UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`XILINX, INC.
`Petitioner
`v.
`INTELLECTUAL VENTURES I LLC
`Patent Owner
`__________________
`Case IPR2013-00112
`Patent 5,779,334
`____________________
`
`SECOND DECLARATION OF ROBERT SMITH-GILLESPIE
`
`4833-9419-0870.2
`
`1
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`XILINX, INC.
`Petitioner
`v.
`INTELLECTUAL VENTURES I LLC
`Patent Owner
`__________________
`Case IPR2013-00112
`Patent 5,779,334
`____________________
`
`SECOND DECLARATION OF ROBERT SMITH-GILLESPIE
`
`4833-9419-0870.2
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`1
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`I.
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`INTRODUCTION
`1.
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`I have been retained as an expert in video projection systems by Foley
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`& Lardner LLP, on behalf of Intellectual Ventures I LLC in this matter.
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`2.
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`The documents that I have considered in developing my opinions set
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`forth in this declaration include: Ex. 1001 (U.S. Patent No. 5,779,334 to Kikinis),
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`Ex. 1002 (U.S. Patent No. 5,264,951 to Takanashi), Ex. 1003 (U.S. Patent No.
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`5,287,131 to Lee), Ex. 1010 (U.S. Patent No. 5,136,397 to Miyashita), Ex. 1011
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`(Declaration of Dr. Buckman in Support of the Opposition), the Patent Owner
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`Motion to Amend (Paper 27), and Petitioner’s Opposition to the Motion to Amend
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`(Paper 31).
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`3.
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`I am being compensated on a per hour basis for my time spent
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`working on issues in this case. My compensation does not depend upon the
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`outcome of this matter or the opinions I express.
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`4.
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`Additional information may become available which would further
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`support or modify the conclusions that I have reached to date. Accordingly, I
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`reserve the right to modify and/or enlarge this opinion or the bases thereof upon
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`consideration of any further discovery, testimony, or other evidence, including any
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`issues raised by any expert or witness of petitioner Xilinx, or based upon
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`interpretations of any claim term by the Patent Office different than those proposed
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`in this declaration.
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`II. QUALIFICATIONS
`5. My curriculum vitae is Ex. 2006. My experience in the display field
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`dates back to the late 1980’s when I worked as the lighting specialist in the Flight
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`Deck Packaging group at Honeywell’s Commercial Air Transport Division.
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`Initially my work focused on development of early technology liquid crystal
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`display (LCD) components for flight control panels on commercial aircraft. I later
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`participated in the technology development and productization of the active matrix
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`LCD panels for the Boeing 777 program. In the early phases of this program we
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`performed trade studies aimed at assessing the appropriate technology for
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`replacing cathode ray tube (CRT) instruments on the flight deck. Technologies
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`that I evaluated include rear projection micro-display LCD panels and thin-film
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`transistor (TFT) LCDs. Following my work at Honeywell, I moved to Three-Five
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`Systems where I worked again as a technical specialist for displays and lighting.
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`While there, I interfaced with the liquid crystal on silicon (LCOS) projection team
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`(later to become Brillian Corp.) on light engine design (light sources, thermal
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`control) and reflective LCOS optical evaluation (radiometric characterization).
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`While at Rosen Products I again worked as a senior technical specialist in displays
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`where I was primarily focused on video system integration for automotive and
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`aviation LCD display platforms. My work there included specifying and
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`evaluating video controllers, source equipment, and displays for automotive rear
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`seat entertainment and aircraft cabin entertainment systems.
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`6.
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`I am a named inventor on U.S. Patent No. 7,660,040 and European
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`Patent No. 1724621A1, which are directed to a reflective material for LCD display
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`backlighting. I also have a pending patent application (U.S. 13/564,045) for a
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`“Dual Mode LCD Backlight” which employs a novel dichroic filtering design to
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`create a single rail, night vision compatible backlight.
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`7.
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`I have a Bachelor’s degree in Physics from the State University of
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`New York at Plattsburgh and a Bachelor of Science degree in mechanical
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`engineering from Arizona State University. I have additionally studied optics at
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`the graduate level at the University of Oregon and have studied liquid crystal
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`display technology at Kent State University (professional short courses).
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`III. SCOPE OF ASSIGNMENT
`8.
`I have been retained to opine on the patentability of the claims in U.S.
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`Patent No. 5,779,334 (“the ‘334 patent”), and on the claims proposed to be added
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`to the ‘334 patent.
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`9.
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`I have been asked to consider whether Proposed Claims 15 and 16 of
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`the ‘334 patent are patentable over the prior art.
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`10. This declaration sets forth my opinion on this topic.
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`IV. LEGAL PRINCIPLES USED IN ANALYSIS
`11.
`I have been advised that, in construing a claim term, one looks
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`primarily to the “intrinsic” patent evidence, which includes the words of the claims
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`themselves, the remainder of the patent specification, and the prosecution history.
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`I have been advised by patent owner’s counsel that “extrinsic” evidence, which is
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`evidence external to the patent and the prosecution history, may also be useful in
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`interpreting patent claims. Extrinsic evidence can include dictionaries, treatises,
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`textbooks, and the like.
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`12.
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`In rendering the opinions set forth in this declaration, I was asked to
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`consider the patent claims through the eyes of “one of ordinary skill in the art.” I
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`was told by patent owner’s counsel to consider factors such as the educational level
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`and years of experience of those working in the pertinent art; the types of problems
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`encountered in the art; the teachings of the prior art; patents and publications of
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`other persons or companies; and the sophistication of the technology. I understand
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`that the person of ordinary skill in the art is not a specific real individual, but rather
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`a hypothetical individual having the qualities reflected by the factors discussed
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`above.
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`13.
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`In my opinion, based on my experience in research and product
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`development of video projection systems, and my evaluation of the skills and
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`background that graduates of engineering programs should possess, a person of
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`ordinary skill in the art of video projection systems is generally one who has a
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`Bachelor’s degree in electrical engineering, optical engineering, and/or physics
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`along with several years of relevant applied research or industry work experience
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`in the field of video projection systems.
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`V. CLAIM CONSTRUCTION OF THE CHALLENGED CLAIMS
`14. For the purposes of my opinion and declaration, I have reviewed the
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`proposed claim constructions set forth on page 9 of Xilinx’s Opposition to Motion
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`to Amend, Paper 31, (hereinafter “Opp.”). I disagree with the claim constructions
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`proposed by Xilinx for the reasons discussed below.
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`15.
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`I disagree with Xilinx’s proposed construction of “second controller.”
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`On page 9 of the Opp., Xilinx asserts that the term “second controller” should be
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`construed as “one or more control circuits separate from the video controller.”
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`However, other than referencing paragraph 25 of Dr. Buckman’s declaration in
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`support of the opposition (Ex. 1011), Xilinx provides no support for this overbroad
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`construction. At paragraph 25 of Ex. 1011, Dr. Buckman states:
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`It is my opinion that a person of ordinary skill in the art
`would understand the broadest reasonable interpretation
`of “second controller” in view of the specification and
`file history to be: “one or more control circuits separate
`from the video controller.”
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`However, Dr. Buckman has not provided any factual evidence to support this
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`conclusory statement. In addition, Xilinx has omitted the “adapted to” limitation
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`from its construction of the “second controller” claim element. Proposed Claim 15
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`requires “a second controller adapted to control the three white-light sources” and
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`Proposed Claim 16 requires “a second controller adapted to control the source.” In
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`its proposed construction, Xilinx has essentially read the “adapted to” phrase out of
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`the “second controller” element. Based on the specification, the broadest
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`reasonable construction to one of ordinary skill in the art of the phrase “second
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`controller adapted to control the three white-light sources” is a controller, other
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`than the video controller, that controls the three white-light sources. Similarly, the
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`broadest reasonable construction to one of ordinary skill in the art of the phrase
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`“second controller adapted to control the source” is a controller, other than the
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`video controller, that controls the source. This construction is supported by the
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`specification of the ‘334 patent, which states that “[l]ight for the projector is
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`generated in this embodiment by three High Intensity Discharge (HID) lamps 132-
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`134, which are controlled by controller 130, ….” (Col. 3, lines 7-9). See also Figs.
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`1 and 2 of the ‘334 patent which illustrate “controller 130” as a single controller
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`that is distinct from the video “controller 122.”
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`16.
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`I also disagree with Xilinx’s proposed construction of “control link.”
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`On page 9 of the Opp., Xilinx asserts that the term “control link” should be
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`construed as “an electronic connection between the video controller and another
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`controller.” To support this proposed construction, Xilinx relies on paragraph 27
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`of Dr. Buckman’s declaration in support of the opposition (Ex. 1011). At
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`paragraph 27 of Ex. 1011, Dr. Buckman states:
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`It is my opinion that a person of ordinary skill in the art
`would understand the broadest reasonable interpretation
`of “control link” in view of the specification [sic] file
`history to be: “an electronic connection between the
`video controller and another controller.”
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`Dr. Buckman has again not provided any factual evidence to support this
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`conclusory statement. Dr. Buckman’s construction refers to “another controller.”
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`However, the plain language of the claim makes clear that the “control link” is not
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`between the video controller and just any other controller. Rather, the claim
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`language makes clear that the “control link” is between the claimed “video
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`controller” and the claimed “second controller.” In addition, Dr. Buckman’s
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`construction has again omitted the “adapted to” limitation from the claim element.
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`Proposed Claim 15 requires “a control link adapted to connect the video controller
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`to the second controller to provide individualized variable control of each of the
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`three white-light sources” and Proposed Claim 16 requires “a control link adapted
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`to connect the video controller to the second controller to provide variable control
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`of the source.” Based on the specification and the plain language of the claim, the
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`broadest reasonable construction to one of ordinary skill in the art of the phrase
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`“control link adapted to connect the video controller to the second controller to
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`provide individualized variable control of each of the three white-light sources” is
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`an electronic connection through which individualized variable control of each of
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`the three white-light sources is provided, where the electronic connection connects
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`the video controller to the second controller. Similarly, the broadest reasonable
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`construction to one of ordinary skill in the art of the phrase “control link adapted to
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`connect the video controller to the second controller to provide variable control of
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`the source” is an electronic connection through which variable control of the
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`source is provided, where the electronic connection connects the video controller
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`to the second controller.
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`VI. CHALLENGES #5 AND #6: ALLEGED OBVIOUSNESS OF
`PROPOSED CLAIMS 4 AND 5
`17. Challenge #4 set forth in Xilinx’s Opposition relies on the
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`combination of U.S. Patent No. 5,264,951 to Takanashi (hereinafter “Takanashi”),
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`U.S. Patent No. 5,287,131 to Lee (hereinafter “Lee”), and U.S. Patent No.
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`5,313,234 to Miyashita (hereinafter “Miyashita”) as allegedly disclosing the
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`elements of Proposed Claims 15 and 16. For the reasons discussed below, I
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`disagree with Xilinx’s assertion that the combination of Takanashi, Miyashita, and
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`Lee renders Proposed Claims 15 and 16 obvious. The subject matter as a whole of
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`Proposed Claims 15 and 16 would not have been obvious over the prior art.
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`18. Page 13 of the Opp. alleges that “Miyashita teaches a control link
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`adapted to connect a video controller to a lamp controller.” Xilinx relies on col. 5,
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`lines 21-41 of Miyashita and pages 16-20 of Dr. Buckman’s declaration (Ex. 1011)
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`as support for this assertion. At col. 5, lines 21-41, Miyashita discloses:
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`FIG. 3 is exemplary microprocessor-based
`implementation of LCVP 30. The functions of control
`unit 32 are all implemented by a microprocessor system.
`Several computer-implemented processes (programs) are
`used to replace the functional units described above. The
`important parts of each program are described below, in
`detail. The microprocessor system comprises a central
`processing unit (CPU) 90, a read only memory (ROM)
`91, a random access memory (RAM) 92, a timer 94, and
`an input/output (I/O) port 93. ROM 91 stores the
`program for CPU 90 and RAM 92 stores temporary data
`and is used as a work space. Data from memory 80 is
`routinely read in by an initialization program and used to
`fill parts of RAM 92 (to improve access times later to
`such data). Digital interfaces are made via the I/O port 93
`to control input 60, display 62, an alarm 64, light detector
`66, temperature detector, 68, main power controller 70,
`projection lamp power controller 72, signal source
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`selector 74, fan motor controller 76, fan motor 78,
`memory 80, lens controller 82, and DAC 84.
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`Thus, the relied upon portion of Miyashita lists a number of components including
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`a “microprocessor system” and various controllers. The relied upon portion of
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`Miyashita does not identify any component as a “control link” or a “video
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`controller.” To make up for this omission, Dr. Buckman annotated Fig. 3 of
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`Miyashita and alleges that one portion of “control unit 32” corresponds to the
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`claimed “video controller” and that another portion of “control unit 32”
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`corresponds to the claimed “control link.” (Ex. 1011 at p. 19). I disagree.
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`Miyashita fails to disclose or suggest a “video controller” or a “control link
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`adapted to connect the video controller to the second controller,” as claimed.
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`19. To support the assertion that “control unit 32” includes the claimed
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`video controller, Dr. Buckman relies on Fig. 2 of Miyashita and asserts that the
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`disclosed “picture controller” and “display controller” are “Video Controllers.”
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`(Ex. 1011 at p. 18). Specifically, Dr. Buckman asserts that “the functionality of a
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`video controller is carried out by at least picture controller 42 and display
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`controller 50.” (Ex. 1011 at p. 17). I disagree. One of ordinary skill in the art
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`would not consider Miyashita’s “control unit 32” to be a video controller.
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`Miyashita, which never refers to element 32 as a video controller, fails to describe
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`how a video controller is implemented and fails to include any video controller in
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`the figures. Indeed, Miyashita does not include the term “video controller.” As
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`indicated in the “Summary of the Invention,” Miyashita is directed to “improved
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`overheating protection with indicators that assist a user in averting trouble before
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`failure occurs, and means to quickly troubleshoot or respond to a problem once the
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`problem has been identified.” (Col. 2, lines 38-41). The “Summary of the
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`Invention” goes on to indicate that a “further advantage of the present invention is
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`that remote adjustment of the system can be made from the normal viewing
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`position of the user relative to the system.” (Col. 2, lines 42-45). The “Summary
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`of the Invention” in Miyashita, and indeed the specification as a whole, are not
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`directed to a video controller and do not disclose any information regarding a video
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`controller. The control unit 32 in Miyashita does not receive or process a video
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`signal to facilitate the display of video, which is what a video controller does. See,
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`e.g., p. 23, lines 2-5 of Ex. 2018, in which Dr. Buckman discusses the ‘334 patent
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`and acknowledges that “the video controller as I’ve stated would have to have
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`decoding capability because there’s simply a raw video signal coming in over
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`what’s referred to as a -- as a link, 125.” The “control unit 32” in Miyashita is a
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`non-video control unit that controls system power and system settings based on
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`user input, feedback from sensors and detectors, and setting of an alarm when
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`certain operation limits are exceeded (e.g., an over-temperature condition). (Ex.
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`1010 at col. 4, lines 11-30.) Dr. Buckman’s assertion that the “picture controller
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`42” and “display controller 50” elements in the “control unit 32” of Fig. 2 of
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`Miyashita correspond to the claimed “video controller” improperly relies on
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`hindsight reasoning that has no basis in the disclosure of Miyashita.
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`20. With respect to the “picture controller 42” illustrated in Figure 2,
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`Miyashita discloses that:
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`The picture controller 42 is also responsive to the
`instruction decoder 36 and provides control to set the
`level of the picture attributes of color, hue, brightness,
`contrast, and sharpness (peaking). The level of each of
`these picture attributes is provided as digital output to the
`DAC 84 and stored in the memory 80. Whenever power
`is turned ON, these levels are read back from memory 80
`to restore the last level in use before the power to LCVP
`30 was turned OFF.
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`(Col. 4, line 61 – col. 5, line 1). Thus, the “picture controller” is used to set
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`various “picture attributes” of the projector system such as “color, hue, brightness,
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`contrast, and sharpness (peaking).” Once set by a user, these “picture attributes”
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`are “stored in the memory 80” such that the user settings can be applied each time
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`the system is turned on. Nowhere does Miyashita disclose that the “picture
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`controller” receives or processes a video signal to facilitate the display of video,
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`which as noted above is what a video controller does. In addition, Dr. Buckman
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`fails to provide any explanation regarding how or why one of ordinary skill in the
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`art would interpret a component that is used to set “picture attributes” (i.e.,
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`Miyashita’s “picture controller”) as the claimed “video controller.” Dr. Buckman
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`also fails to provide any evidence that the “picture controller” of Miyashita is
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`“adapted for controlling the light-shutter matrix system” as required by the “video
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`controller” of Claims 1 and 11. Indeed, Miyashita nowhere discloses that its
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`“picture controller” controls or has any interaction with a light-shutter matrix
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`system. For at least these reasons, one of ordinary skill in the art would not
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`interpret Miyashita’s “picture controller” as the claimed “video controller.”
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`21. With respect to the “display controller 50” illustrated in Figure 2,
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`Miyashita discloses that:
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`The display controller 50 supports the display 62 and the
`combination provides a visual status of the power
`controller 38, selected signal source, picture attribute
`levels, sound volume level, and lens control information.
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`(Col. 5, lines 12-16). Thus, Miyashita discloses that the “display controller 50,” in
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`combination with one or more other components, “provides a visual status” of
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`various settings such as which “signal source” is selected, “picture attribute
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`levels,” “sound volume level,” and “lens control information.” Merely providing a
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`visual status of system settings does not make “display controller 50” a “video
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`controller,” as claimed. Nowhere does Miyashita disclose that the “display
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`controller 50” receives or operates on a video signal to facilitate the display of
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`video. Other than quoting the above-referenced passage from Miyashita, Dr.
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`Buckman fails to provide any explanation regarding how or why one of ordinary
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`skill in the art would interpret a component that provides a visual status of system
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`settings (i.e., Miyashita’s “display controller”) as the claimed “video controller.”
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`In addition, Dr. Buckman fails to provide any evidence that the “display controller
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`50” of Miyashita is “adapted for controlling the light-shutter matrix system” as
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`required by the “video controller” of Claims 1 and 11. Indeed, Miyashita nowhere
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`discloses that its “display controller 50” controls or has any interaction with a
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`light-shutter matrix system. For at least these reasons, one of ordinary skill in the
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`art would not interpret Miyashita’s “display controller” as the claimed “video
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`controller.”
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`22. Thus, one of ordinary skill in the art would not consider the “picture
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`controller 42” or the “display controller 50” of Miyashita to be a “video controller
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`adapted for controlling the light-shutter matrix system,” as claimed. It follows that
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`the “control unit 32” in Fig. 3 of Miyashita, which incorporates the functionality of
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`the “picture controller 42” and the “display controller 50,” would also not be
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`considered a “video controller adapted for controlling the light-shutter matrix
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`system” to one of ordinary skill in the art. Therefore, Figure 3 of Miyashita, which
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`fails to include the claimed video controller, necessarily fails to disclose or suggest
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`“a control link adapted to connect the video controller to the second controller,”
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`as required by Proposed Claims 15 and 16. (Emphasis added).
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`23. With respect to the “control link” itself, Dr. Buckman has
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`acknowledged that Lee does not disclose such an element. Specifically, Dr.
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`Buckman provided the following answers during his deposition of November 12,
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`2013:
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`Q. Why the change in annotation between the
`annotated figures of Lee in this proceeding, Exhibit
`1011, and the annotation of Lee in the other
`proceeding, Exhibit 2017?
`A. At one stage of editing, we decided to change these
`control links that we had identified as control links to
`control lines. Apparently that didn’t get propagated
`everywhere in the two declarations. The page 54, those
`three wires should be control lines and the discussion
`should have combining control lines from a second
`controller to individual light sources.
`Q. So your current position is that the annotation
`should be for control lines, not control links?
`A. Those are control lines, yes.
`Q. And not control links?
`A. Yes.
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`(Exhibit 2016, p. 74, line 23 – p. 75, line 14; emphasis added). Dr. Buckman
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`asserts that the “I/O Port 93” in Fig. 3 of Miyashita discloses the claimed control
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`link. (Ex. 1011 at p. 19). I again disagree. The “I/O Port 93” of Miyashita is
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`illustrated as being part of the “control unit 32,” as indicated by the dashed lines in
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`Fig. 3 of Miyashita. Dr. Buckman fails to provide any explanation regarding his
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`annotation of Fig. 3 that distinguishes the “I/O Port 93” from the rest of “control
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`unit 32” when the author of Miyashita clearly indicated that the “I/O Port 93”
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`forms part of the “control unit 32.” One of ordinary skill in the art would
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`understand “I/O Port 93” to be a microcontroller bus that allows the “CPU 90,”
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`“ROM 91,” “RAM 92,” and “Timer 94” in Fig. 3 of Miyashita to interface with
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`other system components. One of ordinary skill in the art would not interpret the
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`“I/O Port 93” as the claimed “control link adapted to connect the video controller
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`to the second controller to provide individualized variable control of each of the
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`three white-light sources” as required by Proposed Claim 15, or as the claimed
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`“control link adapted to connect the video controller to the second controller to
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`provide variable control of the source” as required by Proposed Claim 16. As
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`discussed above, “control unit 32” of Miyashita is not a video controller, and
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`therefore the “I/O Port 93” does not “connect” a “video controller to the second
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`controller,” as claimed. Also, as discussed in more detail below, the “I/O Port 93”
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`of Miyashita is not “a control link adapted to connect the video control to the
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`second controller to provide variable control …,” as claimed. (Emphasis added).
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`24. Claim 15 requires “a control link adapted to connect the video
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`controller to the second controller to provide individualized variable control of
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`each of the three white-light sources” and Claim 16 similarly requires “a control
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`link adapted to connect the video controller to the second controller to provide
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`variable control of the source.” As discussed above, Dr. Buckman acknowledged
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`during his November 12, 2013 deposition that Lee does not disclose the claimed
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`“control link.” (Ex. 2016 at p. 74, line 23 – p. 75, line 14). In his declaration, Dr.
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`Buckman relies upon Lee as allegedly disclosing “individualized variable control
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`of each of the three white-light sources.” (Ex. 1011 at p. 20-21). Thus, Dr.
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`Buckman appears to be trying to dissect the claim language in an effort to allege
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`that Miyashita discloses the “control link” and Lee discloses “individualized
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`variable control.” However, proposed Claims 15 and 16 explicitly require that the
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`control links “connect the video controller to the second controller to provide
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`individualized variable control.” (Emphasis added). Thus, the claims make clear
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`that the control links form a connection “to provide individualized variable
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`control,” where the connection is between the “video controller” and the “second
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`controller.” One of ordinary skill in the art would understand that the claimed
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`“control link” is not merely a “link,” but rather a “control link” through which
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`some control is implemented. This implemented control that is provided through
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`the “control link” is explicitly identified in the claims as “variable control” of the
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`“three white-light sources” (Proposed Claim 15) or of “the source” (Proposed
`
`Claim 16). One of ordinary skill in the art would understand that the “variable
`
`control” implemented via the “control link” is a direct result of the connection
`
`between the “video controller” and the “second controller” and that the “variable
`
`control” occurs as a result of information in a video signal that is received by the
`
`video controller. During his deposition on November 12, 2013, Dr. Buckman even
`
`acknowledged that the variable control originates from the video controller. (Ex.
`
`2016 at p. 81, line 21 – p. 82, line 8). Specifically, at p. 81, line 21 – p. 82, line 3
`
`of Ex. 2016, Dr. Buckman states:
`
`Well, the second controller, if it’s adapted to control the
`three write light sources, if, as the claim says, it’s also
`got a control link connected to the video controller that
`means that the inventor envisions under some
`circumstances something that’s – that’s happening in
`the video controller to have an effect and affect the
`control of the individual three light sources….
`
`(Emphasis added). Alone or in combination, Lee and Miyashita fail to disclose
`
`any component that acts as a “control link to connect the video controller to the
`
`second controller to provide individualized variable control of each of the three
`
`white-light sources,” as required by Proposed Claim 15, or “… variable control of
`
`the source,” as required by Proposed Claim 16. Dr. Buckman acknowledged that
`
`Lee does not have such a control link (exhibit 2016, p. 74, line 23 – p. 75, line 14),
`
`4833-9419-0870.2
`
`19
`
`
`
`and nowhere does Miyashita describe any component that connects the “video
`
`controller to the second controller” or any component that forms such a connection
`
`to provide variable control of a light source. Miyashita, which only discloses
`
`on/off power switching of a projector lamp, does not disclose or suggest the
`
`variable control of a light source. (Col. 6, lines 25-27). Takanashi also fails to
`
`disclose or suggest such components.
`
`VII. CONCLUSION
`25.
`In my opinion, Proposed Claims 15 and 16 of the ‘334 patent are
`
`patentable in view of Takanashi, Lee, and Miyashita because the combination fails
`
`to disclose or suggest one or more elements required by Proposed Claims 15 and
`
`16. In my opinion, the subject matter as a whole of each of Proposed Claims 15
`
`and 16 is patentable over the prior art of which I am aware.
`
`26.
`
`I declare under penalty of perjury that the foregoing is true and
`
`correct. Executed this 27th day of November, 2013.
`
`
`
`
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`20
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`4833-9419-0870.2
`
`
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