[00:00:00] Speaker 01:
We will hear argument next in number 231065, Fitbit against Conninkly K. Phillips.

[00:00:09] Speaker 01:
Mr. Pallas, is that correct?

[00:00:10] Speaker 01:
That's correct.

[00:00:13] Speaker 03:
May it please the court.

[00:00:15] Speaker 03:
The board erred in at least three main ways.

[00:00:17] Speaker 03:
First, the board misconstrued and misapplied the plurality of a sensor limitations when it did its analysis of the spectrochrome and daemon.

[00:00:26] Speaker 03:
Second,

[00:00:27] Speaker 03:
The board erred with respect to its analysis on activity points in its application of CROLL.

[00:00:35] Speaker 03:
And third, the board improperly permitted Phillips to include new evidence and new arguments on REPLY in its application of the term activity points with respect to Damon.

[00:00:49] Speaker 03:
So let me start with the plurality of sensor limitations.

[00:00:54] Speaker 03:
The board failed to properly consider the plain meaning of the plurality of sensor limitations in the context of the 377 pattern, and that's important.

[00:01:03] Speaker 03:
It did so when it found that Kohl's acceleration sensor, a single acceleration sensor, or Damon's three accelerometers, met both the plurality of sensor limitation

[00:01:16] Speaker 03:
which as recited in Claims 1 through 25, includes at least three accelerometers.

[00:01:22] Speaker 00:
Council, can I ask you at page A818, I think that's a curl, it's in the right hand column, paragraph 16, it refers to each of the one or more triaxial accelerometers, and that's a disclosure in curl.

[00:01:41] Speaker 00:
Why doesn't that provide substantial evidence?

[00:01:44] Speaker 00:
Because that's not saying there's a single tri-accelerometer with three sensors.

[00:01:50] Speaker 00:
It's saying that there's more and more triaxial accelerometers.

[00:01:56] Speaker 00:
So why isn't that satisfactory?

[00:01:59] Speaker 03:
Yeah, I can respond that in a couple ways, Your Honor.

[00:02:01] Speaker 03:
Thank you for that.

[00:02:02] Speaker 03:
So you're referring to the reference of paragraph 16 in CROLL, which is at appendix 818.

[00:02:10] Speaker 03:
So the board relied on this.

[00:02:11] Speaker 03:
Just a little bit of background for your honors.

[00:02:14] Speaker 03:
The board cited this in its institution decision.

[00:02:17] Speaker 03:
This is something that Phillips didn't include or cite or rely on in its petition.

[00:02:21] Speaker 03:
Well, let's put that aside.

[00:02:22] Speaker 03:
You know, we briefed that issue.

[00:02:23] Speaker 03:
We think that was improper.

[00:02:25] Speaker 03:
But to get directly to your question, Judge Strobel, there's two reasons.

[00:02:30] Speaker 03:
Number one, paragraph 16 is actually a different embodiment from the embodiment that Phillips relied on in his petition, which is the figure seven embodiment of Kroll.

[00:02:41] Speaker 03:
And you'll see that at, I think it is at 823.

[00:02:47] Speaker 03:
Or 807, sorry, Appendix 807, Figure 7.

[00:02:52] Speaker 03:
That's what Phillips relied on in terms of the embodiment for the plurality of sensory limitations.

[00:02:58] Speaker 03:
Then the board came in on its institution to sit and say, well, hey, Paragraph 16 includes this citation.

[00:03:04] Speaker 00:
But it's the summary of the invention, right?

[00:03:06] Speaker 00:
Well, it's- Paragraph 16 was in the summary of the invention.

[00:03:10] Speaker 03:
In paragraph 16, it is in the summary of the invention.

[00:03:13] Speaker 03:
That is correct, Your Honor.

[00:03:14] Speaker 03:
But if you read right from the first line in at least one embodiment, then it starts to describe what was in this embodiment.

[00:03:23] Speaker 03:
The same thing is in paragraph 85, which describes figure 7, and that's at 822, appendix 822.

[00:03:33] Speaker 03:
when it describes Figure 7 depicts a block diagram of at least one embodiment.

[00:03:37] Speaker 03:
So there's a couple responses to this.

[00:03:40] Speaker 03:
Number one,

[00:03:42] Speaker 03:
The board hasn't really explained or Phillips hasn't really explained how does a specification that just says at least one embodiment, how does that in paragraph 16 turn it into referring to all embodiments or the invention when it doesn't say that.

[00:03:56] Speaker 03:
But there's even a more technical or more substantive response to this issue is when you read what paragraph 16 is describing,

[00:04:04] Speaker 03:
It's actually directed to a device for alerting a user for prolonged sedentary behavior.

[00:04:11] Speaker 03:
And that's what it says in paragraph 16.

[00:04:13] Speaker 03:
When you look at paragraph 85, when it's describing the figure 7 embodiment, it states that that's a device for monitoring physical activity for reporting calorie burn inflammation.

[00:04:25] Speaker 03:
So our argument is, the first part, is that's a completely different embodiment.

[00:04:31] Speaker 03:
And there's no substantial evidence to support the board's findings that that isn't the case.

[00:04:36] Speaker 03:
But I think our second argument is actually more relevant, and I should have started with that, because the fact of the matter is it's the same issue with respect to the Figure 7 embodiment that applies to this issue.

[00:04:48] Speaker 03:
So directly to your point, Your Honor.

[00:04:52] Speaker 03:
If you have multiple triaxial accelerometers, which is something that's described in paragraph 16, let's say you have two triaxial accelerometers.

[00:05:01] Speaker 03:
Each triaxial accelerometer includes three accelerometers.

[00:05:04] Speaker 03:
All that's disclosing, and this is what we explain, is, in that particular example, six accelerometers.

[00:05:11] Speaker 03:
We still have the question, and the board never answered this, and Phillips never addressed this, which is what the plain meaning of the limitation in the claim should be interpreted as,

[00:05:22] Speaker 03:
That only shows six accelerometers or at least three accelerometers, but it doesn't show or disclose a plurality of sensors that include at least three accelerometers.

[00:05:34] Speaker 03:
And to understand that point, I want to go back to this.

[00:05:37] Speaker 01:
Let me just see if I'm understanding right.

[00:05:40] Speaker 01:
Your view is that given the language here of the claim,

[00:05:50] Speaker 01:
requires a sensor, an individual sensor, to have a plurality of accelerometers, to have at least three accelerometers.

[00:06:00] Speaker 01:
Because the language is that there is a plurality of sensors.

[00:06:06] Speaker 01:
And within that plurality, there are at least three accelerometers.

[00:06:11] Speaker 03:
So our position isn't quite what your honor has represented, so allow me to explain.

[00:06:18] Speaker 03:
So what your honor was describing is, I believe, what the board was doing.

[00:06:23] Speaker 03:
Okay, the board took a position that we disagree with.

[00:06:25] Speaker 03:
So if we start with the claim language, as your honor started with, claims 1 and 25 require a plurality of sensors that include at least three accelerometers.

[00:06:36] Speaker 03:
That does not state that the accelerometers are the sensors.

[00:06:45] Speaker 00:
It could though, right?

[00:06:46] Speaker 00:
I mean, it's broad language.

[00:06:48] Speaker 00:
It says the priority of sensors including at least three accelerometers.

[00:06:51] Speaker 00:
So you're saying in a box diagram, you'd have to have, say, two sensors, each one of which has at least three accelerometers.

[00:07:01] Speaker 00:
Right?

[00:07:02] Speaker 00:
Is that what you're... I'm interrupting you.

[00:07:04] Speaker 03:
No, I'm interrupting you, Your Honor.

[00:07:06] Speaker 03:
Yes, but I have to qualify, because the last point you made, I disagree with.

[00:07:11] Speaker 03:
So, your first point was, it could, right?

[00:07:15] Speaker 03:
On its face, if you just look at the language,

[00:07:18] Speaker 03:
Sure, if you want to look at it that way.

[00:07:19] Speaker 03:
But the key here is, and this is where the board took a misstep, it's in the context of the 377 patent when you look at this language.

[00:07:27] Speaker 03:
I'd like to direct you to now the 377 patent specification, which repeatedly and consistently describes the different types of motion sensors that can be included in the portable activity monitoring device.

[00:07:42] Speaker 03:
And to your honest question, it is a plurality of sensors in that claim.

[00:07:46] Speaker 03:
It's not just one sensor.

[00:07:47] Speaker 03:
Right?

[00:07:48] Speaker 03:
So when you look at the specification in a point, a good example is appendix 72.

[00:07:53] Speaker 03:
It's figures 3A to 3C.

[00:07:57] Speaker 03:
And that just gives one example of what this specification is describing.

[00:08:03] Speaker 03:
There you'll see a motion sensor, for example, motion sensor 12.

[00:08:07] Speaker 03:
And it's in a box.

[00:08:08] Speaker 03:
And within that box is it has particular sensing instrumentalities, components.

[00:08:14] Speaker 03:
In that particular instance, it's an accelerometer.

[00:08:16] Speaker 03:
You can also have a pedometer.

[00:08:18] Speaker 03:
You can have a gyroscope.

[00:08:19] Speaker 03:
You can have different types of these instrumentalities within each sensor.

[00:08:24] Speaker 03:
The pad uses the term over 200 times in the specification.

[00:08:29] Speaker 03:
In all instances, it's not saying what the board is indicating.

[00:08:33] Speaker 00:
We're not using the term.

[00:08:34] Speaker 00:
The word including?

[00:08:36] Speaker 03:
Sensor.

[00:08:36] Speaker 03:
Sensor, sorry.

[00:08:38] Speaker 03:
So the point being is,

[00:08:41] Speaker 03:
What the board is saying, and make no mistake, this is what the board's position is.

[00:08:44] Speaker 03:
And if you take a look at appendix 20 or 16.

[00:08:54] Speaker 01:
As I understand it, the board said two things.

[00:08:57] Speaker 01:
One is a single triaxial with three accelerometer sensors meets this limitation.

[00:09:07] Speaker 01:
And it says, in addition, Kroll teaches

[00:09:10] Speaker 01:
multiple triaxial accelerometers and either way you get compliance with this claim language.

[00:09:20] Speaker 01:
And the second one, putting aside your procedural point about whether that was relied on sufficiently in the petition, would in fact meet the limitation.

[00:09:32] Speaker 01:
Would it not?

[00:09:33] Speaker 03:
We disagree on both instances.

[00:09:35] Speaker 03:
So to frame it better for my

[00:09:38] Speaker 03:
my perspective, Your Honor, the figure seven and paragraph 16 embodiments, whether you have a single accelerometer and a curl.

[00:09:45] Speaker 03:
that's a triaxial accelerometer, which includes three accelerometers, or if you have the paragraph 16 example that has more than one triaxial accelerometer.

[00:09:56] Speaker 03:
The point here is we've got to start from the perspective of what do these terms mean in claims 1 and 25?

[00:10:03] Speaker 03:
When it says plurality of sensors that include these three accelerometers, the question for this court, honestly, is rather simple.

[00:10:12] Speaker 03:
Fitbit's position is that each, like Configure 3A, each of the plurality, you have to have a plurality of sensors and within them, contained within them, you have to have at least three accelerometers.

[00:10:24] Speaker 03:
The board's position and the philips' position all along was they just pointed to an accelerometer.

[00:10:29] Speaker 01:
Is it your view that an accelerometer all by itself cannot be a sensor under this

[00:10:37] Speaker 01:
Each of these figures that you rely on happen to be sensors that have a number of things in them.

[00:10:46] Speaker 01:
But what about a sensor in which the only thing in it was an accelerometer?

[00:10:53] Speaker 03:
Well, that's something that you can have a motion sensor that can have a single accelerometer.

[00:10:58] Speaker 01:
And nothing else in it, so that it's not like it has it in it.

[00:11:03] Speaker 01:
It is the sensor.

[00:11:06] Speaker 03:
Well, I gotta push back a little bit on the is the sensor part, because we're looking at what the claim language includes, but to your example, your honor, if you have a motion sensor or a sensor like we have described in the 377 pattern, it has a single accelerometer,

[00:11:22] Speaker 03:
Our position, it is not the accelerometer.

[00:11:25] Speaker 03:
The language of the claims makes that clear in the context of the specification.

[00:11:29] Speaker 03:
Appendix 110, Appendix 113, 115 in Columns 12, talking about Figures 5B, Figures 3.

[00:11:37] Speaker 03:
Throughout the specification, when it describes these motion sensors and it has these different particular instrumentalities within them, it's not equating, which is what the board did, an accelerometer to the motion sensor.

[00:11:51] Speaker 03:
It includes it.

[00:11:52] Speaker 01:
And I'll point this out because does the spec ever talk about an embodiment in which there is a sensor and that sensor is nothing but an accelerometer?

[00:12:06] Speaker 03:
The specification definitely discloses where you can have a motion sensor that can have a single accelerometer.

[00:12:14] Speaker 01:
That's not my question.

[00:12:16] Speaker 01:
OK, I'm sorry.

[00:12:17] Speaker 01:
So to put it maybe in the most challenging form, if each of the embodiments that is talked about throughout the spec happens to have

[00:12:28] Speaker 01:
within any given sensor, a bunch of stuff in it, then it's not surprising that in describing what is in those embodiments, the patent talks about accelerometer being in the sensor, not being the sensor.

[00:12:46] Speaker 01:
if there are no embodiments being described in which the sensor is nothing but an accelerometer.

[00:12:53] Speaker 01:
And if that's the case, then it feels to me like I want a discount as ultimately not significant for changing what I think is the plain language of the claim

[00:13:06] Speaker 01:
on its own to exclude, as you want to exclude, what the board said, which is an accelerometer can be a sensor.

[00:13:17] Speaker 01:
And if you have a plurality of accelerometers, then you have a plurality.

[00:13:23] Speaker 01:
If you have three accelerometers, then you have, in fact, met this claim language.

[00:13:29] Speaker 01:
A plurality of sensors with a plurality includes singular,

[00:13:34] Speaker 01:
S, right, after includes, 9% include the three accelerometers.

[00:13:40] Speaker 03:
There's a couple problems with that, Your Honor, in that view, and we've briefed this.

[00:13:44] Speaker 03:
One is, under that view, if you agree, if this Court, I should say, if this Court agrees with the Board, that those limitations are not separate or not separate and distinct, that they're the same, that they equate,

[00:13:59] Speaker 03:
then their mappings still curl and daemon.

[00:14:01] Speaker 03:
Of course, you know, Fitbit loses.

[00:14:03] Speaker 03:
But that's not our position.

[00:14:05] Speaker 03:
We think this is wrong.

[00:14:06] Speaker 03:
And here's why.

[00:14:07] Speaker 03:
When you look at that term, plurality of sensors, there's no dispute that plurality can mean two or more.

[00:14:14] Speaker 03:
I don't think anyone's going to quibble with that.

[00:14:17] Speaker 03:
But when you equate that term at least three accelerometers, like the board is them, now you've changed the language of the claim to not require two or encompass two or more.

[00:14:28] Speaker 03:
Now it has to have at least three or more.

[00:14:30] Speaker 03:
And that's not the language of the claim.

[00:14:32] Speaker 03:
And that's not consistent with what the specification describes.

[00:14:35] Speaker 00:
Dependent claims do that all the time.

[00:14:39] Speaker 00:
So is it your view that because this is an independent claim, there might be a dependent claim?

[00:14:44] Speaker 00:
In patent claiming, there might be a situation where you have an independent claim, you recite an element, and then in a dependent claim, you further recite something like when the sensors include at least three accelerometers, right?

[00:14:58] Speaker 00:
Right.

[00:14:58] Speaker 00:
I mean, that does happen.

[00:14:59] Speaker 00:
So is your argument really that

[00:15:02] Speaker 00:
You're relying on the specification, of course.

[00:15:04] Speaker 00:
But also, this argument you're making now seems to require that we really think that there's got to be some different way of looking at this when it's in the same claim, an independent claim.

[00:15:14] Speaker 03:
Not necessarily.

[00:15:15] Speaker 03:
I think even if you had the dependent claim, we could make the same argument to your honor.

[00:15:19] Speaker 03:
In other words, when it says plurality of censor, because keep in mind, we're saying in the context of what the patent has, these are

[00:15:26] Speaker 03:
Let me quote from their expert, Phillips's expert.

[00:15:29] Speaker 03:
If you have a, if the motion sensor contains

[00:15:36] Speaker 03:
accelerometers inside the motion sensor, then that is a sensor that is claimed in the 377.

[00:15:43] Speaker 03:
That's at appendix 2898.

[00:15:45] Speaker 03:
That was Phillips's expert.

[00:15:47] Speaker 03:
That's Fitbit's position.

[00:15:49] Speaker 03:
So we could make that same argument with respect to a dependent claim.

[00:15:53] Speaker 00:
Are you relying on the expert testimony, Phillips's expert testimony to support your claim construction?

[00:15:58] Speaker 03:
That is extrinsic evidence that helps support the claim construction.

[00:16:02] Speaker 03:
It's not intrinsic evidence.

[00:16:04] Speaker 03:
obviously you don't have to rely on it, but it's definitely something that could be considered as extrinsic evidence.

[00:16:10] Speaker 03:
But I want to get to your dependent claim question, Your Honor.

[00:16:15] Speaker 03:
Dependent claims 3 and 5 give a good example, too.

[00:16:18] Speaker 03:
Those claims indicate that the plurality sensors can include different types of sensors, altitude sensors, physiological sensors, motion sensors, and that's all consistent with the specification.

[00:16:29] Speaker 03:
By following what the board, this is part two, you have three or two, but if you follow what the board has done, now you're equating an accelerometer to a physiological sensor, which is no support in specification or in an intrinsic record that that's the case, or an altitude sensor becomes an accelerometer.

[00:16:47] Speaker 01:
So to your point, Your Honor, when you were asking if Excella... You're well over your opening time and your rebuttal time, so I'm going to call this to an end.

[00:16:59] Speaker 01:
You've got to finish your answer to Judge Stoll's question, but that's as far as you're going to go at this point.

[00:17:04] Speaker 01:
Yeah, I appreciate that, Your Honor.

[00:17:05] Speaker 03:
I think I answered your question, Your Honor, but if you have something else, I'll do it on the... If I get it, we're... Anyway, I appreciate it.

[00:17:11] Speaker 03:
You'll have it.

[00:17:24] Speaker 02:
Good morning.

[00:17:24] Speaker 02:
May it please the court.

[00:17:29] Speaker 02:
Despite not offering claim constructions below, Fitbit on appeal now attempts to imply constructions using arguments that are internally inconsistent and contradict both the intrinsic record and the weight of the evidence.

[00:17:43] Speaker 02:
In particular, with respect to Fitbit's arguments that the claimed plurality of sensors cannot be three accelerometers.

[00:17:50] Speaker 02:
To obtain allowance of the patent during prosecution,

[00:17:54] Speaker 02:
the applicant incorporated a dependent claim that literally said the plurality of censors are three accelerometers.

[00:18:02] Speaker 02:
Further, it should not be forgotten that Fitbit's request that relief you.

[00:18:07] Speaker 01:
I don't remember this exactly.

[00:18:08] Speaker 01:
I thought that incorporate covers a little bit too much territory.

[00:18:13] Speaker 01:
There was actually some change in the language.

[00:18:15] Speaker 02:
There was some change in the language, Your Honor, but the prosecution history said the independent claims were rejected.

[00:18:22] Speaker 02:
claim a dependent claim was indicated as being global to obtain allowance the argument that was made by the uh... prosecution attorneys were incorporating the allowable subject matter from claiming claim eight stated that you can use it can you address us the specification it seems to me that's that is

[00:18:40] Speaker 01:
to my mind at least, of the one and only argument that the other side has to make, that everywhere that you look in this specification, there's a distinction made between sensor and accelerometer.

[00:18:54] Speaker 02:
Certainly, Your Honor.

[00:18:57] Speaker 02:
With respect to that, what Fitbit points to is that figure.

[00:19:00] Speaker 02:
It loves figures 3A and 3B.

[00:19:02] Speaker 02:
But if you look at the actual writing of the specification, you'll see that the specification states that the appendix 112, column 6, starting in line 42.

[00:19:11] Speaker 02:
And I'm going to quote here, a motion sensor generates data which is representative of motion of the user.

[00:19:16] Speaker 02:
That's what a motion sensor is.

[00:19:18] Speaker 02:
So all the board need to determine is, does an accelerometer generate data that is indicative of motion?

[00:19:25] Speaker 02:
And there doesn't seem to be any dispute that that is, in fact, true.

[00:19:28] Speaker 02:
And if that's the case, that's the definition offered by the specification.

[00:19:32] Speaker 02:
And it's not the only time the specification states that.

[00:19:35] Speaker 02:
The specification also states that.

[00:19:37] Speaker 01:
Does the spec ever equate even sometimes

[00:19:44] Speaker 01:
an accelerometer with a sensor.

[00:19:49] Speaker 02:
Well, I would say the original specification is filed, which had the dependent claimate that said the plurality of sensors are three accelerometers.

[00:19:58] Speaker 02:
Certainly did.

[00:19:59] Speaker 01:
But not in the surviving written description.

[00:20:02] Speaker 02:
No, I think the issue here is, Your Honor, that figure 3B was sort of a draftsperson's sort of drawing of a sensor 12, and it could be any one of more of these things.

[00:20:12] Speaker 02:
So the specification certainly indicates that at column 3, lines 6 through 8, exemplary motion sensors, which include, for example, one or more accelerometers.

[00:20:24] Speaker 02:
The argument, and I think to give context here, the argument is essentially because of the box drawing in figure 3b, where there's a sensor, big box, and then other things that can be in it.

[00:20:35] Speaker 02:
Well, according to Fitbit, and you'll notice throughout the briefing below in the briefing here, Fitbit often says that an accelerometer is not necessarily a sensor.

[00:20:46] Speaker 02:
It sometimes can be and sometimes it's not, which is not really a good plain and ordinary meaning of the term sensor.

[00:20:52] Speaker 02:
What seems to be going on is Fitbit wants to maintain what it asserts in litigations.

[00:20:59] Speaker 02:
And with respect to litigations, it asserts these claims against individual triaxial accelerometers and says, that's what is infringing this claim.

[00:21:07] Speaker 02:
And I direct the panel to the appendix at 1558, where there's a claim chart that does exactly that.

[00:21:15] Speaker 02:
There's a triaxial accelerometer.

[00:21:17] Speaker 02:
Therefore, it meets the term claims.

[00:21:19] Speaker 02:
The argument seems to be sometimes an accelerometer or multiple accelerometers is counted as being in the box called sensor, and sometimes it's not.

[00:21:30] Speaker 02:
But apparently Fitbit gets to tell us when it does fall within one box and when it does not fall within the outside box.

[00:21:38] Speaker 02:
And sort of complicating this is there was no claim construction on this below.

[00:21:42] Speaker 02:
The only thing offered below is the plain and ordinary meaning.

[00:21:46] Speaker 02:
And I'll note that Fitbit brought up

[00:21:49] Speaker 02:
Philips expert's statement, so I'll note Fitbit's expert's statement.

[00:21:54] Speaker 02:
In the appendix at 1646 and 47, Fitbit's expert, when asked about the plan and ordinary meaning, says, a sensor is a device that senses.

[00:22:04] Speaker 02:
That's its plan and ordinary meaning.

[00:22:06] Speaker 02:
The only real issue here is, is an accelerometer a thing that senses?

[00:22:11] Speaker 02:
And in this case, senses motion.

[00:22:13] Speaker 02:
If the answer is yes, then a single accelerometer falls within the plan and ordinary meaning

[00:22:18] Speaker 02:
of a censor.

[00:22:20] Speaker 02:
Looking at the prosecution history, that is supported.

[00:22:23] Speaker 02:
Looking at the definition in the 377 that it's anything that generates data representative motion supports that.

[00:22:30] Speaker 02:
All the fit that relies upon is this idea of, well, if you look at figure 3B, there could be a big box and a little box.

[00:22:36] Speaker 02:
And sometimes things are in the same box and sometimes they're not.

[00:22:40] Speaker 02:
And we'll tell you later without a claim construction whether it's multiple boxes or a single box.

[00:22:45] Speaker 02:
which is not really a discussion in the specification.

[00:22:48] Speaker 02:
That's kind of a avoidance of what's actually written.

[00:22:54] Speaker 02:
And I'll note one other place in the specification where this is addressed, and that's appendix 113, column seven, starting at line 52.

[00:23:02] Speaker 02:
All types of sensors and sensing techniques, whether now known or later developed, that generate data which is representative of motion of the user are intended to fall within the scope of the present invention.

[00:23:14] Speaker 02:
And the question is, how can an accelerometer not meet that?

[00:23:17] Speaker 02:
And how can it not meet it when claim eight originally said that the plurality of sensors are?

[00:23:22] Speaker 02:
The reason for the structure of this claim where it says a plurality of sensors, wherein the plurality of sensors include, is only because that latter part was in a dependent claim and got brought over.

[00:23:33] Speaker 02:
Yes, some of the language was changed, but the intent was clear from the prosecution history.

[00:23:38] Speaker 02:
And for that reason, the plain and ordinary meaning

[00:23:44] Speaker 02:
is that it would fall within the scope of the claims.

[00:23:49] Speaker 01:
I know we did not hear about this this morning because we took all of the time on this first point, but there's a separate issue, is there not, about the meeting of the activity limitation and duration and intensity of

[00:24:09] Speaker 02:
work correct you're not not interested how do you get the intensity out of I guess no call call sir well let's start with the fact that there was a construction presented below in the petition that construction stated that that probably speaking activity points are I'm gonna quote here measures of energy expenditure such as the number of calories burnt that

[00:24:37] Speaker 02:
construction that was presented in the petition was actually a quote of Fitbit's own statement in its ITC litigation, which can be found at the appendix at 1334.

[00:24:47] Speaker 02:
And that construction applied to all of the claims, claims 1, 10, and 25.

[00:24:52] Speaker 02:
And I direct the panel's attention to the appendix at 1558 and 1560, where calories are counted according to Fitbit as falling within the scope of activity points even for claim 25.

[00:25:04] Speaker 02:
And the difference is

[00:25:05] Speaker 02:
For claim one, it says activity points that correlate only amount.

[00:25:09] Speaker 02:
And for claim 25, it's amount only.

[00:25:12] Speaker 02:
So we start from the premise here that the construction proposed below, which was a quote of Fitbit's own position, was that calories fall within the scope of the meaning of activity points.

[00:25:23] Speaker 02:
Fitbit's own expert adopted that construction in the appendix at 2427 paragraph 20.

[00:25:30] Speaker 02:
And as the Federal Circuit note, or excuse me, the board noted below,

[00:25:34] Speaker 02:
Fitbit did not provide an alternative construction or point to any error.

[00:25:38] Speaker 02:
So we're starting here with a construction of activity points can include calories.

[00:25:43] Speaker 01:
I guess just to try to get to what is in my mind and it may have a simple answer because all this that you're describing sounds like it's a build up.

[00:25:53] Speaker 01:
Calories can mean amount of calories and how many calories are burned in a particular time period which would be an intensity concept.

[00:26:02] Speaker 01:
Somehow the intensity concept got into this and I want to understand did the board rely on an intensity concept and if so

[00:26:13] Speaker 01:
Where does Kroll show the intensity?

[00:26:15] Speaker 01:
Certainly.

[00:26:16] Speaker 01:
I know that your expert has, I think, more or less a single sentence in paragraph 119 or something of his declaration, which the board cited.

[00:26:28] Speaker 01:
Am I getting the cases right?

[00:26:30] Speaker 01:
Maybe I'm confusing cases.

[00:26:32] Speaker 01:
That makes the assertion.

[00:26:34] Speaker 01:
But I don't see a citation to Kroll.

[00:26:37] Speaker 02:
Certainly.

[00:26:38] Speaker 02:
So Kroll describes, and the other reference Damon described describes as well, the idea that what is being measured here and displayed on these displays is the total calorie expenditure for a day.

[00:26:52] Speaker 02:
And it's basically tracking that.

[00:26:53] Speaker 02:
So you have a display that will say, so far today you've burned 200 calories.

[00:26:58] Speaker 02:
Later in the day, I might say you've burned 500.

[00:27:00] Speaker 02:
And that can be found in Crowell F, for instance, paragraphs 41, 81, and 89.

[00:27:05] Speaker 02:
And there doesn't seem to be any dispute that both Crowell and Damon disclose total calorie expenditure over the course of the day.

[00:27:13] Speaker 02:
That is not a rate, as Fitbit seems to argue.

[00:27:16] Speaker 02:
That is, what did you do today?

[00:27:19] Speaker 02:
You burned 500 calories.

[00:27:21] Speaker 02:
That is a total calorie expenditure.

[00:27:24] Speaker 02:
Then comes the second question.

[00:27:25] Speaker 02:
What's that made up of?

[00:27:27] Speaker 02:
And if you look at, for instance, Kroll's figure 14 is a good way to look at this.

[00:27:34] Speaker 02:
And that's the output from one of the accelerometers, specifically along the z-axis.

[00:27:40] Speaker 02:
When we're talking about calories and we're talking about total calorie expenditure, we're talking about total amounts and total intensity.

[00:27:52] Speaker 02:
The calorie expenditure will vary based on the number of steps you took in a day.

[00:27:57] Speaker 02:
But it will also vary based on the intensity of those steps.

[00:28:00] Speaker 02:
For instance, where you're running versus where you're walking.

[00:28:03] Speaker 02:
And if you look at figure 14, you see over the course of some period of time, whether it's an hour or whether it's a day, the total calorie expenditure in curl is basically what it calls or calculated from composite acceleration.

[00:28:17] Speaker 02:
That is everything from the outputs of all three accelerometers added together.

[00:28:24] Speaker 02:
So as you can see from figure 14, you can sort of see the frequency of the steps, which would indicate speed.

[00:28:29] Speaker 02:
You can see the amplitude of steps, which will be how hard are you hitting the ground and how many steps that you do over the course of that period of time.

[00:28:37] Speaker 02:
So amount might be time.

[00:28:39] Speaker 02:
It might be number of steps.

[00:28:41] Speaker 02:
Intensity would be impact of the step or speed.

[00:28:45] Speaker 02:
What Kroll does as explained in paragraphs 89 and 91 is

[00:28:50] Speaker 02:
It takes the outputs of all the accelerometers, adds them together, and then it converts that to calories.

[00:28:56] Speaker 02:
Therefore, calories and composite acceleration

[00:28:59] Speaker 02:
correlate to both the amount of exercise, how many steps did you do, and the intensity of the exercise, were you running versus walking.

[00:29:06] Speaker 01:
And that's it.

[00:29:08] Speaker 01:
That's enough for me.

[00:29:09] Speaker 02:
Yeah.

[00:29:10] Speaker 02:
And for that reason, that is why what is taught in the Kroll specification, as well as in Damon, which is also, just to be clear, Damon calls it total PAI because it says it doesn't like calories as much because it

[00:29:24] Speaker 02:
It has to deal with the weight of the person and the age of the person and therefore its total energy expenditure is a different unit of measurement, but it's still the total energy expenditure of the day.

[00:29:39] Speaker 02:
So in both cases what was relied upon is the total energy expenditure as being activity points.

[00:29:45] Speaker 02:
And even the 377 patent indicates that those things vary with respect to intensity.

[00:29:51] Speaker 02:
In that regard I would

[00:29:53] Speaker 02:
direct the panel's attention to, in the 377 pattern, for instance, at column 12, starting at line 7, it talks about calculating calorie consumption, burn, and or expenditure using data which is representative of intensity.

[00:30:12] Speaker 02:
Calories are based on intensity.

[00:30:14] Speaker 02:
And it goes on in other places, including column 8, line 62, and column 10, line 36, to talk about the fact that your calorie expenditure changes based on the speed of your activity.

[00:30:26] Speaker 02:
Are you running or are you walking?

[00:30:27] Speaker 02:
There's no real dispute here that overall calorie expenditure varies on both intensity and amount.

[00:30:33] Speaker 02:
And that is all that is needed to meet the requirements of these claims.

[00:30:37] Speaker 02:
The spec itself says that activity points can be measured in calories, and that's what was relied upon for curl.

[00:30:44] Speaker 02:
And it's that simple.

[00:30:48] Speaker 02:
I have time remaining, but I won't take the panel's time if there are no further questions.

[00:30:54] Speaker 02:
Thank you.

[00:30:55] Speaker 02:
Thank you.

[00:30:56] Speaker 01:
And Mr. Pallas, restore the rebuttal time.

[00:31:06] Speaker 03:
I'll try to be brief.

[00:31:10] Speaker 03:
So I want to touch on sensor and then activity point real quick.

[00:31:13] Speaker 03:
In terms of the sensor limitation, I'd like to direct the court to appendix 454, which is our server apply.

[00:31:20] Speaker 03:
There's a figure there that hopefully will frame the issue, and then I'll move on.

[00:31:24] Speaker 03:
I'll give you a second to get there.

[00:31:27] Speaker 03:
On appendix 454, you'll see this image that Fitbit presented in supporting its arguments.

[00:31:33] Speaker 03:
And on the left, you see what we have in the patent.

[00:31:36] Speaker 03:
The red box is the motion sensor, or a sensor.

[00:31:39] Speaker 03:
Now keep in mind, the claim one doesn't require it to be a motion sensor.

[00:31:42] Speaker 03:
It can be any type of sensor.

[00:31:43] Speaker 03:
But anyway.

[00:31:45] Speaker 03:
The blue box is the accelerometer.

[00:31:47] Speaker 03:
Yes, in a 377 patent, you can have multiple accelerometers inside that red box.

[00:31:52] Speaker 03:
You can have one, to your honors, one question, or you can have three or more, or you can have different things.

[00:31:57] Speaker 03:
On the right-hand side is effectively what Phillips was arguing and what the result of the board's interpretation.

[00:32:05] Speaker 03:
It flips it on its head.

[00:32:06] Speaker 03:
But by calling an accelerometer a sensor and then you just point to a single triaxial accelerometer, they're calling that accelerometer the sensor.

[00:32:15] Speaker 03:
But the claim requires that the sensor include the accelerometer, so it actually turns it on its head, and I think this graphically shows what our position is.

[00:32:22] Speaker 03:
In terms of activity point, I'll just touch on a couple points.

[00:32:26] Speaker 03:
The discussion in Figure 14 that we heard today is what Phillips relied on to support his position that composite acceleration correlates to both intensity and amount.

[00:32:43] Speaker 03:
But I want to make sure that the court understands this.

[00:32:45] Speaker 03:
In Claim 10, it requires both.

[00:32:47] Speaker 03:
That's not disputed.

[00:32:49] Speaker 03:
So composite acceleration was one of the things that the board pointed to for the calculate limitation.

[00:32:56] Speaker 03:
To get there, Phillips relied on their expert's opinion, which we believe is unsupported, that the notion that you can take outputs from the triaxial accelerometer, the x, y, z axis,

[00:33:07] Speaker 03:
and use that to calculate step count was not supported by the specification, and thus here we are without support from substantial evidence to support the board's following of that.

[00:33:17] Speaker 03:
If you read Paragraph 95 in the discussions of Figure 11, Figure 12, Figure 13, it doesn't do what we heard counsel say today, respectfully.

[00:33:29] Speaker 03:
Composite acceleration is not used to calculate the calorie count.

[00:33:33] Speaker 03:
The figure 14 discussion shows amplitudes, spikes, and even their expert agreed that that's a landing force, that's intensity.

[00:33:42] Speaker 03:
This is why Fitbit was arguing our position is composite acceleration only correlates to intensity.

[00:33:48] Speaker 03:
It doesn't correlate to amount, and therefore doesn't meet claim 10, for example, and 25.

[00:33:53] Speaker 03:
Figure 14 shows the z-axis, and so that, what happens as described in paragraph 95 of Krull is, well actually, figure 12 is a good example of that.

[00:34:03] Speaker 03:
There's steps S14, 15 through 16.

[00:34:06] Speaker 03:
It shows you calculate the resultant vector.

[00:34:09] Speaker 03:
That's the composite acceleration, same word.

[00:34:11] Speaker 03:
It's just a vector.

[00:34:13] Speaker 03:
And how that's calculated is it takes the outputs from the accelerometers and squares them and comes up with a value.

[00:34:18] Speaker 03:
The next step is now you have to determine if a step was declared.

[00:34:23] Speaker 03:
And that's what you see in figure 14 about the spikes, if something's over a certain threshold.

[00:34:27] Speaker 03:
It doesn't tell you the number of steps.

[00:34:30] Speaker 03:
It only tells you if a step has been declared.

[00:34:31] Speaker 03:
That's intensity because of the landing force.

[00:34:34] Speaker 03:
The next step in figure 12 goes to summing those values to get the count, but also summing the vector.

[00:34:42] Speaker 03:
That's the composite acceleration.

[00:34:45] Speaker 03:
There's your distinction between using composite acceleration as a vector to do some analysis, as opposed to using it to calculate a step count, keyword count here.

[00:34:57] Speaker 03:
It identifies a count, but not step counts.

[00:34:59] Speaker 03:
Step count is correlated to an amount.

[00:35:02] Speaker 03:
It's not correlated to an intensity.

[00:35:04] Speaker 03:
Just because I know I won 100 steps does not tell me how hard I was working out when I did that.

[00:35:09] Speaker 03:
That just tells me I won 100 steps.

[00:35:11] Speaker 03:
That's an amount.

[00:35:12] Speaker 03:
So unless the court has any other questions, I'll pass it on.

[00:35:17] Speaker 01:
Thank you.

[00:35:17] Speaker 01:
Thanks to both counsel.

[00:35:18] Speaker 01:
The case is submitted.