Ia Labs Ca, LLC v. Nintendo Co. (863 F. Supp. 2d 430, 2012)

United States District Court for the District of Maryland 2012-02-29

Citations

Full opinion text

OPINION

PETER J. MESSITTE, District Judge.

IA Labs CA, LLC (“IA Labs”) has sued Nintendo Co., Ltd. and Nintendo of America, Inc. (collectively, “Nintendo”), alleging infringement of U.S. Patent No. 7,121,982, “Computer Interactive Isometric Exercise System and Method for Operatively Interconnecting the Exercise System to a Computer System for use as a Peripheral” (the “ '982 patent”).

Nintendo develops, manufactures, and sells interactive entertainment products, including video game consoles, controllers, and software. IA Labs contends that Nintendo’s Wii gaming system infringes various claims of the '982 patent. Specifically, IA Labs argues that (1) the Wii Balance Board (the “Balance Board”), which is used to control games on the Wii Fit and Wii Fit Plus software played through the Wii Console, satisfies each element of Claims 1, 2, 4, 8, 9, 13, 16, 20, 21, 23, 25, 27, and 28 of the '982 patent, (2) the Balance Board and the Wii Remote together satisfy each element of Claims 6, 7, 14, and 15 of the '982 patent, and (3) the Balance Board, when used in conjunction with a television set or computer monitor, satisfies each element of Claim 5 of the '982 patent.

The Court considers Nintendo’s Motion for Summary Judgment of Non-Infringement [Docket No. 204], Nintendo’s Motion for Partial Summary Judgment of No Willful Infringement [Docket No. 219], Nintendo’s Motion to Bifurcate [Docket No. 152], IA Labs’ Motion in Limine [Docket No. 283], Nintendo’s Omnibus Motion in Li-mine [Docket No. 288], Nintendo’s Motion to Exclude the Expert Testimony of Gregory Lewis Merril [Docket No. 333], and IA Labs’ Motion to Exclude the Testimony of Defendant Witnesses Rodrigo, Li, and Berme [Docket No. 335]. The Court has heard oral argument on the two Motions for Summary Judgment and the Motion to Bifurcate and has conducted a Markman hearing, during which it construed certain disputed claim terms and deferred construction of others.

For the reasons that follow, Nintendo’s Motion for Summary Judgment of Non-Infringement [Docket No. 204] is GRANTED. Because the Court finds no infringement as a matter of law, it need not reach the merits of Nintendo’s Motion for Partial Summary Judgment [Docket No. 219] nor any of the Motions pertaining to the trial of the claims [Docket Nos. 152, 283, 288, 333, and 335], all of which are deemed MOOT.

I. Background

A. The '982 Patent

On October 17, 2006, the United States Patent and Trademark Office issued the '982 patent to PowerGrid Fitness, Inc. The patent covers “an isometric exercise system that serves as a computer system peripheral and facilitates user interaction with a host computer system while the user performs isometric exercise.” (’982 patent, col. 1 11. 11-14.) The patent includes 28 distinct claims, each of which constitutes various permutations of the same core invention described in Claims 1 and 9.

1. Purpose and Scope of the '982 Patent

The background section of the '982 patent distinguishes prior art isometric exercise devices from the “vast majority” of exercise devices, which utilize only isokinetic and/or isotonic exercise. (Id. col. 111. 20-23.) According to the patent, “[i]so-metric exercise involves the exertion of force by a user against an object that significantly resists movement as a result of the exerted force such that there is substantially minimal or no movement of the user’s muscles during the force exertion.” (Id. col. 1 11. 29-34.) The background section provides examples of isometric exercise, including a person pushing against a stationary surface, attempting to pull apart tightly gripped hands, or attempting to bend or flex a rigid steel bar. (Id. col. 1 11. 34-37.) It goes on to explain that isometric exercise can be “very useful for rehabilitation, fitness and/or training,” but that due to its “inherently tedious nature, isometric exercise devices are less popular” than their isotonic and isokinetic counterparts. (Id. col. 1 11. 25-26,37-41.)

The background section of the '982 patent identifies the drawbacks of the existing related art. Though a “particularly important feature in many isometric exercise devices is the ability to measure forces applied to a resistive object by one or more muscle groups” (id. col. 1 11. 42^45), the existing isometric exercise devices are said to be “tedious” and “provide limited feedback.” (Id. col. 2 11. 45-46.) The patent identifies one item of existing related art that attempts to combine virtual reality with an isometric exercise device, but notes that this existing invention is limited to specific forms of isometric knee and ankle exercise. (Id. col. 3 11. 50-60.)

Given the “tedium” associated with the existing art, the '982 patent sought to create a device that would interact with a host computer system so as to “enhance the level of interest and enjoyment associated with performing isometric exercises.” (Id. col. 3 1. 65-col. 4 1. 2.) More particularly, the’ invention would facilitate user participation in a virtual reality simulation based on the performance of isometric exercise. (Id. col. 4 11. 7-12.) Other objectives of the invention were to determine the type, amount, or degree of force applied by the user, to create a system that was adaptable for use with a variety of computer systems, and to allow customization for a desired purpose or application. (Id. col. 4 11. 3-7, 12-20.) The '982 patent, however, does not require that two or more of these objects be combined, if not otherwise required by the claims. (Id. col. 4 11. 21-25.)

2. Specification and Claims of the '982 Patent

The '982 patent discloses two preferred embodiments. The first preferred embodiment is depicted in Figure 1, below.

Figure l

Central to the invention is what the Applicant called an “effector,” against which the user exerts herself in performing an isometric exercise. In Figure 1, the effector includes “an elongated and generally cylindrical bar or rod constructed of any suitably rigid material (e.g. a metal alloy) that is capable of being slightly deformed within its elastic limit.” (Id. col. 5 11. 38-41.) Two sensors “are affixed on the effector” and are offset so as to measure “bending deflections” in different directions. (Id. col. 6 11. 6-27.) The sensors are connected to a processor within the control circuitry, which receives electrical signals from the sensors resulting from an application of force to the effector bar and “converts” the signals into information that is, preferably, “indistinguishable from the inputs of any standard peripheral device.” (Id. col. 6 11. 28-39.)

The second preferred embodiment of the '982 patent is depicted in Figure 2, below. This embodiment uses a “cockpit” configuration, described as useful for flying and driving type games. (Id. col. 11 11. 43-46.)

Figure 2

The second embodiment “includes a set of elongated and generally cylindrical effector bars” that form an unmovable “T-type handle-bar configuration for manipulation by a user.” (Id. col. 8 11. 10-13.) The bars are made of “a suitably rigid material (e.g., a metal alloy) that is capable of being slightly deflected within its elastic limit in response to any combination of bending, twisting, tension and compression forces applied by the user to the bars.” (Id. col. 8 11. 24-29.) The sensor and processor work much the same way as in the first embodiment. (Id. col. 8 11. 34-62.)

In both embodiments, the user connects the system to a host computer system and “engages in a combined isometric exercise and interaction with the software program by gripping at least one effector bar and applying a force to exert a strain on the bar.” (Id. col. 10 11. 47-55; id. col. 11 11. 21-25.) The sensor measures microscopic bending resulting from the force applied by the user to the effector bars, and the resulting data then feeds into a software application, such as a game, running on the host computer. (Id. col. 10 1. 55-col. 11 1. 20; id. col. 11 11. 25-40.)

After describing the preferred embodiments, the '982 patent sets forth the patent claims. Claim 1, an independent system claim, reads as follows:

1. An isometric exercise system serving as a peripheral to manipulate a virtual reality scenario of a host processing system in accordance with user exercise, comprising:

a frame to support a user; an effector to provide an isometric exercise for said user, wherein said effector is fixedly secured to said frame and includes an elongated rod; at least one sensor coupled to said rod and responsive to at least one force applied by said user to said effector to perform said isometric exercise, wherein said applied force effects a measurable deformation of said rod that is measured by said at least one sensor; and

a processor coupled to said at least one sensor and including a data processing module to receive and process data corresponding to applied force information measured by said at least one sensor and to transfer information to said host processing system to control said virtual reality scenario of said host processing system in accordance with performance of said isometric exercise and manipulation of said effector by said user.

(Id. col. 15 11. 34-54.) Claim 9, an independent method claim, reads as follows:

9. A method of performing an isometric exercise utilizing a system that serves as a peripheral to manipulate a virtual reality scenario of a host processing system, wherein said system includes a frame to support a user, an effector including an elongated rod, at least one sensor coupled to said rod, and a processor, the method comprising:

(a) measuring at least one force applied by a user to said effector, wherein said effector provides an isometric exercise for said user and is fixedly secured to said frame, and wherein said applied force effects a measurable deformation of said rod that is measured by said at least one sensor;

(b) processing data corresponding to applied force information measured by said at least one sensor; and

(c) transferring information from said processor to said host processing system to control said virtual reality scenario of said host processing system in accordance with performance of said isometric exercise and manipulation of said effector by said user.

(Id. col. 16 11.13-31.)

3. Prosecution History

The '982 patent application was filed on December 4, 2002. During prosecution, the Patent Examiner initially rejected all purportedly original claims as “anticipated” under 35 U.S.C. § 102(b) by U.S. Patent No. 4,691,694 issued to Boyd et al. (“Boyd”), which generally describes an exercise device that measures the forces applied by a user’s leg to a movable fixture.

In response, the Applicant amended the independent claims to add two requirements. The first provided that the “applied force” was “effecting a measurable deformation of the at least one effector that is measured by the at least one sensor.” (’982 patent Amendment, July 22, 2005, at 11.) The second provided that the applied force would “control a virtual reality scenario of the host computer in accordance with manipulation of the at least one effector by the user.” (Id.) In remarks submitted along with the amendments, the Applicant argued that Boyd was different from the amended claims of the '982 patent, in that Boyd detects “strain on a torque sensing tube mounted on a shaft to which the fixture is secured” and not “deformations effected by force applied by a user to the effector.” (Id. at 12.) Further, Boyd discloses “that a computer can be used in conjunction with control circuitry” but not “that the exercise system serves as a user interface or peripheral to control the computer system or, for that matter, controlling a virtual reality scenario of a host computer in accordance with manipulation of the at least one effector.” (Id.)

After considering the amendments, the Patent Examiner once again rejected the claims, this time as “obvious” under 35 U.S.C. § 103(a), based on Boyd viewed in combination with U.S. Patent No. 5,989,-157 issued to Walton (“Walton”). Walton describes a system that facilitates user exercise and video game play by means of a controller that is worn by the user. One described configuration of Walton includes two handle bars that are movable such that they can be pressed together or pulled apart, with two force-sensing strain gauges fixed near the handles to measure deformations in the handle bars.

The Applicant once again amended the claims, this time further detailing structural limitations and the role of isometric exercise. The second amendment required that (1) the effector be “fixedly secured” to the frame that supports the user; (2) the effector include an “elongated rod;” (3) the force applied by the user to the effector be a force “to perform said isometric exercise;” and (4) the virtual reality game be controlled “in accordance with isometric exercise.” (’982 patent Amendment, April 3, 2006, at 2.) In accompanying remarks, the Applicant explained that the second amendments were intended to clarify “the structural aspects” of the invention, to wit: “The Examiner recognized patentable features within the present invention, but indicated that the claims included functional language. Consequently, no agreement was reached. Applicant, subsequent [sic] the interview, submitted a proposed claim to the Examiner further clarifying the present invention [sic] structural aspects. The Examiner indicated that the proposed claim was acceptable.” (Id. at 9.)

The Examiner accordingly allowed Claims 1-28 of the '982 patent.

B. The Accused Device

The Wii Console is a special purpose computer system for playing Wii gaming applications in conjunction with a standard television set or computer display. The Wii distinguishes itself from traditional video game systems by responding to a user’s movement and exercise, rather than' the pushing of buttons, to control the video game being played. The Wii Console works with several accessories and controllers, only one of which — the Balance Board — is the subject of this infringement suit.

The Balance Board is a horizontal, rectangular platform on which the user stands, resembling, in size and shape, a household bathroom scale. The Balance Board rests on four support legs, one in each corner, each of which contains a highly-sensitive force sensor, called a “balance sensor” or “load cell.” The load cells contain a rectangular, aluminum block sandwiched between two metal plates, on which is mounted a sensor called a “strain gauge.” When force is applied on the Balance Board, the center portion of each load cell, including the block, microscopically deforms in accordance with the amount of force applied. Each strain gauge generates a signal corresponding to the deformation and sends it to a “processor board.” The processor board, which includes a microcontroller and Bluetooth Module, processes the data corresponding to the forces applied to the four load cells and wirelessly sends that information to the Wii Console.

The Balance Board is sold with Nintendo software that connects the device with the Wii Console, namely the “Wii Fit” and a later, updated version called ‘Wii Fit Plus.” Wii Fit products include a collection of Balance Board compatible games and activities, including strength training, aerobics, yoga, and balance games. Wii Fit software is able to convert the information sent from the load cells into weight values and uses the changes across the four load cells to detect shifts in the user’s center of gravity. Since virtually every change in the center of gravity results from movement by the user, the software extrapolates motion by sensing how a person shifts her position across the four load cells. Those shifts in position are converted into information that the Wii Console uses to control a game, allowing the user, for example, to rotate her hips to simulate using a hula-hoop, or to duck or dodge a punch while simulating boxing. Each of these movements results in a shift in the user’s center of gravity sensed by the Balance Board.

One particular Balance Board game at issue here is called the Ski Jump. During this game, the primary image on the screen is that of a character skiing down a ramp who, upon reaching the edge, launches forward in a “jump.” The upper right corner of the screen displays a rectangular box (representing the Balance Board), which contains a light blue dot positioned in the upper middle portion of the rectangle. This display also contains a red dot, which represents the user’s center of gravity on the Balance Board. Depending on the user’s shifts and movements on the Balance Board, the red dot moves within the rectangular box.

The user, standing on the Balance Board, controls this game in two distinct phases. In phase one, the user crouches down as the character on the screen skis downhill, imitating the position of the skier (a duration of 5-6 seconds). The user’s goal is to crouch down and shift forward so as to align the red dot over the blue dot on the screen. The user’s success in aligning the two dots and maintaining that position determines the character’s speed. In phase two, the user moves out of the crouching position to stand upright when the character reaches the end of the ramp and maintains that upright position while the character completes the jump and lands. The user is awarded points based on both the speed of the skier and distance of the jump.

This sets the background for IA Labs’ claim of infringement.

II. Summary Judgment Standard

Under Rule 56(a), summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only “facts that might affect the outcome of the suit under the governing law” are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In considering a jnotion for summary judgment, the Court must “draw all justifiable inferences in favor of the nonmoving party.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). However, a party cannot create a genuine dispute of material fact “through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). Merely presenting a “scintilla of evidence” is insufficient to preclude summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

In a patent case, “[s]ummary judgment of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial.” TechSearch, LLC. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir. 2002). . “An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the properly construed claims to the device accused of infringing.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (citations omitted). “To support a summary judgment of noninfringement it must be shown that, on the correct claim construction, no reasonable jury could have found infringement on the undisputed facts or when all reasonable factual inferences are drawn in favor of the patentee.” TechSearch, 286 F.3d at 1371 (citing Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1351 (Fed.Cir.2001)).

III. Claim Construction

A. Legal Standard

The first step in infringement analysis, known as claim construction, is determined as a matter of law. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 391, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996); Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). A court looks first to the claims of the patent to define the scope of the patented invention and the limits of the patentee’s rights. See Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d 1258, 1267 (Fed.Cir.2001).

Generally, the terms of a claim are given “their ordinary and accustomed meaning as understood by one of ordinary skill in the art” at the time the patent application was filed. Phillips, 415 F.3d at 1312-13; Bell Atl. Network Servs., 262 F.3d at 1267. But because the meaning of a claim term is often not immediately apparent to persons of skill in the art, and “because patentees frequently use terms idiosyncratically, the court must often look to those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean.” Phillips, 415 F.3d at 1314 (internal quotations omitted); see also Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1343 (Fed.Cir.2001) (“[I]f the term or terms chosen by the patentee so deprive the claim of clarity that there is no means by which the scope of the claim may be ascertained by one of ordinary skill in the art from the language used, a court must look to the specification and file history to define the ambiguous term in the first instance.”) (internal quotations omitted).

At the outset, the Court considers evidence intrinsic to the patent, including (1) the words of the claims themselves; (2) the remainder of the patent specification; and (3) the prosecution history. See Phillips, 415 F.3d at 1314. The court may then turn to relevant extrinsic evidence, such as dictionary definitions, treatises, and expert and inventor testimony, but such evidence “is less significant than the intrinsic record in determining the legally operative meaning of claim language.” Id. at 1317 (internal quotations omitted). It is “improper to rely on extrinsic evidence” if the meaning of a claim limitation is clear from the intrinsic evidence. Bell Atl. Network Servs., 262 F.3d at 1268-69.

When examining the words of the claims, the use of a claim term within the context of a claim can provide a firm basis for construction. See Phillips, 415 F.3d at 1314. Further, how a term is used in other claims of the patent can be instructive, as “claim terms are normally used consistently throughout the patent.” Id. The terms of a claim must also be examined in the context of the patent specification, of which they are a part. See id. at 1315. “[T]he specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.” Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). In the specification, the patentee may explicitly define a claim term differently from its ordinary or accustomed meaning. See id. at 1316; Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116-17 (Fed.Cir.2004) (“A patent applicant thus has the flexibility to imbue new or old terms with a different meaning than they would otherwise have to a person of ordinary skill in the art ... [by] set[ting] out the different meaning in the specification in a manner sufficient to give one of ordinary skill in the art notice of the change from the ordinary meaning”). “In such cases, the inventor’s lexicography governs.” Phillips, 415 F.3d at 1316. But while “claims must be read in view of the specification, ... limitations from the specification are not to be read into the claims.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1326 (Fed.Cir.2002).

As part of the intrinsic evidence, the court also considers the patent’s prosecution history, which consists of the complete record of the proceedings before the United States Patent and Trademark Office, including the prior art cited during the patent examination, and “any express representations made by the applicant regarding the scope of the claims.” Bell Atl. Network Servs., 262 F.3d at 1268; see also Phillips, 415 F.3d at 1317. The prosecution history can demonstrate “whether the patentee has relinquished a potential claim construction in an amendment to the claim or in an argument to overcome or distinguish a reference.” Bell Atl. Network Servs., 262 F.3d at 1268.

B. Claim Terms

At the Markman hearing held on January 17 and 18, 2012, the Parties advanced arguments regarding 15 distinct claim terms. At the request of the Parties, the Court construed certain of the disputed terms orally from the bench (later crystallized in a written order) and deferred ruling on others. The Court now construes the key terms as to which it deferred and summarizes its prior rulings to the extent they are relevant to the Court’s non-infringement analysis.

1. “isometric exercise” (Claims 1 and 9)

The Parties dispute construction of the term “isometric exercise.” This term is at the heart of the '982 patent and permeates the claims and the specification. Not surprisingly, the specification expressly defines this key term: “Isometric exercise involves the exertion of force by a user against an object that significantly resists movement as a result of the exerted force such that there is substantially minimal or no movement of the user’s muscles during the force exertion.” (’982 patent, col. 1 11. 29-34.) Nintendo proposes that the Court adopt this express definition verbatim. IA Labs argues that some minor alterations are in order and suggests the following modified construction (the proposed additions are underlined): “the exertion of force by a user against an object (an object can include a user) that significantly resists movement as a result of the exerted force such that there is substantially minimal or no movement of the user’s muscles associated with the isometric exercise during the force exertion.”

IA Labs argues that the description of isometric exercise contained in the specification is not a “definition” and should not limit how the court construes the term. It further contends that its proposed construction addresses two flaws in this “definition” (i.e. Nintendo’s proposed construction). First, says IA Labs, it is not clear from Nintendo’s proposed construction that a person’s own body can be the “object” against which the user exerts force and that significantly resists movement as a result of that force, when, in fact, the tensing of muscles against one’s own body is isometric exercise. To support this proposition, IA Labs relies on a report submitted by its exercise physiology expert, Dr. Daniel Drury, who opines that it is possible for a person to engage in “isometric exercise” by placing her body in a position that requires the muscles to strain to counteract the forces of gravity. IA Labs cites two examples of isometric exercise in the patent specification that allegedly require a person’s body to be the “object” against which the user exerts force and that significantly resists movement as a result of that force: (1) an individual “attempting to pull apart tightly gripped hands” (id. col. 1 11. 36-37); and (2) “fighter jet pilots who perform isometric muscular contractions of the lower limbs and body core during flights” (id. col. 1 11. 26-29). IA Labs also argues that a person’s body has to be able to function as said “object” because this is what happens during use of the commercial embodiment of the invention — a user of this device experiences isometric tensing of her abdominal muscles. Second, says IA Labs, Nintendo’s proposed construction erroneously implies that none of the user’s muscles may substantially move, whereas the '982 patent limits only those muscles engaged in isometric exercise. In fact, IA Labs continues, Claim 7 modifies Claim 1 to add “at least one input device that is manipulable by said user to effect at least one of isokinetic and isotonic exercise by said user during system operation.” (Id. col. 16 11. 5-8.) That the claims allow for a user to conduct isometric exercise and dynamic exercise simultaneously allegedly indicates that isometric exercise, as defined in the patent, does not restrict movement in all of a user’s muscles.

Nintendo counters that, under Phillips, the inventor’s own lexicography controls. Since the patent specification expressly defines isometric exercise, there is no reason to alter that definition. In addition, IA Labs’ proposed modifications are said to be inconsistent with the patent claims and other intrinsic evidence. First, modifying the definition in the specification to allow for the user’s body to be the “object” against which she exerts force and that significantly resists movement as a result of that force makes no sense in the context of Claim 1, which clearly requires an “effector to provide an isometric exercise” and “force applied by said user to said effector to perform said isometric exercise.” (Id. col. 15 11. 38, 42^13.) If the user’s body were the “object” in question, there would be no role for the effector. Second, modifying the definition in the specification to allow for other muscle movement is inconsistent with the prosecution history. In light of Walton, which measured a user’s movement to control a virtual reality scenario, the Applicant amended Claim 1 to require that the virtual reality scenario be controlled “in accordance with performance of said isometric exercise.” (Id. col. 15 11. 52-53.) Adopting IA Labs’ proposed construction here would allow for a wholesale expansion of the amendment and erroneously permit argument to the jury that the '982 patent covers a system that uses body motions— as opposed to isometric exercise — to control a virtual reality scenario.

The Court adopts IA Labs’ construction in part and Nintendo’s construction in part.

There can be little doubt that the patent defines “isometric exercise.” As such, “the inventor’s lexicography governs.” Phillips, 415 F.3d at 1316. At the same time, the patent’s express definition may be subject to modification where necessary in light of the patent’s claims and specification. See, e.g., Trading Techs. Int’l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1353 (Fed.Cir.2010) (altering the express definition to more accurately comport with the remainder of the patent); Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1345 (Fed. Cir.2009) (modifying the patent’s express definition to resolve an ambiguity). But, for the following reasons, the Court rejects IA Labs’ contention that the user’s own body can be the “object” against which the user exerts force and that significantly resists movement as a result of that force, accepting nonetheless its proposed clarification that the requirement of substantially minimal or no muscle movement is limited to those muscles actually engaged in isometric exercise.

The Court explains.

Fundamental to isometric exercise, under either Party’s proposed construction, is the application of force between two items that are fixed relative to one another so that both items resist any significant motion. If a person exerts significant pushing force with her arms against an item that is not fixed relative to her, either the item will move in the direction of the pushing or she will move away from the item. In either case, the muscles in the arm will extend and there can be no isometric exercise. Only when both the item and the person remain fixed in position can isometric exercise commence. For example, if a person standing on ice pushes against a single fixed item, such as a wall, the person will slide away from the wall because the frictional forces on the ice are insufficient to hold her in a fixed position. If, however, that person is held in a fixed position (e.g. by an external structure or the frictional forces on the ground), she will be able to conduct isometric exercise and exert force against the wall. In the latter scenario, the wall is an “object” against which the person exerts force and that significantly resists movement as a result of that force.

IA Labs’ first proposed modification to the definition found in the specification — to allow for the user’s own body to be the “object” against which the user exerts force and that significantly resists movement as a result of that force-is plainly incompatible with Claim 1. See Voda v. Cordis Corp., 536 F.3d 1311, 1319 (Fed. Cir.2008) (rejecting a claim construction argument because it “ignores the context in which the phrase ... is used in claim 1”); ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed.Cir.2003) (“While certain terms may be at the center of the claim construction debate, the context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms.”). A critically important component of Claim 1 is the “effector,” which the Court separately construes to be a rigid object that slightly and measurably deforms within its elastic limit when muscle force is applied. Claim 1 requires “an effector to provide an isometric exercise for said user, wherein said effector is fixedly secured to said frame and includes an elongated rod,” as well as “at least one sensor ... responsive to at least one force applied by said user to said effector to perform said isometric exercise.” (’982 patent, col. 15 11. 38-43.) The Court separately construes these phrases to mean that the user’s isometrically exercised muscles must exert force against the effector either through direct contact or indirect contact. In other words, for the effector “to provide an isometric exercise,” and for the sensor to be “responsive” to that isometric exercise force, the effector must be the “object” against which the user exerts force and that significantly resists movement as a result of that force. The effector allows the user to perform isometric exercise that she could not otherwise perform.

If, as IA Labs argues, the user’s body is the “object” against which the user exerts force and that significantly resists movement as a result of that force, the user’s isometrically exercised muscles do not exert force against the effector, and the effector, therefore, does not “provide an isometric exercise.” See AIA Eng’g Ltd. v. Magotteaux Int’l S/A, 657 F.3d 1264, 1278 (Fed.Cir.2011) (“[W]here, as here, the specification reveals a special meaning for a term that differs from the meaning it might otherwise possess, that special meaning governs, particularly when it also serves to avoid an inoperable claim construction.”). As demonstrated by each of Dr. Dairy’s proffered examples, where the user’s own body is the “object” against which the user exerts force and that significantly resists movement as a result of that force during an allegedly “isometric” exercise, the force of the user’s isometrically exercised muscles is exerted against the body to maintain the body’s fixed position against the force of gravity. During these activities, the total force exerted against any external point of contact, such as the ground or a chin-up bar, is unchangingly equal to the person’s weight (or a portion of their weight), and is unaffected by isometric exercise. For example, a person holding a “plank” position exerts isometric muscle force against her body to hold it fixed in position. When she ceases to engage in isometric exercise, her body falls to the ground. Both when she holds the “plank” position and when she rests on the ground, the only force exerted against the ground is the force of her weight. Thus, even if one engages in an allegedly “isometric” activity while standing on, leaning against, or hanging from an “effector,” if the person’s body is the “object” against which she exerts force and that significantly resists movement as a result of that force, that activity would not alter the total amount of force exerted against the “effector.” In that case, the “effector” would not be the “object” against which the user exerts isometric force, and no sensor placed on that “effector” would be responsive to that force.

In fact, the only way a person’s isometrically exercised muscles could exert force against an effector would be if the person were fixed relative to the effector, either by an external structure — such as the frame contemplated by Claim 1 — or by frictional or other similar forces. IA Labs’ computer software expert, Dr. Benjamin Bederson, says as much in his report. He opines that the claims require “an effector that significantly resists movement in response to force applied by the user” and that “by being fixedly secured to the frame in a way that allows the user to perform isometric exercise, the effector provides isometric exercise.” (Bederson Decl. ¶¶ 52, 54.) The necessary implication is that the user must be fixed in position by the frame relative to the effector, or else the user would move in response to the applied force (as in the example of a person standing on ice moving away from the fixed wall). Only where the user has something to brace against can she exert isometrically exercised muscle force (and not just the force of weight) against the effector. However, where it is the frame or another force that holds the body in a fixed position, and not the user’s isometrically exercised muscles, the user’s body does not act as the “object” against which the user exerts force and that significantly resists movement as a result of that force. Accordingly, in the Court’s view, the user’s body cannot be the fixed “object” against which the user exerts force and that significantly resists movement as a result of that force in the context of Claim 1.

But there is more.

Allowing IA Labs to divorce the term “isometric exercise” from the context of the claims “would be to ignore the totality of the facts of the case and exalt slogans over real meaning.” Ormco Corp. v. Align Tech., Inc., 498 F.3d 1307, 1316 (Fed.Cir. 2007); see also Kyocera Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1347 (Fed.Cir.2008) (“[T]his court does not interpret claim terms in a vacuum, devoid of the context of the claim as a whole.”). It is for precisely this reason that the Court is not persuaded by IA Labs’ proffered extrinsic evidence — including Dr. Dairy’s expert reports and medical dictionary definitions — which is “clearly at odds with the claim construction mandated by the claims themselves.” Phillips v. AWH Corp., 415 F.3d 1303, 1318 (Fed.Cir.2005) (en banc) (quoting Key Pharms. v. Hereon Labs. Corp., 161 F.3d 709, 716 (Fed.Cir.1998)); see also Bell Atl. Network Servs., Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d 1258, 1269 (Fed.Cir.2001) (“[S]ueh evidence as expert testimony, articles, and inventor testimony ... may not be used to vary, contradict, expand, or limit the claim language from how it is defined, even by implication, in the specification or file history.”); Tech. Patents LLC v. Deutsche Telekom AG, 774 F.Supp.2d 732, 742 (D.Md.2010) (crediting intrinsic evidence over expert testimony and dictionary definitions in light of Phillips). Under those circumstances, the express definition in the patent controls, even though it may be narrower than the term’s objective meaning. See Honeywell Int’l, Inc. v. Universal Avionics Sys. Corp., 493 F.3d 1358, 1361 (Fed.Cir.2007) (“When a patentee defines a claim term, the patentee’s definition governs, even if it is contrary to the conventional meaning of the term.”).

In contrast, the Court finds IA Labs’ second proposed modification — that only the muscles associated with the user’s isometric exercise must substantially not move — to be a valid clarification of the patent’s express definition of “isometric exercise.” The requirement that there be “substantially minimal or no movement of the user’s muscles during the force exertion” need only apply to the muscles engaged in isometric exercise and not to all of the muscles in the user’s body. Nothing in Claim 1 prevents a person from, for example, attempting to bend a rigid steel bar with her hands while pedaling on a stationary bicycle. In fact, Claim 7 encompasses just that scenario. Claim 7 requires an “input device” on the system described in Claim 1 “that is manipulable by said user to effect at least one of isokinetic and isotonic exercise by said user during system operation.” (’982 patent, col. 16 11. 5-8.) Because, by the terms of Claim 1, “system operation” necessarily requires the user to engage in isometric exercise, Claim 7 contemplates a user simultaneously performing isometric and dynamic exercise. See Paragon Solutions, LLC v. Timex Corp., 566 F.3d 1075, 1084 (Fed.Cir.2009) (construing a term in one claim, in part, based on the implications of claims that depend from it). Nintendo has pointed to nothing in the specification other than the express definition to argue against this clarification. Yet modifying the express definition to explicitly restrict the limitation of minimal muscle movement to only those muscles engaged in the isometric exercise is an appropriate resolution of an ambiguity. See Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1344-45 (Fed. Cir.2009) (construing the term “sanitize” in accordance with the patent’s definition — “a bacterial population reduction to a level that is safe for human handling and consumption” — but adding the requirement that it be “post-cooking,” to resolve the ambiguity).

The Court is not persuaded that the prosecution history precludes this second construction. The Applicant’s amendments and remarks made in response to Walton focused on the fact that “the Walton patent is directed toward a user worn device that measures user body motion to control a game scenario.” (’982 patent Amendment, April 3, 2006, at 9.) Although this language may disclaim devices worn by a user that measure user movement, the Applicant has not “unequivocally disavowed” devices that allow for the possibility of any user movement. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324-25 (Fed.Cir.2003); see also Voda v. Cordis Corp., 536 F.3d 1311, 1321-22 (Fed.Cir. 2008) (finding that the patentee’s remarks accompanying the amendment distinguished the prior art on a basis other than that advanced by the party). Nintendo argues that IA Labs’ proposed construction would allow it to argue to a jury that a device that measures a user’s movement is properly within the scope of Claim 1, even though it explicitly disclaimed such an invention in light of Walton. The Court disagrees. Construing “isometric exercise” to make clear that a user engaged in isometric exercise can simultaneously move other parts of her body does not undermine the Claim 1 requirement that isometric exercise must control the virtual reality scenario.

In sum, the Court construes the term “isometric exercise” to mean: “the exertion of force by a user against an object that significantly resists movement as a result of the exerted force such that there is substantially minimal or no movement of the user’s muscles associated with the isometric exercise during the force exertion.”

2. isometric exercise “system” (Claim 1) and isometric exercise ... “system” (Claim 9)

The Parties dispute construction of the term isometric exercise “system” as used in Claim 1 (“an isometric exercise system”) and Claim 9 (“a method of performing an isometric exercise utilizing a system”). The dispute is not about the meaning of the term — both agree that said “system” is a “device” — but, rather, about its import. IA Labs argues that because it appears in the claims’ preambles, the term “system” is a descriptive introductory phrase, not a claim limitation, and, as such, it should be accorded its plain and ordinary meaning. Nintendo argues that “system” should be construed as “device” to avoid juror confusion.

Whether the phrase “isometric exercise system” is an independent claim limitation or not is a distinction without a difference. Both Parties agree that the “system” claimed is a “device,” and Nintendo’s proposed construction does not impose a limitation beyond that. Nonetheless, the Court agrees with IA Labs that the term “isometric exercise system,” as found in the preamble to Claims 1 and 9, does not constitute an independent claim limitation. See Am. Med. Sys., Inc. v. Biolitec, Inc., 618 F.3d 1354, 1359 (Fed. Cir.2010) (“If the preamble is reasonably susceptible to being construed to be merely duplicative of the limitations in the body of the claim ... we do not construe it to be a separate limitation.”) (quoting Symantec Corp. v. Computer Assocs. Int’l, Inc., 522 F.3d 1279, 1288-89 (Fed.Cir.2008)) (internal quotations omitted); Innova/Pure Water Inc. v. Safari Water Filtration Sys. Inc., 381 F.3d 1111, 1118 (Fed.Cir.2004) (“Language in a preamble limits a claim where it breathes life and meaning into the claim ... but not where it merely recites a purpose or intended use of the invention.”) (internal citation omitted). Instead, it “merely gives a descriptive name to the set of limitations in the body of the claim that completely set forth the invention.” IMS Tech., Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1434 (Fed.Cir.2000).

Accordingly, the Court finds that the limitations of Claim 1 describe an isometric exercise device, and the limitations of Claim 9 describe a method for performing isometric exercise utilizing a device, but the phrases “isometric exercise system” in the preamble of Claim 1 and “a method of performing an isometric exercise utilizing a system ...” in the preamble of Claim 9 do not constitute independent claim limitations.

3. “effector” (Claims 1 and 9)

The Court previously construed the term “effector” to mean “a rigid object that slightly and measurably deforms within its elastic limit when muscle force is applied.”

4. “an effector to provide an isometric exercise” (Claim 1); “said effector provides an isometric exercise” (Claim 9); “force applied by said user to said effector to perform said isometric exercise” (Claim 1); and “force applied by a user to said effector” (Claim 9)

The Court previously construed the terms “an effector to provide an isometric exercise” (Claim 1), “said effector provides an isometric exercise” (Claim 9), “force applied by said user to said effector to perform said isometric exercise” (Claim 1), and “force applied by a user to said effector” (Claim 9) to mean “the user’s isometrieally exercised muscles exert force against the effector either through direct contact or indirect contact.”

5. “a frame to support a user” (Claims I and 9) and “fixedly secured to said frame” (Claims 1 and 9)

The Court previously construed the term “a frame to support a user” to have its plain and ordinary meaning. The Court rejected the limitations advanced by Nintendo and agreed with IA Labs that the term need not be construed, thereby resolving the dispute. See 02 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1362 (Fed.Cir.2008) (“When the parties present a fundamental dispute regarding the scope of a claim term, it is the court’s duty to resolve it.”); U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.Cir.1997). Although the Court has declined to construe the term “frame to support a user,” it notes that, given the requirement that the effector be “fixedly secured to said frame” (a phrase not brought before the Court for construction), and the role that the effector plays in relation to isometric exercise, see supra 111(B)(1), it is clear to the Court that, in the context of Claim 1, the frame must support the user in relation to the effector. See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed.Cir.2005) (en banc) (“[T]he context in which a term is used in the asserted claim can be highly instructive.”).

6. “in accordance with performance of said isometric exercise and manipulation of said effector by said user” (Claims 1 and 9)

The Parties dispute construction of two specific words within the phrase “in accordance with performance of said isometric exercise and manipulation of said effector by said user”: “manipulation” and “and.”

IA Labs argues that the Court should construe “manipulation” to mean “the amount of deformation.” It argues that the specification and claims are clear that when a force is applied to the effector, it slightly and measurably deforms within its elastic limits. It is this level of deformation to which the sensor responds. Therefore, the amount of deformation controls the virtual reality scenario.

Nintendo argues that the specification and prosecution history require that the Court construe “manipulation” to mean “the system allows exertion of force against the effector in opposite directions.” Nintendo argues that throughout the written description the word “manipulate” refers to movement in opposite directions (e.g., the effector is physically “manipulated” to effect the transfer of the types of inputs associated with a conventional computer peripheral producing X and Y axis data (’982 patent, col. 6 11. 39-44), and the effectors form a T-type handle-bar for “manipulation” by a user and capable of deflections in response to bending, twisting, tension, and compression forces (id. col. 8 11. 10-29)). Additionally, Nintendo points to the Applicant’s remarks to the Patent Examiner distinguishing Boyd, noting that Boyd “discloses that the strain gauges are sensitive only to the torque applied to the fixture which is transmitted through the shaft, and is not sensitive to other movements, such as axial compression of the shaft.” (’982 patent Amendment, July 22, 2005, at 12.) Nintendo argues that by requiring that the claimed device be able to control the virtual reality scenario in accordance with manipulation of the effector in order to distinguish Boyd, the Applicant disclaimed an invention that could only measure force in a single direction. Permitting IA Labs to argue now that manipulation can be achieved with a force in only one direction would improperly permit IA Labs to include features that have already been disclaimed.

IA Labs replies that Nintendo’s proposed construction would add a requirement that is inconsistent with the plain language of Claims 1 and 9, which simply require “at least one force.” (’982 patent, col. 15 1. 42; id. col. 16 1. 19.) The specification, IA Labs says, confirms this by referring to foot pedals as effectors. Further, the fact that the phrase “manipulate a virtual reality scenario” also appears in Claims 1 and 9 (id. col. 15 1. 35; id. col. 16 11.14-15) means that the word cannot refer to the application of opposing forces. Finally, IA Labs argues that Nintendo overstates the Boyd distinction and reads far more into the limitation than is appropriate. The Applicant made numerous amendments to distinguish Boyd, and IA Labs sees no basis for assuming that the language at issue relates to the manipulation term. In any event, says IA Labs, that language does not support Nintendo’s conclusion that the patent requires the exertion of force in opposite directions.

The Court finds both arguments unpersuasive. Nintendo’s reading of the specification is too restrictive. The patent uses the word “manipulate” differently across the specification and claims, and it would be improper to read the meaning from only one of these uses into the claim. Cf Bell Atl. Network Servs., Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d 1258, 1271 (Fed.Cir.2001) (“[W]hen a patentee uses a claim term throughout the entire patent specification, in a manner consistent with only a single meaning, he has defined that term by implication.”). Further, Nintendo ascribes unwarranted significance to the Applicant’s remarks distinguishing Boyd. “Because the statements in the prosecution history are subject to multiple reasonable interpretations, they do not constitute a clear and unmistakable departure from the ordinary meaning of the term.” Golight, Inc. v. Wal-Mart Stores, Inc., 355 F.3d 1327, 1332 (Fed.Cir.2004). At the same time, the Court does not agree with IA Labs that the words “manipulation” and “deformation” are interchangeable. The word “deformation” appears elsewhere in Claim 1. (See '982 patent, col. 15 11. 43-45 (“said applied force effects a measurable deformation of said rod”).) If the Patentee intended to refer to the amount of deformation, he would have presumably said so. See Innova/Pure Water Inc. v. Safari Water Filtration Sys. Inc., 381 F.3d 1111, 1119 (Fed.Cir.2004) (“[Wjhen an applicant uses different terms in a claim it is permissible to infer that he intended his choice of different terms to reflect a differentiation in the meaning of those terms.”).

In the Court’s view, manipulation of the effector is something the user does that causes a deformation of the effector. As such, the word “manipulation” stands on its own. The Court rejects both proposed constructions and declines to construe “manipulation” as having anything other than its ordinary meaning. See U.S. Surgical Corp., 103 F.3d at 1568 (“The Mark-man decisions do not hold that the trial judge must repeat or restate every claim term in order to comply with the ruling that claim construction is for the court

.... It is not an obligatory exercise in redundancy.”); Pulse Med. Instruments, Inc. v. Drug Impairment Detection Servs., Inc., No. DEC 07-01388, 2009 WL 6898404, at *2 (D.Md. March 20, 2009) (“[Tjerms that are commonplace or that a juror can easily use in her direction from the court do not need to be construed because they are neither unfamiliar to the jury, confusing to the jury, nor affected by the specification or prosecution history.”) (internal quotations and modifications omitted).

In any event, the Court’s infringement analysis does not turn on the term “manipulation.”

As for construction of the term “and,” after hearing the Parties’ argument at the Markman hearing, it appears that this term is not actually in dispute. Both Parties appear to agree that the performance of isometric exercise generates a force that causes manipulation of the effector, such that the two are effectively one and the same and occur more or less simultaneously. And, that is how the Court construes the word “and.”

In sum, the Court construes the phrase “in accordance with performance of said isometric exercise and manipulation of said effector by said user” to mean “in accordance with performance of said isometric exercise and the resulting manipulation of the effector.”

IV. Infringement

A. Legal Standard

“[I]nfringement is assessed by comparing the accused device to the claims, and the accused device infringes if it incorporates every limitation of a claim, either literally or under the doctrine of equivalents.” Nazomi Commc’ns, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1372 (Fed.Cir.2005). The burden is on the patentee to provide evidence of infringement. See Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed.Cir.2008); TechSearch, LLC. v. Intel Corp., 286 F.3d 1360, 1372 (Fed.Cir.2002).

Under a theory of literal infringement, if “even one claim limitation is missing or not met, there is no literal infringement,” and summary judgment is appropriate. MicroStrategy Inc. v. Bus. Objects, S.A., 429 F.3d 1344, 1352 (Fed.Cir. 2005); see also Gen. Mills, Inc. v. Huntr-Wesson, Inc., 103 F.3d 978, 983 (Fed.Cir. 1997) (“Where the parties do not dispute any relevant facts regarding the accused product ... but disagree over possible claim interpretations, the question of literal infringement collapses into claim construction and is amenable to summary judgment.”). To prevail on a theory of equivalents, a plaintiff must “provide particularized testimony and linking argument as to the insubstantiality of the differences between the claimed invention and the accused device or process ... on a limitation-by-limitation basis.” AquaTex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320, 1328 (Fed.Cir.2007) (quoting Texas Instruments Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1567 (Fed.Cir.1996)) (internal quotations omitted).

Whether a device infringes on the properly construed claims of a patent, either literally or under the doctrine of equivalents, is a matter of fact. See Uniloc USA Inc. v. Microsoft Corp., 632 F.3d 1292, 1301 (Fed.Cir.2011); Townsend Eng’g Co. v. HiTec Co., Ltd., 829 F.2d 1086, 1089 (Fed.Cir.1987). “A district court should approach a motion for summary judgment on the fact issue of infringement with great care.” Amhil Enters. Ltd. v. Wawa, Inc., 81 F.3d 1554, 1557 (Fed.Cir.1996). However, “[a] party may not overcome a grant of summary judgment by merely offering conclusory statements.” SRI Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186, 1198 (Fed.Cir. 2008) (citing Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1112 (Fed.Cir.2000)). “Thus, the party opposing the motion for summary judgment of noninfringement must point to an evidentiary conflict created on the record, at least by a counter-statement of a fact set forth in detail in an affidavit by a knowledgeable affiant.” TechSearch, 286 F.3d at 1372 (citing Arthur A Collins, Inc. v. N. Telecom, Ltd., 216 F.3d 1042, 1046 (Fed. Cir.2000)).

B. The Parties’ Arguments

IA Labs contends that Nintendo directly infringes the '982 patent by making, using, selling, offering for sale, and/or importing the Balance Board under 35 U.S.C. § 271(a). It further contends that Nintendo indirectly infringes the patent by inducing and contributing to infringement under 35 U.S.C. §§ 271(b) and (c). Both contentions presuppose that the Balance Board literally infringes Claim 1 and that normal use of the Balance Board literally infringes Claim 9.

IA Labs’ literal infringement argument proceeds as follows. Each leg of the Balance Board contains a load cell (i.e.“effector”), comprising two plates and a small aluminum block (i.e. “elongated rod”). These effectors are fixedly secured to a metal frame (i.e.“frame”), encased in plastic, on which the user stands, such that they significantly resist movement when the user exerts force. A strain gauge (i.e.“sensor”) is attached to each elongated rod and measures the forces applied by the user to deform the rod. A processor board (i.e.“processor”) includes a micro-controller and a Bluetooth Module (i.e. “data processing modules”), which receive and process data from the sensors and transfer that data to the Wii Console (i.e. “host processing system”) to control the Wii Fit or Wii Fit Plus games (i.e. “virtual reality scenario”). IA Labs argues that a Balance Board user controls certain Wii Fit and Wii Fit Plus activities — including, e.g., the Ski Jump and certain yoga activities- — by performing isometric exercise while standing on the Balance Board.

Nintendo responds that it does not infringe the '982 patent because the Balance Board fails to meet several of the limitations found in Claim 1. Its primary argument is that the Balance Board does not infringe based on proper construction of the term “isometric exercise” because the Balance Board neither provides nor responds to isometric exercise as required by the '982 patent. This argument extends to three separate limitations in Claim 1: (1) “an effector to provide an isometric exercise;” (2) “at least one sensor coupled to said rod and responsive to at least one force applied by said user to said effector to perform said isometric exercise;” and (3) “isometric exercise system.”

First, Nintendo argues that the load cells in the Balance Board do not “provide an isometric exercise,” in that they do not comprise an immovable object that resists muscle force. Although Nintendo concedes that one could, in theory, engage in isometric exercises while standing on the Balance Board, one could perform that same isometric exercise equally well on the floor. This is at odds with the '982 patent, where the isometric exercise is only possible because of the