England and Wales High Court (Chancery Division) Decisions

i)                    Garmin did not pursue various of its prior art citations, or only pursued certain prior art in the event that its collocation attack was successful.

ii)                  Garmin did not cross-examine in relation to the evidence of infringement and did not rely upon any evidence as to non-infringement.

iii)                The dispute as to the identity of the skilled person evaporated, and Philips no longer advanced the submission that this was a Schlumberger- type invention. Indeed, Philips accepted that claim 1 of the Patent was not only anticipated by, but also obvious, in the light of one of the prior art citations (Schutz Y and Chambaz A, “ Could a satellite-based navigation system (GPS) be used to assess the physical activity of individuals on earth?” , European Journal of Clinical Medicine (1997) 61, 338-339) (“Schutz”); see in particular Mr Nicholson’s oral closing T4/442-443.

iv)                Philips continued to advance all of its five proposed amendments, as the scope of any claim found to be valid may make a significant difference to the extent of infringement by the various Garmin products in issue. In particular, if claim 30A is valid, then all 73 Garmin products will infringe. Certain of the conditional amendments will substantially reduce the number of infringing products.

The witnesses

            Mr Farringdon

i)                    Mr Farringdon was first exposed to GPS at Philips when he joined in November 1997 but he did not collaborate with any external GPS people;

ii)                  he had never worked for or with a GPS company or on a GPS device in production;

iii)                his knowledge of GPS came from discussions with wearables academics researching GPS, and not from persons in the GPS industry;

iv)                his evidence about the response of GPS specialists to the prior art was based upon attributing the threads of electronic engineering and product design common to consumer products to GPS specialists;

v)                  by 1998 he had not worked on athletic monitoring and only worked on a general activity monitor after that date;

vi)                he had no direct experience of the leading manufacturers of APMDs.

      Mr McKnight

Technical background

i)                    GPS technology;

ii)                  Existing athletic performance monitoring devices; and

iii)                The Internet and World Wide Web.

GPS technology

Existing athletic performance monitoring devices

Sports watches

                                i.             a regular real-time read-out of the user’s heart rate, as obtained from the connected chest strap sensor;

                              ii.             a memory for logging heart rate readings;

                            iii.             the ability for the athlete to specify the target zone within which he/she wished to maintain his/her heart rate, and means for alerting the athlete if the heart rate was above or below the target zone (usually a combination of audio alerts and on-screen alerts), which would direct the athlete to either decrease or increase activity to move into the target zone; and

                            iv.             normal watch functionality, including sports watch functionality discussed above.

Bicycle computers

Bicycle power meters

Indoor bicycle trainers

Pedometers

Accelerometers

Entertainment devices for athletes

Athletic performance monitoring software

The Internet and the World Wide Web

The Patent

“… the application of Global Positioning System (GPS) technology for the personal performance monitoring of outdoor athletes, such as runners, bicyclists, hikers, walkers, skaters, skiers, and so forth, and providing the athlete with real-time performance feedback and optional long-term trend analysis.”

The examples of “outdoor athletes” given in this paragraph make clear that an athlete, in the context of the Patent, includes individuals who may or may not be particularly athletic, such as hikers, walkers and cyclists.

“More specifically, the invention relates to a portable personal performance monitor for monitoring athletic performance when carried by an athlete as well as to the use of such a monitor in a feedback system providing regular updates on the athlete’s performance.”

“… can presently only be done indoors on treadmills. Treadmills provide the runner with continuous read-outs of time, distance, speed, pace, inclination, calories burned, and so forth. Outdoors, the runner is limited to wristwatches with built-in stop watches, heart rate monitors, or pedometers.”

“To provide a solution to the need for a portable GPS unit that is small and light enough to be carried or worn by an outdoor athlete which incorporates real-time athletic performance algorithms for continuously monitoring the athlete’s progress and reporting his/her progress periodically during the exercise session.”

“To provide a device which is portable, rugged, weather resistant, and self-contained;

To provide a device which continuously and accurately determines the position of an outdoor athlete anywhere in the world; and

To provide a device which continuously and consistently provides accurate, real-time performance feedback such as elapsed time, elapsed distance, current and average speeds and paces, current climbing rate, and so forth, independent of its outdoor location in the world.”

“a global positioning system GPS receiver for acquiring time-stamped geographic position data of the athlete, computing means for conversion of said position data into athletic performance feedback data and presentation means for presenting said feedback to the athlete.”

“…Preference options include, by way of example, performance targets (e.g., total distance, exercise session time, and/or average speed or pace), frequency of feedback information cycles (e.g., continuous, time-related, distance-related, or none), type of feedback information (e.g., full or summarized), and personal data (e.g., gender, birth date, and body weight). Certain preference options may only need to be set once (such as gender and birth date) or occasionally (such as weight or other variable parameters), while other preference options may be adjusted each time the GPS-based personal performance monitor and feedback device is used. Alternatively, all device settings and user preferences may be set and/or adjusted using a personal computer and an optional software program.”

“receives GPS radio wave signals 205 which are emitted from existing GPS satellites 204 and received via the GPS receiving antenna 301. … The GPS receiver 604 has a built-in processing unit and memory for processing the GPS radio wave signals 205 to determine the latitude and longitude coordinates of the GPS antenna’s current position, as well as determine its current speed and direction of travel.”

“During the exercise session, the GPS receiver module 604 continuously determines the athlete’s geographical position and stores it in the memory 608 along with other information such as the date and time that each position was acquired. From these positions and times, performance data such as elapsed distance, current and average speeds and paces, calories burned, miles remaining and time remaining are calculated.  Based on this data, recommendations to increase or decrease level of effort to meet pre-set performance targets are then determined.”

“The inventors envision an Internet web site that would present information such as national and in­ternational performance averages for different age/gender groups, virtual competitions, prizes for the most miles run, best average pace, and other performance achievements, personal fitness recommendations, mar­athon training programs, and so forth. Prior to uploading information for the first time, each participant is assigned a member number by filling out a demographics profile form, either on-line or via mail. Each time the user uploads data, the device relays the user's member number to associate the data with the user.”

“A smart algorithm (applied the remote computer 801) based on measured parameters such as average speed and pace, exercise type, average sustained heart rate, elapsed distance and time, and so forth can be optionally used to automatically verify that an exercise session has actually occurred. Verified exercise activity is then used to qualify participants' specific exercise sessions in advertiser-sponsored programs such as product giveaways, earning frequent flier miles, and so forth. This technique may also be used to automatically qualify the results of virtual competitions.”

“The device is initialized at the new destination and connected to the remote computer 801 via the modem 613. The remote computer 801 collects the most recent position information from the device and from the device and down­loads messages pertaining to the travelling user's new geographic location.”

“Users may also use the Internet web site to lo­cate other athletes with similar skills and interest to ex­ercise with. For example, a runner travelling to Seattle, WA from San Francisco, CA could log on to the Internet web site and search for individual runners or groups of runners in the Seattle area with similar skills and inter­est. An E-mail message can be sent to schedule a future exercise session together. Favourite local courses may also be posted and exchanged via the Internet web site to be optionally used in the GPS-based personal per­formance monitor and feedback device.”

“the GPS-based performance monitor and feedback device of the present invention can be used to provide an outdoor athlete with continuous, consistent, and accurate real-time performance feedback, independent of his/her outdoor location in the world. The data presentation method of using an audio module eliminates the exclusive use of large, power- consuming, cumbersome, and visually distracting displays and leaves the athlete free to concentrate on his/ her exercise, safety, and surroundings. It even allows for safely obtaining performance feedback on poorly illuminated tracks and trails.”

                                i.             providing a motivational tool for the athlete to improve and fine-tune his/her outdoor performance,

                              ii.             providing regularly updated recommendations to the athlete on how to best achieve his/her pre-set performance targets,

                            iii.             providing the athlete with entertaining music during his/her exercise session,

                            iv.             providing and storing summary data of the most recent exercise achievements, showing progress and trends,

                              v.             uploading summary data of each exercise session to a personal computer for permanent storage in an electronic log and further analysis of the user’s long-term progress and trends,

                            vi.             providing a total health monitor when optional sensors such as a heart rate sensor or body temperature sensor are added,

                          vii.             providing a direction indicator to guide the athlete through a course based on downloaded geographical waypoints,

                        viii.             providing the means to upload summary data of each exercise session to an Internet website via a remote computer for comparing the performance of participants from around the globe,

                            ix.             providing the means for athletes to locate other athletes with similar skills and interests,

                              x.             providing the means for athletes to exchange favourable course waypoints via the Internet,

                            xi.             providing the means to stage virtual competitions between participating athletes from around the world, and

                          xii.             providing the means to verify that a legitimate exercise session has actually taken place.

“a portable personal performance monitor for monitoring athletic performance when carried by an athlete, comprising a global positioning system GPS receiver for acquiring time-stamped geographical position data of the athlete, computing means for conversion of said position data into athletic performance feedback data and presentation means for presenting said feedback data to said athlete.”

i)                    A patent specification is addressed to those likely to have a real and practical interest in the subject matter of the invention (which includes making it as well as putting it into practice).

Common general knowledge

Legal principles

“The common general knowledge imputed to such an addressee must, of course, be carefully distinguished from what in patent law is regarded as public knowledge.  This distinction is well explained in Halsbury’s Laws of England, …. As regards patent specifications it is the somewhat artificial (see per Lord Reid in the Technograph case [1971] FSR 188 at 193) concept of patent law that each and every specification, of the last 50 years, however unlikely to be looked at and in whatever language written, is part of the relevant public knowledge if it is resting anywhere in the shelves of the Patent Office.  On the other hand, common general knowledge is a different concept derived from a common sense approach to the practical question of what would in fact be known to an appropriately skilled addressee – the sort of man, good at his job, that could be found in real life.”

“It seems to me that a subtle but potentially significant point of principle emerges from these passages. I can readily accept that, faced with a disclosure which forms part of the state of the art, it may be obvious for the skilled person to seek to acquire further information before he embarks on the problem to which the patent provides a solution. But that does not make all such information part of the common general knowledge. The distinction is a fine one but it may be important. If information is part of the common general knowledge then it forms part of the stock of knowledge which will inform and guide the skilled person's approach to the problem from the outset. It may, for example, affect the steps it will be obvious for him to take, including the nature and extent of any literature search.”

“It follows that, even if information is neither disclosed by a specific item of prior art nor common general knowledge, it may nevertheless be taken into account as part of a case of obviousness if it is proved that the skilled person faced with the problem to which the patent is addressed would acquire that information as a matter of routine.  For example, if the problem is how to formulate a particular pharmaceutical substance for administration to patients, then it may be shown that the skilled formulator would as a matter of routine start by ascertaining certain physical and chemical properties of that substance (e.g. its aqueous solubility) from the literature or by routine testing.  If so, it is legitimate to take that information into account when assessing the obviousness of a particular formulation.  But that is because it is obvious for the skilled person to obtain the information, not because it is common general knowledge.”

Summary of common general knowledge

i)                    Athletes used electronic devices to track their performance, both when training indoors and outdoors;

ii)                  Examples of athletic performance monitoring devices that were used when training outdoors included sports watches, heart rate monitors, bicycle computers, bicycle power meters, pedometers and portable GPS devices;

iii)                Examples of athletic performance monitoring devices that were used when training indoors included treadmills, stationary exercise bicycles, indoor rowing machines and indoor trainers for use with bicycles;

iv)                Athletic performance monitoring devices were used both to provide real-time feedback to athletes during an activity and also for post-activity performance analysis;

v)                  Real-time feedback was provided by the displays of such devices, and many devices also used audible alerts to provide feedback;

vi)                Athletes used multiple devices simultaneously, such as heart rate monitors, bicycle computers and cycling power meters;

vii)              There were many performance monitoring devices and equipment that incorporated multiple sensors or allowed for additional sensors to be connected to them;

viii)            Many of the athletic performance monitoring devices provided information to athletes for specific periods during an activity, such as lap times;

ix)                Many of the athletic performance monitoring devices allowed the athletes to set performance targets (such as heart rate training zones) and the devices gave feedback to the athletes as to whether they were meeting such pre-set targets;

x)                  Many of the athletic performance monitoring devices and equipment could be connected to a personal computer to allow performance data to be downloaded from the device to the computer;

xi)                Software was available that allowed users to further analyze data downloaded from compatible performance monitoring devices and recommend training plans to the user;

xii)              The Internet was being used by athletes to share results of races and was the easiest way to provide an electronic notice board that could display sports scores, comparisons and the like;  

xiii)            Performance monitoring devices and equipment were available that allowed users to compete against each other over the Internet;

xiv)            Portable GPS devices were available and used by athletes such as cyclists and hikers, which provided users with information including their current and average speed, distance elapsed and time elapsed;

xv)              GPS receivers could be used to determine the location (including altitude) and velocity of a GPS device anywhere in the world; 

xvi)            Current-generation GPS receivers would be replaced by much smaller, lighter, cheaper versions with much longer battery life spans in the near future; and

xvii)          Many athletes listened to music while exercising, for example using portable audio devices such as a Sony Walkman, normally through headphones.

Common general knowledge and information that would be found on a routine     search

     Common general knowledge – issues in dispute

            i) UltraCOACH and its variants

ii) Automatic uploading of cycle computer data to computer software

      iii) Use of GPS for athletic performance monitors

“GPS by itself is sort of like electricity by itself… Until you have created a tool and integrated it with information and other technologies it doesn’t do much for you.”

“In the future, Trimble says, GPS will further expand its uses. It will help marathon runners keep a steady pace. If you want a 6.4 minute per mile clip, he says, a wrist receiver will beep if you deviate. If you are training for a marathon, you will be able to measure changes in your heart rate based on the degree of incline.”

     iv) Products beyond the scope of Mr McKnight’s literature search e.g the Sanyo Sportable

Conclusion

i)                    UltraCOACH, in all its variants, was not common general knowledge, but would have been found as part of a routine search if the skilled person was motivated to conduct such a search.

ii)                  Automatic uploading of cycle computer data to computer software was common general knowledge at the priority date . In any event, this feature would have been found as part of a routine search if the skilled person was motivated to conduct such a search.

iii)                The idea of using GPS for athletic performance monitors was not common general knowledge. However, this idea was obvious from certain of the cited prior art.

iv)                Products beyond the scope of Mr McKnight’s literature search, such as the Sanyo Sportable, were not common general knowledge at the priority date . The Sanyo Sportable would not have been found as part of a routine search at the priority date.

The claims of the Patent

i)                    claim 30 as dependent on claims 1, 24, 26 and 27 (“Claim 30A”);

ii)                  the proposed amendments to claim 1, referred to as Conditional Amendments 1, 2 and 3 (“Claim CA1, CA2 and CA3”); and

iii)                claim 30 as dependent on claims 1, 24, 26, 27 and 29, and Conditional Amendment 3 (“Claim 30B”).

Claim 30A

Claim CA1

Claim CA2

“the website could equally be used to display athletic performance data harvested from a different monitoring device such as a bicycle computer, heart rate monitor, pedometer or accelerometer.  There is no technical link from the information presented on the website to the device of claim 1.”

A feedback system providing regular updates on said athlete’s performance, said system comprising computer means external with respect to said portable monitor (claim 24 as granted)

i)                    Is the external computer required to provide the provision of regular updates to athletes?

ii)                  What does “regular” mean?

iii)                Is a regular update satisfied by training advice that is independent of the athlete’s performance?

Is the external computer required to provide the provision of regular updates to athletes?

 [0015] … Fig 7. Is a perspective view of a personal computer connected to the GPS-based personal performance monitor and feedback device, displaying a software program for performing long-term historical exercise session data storage, athletic performance trend analysis, and remote configuration of the device. (repeated at [0031]).

[0032] A number of historical exercise session performance data sets (as described below and shown in Fig. 12) can be uploaded to the remote computer 801.  The remote computer 801 is connected to the Internet 803.  The uploaded data sets are collected, stored and compiled for presentation on an Internet website, which compares performances of athletes in a variety of ways.

What does “regular” mean?

“[0045] At pre-set intervals, the information is provided to the athlete through the set of audio headphones 202 by means of the audio module 606, during which time the volume of the radio music is temporarily reduced. In addition, by pressing the "Now!" button 105 (Fig. 1B), the pre-set feedback cycle preference is temporarily overridden, the athlete is immediately provided with a current update of his/her performance, and the pre-set feedback cycle preference is resumed.”  

Is a regular update satisfied by training advice that is independent of the athlete’s performance?

Said feedback system comprises means for verifying actual exercise activity (claim 26 as granted)

“333. The desirability of verifying actual exercise (claim 26) arises from the nature of GPS, since the GPS data recorded by the device of claim 1 may or may not be related to the athlete engaging in exercise.  The Patent contemplates using GPS data (average speed and pace), together with other measures, in a smart algorithm to verify actual exercise in the data (para 55).  I consider that GPS position could also be used in an algorithm, for example, to determine that an athlete is travelling on a ski lift rather than skiing downhill.”

“Q.  "Seventh, the uploaded GPS activity data from a plurality of athletes is of such a nature that it can be algorithmically verified for authenticity."

A.  Yes, again with the caveat that they would typically think about it as uploaded data from -- the plurality of sensors would be able to do that, but specifically GPS could be verified, yes.”

     Adapted to receive athletic performance data (claim 27 as granted)

[0054] The inventors envision an Internet web site that would present information such as national and international performance averages for different age/gender groups, virtual competitions, prizes for the most miles run, best average pace, and other performance achievements, personal fitness recommendations, marathon training programs, and so forth.  Prior to uploading information for the first time, each participant is assigned a member number by filling out a demographics profile form, either on-line or via mail.  Each time the user uploads data, the device relays the user’s member number to associate the data with the user.

Display of “comparison data” representing relative performance of said athletes (claim 27 as granted) and role of the Internet Website (claims 27, 29 and 30 as granted)

Use as recited in any of claims 27 to 29, characterised in that said Internet website is adapted to facilitate virtual competitions (claim 30 as granted)

i)                    as to “ comparison data representing relative performance ”:  the concept is that the uploaded athletic performance data of multiple athletes is used to generate comparison data.  The nature and extent of the comparison and of the consequential data is unspecified, but the important point is that the wider feedback and Internet system is configured to enable such comparison to be made, between athletes that need not even be known to each other, exist in the same geographic vicinity, or exercise at the same time, provided that a meaningful comparison can be effected.

ii)                  as to “virtual competitions”: this is enabled by the wider feedback and Internet system.  They are fairly considered ‘competitions’ because data verification ensures that the athletes can ‘compete’ on comparable terms, and ‘virtual’ because the parameters of the competition neither require nor take into account any ‘real-world’ competition.  To facilitate such virtual competitions, the Internet website must be able to make a meaningful comparison between the underlying GPS data recording the athletic activity of each athlete uploaded from their portable personal performance monitor.

“[0052] The athlete may optionally connect the GPS-based personal performance monitor and feedback device to the personal computer 701 using the serial-type port 118 or the infrared-type port 124 for long term historical exercise session data storage, performance trend analysis, and remote device configuration using customized software.

[0053] The athlete may also optionally use the modem 613, connected to the CPU 602, to transmit data from the GPS-based personal performance monitor and feedback device to a remote computer 801 and modem bank 802 via a standard telephone line. This remote computer 801 collects, stores and compiles athletic performance data from participants around the planet. An Internet web site is then used to present performance data from participating athletes.

[0054] The inventors envision an Internet web site that would present information such as national and international performance averages for different age/gender groups, virtual competitions, prizes for the most miles run, best average pace, and other performance achievements, personal fitness recommendations, marathon training programs, and so forth.” 

Claim 30B

            “said internet website is adapted to display customised individual training advice” (claim 29 as granted)

Claim CA2

           “ and wherein said portable personal performance monitor further comprises an audio entertainment system for providing said athlete with music during his/her exercise session, which is reduced in volume during said audio presentation of real-time performance information”

“The data presentation method of using an audio module eliminates the exclusive use of large, power-consuming, cumbersome, and visually distracting displays and leaves the athlete free to concentrate on his/her exercise, safety and surroundings.  It even allows for safely obtaining performance feedback on poorly illuminated tracks and trails.”

Therefore, an advantage of the invention is to leave the athlete free to concentrate on his/her exercise, safety and surroundings. This is consistent with the disclosure at [0008] which makes clear that frequent (visual) interaction with existing devices compromises the safety and concentration of the user. An advantage of the invention is to avoid such compromise. That advantage will not be realised if the athlete is fiddling with the volume control in response to a buzzer during exercise.

Conclusion

Collocation

Legal principles

“7. Combination vs. juxtaposition or aggregation

The invention claimed must normally be considered as a whole. When a claim consists of a "combination of features", it is not correct to argue that the separate features of the combination taken by themselves are known or obvious and that "therefore" the whole subject-matter claimed is obvious. However, where the claim is merely an "aggregation or juxtaposition of features" and not a true combination, it is enough to show that the individual features are obvious to prove that the aggregation of features does not involve an inventive step (see G-VII, 5.2, last paragraph). A set of technical features is regarded as a combination of features if the functional interaction between the features achieves a combined technical effect which is different from, e.g. greater than, the sum of the technical effects of the individual features. In other words, the interactions of the individual features must produce a synergistic effect. If no such synergistic effect exists, there is no more than a mere aggregation of features (see T 389/86, and T 204/06).” (emphasis added)

Claims 30/A/B split from C1/CA1/CA2/CA3

“ Objectives: To test whether the Global Positioning System (GPS) could be potentially useful to assess the velocity of walking and running in humans.

Subject: A young man was equipped with a GPS receptor while walking running and cycling at various velocity on an athletic track. The speed of displacement assessed by GPS, was compared to that directly measured by chronometry (76 tests).

Results: In walking and running conditions (from 2-20 km/h) as well as cycling conditions (from 20-40 km/h), there was a significant relationship between the speed assessed by GPS and that actually measured (r= 0.99, P < 0.0001) with little bias in the prediction of velocity. The overall error of prediction (s.d. of difference) averaged f 0.8 km/h.

“All measurements took place on an athletic track situated at 375 m above sea level. The speed of walking and running of the subject was directly determined by a Swiss certified chronometer. The purpose was to compare the velocity of walking and running at various speeds (as assessed by chronometry) with that obtained by the GPS. The subject was a young man of 25 y (AC) who was involved in non-competitive running. His body weight was 75 kg, his height 180 cm and his relative body fat 12%. In order to assure an almost constant rate of walking and running at each speed, the subject was wearing a portable metronome to time the cadence.”

“The potential advantages of the utilization of the GPS system are: (1) portable, (light and small size); (2) non-invasive non-obtrusive free-living measurements; (3) continuous measurement with 'on line' data obtained on a miniature screen, hence feedback values for the subject; (4) free access to the GPSs satellites in any part of the world, at no financial cost (in 1997); (5) reasonable cost of GPS receiver; (6) data could be stored and subsequently retrieved if required; (7) the technique can be used to independently validate measurements of velocity of walking and running by other techniques (such as by accelerometry).”

“The major disadvantages are: (1) Only activities involving outside displacements of the body, such as walking and running can be assessed; (2) failure to measure displacements when the access to the sky is obstructed by tall buildings or terrain; (3) static activities cannot be measured; (4) depends upon the continuous access to at least three satellites simultaneously (for 2D assessment).”

Higham

“When I tour, my GPS unit takes a prominent position on my handlebars, where most people would have some type of cyclometer (which I have dispensed with).  That way I can keep an eye on the usual things like speed and distance covered, as well as hearing, ETA and deviation from the intended path.

And for those of you who have struggled to find the exact diameter of your front wheel so you can calibrate your cyclometer, take heart.  If you use the GPS unit as your source of information for speed and distance travelled, you’ll be glad to know it’s way more accurate than your old cyclometer, or your car speedometer, for that matter, and no calibration is necessary.  Of course, all this high-tech information comes at a cost, and one of those is batteries.  I keep mine freshly charged by using a solar-powered charger situated on top of my panniers.”

GPS II+

i)                     the GPS II+ Device as described in the manual could be used to navigate to a known destination or along a route.  The destination or route could be programmed into the GPS II+ Device as a waypoint (or in the case of a route, an ordered series of waypoints). 

ii)                  Alternatively, the GPS II+ Device as described in the manual could be used to follow written directions to a destination without entering a destination waypoint.

Anticipation of claim 1 as granted by Schutz/Higham/GPSII+

Anticipation of claim CA2 by Dotan

Conventional obviousness over Schutz/Higham/GPSII+

            Philips’ approach

            Garmin’s approach

Claim 30A – inventive step

     Performance monitor/GPS receiver/GPS feedback data (Claim 1 as granted)

     Discussion

“The eTrainer costs $1099 and with it you get constant monitoring of heart rate, power output, speed and cadence.  The system analyses your workouts and suggests training plans.  It’s internet connectable so you can hammer with friends in distant cities.  And to guarantee that you never escape that killer hill, even in the winter, you can record the route of your favourite rides and download them into the eTrainer for fun.  CycleOps has also teamed up with Lance Armstrong so soon you will be able to record Armstrong’s favourite 25-mile loop and race him.  Or at least try.”

“Q. It would not make any difference, would it? If you have had the idea to do this virtual competition, whether it is using the display on your device or an internet website, there is no material difference, is there, Mr. Farringdon?

A. I think once you have the internet piece down, you could choose the next, the other means over which you use the internet.

 Q. The idea really is the virtual competitions, is it not?

A. That seems to be the feature that is prominent.

Q. After this, this is going to be an idea that is known to Polar and Cardiosport and all the other heart rate monitor companies?

A. Yes.”

            Conclusion

“MR. NICHOLSON: As I understand it, your logic is that the sort of pre-set targets the patent is considering are technically equivalent to the target zones in a heart rate monitor?

A. "Technically equivalent", I do not know that they use those words, but my reasoning is they are all feeding back data to a user in order to inform him whether his effort needs to be increased or decreased; whether that is to run faster or increase your heart. That sort of thing suggests target zones in all cases where someone is aiming to hit a specific level of effort and they need to either increase it or decrease it, it is letting it know you are in the zone.”

            Means for providing audio presentation of real time performance information

“Q.    As I understand what you have done, you have taken the patent, you have taken the prior art, you have worked out what the differences are between them and then said, "Does it involve a technical invention to get from what I see in GPS II+ to the claims of the patent"”

 A.  I believe that is correct.

Q.   That is precisely what you do then.  You proceed to explain a route of thinking that would take your skilled person from GPSII+ to the claims, at each stage trying to ask yourself whether anything clever is involved; would that be fair?

A.  Yes, going from one step to the next.  I am just reading to make sure that that is a fair assessment, but it appears to be.”

     Conclusion

Claim CA3 – inventive step

Claim 30B – inventive step

Customised individual training advice on the Internet website (feature P claim 29)

“The application offers analysis, comparison and tracking of training progress for a number of individuals or teams by integrating a graphical analyses tool with an easy to use, flexible training log, sports diary and planner… The Polar Training Advisor Software will give the user training guidelines based on [the user’s] existing fitness levels and training goals… the more information the software has to work on, the more reliable the training guidelines.  These guidelines are particularly useful for novice and intermediate athletes as well as fitness enthusiasts”

Conclusions in relation to inventive step

i)                    Claim 30A corresponds to granted claims 1, 24, 26, 27 and 30. For the reasons set out above, I conclude that this claim was obvious at the priority date.

ii)                  Claim CA1 adds the feature of recommendations to increase or decrease levels of effort. I have found that this additional feature was obvious at the priority date. I conclude that claim CA1 was obvious at the priority date.

iii)                Claim CA2 adds the feature of an audio entertainment system for providing the athlete with music during his/her exercise session, which is reduced in volume during the audio presentation of real-time performance information. I have found that this additional feature was inventive at the priority date. I conclude that claim CA2 was not obvious at the priority date.

iv)                Claim CA3 combines the features of Conditional Amendments 1 and 2 with claim 30A. This claim adds nothing that is inventive to claim CA2. It was not obvious at the priority date, for the same reason that claim CA2 was not obvious.

v)                  Claim 30B  is the narrowest claim, which adds nothing that is inventive to claim CA2. It was not obvious at the priority date, for the same reason that claim CA2 was not obvious.

Obviousness of claims 30A/B on an ‘MFI’ basis over Concept II

“(2) It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say, anything which consists of—

[…]

(d) the presentation of information;

but the foregoing provision shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent or application for a patent relates to that thing as such.”

“If the presentation of information has some technical features over and above the information and its delivery, then it might be patentable.  So the contrast is between the content or its mere delivery, on the one hand, and that material plus some additional technical aspect of its delivery, on the other.  That approach is consistent with the law on computer programs, discussed above.

[ … ]

So what achieves patentability is some real world technical achievement outside the information itself.”

“During the assessment of inventive step, features related to the presentation of information are analysed to determine if, in the context of the invention, they contribute to producing a technical effect serving a technical purpose. If not, they make no technical contribution and cannot support the presence of an inventive step (G-VII,5.4)… [paragraph 1]

A feature defining a presentation of information produces a technical effect if it credibly assists the user in performing a technical task by means of a continued and/or guided human-machine interaction process (T336/14 and T1802/13)… [paragraph 2]

Non-technical information such as the state of a casino game, a business process or an abstract simulation model is exclusively aimed at the user for his subjective evaluation or non-technical decision-making. It is not directly linked to a technical task. Therefore, such information does not qualify as an internal state prevailing in a technical system [paragraph 3]”

            Application to the facts – claim CA2

Presentation of information – other claims

Conclusion