Official Complaint for Patent Infringement in Civil Action No. 8:12-cv-01774-JVS-AN: Fitistics LLC v. Unisen Inc et. al. Filed in U.S. District Court for the Central District of California, the Hon. James V. Selna presiding. See http://news.priorsmart.com/-l6Vv for more info.
Official Complaint for Patent Infringement in Civil Action No. 8:12-cv-01774-JVS-AN: Fitistics LLC v. Unisen Inc et. al. Filed in U.S. District Court for the Central District of California, the Hon. James V. Selna presiding. See http://news.priorsmart.com/-l6Vv for more info.
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Official Complaint for Patent Infringement in Civil Action No. 8:12-cv-01774-JVS-AN: Fitistics LLC v. Unisen Inc et. al. Filed in U.S. District Court for the Central District of California, the Hon. James V. Selna presiding. See http://news.priorsmart.com/-l6Vv for more info.
Direitos autorais:
Public Domain
Formatos disponíveis
Baixe no formato PDF, TXT ou leia online no Scribd
A Professional Corporation 2" TIMOTHY L. JOENS, ESQ. - STATE BAR #090532 3 " 2201 Dupont Drive, Suite 820 Irvine, California 92612 4 Tel: (949) 851-0866 .. Fax: (949) 851-1250 5 Attorneys for Plaintiff, 6 II FITISTICS, LLC .......... OJ .. < o 0 1- ..... ,-,1 r'11 c:::> '.' :-., -i c:::> if. '; 1>- 1-' . C) - - I 10 :.:J -0 _f" .... r_ i:: . C: ,_ c.) "',,,,f .J
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7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 " FITISTICS, LLC, a Connecticut 12" corporation, 13 14 15 vs. Plaintiff, UNISEN, INC.; FORD-ABC 864736; 16" CORE INDUSTRIES, INC.; and, STAR 17 II TRAC HEALTH & FITNESS, Defendants. Plaintiff alleges: I ) ) ) ) ) ) ) ) ) ) ) 2 THE PARTIES CASE NO.: SACV12 - 01774 JVS (ANx) COMPLAINT FOR BREACH OF CONTRACT; BREACH OF THE IMPLIED COVENANT OF GOOD FAITH & FAIR DEALING; FRAUD; PATENT INFRINGEMENT; COPYRIGHT INFRINGEMENT; TRADE- MARK INFRINGEMENT; & INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE DEMAND FOR JURY TRIAL 18 19 20 21 22 23 24 25 26 27 1. Fitistics, LLC ("FITISTICS") is a Connecticut corporation having a principal 28 II place of business in Connecticut. COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 1 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 1 of 44 Page ID #:1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Plaintiff is informed and believes, and based thereon alleges, that at all times herein mentioned, Defendant, CORE INDUSTRIES, INC. (hereinafter referred to as "CORE"), is and was a corporation incorporated under the laws of the state of California and doing business in the state of California, and recently converted to a limited liability company under the laws of the state of California. Plaintiff is further informed and believes, and based thereon alleges, that CORE's principal place of business is in Irvine, California. 3. Plaintiff is informed and believes, and based thereon alleges, that at all times herein mentioned, Defendant, UNISEN, INC. (hereinafter referred to as "UNISEN"), is and was a corporation incorporated under the laws of the state of California and doing business in the state of California. Plaintiff is further informed and believes, and based thereon alleges, that UNISEN's principal place of business is in Vancouver, Washington. 4. Plaintiff is informed and believes, and based thereon alleges, that at all times herein mentioned, Defendant, STAR TRAC HEALTH & FITNESS, is and was a corporation incorporated under the laws of the state of California and doing business in the state of California. Plaintiff is further informed and believes, and based thereon alleges, that STAR TRAC HEALTH & FITNESSs principal place of business was in Irvine, California, and that said STAR TRAC HEALTH & FITNESS merged into and became a part of UNISEN (hereinafter jointly referred to as "STAR TRAC"). 5. Plaintiff is informed and believes, and based thereon alleges, that at all times herein mentioned, Defendant, FORD-ABC 864736 (hereinafter referred to as "FORD"), is and was a corporation incorporated under the laws of the state of California and doing business in the state of California. II JURISDICTION AND VENUE 6. This Court has original subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1338(a). COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 2 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 2 of 44 Page ID #:2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. This Court may exercise personal jurisdiction over Defendants because all of the Defendants are residents of the state of California, all of the Defendants reside in this judicial district, and all of the Defendants have minimum contacts with this forum as a result of business regularly conducted within the State of California and this judicial district. 8. Venue is proper in this Court under 28 U.S.C. 1391(b),( c), and (d) and 1400(b). All of the Defendants reside in this district. Moreover, a substantial part of the events, acts, and omissions giving rise to this action occurred in this district, Defendants conduct substantial business in this district, and Defendants have a substantial presence here. III FACTS COMMON TO ALL COUNTS 9. Plaintiff is informed and believes, and based thereon alleges, that Defendant FORD entered into a written agreement with Defendant UNISEN by which the later party assigned all of its assets to Defendant FORD for the benefit of the creditors of Defendant UNISEN and Defendant FORD agreed to act as the trustee of said assets for the benefit of said creditors. 10. Thereafter, in compliance with the notices provided by Defendants, and each of them, Plaintiff filed timely claims for payment of the claims set forth herein from Defendant FORD. Nevertheless, said Defendant has failed and refused to pay all or any portion of said sums to Plaintiff. 11. Plaintiff is further informed and believes, and based thereon alleges, that Defendant CORE entered into a written contract with Defendant FORD by which said Defendant purchased certain assets formerly belonging to Defendant UNISEN from Defendant FORD and assumed certain liabilities therefrom. Plaintiff is informed and believes, and based thereon alleges, that among the liabilities Defendant CORE assumed were the sums due to Plaintiff as set forth in this complaint. Notwithstanding that said sums are well past due and owing, Defendants have failed and refused, and COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 3 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 3 of 44 Page ID #:3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continue to fail and refuse, to pay said sums, and/or any of said sums, to Plaintiff. 12. FITISTICS develops and sells fitness solutions, including, but not limited to USB docking stations (herein "FITISTICS docking stations") that plug into virtually any cardio-vascular exercise equipment and allow users to record various workout-related data. This data can later be uploaded onto a website, where it can be analyzed and used to proactively monitor exercise and encourage a healthier lifestyle. 13. STAR TRAC, UNISEN, and CORE have manufactured and sold, and continue to manufacture and sell, cardio-vascular exercise equipment. 14. In or about February of 2008, FITISTICS completed its first release of www.FITISTICS.com, a website designed to collect and analyze data captured from FITISTICS' docking stations. 15. In or about March of 2008, FITISTICS attended the International Health, Racquet & Sportsclub Association (IHRSA) trade show as an exhibitor to display FITISTICS technology and conduct meetings with health club chains and equipment manufacturers. 16. STAR TRAC was one of five equipment manufacturers with which FITISTICS was actively engaged in business conversations at the 2008 IHRSA trade show. Representatives of FITISTICS met with STAR TRAC's Vice President of Marketing, Randy Bergstedt (herein "Bergstedt"), multiple times at the trade show. 17. During those March 2008 meetings, and thereafter, Mr. Bergstedt expressed interest in FITISTICS' technology, and arranged for FITISTICS representatives to travel to STAR TRAC's Irvine, California, corporate office for a demonstration of the FITISTICS docking stations. FITISTICS successfully demonstrated the use of its technology on equipment that STAR TRAC presented for use in such testing inside its engineering laboratory. 18. Immediately after the demonstration, FITISTICS' representatives met with STAR TRAC's President, Steve Nero; its Vice President of Engineering, Kevin Corbalis; its Chief Systems Architect, Greg Wallace; its Cardio Product Manager, COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 4 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 4 of 44 Page ID #:4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrew Moore; and, Mr. Bergstedt, to discuss potential business relationships moving forward. 19. In the first week of April 2008, Mr. Bergstedt informed FITISTICS that Mr. Corbalis would be taking over future discussions on defining the business opportunity that he said existed between FITISTICS and STAR TRAC. Mr. Corbalis immediately thereafter contacted representatives of FITISTICS and started a 1 month long negotiation process that included STAR TRAC performing due diligence relative to FITISTICS software and hardware, website and patent filings, as well as the negotiation of certain employment contracts with certain of the principals of FITISTICS. 20. STAR TRAC and FITISTICS entered into a written license on or about May 9, 2008 (herein "the License Agreement"). 21. Pursuant thereto, FITISTICS granted STAR TRAC an exclusive license to make, use, sell, offer for sale, import and export FITISTICS' docking stations throughout the world. In exchange therefor and as part of the consideration for said agreement, STAR TRAC promised, covenanted and agreed to pay certain royalties to FITISTICS for each docking station sold or otherwise disposed of by STAR TRAC in any country in which FITISTICS owned a pending application or issued patent as designated in said License Agreement. 22. In addition, STAR TRAC and FITISTICS entered into a second written agreement by which STAR TRAC agreed to purchase and FITISTICS agreed to sell to STAR TRAC the FITISTICS website. In exchange therefor and as a part of the consideration for said agreement, STAR TRAC agreed to pay FITISTICS the sum of $225,000.00 (herein "the Website Purchase Agreement"). 23. Section 7.5 of the License Agreement explicitly states that STAR TRAC and FITISTICS would "jointly issue one or more appropriate media/press releases with regard to the existence of License Agreement within seven (7) days of the Effective Date or as soon as reasonably practicable thereafter." No joint media/press COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 5 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 5 of 44 Page ID #:5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 release was ever issued, despite the fact FITISTICS repeatedly made demand therefor of STAR TRAC. Notwithstanding said demands, STAR TRAC refused to make any such media/press releases of any kind relative to said agreement. 24. Section 4 of the License Agreement states that FITISTICS would endeavor to obtain additional customers for STAR TRAC and its Docking Station and that FITISTICS could offer such customers use of the Docking Stations, and/or use of STAR TRAC's exercise equipment that has an integrated USB port for collection of the fitness data. Section 7.5 states that "FITISTICS shall be able to disclose to prospective purchasers of rights in the Licensed Patents the identity of STAR TRAC and the existence of this Agreement." 25. FITISTICS had been repeatedly told that all the main cardio product lines already had fully functional USB connectivity. 26. Contrary to said representations that STAR TRAC's cardio product lines had fully functional USB connectivity, in fact none of STAR TRAC's products had any solution and/or ability to implement USB connectivity and/or any ability to interface with the website STAR TRAC purchased from FITISTICS with any of their exercise machines. 27. As of November 2008, and despite the lack of a working product that permitted the requisite connectivity, STAR TRAC signed a major equipment deal to Esporta, a European health club chain, worth up to $10 million. Multiple STAR TRAC executives told FITISTICS that the FITISTICS USB capabilities, which STAR TRAC had yet to implement, and as discussed in paragraph 29, supra, did not have the ability without the FITISTICS technology to implement, were the main reason for the success of this transaction. 28. Needing to create the product that included the requisite connectivity that it had promised to deliver to Esporta, STAR TRAC used FITISTICS' docking station software in STAR TRAC's integrated docking stations. As a result, essentially all of STAR TRAC's cardio products directly copied and used FITISTICS' software, COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 6 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 6 of 44 Page ID #:6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including using the exact format and encryption technology that was in the FITISTICS docking stations. 29. By March of 2009, with FITISTICS' assistance, STAR TRAC products had been successfully outfitted with FITISITICS' USB docking station software to achieve the functionality that had been promised to Esporta, including working with the website FITISTICS had sold to STAR TRAC, now called eFitness (www.eFitnessSystem.com). 30. Mr. Bergstedt informed FITISTICS that the successful use of the FITISTICS software would open opportunities to sell FITISTICS docking stations to Esporta and to others. 31. Also in March of 2009, STAR TRAC once again had a booth at the IHRSA trade show. STAR TRAC used the trade show as the official launch of the STAR TRAC fitness website, www.eFitnesssystem.com. This website (herein "STAR TRAC's eFitness Website") was STAR TRAC's adaptation of the website FITISTICS had sold to STAR TRAC (www.FITISTICS.com). Leading up to the trade show, Mr. Bergstedt and others had been fostering an environment at STAR TRAC where the focus was on integrated USB docking stations. Prior to the trade show, Mr. Bergstedt told FITISTICS that there would not be any USB docking stations on display at the show. 32. At the trade show, the team from Nike+ visited the STAR TRAC booth, where Messrs. Bergstedt, McKirdy, and Robert Nutini (both of whom were FITISTICS officers) discussed having an aftermarket product become part of the Nike+ "ecosystem." 33. After the trade show, discussions began between Nike, through Brandon Burroughs (herein "Burroughs"), and STAR TRAC, through Bergstedt, and FITISTICS. Mr. Burroughs also began having direct discussions with Messrs. McKirdy and Nutini about the FITISTICS technology. FITISTICS supplied a demonstration USB docking station to Nike for evaluation at the Nike corporate office COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 7 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 7 of 44 Page ID #:7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in Oregon, which was very well received. 34. Between the months of March and October of 2009, Nike, STAR TRAC, and FITISTICS discussed options for integrating data from the USB technology onto the Nike+ system. Additionally, Nike wanted to explore an aftermarket product that would allow for faster penetration of their technology into the commercial market without having to rely on new equipment being sold that worked with iPods/iPhones. The FITISTICS and/or STAR TRAC docking stations were a perfect match. 35. These discussions with Nike presented an enormous opportunity for FITISTICS as well as STAR TRAC. STAR TRAC would gain significant revenue through the sale of the FITISTICS docking station, and FITISTICS would gain royalties on all these sales. 36. At the same time, Mr. Bergstedt's interference was adversely affecting FITISTICS' other business relationships and opportunities. Mr. Bergstedt repeatedly inserted himself in such negotiations in an effort to force the integrated USB docking stations bundled with STAR TRAC exercise machines on potential customers. 37. Mr. Bergstedt ultimately terminated a number of potentially lucrative business opportunities, claiming lack of opportunity for STAR TRAC, despite the fact that STAR TRAC would have received the bulk of the revenue for all sales of the FITISTICS' external docking station, with only a royalty going to FITISTICS. These represented significant lost opportunities to FITISTICS despite their previous representations to FITISTICS, had no intention of honoring its agreement to sell the FITISTICS external docking stations. 38. By the end of September of 2009, FITISTICS had held multiple discussions with Nike and proposed various options for conducting business that involved various levels of involvement by STAR TRAC. 39. At this time, there had still been no press release by STAR TRAC even mentioning FITISTICS, and the FITISTICS docking station was not listed on the STAR TRAC website or in any sales catalogs. COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 8 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 8 of 44 Page ID #:8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40. In or about October of 2009, the Club Industry Trade Show was held in Chicago. Once again, STAR TRAC made no efforts to promote the FITISTICS docking station. 41. On the first night of that trade show, on or about October 15, 2009, Mr. McKirdy approached Mr. Nero, the President of STAR TRAC, and asked to speak with him about the Nike business opportunity. 42. Immediately after hearing Mr. McKirdy's proposed deal with Nike, Mr. Nero shot down the idea, flatly telling Mr. McKirdy, "No, I will not let you do that deal with Nike." When Mr. McKirdy asked why, Mr. Nero replied that a deal with Nike would not help STAR TRAC sell cardio products. Mr. McKirdy responded by reminding Mr. Nero that, as part of the License Agreement, FITISTICS had a charter to explore and execute sub-licensing deals on the FITISTICS technology. 43. At that point, Mr. Nero physically took Mr. McKirdy by the arm and said, "Follow me." Mr. Nero led Mr. McKirdy to two STAR TRAC Sales Managers, Kevin Einck and John Sweeney. Mr. Nero then began to berate Mr. McKirdy, telling him, "Sean, you are not an entrepreneurI own your ass, and I own Bob's [i.e, Mr. Nutini] ass. I never intended to sell your technology, I bought your company for $225,000 when I bought your website and I also own your patents. I fucked you How does it feel to be fucked? When your employment agreements are over, I am going to fire you and Bob, and then I am going to own your technology and there isn't anything you can do about it." 44. As a result of STAR TRAC's interference, FITISTICS never entered into an agreement with Nike. In addition to the lost profits from that potentially lucrative opportunity, FITISTICS lost all credibility with Nike. Combined with the loss of credibility from losing the Virgin opportunity and its ongoing association with STAR TRAC (whose reputation in the industry was in rapid decline due, inter alia, to its repeated failure to honor its contractual commitments, both to its customers and its suppliers/vendors), FITISTICS' credibility in the fitness solutions market further COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 9 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 9 of 44 Page ID #:9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 suffered. 45. Shortly thereafter, STAR TRAC's business was in decline. STAR TRAC's suppliers/vendors began to delay shipments due to lack of payments from STAR TRAC, causing further harm to FITISTICS' business reputation. 46. Despite all this, FITISTICS honored the terms of its agreements with STAR TRAC. Over the next few months, STAR TRAC continued to benefit from significant equipment sales because they had access to FITISTICS' technology, which would be used to help close large equipment sales in the YMCA and University markets. 47. Mr. McKirdy began working with and reaching out to key STAR TRAC accounts, including Anytime Fitness and Lifetime Fitness. At the March 2010 IHRSA trade show, the executive teams from Anytime Fitness and Lifetime Fitness met with Mr. McKirdy regarding custom hardware options that could be further developed around the FITISTICS technology. 48. However, a few months after the 2010 IHRSA trade show, STAR TRAC was in such a poor position financially that Lifetime Fitness e-mailed Mr. McKirdy and said, "Sean, I like your product, but I will not do business with STAR TRAC until there are significant management changes." 49. Anytime Fitness had STAR TRAC as a preferred vendor at that time. However, the deteriorating quality of STAR TRAC's products, and STAR TRAC's unwillingness/inability to provide service/repairs to their customers lead to Anytime Fitness' releasing STAR TRAC from Anytime Fitness' preferred vendor status list. This change in preferred vendor status also eliminated FITISTICS' opportunity to provide a custom solution for Anytime Fitness around FITISTICS' technology, and further damaged FITISTICS' business reputation. 50. In May of 2010, Mr. Nero was replaced as President of STAR TRAC. The new president was Mike Leveque, who previously served as STAR TRAC's European division director. 51. Soon after Mr. Leveque took over as President, Mr. McKirdy held a COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 10 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 10 of 44 Page ID #:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 telephone conference with Mr. Leveque to review the business relationship between FITISTICS and STAR TRAC. 52. During that telephone conference, Mr. Leveque agreed to help "make things right" and asked FITISTICS for some time to try to repair the relationship. Mr. Leveque tasked Mr. Corbalis to review the existing License Agreement and communicate with FITISTICS about a possible renegotiation of the terms of the License Agreement. 53. In or about July 2010, STAR TRAC was acquired by Mike Bruno. Despite the change in ownership, the management team remained the same, and FITISTICS and Mr. Corbalis continued to discuss a renegotiation of the terms of the License Agreement. During this time, STAR TRAC continued to benefit from its business relationship with FITISTICS. 54. On or about November 18, 2010, FITISTICS learned that STAR TRAC would be restructuring under an assignment for benefit of creditors filing. Prior thereto and during the time of the parties' negotiations, STAR TRAC was fully aware that they would be restructuring a company under an assignment for benefit of creditors filing, and had been working with a law firm to manage this process. STAR TRAC continued the negotiations (knowing full well that these negotiations would never result in a new agreement), and represented that these negotiations were being conducted in good faith, in order to continue to receive the benefit of its business relationship with FITISTICS. STAR TRAC thus actively misled FITISTICS about the prospect of a new agreement. 55. The License Agreement was terminated on or about November 19, 2010. 56. However, the damage to FITISTICS' business and reputation did not end with the termination of the License Agreement. In Spring of 2011 FITISTICS was exploring a business relationship with Octane Fitness. After a series of discussions Octane Fitness withdrew from negotiations because it understood (through STAR TRAC's incorrect statements) that FITISTICS no longer owned any of its intellectual COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 11 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 11 of 44 Page ID #:11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 property. 57. Plaintiff is informed and believes that STAR TRAC's incorrect statements lead Octane Fitness to believe that STAR TRAC owned all of FITISTICS' intellectual property. This misinformation had an adverse effect on FITISTICS' prospective economic relationship with Octane Fitness. 58. STAR TRAC's deliberate misstatements regarding the ownership of FITISTICS' intellectual property continues to adversely affect FITISTICS. 59. Further, STAR TRAC never fully paid FITISTICS the royalties as required under Section 3 of the License Agreement. 60. STAR TRAC also never fully paid FITISTICS royalties owed from obtaining new customers under Section 4 of the License Agreement. IV COUNT I BREACH OF CONTRACT (Against All Defendants) 61. Plaintiff refers to and incorporates by this reference as though fully set forth herein, each and every allegation set forth in paragraphs 1 through 60 above. 62. Plaintiff FITISTICS has performed all of the acts, promises, covenants, and agreements on its part to be performed under the License Agreement at issue herein, except those the performance of which have been excused. 63. Defendants, and each of them, have not performed the terms of the subject contract and have breached the terms thereof in that they have failed to pay the agreed-upon royalty payments, as stated in sections 3 and 4 of the License Agreement, in an amount to be determined at trial, but not less than $1,085,000.00, and failed to honor the terms of Section 7.5 of the License Agreement, to Plaintiff's detriment in an amount to be determined at trial. 64. As a direct and proximate result of Defendants, and each of their breaches of the terms of the subject contract, Plaintiff, FITISTICS, has been damaged, and COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 12 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 12 of 44 Page ID #:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continues to be damaged, in an amount to be determined at trial, but not less that $1,085,000.00, together with interest thereon at the legal rate through and including the present. V COUNT II FRAUD (Against All Defendants) 65. Plaintiff refers to and incorporates by this reference as though fully set forth herein, each and every allegation set forth in paragraphs 1 through 64 above. 66. When STAR TRAC entered into the License Agreement, Website Purchase Agreement, and Employment Contract, STAR TRAC represented that it would use its best efforts to promote, develop and sell FITISTICS docking stations and that it would pay royalties to FITISTICS under the License Agreement if FITISTICS would enter into said agreement. In addition, STAR TRAC made repeated representations that FITISTICS could independently pursue business relationships with other interested companies and continue to promote the FITISTICS brand and technology, subject to the agreed-upon revenue-split in the License Agreement. 67. STAR TRAC made these representations, repeatedly and through a multitude of its officers and employees, knowing that they were false, and intending for Plaintiff to rely on them. 68. Plaintiff did in fact reasonably rely on STAR TRAC's representations as set forth above. Said reliance was reasonable. In reliance thereon, Plaintiff entered in the License Agreement and other agreements set forth herein, and undertook the course of conduct alleged herein. 69. In reality, STAR TRAC's goal was to squeeze as much technology, knowledge, and expertise as possible out of FITISTICS with one hand, while blocking off any and all opportunities for growth and exposure with the other. 70. As outlined in detail above, STAR TRAC's fraud was admitted by its then COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 13 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 13 of 44 Page ID #:13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 President, Mr. Nero, on or about October 15, 2009. 71. As a direct and proximate result of Plaintiffs' reliance on STAR TRAC's repeated misrepresentations, Plaintiff has suffered financial and reputational damage in an amount to be determined at trial, but in excess of $900,000.00. 72. Furthermore, STAR TRAC acted, or failed to act, fraudulently, oppressively, and maliciously in conscious disregard of Plaintiff's rights and with the intent to cause it cruel and unjust hardships, thus warranting punitive damages, in an amount to be determined at trial. VI COUNT III BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (Against All Defendants) 73. Plaintiff refers to and incorporates by this reference as though fully set forth herein, each and every allegation set forth in paragraphs 1 through 72 above. 74. Plaintiff FITISTICS has performed all of the acts, promises, covenants, and agreements on its part to be performed under the License Agreement at issue herein, except those the performance of which have been excused. 75. The License Agreement contains an implied covenant of good faith and fair dealing by and between the parties which prohibits them from engaging in any activity or conduct which would prevent the other party from receiving the benefits of the contract and which required that Defendants use their best efforts to promote, sell and develop the products that were the subject of the exclusive license granted thereby. 76. Defendants, and each of them, have not performed the terms of the subject contract and have breached the terms thereof in that they have failed and refused to market, sell and develop the FITISTICS docking station and in fact have endeavored to prevent said docking station from being sold, marketed and/or developed. 77. Defendants, in acting or failing to act as alleged above, breached the implied covenant of good faith and fair dealing. As a direct and proximate result of COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 14 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 14 of 44 Page ID #:14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants' breach, Plaintiffs have been damaged in an amount to be determined at trial, but in excess of the sum of $900,000.00. VII COUNT IV PATENT INFRINGEMENT (Against All Defendants) 78. Plaintiff refers to and incorporates by this reference as though fully set forth herein, each and every allegation set forth in paragraphs 1 through 77 above. 79. On November 30, 2007, a patent application was filed that resulted in the issuance of US Patent No. 8,118,709 ("the '709 patent") on February 21, 2012. 80. The '709 patent claims priority to provisional application No. 60/872,203, filed on December 1, 2006. 81. The '709 patent pertains to a system for collecting biological, workout, and machine data from an exercise machine and storing the data on a data transfer device for analysis. 82. FITISTICS is the sole owner of the '709 patent. 83. A copy of the '709 patent is attached as Exhibit A. 84. Defendants have and continue to use, manufacture, sell, and/or offer to sell products that infringe, contribute to the infringement of, and/or induce the infringement of the '709 patent. 85. Among the products used, manufactured, sold, and/or offered for sale by Defendant that infringe, contribute to the infringement of, and/or induce the infringement of the '709 patent (herein "the accused products") are: a. Treadmills: i. E-TREX ii. E-TRXi iii. E-TRX b. Cross-Trainers: COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 15 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 15 of 44 Page ID #:15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. E-CTE ii. E-CTi iii. E-CT c. Steppers: I. E-STe ii. E-STi iii. E-ST d. Upright Bikes: I. E-Ube ii. E-UBi iii. E-UB e. Recumbent Bikes: I. E-RBe ii. E-RBi iii. E-RB f. Stairmills: I. E-SMe ii. E-SMi iii. E-SM g. Espinner h. eFitness USB Box i. And/or any units containing part no. 700-0115 and/or 700-0116 j. replacement part nos. 700-0115 and/or 700-0116. 86. On information and belief, Defendants continue to use, manufacture, sell, and/or offer to sell the infringing products throughout the United States and internationally. 87. The eFitness USB Box, part no. 700-0115, and part no. 700-0116, are all designed to be used in combination with an exercise machine to practice the claimed COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 16 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 16 of 44 Page ID #:16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 invention of the '709 patent. 88. The eFitness USB Box, part no. 700-0115, and part no. 700-0116, are not a staple articles and have no substantial non-infringing uses. 89. FITISTICS entered into a license agreement with STAR TRAC, effective May 23, 2008. 90. This license agreement (herein "the License Agreement") was terminated at least as of November 19, 2010. 91. Thus, Defendants no longer had permission to make, use, sell, offer to sell, import, or export any products that practice any claims of the '709 patent at least as of November 19, 2010. Unless enjoined by this Court, Defendants will continue to infringe the '709 Patent. 92. The aforesaid past and continuing actions of Defendants are in violation of 35 U.S.C. 271 et seq. of the Patent Act and has caused and continues to cause Plaintiff irreparable harm warranting the imposition of preliminary and permanent injunctive relief, as well as money damages for past infringement. VIII COUNT V WILLFUL PATENT INFRINGEMENT (Against All Defendants) 93. Plaintiff refers to and incorporates by this reference as though fully set forth herein, each and every allegation set forth in paragraphs 1 through 92 above. 94. At least as early as May, 2008, STAR TRAC was informed that FITISTICS had filed an application for the then-pending '709 patent. 95. Prior to entering negotiations for the License Agreement, STAR TRAC conducted its own inquiry into the validity of the then-pending '709 patent as part of its due diligence. 96. On or about May 23, 2008, Defendants entered into the License Agreement, which included an exclusive license to practice the then-pending '709 patent. After COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 17 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 17 of 44 Page ID #:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 obtaining the license, Defendants brought to market the accused products. 97. In developing the accused products, Defendants copied the software used in FITISTICS' USB docking station and used the copied software in its integrated docking stations. This wholesale adoption of FITISTICS' software demonstrates the strong similarity between FITISTICS' USB docking station and the integrated docking stations in the accused products. 98. The '709 patent issued on February 21, 2012. 99. Defendants had actual knowledge of the '709 patent. Moreover, Defendants knew that the accused products infringe the '709 patent. Unless enjoined by this Court, Defendants will continue to infringe the '709 Patent. 100. The past and continuing acts of Defendants constitute willful infringement of the '709 patent and has caused and continues to cause Plaintiff irreparable harm warranting the imposition of preliminary and permanent injunctive relief, as well as money damages for past infringement. IX COUNT VI COPYRIGHT INFRINGEMENT (Against All Defendants) 101. Plaintiff refers to and incorporates by this reference as though fully set forth herein, each and every allegation set forth in paragraphs 1 through 100 above. 102. FITISTICS has sought copyright protection for an original work titled "Computer program for ensuring secure communications of exercise machine data using a unique encryption key". 103. This copyrighted software (herein "FITISTICS' software") was designed by FITISTICS in or about 2007 to work in conjunction with FITISTICS docking stations to achieve new functionality, including downloading and uploading customized workouts, workout data, and biological data. 104. The originality of FITISTICS' software is well recognized in the fitness COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 18 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 18 of 44 Page ID #:18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 industry and has received national media attention. 105. Effective May 23, 2008, STAR TRAC acquired a license to use FITISTICS' software through the License Agreement. 106. After the execution of the License Agreement, it became apparent that, though STAR TRAC's exercise machines had the hardware to connect to USB ports, STAR TRAC had not developed any of its own software to enable the functionality of FITISTICS' docking station (which used FITISTICS' software), such as uploading and downloading customized workouts, workout data, and biological data. 107. STAR TRAC continues to use FITISTICS' software in all of the accused products, and therefore to reproduce and distribute FITISTICS' software. 108. The License Agreement was terminated on or about November 19, 2010. 109. Thus, Defendants no longer have permission to reproduce or distribute FITISTICS' software at least as of November 19, 2010, yet they continue to do so to this date. Unless enjoined by this Court, Defendants will continue to infringe Plaintiff's well-established intellectual property rights. 110. The aforesaid past and continuing actions of Defendants are in violation of 17 U.S.C. 501 et seq. and has caused and continues to cause Plaintiff irreparable harm warranting the imposition of preliminary and permanent injunctive relief, as well as money damages for past infringement. X COUNT VII TRADEMARK INFRINGEMENT 111. Plaintiff refers to and incorporates by this reference as though fully set forth herein, each and every allegation set forth in paragraphs 1 through 110 above. 112. FITISTICS develops and sells fitness solutions, including, but not limited to, USB docking stations that plug into virtually any cardio-vascular exercise equipment and allow users to record various workout-related data. This data can later be uploaded onto a website, where it can be analyzed and used to proactively monitor COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 19 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 19 of 44 Page ID #:19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exercise and encourage a healthier lifestyle. 113. Since at least September 1, 2007, FITISTICS has continuously used the highly distinctive trademark FITISTICS to market and sell its products throughout the United States and the world. 114. FITISTICS has devoted substantial time, effort, and resources to the development and extensive promotion of the FITISTICS mark and products offered thereunder. 115. The FITISTICS registration is in full force and effect on the Patent & Trademark Office's Principal Register, and gives rise to presumptions in favor of FITISTICS with respect to validity, ownership, and exclusive rights to use the FITISTICS mark throughout the United States. 116. FITISTICS is the sole owner and rights-holder in the FITISTICS mark. 117. STAR TRAC has and continues to infringe the FITISTICS mark by displaying the mark on the displays of the accused products. 118. Additionally, STAR TRAC has and continues to infringe the FITISTICS mark by displaying the mark in the headers of software code running on the accused products. 119. STAR TRAC's unauthorized uses of the FITISTICS mark on the accused products is likely to confuse, mislead, and deceive consumers as to the origin of the accused products. Unless enjoined by this Court, Defendants will continue to infringe Plaintiff's trademark rights. 120. STAR TRAC uses the actual FITISTICS mark, and this mark is displayed on STAR TRAC products that infringe the '709 patent and FITISTICS' software. These infringing products are sold in the United States and throughout the world. 121. FITISTICS has not consented to, sponsored, endorsed, or approved of STAR TRAC's continued and post-license use of the FITISTICS trademark or any variations thereof in connection with the manufacture, marketing, or sale of any products or services. COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 20 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 20 of 44 Page ID #:20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 122. The aforesaid past and continuing actions of STAR TRAC constitute trademark infringement in violation of 15 U.S.C. 1125 and has caused and continues to cause Plaintiff irreparable harm warranting the imposition of preliminary and permanent injunctive relief, as well as money damages for past infringement. XI COUNT VIII INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS (Against All Defendants) 123. Plaintiff refers to and incorporates by this reference as though fully set forth herein, each and every allegation set forth in paragraphs 1 through 122 above. 124. In spring of 2011 FITISTICS was exploring a business relationship with Octane Fitness. Their discussions created an economic relationship that probably would have resulted in an economic benefit to FITISTICS. 125. After a series of discussions, Octane Fitness withdrew from negotiations because it understood (through STAR TRAC's incorrect statements) that FITISTICS no longer owned any of its intellectual property. 126. Plaintiff is informed and believes that STAR TRAC knew of the relationship between FITISTICS and that STAR TRAC's public, and materially incorrect, statements that STAR TRAC owned all of FITISTICS' intellectual property were made in an effort to disrupt FITISTICS' business relationships. 127. STAR TRAC made these false and deceptive statements (namely, that STAR TRAC, not FITISTICS, owned FITISTICS' intellectual property). 128. As a result, FITISTICS' economic relationship with Octane Fitness, and possibly others, was disrupted and FITISTICS was harmed. 129. STAR TRAC's deliberate misstatements regarding the ownership of FITISTICS' intellectual property was a substantial factor in causing harm to FITISTICS. 130. These acts constitute an intentional inference with FITISTICS' economic COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 21 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 21 of 44 Page ID #:21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relationship with, inter alia, Octane Fitness - an economic relationship that probably would have resulted in an economic benefit to FITISTICS. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment and relief against the Defendants, and each of them, as follows: A. For an award of actual damages according to proof herein, but in excess of $1,085,000.00; B. For interest at the legal rate on all damages awarded herein; C. For punitive and examplary damages according to proof; D. For a judicial determination that the '709 Patent is infringed by Defendants; E. For a judicial determination that the '709 Patent is valid and enforceable; F. For a judicial determination that Defendants' infringement of the '709 Patent is willful; G. That preliminary and permanent injunctions be issued against Defendants for, inter alia, their continued and ongoing infringement of the claims of the '709 patent, the FITISTICS trademark, and FITISTICS' copyrighted material by Defendants and their parents, subsidiaries, officers, directors, employees, affiliates, representatives and agents, and all those acting in concert with or through Defendants, directly or indirectly, including, but not limited to, distributors, customers, and other retailers; H. That an accounting be had for damages caused to Plaintiff by Defendants' respective acts in violation of the U.S. Patent Act (35 USC 1, et seq.) together with pre-judgment and post-judgment interest; I. That damages be awarded in accordance with the U.S. Patent Act, 35 USC 1, et seq., and in no event less than a reasonable royalty to be affixed by the Court after due and careful consideration of evidence related to such damages; J. That any damages awarded in accordance with any prayer for relief be enhanced and, in particular, trebled in accordance with the U.S. Patent Act (35 USC 1, et seq.) for Defendants' respective acts which are found to be willful acts of patent COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 22 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 22 of 44 Page ID #:22 1 infringement; 2 K. For a declaration that this case is exceptional pursuant to 35 U.S.C. 285 3 and an award of attorney's fees and costs in this action is appropriate; and 4 L. Such other and further relief as this Court shall deemjust and proper. 5 Dated: October 12, 2012 6 LAW OFFICE OF TIMOTHY L. JOENS A Professional Corporation 7 8 9 10 11 12 13 DEMAND FOR TRIAL By JURY The Plaintiff hereby demands a TRIAL BY JURY on all issues so triable. Dated: October 12, 20 12 LAW OFFICE OF TIMOTHY L. JOENS 14 A Professional Co oration 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, ETC. 23 ~ .. , . Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 23 of 44 Page ID #:23 EXHIBIT A Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 24 of 44 Page ID #:24 111111 1111111111111111111111111111111111111111111111111111111111111 (12) United States Patent McKirdy et a1. (54) SYSTEM AND METHOD FOR PROCESSING INFORMATION (75) Inventors: Sean McKirdy, Newington, CT (US); Robert Nutini, Suffield, CT (US) (73) Assignee: Fitistics, LLC, Newington, CT (US) ( "') Notice: Subject to any disclaimer, the term ofthls patent is extended or adjusted under 35 U.S.C. 154(b) by 0 days. (21) Appl. No.: 11/998,766 (22) Filed: (65) Nov. 30, 2007 Prior Publication Data US 2008/0153670 Al Jun. 26, 2008 Related U.S. Application Data (60) Provisional application No. 60/872,203, filed on Dec. 1,2006. (51) Int. Cl. A63B 71100 (2006.01) (52) U.S. Cl. . ............................................... 482/1; 482/8 (58) Field of Classification Search .................. 48211, 8, (56) 48214-7,9; 600/520 See application file for complete search history. References Cited U.S. PATENT DOCUMENTS 6,013,007 A '" 6,902,513 Bl 7,070,539 B2 7,128,693 B2" 7,156,808 B2 7,166,064 B2 112000 Root et aI. . ....................... 48218 6/2005 McClure 7/2006 Brown et aI. 10/2006 Brown et aI. . .................... 48218 112007 Quy 112007 Watterson et aI. 200210045519 Al of< 4/2002 Watterson et aI. . ............. 482/54 202 I Obtaining exercise related data for at least one user Processing and/or analyzing the exercise related data to generate resultant data \ 206 US008118709B2 (10) Patent No.: (45) Date of Patent: US 8,118,709 B2 Feb. 21, 2012 4/2004 Brown et aI. 5/2004 Corbalis 8/2004 Quy 112005 Clark 212005 Raniere 212005 Ku 2004/0077462 Al 2004/0092367 Al 2004/0162466 Al 2005/0015281 Al 2005/0026123 Al 2005/0044210 Al 2005/0272561 Al '" 2006/0122474 Al 2006/0205566 Al 2006/0217231 AI'" 2006/0240947 AI" 2006/0252602 Al 2007/0032344 Al 2007/0161459 AI" 2008/0096726 AI" 2008/0108481 AI" 1212005 Cammerata ....................... 482/8 6/2006 Teller et ai. 9/2006 Watterson et aI. 9/2006 Parks et aI. . ...................... 482/3 1012006 Qu .................................... 482/1 1112006 Brown 212007 Guo 7/2007 Watson ............................. 48218 4/2008 Riley et al . ........................ 482/8 5/2008 Limma et at ...... ... ............ 482/8 FOREIGN PATENT DOCUMENTS EP 1 510 175 Al WO WO 2004/054660 Al WO WO 2006/099617 A2 >I< cited by examiner 3/2005 7/2004 9/2006 Primary Examiner - .6Jlana Lewin (74) Attorney, Agent, or Firm - Steven M. McHugh (57) ABSTRACT A system for processing biological data is provided and includes a monitoring device configured to receive biological data responsive to a living being. The system also includes an interface device communicated with the monitoring device to receive the biological data. Furthermore, ~ e system includes a data transfer device, configured to receive the biological data from the interface device and communicate the biologi- cal data to a processing device for processing. Additionally, a method for processing biological information is provided, wherein the method inCludes receiving biological informa- tion from a monitoring device responsive to a first party and responsive to an exercise regime and processing the biologi- cal information to generate resultant information responsive to at least one physical characteristic ofthe first party. 15 Claims, 8 Drawing Sheets 204 200 ./ ~ Transferring the exercise related data to the predetermined website Providing data to personal trainer/physician ( 208 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 25 of 44 Page ID #:25 u.s. Patent N o .- ""'" Feb. 21,2012 c C C C ~ '"'" . l!> ~ ~ I ~ I N .- ~ I Sheet 1 of8 US 8,118,709 B2 / .- .-- to CJ C [] '\ c 0 ""'" fi5", to II r- -, I I I I I I I I I I I ~ I 1551 I I L--\ _____ --.J o to ~ '"'" C,!) ~ Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 26 of 44 Page ID #:26 u.s. Patent Feb. 21, 2012 Sheet 2 of8 US 8,118,709 B2 102 -, 104 ..J 116 FIG. lB 104 102 116 FIG. Ie 102 106 102 116 FIG. lD Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 27 of 44 Page ID #:27 EXERCISE DATA DIETARY GUIDANCE I VIRTUAl RACE PEER TO PEER EVENTS COMMUNICATION VIA FORUMS/CHAT ROOM I FITNESS CLUB HEALTH CARE HEALTI-I RELATED TRAINER INPUT PROVIDER ONUNE ADVERTISING AND GUIDANCE INCENTIVE SPECIRe TO USERS NEEDS I
WWW.FlTlSTICS.COM WORK OUT ROUTINE CONRGURING I EXERCISE MACHINE AUTOMATIC EMAILS TO RANKINGS EXERCISE DATA USERS REMINDING TI-lEM REWARD SYSTEM (LOCALLY & TRACKING ANALYSIS NATIONALLY) OF THEIR PROGRESS AND VIA GRAPHS BASED ON TELLING THEM RACE RESULTS PERFORMANCE oUTPUTSffioM WWW.RTISTICS.COM FIG. IE
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~ a ~ a ~ N I-"" " N Q I-"" N 00 =- & QO o ...... QO d r:F1 QC) ~ ~ QC) ~ \C> c:; ~ Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 33 of 44 Page ID #:33 US 8,118,709 B2 1 2 SYSTEM AND METHOD FOR PROCESSING INFORMATION CROSS-REFERENCE TO RELATED PATENT APPLICATIONS the fitness club. Still yet another undesirable characteristic involves the lack of functionality of the existing systems and its ease of use. For example, one such system employs a computerized kiosk that requires the user of the exercise The present application is related to and claims priority of U.S. Provisional Patent Application Ser. No. 60/872,203, entitled System and Method for Processing Information, filed on Dec. 1, 2006 and is incorporated by reference herein in its entirety. 5 equipment to manually input their work out data. Whereas another such system employs the use of an key that can only interact with a specific line of exercise equipment. Thus, if the user were to use exercise equipment that was not able to interface with the electronic key, the user would need 10 to input their exercise data manually using a computerized kiosk. FIELD OF THE INVENTION This disclosure relates generally to the processing ofinfor- mation and more particularly to a system and method for obtaining, processing and implementing exercise related information. Unfortunately, all of the existing systems require the user of the exercise equipmentto either use some unique device to 15 interface with a specific machine orto manually interact with a stand-alone computer terminal where the data being entered is prone to data entry errors andlor misuse. BACKGROUND OF THE INVENTION 20 For many years, people have recognized the health benefits of exercising on a regular basis. As a result, a whole industry dedicated to physical fitness and exercise was created and has grown into a multi-billion dollar a year industry. Areas of this 25 industry, which includes personal trainers, fitness clubs, nutrition based products, exercise gear and fitness competi- tions, tend to complement each other and work hand in hand with each other to help individuals achieve an effective physi- SUMMARY OF THE INVENTION A system for processing biological data is provided and includes a monitoring device configured to receive biological data responsive to a living being. The system also includes an interface device communicated with the monitoring device to receive the biological data. Furthermore, the system includes a data transfer device, configured to receive the biological data from the interface device and communicate the biologi- cal data to a processing device for processing. An interface device for facilitating communication ofbio- logical data between a monitoring device and a data transfer device is provided, wherein the interface device includes a first communication port configured to communicate the interface device with the monitoring device to allow the trans- fer of data there between. Additionally, the interface device includes a second communication port configured to commu- nicate the interface device with the data transfer device to allow the transfer of data there between. Furthermore, the interface device includes a processing device in electrical communication with the first communication port and the second communication port, wherein the processing device is configured to facilitate transfer of data between the first com- munication port and the second communication port. A method for processing biological information is pro- vided, wherein the method includes receiving biological cal fitness regimen. For example, a large number of fitness 30 clubs employ nutritionists and personal trainers that are readily available to advise their fitness club members, wherein the basic services that these personal trainers per- form are primarily three fold. First, the trainers develop an exercise regime tailored to individual clients and advise their 35 clients on how to safely and effectively exercise. Second, the trainers track the exercise performance of the client over the duration of the training period and analyze the client's exer- cise performance data to identifY where the client is or is not showing'improvements. The trainer ml1-Y then adjust the exer- 40 cise regime of the client to maximize the benefit to the client. Third, the trainer provides motivation to their client, which ultimately helps the client to maintain their exercise regime. This not only aids the client in maintaining a healthy lifestyle, but also helps the fitness club retain their membership. 45 information from a monitoring device responsive to a first party and responsive to an exercise regime and processing the biological information to generate resultant information responsive to at least one physical characteristic of the first party. Unfortunately however, because personal trainers are expensive to employ, most fitness clubs only have one or two trainers on staff to assist hundreds of members and as such, the on-staff trainers are typically not able to spend a signifi- cant amount of time with each individual member. Accord- 50 ingly, in order for the member to obtain the full benefit of their club membership, the member must hire the trainer outside of their health club membership or they must analyze their per- formance and adjust their exercise regime using other meth- ods. While there are systems currently available that provide 55 some data tracking services and motivational tools for exer- cise, these systems include several undesirable characteris- tics. One such characteristic involves the availability and cost of the system. For example, current systems are not readily available to the majority of commercial gyms or to the indi- 60 vidual because they are expensive and require a high capital investment. Another such characteristic involves the compat- ibility between the existing systems and the exercise equip- ment. For example, the ability of the existing systems to connect to a typical workout machine is limited due to com- 65 munication and functional issues between the tracking sys- tem and the exercise machine, as well as due to the layout of BRIEF DESCRIPTION OF DRAWINGS The foregoing and other features and advantages of the present invention will be better understood from the follow- ing detailed description of illustrative embodiments, taken in conjunction with the accompanying drawings in which: FIG. lA illustrates one embodiment of a system for pro- cessing exercise information, in accordance with the present invention FIG. IB illustrates a side view of one embodiment of the docking station in FIG. I, in accordance with the present invention; FIG. lC illustrates a rear view of one embodiment of a docking station in FIG. 1. FIG. ID illustrates a front view of one embodiment of a docking station in FIG. 1, in accordance with the present invention; Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 34 of 44 Page ID #:34 US 8,118,709 B2 3 FIG. 1E is a block diagram illustrating one embodiment of the overall capability of the system of FIG. 1, in accordance with the present invention; FIG. IF illustrates a second embodiment of the present invention, wherein the docking station is integrated with an 5 exercise device. FIG. 2 is a block diagram illustrating a first embodiment of the method of the present invention; FIG. 3 is a block diagram illustrating the interaction of the system of FIG. 1, in accordance with the method of FIG. 2; 10 FIG. 4 is a block diagram illustrating a second embodiment of the method of the present invention; 4 nication with an exercise device (or monitoring device) 110 via a serial communication link 112 between the machine interface port 104 and the exercise device 110. Accordingly, when exercise data is generated by the user interacting with the exercise device 110, the exercise data may be transferred to the docking station 102 via the serial communication link 112. This exercise data may then be stored as discussed fur- ther hereinafter, at least temporarily, in the docking station storage device 108. It is contemplated that the docking station storage device 108 may be any type of storage device suitable to the desired end purpose, such as RAM and/or a flash storage device that is disposed intemal and/or external to the docking station 102. Additionally, the user interface port 106 may be a USB port FIG. 5A is a block diagram illustrating the interaction of the system of FIG. 1, in accordance with the method of FIG. 4; FIG. 5B is a functional block diagram illustrating the inter- action of the system of FIG. 1, in accordance with the method of FIG. 4; 15 to allow the user to easily transfer the exercise data stored by the docking station storage device 108 to a portable USB flash drive 114. It should be appreciated that although information transfer is discussed hereinabove with regards to information FIG: 6 is a block diagram illustrating a third embodiment of the method of the present invention; 20 FIG. 7 is a block diagram illustrating the interaction of the system of FIG. 1, in accordance with the method of FIG. 6; FIG. 8 is a block diagram illustrating a fourth embodiment of the method of the present invention; and FIG. 9 is a block diagram illustrating the interaction of the 25 system of FIG. 1, in accordance with the method of FIG. 8. DETAILED DESCRIPTION OF THE INVENTION In accordance with the present invention, a system and 30 method for processing information is discussed herein as being applied to exercise and/or health related information. However, it should be appreciated that the present invention may also be applied to other types of information as well, including educational progress information, financial 35 progress information and any other type ofinformation suit- able to the desired end purpose. As discussed in further detail hereinafter, the present invention allows exercise information to be accurately obtained., stored and processed by providing an affordable data tracking system that offers universal con- 40 nectivity to common exercise machines that allow for data generation and transfer, such as exercise machines that imple- ment CSAFE data transfer protocols. The present invention also enables the accurate and efficient transfer of exercise information by allowing the user of the exercise machine to 45 use common storage devices, such as a USB flash drive device, to capture their personal workout data which can then being transferred from the exercise device 110 to the portable USB flash drive 114 via the docking station 102, it is contem- plated that information may also be transferred in the oppo- site direction, i.e. from the USB flash drive 114 to the exercise device 110 via the docking station 102. And as such, the USB flash drive 114 may be used to program characteristics of the exerCise device 110, such as functionality and display. Accordingly, the present invention advantageously allows information to be transferred between the docking station 102 and the exercise device 11 O. Furthermore, although the dock- ing station 102 is disclosedherein as being connected with the exercise device 110 via a wired serial communication link 112, it is contemplated that the docking station 102 may be communicated with the exercise device 110 via any method suitable to the desired end purpose, such as a wireless com- munication link. Similarly, although the docking station 102 is disclosed herein as being connectable to the portable USB flash drive 114 via user interface port 106, the docking station 102 may also be communicated with the portable USB flash drive 114 via any method suitable to the desired end purpose, such as a wireless communication link using any technology suitable to the desired end purpose, including but not limited to Bluetooth, RFID, Infrared, Microwave, RF and Cellular technology. Additionally, at least one of the docking station 102 and the exercise device 110 may include software that conforms to a desired communications protocol for transfer- ring information, such as user biological data, exercise per- formance data and/or exercise device data, between the exer- cise device 110 and the docking station 102. For example, in accordance with the present invention the docking station 102 may include a processing device 109, be uploaded to a database driven website using minimal user interaction. Furthermore, the present invention allows for the efficient processing and display of the data in a user-friendly format (graphical or non-graphical), thus allowing a user or personal trainer to track and compare the workout data with the statistics of other users. Additionally, the present inven- tion is also capable of offering virtual online competitions, such as races or weight lifting, where a plurality of users can submit their best performance data for a competition event, making them eligible for rewards in the form of points, prizes, 50 such as a microprocessor or microcontroller, and appropriate software/commands, such as embedded CSAFE commands, working in conjunction with software/firmware and drivers residing on the processing device that has the ability to com- municate with a variety of exercise devices 110, such as, but or coupons from website sponsors. Referring to FIG. lA, one embodirnent ofa system 100 for processing exercise information in accordance with the present invention is illustrated. The system 100 includes an interface device or docking station 102 having a machine interface port 104 and a user interface port 1 06 communicated with a docking station storage device 108, wherein the machine interface port 104 is an shown as an RJ45 serial communications port and the user interface port 106 is shown as a USB port. The docking station 102 is in signal commu- 55 not limited to commercial/residential quality exercise and cardio fitness machines; retrofit hardware devices used with exercise equipment (including, but not limited to, road bicycles, rowing machines, mountain bikes, 'spin class' bikes); strength training equipment fitted with electrome- 60 chanical devices capable of translating the act of using free weights and other strength machines into electronic data; and existing fitness tracking hardware and/or software. It should be appreciated that any and all co=unications discussed hereinabove to the docking station 102 may be 65 made via any connection (and/or information transfer) device and/or method suitable to the desired end purpose, such as via wireless communications and/or serial RJ45IRS232 serial Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 35 of 44 Page ID #:35 US 8,118,709 B2 5 6 ports currently existing on CSAFE compatible machines. The other method/device) designed to erase workout files as the system may also incorporate other communication protocols, files are uploaded to prevent the flash drive from storing old including but not limited to USB port protocols, WI FI con- exercise data. This would help to maintain the integrity ofthe nection protocols, radio frequency (i.e. RPID, etc), micro- exercise data by allowing the activity on the USB flash drive wave, infrared., fiber optic, and/or Blue Tooth protocols. As 5 114 to be tracked. Additionally, the website may include a such, any communications protocol suitable to the desired unique virtual online competition section that registered users end purpose may beused to transfer exercise data between the can use to compete against each other. This competitive sec- docking station 102 and the exercise device 110, such as via tion of the website may be specific to certain groups, such as the CSAFE protocol. the type of machine (treadmill, stationary bike, spin bike, Once the exercise data has been transferred to the docking 10 elliptical machine, cross trainer, rower, etc), age of person, station device 102, the user may then transfer the stored size of person, physical attributes of person, sex of person, exercise data from the docking station device 102 to the health status of person, etc. Moreover, the competitive section portable,-temporary . storage device 114, i.e. the USB flash ,may include online competitive events, such as online racing drive. This may be accomplished by inserting the USB flash events that the users may pre-register for, wherein top place drive 114 into the user interface port 106, wherein once the 15 finishers in competitions may receive prizes and rewards. USB flash drive 114 is inserted into the user interface port The website may also provide the services of health, 106, the exercise data may begin automatically (or manually) dietary and exercise professionals for consultations to further transferring between the docking station device 102 and the help the usermeettheir fitness and health goals. Additionally, USB flash drive 114. It is contemplated that, although the the website may provide motivation to the user to continue invention is discussed herein in terms of transferring data 20 exercising through the use of data tracking, competition, between devices via a direct hardware interface, wireless rewards, health care benefits, dietary information, and com- communication interfaces may also be used as desired. It munity membership. Accordingly, the present invention should be appreciated that the exercise data may be encrypted advantageously allows a user to capture exercise data, such as using software encryptionalgorithm(s) to prevent a user from workout statistics, biological information, machine perf or- fraudulently manipulating their exercise data. Additionally, 25 mance information, etc, from a plurality of exercise devices bio-metric security devices (as well as other types of security 110 and store this data onto one convenient memory device devices/methods, such as USB fingerprint flash drives) may for later processing and/or analysis. It should be appreciated also be used to further enhance and protect the integrity of the that the present invention allows other information to be exercise data and/or system functionality. This capability extracted as well, including but not limited to, machine make allows for proof of exercise with a high level of integrity and 30 and model, machine performance information (measurement confidence. accuracy, calibration, etc.) speed., time elapsed during work- Once the user has completed their exercise regime, the user out, preset program used., date, calories burned., heart rate, would transfer or upload their exercise data from the USB distance, elevation, body fat % of user, and age/weight of user. flash drive 114 to a processing hub 111, such as a predeter- For example, one example of information that may be mined website maintained and operated by an administrator .. 35 extracted and communicated to the website may include: The predetermined website may then process and/or analyze Example: LifeFitness, 93 Ci, 5 mph, 34 minutes, Speed the exercise data so that the exercise data can be viewed in a training, 10-16-06, 2500 cal, 120 bpm, 4 miles, ilia, desired format, such as a graphical manner and/or a tabular 12%,45/185 lbs. format. This upload may be accomplished by the user insert-Accordingly, the website may allow for the comparison of ing the USB flash drive 114 containing the exercise data into 40 data across mUltiple different exercise devices 110 and may the USB port on their computer (standard on most computers) show registered users which exercise devices 110 provide and uploading the exercise data to the predetermined website. them with the best results. Furthermore, the website may This upload may be manually implemented by the user or automatically email the registered user with updates on their automatically implemented via software installed on the USB weekly, monthly, quarterly, and/or yearly progress. This feed- flash drive 114 or via software installed on the user's com- 45 back may include results or status of race events that users puter. Once the exercise data is uploaded to the predetermined have entered into as well as information on financial savings website, the exercise data may also be processed and/or ana- on health products and services to which they have asked to be lyzed in order to implement the method of the invention as kept aware. Additionally, the exercise data may be scanned to discussed further hereinafter. determine if the user has any health issues that the user may be It is contemplated that the website administrator would 50 unaware of and if so, may inform the user of such results. The offer services to a user to enable the user to view their indi- website may post local and national rankings for users based vidual performance trends, compare their statistics to other on a predetermined characteristic, such as may be determined members and compete with other members via virtual com- by profile information of registered users in one club or in petitions, such as biking, running, rowing, elliptical, and many different clubs. Thus, the website would show the users other races where winners may be rewarded. For example, the 55 how they compare to other members of their fitness clubs as user may connect the USB flash drive 114 contaiuing the well as members of other clubs using the system. This infor- exercise data to a data transfer device or computing device mation may provide another motivational tool for the user to 109 having an internet connection. As discussed herein, an continue exercising. One example of such information being executable program may be included on the computing displayed may include: device 109 (or USB flash drive 114) which may automatically 60 Example: Leader boards for most calories burned, miles cause all or some specific files from the USB flash drive 114 run, steps climbed., fastest mile, in a week, month, year, to transfer to an online database associated with the website etc hosted by the supervising body. Allor some of the data may Accordingly, in accordance with the present invention the then be displayed to the user in a desired format, i.e. graphi- website may offer dietary advice and tools that allow users to cal, tabular, etc. In one embodiment, it is contemplated that 65 input and track their daily, weekly and monthly diets and the exercise data that is uploaded to the website maybe erased receive recommended diet plans to help them reach their from the USB flash drive 114 using a software program (or personal fitness and health goals. Basic wellness information Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 36 of 44 Page ID #:36 US 8,118,709 B2 7 8 may also be provided by the website as well as an in depth in operational block 202. The exercise related data may then welIness analysis of the users physical conditioning depend- be transferred to the predetermined website, as shown in ing on the amount of dietary input the users contribute. Addi- operational block 204. The exercise related data may then be tionally, the invention may provide the user with the latest processed andlor analyzed to generate resultant data, as information on certain topics based upon predetermined cri- 5 shown in operational block 206. This resultant data may then teria. For example, a heart patient may receive the latest be communicated to and used by a personal trainer andlor a information on research andlor heart healthy exercises and physician to monitor andl or adjust the user's exercise perfor- foods. Moreover, the invention may provide a forum section mance, health status andlor exercise regime, as shown in that will enable people to discuss their personal opinions on operational block 208, as discussed further hereinafter. For fitness equipment and industry trends, exercise techniques, 10 example, the system may actively (continuous or semi-con- diet plans, etc. Additionally, a peer-to-peer meeting section tinuous monitoring) or passively (monitoring triggered by an may be provided to allow people to find others in theirlocal or event or threshold level) record a user's parameter (such as state area who share similar interests, such as physical fitness heart rate) through either embedded sensors on the exercise and healthy life style. As such, the invention may create an device 11 0 itself or through the user wearing a wireless moni- online community of users who share a common interest 15 tor (such as a heart rate strap). This data may then be trans- (working toward a healthy lifestyle) and provide an excellent ferred andlor displayed over the duration (or limited desired platform for those people to meet and form relationships with period) of the workout, allowing the user to share this infor- one another. mation with their primary care physician, cardiologist or Inaccordancewith the present invention, FIGS.1B, 1C and other health professional. This information may be used to ID illustrate one embodiment of a docking station 100 and 20 help treat the user, such as in the diagnosing of condition FIG. IE illustrates an overall capability of the invention. As andlor prescribing of medications for diseases (for example, can be seen, docking station 100 may include a mounting hypertension, diabetes, irregular heart beat, COPD, etc.). This portion 116 configure to securely associate with an exercise information may also be used to help the user andlor user's device 110. personal trainer to better monitor their physical improve- Referring to FIG. IF, a second embodiment of a system 600 25 ments, or lack of improvements over a desired period oftime. for processing exercise information in accordance with the It should also be appreciated that operational block 202 and present invention is illustrated and is shown as a completely operational block 204 may be accomplished as described in wireless system 600, but may be a partially wireless system. greater detail hereinabove with regards to system 100. Alter- In this embodiment, the docking station 602 is shown as being natively, it is contemplated that other methods andlor devices integrated into the exercise device 610, but may be separate 30 for obtaining and transferring exercise related data to the from the exercise device 610 as shown in embodiment 100. In predetermined website may also be used. Referring to FIG. 3, this embodiment, the USB flash drive 614 may communicate a block diagram illustrating one embodiment of the intercon- wirelessly with both the exercise device 610 via integrated nectivity between the user, the exercise device 110 and the docking station 602 and the computing device 611 which may subject matter expert is shown. furthercommunicatewiththewebsiteeitherwirelesslyorvia 35 In accordance with the present invention, this exercise a hardwired connection. Additionally, other configurations related data and the resultant data may be used by a subject are contemplated as well, such as a system that as a user matter expert (such as a personal trainer, physical therapist approaches the machine, the USB flash drive 614 and the andlorphysician) to maximize the health benefit to the user as exercise device 610 may automatically communicate and described hereinafter. Once the user has uploaded their exer- perhaps cause the exercise machine 610 to automatically get 40 cise data from the USB flash drive 114 to the predetermined ready or configure itself for a particular user or exercise website, the exercise data might be processed and may be regime, which may be created by a user, a fitness or health displayed along with the resultant data to the user in a desired care professional or other entity. If the user (or other entity) format, such as a graphical andlor a tabular format. The raw wants to create or modify an exercise regime, the system exercise data and/or the resultant data inay also be commu- would include software to allow this function to be imple- 45 nicated to a subject matter expert who can then use this data mented. It is also contemplated that the exercise device 610 to spot any potential health problems, develop a suitable may communicate directly with the computing device 611 via exercise regime andlor adjust an existing exercise regime to wired or wireless connection, negating the need for use of the help maximize the progress ofthe user. For example, if after USB flash drive 614. reviewing the exercise data and the resultant data the subject In accordance with the present invention, as disclosed 50 matter expert wanted the exercise device 11 0 to have specific herein the term exercise device is meant to include any type of settings that are tailored to the user, the modified settings may device that generates, obtains andlor monitors biological be downloaded from the website onto the USB flash drive 114 information, such as a cardio-machine, an elliptical trainer, a for transfer to the exercise device 110 prior to the user work- heart rate monitor, a blood pressure monitor, etc. Accord- ing out. Accordingly, an exercise regime may be tailored or ingly, the present invention contemplates being used for any 55 adjusted by the subject matter expert by allowing the subject type of exercise such as biking, running and swimming, that matter expert to modifY the settings of the exercise device 110 does not use stationary fitness equipment. Additionally, the responsive to the raw exercise data andlor resultant data. present invention contemplates being used for any living For example, consider the case where a user uploads their being, such as a pet that is under the care of a veterinarian. exercise data to the predetermined website from the USB Furthermore, it is contemplated that some or all of the pro- 60 flash drive 114. When the exercise data is processed andlor cessingmay be conducted by the computing device 109,611 analyzed and reviewed by the subject matter expert it is andlor by the interface device 102 prior to being communi- noticed that the user is overstressing the heart muscle while cated to the website for analysis or further processing. exercising on a particular exercise device 110, such as the Referring to FIG. 2, a block diagram illustrating a first cardio device. The subject matter expert may then inform the embodiment of a method 200 for processing exercise related 65 user via the website that they are overstressing their heart information is shown, wherein the method 200 includes muscle during tins exercise. Additionally, the subject matter obtaining exercise related data for at least one user, as shown expert may also receive notification from the website of any Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 37 of 44 Page ID #:37 US 8,118,709 B2 9 10 irregularities or anomalies in the user's data that may indicate computer or gaming device (Le. Playstation, Gameboy, a health condition worth noting, such as an unknown irregular X-box) and see their personal exercise affect the attributes or abnormal heartrhythm or a user satisfying or not satisfying (physical and/or performance) of their video game character certain criteria for their prescribed exercise regime. Tbis in the 'game world'. Accordingly, as the conditioning of the would allow for a quicker, more immediate opportunity for a 5 user increases or decreases,. the conditioning of the video doctorortrainerto address any potential problem. The subject game character would similarly increase or decrease. Tbis matter expert may then advise the user to see their physician would also provide another motivating factor for the user to and/or download desired settings for the cardio device to the continue exercising by giving the user a competitive advan- user's USB flash drive 114 to adjust the users exercise rou- tage against other players or against computer controlled tine. The User would then be instructed to transfer these new 10 opponents. device settings to the exercise de\!i'"lleIiNOwia:,the:1:JSB-'flash::.:''.':':'. ReferfingtO FIG.' 6; a block' diagram illustrating a third' drive 114 prior to eXercising on the cardio device. embodiment of a method 400 for processing exercise related As an extension, the invention may enable a user to pre- information is shown, wherein the method 400 includes load a complete or partial custom training program to the obtaining exercise related data for at least one user, as shown USB flash drive 114 and program the specific exercise 15 in operational block 402. The exercise related data may then devicestheyuseduringtheirexercisesession.Forexample,a be transferred to the predetermined website, as shown in custom weekly/monthly fitness regimen may be pre-loaded .. operational block 404. The exercise related data may then be onto the USB flash drive 114 and the user will follow that processed and/or analyzed to generate resultant data, as custom regimen on the corresponding machine types until the shown in operational block 406. This exercise related data regime has been completed. This would advantageously 20 and resultant data may then be provided to advertisers and/or allow a personal trainer to customize an entire or partial used to target specific advertisements to the user, as shown in exercise regime and access the user's exercise data as desired operational block 408 and as discussed further hereinafter. to monitor the user's progress and offer guidance. This exer- Referring to FIG. 7, a block diagram illustrating one embodi- cise data can also be used to provide feedback to health club ment of the interconnectivity between the user, the exercise facilities regarding which machines are the most popular and 25 device 110 and the gaming environment is shown. which machines offer the best workout. In accordance with the present invention, the method 400 Referring to FIG. 4, a block diagram illustrating a second disclosed herein may allow for advertisements to be tailored embodiment of a method 300 for processing exercise related to a registered user's personal profile information, workout information is shown, wherein the method 300 includes regime or health conditions. For example, a 35 year old male obtaining exercise related data for at least one user, as shown 30 in good physical condition may receive advertisements for in operational block 302. The exercise related data may then golfing, running and waterskiing, while a 23 year old male in be transferred to the predetermined website, as shown in good physical condition may receive advertisements for operational block 304. The exercise related data may then be mountain bikes and rollerblades. Additionally, a 40 year old processed and/or analyzed to generate resultant data, as male in moderate to poor physical condition may receive shown in operational block 306. This exercise related data 35 advertisements for health related products targeted for his and resultant data may then be introduced to a gaming envi- age, social class and/or education. Since the advertisements ronment, such as a PC game or an online gaming provider, are geared towards the information in the user profile, this where the physical attributes of the user can be carried over to provides an excellent opportunity for companies to target the the virtual character in the game, as shown in operational advertisements of their goods and services to specific markets block 308 and as discussed further hereinafter. Referring to 40 in various industries. Moreover, the website may provide a FIGS. SA and 5B, block diagrams illustrating one embodi- section where certified personal trainers and otherprofession- men! of the interconnectivity between the user, the exercise als can interact with users to discuss topics, answer questions device 110 and the gaming environment are shown. and offer suggestions to users on how to safely and effectively In accordance with the present invention, the obtained exercise and diet. Similarly, the website may also provide a exercise related data and/or resultant data may be used to 45 section where certified personal trainers and otherprofession- augment or individualize a character in a gaming environ- als can interact with other trainers/professionals to discuss ment involving the user as described hereinafter. In this case, topics, answer questions or get advice. the website may provide the user (or interact with a separate Referring to FIG. 8, a block diagram illustrating a fourth entity to provide the user) with a gaming environment and embodiment of a method 500 for processing exercise related modelthecharacteristicsofplayerinthegamingenvironment 50 information is shown, wherein the method 500 includes using the raw exercise related data and/or resultant data For obtaining exercise related data for at least one user, as shown example, a virtual character within the game may have the in operational block 502. The exercise related data may then same physical limitations or strengths as the user, such as be transferred to the predetermined website, as shown in height, weight, athletic ability and health problems. Simi- operational block 504. The exercise related data may then be larly, the gaming environment itself may also be modeled in 55 processed and/or analyzed to generate resultant data, as response to the raw exercise related data and/or resultant data. shown in operational block 506. This resultant data may then For example, if the user is not proficient at running, the be used by an insurance provider to monitor the exercise gaming environment may include a lot of running. It is con- habits, exercise perfonnance, health status and/or exercise templated that this feature may also be ported over to personal regime of a user insured by or applying for insurance by the gaming devices or virtual competitions sponsored by the 60 insurance provider, as shown in operational block 508 and as website. discussed further hereinafter. Referring to FIG. 9, a block Accordingly, a video game such as a role playing game, diagram illustrating one embodiment of the interconnectivity sports game, fighting game, shooter/action game, etc, may between the user, the exercise device 110 and the insurance use the raw exercise data and/or resultant data to drive the provider is shown. attributes of a character andlor environment created inside a 65 In accordance with the present invention, it is contemplated 'game world' (i.e. cyberspace). For example, in one embodi- that the system of the present invention may make selected ment a user may connect to the gaming en.vironment via a infonnation about a user available to the user's health care Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 38 of 44 Page ID #:38 US 8,118,709 B2 11 12 and/or insurance provider as proof to the insurer that the user CSAFE compatible. Furthennore, although this invention is is mdeed .. .. , ,,' ,q.esc;rii:l herein as ):he, CSAFE prO,tocol.commands to of the user. Accordingly, this system may be used by the capture pertinent workout data and 1ransfer that data to the health care and insurance industry, (for example health insur- USB flash drive, any protocol command structure suitable to ance providers) as a replacement for the honor system when 5 the desired end purpose may be used. tracking the exercise history of individuals. This may allow While the invention has been descn'bed with reference to insurers the ability to verifY that the insured is actually exer- an exemplary embodiment, it will be understood by those cising on a consistent basis and that the insured is actua1Jy skilled in the art that various changes may be made and following a prescribed exercise regimen. Furthennore, this equivalents may be substituted for elements thereof without system may also provide proof that the insured is maintaining 10 departing from the scope of the invention. In addition, many a health club membership, showing the frequency and level of modifications may be made to adapt a particular situation or effort the insured is demonstrating. The insurer may then use material to the teachings of the invention without departing this infonnationas a basis (at least partially) for assessing the from the scope thereof. Therefore, it is intended that the insurance risk level and thus detenniningthepremiumsofthe invention not be limited to the particular embodiment dis- insured. For example, some companies and health care pro- 15 closed as the best mode contemplated for carrying out this viders have implemented health incentive plans that are honor invention, but that the invention will include all embodiments driven and that require employees to manually enter exercise falling within the scope of the appended claims. Moreover, data: into'a database. These providers may offer cash incen- unless specificaIJy stated any use of the tenns first, second, tives in the fonn of monetary contributions deposited into the etc. do not denote any order or importance, but rather the employees health/flexible spending accounts. The present 20 tenns first, second, etc. are used to distinguish one element invention can be used to help prevent fraud by providing a from another. An apparatus and method for processing exer- system and method which results in user and exercise data cise information is provided, wherein the method includes having a high degree of confidence and integrity. obtaining exercise information, processing exercise informa- As described above, the methods and embodiments tion responsive to predetennined goals to generate resultant described hereinabove and in the several figures may be 25 infonnation and displaying the resultant infonnation. embodied in the fonn of computer-implemented processes and apparatuses for practicing those processes. The methods and embodiments described hereinabove and in the several figures may also be embodied in the fonn of computer pro- gram code containing instructions embodied in tangible 30 media, such as floppy diskettes, CD-ROMs, hard drives, or any other computer-readable storage medium, wherein, when the computer program code is loaded into and executed by a computer, the computer becomes an apparatus for practicing the invention. Existing systems having reprogrammable stor- 35 age (e.g., flash memory) may be updated to implement the invention. The methods and embodiments described herein- above and in the several figures may also be embodied in the form of computer program code, for example, whether stored in a storage medium, loaded into and/or executed by a com- 40 puter, or transmitted over some transmission medium, such as over electrical wiring or cabling, through fiber optics, or via electromagnetic radiation, wherein, when the computer pro- gram code is loaded into and executed by a computer, the computer becomes an apparatus for practicing the invention. 45 When implemented on a general-purpose microprocessor, the computer program code segments may configure the micro- processor to create specific logic circuits. It should be further appreciated that the methods and embodiments described hereinabove may also be practiced, in whole orin part, via any 50 device suitable to the desired end purpose, such as a com- puter, iPod, MP3 Player, a PDA, a Pocket PC and/or a CelJ phone with connection capability. It should be appreciated that although the device used to retrieve exercise infonnation is discussed herein as a portable 55 USB flash drive 114, the device used to retrieve exercise infonnation may be any device suitable to the desired end purpose, such as MP3 player type devices, iPods, USB flash drives, Blackberrys, Pocket PCs, cell phones and any other type of device capable of storing data. It should also be 60 appreciated that the device used to retrieve exercise infonna- tion may further include wireless capabilities so that the user may access the website and upload exercise information via the wireless device. Moreover, the docking station 102 may include embedded software, fumware, and other drivers that 65 have the ability to communicate with any compatible exercise fitness machine, such as a cardio fitness machine that is What is claimed is: 1. A system for processing biological perfonnance data received from an exercise machine, wherein the biological performance data is explicitly requested from the exercise machine and is responsive to a living subject operating the exercise machine in response to a physical workout regime, the system comprising: a docking station in signal communication with the exer- cise device, wherein the docking station is configured to, obtain machine data and workout data from the exercise device, wherein said workout data is responsive to the physical workout regime, and generate encrypted exercise data by combining said machine data and said workout data and encrypting said encrypted exercise data, and a data transfer device configured to receive said encrypted exercise data from said docking station and communi- cate said encrypted exercise data to a processing device for processmg, wherein the docking station is configured to request said machine data and said workout data on a periodic basis during the physical workout regime and wherein if previous exercise data exists, the docking station is configured to generate said exercise data by append- ing said previous exercise data with said machine data and said workout data. 2. The system of claim 1, wherein the exercise device is configured to receive instructive data from said docking sta- tion and operate responsive to said instructive data. 3. The system of claim 1, wherein said docking station is further communicated with said data transfer device to aIlow the transfer of information between said data transfer device and the exercise device. 4. The system of claim 3, wherein said docking station is communicated with said data transfer device via at least one of a hardwired connection, a wireless connection and a por- table data transfer device. S. The system of claim 4, wherein said portable data trans- fer device is at least one of a Universal Serial Bus (USB) flash drive, an MP3 player device, an iPod, a Blackberry, a Pocket PC, a personal computer and a cell phone. Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 39 of 44 Page ID #:39 US 8,118,709 B2 13 14 6. The system of claim 1, wherein said docking station is at wherein said processing device is configured to request least one of a device;;md!l Jhatisat leas.tsaid machine data,and sl!id,workout data on,aperiodic partially the exercise device. said physical workout and wherein 7. The system of claim 1, wherein the exercise device is if previous exercise data exists, said processing device is configured to monitor at least one physical characteristic of 5 configured to generate said exercise data by appending said previous exercise data with said machine data and the living subject said workout data. 8. The system of claim 1, wherein said docking station is 10. The docking station of claim 9, further comprising a configured to request machine data responsive to at least one data storage device communicated with at leaSt one of said of a software code located on said docking station and a 10 first communication port, said second communication port software code located on said data transfer device. and said processing device to receive and store data being 9. A docking station for facilitating communication ofbio- communicated between said first communication port and logical data between an exercise device and a data transfer said second communication port device, the docking station comprising: 11. The docking station of claim 9, wherein said first com- a first communication port configured-to'communicate the"'i5" muIilcatlon port is'coilfiguieif to' cOlnmunicitie with the exer- docking station with the exercise device to allow the cise device via at least one of a wireless connection and a transfer of data therebetween; hardwired connection. a second communication port configured to communicated 12. The docking station of claim 9, wherein said second the docking station with the data transfer device to allow communication port is configured to communicate with said the transfer of data there between; and 20 data transfer device via at least one of a hard wired connection a processing device in electrical communication with and a portable data transfer device. first communication port and said second commuruca- 13. The docking station of claim 12, wherein said portable tion port, wherein said processing device is configured data transfer device is at least one of a Universal Serial Bus to (USB) flash drive, an MP3 player device, aniPod, a Black- request machine data and workout data from the exercise 25 berry, a Pocket PC and a cell phone. device, wherein said workout data is responsive to the 14. The docking station of claim 9, wherein said second operation of the exercise device during a physical communication port is configured to communicate with said workout regime, data transfer device via a wireless connection. generate exercise data by combining said machine data 15. The docking station of claim 9, wherein said docking and said workout data and encrypting said combined 30 station is configured to request machine data responsive to at machine data and workout data, and least one of a software code located on said docking station communicate said exercise data to the data transfer and a software code located on said data transfer device. device for communication to an external processing device, >I< >I< >I< >I< >I< Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 40 of 44 Page ID #:40 Name & Address: Timothy L. Joens, Esq. - State Bar No. 90532 2201 Dupont Drive, Suite 820 Irvine, CA 92612 Tel: (949) 851-0866 Fax: (949) 851-1250 Email: tljsaj7@aol.com UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA FITISTICS, LLC, a Connecticut corporation, I CASE NUMBER PLAINTIFF(S) I SACV12 - 01774 JVS (ANx) v. UNISEN, INC.; FORD-ABC 864736; CORE INDUSTRIES, INC.; and, STAR TRAC HEATH & FITNESS, DEFENDANT(S). TO: DEFENDANT(S): A lawsuit has been filed against you. SUMMONS Within 21 days after service ofthis summons on you (not counting the day you received it), you must serve on the plaintiff an answer to the attached ri complaint 0 amended complaint o counterclaim 0 cross-claim or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff's attorney, Timothy L. Joens, Esq. , whose address is 2201 Dupont Drive, Suite 820, Irvine, CA 92612 . If you fail to do so, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. OCT 1 2 2012! Dated: ---------------------- Clerk, U.S. District Court
By: Deputy Clerk (Seal of the Court) [Use 60 days if the defendant is the United States or a United States agency, or is an officer or employee of the United States. Allowed 60 days by Rule 12(a)(3)]. CV-01A (10111 SUMMONS Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 41 of 44 Page ID #:41 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY This case has been assigned to District Judge James V. Selna and the assigned discovery Magistrate Judge is Arthur Nakazato. The case number on all documents filed with the Court should read as follows: SACV12- 1774 JVS (ANx) Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions. All discovery related motions should be noticed on the calendar of the Magistrate Judge NOTICE TO COUNSEL A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs). Subsequent documents must be filed at the following location: U Western Division 312 N. Spring St., Rm. G-8 Los Angeles, CA 90012 U Southern Division 411 West Fourth St., Rm. 1-053 Santa Ana, CA 92701-4516 Failure to file at the proper location will result in your documents being returned to you. U Eastern Division 3470 Twelfth St., Rm. 134 Riverside, CA 92501 CV-18 (03/06) NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 42 of 44 Page ID #:42 UNITED STATES __ dTRICT COURT, CENTRAL DISTRICT Ot CIVIL COVER SHEET I (a) PLAINTIFFS (Check box if you are representing yourself 0) FITISTICS, LLC, a Connecticut corporation DEFENDANTS UNISEN, INC.; FORD-ABC 864736; CORE INDUSTRIES, INC.; and STAR TRAC HEALTH & FITNESS (b) Attorneys (Finn Name, Address and Telephone Number. If you are representing yourself, provide same.) Attorneys (If Known) Unknown Timothy L. Joens, Esq., LAW OFFICE OF TIMOTHY L. JOENS, A Professional Corporation, 2201 Dupont Drive, Suite 820, Irvine, CA 92612, Tel: (949) 851-0866 II. BASIS OF JURISDICTION (Place an X in one box only.) o I U.S. Government Plaintiff "3 Federal Question (U.S. Government Not a Party) III. CITIZENSHIP OF PRINCIPAL PARTIES - For Diversity Cases Only (Place an X in one box for plaintiff and one for defendant.) PTF DEF Citizen of This State 01 01 Incorporated or Principal Place of Business in this State PTF r;lF 04 02 U.S. Government Defendant r!l4 Diversity (Indicate Citizenship Citizen of Another State 02 02 Incorporated and Principal Place ri5 05 of Parties in Item Ill) IV. ORIGIN (Place an X in one box only.) r!l1 Original Proceeding o 2 Removed from 0 3 Remanded from State Court Appellate Court of Business in Another State Citizen or Subject of a Foreign Country 03 03 Foreign Nation 04 Reinstated or 05 Transferred from another district (specify): 06 Multi- Reopened District Litigation 06 06 07 Appeal to District Judge from Magistrate Judge V. REQUESTED IN COMPLAINT: JURY DEMAND: "Yes 0 No (Check 'Yes' only if demanded in complaint.) CLASS ACTION under F.R.C.P. 23: 0 Yes riNo M'MONEY DEMANDED IN COMPLAINT: $ 1,085,000.00 VI. CAUSE OF ACTION (Cite the U.S. Civi l Statute under which you are fil ing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity,) 35 USC section 271 , et seq. - Patent infringement; 15 USC section 1125, et seq. - Trademark infringement; and, 17 USC section SOl, et seq. - copyright infringement VII. NATURE OF SUIT (Place an X in one box only.) , " OTHER STA.TlrrnS '. 0400 0410 0430 0450 0460 0470 0480 0490 0810 0850 0875 0890 0891 0892 0893 0894 0895 0900 0950 State Reapportionment Antitrust Banks and Banking CommercefICC Rates/etc. Deportation Racketeer Influenced and Corrupt Organizations Consumer Credit Cable/Sat TV 0110 0120 0130 0140 0150 0 151 0152 Insurance Marine Miller Act Negotiable Instrument Recovery of Overpayment & Enforcement of Judgment Medicare Act Selective Service Securities/Commodities/ 0 153 Exchange Recovery of Defaulted Student Loan (Excl. Veterans) Recovery of Overpayment of Customer Challenge 12 USC 3410 Other Statutory Actions Agricultural Act Economic Stabilization Act Environmental Matters Energy Allocation Act Freedom oflnfo. Act Appeal of Fee Detenni- nation Under Equal Access to Justice Constitutionality of State Statutes 0 160 0190 0195 Veteran's Benefits Stockholders' Suits Other Contract Product Liability o 196 Franchise ;' PROPERTY o 210 Lijrtd Condemnation o 220 F'orec1osure o 230 i Lease & Ejectment 0240 "T1ds to Land ' 0245 Tort Product Liability 0290 All 'Other Real Property FOR OFFICE USE ONLY: Case Number: ' TORTS ' PERSONAL'iN:J1JRy . -' ;:; jQRl;s':":: ":::-', LABOR " o 310 Airplane o 315 Airplane Product Liability o 320 Assault, Libel & Slander 0330 0340 0345 0350 0355 0360 0362 0365 0368 Fed. Employers' Liability Marine Marine Product Liability Motor Vehicle Motor Vehicle Product Liability Other Personal Injury Personal Injury- Med Malpractice Personal lnjury- Product Liability Asbestos Personal Injury Product Liability IMMIGRATION o 462 Naturalization Application o 463 Habeas Corpus- Alien Detainee o 465 Other Immigration Actions PERSONAL PROPERTY 0370 Other Fraud 0371 Truth in Lending . , ., PEJITIONS : 0710 0510 Motions to Fair Labor Standards Act o 380 Other Personal 0 530 Vacate Sentence Habeas Corpus General Death Penalty Mandamus/ Other Property Damage 0 535 0385 Property Damage 0540 Product Liability BANKRUPTCY i o 550 Civil Rights 0555 Prison Condition FORFEITURE / ,: PENAJ,.,TY 0610 Agriculture 0620 Other Food & Drug o 422 Appeal 28 USC 158 0423 Withdrawal 28 USC 157 c"IVIL"-RIGH'tS- _. 0441 Voting 0442 Employment 0443 Housing/Acco- mmodations 0444 Welfare 0445 American with 0446 Disabilities - Employment American with Disabilities - Other 0440 Other Civil Rights 0625 Drug Related Seizure of Property 21 USC 881 0630 0640 0650 0660 0690 Liquor Laws R,R. & Truck Airline Regs Occupational Safety IHealth Other 0720 0730 0740 0790 Labor/Mgmt. Relations Labor/Mgmt. Reporting & Disclosure Act Railway Labor Act Other Labor Litigation 0791 Empl. Ret. Inc. Security Act PROPERTY RiGiUS 0)20 Copyrights Patent o 840 Trademark , SOCIALSECUruTY 0861 HIA(1395ff) 0862 Black Lung (923) o 863 D1WC/DlWW (405(g)) o 864 SSID Title XVI 0865 RSI (405(g)) FEDERAL TAX SUITS 0870 Taxes (U.S. Plaintiff or Defendant) 0871 IRS-Third Party 26 USC 7609 AFTER COMPLETING THE INFORMATION REQUESTED BELOW. CV -7 1 (05/08) CIVIL COVER SHEET Page' l of2 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 43 of 44 Page ID #:43 UNITED STATES DISTRIct COURT, CENTRAL DISTRICT OF CALIFORNIA CIVIL COVER SHEET VIIJ(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? liNo DYes If yes, list case number(s): _________________________________________________ _ VIIJ(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? IiNo DYes If yes, list case number(s): _________________________________________________ _ Civil cases are deemed related if a previously filed case and the present case: (Check all boxes that apply) D A. Arise from the same or closely related transactions, happenings, or events; or D B. Call for determination of the same or substantially related or similar questions of!aw and fact; or DC. For other reasons would entail substantial duplication of!abor if heard by different judges; or D D. Involve the same patent, trademark or copyright, and one of the factors identified above in a, b or c also is present. IX. VENUE: (When completing the following information, use an additional sheet if necessary.) (a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides. D Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b). County in this District: * California County outside of this District; State, if other than California; or Foreign Country Connecticut (b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides. D Check here ifthe government, its agencies or employees is a named defendant. If this box is checked, go to item (c). County in this District:* California County outside of this District; State, if other than California; or Foreign Country CORE INDUSTRIES, INC. - Orange County; UNISEN, INC. - Orange County; STAR TRAC HEALTH & FI1NESS - Orange County; and, FORD-ABC 864736 - Orange County (c) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose. Note' In land condemnation cases use the location of the tract of land involved , County in this District:* California County outside of this District; State, if other than California; or Foreign Country Each claim herein arose in Orange County, California * Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties Note: In land condemnation cases use the location of the tract of! . X. SIGNATURE OF ATIORNEY (OR PRO PER): -----r---::::>""...::::---\------- Date October 12, 2012 Notice to CounsellParties: The CV-71 (JS-44) Civil Cov r eet and the inform ion contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form, approved by t Judicial Conferenc fthe United States in September 1974, is required pursuant to Local Rule 3-1 is not filed Key to Statistical codes relating to Social Security Cases: Nature of Suit Code Abbreviation 861 HIA 862 BL 863 DIWC 863 DIWW 864 ssm 865 RSI CV -71 (05108) .. ting the civil docket sheet. (For more detailed instructions, see separate instructions sheet.) Substantive Statement of Cause of Action All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program. (42 U.S.C. 1935FF(b All claims for "Black Lung" benefits under Title 4, Part B, ofthe Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C. 923) All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405(g All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as amended. (42 U.S.C. 405(g All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as amended. All claims for retirement ( old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42 U.S.C. (g CIVIL COVER SHEET Page 2 of2 Case 8:12-cv-01774-JVS-AN Document 1 Filed 10/12/12 Page 44 of 44 Page ID #:44