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Icon Health & Fitness, Inc. v. Polar Electro Oy

United States District Court, D. Utah

March 10, 2017

ICON HEALTH & FITNESS, INC., Plaintiff,
v.
POLAR ELECTRO OY et al., Defendants.

          MEMORANDUM OPINION & ORDER REGARDED POLAR ELECTRO OY AND POLAR ELECTRO INC'S MOTION FOR JUDGMENT ON THE PLEADLNGS

          HONORABLE BRACE S. JENKINS, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendants', Polar Electro Oy and Polar Electro Inc. (collectively, "Polar"), Motion for Judgment on the Pleadings filed pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 147) ("Motion"). Polar contends that certain claims of U.S. Patent No. 6, 701, 271 ('"271 patent") are directed to patent-ineligible subject matter and are, therefore, invalid under 35 U.S.C. § 101 ("Section 101"). For the reasons discussed below, the Court grants Polar's Motion.

         I. Procedural Background

         On November 18, 2011, ICON Health & Fitness, Inc. ("Icon") filed a Complaint against Polar Electro Oy ("Polar Oy") asserting infringement of U.S. Patent No. 7, 789, 800 ('"800 patent") and the '271 patent. (Dkt. No. 1). On June 8, 2012, Icon filed an amended complaint adding Polar Electro, Inc. ("Polar Inc.") and asserting infringement of an additional patent, U.S. Patent No. 6, 921, 351 ('"351 patent). (Dkt. No. 9). The case was stayed with respect to the '800 patent and the '271 patent pending finalization of reexamination proceedings for those patents. (Dkt. No. 51). The Court entered a scheduling order for the case concerning the '271 patent after finalization of the '271 patent reexamination. (Dkt. No. 141).

         After entry of the scheduling order, Polar filed its Motion, requesting that the Court find that claims 15, 42, 49, 51, 54, 80, 81, 82, 90, and 91 of the '271 patent are directed to patent- ineligible subject matter and thus invalid under 35 U.S.C. § 101. (Dkt. No. 147). Icon filed an opposition ("Opposition") (Dkt. No. 166) together with two declarations: (1) a Declaration of Tyson K. Hottinger (Dkt. No. 167), along with three letters related to alleged discovery disputes between the parties; and (2) a Declaration of Dr. David Brienza. (Dkt. No. 168). With its Opposition, Icon also filed a Request that the Court take judicial notice of two groups of documents. The first group consists of the prosecution history of two patents that are unrelated to the asserted '271 patent: (1) the prosecution history file wrapper of U.S. Patent Application No. 11/545, 018, which issued as U.S. Patent No. 8, 512, 238; and (2) the prosecution history file wrapper of U.S. Patent Application No. 13/418, 781, which issued as U.S. Patent No. 9, 149, 213. The second group of documents includes portions of the two separate reexaminations of the '271 patent: (1) the ex parte reexamination of U.S. Patent No. 6, 701, 271 that was assigned Control No. 90/013, 409; and (2) the inter partes reexamination of U.S. Patent No. 6, 701, 271 that was assigned Control No. 95/002, 337. (Dkt. No. 169). Polar filed a reply brief in support of its Motion (Dkt. No. 171) and shortly thereafter a Notice of Errata. (Dkt. No. 174).

         On January 19, 2017, the Court held a hearing during which Icon presented arguments based on new cases it had not previously cited. The Court allowed Polar to file a short response to Icon's arguments related to the new cases, which Polar filed shortly after the hearing. (Dkt. No. 178). In response, Icon filed a Supplemental Opposition Brief. (Dkt. No. 180). Neither party sought construction of any claim terms in its briefing on the Motion.

         II. The '271 Patent

         A. Technological Background

         Based on a review of the '271 patent and the parties' briefing, the Court arrives at the following conclusions concerning the '271 patent. First, the '271 patent generally discloses a method and system:

for providing feedback [that] includes receiving data indicative of a physical characteristic of a first subject and a physical characteristic of a second subject; determining an evaluation of the data [or course of action]; and providing a notification regarding the evaluation [or course of action] to a device"

(See e.g., Dkt. No. 147, Ex. A, '271 patent col. 2:11-28).

         The disclosed method reflects three fundamental actions: (1) receiving information regarding physical characteristic(s) of subjects; (2) evaluating, or determining a course of action based on, the characteristic(s); and (3) providing a notification of the evaluation/course of action. (See Dkt. No. 147, Ex. A, Figs, land 2).

         Second, the '271 patent broadly defines the terms used to describe and to claim the disclosed method via examples. With respect to "physical characteristic, " the '271 patent gives examples, stating that it "might be or include the subject's heart rate, blood pressure, blood sugar level, posture, temperature, respiration rate, facial response or position, weight, height, galvanic skin response, pheromone emission, brain wave pattern or rhythm, odor, motion, etc., or a change in any one or more of them." (See e.g. Dkt. No. 147, Ex. A, '271 patent Abstract; col. 1:57-64; col. 4:22-23, 53-58).

         Third, the '271 patent gives examples of the "determining an evaluation" such that it "may be or include summarizing, tabulating, charting, collecting, aggregating, averaging, comparing, correlating, etc. some or all of the raw physical characteristic data received." (See e.g., Dkt. No. 147, Ex. A, col. 6:56-66).

         Fourth, with respect to "determining a course of action, " the '271 patent shows that the course of action can be either of an actor such as a teacher or entertainer, or of a subject such as a student or an audience member. (See e.g., Dkt. No. 147, Ex. A, col. 7:27-30; col. 8:14-23, 26-29, 51-55, and col. 9:13-17). The '271 patent gives examples of aperson reading stories or giving a lecture. In those examples, the person is provided with feedback on the stories or on the parts of the lecture that the audience liked best, or on what story ending they might prefer. Id. Another example provided by the '271 patent is a course of action to get subjects to do something, or to improve the chances of the subjects actually doing something. Id. In the Background of the Invention, the '271 patent provides examples of situations where it might be "desirable to have information regarding how a subject or a group of subjects feels about information being delivered or presented to them or how the subjects react while information is being delivered or presented to them." (Dkt. No. 147, Ex. A, col. 1:17-21). For example, the "Background of the Invention, states:

[A] teacher may wish to know if the students in her class understand the material the teacher is discussing. A lecturer may wish to know what portions of his lecture the audience members find most interesting. Alternatively, the lecturer may want to have a better idea of when to take a break. An entertainer may wish to know what ending to provide to a story or song medley being presented to an audience.

(Dkt. No. 147, Ex. A, col. 1:22-29).

         The '271 patent gives another example in the context of a person giving a presentation:

[A]ssume a speaker is giving a presentation to an audience often people and that the speaker may want to direct the presentation along one of several potential themes depending on the interest of the audience. In the method of the present invention, information regarding each of the audience member's heart rates, posture, etc. may be obtained and used to help determine which of the themes the audience members are the most interested in. Once the information is communicated to the speaker, the speaker can direct the presentation appropriately.

(Dkt. No. 147, Ex. A, col. 4:2-11).

         The speaker receives feedback information regarding the audience, such as posture (e.g., they are slumping in their seats) or facial response (e.g., they are yawning); the speaker can then make a decision based upon the information. For example, it might be time for the speaker to take a break, speak up, or move to a more rousing topic.

         Fifth, the '271 patent gives examples of a "notification" such that it "may be or include an email message, instant message communication, electronic signal or other communication (e.g., radio or wireless transmission, FTP, HTTP or FITML transmission, XML feed), an audible sound, a visual display, a voice message, etc." (See e.g., Dkt. No. 147, Ex. A, col. 7:11-16). The notification can be any format. (See e.g., Dkt. No. 147, Ex. A, col. 8:37-45).

         Sixth, the '271 patent discloses that no unique or specific hardware or software is needed to implement the disclosed method, stating, for example, that "embodiments of the present invention are not limited to any specific combination of hardware and software." (See e.g., Dkt. No. 147, Ex. A, col. 12:25-27). Indeed, the '271 patent discloses that implementation of the disclosed method could be:

implemented in many different ways using a wide range of programming techniques as well as general-purpose hardware or dedicated controllers. In addition, many, if not all, of the steps for the methods described above are optional or can be combined or performed in one or more alternative orders or sequences.

(Dkt. No. 147, Ex. A, col. 14:22-28). Thus, implementation of the disclosed method can be via conventional technology ...


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