US based SportBrain has started off their year by suing Nike, claiming Nike has infringed their patent US7454002, having previously sued Adidas and Fitbit over the same patent. 

US7454002 has some lengthy claims, but at the risk of oversimplification, the first of these claims covers:

• counting the number of steps taken by a user
• sending the step data to a network server via a wireless communication device
• providing a website
• comparing the step data to the same data from other users, and posting these comparison

The SportBrain patent has a filing date of 8th January 2001, and an apparent priority date of January 2000. The patent was initially rejected by the USPTO as lacking patentability in the light of US patent 6252883 to Aloha Networks, which discloses a personal monitoring system that reports back to a server or the internet, but does not appear to refer to a counting steps, or to comparing this data to that of other users.

Determining whether Nike and other companies infringe the SportBrain patent is beyond what Ambercite does. But what we do is patent searching using our patent search tool AmberScope, starting with a known patent in the area, in this case the SportBrain patent.  And what did we find?

The figure below shows the first output from the search, being the patent network connected to the SportBrain patent by forward or backward citations. Each dot shows a connected patent, with the size of the dots showing the relative predicted importance. Hovering your mouse over any of these dots (in the interactive AmberScope website) opens up a summary box for each of these patents, including a hyperlink to further information (see the video found here for an overview about AmberScope, or just go straight to Amberscope.com to try it for yourself).

The SportBrain patents is connected to a number of patents, not all which disclose similar technologies during a preliminary review of the subject matter these patents. Of importance to our patent search, none of the backward citations appear to disclose a pedometer that connects to the internet. Of note, the Sportbrain patent has an AmberScore value (measure of network connectiveness) of 0.31, which is less than the average of 1.0 for US patents.

However a couple of patents come close, namely these patents:

• US5976083 and US6135951 to Living Systems, which disclose A personal fitness monitoring device and a method for assessing the fitness of an individual as the individual exercises includes using a pedometer to determine and output data representing the locomotion of the individual
• US5891042 to Acumen Ltd, whose position is shown in the network below, and which discloses A fitness monitoring device includes an electronic pedometer which responds to a user's body motion at each step and a wireless heart rate monitor which is wirelessly coupled to the electronic pedometer.

Because these patents do not fully disclose the exact SportBrain invention, it is necessary to go further in this prior art search. In this case, the network is 'refocussed' on the Acumen patent, which has 46 further connections. One easy way of refocusing the patent is to select the 'more' button, as highlighted below. This changes the focus of the patent network so that it is centred on the new patent, in this case US5891042.

This leads to the figure below. By refocussing, I refer to the process of changing the focus of the patent network so that it is centred on the new patent. We have also used the filing year filter to hide all patents later than 1999, as these are not going to be prior art for the SportBrain patent.  

One easy method of exploring crowded patent networks is to use the Next button found at the bottom left of the screen.

This takes you to the next highest ranking patent (in order of AmberScore value) that has not yet been read yet during the patent search (AmberScope keeps track of the patents that have been read, and changes the colour of the dots from grey when done so).

One of the largest scoring of these connected patents is US4371945 to Karr, which has an AmberScore value of 16 and which discloses

A pedometer is disclosed which calculates the distance a user walks, jogs or runs by electronically measuring the length of each stride taken by the user.

Of interest, the Karr patent has 122 further connections - and we can explore these by making this patent the focus patent. Or we could keep on looking on the patents in connected to the Acumen patent, which for example include US4578769 to Nike, which has a AmberScore value of 16, a filing date of 1983, and which discloses a wireless based method of monitoring runners. 

However, in this case, we will refocus the network on the Kerr patent. 

Again we have applied a filing year filter, and can use the 'Next' button to identify the patents in this network with the highest AmberScore values.

One of the patents in this networks with the highest AmberScore is US5524637 (published in 1996) filed by Jon Erikson, which discloses in its abstract:

a system is provided for monitoring the physiological exertion of a user. One or more sensors are attached to the limbs of the user to measure the user's motion. The sensors can measure either the acceleration or the force on the limbs. The measured signal is transmitted to a monitor by a wireless transmitter, such as an infrared, acoustic or radio transmitter..

And in column 9 of this patent, from line 35 onwards, reads in part

...a group exercise program. Individual accelerometers may be uniquely identified in the communication protocol if desired....members of such a group could record their performance privately, or publicly for such purposes of competition...

Which to me makes this patent a relevant disclosure to the SportBrain patent, containing many key elements of the SportBrain claims. Importantly, because it has not been previously cited by the USPTO, lawyers for Nike or other companies could potentially list this patent as part of an application to have the SportBrain patent re-examined.

It will be interesting to see if Nike refer to this patent in their defence of their patent infringement action. 

This patent search strategy for this blog is shown below.

And we could keep searching if we wished, and:

• refocus the patent network on the Erikson patent to see what other relevant patents we could find in the patent network connected to the this paten
• refocus the patent network on the Nike patent (which like the Kerr patent, shows the Erikson patent as a ghost patent) and explored the patents in this network
• fully analyse all of the patents connected to the Acumen patent (which for example includes US6473483, which is very similar to the SportBrain patent in some ways, but appear to be a little later in its disclosure)
• refocus the patent network on the Living Systems patents, and explore the connected patents.

However this blog has made its point, which is that:

AmberScope has yet again been shown to be an effective tool for prior art searching, with an ability to find relevant patents missed by other patent searching tools and searchers (including USPTO patent examiners)

March 2013 update - some of the images shown above feature quite crowded patent landscapes. Thanks to an update in AmberScope introduced in February 2013, the same search would show a less crowded landscape which would be easier to navigate and faster to load - but still produce the same outcomes.