, a PLS 2 cadence window apply also to claims in this case, specifically in the 424 IPR and in the 1028 IPR at issue here.

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I will therefore focus on the grounds that were based on Mitchnick for claims 1 through 4, and what

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What the petitioners did here in their reply in response to arguments that were in their reply before the board, in response to arguments raised by the patent owner, they argued that the Mitchnick device is a mobile device within the meaning of the claims of the 902 patent.

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And as we lay out on our brief, Mitchnick is a vaginally implanted medical device.

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And its purpose is sensing and recording data relevant to a clinical trial or study.

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And what we've laid out and as we did for the board is, you know, the reasons why one of the coordinators, Gilmour, would not consider Mitchinic's device to be a mobile device as recited and described in the 902 patent.

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And specifically, the 902 patent

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states, and this is on appendix 26, that electronic device 100 may be carried in a backpack, pocket, purse, hand, or elsewhere.

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And we note this is, I mean, this is a lay person or a person who are in skill in the arts understanding of what would be a mobile device would be one that could be transferred and carried in such a manner.

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And, um,

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You know, Apple's contentions are essentially that well as, you know, if a person with Mitchnick's device implanted was to move around, then it would be moving.

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But this is not a typical understanding of what would be a mobile device that could be transferred and carried in a backpack or a pocket purse, hand, et cetera.

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And this is important to the combination that the board adopted in relying on Mitchnick as the mobile device.

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and is a clear error that the board made in adopting those arguments from petitioners.

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The other error that I'll focus on relating to Mitchnick is whether Mitchnick teaches the limitation requiring determining by the mobile device whether the motion has a motion signature.

[00:03:24] Speaker 01:
Indicative of a user activity that the mobile device is configured to monitor and What what we've argued here your your honors is that Mitch Nick is not Is not focused on Detecting and measuring sexual activity the accelerometers, but it gathers other data related to that and so in petitioners mapping of this claim

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they're essentially saying that, you know, the device will... Let me... So, as the claim recites, it's looking for a motion signature, and it's trying to determine whether that signature matches something that

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the device is configured to monitor.

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Well, and what petitioners have done in their mapping is to sort of disconnect that, you know, detecting the motion signature from the user activity that the device is configured to monitor.

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So in Mitchnick, those are really two different things.

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The device might

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wake up based on a motion signature, but it's not looking for monitoring requires measurement.

[00:04:59] Speaker 01:
Um, yes.

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Well, it's also, um, the signature that it's, that it's looking for has to be, you know, related to the activity, the device is configured to, to monitor.

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So,

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Yes, I mean, the same data that it's.

[00:05:22] Speaker 00:
It doesn't monitor movement, right?

[00:05:24] Speaker 00:
It detects it.

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It just doesn't measure it, in your view.

[00:05:39] Speaker 01:
I don't know if I'm understanding your honor's question exactly.

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But never mind, go ahead.

[00:05:50] Speaker 01:
Well, the, so, I mean, what we're arguing is that, you know, Mitch Nick's purpose, what it's configured to monitor is to gather the data that is, you know, presented to its temperature sensors, pH sensors, heart rate sensors.

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These are the sensors that it, you know, uses

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to gather data and to monitor an activity.

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And our contention is that for the device to be configured to monitor the activity is going to require more than determining whether

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a motion signature is indicative of the user activity.

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So the monitoring is a step beyond sort of the initial motion signature that indicates user activity is occurring.

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So these are disconnects in the mapping from petitioner that the board essentially glosses over in its decision.

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um, does not fully address.

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And I will, I will note that, um, you know, the petitioner did make one other argument to try to get around this problem in the mapping of the claims.

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And noted that Mitchnick states that in other embodiments, the intervaginal unit may be entirely dispensed with and all data sent from an external unit on or near the participant.

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But again, there's a disconnect here where the petition does not tie this embodiment, you know, this other sort of cursory referenced embodiment to the detecting of sexual activity.

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And that is what the petition maps to the determining step of claim one.

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So it's really not

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Again, a disconnect where petitioners were essentially pointing to just various statements in the references without tying them together in a coherent way that would fit the mapping of Claim One as alleged to be unpatentable.

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Unless Your Honors have further questions, I will rest on the

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briefs with the other points raised there in terms of errors made by the board and urge the court to reverse the decisions of unpatentability.

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Okay.

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Thank you, Mr. Stevens.

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Ms.

[00:08:58] Speaker 00:
Moulton.

[00:09:00] Speaker 02:
Thank you, Your Honors.

[00:09:01] Speaker 02:
Good morning and may it please the court.

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I'll briefly address the mobile device question on claims one through four and then I'll turn to the cross appeal on claim nine.

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But I'm happy to answer the court's questions on any of the other issues.

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Council focused on Michnik's internal embodiment.

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And I just want to make one quick point on that, that Michnik's internal embodiment doesn't mean that it's permanently implantable, like a pacemaker is.

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But Michnik teaches at paragraphs 92 and paragraph 14 that even the internal embodiment is designed to be easily inserted and removed by a user, like a contraceptive ring.

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So it's mobile, as the board found, because it's small, battery-powered, easily transported, and communicates wirelessly.

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But it also has this feature of being easily inserted and removed, unlike something permanently implanted.

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Then on counsel's point that Michnik's device both determines sexual activity and then stores information about that from the acceleration

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Mitchnick teaches at paragraph 74 that it extracts and stores in memory acceleration measurements so that a researcher can later verify those acceleration measurements.

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And the board pointed this out in a few places in the final written decision.

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At appendix 18, 21, and 36, the board in all of those places recognized that Mitchnick does more than simply detect accelerometer data

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It's also monitoring and recording data about that activity.

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So if there are any further questions on Mitchnick or Fabio, then I'll turn to Claim 9.

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On the cross appeal on Claim 9, Unilock made no arguments to the board and now makes no arguments on the Marathon appeal as to the patentability of Claim 9.

[00:11:06] Speaker 00:
OK, so if I understand correctly, your argument here is that these limitations of claim nine are found in the Fabio prior art, I guess.

[00:11:21] Speaker 00:
But you're not arguing that they would have been obvious if they're not exactly found in the prior art, correct?

[00:11:29] Speaker 02:
That's right, Your Honor.

[00:11:32] Speaker 00:
OK, that puts quite a burden on you

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show that the board made an error in finding that these things aren't exactly present in the prior art.

[00:11:43] Speaker 00:
And you agree that each of these current acceleration measurements in the three steps has to be the same?

[00:11:56] Speaker 02:
Yes.

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The claim refers to using a current acceleration measurement, and that's

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When you, in the red brief at page 78, we have the annotated figures.

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So the acceleration measurement is this acceleration measurement AZ that represents a step.

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So it's the waveform shown in Figure 5.

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So that is detected during the survey procedure in Figure 8.

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And then that's what I understand the board to have said.

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I guess it made two points.

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The first point is that the first step

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current acceleration measurement here in Fabio is an average.

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And that's why it's not the same.

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It's the second two steps.

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Do you understand it the same way that I do?

[00:12:47] Speaker 02:
Sort of.

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So in the first criterion in the survey mode, it's looking at this.

[00:12:53] Speaker 00:
No, no.

[00:12:54] Speaker 00:
Help me.

[00:12:54] Speaker 00:
I mean, tell me, did I correctly state what the board found?

[00:13:01] Speaker 02:
So, my understanding, Your Honor, is that the average of the acceleration measurement is used to determine whether the first criterion is met and then that same acceleration signal is used to determine whether the second and third criterion is met.

[00:13:17] Speaker 00:
So, the first criterion is... Are you saying then that the first criterion, the first measurement is not, in Fabio, is not an average?

[00:13:26] Speaker 02:
The first, so the measurement is always that acceleration wave form and the first criterion is examining the average of that wave form and then the second and third criterion are looking at the shape of that wave form.

[00:13:43] Speaker 00:
So you're saying that claim nine itself in the first step is looking to an average in the first measurement?

[00:13:52] Speaker 02:
The first criterion, claim nine says the first criterion is satisfied when an acceleration, current acceleration measurement has a greater magnitude than a previous acceleration measurement.

[00:14:04] Speaker 02:
And the way that that's met in Fabio, which the board didn't dispute that Fabio teaches this, is by looking at the average of the current acceleration measurement and comparing that to the average of the previous acceleration measurement.

[00:14:20] Speaker 00:
OK, but that's to be different from the second and third steps, right?

[00:14:24] Speaker 02:
The second and third steps are using that same acceleration measurement, the waveform shown in Figure 5.

[00:14:31] Speaker 00:
They're not using an average in the second and third step.

[00:14:35] Speaker 02:
That's right.

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They're looking at a different characteristic of the current acceleration measurement, because they're looking at the threshold, the upper and lower threshold.

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But they're using the same set of data that was used in the first criterion.

[00:14:54] Speaker 00:
But they're not using the average as the current acceleration measurement, right?

[00:15:01] Speaker 02:
That's right.

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And what I'm saying is that the first criterion is to examine the average.

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And then the second and third criterion are to examine the measurement against these thresholds.

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So the criterion are different types of tests.

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but they're all using the same data to evaluate the criterion.

[00:15:26] Speaker 01:
Okay, go ahead.

[00:15:27] Speaker 02:
Okay, so what the board misunderstood is that Fabio is actually using the same waveform or the same underlying measurement to evaluate each of the three criteria.

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The board believes that Fabio measures a new waveform when it enters the first counting procedure.

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But that's not the case because Fabio is trying to count every step.

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So when it wakes up from the survey mode by detecting an acceleration measurement, it wants to use that same acceleration measurement and decide whether to count a step.

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So that same waveform is being set in the first counting procedure and then the step recognition test which is shown in Figure 5.

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So the board misunderstood how,

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that step recognition test in Figure 5 works when it found that threshold AZ, because threshold AZP is greater than threshold AZN, that AZN can't be the upper threshold.

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But Fabio at Column 4 explains that a step is recognized when the positive peak of acceleration signal AZ is greater than the threshold AZP, which is the floor.

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and has a negative peak less than threshold AZN, which is the ceiling.

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So that's exactly what Fabio is teaching, and it's consistent with how the board described Fabio in its institution decision and at the hearing.

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But when the board gave its final written decision at Appendix 57, it switched the two thresholds and found that AZN was not an upper threshold.

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Final misunderstanding on claim nine was that the absolute value of the amplitude of the current acceleration measurement has to be less than this upper threshold or ceiling ADN.

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But the broadest reasonable interpretation standard which applies here doesn't require that a magnitude is an absolute value.

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The 902 patent specification is careful to refer to an absolute value when it's required.

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like when it's discussing this lower threshold or floor that has to be surpassed, which is the threshold ADP.

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This specification doesn't refer exclusively to absolute values when it's discussing the upper threshold ADN.

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The board gave no reason why a person of ordinary skill would impart an absolute value limitation onto claim nine, particularly under the broadest reasonable interpretation standard.

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So properly understood, Fabio's threshold, AZN, is the upper threshold or ceiling that the acceleration signal can't hit.

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And its lower threshold is ADP that the acceleration signal has to exceed.

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And again, I'll just remind the court that Unilock doesn't actually contest any of this on the merits.

[00:18:32] Speaker 02:
It just makes a waiver point, which we totally addressed in our reply brief on the cross appeal.

[00:18:39] Speaker 02:
Apple's petition at Appendix 300, it's required Appendix 436, and then Dr. Paradiso's declaration at Appendix 964.

[00:18:49] Speaker 02:
I'll carefully spell out how Fabio's device transitions from the survey mode to the first counting procedure using that same underlying acceleration measurement, and then how Fabio's upward and lower thresholds in Figure 5 map onto Claim 9's stepping criteria.

[00:19:09] Speaker 02:
I have further questions.

[00:19:10] Speaker 02:
I'm happy to answer them.

[00:19:11] Speaker 02:
Otherwise, we ask the court to reverse on claim nine and reaffirm on the remaining claim.

[00:19:18] Speaker 00:
Okay.

[00:19:19] Speaker 00:
Mr. Stevens.

[00:19:25] Speaker 01:
Thank you, Your Honor.

[00:19:26] Speaker 01:
I think I'd like to make a single brief point on the mobile device argument and what I heard from

[00:19:38] Speaker 01:
council this morning was essentially an argument about the ease at which the device might be implantable and reviewing the board's decision there's really nothing that the board says that mobile device does not exclude implantable devices and we think that it it does for the reasons we laid out and there's nothing in the board's decision talking about whether an implantable device you know is

[00:20:06] Speaker 01:
or is not easily implantable.

[00:20:08] Speaker 01:
What the board relies on, as council recognizes, is that it's small, battery powered, easily transported, which means that it moves with the patient and communicates wirelessly.

[00:20:19] Speaker 01:
And we've, um, I submit that's not, that's not sufficient for mobile device, as one ordinary skilled would, in the ARC, would understand that term.

[00:20:29] Speaker 01:
Um, for the cross-pillar on it, we'd like to, as we, as we,

[00:20:34] Speaker 01:
Didn't our briefs rely on the reasoning of the board and let it stand there?

[00:20:41] Speaker 00:
Thank you.

[00:20:42] Speaker 00:
Okay, Ms.

[00:20:43] Speaker 00:
Milton, maybe have a minute.

[00:20:47] Speaker 02:
Sure.

[00:20:48] Speaker 02:
Thank you.

[00:20:50] Speaker 02:
Are there any questions on the cross-appeal?

[00:20:59] Speaker 02:
Then we ask the court to reverse on claim nine and affirm on the remaining claim.

[00:21:03] Speaker 02:
Thank you.

[00:21:04] Speaker 00:
Okay.

[00:21:05] Speaker 00:
Thank you, Mr. Stevens.

[00:21:06] Speaker 00:
Thank you, Ms.

[00:21:07] Speaker 00:
Moulton.

[00:21:08] Speaker 00:
The case is submitted.

[00:21:09] Speaker 00:
That concludes our session for this morning.

[00:21:14] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.