Monday, August 10, 2020

Blackbird prevails against Fitbit at CAFC

The outcome 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 individual 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 Trademark Office instituted the requested reviews and consolidated the proceedings. The Board ultimately determined that Fitbit had proven claim 6 of the ’212 patent unpatentable for obviousness but had not proven claims 2 and 5 unpatentable. 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. AND 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 incorporate “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. FitBit, 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.


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