IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

Transcription

1 DOCKET NO: IN THE UNITED STATES PATENT AND TRADEMARK OFFICE PATENT: 6,864,796 TRIAL NO: IPR INVENTORS: Michael L. Lehrman, Alan R. Owens, Michael E. Halleck and Edward L. Massman FILED: December 30, 2002 ISSUED: March 8, 2005 TITLE: SYSTEMS WITHIN A COMMUNICATION DEVICE FOR EVALUATING MOVEMENT OF A BODY AND METHODS OF OPERATING THE SAME 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. 6,864,796

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 III. CLAIM CONSTRUCTION... 3 IV. OVERVIEW OF THE 796 PATENT... 6 A. Brief Description... 6 B. The Prosecution History of the 796 Patent... 7 V. SPECIFIC GROUND FOR PETITION A. GROUND 1: Claims 1-3, 9-12 and are Obvious Over Yasushi Yasushi Overview Yasushi Renders Claims 1-3, 9-12 and Obvious B. No Evidence Supporting Secondary Indicia of Non-Obviousness C. Claim Chart VI. CONCLUSION i

3 FEDERAL STATUTES TABLE OF AUTHORITIES Page(s) 35 U.S.C 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)... 4 ii

4 EXHIBIT LIST Exhibit Description 1001 U.S. Patent No. 6,864,796 (the 796 Patent ) 1002 Declaration of Gregory Francis Welch, PhD Concerning U.S. Patent No. 6,864,796 (with Appendices A-I) 1003 JP ( Yasushi ) 1004 Summary Chart of Grounds in Petition 1005 File History of the 796 Patent 1006 File History of U.S. Patent No. 6,501, File History of U.S. Patent No. 6,307, 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. 6,864,796 (the 796 patent) is assigned to ilife Solutions, Inc. ( ilife ) of Dallas, Texas. The 796 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, 6,703,939 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, 6,703,939 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 1-3, 9-12 and of the 796 patent as indicated below: 1 Ground 1: Claims 1-3, 9-12 and 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). As explained below, the above-cited ground creates 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 chart (Ex and Appendix C, thereto), demonstrate that claims 1-3, 9-12 and are unpatentable as obvious under 35 U.S.C. 103 based on the cited prior art. Petitioner requests as relief that challenged claims 1-3, 9-12 and of the 796 patent be canceled as unpatentable under 35 U.S.C 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 1 Exhibit 1004 provides a convenient summary chart showing the claims of the 796 patent challenged on Ground 1. 3

8 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 10) - 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 2:64 3:5). body (claims 1, 10, 19 and 20) - any organic or inorganic object whose movement or position may suitably be evaluated relative to its environment in accordance with the principles hereof (support: express definition provided in specification at 2:39-43). accelerative event and accelerative phenomena (claims 1, 10 and 19) - 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 5:20-24). static accelerative phenomena and static acceleration (claims 1, 10 and 20) - acceleration experienced as a result of gravity (support: 1:65 2:1; 6:20-27). 4

9 dynamic accelerative phenomena and dynamic acceleration (claims 1, 10 and 20) - acceleration experienced as a result of motion (support: 1:65 2:1, 6:20-27). processor and controller (claims 1, 9, 10, 18, 19 and 20) - 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 4:34-38). environment (claims 1, 10 and 19) - 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 2:43-45). environmental tolerance (claims 1 and 10) criteria defined for the environment in which the body exists (support: 6:54-62). associated with (claims 1 and 10) and associable (claims 1 and 10) - 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 4:27-34). 5

10 IV. OVERVIEW OF THE 796 PATENT A. Brief Description The 796 patent, titled Systems Within a Communication Device for Evaluating Movement of a Body and Methods of Operating the Same relates generally to means for detecting body movement, and, more particularly, relates to systems, and methods of operation thereof, within a communication device for evaluating movement of a body relative to an environment. (Ex. 1001, 1:24-28). The system comprises a sensor and a processor. The sensor associable with a body repeatedly senses accelerative phenomena of the body which is processed by the processor as a function of an accelerative event characteristic. The processor generates state indicia relative to the environment and determines whether the evaluated body movement is within environmental tolerance. The processor communicates various state indicia to a monitoring controller (which remotely monitors the body) using at least one of a wired network and a wireless network. (Ex Abstract). The 796 patent explains that static acceleration is acceleration experienced by a body due to the forces of gravity, while dynamic acceleration is caused by 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 6

11 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 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, 35-37). B. The Prosecution History of the 796 Patent As summarized in the Family Tree and Priority Date Chart of Ex. 1008, the application that issued as the 796 patent was filed as Application No. 10/331,958 on December 30, 2002 (Ex. 1005). The 796 application was filed as a continuation of Application No. 09/727,974 (Ex. 1006) (which issued as U.S. Patent No. 6,501,386). The 386 application was filed on November 30, 2000 as a continuation-in-part of Application No. 09/396,991 (Ex. 1007) (which issued as U.S. Patent No. 6,307,481). The 481 application was filed on September 15, 1999 as an original application with no priority claim. In the 796 application, the Examiner rejected claim 1, the sole claim as filed, for obviousness-type double patenting in view of claim 1 of the 386 patent. (Ex at ; id. at 262). The Examiner also rejected claim 1 as obvious in view of U.S. Patent No. 5,917,414 (Oppelt). (Id. at ). In response, the 7

12 Applicant amended claim 1 to require that the sensed accelerative phenomena be dynamic and static accelerative phenomena and to require that said processor generates tolerance indicia in response to said determination; and wherein said communication device transmits said tolerance indicia. (Id. at 364). The Applicants also added new claims (which depended from claim 1) and new claims (which likewise required the sensed accelerative phenomena to be dynamic and static accelerative phenomena, generating tolerance indicia in said processor in response to said determination of whether said evaluated body movement is within said environmental tolerance, and transmitting said tolerance indicia through said communications device ). (See, e.g., id. at ). The Applicants argued that the claim amendments distinguished the claims from claim 1 of the 386 patent and from the cited Oppelt reference. (Id. at 370, 373). The Examiner then allowed claims 1 and and stated: The prior art of record does not teach or suggest, in the claimed combination, a system within a communications device capable of evaluating movement of a body relative to an environment, said system comprising: a sensor, associable with said body, that senses dynamic and static accelerative phenomena of said body; and a processor, associated with said sensor, that processes said sensed dynamic and static accelerative phenomena as a function of at least one accelerative event characteristic to thereby determine 8

13 whether said evaluated body movement is within environmental tolerance, wherein said processor generates tolerance indicia in response to said determination and wherein said communication device transmits said tolerance indicia. (Id. at 382). The 796 application issued on March 8, Pending independent claims 1 and 41 became issued independent claims 1 and 10, respectively. Independent claims 1 and 10 of the 796 patent both recite the feature of providing the sensor system within a communication device. (Ex. 1001, claims 1 and 10). This feature was first disclosed by Applicant in the 386 application filed November 30, 2000, in which the Applicant added Fig. 9 and the associated communications device description to the specification. (See Ex. 1006). Thus, the earliest priority date to which the claims of the 796 patent are entitled is November 30, (See Ex. 1008). Claims 1 and 10 of the 796 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 various applications leading to the 796 patent, the Applicant successfully argued in response to rejections that the prior art failed to disclose systems that measure both dynamic and static acceleration. (See Ex. 1005, 1006, 1007). The Examiner was apparently unaware that numerous prior art references, including Yasushi cited herein, clearly disclose this feature. Thus, it is clear from the file histories leading up 9

14 to the issuance of the 796 patent that the Examiner was unaware of the existence of highly relevant prior art, such as Yasushi, that would have precluded allowance of the claims in the 796 patent. V. SPECIFIC GROUND FOR PETITION The ground on which this Petition is based is set forth below and fully described herein. Petitioner also submits herewith the Declaration of Gregory Francis Welch, PhD (Ex with Appendices A-I), which confirms the ground for unpatentability. A. GROUND 1: Claims 1-3, 9-12 and 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 the claims of the 796 patent are entitled is November 11, (See Ex. 1009). As a result, Yasushi is prior art under 102(b) to claims 1-3, 9-12 and of the 796 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 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). 10

15 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: 11

16 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 part which receives data transmitted wirelessly from transmitter 14 and gives notice of an abnormal state. (Yasushi 1:14-16). Yasushi discloses that the portable accident monitoring system can be incorporated with a PHS ( personal handy phone system ) terminal device, which is a mobile phone communication device capable of wireless Internet access. (See, e.g., Yasushi 3:14-18; 6:7-11; see also Ex ). 12

17 2. Yasushi Renders Claims 1-3, 9-12 and Obvious A POSA would have found, at a minimum, the subject matter of claims 1-3, 9-12 and 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 within a communications device Yasushi discloses a portable accident monitoring device or system for monitoring states of motion of an individual such as an aged person. (Yasushi 1:5-7, 3:1, 5:23). Yasushi further discloses that the portable accident monitoring device can be incorporated with a PHS ( personal handy phone system ) terminal, 13

18 which is a mobile communication device, like a cell phone. (See Ex n.1). 2 More particularly, Yasushi s portable accident monitoring device comprises transmitter 14. The portable accident monitoring device 1 is configured to comprise an acceleration sensor 11, a data memory 12, an analyzer 13, and a transmitter 14, and is worn by an individual. (Yasushi 5:11-13). (Fig. 1) Yasushi discloses that the transmitter of the personal accident monitoring device includes a communication device in the form of a PHS (personal handy phone system) terminal. Provided with a PHS terminal (not shown) forming a location detecting means, the transmitter 14 detects the electric field intensities 2 As more fully explained by Dr. Welch in his Declaration, PHS or Personal Handy Phone System was launched in Japan on July 1, 1995 as a mobile phone system suitable for voice and data communication. (Ex n.1). 14

19 from the base stations, and retains location data identifying the location of the individual, namely the ID codes of the base stations and the electric field intensity data from the base stations. Then, transmission data containing the ID code-added electric field intensity data are transmitted. (Yasushi 6:6-12; see also 3:14-18). (Ex ). While Yasushi is believed to disclose this claim element, at a minimum it would be obvious to a POSA to include the personal accident monitoring device of Yasushi within a communications device, such as the PHS terminal disclosed in Yasushi, particularly given Yasushi s disclosure of providing the transmitter of the portable accident monitoring device in the form of a PHS terminal and also using the PHS terminal as a location detecting means to provide the location of the individual being monitored by the personal accident monitoring device. (Yasushi 2:10-16; 6:6-12; see also Ex ) [1b] capable of evaluating movement of a body relative to an environment, said system comprising: Yasushi s system is capable of evaluating 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). [1c] a sensor, associable with said body, that senses dynamic and static accelerative phenomena of said body, and 15

20 Yasushi discloses acceleration sensor 11 attached to the lower back of a monitored person. (Yasushi 1:8-10, 5:23-26). Figures 4 and 6, for example, show that sensor 11 senses both dynamic and static (gravitational) acceleration. More particularly, Fig. 6 shows continuous measurements over time of static acceleration due to a body in a fallen state. 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 7:1-3). Figure 6 also shows a constant reading of 1G in the Y axis, indicating the static acceleration experienced by a fallen and immobile body due to gravity. Figure 4, for example, shows fluctuating accelerometer readings, including readings in excess of 1G resulting from dynamic acceleration experienced by a body in motion (e.g., running). When an individual is running, as shown in Fig. 4, the acceleration data shows that the acceleration is detected along all three axes 16

21 as in walking. However, the fluctuation is larger compared with in walking and the time required for one step is reduced to δ2. (Yasushi 6:24-27). Thus, Yasushi clearly discloses a sensor, associable with a body, that senses dynamic and static accelerative phenomena of said body, as claimed. (Ex ). [1d] a processor, associated with said sensor, that processes said sensed dynamic and static accelerative phenomena as a function of at least one accelerative event characteristic Yasushi s analyzer 13 is a processor associated with acceleration sensor 11 that processes sensed dynamic and static 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 dynamic and static 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 17

22 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 s analyzer 13 to provide the processor required by claim 1. (See Ex and Appendix C). [1e] to thereby determine whether said evaluated body movement is within environmental tolerance 18

23 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] wherein said processor generates tolerance indicia in response to said determination; and Yasushi s analyzer 13 outputs, for example, an abnormal signal in response to a determination as to whether the evaluated body movement is within environmental tolerance. Yasushi discloses an analyzer which analyzes the acceleration data from the data memory and outputs an abnormal signal when 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 (Yasushi 4:9-12). (Ex ). [1g] wherein said communication device transmits said tolerance indicia. Yasushi teaches transmission of tolerance indicia (e.g. abnormal signal ) through a communications device (e.g., transmitter 14). For example, Yasushi discloses a transmitter which wirelessly transmits transmission data when the abnormal signal is output, and carried by an individual to monitor accidents. (Yasushi 4:12-14). The receiving device 2 is installed at home and provided with a notification part 21. The notification part 21 receives the transmission data from the transmitter 14 and gives notice of an abnormal state. (Yasushi 6:13-15). (Ex ). 19

24 Therefore Yasushi renders claim 1 obvious. (Ex ). Claim 2: The system as claimed in claim 1 wherein said communications device comprises one of: a cordless telephone, a cellular telephone and a personal digital assistant. 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 PHS (personal handy phone system) terminal disclosed by Yasushi is a communications device in the form of a cordless phone. (Yasushi 3:14-17; see also 1:5-7) (See Ex ). Therefore Yasushi renders claim 2 obvious. (Ex ). Claim 3: The system as claimed in claim 1 wherein said communications device comprises one of: a hand held computer, a laptop computer and a wireless Internet access device. As shown above, and in the Welch Declaration and accompanying Appendix C, Yasushi, at a minimum, renders obvious claim 1, from which claim 3 depends. The PHS (personal handy phone system) terminal disclosed by Yasushi is a communications device that satisfies this claim element by comprising a hand held computer and/or a wireless Internet access device. (See Ex ). The PHS terminal is a hand-held device that is designed to transmit and receive voice and data packets and constitutes a handheld computer. (See Ex at 54). In addition, the PHS terminal allows wireless Internet access, thereby constituting a 20

25 wireless Internet access device. (See Ex at 54). (See also Yasushi 3:14-8, 1:5-7). Therefore Yasushi renders claim 3 obvious. (Ex ). Claim 9: The system as claimed in claim 1 wherein said communications device transmits said tolerance indicia to a monitoring controller. Yasushi discloses transmitting tolerance indicia (e.g. abnormal signal ) to a monitoring controller (e.g. management center ). For example, a transmitter which wirelessly transmits transmission data when the abnormal signal is output, and carried by an individual to monitor accidents. (Yasushi 4:12-14). The management center (not shown) receives the ID codes and the electric field intensity data from the base stations in the transmission data, and identifies the location of the individual by the triangulation method based on the differences of the electric field intensity data. The receiving device 2 receives the transmission data from the transmitter 14 and the notification part 21 gives notice of an abnormal state. (Yasushi 7:15-20). 21

26 (Fig. 1) (Ex ). Therefore Yasushi renders claim 9 obvious. (Ex ). Claim 10: [10a] A method for operating a system within a communications device, Yasushi discloses a portable accident monitoring device or system (and method) for monitoring states of motion of an individual such as an aged person. (Yasushi 1:5-7, 3:1, 5:23). Yasushi further discloses that the portable accident monitoring device can be incorporated with a PHS ( personal handy phone system ) terminal, which is a mobile communication device, like a cell phone, as 22

27 well as methods of operating same. (See Ex ). 3 More particularly, Yasushi s portable accident monitoring device comprises transmitter 14. The portable accident monitoring device 1 is configured to comprise an acceleration sensor 11, a data memory 12, an analyzer 13, and a transmitter 14, and is worn by an individual. (Yasushi 5:11-13). (Fig. 1) Yasushi discloses that the transmitter of the personal accident monitoring device includes a communication device in the form of a PHS (personal handy phone system) terminal. Provided with a PHS terminal (not shown) forming a location detecting means, the transmitter 14 detects the electric field intensities 3 As more fully explained by Dr. Welch in his Declaration, PHS or Personal Handy Phone System was launched in Japan on July 1, 1995 as a mobile phone system suitable for voice and data communication. (Ex n.1, Appendix D). 23

28 from the base stations, and retains location data identifying the location of the individual, namely the ID codes of the base stations and the electric field intensity data from the base stations. Then, transmission data containing the ID code-added electric field intensity data are transmitted. (Yasushi 6:6-12; see also 3:14-18). (Ex ). While Yasushi is believed to disclose this claim element, at a minimum it would be obvious to a POSA to include the personal accident monitoring device of Yasushi within a communications device, such as the PHS terminal disclosed in Yasushi, particularly given Yasushi s disclosure of providing the transmitter of the portable accident monitoring device in the form of a PHS terminal and also using the PHS terminal as a location detecting means to provide the location of the individual being monitored by the personal accident monitoring device. (Yasushi 2:10-16; 6:6-12; see also Ex ) [10b] wherein said system is capable of evaluating movement of a body relative to an environment, Yasushi s system is capable of evaluating 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). [10c] wherein said system comprises a sensor, associable with said body, that senses dynamic and static accelerative phenomena of said body, and 24

29 Yasushi discloses acceleration sensor 11 attached to the lower back of a monitored person. (Yasushi 1:8-10, 5:23-26). Figures 4 and 6, for example, show that sensor 11 senses both dynamic and static acceleration. More particularly, Fig. 6 shows continuous measurements over time of static acceleration due to a body in a fallen state. 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 7:1-3). Figure 6 also shows a constant reading of 1G in the Y axis, indicating the static acceleration experienced by a fallen and immobile body due to gravity. Figure 4, for example, shows fluctuating accelerometer readings, including readings in excess of 1G resulting from dynamic acceleration experienced by a body in motion (e.g., running). When an individual is running, as shown in Fig. 4, the acceleration data shows that the acceleration is detected along all three axes 25

30 as in walking. However, the fluctuation is larger compared with in walking and the time required for one step is reduced to δ2. (Yasushi 6:24-27). Thus, Yasushi clearly discloses a sensor, associable with a body, that senses dynamic and static accelerative phenomena of said body, as claimed. (Ex ). [10d] a processor, associated with said sensor, that processes said sensed dynamic and static accelerative phenomena as a function of at least one accelerative event characteristic 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 26

31 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 s analyzer 13 to provide the processor required by claim 1. (See Ex and Appendix C). 27

32 [10e] to thereby determine whether said evaluated body movement is within 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). [10f] wherein said method comprises the steps of: generating tolerance indicia in said processor in response to said determination of whether said evaluated body movement is within said environmental tolerance; and Yasushi s analyzer 13 outputs, for example, an abnormal signal in response to a determination as to whether the evaluated body movement is within environmental tolerance. Yasushi discloses an analyzer which analyzes the acceleration data from the data memory and outputs an abnormal signal when 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 (Yasushi 4:9-12). (Ex ). [10g] transmitting said tolerance indicia through said communications device. Yasushi teaches transmitting tolerance indicia (e.g. abnormal signal ) through a communications device (e.g., transmitter 14). For example, Yasushi discloses a transmitter which wirelessly transmits transmission data when the abnormal signal is output, and carried by an individual to monitor accidents. (Yasushi 4:12-14). The receiving device 2 is installed at home and provided with a notification part 28

33 21. The notification part 21 receives the transmission data from the transmitter 14 and gives notice of an abnormal state. (Yasushi 6:13-15). (Ex ). Therefore Yasushi renders claim 10 obvious. (Ex ). Claim 11: The method as claimed in claim 10 wherein said communications device comprises one of: a cordless telephone, a cellular telephone and a personal digital assistant. As shown above, and in the Welch Declaration and accompanying Appendix C, Yasushi, at a minimum, renders obvious claim 10, from which claim 11 depends. The PHS (personal handy phone system) terminal disclosed by Yasushi is a communications device in the form of a cordless phone. (Yasushi 3:14-17; see also 1:5-7) (See Ex ). Therefore Yasushi renders claim 11 obvious. (Ex ). Claim 12: The method as claimed in claim 10 wherein said communications device comprises one of: a hand held computer, a laptop computer and a wireless Internet access device. As shown above, and in the Welch Declaration and accompanying Appendix C, Yasushi, at a minimum, renders obvious claim 10, from which claim 12 depends. The PHS (personal handy phone system) terminal disclosed by Yasushi is a communications device that satisfies this claim element by comprising a hand held computer and/or a wireless Internet access device. (See Ex ). The PHS terminal is a hand-held device that is designed to transmit and receive voice and data packets and constitutes a handheld computer. (See Ex ). In 29

34 addition, The PHS terminal allows wireless Internet access, thereby constituting a wireless Internet access device. (See Ex ). (See also Yasushi 3:14-8, 1:5-7). Therefore Yasushi renders claim 12 obvious. (Ex ). Claim 18: The method as claimed in claim 10 further comprising the step of: transmitting said tolerance indicia from said communications device to a monitoring controller. As shown above, and in the Welch Declaration and accompanying Appendix C, Yasushi, at a minimum, renders obvious claim 10, from which claim 18 depends. Yasushi discloses transmitting tolerance indicia (e.g. abnormal signal ) to a monitoring controller (e.g. management center ). For example, a transmitter which wirelessly transmits transmission data when the abnormal signal is output, and carried by an individual to monitor accidents. (Yasushi 4:12-14). The management center (not shown) receives the ID codes and the electric field intensity data from the base stations in the transmission data, and identifies the location of the individual by the triangulation method based on the differences of the electric field intensity data. The receiving device 2 receives the transmission data from the transmitter 14 and the notification part 21 gives notice of an abnormal state. (Yasushi 7:15-20). 30

35 (Fig. 1) (Ex ). Therefore Yasushi renders claim 18 obvious. (Ex ). Claim 19: [19a] The method as claimed in clam 10 further comprising the steps of: generating in said processor state indicia while processing said sensed accelerative phenomena, which represents a state of said body within said environment over time; and As shown above, and in the Welch Declaration and accompanying Appendix C, Yasushi, at a minimum, renders obvious claim 10, from which claim 19 depends. Yasushi generates state indicia, such as the state of falling lasting for a given or longer length of time, while processing acceleration data (i.e., sensed accelerative phenomena ), which represents a state of a body in its environment over time. For example, a data memory 12 which stores the acceleration data in a time series manner, an analyzer 13 which analyzes the acceleration data from the data memory 31

36 12 and outputs an abnormal signal when the state of falling lasting for a given or longer length of time (Yasushi 1:10-13). 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). (Ex ). [19b] transmitting said state indicia through said communications device. Yasushi teaches state indicia are transmitted, for example, through transmitter 14. For example, Yasushi discloses a transmitter 14 which wirelessly transmits transmission data when the abnormal signal is output (Yasushi 1:13-14). (Ex ). Yasushi further teaches that the transmitter of the personal accident monitoring device includes a communication device in the form of a PHS (personal handy phone system) terminal. (Yasushi 6:6-12). (Ex ). Thus, the PHS terminal (communication device) is used to transmit information, including state indicia, to the receiving device 2 of Yasushi. (See Ex. 1001, Fig. 1). While Yasushi is believed to disclose this claimed feature, at minimum it would have been obvious to use the communication capabilities of the PHS terminal to transmit the state indicia, particularly in view of Yasushi s disclosure of providing the transmitter with a PHS terminal and using the PHS terminal to transmit other data, such as the ID code-added electric field intensity data. (Yasushi 6:7-12). Therefore Yasushi renders claim 19 obvious. (Ex ). 32

37 Claim 20: [20a] The method as claimed in claim 10 further comprising the steps of: generating in said processor an output signal that is indicative of measurements of both static and dynamic acceleration of said body in plural axes; and As shown above, and in the Welch Declaration and accompanying Appendix C, Yasushi, at a minimum, renders obvious claim 10, from which claim 20 depends. Yasushi Figs 4 and 6, for example, show an output signal indicative of measurements of both dynamic and static (gravitational) acceleration. More particularly, Fig. 6 shows continuous measurements over time of static acceleration due to a body in a fallen state. 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 7:1-3). Figure 6 also shows a constant reading of 1G in the Y axis, indicating the static acceleration experienced by a fallen and immobile body due to gravity. Figure 4, for example, shows fluctuating accelerometer readings, including readings in excess of 1G resulting from dynamic acceleration experienced by a 33

38 body in motion (e.g., running). When an individual is running, as shown in Fig. 4, the acceleration data shows that the acceleration is detected along all three axes as in walking. However, the fluctuation is larger compared with in walking and the time required for one step is reduced to δ2. (Yasushi 6:24-27). Yasushi further discloses [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). 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). Thus, Yasushi clearly discloses generating in said processor an output signal that is indicative of measurements of both static and dynamic acceleration of said body in plural axes, as claimed. (Ex ). 34

39 [20b] transmitting said output signal through said communications device. Yasushi teaches transmitting said output signal, for example, through transmitter 14. For example, Yasushi discloses a transmitter 14 which wirelessly transmits transmission data when the abnormal signal is output (Yasushi 1:13-14). (Ex ). Yasushi further teaches that the transmitter of the personal accident monitoring device includes a communication device in the form of a PHS (personal handy phone system) terminal. (Yasushi 6:6-12). (Ex ). Thus, the PHS terminal (communication device) is used to transmit the output signal to the receiving device 2 of Yasushi. (See Ex. 1001, Fig. 1). While Yasushi is believed to disclose this claimed feature, at minimum it would have been obvious to use the communication capabilities of the PHS terminal to transmit the output signal, particularly in view of Yasushi s disclosure of providing the transmitter with a PHS terminal and using the PHS terminal to transmit other data, such as the ID code-added electric field intensity data. (Yasushi 6:7-12). Therefore Yasushi renders claim 20 obvious. (Ex ). B. 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, whether individually or in combination. 35

40 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 identified herein. (Ex ). C. Claim Chart A claim chart is provided below for each element and each asserted ground for unpatentability. (See also Ex. 1002, Appendix C). Claim 1 - Independent [1a] A system within a communications device Ground 1: On the other hand, as methods of detecting a location, the method using the GPS, which is utilized in the car navigation systems, or the method of measuring and transmitting the electric field intensities from multiple base stations each given an ID code by means of a PHS (personal handy phone system) terminal and analyzing the difference in electric field intensity is proposed. (Yasushi 3:14-18). [Claim 3] The portable accident monitoring device according to Claim 2, wherein said location detection means is formed by a PHS terminal retaining electric field intensity data from multiple base stations each given an ID code, and said location data are ID code-added electric field intensity data. (Yasushi 2:13-16). The portable accident monitoring device 1 is configured to comprise an acceleration sensor 11, a data memory 12, an analyzer 13, and a transmitter 14, and is worn by an individual. (Yasushi 5:11-13; see also 3:1, 5:23). 36

41 Provided with a PHS terminal (not shown) forming a location detecting means, the transmitter 14 detects the electric field intensities from the base stations, and retains location data identifying the location of the individual, namely the ID codes of the base stations and the electric field intensity data from the base stations. Then, transmission data containing the ID code-added electric field intensity data are transmitted. (Yasushi 6:6-12). (Fig. 1). To provide a portable accident monitoring device requiring low power consumption, which is easy to carry, and capable of analyzing acceleration data with accuracy (Yasushi 1:5-7). [1b] capable of evaluating 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). 37

42 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 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). [1c] a sensor, associable with said body, that senses dynamic and static accelerative phenomena of said body, and 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). When an individual is running, as shown in Fig. 4, the acceleration data shows that the acceleration is detected along all three axes as in walking. However, the fluctuation is larger compared with in walking and the time required for one step is reduced to δ2. (Yasushi 6:24-27). 38

43 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 7:1-3). [1d] a processor, associated with said sensor, that processes said sensed dynamic and static accelerative phenomena as a function of at least one accelerative event characteristic Ground 1: an 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 or an acceleration equal to or higher than a given value is detected (Yasushi 1:11-13). a data memory storing the acceleration data in a time series manner, an analyzer which analyzes the acceleration data from the data memory and outputs an abnormal signal when 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 (Yasushi 4:9-12). 39

44 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; see also 6:20-7:6). [1e] to thereby determine whether said evaluated body movement is within environmental tolerance [1f] wherein said processor generates tolerance indicia in response to said determination; and Ground 1: Furthermore, 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). Ground 1: an analyzer which analyzes the acceleration data from the data memory and outputs an abnormal signal when the state of falling lasting for a given or longer length of time or an acceleration equal to or higher than a 40

45 given value is detected (Yasushi 4:9-12). [1g] wherein said communication device transmits said tolerance indicia. Ground 1: a transmitter which wirelessly transmits transmission data when the abnormal signal is output, and carried by an individual to monitor accidents. (Yasushi 4:12-14). The receiving device 2 is installed at home and provided with a notification part 21. The notification part 21 receives the transmission data from the transmitter 14 and gives notice of an abnormal state. (Yasushi 6:13-15). Claim 2 The system as claimed in claim 1 wherein said communications device comprises one of: a cordless telephone, a cellular telephone and a personal digital assistant. Ground 1: On the other hand, as methods of detecting a location, the method using the GPS, which is utilized in the car navigation systems, or the method of measuring and transmitting the electric field intensities from multiple base stations each given an ID code by means of a PHS (personal handy phone system) terminal and analyzing the difference in electric field intensity is proposed. (Yasushi 3:14-18). To provide a portable accident monitoring device requiring low power consumption, which is easy to carry, and capable of analyzing acceleration data with accuracy (Yasushi 1:5-7). Claim 3 The system as claimed in claim 1 wherein said communications device comprises one of: a hand held computer, a laptop computer and a wireless Internet access device Ground 1: On the other hand, as methods of detecting a location, the method using the GPS, which is utilized in the car navigation systems, or the method of measuring and transmitting the electric field intensities from multiple base stations each given an ID code by means of a PHS (personal handy phone system) terminal and analyzing the difference in electric field intensity is proposed. (Yasushi 3:14-18). 41