[00:00:30] Speaker 03:
Our next case this morning is number 15, 2027, Icon Health and Fitness Inc.

[00:00:36] Speaker 03:
versus Johnson Health Tech Company Limited.

[00:00:39] Speaker 03:
Mr. Friedman.

[00:00:41] Speaker 04:
Good morning, your honor.

[00:00:42] Speaker 04:
May it please the court?

[00:00:46] Speaker 04:
This case is fairly simple.

[00:00:48] Speaker 04:
The claim involves, the claim requires changing a number of exercise related steps or sets.

[00:00:55] Speaker 04:
The reference, the dire reference discloses changing the number of repetitions.

[00:01:01] Speaker 04:
The board concluded that changing the number of repetitions is enough to disclose changing the number of sets.

[00:01:09] Speaker 04:
The problem with that is that there's no evidentiary support for that.

[00:01:12] Speaker 04:
And that's something that the simplicity of the technology now from our position in 2016, that makes it pretty dangerous because the appeal of hindsight reasoning is something that's

[00:01:23] Speaker 04:
can be great in a situation like this.

[00:01:26] Speaker 04:
So we have to be rigorous in our examination of the record and find that evidence that supports the connection between the disclosure of changing a number of repetitions and the disclosure of changing a number of sets.

[00:01:39] Speaker 01:
And its final written decision... Can you tell me what you mean by set?

[00:01:42] Speaker 04:
Sure, a set is defined in the dire reference, and that same term is not used in the 123 patented issue, but exercise-related steps is.

[00:01:53] Speaker 04:
And I think the parties are all in agreement that what we're essentially talking about is when you go to the gym and say, you know, the trainer prescribes three sets of 10 repetitions.

[00:02:03] Speaker 04:
So that's what we mean when we say set.

[00:02:07] Speaker 03:
So in its final written decision, the board set out... So if the DIA reference refers to sets, and it talks about providing an exercise system that uses the present and past user performance in addition to demographic data for developing changes to the user's exercise program, why wouldn't that reasonably be read to include changes to the sets?

[00:02:32] Speaker 04:
Well, because the term exercise program in the dire reference has a very specific meaning.

[00:02:38] Speaker 04:
It's defined very narrowly.

[00:02:39] Speaker 04:
And it's defined to refer only to the number of repetitions or changing the number of words.

[00:02:45] Speaker 04:
Where does it narrowly define it?

[00:02:46] Speaker 04:
That's at column, page A180 of, I'm sorry, not A180.

[00:02:53] Speaker 04:
A184, column 30, lines 39 through 45.

[00:02:58] Speaker 04:
And right there, which column?

[00:03:01] Speaker 04:
Column 30.

[00:03:01] Speaker 03:
30.

[00:03:02] Speaker 04:
Line 39 through 45.

[00:03:04] Speaker 04:
And right there, the discussion is about an initialization procedure.

[00:03:09] Speaker 04:
And so it's laying out a format for how you proceed through that procedure.

[00:03:14] Speaker 04:
And in describing that, it says exercise program will typically include the weight to be simulated by the resistance in the system and the number of repetitions of the exercise to be performed by the user.

[00:03:24] Speaker 04:
But what's important to note that everywhere else in the reference

[00:03:28] Speaker 04:
The exercise program is used consistently in that regard.

[00:03:31] Speaker 04:
It's used consistently to refer to just changing a parameter, amount of weight, number of repetitions.

[00:03:39] Speaker 03:
The exercise program at Dyer doesn't include different kinds of sets.

[00:03:44] Speaker 04:
No, it does not.

[00:03:45] Speaker 04:
So when Dyer wants to talk about sets, Dyer uses the term exercise session or exercise record information.

[00:03:52] Speaker 04:
And in our briefs, we list all the places where

[00:03:57] Speaker 04:
I've got them right here.

[00:03:58] Speaker 04:
I can read them to you, but they're in the brief.

[00:04:01] Speaker 04:
It's supported by the record.

[00:04:03] Speaker 04:
That narrow use of exercise program is consistent.

[00:04:06] Speaker 04:
It also, your question raises in some way a due process concern, this exercise program term appeared for the first time in the construction

[00:04:18] Speaker 04:
that was rendered by the board.

[00:04:19] Speaker 01:
Are you saying that exercise program in Dyer only talks about repetition?

[00:04:24] Speaker 01:
Yes.

[00:04:24] Speaker 01:
I mean, how would it actually work then?

[00:04:26] Speaker 01:
I mean, if you're giving you a program, I assume it's giving you a bunch of different sets of different repetitions.

[00:04:34] Speaker 04:
And so that's the danger, because sitting here in 2016, that's how we feel.

[00:04:38] Speaker 04:
But there's no evidence of that in the ref law.

[00:04:41] Speaker 01:
I mean, there is.

[00:04:42] Speaker 01:
I mean, there's the more general statement about how

[00:04:44] Speaker 01:
based upon user past and present performance, prescribes an exercise program.

[00:04:50] Speaker 01:
I mean, it can't just say do repetitions.

[00:04:55] Speaker 01:
It has to tell you what kind of repetitions, doesn't it?

[00:04:58] Speaker 04:
It doesn't ever tell you, whenever it wants to talk about sets, it'll say set, but it doesn't talk about sets comprising part of an exercise program.

[00:05:05] Speaker 01:
But it refers to exercise program.

[00:05:09] Speaker 01:
We're talking about a reference that is telling you how to do an exercise program remotely.

[00:05:15] Speaker 01:
An exercise program has, if it's telling you to do repetitions, it can't just say do 50 repetitions without describing

[00:05:25] Speaker 01:
what those repetitions are of, can it?

[00:05:28] Speaker 04:
Well, yeah, it does say what they are of, but it doesn't say do three sets of 50 repetitions.

[00:05:33] Speaker 04:
It never says anything about changing that value.

[00:05:36] Speaker 04:
It might talk about being able to do that, but it doesn't talk about changing that.

[00:05:39] Speaker 04:
And if changing that is so fundamental and so obvious, and was so at the time in 1995, that's what we have to bear in mind.

[00:05:49] Speaker 04:
There's no evidence of that.

[00:05:50] Speaker 04:
There's no evidence in the record that that's what a person in 1995 would have read the dire reference of disclosing.

[00:05:56] Speaker 04:
And if making changes to set number is something that's so fundamental, the record should be replete with

[00:06:03] Speaker 04:
or the priority.

[00:06:05] Speaker 04:
It should be easy to find, easy to point to, easy to come up with a target that makes that so.

[00:06:11] Speaker 05:
Did the board find that Dyer discloses changing the number of sets or that it would be obvious from Dyer to change the number of sets?

[00:06:19] Speaker 04:
A little bit of both, really it was an obviousness conclusion, but they also did this exercise program argument where they brought in exercise program into the construction at the very end and then said that same term appears in Dyer.

[00:06:34] Speaker 04:
And this was an argument that we were never allowed to address.

[00:06:38] Speaker 05:
This is not complex technology, so why, when the

[00:06:43] Speaker 05:
The reference itself acknowledges that there are lots of parameters.

[00:06:48] Speaker 05:
There's the amount of weight to use, the number of reps to do, and the number of sets defined in other terms.

[00:06:54] Speaker 05:
You use the correct ones and I'm not.

[00:06:56] Speaker 05:
But the reference itself discloses there are all these different parameters that can be part of optimizing your exercise regime.

[00:07:05] Speaker 05:
and it expressly discusses changing at least two of the parameters, weights and number of reps.

[00:07:13] Speaker 05:
Why wouldn't it be obvious to someone of skill in this art who is an artisan skilled in exercise programs that you could also just change the number of reps, you know, go do 50 reps at 10 pounds,

[00:07:27] Speaker 05:
Or do three sets of 20 reps at 10 pounds?

[00:07:31] Speaker 05:
Why wouldn't it be obvious?

[00:07:34] Speaker 05:
Common sense really does have to come into play in really simple inventions like this.

[00:07:40] Speaker 05:
Why wouldn't it be obvious?

[00:07:41] Speaker 05:
Why isn't the board's decision correct?

[00:07:44] Speaker 05:
In light of all this.

[00:07:45] Speaker 04:
There's no evidence of the perspective of someone of ordinary skill in the art in 2015 holding that point of view.

[00:07:53] Speaker 04:
It's easy for us now to say that, but there's no evidence in the record.

[00:07:56] Speaker 04:
You mean in 1995.

[00:07:58] Speaker 04:
1995, thank you.

[00:07:59] Speaker 04:
Also, this is a core factual finding.

[00:08:01] Speaker 01:
You mean in 1995.

[00:08:03] Speaker 01:
Let me just take this into the real world realm.

[00:08:06] Speaker 01:
In 1995, if you're working with a trainer and he sees you're tiring, he can say, well, instead of doing three sets, we'll do two.

[00:08:14] Speaker 01:
Or he can say, instead of doing three sets of 10, we're going to do three sets of six.

[00:08:19] Speaker 01:
Those are fungible, pretty much.

[00:08:21] Speaker 04:
We're talking about, please bear in mind, we're talking about a local system of computer tech.

[00:08:24] Speaker 01:
Right, I understand.

[00:08:25] Speaker 01:
But all you're talking about is basically computerizing a personal trainer.

[00:08:29] Speaker 01:
And so, I mean, those two kinds of directions, it seems obvious to me that in 1995, a person of ordinary skill would have understood

[00:08:38] Speaker 01:
if they said change the number of repetitions, they could have just as easily said change the number of sets.

[00:08:45] Speaker 01:
Because you get to the same result either way.

[00:08:48] Speaker 04:
Well, we don't have any evidence to that effect.

[00:08:50] Speaker 04:
We don't have any evidence that the person of ordinary skill in the art in 1995 would have held that point of view.

[00:08:55] Speaker 03:
I thought there was expert testimony here that someone would think of changing the number of sets.

[00:09:02] Speaker 04:
Say it again, Your Honor.

[00:09:03] Speaker 03:
I thought there was expert testimony here that someone would think of changing the number of sets.

[00:09:08] Speaker 04:
No.

[00:09:08] Speaker 04:
There's no testimony about that or that from a technology standpoint, we have the computing horsepower to alter the number of sets versus the number of reps.

[00:09:21] Speaker 04:
There's a distinction there.

[00:09:22] Speaker 04:
And it's the petitioner's burden to draw the correlation between those two.

[00:09:26] Speaker 04:
And in addition, from an exercise industry standpoint, whether

[00:09:31] Speaker 04:
One set of 100 repetitions is expected by the personal trainer to yield the same results and have the same benefits as 10 sets of 10 repetitions.

[00:09:41] Speaker 04:
Do those have the same training purposes?

[00:09:43] Speaker 04:
A venture not.

[00:09:45] Speaker 04:
But it's the petitioner's burden to produce evidence on that, that in 1995, those two things were interchangeable, or one suggested the other.

[00:09:54] Speaker 04:
The petitioner failed to do that.

[00:09:55] Speaker 04:
And the board, this is a core factual finding, and the board ignored the holding of Zirco and KSM.

[00:10:01] Speaker 04:
It says you can't just chalk it up to common sense.

[00:10:05] Speaker 04:
This is a core factual finding.

[00:10:07] Speaker 04:
We need evidence to connect the dots.

[00:10:18] Speaker 03:
Anything further?

[00:10:18] Speaker 03:
You want to?

[00:10:19] Speaker 04:
I believe I've reserved five minutes.

[00:10:20] Speaker 04:
I think this is a good stopping point, so I'll stop here.

[00:10:22] Speaker 04:
Okay, thank you.

[00:10:26] Speaker 03:
Mr. Scheller?

[00:10:27] Speaker 03:
Thank you, Your Honor.

[00:10:33] Speaker 02:
Good morning, Your Honors.

[00:10:34] Speaker 02:
May it please the court.

[00:10:35] Speaker 02:
I'd like to give a brief introduction and then respond directly to some questions you were asking of counsel.

[00:10:41] Speaker 02:
The issues on appeal here are straightforward and narrow.

[00:10:44] Speaker 02:
And it is a matter of common sense.

[00:10:46] Speaker 02:
The issues and arguments really boil down to semantics.

[00:10:49] Speaker 02:
And ICON's narrow interpretation of dire, as well as its effort to rewrite the step limitation of claim one.

[00:10:55] Speaker 05:
Well, you say it's narrow interpretation of dire.

[00:10:57] Speaker 05:
I don't see dire disclosing changing the number of sets.

[00:11:01] Speaker 05:
So where, is your argument Dyer discloses it, or is your argument one of skill and AR would know to modify that?

[00:11:08] Speaker 05:
Which of these arguments is yours?

[00:11:10] Speaker 02:
Your honor, we believe that Dyer discloses, there's two important things that Dyer discloses, and it does disclose the change in the number of sets.

[00:11:17] Speaker 02:
And that is implicit in the fact that Dyer says that it automatically changes the user's program, automatically changes the user's exercise program based upon user performance.

[00:11:28] Speaker 02:
So that's the first one.

[00:11:29] Speaker 02:
And anyone would understand.

[00:11:30] Speaker 02:
It doesn't have to be a person of ordinary skill in the art.

[00:11:33] Speaker 02:
Anyone would understand it's not a workout.

[00:11:35] Speaker 02:
There's three things you can change in weight workouts.

[00:11:37] Speaker 03:
I thought there was, was I right that there's expert testimony about that, about changing the number of sets?

[00:11:42] Speaker 02:
Yes, there is, Your Honor.

[00:11:43] Speaker 02:
We submitted expert testimony of... Where is it in the record?

[00:11:46] Speaker 02:
I believe it's at A379 through 382.

[00:11:49] Speaker 02:
379?

[00:11:51] Speaker 02:
Yes, is our expert's declaration.

[00:11:53] Speaker 02:
And then also, as we cited, Your Honor, Mr. Godstead, who is their expert, he admitted

[00:11:58] Speaker 02:
that programs encompass sets and reps.

[00:12:03] Speaker 02:
So it's not just a matter of, it's really common sense.

[00:12:07] Speaker 02:
Anyone would understand.

[00:12:08] Speaker 05:
What page did you say?

[00:12:10] Speaker 02:
I believe it's 8379 through 382.

[00:12:12] Speaker 05:
There's no 379 in here.

[00:12:16] Speaker 02:
We don't have 379.

[00:12:17] Speaker 02:
Is that in your appendix?

[00:12:20] Speaker 02:
I believe that was our experts' declaration.

[00:12:22] Speaker 05:
Is your expert... He's cited in the court... Timothy Nicholson?

[00:12:26] Speaker 05:
Yes.

[00:12:27] Speaker 05:
It's on page 839.

[00:12:28] Speaker 02:
I'm sorry.

[00:12:31] Speaker 05:
Dr. Nicholson, especially... Why don't you get your appendix so you can show us precisely where he says that Dyer discloses sets and why.

[00:12:44] Speaker 05:
Or that one that's going there would know to vary the number of sets if they're being told to vary the number of wraps.

[00:12:51] Speaker 02:
It's in paragraph, unfortunately, it's in paragraph 8E of Mickelson.

[00:12:58] Speaker 05:
Paragraph, I don't know.

[00:12:59] Speaker 05:
There are no paragraphs.

[00:13:01] Speaker 05:
You have an appendix?

[00:13:02] Speaker 02:
Unfortunately, I don't have the appendix for Dr. Mickelson.

[00:13:04] Speaker 05:
You came to an oral argument with an appendix.

[00:13:07] Speaker 05:
The appendix is this thing.

[00:13:09] Speaker 02:
Yes.

[00:13:09] Speaker 05:
And yet you didn't bring it.

[00:13:11] Speaker 02:
Unfortunately, I forgot.

[00:13:12] Speaker 05:
Can you lend him yours?

[00:13:13] Speaker 05:
You have an appendix.

[00:13:15] Speaker 05:
Thank you.

[00:13:16] Speaker 05:
Page 839.

[00:13:28] Speaker 02:
839 is his deposition.

[00:13:32] Speaker 02:
Well, what we're looking for is where did he testify in that sense.

[00:13:37] Speaker 02:
Well, Your Honors, I believe we submitted his expert report.

[00:13:43] Speaker 02:
His declaration was submitted to and I'm not sure.

[00:13:45] Speaker 02:
You didn't put in the appendix?

[00:13:47] Speaker 02:
It was in the joint appendix, and I believe it was cited.

[00:13:49] Speaker 02:
Well, where is it?

[00:13:51] Speaker 02:
Unfortunately, I'm not finding it right now in the appendix.

[00:13:55] Speaker 03:
Yeah, if you want us to.

[00:13:57] Speaker 03:
read this stuff, you're supposed to put it in the appendix, and you're supposed to be familiar, more familiar than we are, with the record here, and to be able to point to us where the things you rely on are.

[00:14:09] Speaker 03:
We're not, believe me, going to take your word for it, that it's in there.

[00:14:13] Speaker 02:
You have to show us where it is.

[00:14:16] Speaker 02:
Yes, sir.

[00:14:16] Speaker 02:
And we have cited to Mr. Godstead, who is their expert, who admitted... Where do we find their expert's name?

[00:14:24] Speaker 03:
Their expert is at

[00:14:27] Speaker 02:
875 at page 9 of the transcript, also at A-909.

[00:14:40] Speaker 02:
875?

[00:14:44] Speaker 02:
That's not in here.

[00:14:47] Speaker 02:
875, Your Honor.

[00:14:49] Speaker 03:
875?

[00:14:49] Speaker 03:
Yes.

[00:14:50] Speaker 03:
And where is it?

[00:14:52] Speaker 03:
At page 9, lines 3 through 15.

[00:14:56] Speaker 03:
875, there's no... 8 through 15, okay.

[00:15:09] Speaker 05:
But he just says that...

[00:15:12] Speaker 05:
In an exercise routine, you would have a number of steps and a number of parameters within those steps, within those sets.

[00:15:19] Speaker 05:
You would have weight associated with a number of repetitions.

[00:15:23] Speaker 05:
That's all he says.

[00:15:26] Speaker 05:
How does that support your argument?

[00:15:30] Speaker 02:
Well, we believe that he's admitting that a person of ordinary skill would understand that exercise program would have sets and repetitions, and that if you could vary the number of repetitions, you could certainly vary the number of sets as well.

[00:15:42] Speaker 02:
Again, this is common sense that a person who does a workout would understand.

[00:15:46] Speaker 05:
What this doesn't say, and you must agree because it's explicit, it doesn't say a person of ordinary skill would know you can vary the number of sets, right?

[00:15:55] Speaker 05:
He doesn't say that.

[00:15:57] Speaker 05:
He just says an exercise routine involves sets and steps and parameters.

[00:16:02] Speaker 05:
That's all he says.

[00:16:03] Speaker 02:
Right.

[00:16:04] Speaker 02:
And the question was about how does a person of ordinary skill apply the disclosures and strength equipment to something like a treadmill or a bicycle.

[00:16:11] Speaker 02:
was the context of the question.

[00:16:13] Speaker 02:
How do we know that?

[00:16:14] Speaker 02:
It doesn't say that.

[00:16:16] Speaker 02:
That's in the question that was asked.

[00:16:18] Speaker 02:
Again, same citation, 875.

[00:16:23] Speaker 02:
And it's lines 3 through 15 on page 9.

[00:16:27] Speaker 05:
But I don't understand how

[00:16:30] Speaker 05:
This is the expert testimony that supports your claim that a person of skill in the art would know you can vary the number of sets.

[00:16:39] Speaker 05:
I mean, that's the only thing missing from Dyer.

[00:16:42] Speaker 05:
This whole case is a ballot.

[00:16:43] Speaker 05:
It's a stupid little point, but you're the petitioner.

[00:16:45] Speaker 05:
It was your burden to put on evidence.

[00:16:47] Speaker 05:
This isn't a case where it's just the government acting on its own.

[00:16:52] Speaker 05:
which is a little more forgivable, and we sometimes say, well, the government's allowed to rely on common sense.

[00:16:57] Speaker 05:
When there's a petitioner who's brought a petition and has put on evidence, including expert testimony, we hold them to actually having to establish all of their points with evidence.

[00:17:09] Speaker 01:
And your question isn't even directed to what we're asking.

[00:17:12] Speaker 01:
Your question is directed to how you would compare the disclosures in strength equipment to a treadmill or a bicycle.

[00:17:20] Speaker 01:
That has nothing to do with varying steps versus varying repetitions.

[00:17:25] Speaker 02:
But the answer is important because it relates to the fact that a program

[00:17:30] Speaker 02:
that person of ordinary skill would understand that a program would have sets and repetitions.

[00:17:35] Speaker 02:
And so we believe that's important.

[00:17:36] Speaker 02:
But also, Your Honor, there's a second disclosure in Dyer, which is very explicit, that the user can skip a set.

[00:17:42] Speaker 02:
And that is right in Dyer at column 47, at column 47, line 50 through 68 of Dyer.

[00:17:49] Speaker 02:
And it's very specific that the user can initiate the step limitation of the 1, 2, 3 patent.

[00:17:55] Speaker 02:
And the user can clearly decide to skip a set.

[00:18:00] Speaker 03:
I'm looking here at the board's decision at 8, 11, and 12.

[00:18:07] Speaker 03:
And they say in the fitness world, an exercise program has long been defined by both the number of repetitions and the number of sets, and it cites exhibit 1017.

[00:18:19] Speaker 03:
What is that exhibit?

[00:18:20] Speaker 02:
That's our expert's declaration.

[00:18:22] Speaker 02:
Which you didn't include in the appendix.

[00:18:24] Speaker 02:
It was cited in the board's, you're right, your honor, it was not included in the appendix.

[00:18:29] Speaker 02:
It was cited in the joint appendix, and I can submit that to your honors via letter today.

[00:18:34] Speaker 03:
And then the board refers to column 22 in dire.

[00:18:41] Speaker 03:
Correct.

[00:18:42] Speaker 03:
It describes the exercise routine in terms of the number of sets.

[00:18:47] Speaker 03:
What does that say?

[00:18:49] Speaker 02:
Well, specifically, Your Honor, Dyer has numerous disclosures that talk about an exercise program in terms of sets.

[00:18:57] Speaker 02:
And if you look at figures 25 and 26 of Dyer, 26 is like a... Just stick with what I'm showing you.

[00:19:03] Speaker 03:
Yes, Your Honor.

[00:19:04] Speaker 03:
What does this... Column 22.

[00:19:09] Speaker 03:
Says this exercise record information contains data as to the initial weight, number of sets.

[00:19:19] Speaker 02:
Correct.

[00:19:20] Speaker 02:
It's a discussion of the fact that, again, person of ordinary skill.

[00:19:25] Speaker 03:
So this refers to altering the number of sets.

[00:19:28] Speaker 02:
Correct.

[00:19:29] Speaker 02:
And we believe that Dyer also has it in numerous places, as I indicated.

[00:19:34] Speaker 05:
Where does it say it alters number of sets, as opposed to just saying an exercise record contains this information?

[00:19:40] Speaker 05:
Where does it say altering sets?

[00:19:42] Speaker 02:
Well, there's the user skipping the set.

[00:19:46] Speaker 05:
In column 22, it doesn't, right?

[00:19:49] Speaker 05:
In column 22, it does not say altering sets.

[00:20:02] Speaker 02:
The lines that are cited do not talk about altering sets.

[00:20:04] Speaker 05:
That's correct.

[00:20:05] Speaker 05:
OK.

[00:20:05] Speaker 05:
So you think there are other lines, though, that do.

[00:20:07] Speaker 05:
And why don't you take us, then, to what you're talking about, which is at

[00:20:12] Speaker 02:
Column 47 to 48 yes, so at the bottom of column 47 at lines 55 through 68 this is the user initiated skipping of sets and dire and specifically talks about the one preferred embodiment of the system at line 59 compares the number of sets completed with the value of sets to be completed in a given session and

[00:20:37] Speaker 02:
And it states, if the user does not finish all sets, he is so advised.

[00:20:41] Speaker 02:
And if he does not then complete the session, his record is marked so that coaching comments regarding this may be given later.

[00:20:48] Speaker 00:
Similarly, if the user skips... How does that talk about the system?

[00:20:52] Speaker 00:
reducing steps.

[00:20:53] Speaker 00:
It talks about the user skipping steps.

[00:20:55] Speaker 02:
Right.

[00:20:56] Speaker 02:
And that is what the step limitation, there's two ways it can be initiated in the step limitation of the 123 patent.

[00:21:04] Speaker 02:
And that is it can be initiated by monitored user performance or by user input.

[00:21:10] Speaker 02:
And so we believe that this disclosure of dial specifically meets that limitation of user input.

[00:21:19] Speaker 02:
And so we have user input, user deciding to skip,

[00:21:22] Speaker 05:
When they say user input, I thought I understood that in the patent to be the user affirmatively inputting changes to his anticipated exercise program ex ante, not jumping off the treadmill.

[00:21:37] Speaker 05:
I mean, I use the treadmill all the time, right?

[00:21:39] Speaker 05:
And there's lots of times when I stop for a minute, put legs on both sides, and it just keeps going.

[00:21:43] Speaker 05:
Like, you know, I mean, this happens, right?

[00:21:45] Speaker 05:
Maybe people do these things, and including me, where, you know, you skip a little.

[00:21:49] Speaker 05:
I thought that when they were talking about user input, though, they were clearly talking about me inputting into the system ex ante what I'd like to do, or modifying it.

[00:21:58] Speaker 05:
Am I wrong?

[00:21:59] Speaker 05:
Am I misremembering?

[00:22:00] Speaker 02:
What Dyer talks about... Not Dyer, the patent.

[00:22:03] Speaker 02:
You're telling me... I understand.

[00:22:04] Speaker 05:
Look at the patent.

[00:22:05] Speaker 02:
Yes.

[00:22:06] Speaker 02:
And I believe ICON conceded in their original brief at page 10 that user input, such as skipping a station, can be... it can initiate the step limitation.

[00:22:19] Speaker 03:
And specifically... While the claim talks about performance,

[00:22:22] Speaker 03:
user performance changing.

[00:22:24] Speaker 03:
It's monitored user performance or user input.

[00:22:27] Speaker 03:
Right.

[00:22:27] Speaker 03:
So user performance would count.

[00:22:29] Speaker 03:
In column 48 of Dyer, it talks about providing an exercise system which uses the present and past user performance history in addition to demographic data for developing changes in the user exercise program.

[00:22:45] Speaker 03:
And the column before that talks about changing sets.

[00:22:51] Speaker ?:
Correct.

[00:22:52] Speaker 02:
And throughout Dyer, there's a discussion of monitored user performance to automatically update changes to the exercise program.

[00:23:00] Speaker 02:
Now it's important as well, I want to go back to the specific question you asked about

[00:23:04] Speaker 02:
exercise program and whether or not there's a disclosure of sets.

[00:23:07] Speaker 02:
We believe that exercise, if you read Dyer, all throughout Dyer, exercise session is a specific workout.

[00:23:13] Speaker 02:
Exercise program is the larger umbrella for the exercise session.

[00:23:18] Speaker 02:
And specifically in figures 25 and 26, and in columns 32, line 60 through column 33, line 2, as well as through column 47, line 1, through column 47, lines 68.

[00:23:31] Speaker 02:
There's a discussion of program and specifically referencing figure 25 and 26, which talk about sets.

[00:23:38] Speaker 02:
And figure 26 specifically has sets in it in dire.

[00:23:44] Speaker 02:
And as well, figure 25, which is the more general, again has end of set as well.

[00:23:50] Speaker 02:
Again, we believe that this is a person would understand that when you're talking about a workout, especially on a strength machine, there's only three things you can change.

[00:24:01] Speaker 02:
your sets, your reps, or the amount of your weight.

[00:24:05] Speaker 05:
And so we believe that- How can you change the delay in between performing sets?

[00:24:10] Speaker 05:
You can change the- Delay in between the rest, in between the sets.

[00:24:13] Speaker 02:
Right.

[00:24:13] Speaker 02:
You can change the rest.

[00:24:14] Speaker 02:
Although that would not be a parameter of the workout, because it's a rest period.

[00:24:23] Speaker 02:
I mean, you need an exercise in terms of exercise, for instance, exercise-related steps.

[00:24:27] Speaker 02:
as well.

[00:24:28] Speaker 02:
But you could have a longer rest.

[00:24:29] Speaker 05:
I don't know.

[00:24:30] Speaker 05:
My trainer thinks how long I rest in between each set is definitely a parameter.

[00:24:35] Speaker 05:
He wants to keep me moving from one to the other to the other.

[00:24:37] Speaker 02:
Right.

[00:24:38] Speaker 02:
And Dyer specifically talks about sets in terms of, Your Honor, in terms of a three second delay, that that signifies a new set as well.

[00:24:48] Speaker 02:
And so we talk about the, and in fact Dyer as well, talks about a rest period in figure 29 of 10 seconds, which would be another set as well.

[00:24:56] Speaker 02:
And that's specifically, excuse me, I wanted to provide you the citation.

[00:25:08] Speaker 02:
And Dyer, that is specifically at column 22, lines 24 through 27.

[00:25:16] Speaker 02:
where it talks about SET as a period of substantially continuous exercise, where the user does not stop for more than a given limited time period, such as three seconds, which is something I think your trainer would like.

[00:25:27] Speaker 02:
But in terms of the person would understand doing weight training, that you do have SETs, reps, and weight are the three things you can change.

[00:25:35] Speaker 02:
OK, thank you, Mr. Scheller.

[00:25:37] Speaker 02:
We're out of time.

[00:25:38] Speaker 02:
OK, thank you, Your Honor.

[00:25:41] Speaker ?:
Mr. Freeman.

[00:25:47] Speaker 04:
Thank you, Your Honor.

[00:25:49] Speaker 04:
The claim requires a system that determines to carry out a different number of steps.

[00:25:58] Speaker 04:
Different numbers.

[00:25:59] Speaker 04:
The system determines to do that.

[00:26:02] Speaker 04:
It responds to user input, and if the user stops,

[00:26:08] Speaker 04:
The claim's not satisfied unless the system then carries on and determines to carry out a different number of steps.

[00:26:15] Speaker 01:
But I thought the user could also change the number of steps too.

[00:26:19] Speaker 04:
But the system has to respond.

[00:26:20] Speaker 04:
Responding to user input

[00:26:23] Speaker 04:
The user input is not saying, I want to do a different number of steps.

[00:26:26] Speaker 04:
That defeats the whole purpose of the claim.

[00:26:28] Speaker 04:
The claim is determined, the system determines, it calculates to carry out a different number of steps.

[00:26:35] Speaker 03:
Look, in column 48 of Dyer, where it talks about providing an exercise system which uses the present and past user performance history,

[00:26:44] Speaker 03:
In addition, demographic data for developing changes to the user's exercise program.

[00:26:49] Speaker 03:
If the user's exercise program includes sets, then Dyer is describing that, right?

[00:26:58] Speaker 04:
Well, I'm not willing to concede the point that it includes sets.

[00:27:01] Speaker 03:
I didn't ask you to concede it.

[00:27:03] Speaker 03:
I said, assuming that the exercise program includes sets, this is describing your invention.

[00:27:10] Speaker 04:
OK, no, I don't think it is.

[00:27:11] Speaker 04:
Why not?

[00:27:12] Speaker 04:
Because it doesn't describe how to do it.

[00:27:14] Speaker 04:
It describes in great detail, glorious detail, how to do every single repetition.

[00:27:17] Speaker 03:
It says as a result of performance history.

[00:27:19] Speaker 03:
I'm sorry?

[00:27:19] Speaker 03:
It says as the result of performance history.

[00:27:22] Speaker 04:
No, how do we do it?

[00:27:24] Speaker 04:
There's nothing in the record that says a person with an ordinary skill in the art would have the technical know-how to do this.

[00:27:30] Speaker 03:
Well, put that aside.

[00:27:31] Speaker 03:
Isn't this describing changing an exercise program based on performance history?

[00:27:39] Speaker 04:
That's what that language says.

[00:27:40] Speaker 03:
Okay, so an exercise program includes sets.

[00:27:44] Speaker 03:
This is changing the number of sets.

[00:27:47] Speaker 04:
based on performance history, right?

[00:27:49] Speaker 04:
I don't agree that the reference discloses how to do that.

[00:27:54] Speaker 04:
I agree that it discloses how to change repetition.

[00:27:56] Speaker 03:
I'm asking you whether this describes

[00:28:00] Speaker 03:
as a result of performance history, changing the exercise program?

[00:28:03] Speaker 03:
The answer to that is yes, because that's explicitly what it says, right?

[00:28:07] Speaker 04:
In terms of what exercise program means in the dire reference.

[00:28:10] Speaker 03:
And if the exercise program includes sets, then it's talking about changing sets.

[00:28:13] Speaker 04:
Then it discloses the idea.

[00:28:15] Speaker 03:
Right, and the immediately preceding part of this specification talks about changing the number of sets, right?

[00:28:23] Speaker 04:
Not no, not determining to change the number of sets.

[00:28:25] Speaker 03:
Not that it talks about changing the number of sets, right?

[00:28:29] Speaker 03:
In Calum 47.

[00:28:33] Speaker 04:
It does not talk about the system determining to change the number of steps.

[00:28:37] Speaker 03:
No, but it talks about changing the number of sets.

[00:28:39] Speaker 03:
And the question is whether you would read exercise program in column 48 to changing the number of sets.

[00:28:50] Speaker 04:
I don't believe that column 47 discloses changing the number of steps.

[00:28:55] Speaker 04:
I think it says you could skip one.

[00:28:58] Speaker 04:
It means you skip one.

[00:29:00] Speaker 04:
It doesn't entail the workout.

[00:29:02] Speaker 04:
the program dictating a different number of sets.

[00:29:08] Speaker 04:
I'd like to turn briefly to exhibit 1017.

[00:29:12] Speaker 04:
It was discussed here.

[00:29:14] Speaker 04:
The discussion sort of bears out my point that there's no evidence, no support in the record for the idea that disclosure of changing repetitions, a system that changes repetition, is tantamount to a disclosure of a system that changes sets.

[00:29:28] Speaker 04:
Exhibit 1017 is not the declaration of their expert.

[00:29:33] Speaker 04:
It's the deposition transcript of our expert.

[00:29:35] Speaker 04:
It's the document, those pages that you went through,

[00:29:38] Speaker 04:
with Mr. Scheller and none of those support the idea that exercise program is something that

[00:29:47] Speaker 04:
as the board said, in the fitness world has long been known to be defined by both a number of repetitions and a number of sets.

[00:29:54] Speaker 04:
Mr. Godsted never even uses the word exercise program in those four pages that are cited.

[00:30:00] Speaker 04:
He's not testifying from the perspective of a person of skill in the art in 1995, or at least the record doesn't disclose that he was.

[00:30:07] Speaker 04:
And exercise program, as I said, has a special meaning in Dyer, and it's not the standard industry meaning.

[00:30:15] Speaker 03:
the standard industry meeting would include sets?

[00:30:19] Speaker 04:
Well, I don't know.

[00:30:19] Speaker 04:
I don't know what it was in 1995.

[00:30:21] Speaker 04:
There's no evidence in the record of that.

[00:30:24] Speaker 04:
And it's very easy for us to sit here as persons skilled or not skilled in the art in 2016 and think it seems simple.

[00:30:31] Speaker 04:
In 1995, if it was so simple to have a system that changed number of sets as distinguished from number of repetitions on the fly like that, then the prior art would be replete with opportunities to cite to it.

[00:30:43] Speaker 04:
And there's nothing in the record.

[00:30:47] Speaker 04:
Unless the court has anything further.

[00:30:49] Speaker 03:
Thank you.