Case: 19-1879 Document: 59 Page: 1 Filed: 08/06/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ BLACKBIRD TECH LLC, DBA BLACKBIRD TECHNOLOGIES, Appellant v. FITBIT, INC., WAHOO FITNESS LLC, Appellees ______________________ 2019-1879 ______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2017- 02012, IPR2018-00275. ______________________ Decided: August 6, 2020 ______________________ JEFFREY AHDOOT, Blackbird Tech LLC, Boston, MA, for appellant. Also represented by WENDY VERLANDER; STAMATIOS STAMOULIS, Stamoulis & Weinblatt LLC, Wil- mington, DE; DAVID ALEXANDER GERASIMOW, The Law Of- fices of David A. Gerasimow, P.C., Chicago, IL.

CLEMENT ROBERTS, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, for appellee Fitbit, Inc. Also rep- resented by ELIZABETH MOULTON, Menlo Park, CA; ERIC Case: 19-1879 Document: 59 Page: 2 Filed: 08/06/2020

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SHUMSKY, Washington, DC.

MATTHEW L. CUTLER, Harness, Dickey & Pierce, PLC, St. Louis, MO, for appellee Wahoo Fitness LLC. Also rep- resented by DOUGLAS ALAN ROBINSON. ______________________ Before PROST, Chief Judge, REYNA and TARANTO, Circuit Judges.

TARANTO, Circuit Judge.

Blackbird Tech LLC, d/b/a Blackbird Technologies, owns U.S. Patent No. 6,434,212, which describes and claims a device that counts an individual’s steps and, based on the length and rate of those steps, provides the individ- ual with information such as distance traveled and speed.

Fitbit, Inc. and Wahoo Fitness LLC each sought an inter partes review of claims 2, 5, and 6 of the ’212 patent. The Patent Trial and Appeal Board of the Patent and Trade- mark Office instituted the requested reviews and consoli- dated the proceedings. The Board ultimately determined that Fitbit had proven claim 6 of the ’212 patent unpatent- able for obviousness but had not proven claims 2 and 5 un- patentable. See FitBit, Inc. v. Blackbird Tech, LLC, No. IPR2017-02012, 2019 WL 1118863 (P.T.A.B. Mar. 11, 2019). Blackbird appeals the Board’s ruling on claim 6. We affirm.

I A The ’212 patent describes purported improvements in a pedometer, i.e., a device “for determining the distance a person travels on foot.” ’212 patent, col. 1, lines 18–19. The basic components of the assertedly inventive pedometer are a step counter, a wearable receiver, and a data proces- sor programmed to use the step count, as well as the stride length and the rate of steps, to derive information such as Case: 19-1879 Document: 59 Page: 3 Filed: 08/06/2020

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distance traveled or speed. See id., col. 2, line 15–23. The patent “recognizes the interdependency of stride length and stride rate” (how many steps per unit of time), id., col.

2, lines 24–25, and provides for adjusting the stride length with new data—based on, e.g., the wearer’s actual walk- ing—to improve accuracy in calculating the figures of in- terest, such as distance or speed, id., col. 2, at lines 25–26, 33–35.

For example, starting with an initially input “base stride length,” id., col. 3, lines 56–64, the device can use a wearer’s actual walking to “correct[]” the base stride length to “arrive at an accurate Actual Stride Length,” id., col. 4, lines 30–46. Once the walker’s “actual stride length is cal- culated for a given period of time, the value can be multi- plied by the number of strides in that period to obtain a total distance for that period.” Id., col. 6, lines 33–38. This total distance can then be used to calculate speed. See id., col. 6, lines 43–45.

Claim 6, the only claim at issue here, recites: 6. A pedometer comprising: a step counter; a transmitter in communication with the step counter to generate a step count signal corre- sponding to each step and transmit the step count signal; a receiver mountable on a user body portion to re- ceive the step count signal transmitted from the transmitter; and a data processor programmed to calculate a dis- tance traveled by multiplying a number of steps counted by a stride length that varies ac- cording to a rate at which steps are taken, and further programmed to derive an actual stride Case: 19-1879 Document: 59 Page: 4 Filed: 08/06/2020

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length from a range of stride lengths calculated from a range of corresponding stride rates. Id., col. 8, lines 5–19.

B In August 2017, Fitbit petitioned for an inter partes re- view of claims 2, 5, and 6 of the ’212 patent. Fitbit argued that the claims are unpatentable on three grounds: first, claims 2 and 5 are anticipated by U.S. Patent No. 6,241,684 (Amano); second, claims 2 and 5 are unpatentable for obvi- ousness over Amano; and third, claim 6 is unpatentable for obviousness over a combination of Amano and U.S. Patent No. 5,033,013 (Kato). In December 2017, Wahoo petitioned for an inter partes review of claims 2, 5, and 6, relying on the same grounds as Fitbit.

The Board instituted a review based on Fitbit’s peti- tion, though not on the first ground. The Board then insti- tuted a review based on Wahoo’s petition and joined Wahoo to the Fitbit proceeding. After the Supreme Court’s deci- sion in SAS Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018), the Board added the first ground to the proceedings.

In its final written decision, the Board determined that Fitbit had not proven claims 2 and 5 unpatentable but that Fitbit had proven claim 6 unpatentable for obviousness over a combination of Kato and Amano. FitBit, 2019 WL 1118863, at *11–14. Blackbird timely appealed; Fitbit and Wahoo did not appeal. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

II On appeal, Blackbird limits its challenge to one point, contending that the Board erred in finding that Kato dis- closes claim 6’s limitation “a data processor programmed to calculate a distance traveled by multiplying a number of steps counted by a stride length.” Although we review the Board’s determination of obviousness de novo, we review Case: 19-1879 Document: 59 Page: 5 Filed: 08/06/2020

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its underlying factual findings for substantial evidence support, Personal Web Technologies, LLC v. Apple, Inc., 848 F.3d 987, 991 (Fed. Cir. 2017), and “findings as to the scope and content of the prior art” are factual findings, Ari- osa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359, 1364 (Fed. Cir. 2015). Accordingly, we review the Board’s finding as to what Kato taught a relevant skilled artisan for whether it is supported by substantial evidence, i.e., “whether a reasonable fact finder could have arrived at the agency’s decision” on the record as a whole. Intelligent Bio- Systems, Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1366 (Fed. Cir. 2016); In re Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000).

Kato discloses a processing means that uses a walker’s stride length, along with the walker’s “pitch,” to determine the walker’s speed. When the walker’s foot hits the ground, a detector notifies the processing means of the contact.

Kato, col. 3, line 67, through col. 4, line 3. Over a “prede- termined unit of time,” the processing means counts the number of contacts received to obtain the walker’s “pitch,” i.e., the walker’s step rate (number of steps per selected time unit). Id., col. 4, lines 4–6; see id., col. 4, line 16 (“PI is the pitch in number of steps every 10 seconds”). Because of a “predetermined empirical relationship” between the walker’s pitch, height, and stride length, Kato explains, ob- taining the walker’s pitch also allows the processing means to calculate the walker’s stride length (which Kato just calls “stride”). See id., col. 4, lines 7–10. Then, “the stride is multiplied by the pitch [] to obtain a walking speed of the walker in said unit of time.” Id., col. 4, lines 50–51. Kato expresses this step in the form of a simple equation: SP = ST × PI Id., col. 4, line 27. In this equation, SP is “speed of walk- ing,” ST is “stride in meters,” and PI is “pitch in number of steps every 10 seconds” (i.e., steps/unit of time). Id., col. 4, lines 17–19, 25–27.

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Using the “same steps as in the method of measuring walking speed,” Kato discloses calculating the distance traveled by the walker over a given period of time by add- ing an extra step—“multiplying the walking speed by said unit of time.” Id., col. 4, lines 59–68. Although Kato does not present this calculation in equation form, the equation form of those words is simply D = SP × T, where D is dis- tance in meters and T is the period of time in seconds. Be- cause Kato has just explained that SP = ST × PI, it is evident from Kato that: D = ST × PI × T.

Substantial evidence supports the Board’s finding that a relevant skilled artisan would read Kato as teaching a “data processor programmed to calculate a distance trav- eled by multiplying a number of steps counted by a stride length.” As the Board noted, Kato’s equation for calculat- ing distance can be expressed “in measurement terms: me- ters * (steps/time) * (time).” FitBit, 2019 WL 1118863, at *11. That is directly supported by the above equation, be- cause ST is the stride length in meters, PI is steps/time, and T is the period of time (for which the distance is being derived). Given that “[n]othing in Kato precludes the pe- riod of time and unit time from being the same,” the Board observed, the “period of time” in the numerator and the “unit time” in the denominator cancel out. Id. at *12. In other words, D = ST × steps. As a result, the Board ex- plained, Kato’s method for calculating distance travelled can be expressed as simply “determining the number of steps and multiplying them by a stride length.” Id. On appeal, Blackbird argues that the Board was obli- gated to explain why a relevant skilled artisan would have taken the steps of expressing pitch as “steps/time” and can- celling out the numerator-time with the denominator-time.

According to Blackbird, the Board “worked backward, with knowledge of the claimed invention, to modify the Kato Case: 19-1879 Document: 59 Page: 7 Filed: 08/06/2020

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reference in such a way so as to arrive at the claimed in- vention.” Appellant’s Br. at 13.

But the Board’s conclusion of unpatentability did not rely on a modification of Kato’s equation—it relied on a finding that a relevant skilled artisan would consider Kato’s equation to teach claim 6’s limitation. To determine the “meaning of a prior art reference,” the Board must in- corporate “the understanding of an artisan of ordinary skill.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1336 (Fed. Cir. 2008). Here, the Board determined that a relevant skilled artisan would be an engineer with either a master’s degree or multiple years of work experience. Fit- Bit, 2019 WL 1118863, at *5. The Board could readily find that such a person would understand Kato’s teaching of a very simple multiplicative relationship to teach the form of that relationship that involves the elementary process of unit cancellation between numerator and denominator.

Accordingly, the Board had a sufficient basis to find that a relevant artisan would have considered Kato’s method for calculating distance traveled to be identical to claim 6’s limitation.

III For the foregoing reasons, the Board’s decision is af- firmed.

Costs awarded to appellees.

AFFIRMED