Nike, Inc. v. Lululemon Athletica Canada Inc., Lululemon USA Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NIKE, INC.,
Appellant
v.
LULULEMON ATHLETICA CANADA INC.,
LULULEMON USA INC.,
Appellees
______________________
2024-2134
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2023-
00438.
______________________
Decided: August 5, 2026
______________________
AARON P ATRICK BOWLING, Arnold & Porter Kaye
Scholer LLP, Chicago, IL, argued for appellant. Also rep-
resented by MICHAEL J OSEPH HARRIS , C HRISTOPHER J.
RENK; MICHAEL J. SEBBA , Los Angeles, CA; J ONATHAN
SWISHER, San Francisco, CA.
SETH W. L LOYD, Morrison & Foerster LLP, Washing-
ton, DC, argued for appellees. Also represented by BRIAN
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NIKE, INC. v. LULULEMON ATHLETICA CANADA INC. 2
ROBERT MATSUI; MEHRAN ARJOMAND, ALEX S. YAP , Los An-
geles, CA; K YLE W.K. MOONEY , New York, NY.
______________________
Before M OORE, Chief Judge, CHEN, Circuit Judge, and
BISSOON, Chief District Judge.1
BISSOON, Chief District Judge.
Patent owner Nike, Inc. (Nike) appeals the final writ-
ten decision of the Patent Trial and Appeal Board (Board)
regarding the inter partes review of U.S. Patent No.
8,620,413 (’413 patent). The Board determined that the pe-
titioner, lululemon athletica canada inc. and lululemon usa
inc. (Lululemon), had shown by a preponderance of the ev-
idence that all of the challenged claims (1–5, 7, 9, 12–14,
and 17–19) were unpatentable. We will affirm.
BACKGROUND
The ’413 patent addresses:
A watch or other type of portable electronic console
that employs a number of different functions in or-
der to improve its usability. The watch may, for ex-
ample, allow a user to connect the watch to one or
more remote electronic devices, such as an electronic
performance sensor or MP3 player. The watch then
displays information related to the connected elec-
tronic devices.
J.A. 52, ’413 patent abstract, code (57) (cleaned up).
Independent claims 1, 12 and 17 were challenged,
and claim 1 is representative:
1 Honorable Cathy Bissoon, Chief District Judge,
United States District Court for the Western District of
Pennsylvania, sitting by designation.
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NIKE, INC. v. LULULEMON ATHLETICA CANADA INC. 3
1. An apparatus comprising:
a processor; and
a memory storing instructions that, when ex-
ecuted by the processor, cause the apparatus at
least to:
prompt a user to exercise at a plurality of suc-
cessive exertion levels, wherein an exertion
level is based on a level of physical fitness of
a user;
determine a plurality of heart rate zones based
on first heart rate measurements received
from a sensor while the user exercises at the
plurality of successive exertion levels;
generate a prompt instructing a user to exer-
cise while maintaining heart rate within a
particular one of the plurality of heart rate
zones;
process second heart rate measurements re-
ceived from the sensor subsequent to gener-
ating the prompt; and
determine whether the second heart rate
measurements are within the particular
heart rate zone.
J.A. 68, ’413 patent at 18:4-23.
The Board found claims 1, 5, 7, 12 and 17 anticipated
by the prior art in Amano,2 J.A. 25-41; claims 2, 3, 4, 13
and 18 were rendered obvious by Amano in combination
2 US Patent No. 6,241,684 B1 (Amano), J.A. 142-213.
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NIKE, INC. v. LULULEMON ATHLETICA CANADA INC. 4
with Gorman,3 J.A. 41-46; and claims 9, 14 and 19 were
rendered obvious by Amano combined with Flach.4 Id.
Nike timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(4) and 35 U.S.C. §§ 141(c), 319.
D ISCUSSION
We review the Board’s claim construction based on in-
trinsic evidence de novo, and any subsidiary fact findings
involving extrinsic evidence for substantial evidence. Sea-
bed Geosols. (US) Inc. v. Magseis FF LLC, 8 F.4th 1285,
1287 (Fed. Cir. 2021). Anticipation is a question of fact we
review for substantial evidence. Ericsson Inc. v. Intell. Ven-
tures I LLC, 890 F.3d 1336, 1338 (Fed. Cir. 2018). Whether
a skilled artisan would have been motivated to combine
prior art references is a question of fact we review for sub-
stantial evidence. CyWee Grp. Ltd. v. ZTE (USA), Inc.,
90 F.4th 1358, 1366 (Fed. Cir. 2024).
None of Nike’s arguments warrant reversal. The Court
will address them in seriatim.
Nike first argues that the Board erroneously construed
a limitation requiring the apparatus to “prompt [the] user
to exercise at a plurality of successive exertion levels,
wherein . . . exertion level is based on a level of physical fit-
ness of a user.” Appellant’s Br. 24-33 (emphasis added).
Nike contends that the Board removed the word “level,”
and then erroneously determined that a user’s “‘physical
characteristics or attributes’ may be used in ‘assessing or
understanding a level of a user’s physical fitness.’” Id. at 25
(internal quotations in original).
3 US Patent No. 5,400,794 (Gorman), J.A. 268-83.
4 US Patent Application Publication No.
2001/0023315 (Flach), J.A. 284-308.
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NIKE, INC. v. LULULEMON ATHLETICA CANADA INC. 5
Nike’s linguistic gymnastics bear little relation to the
Board’s actual analyses. The Board highlighted that Nike’s
proposed construction ‒ that exertion level “takes into ac-
count an individual user’s particular physical fitness con-
dition” ‒ injected more ambiguity than clarity. J.A. 12, 14.
On this point, the Court agrees. At bottom, moreover, the
parties’ positions reflect disagreement as to what charac-
teristics may be considered in assessing “an individual
user’s particular physical fitness condition.”
Turning to the central matter, the Court finds no fault
in the Board’s reasoning. It explained how an embodiment
in Amano prompted the user to increase exercise intensity,
said intensity being “measured and subsequently in-
creased” based on her or his “stride length and weight.”
J.A. 22 (cited source omitted). The Board highlighted the
“broad phrasing” utilized in the patent—“based on a level
of physical fitness”—and its failure to offer “meaningful ex-
planation of what [it] encompassed.” Id. at 27-28. It found,
based on a fully developed record, that “level of physical
fitness” may be conveyed through physical characteristics,
such as stride length and body weight, when such charac-
teristics are viewed in relation to one another. Id. at 28.
Even under a de novo standard, which Nike requests
the Court to adopt by framing the Board’s decision as an
implicit claim construction, we must reject Nike’s argu-
ment that certain physical characteristics cannot be in-
cluded in evaluating a “level of physical fitness.” As the
Board noted, the claim’s “broad phrasing” suggests “level
of physical fitness” should not be limited, and the ’413 pa-
tent specification does not further cabin the term. See, e.g.,
’413 patent 2:15-18 (noting an athlete may wish to measure
“multiple performance indicators”); ’413 patent 15:5-10
(noting that heart rate zones may be calculated using “a
general estimate of the athlete’s fitness condition”). More-
over, the patent owner’s response to an examiner’s
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NIKE, INC. v. LULULEMON ATHLETICA CANADA INC. 6
rejection over Lubell5 during the ’413 patent’s prosecution
history merely suggests that a prescribed fitness test which
is the same for all users is not “based on a level of physical
fitness of a user.” See J.A. 455. That response does not in-
dicate which attributes may or may not contribute to a de-
termination of physical fitness level.
Substantial evidence supports the Board’s finding that
Amano anticipates limitation 1[C]. Nike contends that
Amano’s prompts to increase “exercise intensity” equated
only to increasing “pitch” (speed) ‒ an adjustment unre-
lated to the user’s level of physical fitness. But the Board
demonstrated the “logical and evidentiary shortcomings” of
Nike’s interpretation. Id. at 30. It weighed the competing
experts’ testimony and opinions, found Lululemon’s expert
more credible and took the extra step of (convincingly) har-
monizing Nike’s expert testimony. Id. at 31-32.
Substantial evidence supports the Board’s finding that
Amano anticipates limitation 1[D]. As for Nike’s argument
that the Board erred in combining distinct embodiments in
Amano, Lululemon is correct that the embodiments were
not, in fact, distinct. Appellee’s Br. 34-36. The relevant em-
bodiments expressly incorporated methods explained in
Amano’s prior-described embodiments, and the Board per-
missibly credited Lululemon’s expert testimony that ordi-
narily skilled artisans would understand Amano’s
“homogenous” disclosure. J.A. 38-39; see also Blue Calypso,
LLC v. Groupon, Inc., 815 F.3d 1331, 1344 (Fed. Cir. 2016)
(“[A] reference may still anticipate if that reference teaches
that the disclosed components or functionalities may be
combined and one of skill in the art would be able to imple-
ment the combination.”).
Finally, substantial evidence supported the Board’s
findings regarding the motivation to combine Amano with
5 U.S. Patent No. 4,566,461 (Lubell), J.A. 242–55.
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NIKE, INC. v. LULULEMON ATHLETICA CANADA INC. 7
Gorman and Flach. The Board cited testimony from Lu-
lulemon’s expert regarding all of the matters addressed by
Nike. See J.A. 42–46.
The Board provided reasons for rejecting each of Nike’s
positions, and they will not improve with repetition here.
We affirm the Board’s construction and conclude the
Board’s decision regarding anticipation and motivation to
combine was supported by substantial evidence.
CONCLUSION
We have considered Nike’s remaining arguments, and
none of them are persuasive. The Board did not err, and its
decision was supported by substantial evidence. We there-
fore affirm.
AFFIRMED
COSTS
Costs to Lululemon.
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