IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

Transcription

1 DOCKET NO: IN THE UNITED STATES PATENT AND TRADEMARK OFFICE PATENT: 6,703,939 TRIAL NO: IPR INVENTORS: Michael L. Lehrman, Michael D. Halleck, and Edward L. Massman FILED: July 19, 2001 ISSUED: March 9, 2004 TITLE: SYSTEM AND METHOD FOR DETECTING MOTION OF A BODY Mail Stop PATENT BOARD Patent Trial and Appeal Board U.S. Patent & Trademark Office P.O. Box 1450 Alexandria, VA PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 6,703,939

2 TABLE OF CONTENTS I. MANDATORY NOTICES... 1 A. Real Parties-in-Interest... 1 B. Related Matters... 1 C. Counsel... 2 D. Service Information... 2 E. Certification of Grounds for Standing... 2 II. OVERVIEW OF CHALLENGE AND RELIEF REQUESTED... 3 A. Grounds Asserted and Relief Requested... 3 B. Grounds Asserted Are Not Redundant... 4 III. CLAIM CONSTRUCTION... 5 IV. OVERVIEW OF THE 939 PATENT... 7 A. Brief Description... 7 B. The Prosecution History of the 939 Patent... 8 V. SPECIFIC GROUNDS FOR PETITION A. GROUND 1: Claims 1-3 are Obvious Over Yasushi Yasushi Overview Yasushi Renders Claims 1-3 Obvious B. GROUND 2: Claims 1-3, 21, and 22 are Obvious Over Unuma Unuma Overview Unuma Renders Claims 1-3, 21 and 22 Obvious C. No Evidence Supporting Secondary Indicia of Non-Obviousness D. Claim Chart VI. CONCLUSION i

3 FEDERAL STATUTES TABLE OF AUTHORITIES Page(s) 35 U.S.C , 4 35 U.S.C. 314(a)... 3 RULES Rule 42.22(a)(1)... 3 Rule (a)... 2 Rule (b)(1)-(2)... 3 REGULATIONS 37 C.F.R (b)... 5 ii

4 EXHIBIT LIST Exhibit Description 1001 U.S. Patent No. 6,703,939 (the 939 Patent ) 1002 Declaration of Gregory Francis Welch, PhD Concerning U.S. Patent No. 6,703,939 (with Appendices A-J) 1003 JP ( Yasushi ) 1004 EP A2 ( Unuma ) 1005 Summary Chart of Grounds in Petition 1006 File History of the 939 Patent 1007 File History of U.S. Patent No.6,307, Provisional Application Serial No. 60/265, Family Tree and Priority Date Chart iii

5 I. MANDATORY NOTICES A. Real Parties-in-Interest Nintendo of America Inc. ( Petitioner ) and Nintendo Co., Ltd. are the real parties-in-interest. B. Related Matters U.S. Patent No. 6,703,939 (the 939 patent) is assigned to ilife Solutions, Inc. ( ilife ) of Dallas, Texas. The 939 patent and five other patents in the same patent family and also assigned to ilife (U.S. Patent Nos. 6,307,481, 7,479,890, 7,145,461, 6,864,796 and 7,095,331) are all currently being asserted by ilife against Nintendo in ilife Technologies, Inc. v. Nintendo of America Inc., No. 3:13- cv (N.D. Tex.). These same patents are currently being asserted against other entities as well, including: ilife Technologies Inc. v. AliphCom, No. 3:14- cv (N.D. Cal.); ilife Technologies Inc. v. Body Media, Inc., No. 2:2014-cv (W.D. Pa.); and ilife Technologies Inc. v. v. Fitbit, Inc., No. 3:2014-cv (N.D. Cal.). In the litigation against Nintendo, ilife has targeted a variety of popular Nintendo video game products including the Wii, Wii mini, and Wii U consoles, Wii Remote, Wii Remote with Wii Motion Plus attachment, Wii Remote Plus, Nunchuk and Wii U GamePad controllers, Wii Remote accessories, and various 1

6 Wii and Wii U video games. Nintendo has denied all of ilife s infringement allegations and is vigorously defending the lawsuit. In addition to this Petition, Petitioner is concurrently seeking inter partes review of related U.S. Patent Nos. 6,307,481, 7,479,890, 7,145,461, 6,864,796 and 7,095,331, and requests that they be assigned to the same Board for administrative efficiency. C. Counsel Lead Counsel: Joseph S. Presta (Registration No. 35,329); Backup Counsel: Robert W. Faris (Registration No. 31,352). D. Service Information jsp@nixonvan.com; rwf@nixonvan.com. Post and Hand Delivery: (Lead Counsel): Joseph S. Presta, Nixon & Vanderhye, P.C.; 901 North Glebe Road, 11 th Floor, Arlington, Virginia 22203; Telephone: (703) ; Facsimile: (703) (Backup Counsel): Robert W. Faris (same address and phone/fax numbers). E. Certification of Grounds for Standing Petitioner certifies pursuant to Rule (a) that the patent for which review is sought is available for inter partes review and that Petitioner is not barred or estopped from requesting an inter partes review challenging the patent claims on the grounds identified in this Petition. 2

7 II. OVERVIEW OF CHALLENGE AND RELIEF REQUESTED A. Grounds Asserted and Relief Requested Pursuant to Rules 42.22(a)(1) and (b)(1)-(2), Petitioner challenges claims 1, 2, 3, 21, and 22 of the 939 patent as indicated below: 1 Ground 1: Claims 1, 2 and 3, are obvious in view of JP ( Yasushi ), titled Portable Accident Monitoring Device and Portable Accident Monitoring System Using the Device, published November 10, 1998 (Ex. 1003). Ground 2: Claims 1, 2, 3, 21 and 22 are obvious over European Patent Application EP A2 ( Unuma ), titled Method, Apparatus and System for Recognizing Motions, published January 7, (Ex. 1004). As explained below, the above-cited grounds create a reasonable likelihood that Petitioner will prevail with respect to at least one of the challenged claims. 35 U.S.C. 314(a). The arguments and charts herein and the Declaration of Gregory Francis Welch, PhD with accompanying charts (Ex and Appendix C and D, thereto), demonstrate that claims 1, 2, 3, 21, and 22 are unpatentable as obvious under 35 U.S.C. 103 based on the cited prior art. 1 Exhibit 1005 provides a convenient summary chart showing the references relied on for each of Grounds 1 and 2 and the manner in which they are asserted against each of the challenged claims. 3

8 Petitioner requests as relief that challenged claims 1, 2, 3, 21, and 22 of the 939 patent be canceled as unpatentable under 35 U.S.C B. Grounds Asserted Are Not Redundant Petitioner is challenging only five (5) of the thirty-eight (38) claims in the 939 patent, and has presented at the most only two (2) grounds for unpatentability for each challenged claim. Petitioner has been mindful not to unduly burden the PTAB with a large number of challenged claims or redundant grounds. Ground 1 is based on Yasushi and Ground 2 is based on Unuma. These grounds are not redundant. For example, challenged claims 1 and 21 require a determination as to whether an evaluated body movement is within an environmental tolerance. Unuma teaches, for example, comparing predetermined characteristic quantities with characteristic quantities extracted from measured accelerometer data. From the comparison, a motion or an action represented by the characteristic quantities of high correlation is output as a recognized result. (Unuma 3:36-39). Yasushi teaches, for example, that a given length of time for which the state of falling lasts and a given value of acceleration exceeding a normal range are preset. If the state of falling lasting for a given or longer length of time or an acceleration equal to or higher than a given value is detected, the analyzer 13 outputs an abnormal signal. (Yasushi 6:1-5). To the extent that it could be argued that Yasushi discloses this claim element to a greater degree than Unuma, Grounds 1 and 2 are not redundant. 4

9 (See CBM , paper 7, expanded panel). In contrast, to the extent one could argue that the processor in Unuma discloses the claimed processor to a greater degree than the analyzer of Yasushi, Grounds 1 and 2 are not redundant. (Id.). Accordingly, Petitioner respectfully requests that the Board not consider Grounds 1 and 2 redundant, and institute inter partes review of claims 1, 2, 3, 21 and 22 on both Grounds 1 and 2. III. CLAIM CONSTRUCTION For purposes of this Inter Partes Review (IPR), and without prejudice to any positions taken by Petitioner in any other proceedings, all claim terms should be given their broadest reasonable interpretation as understood by a person of ordinary skill in the art at the time of the invention ( POSA ) and consistent with the disclosure. (See, e.g., 37 C.F.R (b)). In addition, Petitioner proposes the following claim constructions for this IPR proceeding: sensor (claims 1 and 21) - a device that senses one or more absolute values, changes in value, or some combination of the same, of at least the sensed accelerative phenomena (support: express definition provided in specification at 2:45-53). body (claims 1, 2, 21 and 22) - any organic or inorganic object whose movement or position may suitably be evaluated relative to its environment 5

10 in accordance with the principles hereof (support: express definition provided in specification at 2:23-27). accelerative event and accelerative phenomena (claims 1 and 21) - occurrences of change in velocity of the body (or acceleration), whether in magnitude, direction or both, and including cessation or activity or inactivity (support: express definition provided in specification at 5:22-25). static accelerative phenomena (claim 21) - acceleration experienced as a result of gravity. (support: 1:65 2:1, 14:33-35, 14:66 15:13). dynamic accelerative phenomena (claim 21) - acceleration experienced as a result of motion (support: 1:65 2:1, 14:33-35, 14:66 15:13). processor (claims 1 and 21) - any device, system or part thereof that controls at least one operation, such a device may be implemented in hardware, firmware or software, or some suitable combination of at least two of the same (support: express definition provided in specification at 4:10-14). environment (claims 1 and 21) - the conditions and the influences that determine the behavior of the physical system in which the body is located (support: express definition provided in specification at 2:27-30). environmental tolerance (claims 1 and 21) - criteria defined for the environment in which the body exists (support: 6:57-65). 6

11 associated with (claims 1, 2, 21 and 22) and associable (claim 1) - to include, be included within, interconnect with, contain, be contained within, connect to or with, couple to or with, be communicable with, cooperate with, interleave, juxtapose, be proximate to, be bound to or with, have, have a property of, or the like (support: express definition provided in specification at 4:3-10). IV. OVERVIEW OF THE 939 PATENT A. Brief Description The 939 patent is titled System and Method for Detecting Motion of a Body. The 939 patent relates generally to means for detecting motions of a body and, more particularly, relates to systems and methods of operation thereof for evaluating movement of a body relative to an environment to identify occurrences of irregular body motions or falls. (Ex :24-28). A controller associated with a sensor is operable to process sensed accelerative phenomena as a function of an accelerative event characteristic. The controller determines when the body experiences an acceleration that represents a particular type of motion. The controller also determines when a static acceleration vector reaches a value indicative of a fall. (Ex Abstract). The 939 patent explains that static acceleration is acceleration experienced by a body due to the forces of gravity, while dynamic acceleration is caused by 7

12 movement of the body. (See Ex :65 2:1). In an attempt to distinguish the alleged invention from the prior art, the specification states that While accelerometers that measure both static and dynamic acceleration are known, their primary use has heretofore been substantially confined to applications directed to measuring one or the other, but not both. (Ex :1-4) (emphasis added). As established below, this representation by Applicant is untrue, as numerous prior art systems, including Yasushi and Unuma cited herein, disclose accelerometers that measure both static and dynamic acceleration for the purpose of analyzing activity of a body. The inaccuracy of Applicant s representation regarding the prior art is further confirmed by Dr. Welch. (Ex. 1002, 31, 35-57). B. The Prosecution History of the 939 Patent As summarized in the Family Tree and Priority Date Chart of Ex. 1009, the application that issued as the 939 patent was filed as Application No. 09/909,404 on July 19, (Ex. 1006). The 939 application was filed as a continuation-inpart of Application No. 09/396,991 (Ex. 1007) (issued as U.S. Patent No. 6,307,481) and also claimed priority to U.S. Provisional Application No. 60/265,521 filed January 31, (Ex. 1008). The 481 application was filed on September 15, 1999 as an original application with no priority claim. The 939 application as filed included 38 claims, of which claims 1 and 21 were independent. The Applicants submitted a Terminal Disclaimer in response to an 8

13 obviousness-type double patenting rejection of claims 1-38 over claims 1-32 of U.S. Patent Application No. 09/804,723 (which issued as U.S. Patent No. 6,661,347). (Ex at 145; id. at ). In addition, to overcome an anticipation rejection in view of U.S. Patent No. 5,694,340 (Kim), the Applicant amended claim 21 to require that the repeatedly sensed accelerative phenomena of said body be dynamic and static accelerative phenomena. (Id. at 156; id. at 148). In the remarks accompanying the amendment, the Applicant argued that: The sensor disclosed, in Kim measures only dynamic accelerative forces (those associated with motion), not static accelerative forces such as gravity. Amended Claim 21 is directed to both dynamic and static accelerative phenomena. Kim measures the dynamic accelerations (linear and angular) of a moving object but does not measure the-gravitational acceleration on the moving object. For the reasons set forth above the Applicants respectfully submit that amended Claim 21 is not -anticipated -by the Kim reference and that amended Claim 21 is patentable. Claims depend from amended Claim 21. The Applicants respectfully submit that Claims are also patentable. The Applicants respectfully request that Claims 1-38 be passed to allowance. (Id. at ). In response, the Examiner allowed all 38 claims, stating that: [N]o prior at reference utilizes the system that evaluates movement of a body relative to an environment, said system comprising: 9

14 a sensor, associable with said body, that senses accelerative phenomena of said body relative to three dimensional frame of reference in said environment, said sensor comprising a plurality of acceleration measuring device; and a processor, associated with said sensor, that processes said sensed accelerative phenomena as a function of at least one accelerative event characteristic to thereby determine whether said evaluated body movement is within environmental tolerance, and to thereby determine whether said body has experienced acceleration that represents one of a plurality of different types of motion. (Id. at 179). The 939 patent issued on March Independent claim 1 as issued in the 939 patent recites the feature of sensing acceleration relative to a three dimensional frame of reference. (Ex. 1001, claim 1). This feature was first disclosed by Applicant in Provisional Application No. 60/265,521 filed January 31, (Ex. 1008). Thus, the earliest priority date to which claim 1 of the 939 patent is entitled is January 31, (See Ex. 1009). Claim 21 of the 939 patent, as well as numerous other claims issued in this patent family recite the feature of sensing both dynamic and static acceleration. Throughout the prosecution of the applications leading to the 939 patent, the Applicant successfully argued in response to rejections that the prior art failed to disclose systems that measure both dynamic and static acceleration. 10

15 (see, e.g., Ex. 1006, 1007). The Examiner was apparently unaware that numerous prior art references, including Unuma cited herein, clearly disclose this feature. Thus, it is clear from the file histories leading up to the issuance of the 939 patent that the Examiner was unaware of the existence of highly relevant prior art, such as Yasushi and Unuma, that would have precluded allowance of the claims in the 939 patent. V. SPECIFIC GROUNDS FOR PETITION The two (2) specific grounds on which this Petition is based are set forth below and are fully described herein. Petitioner also submits herewith the Declaration of Gregory Francis Welch, PhD (Ex with Appendices A-J), which confirms each of the grounds for unpatentability. A. GROUND 1: Claims 1, 2 and 3 are Obvious Over Yasushi 1. Yasushi Overview The Yasushi application was published on November 10, As explained above, the earliest possible priority date to which claim 1 of the 939 patent are entitled is January 31, (See Ex. 1009). As a result, Yasushi is prior art under 102(b) to claims 1, 2 and 3 of the 939 patent. Yasushi generally describes a portable accident monitoring system for monitoring states of motion of an individual such as an aged person. (Yasushi 1:5-7, 3:1, 5:23). The device includes 11

16 sensor 11 attached to the person which detects acceleration along three axis orthogonal to each other and outputs acceleration data. (Yasushi 1:8-10, 5:23). Characteristic features of the acceleration data generated by acceleration sensor 11 are illustrated in Yasushi Figs 3-6. These graphs also demonstrate that both dynamic and static acceleration are continuously measured. For example, Figs 3 and 4 show fluctuating accelerometer readings, including readings in excess of 1G resulting from dynamic acceleration: 12

17 Figures 5 and 6, for example, show non-fluctuating readings, including constant readings of 1G, resulting from static acceleration occurring when a body is not moving: Analyzer 13 processes the acceleration data as a function of such accelerative characteristics and, for example, outputs an abnormal signal based on predetermined environmental tolerances, such as the state of falling lasting for a given or longer length of time or an acceleration equal to or higher than a given value. (Yasushi 1:11-13.). A receiving device is also provided with a notification 13

18 part which receives data transmitted wirelessly from transmitter 14 and gives notice of an abnormal state. (Yasushi 1:14-16). 2. Yasushi Renders Claims 1, 2and 3 Obvious A POSA would have found, at a minimum, the subject matter of claims 1, 2 and 3 obvious in view of Yasushi. As shown below and in the Welch Declaration (Ex. 1002, and Appendix C), arguably all of the claimed elements of these claims could be seen as fairly disclosed by Yasushi. If the PTAB finds that all claim elements are present in Yasushi, then the challenged claims should still be canceled as obvious. As the PTAB has stated [b]ecause anticipation is the epitome of obviousness, a disclosure that anticipates under 35 U.S.C. 102 also renders the claim unpatentable under 35 U.S.C (IPR , paper 18 at 31 (citation omitted)). Moreover, even if a difference between Yasushi and the claims could be shown, a POSA would have found any such alleged difference to be insignificant and obvious in view of Yasushi. Petitioner identifies and explains below where each specific claim element is disclosed in Yasushi or rendered obvious thereby. CLAIM 1: [1a] A system that evaluates movement of a body relative to an environment, said system comprising: 14

19 Yasushi s system evaluates the movement of a body, such as an aged person, relative to the person s environment. (See Yasushi 2:30-3:2, 5:23-26, 5:29-6:1; see also Ex and Appendix C). [1b] a sensor, associable with said body, that senses accelerative phenomena of said body relative to a three dimensional frame of reference in said environment, Yasushi discloses a portable accident monitoring device comprising acceleration sensor 11 which detects acceleration along three axes orthogonal to each other and outputs acceleration data. (See Yasushi 1:8-10). The sensor is attached to the lower back of an individual to detect acceleration relative to a three dimensional frame of reference ( along the three, X-, Y-, and Z-, axes ) as the individual moves within their environment. (Yasushi 5:23-26, 6:16-18; see also Ex and Appendix C). [1c] said sensor comprising a plurality of acceleration measuring devices; and Acceleration sensor 11 comprises a plurality of acceleration measuring devices, i.e., three sensing segments 11A each consisting of a semiconductor element and connected to the mounting surface (not shown) of a printed substrate (not shown). (Yasushi 5:13-22; see also Ex and Appendix C). [1d] a processor, associated with said sensor, that processes said sensed accelerative phenomena of said body as a function of at least one accelerative event characteristic 15

20 Yasushi s analyzer 13 is a processor associated with acceleration sensor 11 that processes accelerative phenomena of the body. (Yasushi 5:29-30, 4:9-12). Signals from sensor 11 (i.e., sensed accelerative phenomena) are received by analyzer 13 in response to accelerative events. (Yasushi 5:29-6:1). By processing the acceleration data as a function of characteristics of the accelerative events, the system is able to distinguish between various accelerative events using characteristics thereof. For example, the system can distinguish between various movements and/or conditions that the body is experiencing within the environment, such as, the state of the individual, walking, running, standing still, or falling, thereby constantly knowing the body condition. (Yasushi 5:29-6:1, 1:11-13). Figures 3-6, below, show examples of the characteristic features of various accelerative events, such as walking (Fig. 3), running (Fig. 4), standing still (Fig. 5) and fallen (Fig. 6). (Yasushi 6:20 7:6; see also Ex and Appendix C). At a minimum, a POSA would have found it obvious in view of Yasushi to provide the processor required by claim 1. (See Ex and Appendix C). 16

21 [1e] to thereby determine whether said evaluated body movement is within an environmental tolerance, Yasushi s analyzer 13 determines whether the evaluated body movement is within an environmental tolerance, such as whether the state of falling lasts for a given or longer length of time or whether an acceleration is equal to or higher than a given value. (Yasushi 6:1-5; see also Ex and Appendix C). [1f] and to thereby determine whether said body has experienced acceleration that represents one of a plurality of different types of motion. Yasushi s analyzer 13 determines whether the body has experienced acceleration representative of, e.g., walking, running, standing still, or falling, which are different types of motion. The analyzer 13 is connected to the data memory 12 and analyzes the acceleration data of the three axes to distinguish the state of the 17

22 individual, walking, running, standing still, or falling, thereby constantly knowing the body condition. (Yasushi 5:29-6:1). (See Ex and Appendix C). Therefore Yasushi renders claim 1 obvious. (Ex ). CLAIM 2: The system set forth in claim 1 wherein said one of said plurality of different types of motion is one of: no motion, a successful attempt to change position, an unsuccessful attempt to change position, a motion of a body moving with a gait, a motion of a body moving with a gait associated with a disability, a swaying motion, a near fall, and a fall. As shown above, and in the Welch Declaration and accompanying Appendix C, Yasushi, at a minimum, renders obvious claim 1, from which claim 2 depends. The plurality of different types of motion determined by Yasushi s system include several of the types identified in this claim, including no motion (e.g., standing still ) and a fall, among others. When an individual is standing still, as shown in Fig. 5, the acceleration data shows that the acceleration along all three axes is constant, not fluctuating. However, the acceleration along the X-axis and Y-axes is zero while the acceleration along the Z-axis is 1 G under the gravitational acceleration. When an individual falls due to a seizure or the like, as shown in Fig. 6, the acceleration data shows that the acceleration along all three axes is constant, not fluctuating, as in standing still. (Yasushi 6:28-7:3). 18

23 (Fig. 5) (Fig.6) The analyzer 13 is connected to the data memory 12 and analyzes the acceleration data of the three axes to distinguish the state of the individual, walking, running, standing still, or falling, thereby constantly knowing the body condition. (Yasushi 5:29-6:1). [A]n analyzer 13 which analyzes the acceleration data from the data memory 12 and outputs an abnormal signal when the state of falling lasting for a given or longer length of time (Yasushi 1:11-13). (See Ex and Appendix C). Therefore Yasushi renders claim 2 obvious. (Ex ). CLAIM 3: The system set forth in claim 1 wherein said plurality of acceleration measuring devices comprises three accelerometers in which each accelerometer is aligned along one axis of a three dimensional coordinate system. As shown above, and in the Welch Declaration and Appendix C, Yasushi, at a minimum, renders obvious claim 1, from which claim 3 depends. Yasushi discloses a portable accident monitoring device comprising acceleration sensor 11 19

24 which detects acceleration along three axes orthogonal to each other and outputs acceleration data. (See Yasushi 1:8-10). The sensor is attached to the lower back of an individual to detect acceleration relative to a three dimensional frame of reference ( along the three, X-, Y-, and Z-, axes ) as the individual moves within their environment. (Yasushi 5:23-26, 6:16-18; see also Ex and Appendix C). Therefore Yasushi renders claim 3 obvious. (Ex ). B. GROUND 2: Claims 1, 2, 3, 21, and 22 are Obvious Over Unuma 1. Unuma Overview The Unuma application was published on January 7, Unuma, therefore, is prior art to the 939 patent under 102(b). Unuma is directed to a system for recognizing motions and actions of moving objects such as humans, animals and machines. (Unuma 2:3-6). Acceleration sensors are attached to an object under observation, as shown in Fig

25 Signal characteristic quantity extraction unit 5 extracts a characteristic quantity from the acceleration measurement signal, the extracted quantity representing the motion or action currently performed by the object under observation. A signal processing unit for motion/action recognition correlates the extracted characteristic quantity with reference data in a database containing previously acquired characteristic quantities of motions and actions. The motion or action represented by the characteristic quantity with the highest degree of correlation is recognized and output. (See Unuma Abstract). Figures 16A and 16B, below, provide an illustrative example of the correlation performed by Unuma s system. 21

26 Unuma s acceleration sensors continuously measure dynamic and static (gravitational) acceleration of the body, as illustrated in Fig

27 An exemplary embodiment evaluates motions of objects under observation, such as patients in a hospital environment. The example shown in Fig. 43, below, illustrates a period 1130 in which the patient was briskly walking. In a subsequent period 1131, the patient was walking and, in the next period, 1132, the patient was standing still. Subsequently, during a period 1133 the patient collapsed and, in the following period 1134, the patient is lying down and does not move any more. (Unuma 31: ll ). Unuma explains, For example, the action of a sudden collapse onto the ground is recognized as a motion pattern made up of a motion of a walking or standing-still posture followed by a motion of reaching the ground in a short time which in turn is followed by a motion lying still on the ground. Similarly, the action of a fall from an elevated location is recognized as a motion pattern 23

28 constituted by motions of climbing, falling, hitting obstacles, reaching the ground and lying still, occurring in that order. (Unuma 16:26-30). As described earlier, this recognition device is capable of recognizing a single motion or action that takes place within a limited period of time (Unuma 16:18-19). Thus, Unuma s system determines whether a body has experienced no movement for a predetermined period of time. 2. Unuma Renders Claims 1, 2, 3, 21, and 22 Obvious A POSA would have found, at a minimum, the subject matter of claims 1, 2, 3, 21 and 22 obvious in view of Unuma. As shown below and in the Welch Declaration (Ex. 1002, and Appendix D), arguably all of the claimed elements of these claims could be seen as fairly disclosed by Unuma. If the PTAB finds that all claim elements are present in Unuma, then the challenged claims should still be canceled as obvious. As the PTAB has stated [b]ecause anticipation is the epitome of obviousness, a disclosure that anticipates under 35 U.S.C. 102 also renders the claim unpatentable under U.S.C (IPR , paper 18 at 31 (citation omitted)). Moreover, even if a difference between Unuma and the claims could be shown, a POSA would have found any such alleged difference to be insignificant and obvious in view of Unuma. Petitioner identifies and explains below where each specific claim element is disclosed in Unuma or rendered obvious thereby. 24

29 CLAIM 1: [1a] A system that evaluates movement of a body relative to an environment, said system comprising: Unuma s system evaluates movement of a body relative to an environment using techniques for measuring a status change entailing motions and/or actions of a human being, an animal or a machine (generically called the object under observation hereunder). More particularly, the invention relates to a method for recognizing such motions and/or actions, as well as to an apparatus adopting that method and a system comprising that apparatus. (Unuma 2:3-6; see also Fig. 1). Unuma offers the benefit of recognizing the object's action and work status as well as the environment in which the object is placed, by use of a history of multiple motions and patterns of combined motions. (Unuma 13:47-49, 30:30-32; see also Ex and Appendix D). [1b] a sensor, associable with said body, that senses accelerative phenomena of said body relative to a three dimensional frame of reference in said environment, Unuma discloses [t]he acceleration sensor is attached to the object under observation. (Unuma 11:53-54). The acceleration sensor senses accelerative phenomena of the object (i.e., body) relative to a 3D frame of reference in the environment. (See Unuma Fig. 8). As explained by Unuma, [w]hereas the above embodiment was shown using measurements taken on a single axis in the object's vertical direction for purpose of simplification and illustration, this is not limitative 25

30 of the invention. Measurements taken in other directions, such as acceleration changes measured in the crosswise and lengthwise directions, may also be subjected to the process of characteristic quantity extraction. The extracted quantities may be judged and recognized individually or in combination. (Unuma 8:41-45; see also Ex and Appendix D). [1c] said sensor comprising a plurality of acceleration measuring devices; and Unuma discloses that [e]ither a single or a plurality of measuring instruments may be used. (Unuma 6:26). Unuma describes acceleration sensors as typical measuring instruments. (Unuma 6:31). Thus, Unuma teaches a sensor comprising a plurality of acceleration measuring devices. At a minimum, a POSA would have found it obvious to use a sensor comprising a plurality of acceleration measuring devices in view of Unuma. (See Ex and Appendix D). [1d] a processor, associated with said sensor, that processes said sensed accelerative phenomena of said body as a function of at least one accelerative event characteristic Unuma s characteristic quantity extraction unit 5 and signal processing unit 7 associated with the acceleration measuring devices are implemented illustratively by use of a memory and a data processor. The memory stores programs for executing a characteristic quantity extraction process and a motion/action recognition process.. The data processor comprises a DSP or MPU for carrying out these programs. (Unuma 6:17-20). The processor processes acceleration 26

31 signals (i.e., sensed accelerative phenomena of a body) as a function of characteristic quantities of the motions involved (i.e., accelerative event characteristics). For example, Bar graphs of the analyzed result represent spectrum intensities of the frequency components acquired through Fourier transformation. The frequency characteristic differs from one motion to another. The differences constitute the characteristic quantities of the motions involved. (Unuma 6:41-43). With the above embodiment, the characteristic quantity extraction unit adopts Fourier transformation it its frequency analysis. However, this analysis method is not limitative of the invention; wavelet transformation, time frequency analysis or any other appropriate frequency analysis scheme may be implemented, and the characteristic quantity may be extracted from the result of such transformation. (Unuma 8:7-10). By processing the acceleration data as a function of characteristics of the accelerative events, the system is able to distinguish between various accelerative events using characteristics thereof. For example, [t]he motion of "climbing" is recognized by detecting an upward acceleration greater than gravitational acceleration. The motions of "falling," "hitting obstacles" and "reaching the ground" are recognized respectively by detection of "zero acceleration in all directions (because of free fall)," "intense acceleration occurring in different directions in a short time" and "suffering a considerably strong acceleration." (Unuma 16:31 34). Thus, Unuma s processor 27

32 processes acceleration data from the sensor as a function of a characteristic quantity of the motions involved (i.e., as a function of an accelerative event characteristic). (See also Ex and Appendix D). [1e] to thereby determine whether said evaluated body movement is within an environmental tolerance, Unuma s system determines, for example, in a hospital environment, whether the body activity of a patient is within environmental tolerance or, conversely, in an emergency state of collapse. For example, the action of a sudden collapse onto the ground is recognized as a motion pattern made up of a motion of a walking or standing-still posture followed by a motion of reaching the ground in a short time which in turn is followed by a motion lying still on the ground. Similarly, the action of a fall from an elevated location is recognized as a motion pattern constituted by motions of climbing, falling, hitting obstacles, reaching the ground and lying still, occurring in that order. (Unuma 16:26-30; see also 13:26-34, Figs 39, 42, 43). The example shows motions of objects under observation such as patients in a hospital. In this example, a layout of the interior of the hospital is illustrated. If the object under observation gets out from a building, however, outdoor scenery including roads and parks can also be expressed in the same way. (Unuma 29:43-45). In the setup where the position measurement unit 41 is additionally furnished to measure specific motion patterns, arrangements may be made to permit a choice of reporting or not reporting the 28

33 recognized motion pattern depending on where the incident is observed. This feature is useful in averting a false alarm provoked by an apparent collapsing motion of the object under observation when in fact the object is lying on a couch for examination at a hospital or climbing onto the bed at home. (Unuma 17:3-7). At a minimum a POSA would have found it obvious in view of Unuma s disclosed determinations regarding body movements within particular environments that trigger, for example, alarms and reports, to provide a determination of whether said evaluated body movement is within an environmental tolerance, as required by claim 1. (See also Ex and Appendix D). [1f] and to thereby determine whether said body has experienced acceleration that represents one of a plurality of different types of motion. Unuma s processor determines whether a body has experienced acceleration that represents, for example, the following types of motions: "walking," "running,"" squatting" and "lying down." (See Unuma 6:31-37; see also Figs 2 and 3; Ex ). 29

34 Therefore Unuma renders claim 1 obvious. (Ex ). CLAIM 2: The system set forth in claim 1 wherein said one of said plurality of different types of motion is one of: no motion, a successful attempt to change position, an unsuccessful attempt to change position, a motion of a body moving with a gait, a motion of a body moving with a gait associated with a disability, a swaying motion, a near fall, and a fall. As shown above, and in the Welch Declaration and Appendix D, Unuma, at a minimum, renders obvious claim 1, from which claim 2 depends. Unuma s 30

35 processor determines at least the following types of motions, any one of which meet this claim limitation: "walking," "running,"" squatting" and "lying down" (see Unuma 6:31-37; see also Unuma Figs 2 and 3), as well as a walk of a disabled person with a leg injury resulting from an accident. (Unuma 14:42; see also Ex ). Therefore Unuma renders claim 2 obvious. (Ex ). CLAIM 3: The system set forth in claim 1 wherein said plurality of acceleration measuring devices comprises three accelerometers in which each accelerometer is aligned along one axis of a three dimensional coordinate system. As shown above, and in the Welch Declaration and Appendix D, Unuma, at a minimum, renders obvious claim 1, from which claim 3 depends. Unuma discloses that [e]ither a single or a plurality of measuring instruments may be used. (Unuma 6:26, see also Fig. 8). A typical status change measuring instrument may be an acceleration sensor (Unuma 6:31). Whereas the above embodiment was shown using measurements taken on a single axis in the object's vertical direction for purpose of simplification and illustration, this is not limitative of the invention. Measurements taken in other directions, such as acceleration changes measured in the crosswise and lengthwise directions, may also be subjected to the process of characteristic quantity extraction. The extracted quantities may be judged and 31

36 recognized individually or in combination. At a minimum, Unuma renders this claim obvious. (Unuma 8:41-45; see also Ex and Appendix D). Therefore Unuma renders claim 3 obvious. (Ex ). CLAIM 21: [21a] A method of operating a system to evaluate movement of a body relative an environment Unuma s system evaluates movement of a body relative an environment using techniques for measuring a status change entailing motions and/or actions of a human being, an animal or a machine (generically called the object under observation hereunder). More particularly, the invention relates to a method for recognizing such motions and/or actions, as well as to an apparatus adopting that method and a system comprising that apparatus. (Unuma 2:3-6; see also Fig. 1). Unuma offers the benefit of recognizing the object's action and work status as well as the environment in which the object is placed, by use of a history of multiple motions and patterns of combined motions. (Unuma 13:47-49, 30:30-32; see also Ex and Appendix D). [21b] wherein a sensor is associated with said body, said method of operation comprising the steps of: Unuma discloses [t]he acceleration sensor is attached to the object under observation. (Unuma 11:53-54; see also Ex ). 32

37 [21c] processing, with a processor, repeatedly sensed dynamic and static accelerative phenomena of said body as a function of at least one accelerative event characteristic Unuma s processing unit 7 processes repeatedly sensed dynamic and static (gravitational) acceleration of the body, as illustrated in Fig. 3. The measurements are substantially continuous. The signal processing unit 7 for motion/action recognition continuously receives characteristic quantity data 10 from the characteristic quantity extraction unit 5, the data 10 being derived from the ongoing motions/actions of the object 1 under observation. (Unuma 6:48-50). A typical status change measuring instrument may be an acceleration sensor attached to the waist of the human body, as shown in Fig. 2. The acceleration sensor installed as depicted in Fig. 2 takes measurements of acceleration applied to the human body in the direction of its height. Output results 20 from the acceleration sensor indicate specific time series data items 21 through 24 derived 33

38 from human motions of "walking," "running," "squatting" and "lying down." In the example of Fig. 2, data items 21 and 22 denote cyclic acceleration changes during walking or running, data item 23 represents a single acceleration change, and data item 24 stands for a state of no acceleration in which gravitational acceleration is not detected because the object is lying down. (Unuma 6:31-37). By processing the acceleration data as a function of characteristics of the accelerative events, the system is able to distinguish between various accelerative events using characteristics thereof. For example, [t]he motion of "climbing" is recognized by detecting an upward acceleration greater than gravitational acceleration. The motions of "falling," "hitting obstacles" and "reaching the ground" are recognized respectively by detection of "zero acceleration in all directions (because of free fall)," "intense acceleration occurring in different directions in a short time" and "suffering a considerably strong acceleration." (Unuma 16:31 34; see also Ex and Appendix D). Thus, Unuma clearly discloses the feature of processing repeatedly sensed dynamic and static accelerative phenomena of a body as a function of at least one accelerative event characteristic, as claimed. [21d] to thereby determine whether said evaluated body movement is within environmental tolerance; and Unuma s system determines, for example, in a hospital environment, whether the body activity of a patient is within environmental tolerance or, conversely, in 34

39 an emergency state of collapse. For example, the action of a sudden collapse onto the ground is recognized as a motion pattern made up of a motion of a walking or standing-still posture followed by a motion of reaching the ground in a short time which in turn is followed by a motion lying still on the ground. Similarly, the action of a fall from an elevated location is recognized as a motion pattern constituted by motions of climbing, falling, hitting obstacles, reaching the ground and lying still, occurring in that order. (Unuma 16:26-30; see also 13:26-34, Figs 39, 42, 43). The example shows motions of objects under observation such as patients in a hospital. In this example, a layout of the interior of the hospital is illustrated. If the object under observation gets out from a building, however, outdoor scenery including roads and parks can also be expressed in the same way. (Unuma 29:43-45). In the setup where the position measurement unit 41 is additionally furnished to measure specific motion patterns, arrangements may be made to permit a choice of reporting or not reporting the recognized motion pattern depending on where the incident is observed. This feature is useful in averting a false alarm provoked by an apparent collapsing motion of the object under observation when in fact the object is lying on a couch for examination at a hospital or climbing onto the bed at home. (Unuma 17:3-7). At a minimum a POSA would have found it obvious in view of Unuma s disclosed determinations regarding body movements within particular environments that 35

40 trigger, for example, alarms and reports, to provide a determination of whether said evaluated body movement is within an environmental tolerance, as required by claim 21. (See also Ex and Appendix D). [21e] determining whether said body has experienced acceleration that represents one of a plurality of different types of motion. Unuma s processor determines whether a body has experienced acceleration that represents, for example, the following types of motions: "walking," "running,"" squatting" and "lying down." (See Unuma 6:31-37; see also Figs 2 and 3; Ex ). Therefore Unuma renders claim 21 obvious. (Ex ). CLAIM 22: The method set forth in claim 21 wherein one of said plurality of different types of motion is one of: no motion, a successful attempt to change position, an unsuccessful attempt to change position, a motion of a body moving with a gait, a motion of a body moving with a gait associated with a disability, a swaying motion, a near fall, and a fall. As shown above, and in the Welch Declaration and Appendix D, Unuma, at a minimum, renders obvious claim 21, from which claim 22 depends. Unuma s processor determines at least the following types of motions, any one of which meet this claim limitation: "walking" "running" "squatting" and "lying down" (see Unuma 6:31-37; see also Unuma Figs 2 and 3), as well as a walk of a disabled person with a leg injury resulting from an accident. (Unuma 14:42; see also Ex ). 36

41 Therefore Unuma renders claim 22 obvious. (Ex ). C. No Evidence Supporting Secondary Indicia of Non-Obviousness There is no commercial success that can be attributed to the merits of the invention that should be considered as an indication of non-obviousness. As shown herein, there is not a single element in the subject claims that was not already known to those of skill in the art. Moreover, it is clear that others did not fail to solve problems that were allegedly solved by the alleged invention, nor were there unresolved needs that the claimed invention allegedly addressed. In fact, the benefits of every single element in the subject claims were well known to those of skill in the art, as evidenced by the disclosures of the prior art references identified herein. (See Welch Ex. 1002, and Appendix C and D). D. Claim Chart A claim chart is provided below for each element and each asserted ground for unpatentability. (See Welch Ex. 1002, and Appendix C and D). Claim 1 (Independent) [1a] A system that evaluates movement of a body relative to an environment, said system comprising: Ground 1: The present invention relates to a portable accident monitoring device that is carried by an individual such as an aged wanderer and monitors accidents of the carrier individual, and a portable accident monitoring system using the device. (Yasushi 2:30-3:2) Attached to the lower back of an individual, the sensor parts 11c detect the acceleration along three axes orthogonal to 37

42 each other, namely the X- and Y-axes along a horizontal plane and the Z-axis that is in the vertical direction orthogonal to the horizontal plane, and the sensing elements 11A output acceleration data. (Yasushi 5:23-26). The analyzer 13 is connected to the data memory 12 and analyzes the acceleration data of the three axes to distinguish the state of the individual, walking, running, standing still, or falling, thereby constantly knowing the body condition. (Yasushi 5:29-6:1). Ground 2: The present invention relates to techniques for measuring a status change entailing motions and/or actions of a human being, an animal or a machine (generically called the object under observation hereunder). More particularly, the invention relates to a method for recognizing such motions and/or actions, as well as to an apparatus adopting that method and a system comprising that apparatus. (Unuma 2:3-6). As described, the embodiment of Fig. 12 offers the benefit of recognizing the object's action and work status as well as the environment in which the object is placed, by use of a history of multiple motions and patterns of combined motions. (Unuma 13:47-49). 38

43 In the explanation of Fig. 20, a particular motion, action and/or work is recognized. In the case of the present embodiment, since a hospital is cited as an example, the particular motion, action and/or work refers to an emergency state of a patient. (Unuma 30:30-32). [1b] a sensor, associable with said body, that senses accelerative phenomena of said body relative to a three dimensional frame of reference in said environment, Ground 1: A portable accident monitoring device 1 comprising an acceleration sensor 11 which detects acceleration along three axes orthogonal to each other and outputs acceleration data (Yasushi 1:8-10). Attached to the lower back of an individual, the sensor parts 11c detect the acceleration along three axes orthogonal to each other, namely the X- and Y-axes along a horizontal plane and the Z-axis that is in the vertical direction orthogonal to the horizontal plane, and the sensing elements 11A output acceleration data. (Yasushi 5:23-26). The acceleration sensor 11 detects the applied acceleration along the three, X-, Y-, and Z-, axes separately as the individual moves, and outputs acceleration data. (Yasushi 6:16-18). Ground 2: UNUMA DISCLOSES: The acceleration sensor is attached to the object under observation. (Unuma 11:53-54). 39

44 Whereas the above embodiment was shown using measurements taken on a single axis in the object's vertical direction for purpose of simplification and illustration, this is not limitative of the invention. Measurements taken in other directions, such as acceleration changes measured in the crosswise and lengthwise directions, may also be subjected to the process of characteristic quantity extraction. The extracted quantities may be judged and recognized individually or in combination. (Unuma 8:41-45). [1c] said sensor comprising a plurality of acceleration measuring devices; and Ground 1: The acceleration sensor 11 comprises three sensing segments 11A each consisting of a semiconductor element and connected to the mounting surface (not shown) of a printed substrate (not shown). The sensing elements 11A are housed in a housing (not shown) so as to detect the acceleration along three axes orthogonal to each other. Here, a sensing element 11A has a weight part 11a, a deflecting part 11b connected to the weight part 11a at one end so as to deflect as acceleration is applied to the weight part 11a, a sensor part 11c formed at the deflecting part 11b to convert the acceleration to electric signals based on the deflection of the deflecting part 11b, and a support part 11d surrounding 40