Polar Electro Oy v. Suunto Oy et al

Filing 407

MEMORANDUM DECISION and ORDER Construing Calculating Unit. Signed by Judge Clark Waddoups on 8/11/2020. (lnp)

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

POLAR ELECTRO OY,

MEMORANDUM DECISION
AND ORDER CONSTRUING
CALCULATING UNIT

Plaintiff,
v.
SUUNTO OY, AMER SPORTS WINTER &
OUTDOOR d/b/a/ SUUNTO USA, and
FIRSTBEAT TECHNOLOGIES OY,

Case No. 1:17-cv-0139 CW
Judge Clark Waddoups

Defendants.

INTRODUCTION
Plaintiff Polar Electro Oy (“Polar”) owns a patent for determining a person’s energy
consumption during exercise based on a person’s fitness level (the ‘227 patent). Polar asserts that
Firstbeat Technologies Oy (“Firstbeat”) has infringed the ‘227 patent. On December 11, 2019, the
court issued a memorandum decision construing certain terms pursuant to Markman v. Westview
Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996). It reserved ruling,
however, on the term “calculating unit for calculating” until after it received expert evidence on what
that term means for one of ordinary skill in the art. This memorandum decision now sets forth the
court’s claim construction for that term.

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BACKGROUND
The patent at issue is U.S. Patent No. 6,537,227. As stated in the court’s December 2019
decision, the ‘227 patent focuses on an improved method for determining a person’s energy
consumption during exercise that “take[s] into account that a fit person performs a larger amount of
work at a given heart rate level than an unfit person,” and that energy consumption is thereby
impacted. ‘227 patent, col. 1:42 45 (ECF No. 205-1). To accomplish this objective, Claims 21 and
221 specify a calculating unit for calculating is a necessary component.
Polar contends the term may be understood according to its plain meaning, and that it is not
in a means-plus-function format. Joint Claim Chart, at 4 (ECF No. 250).2 Polar further contends
“‘calculating unit’ connotes a structure for calculating. This is evident in the language itself which
states that the calculating unit does calculating. The claim language thus recites a unit that
calculates.” Id. In supplemental briefing, Polar stated that, to the extent the term requires
construction, it should be construed to mean “a computer or electronic component configured to
calculate.” Polar Supp. Brief, at 10 (ECF No. 369).
Firstbeat contends the term “is a means plus function term.” Joint Claim Chart, at 4 (ECF
No. 250). In the Joint Claim Chart, Firstbeat initially asserted, the structure is “limited to ‘central

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The ‘227 patent has undergone three re-examinations that modified the original claims.
The claims from the second reexamination are at issue in this memorandum decision. The third
reexamination confirmed the patentability of those claims and added new claims. See ‘227 patent,
Re-exam Cert. C3, col. 1:15 19 (ECF No. 205-4).
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When the court cites to a document in the record, the pincite refers to the ECF page number
at the top of the page and not to any page number at the bottom of the page.
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processor 524,’” and the function is “calculating an assessment of the person’s energy consumption.”
Id. In supplemental briefing, Firstbeat notes that “unit for” is a nonce word per MPEP § 2181, and
therefore is akin to using the word “means.” Firstbeat Supp. Brief, at 4 5 (ECF No. 376). Firstbeat
then contends the ‘227 patent fails to disclose a structure for the “calculating unit,” so the claim fails.
Id. at 10 12. Alternatively, if the court finds a structure is present, Firstbeat contends the structure
“in claim 21 is a central processing unit (CPU) programmed to perform both of the algorithms in
formulae (4) and (5) of the ‘227 patent.” Id. at 14.
When construing a patent, “the words of a claim are generally given their ordinary and
customary meaning, which is the meaning that the term would have to a person of ordinary skill in
the art in question at the time of the invention.” Ruckus Wireless, Inc. v. Innovative Wireless
Solutions, LLC, 824 F.3d 999, 1002 (Fed. Cir. 2016) (quotations, citations, and alteration omitted).
Because the court lacked sufficient information to know whether “calculating unit for calculating”
had a customary meaning to one of ordinary skill in the art, the court requested that Polar and
Firstbeat provide expert evidence on that issue.
Declaration of Sayfe Kiaei
Polar submitted the Declaration of Sayfe Kiaei. Polar retained Dr. Kiaei as a technical
expert. Dr. Kiaei has a doctorate in Electrical and Computer Engineering, and is the Motorola
Endowed Chair Professor in Electronics and Integrated Circuits at the School of Electrical, Computer
and Energy Engineering at Arizona State University. Kiaei Decl., ¶ 3 (ECF No. 402); Curriculum
Vitae (“CV”), Appendix B (ECF No. 402 at 13). His fields of specialization include, in part,
“Analog & Digital Integrated Circuits, Sensors, Bio-Electronics, [and] Power Management IC.” CV,

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Appendix B (ECF No. 402 at 13). He has “graduated over 100 MS and PhD students working under
[his] supervision” during his 30 years in this field. Kiaei Decl., ¶¶ 5, 6. He also has “several patents
related to bio-electronics, heart monitoring, and electronics,” and has published extensive papers on
the topics of electronics, computing, and integrated circuits. Id. ¶¶ 6, 11, Appendix A. The court
concludes Dr. Kiaei is well-qualified to opine as a person skilled in the art at the time of the relevant
invention.
Based on Dr. Kiaei’s knowledge and experience over the past 30 years, he declared that “‘[a]
calculating unit for calculating’ does have a known meaning” to one skilled in the art. Id. ¶ 19.
Electronic systems, including bio-electronic systems “have calculating units that perform
calculations.” Id. ¶ 20. They “take the inputs and calculate results from the inputs.” Id. In simple
terms, “[c]alculating units are electronic devices that perform[] calculation[s].” Id. ¶ 21. They may
take a variety of different forms such as “analog electronics, digital electronics, processor,
microprocessor, computer, dedicated application specific integrated circuit (ASIC), dedicated
electronics, neural network, software, or other forms.” Id.
In the world of electronics, a calculating unit that performs calculations is a key component,
and “is well-known terminology for a person skilled in the art.” Id. ¶ 27. In Dr. Kiaei’s “opinion,
any undergraduate student in electrical engineering, computer engineering, or computer science
would be familiar with this terminology,” and one skilled in the art would “select the appropriate
architecture, components and electronics for the calculating unit.” Id. ¶¶ 27 28. Dr. Kiaei also
noted that “calculating unit” is a common term used in other patents. Id. ¶ 34. Within the ‘227
patent, Dr. Kiaei identified multiple “structures for calculating the person’s energy consumption

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during exercise.” Id. ¶¶ 32 33. In his expert opinion, the ‘227 patent uses the term “in its ordinary
and accepted manner,” and it connotes a structure. Id. ¶ 35.
Declaration of Thomas Blackadar
Firstbeat submitted the Declaration of Thomas Blackadar. Firstbeat retained Mr. Blackadar
as a technical expert. In 1981, Mr. Blackadar obtained a Bachelor of Science degree in Biomedical
and Electrical Engineering. Blackadar Decl., ¶ 4 (ECF No. 403-1). “Since then, [he has] devoted
[his] career to the field of communications, wearable devices, sensor systems, and medical devices.”
Id. For many years, Mr. Blackadar has “been working with sensor systems for collecting and
analyzing data relating to an individual’s physiological state.” Id. ¶ 5. He has acted as a consultant
and mentor to both professionals and students. Id. His “primary focus,” however, “has related to
developing, identifying, demonstrating, testing, and consulting on wearable devices and sensor
systems embodied in complex hardware and software products.” Id.
In particular, Mr. Blackadar has been involved in the following technologies:
near real-time data delivery for vital signs monitors, wearable
accurate speed distance watch and sensors, real-time vital signs
monitoring for broadcast TV, low power accelerometers, lower power
electronic systems, personal area wireless networks, and Warfighter
Physiological Status Monitors for determining human stress levels.
Id. ¶ 6. Additionally, he has “provided to customers advanced electrocardiogram (“ECG”) monitors,
sensor data-fusion solutions, advanced low-power networking topologies designs, and design review
services.” Id. He also has published works and is the “named inventor on 31 U.S. patents in the
field of wearable devices and/or sensor systems for monitoring user activity.” Id. ¶¶ 10 11. Several
of the patents are “in health monitors, wearable bandages and telemetry.” Id. ¶ 5. The court

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concludes Mr. Blackadar is well-qualified to opine as a person skilled in the art at the time of the
relevant invention.
Mr. Blackadar notes he has “built special purpose calculating units that had no other purpose
than to do a specific polynomial calculation.” Id. ¶ 20 (emphasis added). When reviewing the ‘227
patent, however, he “find[s] no structure from which to draw from,” and a person skilled in the art
also “would not find any structure from which to draw from.” Id. ¶ 21. Consequently, such a person
“would not understand that the inventors of the ‘227 patent intended to include any specific structure
that manipulates data or obtains its final results.” Id. A person skilled in the art “would therefore
be required to design the algorithms, silicon FPGA, PLA, or some such device, without any guidance
from the specification of the ‘227 patent.” Id. ¶ 22 (emphasis added). Even when the specification
“attempts to describe neural networks,” Mr. Blackadar declared “the inputs and outputs do not
adequately describe how data is moved and processed through the system.” Id.
In Mr. Blackadar’s opinion, “the ‘227 patent intended ‘the calculating unit’ to be the central
processing unit 524,” but the term has no “special connotation” to one skilled in the art. Id. ¶¶ 26
27. This is so, according to Mr. Blackadar, because there are many types of “calculating units.”
See id. ¶¶ 27 30 (listing different types of calculating units). Thus, if an individual “were to
approach a [person skilled in the art] and ask to be provided with a ‘calculating unit,’” that person
would have the following types of questions:
(1) what type of calculating unit; (2) what is it being used for; (3)
what types of demands will be made of the calculating unit, e.g., what
processing power should the calculating unit have; (4) is the
calculating unit going to be used in combination with any software or
other hardware; (5) is the calculating unit going to be software based

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and implemented on a processor; and/or (6) does the calculating unit
need to be done in discrete logic.
Id. ¶ 32 (emphasis added). Hence, Mr. Blackadar opined that “a ‘calculating unit’ does not connote
only a single definition of a physical structure. Rather, it can mean multiple things depending on the
context in which it is being used.” Id. ¶ 33. Notably, however, Mr. Blackadar’s declaration does
not contain a question about what is a “calculating unit?”
ANALYSIS
I.

STANDARD FOR CLAIM CONSTRUCTION
“The purpose of claim construction is to ‘determine the meaning and scope of the patent

claims asserted to be infringed.’” 02 Micro Int’l, Ltd. v. Beyond Innovation Tech. Co., 521 F.3d
1351, 1360 (Fed. Cir. 2008) (quoting Markman, 52 F.3d at 976) (alteration omitted). Disputes about
the meaning and scope of a claim must be resolved by the court, not the jury. See id. A court “must
begin with the words of the claims themselves.” Amgen Inc. v. Hoechst Marion Roussel, Inc., 457
F.3d 1293, 1301 (Fed Cir. 2006) (citation omitted). The court then construes a term based on its
“ordinary and customary meaning . . . to a person of ordinary skill in the art . . . at the time of the
invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (citation omitted). A court
views the term “in the context of the entire patent, including the specification,” as well as the
prosecution history. Amgen Inc., 457 F.3d at 1301 (quotations and citations omitted). When needed,
a court also may use extrinsic evidence to determine the meaning of a term. Id. (citations omitted).
II.

CLAIM CONSTRUCTION
To determine if “calculating unit for calculating” has an ordinary and customary meaning to

one of ordinary skill in the art, the court relies upon the declarations submitted by two experts in the
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relevant field. Although Dr. Kiaei opines the term does connote a structure and Mr. Blackadar
opines it does not connote a structure, Mr. Blackadar’s opinion appears to be based on definiteness
rather than construction.
In Idenix Pharmaceuticals LLC v. Gilead Sciences Inc., 941 F.3d 1149 (Fed. Cir. 2019), the
Court addressed whether a patent was enabled and definite to inform those in the art about the scope
of the patent. The trial court had construed the terms of the patent and then held a two-week trial.
See id. at 1153, 1159. Following the trial, the court granted judgment as a matter of law and
invalidated the patent for lack of enablement. Id. at 1153. On appeal, issues about undue
experimentation, whether the working examples were present, and the degree of guidance were
addressed. Because claim construction had not been challenged, such construction then informed
the Court about whether the patent was enabled and definite. See id. at 1156 n.3, 1159. The Court
affirmed the trial court’s decision that the patent was invalid for lack of enablement. Id. at 1153,
1165.
Much of Mr. Blackadar’s declaration pertains to the issues raised in Idenix. The issue before
the court, however, is not whether a figure provides sufficient guidance about how to practice the
patent or whether the specification adequately describes how data is moved and processed in the
system. Instead, the only issue before the court is how “calculating unit for calculating” should be
construed.
When discussing a calculating unit, Mr. Blackadar reported he built such a device.
Moreover, he identified a wide variety of calculating units, and then posed multiple questions
necessary to design a calculating unit for a particular application. Each question presumed an

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understanding, however, about what a calculating unit is and that it has structure. Thus, rather than
rebut Dr. Kiaei’s declaration, Mr. Blackadar’s declaration supports that a “calculating unit for
calculating” does have an ordinary and customary meaning in the art, and what varies is the type of
structure.
As stated above, the purpose of claim construction is to determine the meaning and scope of
the patent claims at issue. “A determination that a claim term ‘needs no construction’ or has the
‘plain and ordinary meaning’ may be inadequate when a term has more than one ‘ordinary’ meaning
or when reliance on a term’s ‘ordinary’ meaning does not resolve the parties’ dispute.” 02 Micro
Int’l, Ltd., 521 F.3d at 1361. In this case, it is not sufficient to state the term is understood by its
plain meaning due to the many types of calculating units. Although one with ordinary skill in the
art knows what a “calculating unit” is, the court must still “determine what claim scope is
appropriate in the context of the patent[]-in-suit.” Id. This fact is supported by the other patents
Polar and Dr. Kiaei cited because each states the type of calculating unit claimed by the respective
patent.
An abacus and a slide rule are calculating units. The ‘227 patent, however, does not employ
that type of calculating unit. Instead, the ‘227 patent refers to neural networks, central processors
with exemplary algorithms, software, specific dedicated hardware such as ASIC, and other similar
electronics. ‘227 patent, col. 8:45 48, col. 10:6 28 (ECF No. 205-1). Such scope is broader than
the constructions proffered by Firstbeat. Accordingly, the court construes “calculating unit for
calculating” to mean “a computer or electronic component configured to calculate.” Whether the
patent is enabled and sufficiently definite based on that construction is an issue for another day.

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CONCLUSION
For the reasons stated above, the court construes “calculating unit for calculating” to mean
“a computer or electronic component configured to calculate.” Claim construction is now complete.
Accordingly, the court refers the parties to the Order re: Scheduling Matters (ECF No. 386) entered
on September 30, 2019, which details the deadlines for expert reports, expert discovery, and
dispositive motions.
DATED this 11th day of August, 2020.
BY THE COURT:

___________________________________
Clark Waddoups
United States District Court

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