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        NOTE: This disposition is nonprecedential.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




 2                          BLACKBIRD TECH LLC   v. FITBIT, INC.



 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
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 BLACKBIRD TECH LLC    v. FITBIT, INC.                           3



 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
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 4                          BLACKBIRD TECH LLC   v. FITBIT, INC.



         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
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 BLACKBIRD TECH LLC   v. FITBIT, INC.                           5



 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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 6                         BLACKBIRD TECH LLC   v. FITBIT, INC.



     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
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 BLACKBIRD TECH LLC   v. FITBIT, INC.                           7



 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
