Paper 21
`Entered: July 14, 2015
`
`Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`EIZO CORPORATION,
`Petitioner,
`
`v.
`
`BARCO N.V.,
`Patent Owner.
`
`
`
`Case IPR2014-00358
`Patent RE43,707 E
`
`
`
`Before KALYAN K. DESHPANDE, JAMES B. ARPIN, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`
`
`DESHPANDE, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a); 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`Entered: July 14, 2015
`
`Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`EIZO CORPORATION,
`Petitioner,
`
`v.
`
`BARCO N.V.,
`Patent Owner.
`
`
`
`Case IPR2014-00358
`Patent RE43,707 E
`
`
`
`Before KALYAN K. DESHPANDE, JAMES B. ARPIN, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`
`
`DESHPANDE, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a); 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`IPR2014-00358
`Patent RE43,707 E
`
`
`I.
`
`INTRODUCTION
`
`A. Background
`Eizo Corporation (“Petitioner”) filed a corrected Petition requesting
`an inter partes review of claims 36, 46, 54, 64, 65, 77–79, 93, 94, 101–104,
`and 107 of U.S. Patent No. RE43,707 E (Ex. 1001; “the ’707 patent”).
`Paper 4 (“Pet.”). Barco N.V. (“Patent Owner”) timely filed a Preliminary
`Response. Paper 9 (“Prelim. Resp.”). Pursuant to 35 U.S.C. § 314, we
`instituted inter partes review on July 23, 2014, as to claims 101–104 of the
`ʼ707 patent under 35 U.S.C. § 103(a) as obvious over Greene1 and Kamada.2
`Paper 11 (“Dec.”).
`Patent Owner filed a Response (Paper 16, “PO Resp.”), and Petitioner
`filed a Reply (Paper 17, “Pet. Reply”).
`Oral hearing was held on April 1, 2015, and the hearing transcript has
`been entered in the record (Paper 20, “Tr.”).
`The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons discussed below, we are not persuaded that Petitioner has
`shown by a preponderance of the evidence that claims 101–104 of the ʼ707
`patent are unpatentable.
`B. Related Proceedings
`Petitioner indicates that the ’707 patent is the subject of a Federal
`district court case: Barco, N.V. v. Eizo Nanao Corp., 11-cv-00258 (N.D.
`Ga). Pet. 1.
`
`
`1 U.S. Patent No. 6,271,825 B1 (Ex. 1008, “Greene”).
`2 U.S. Patent Publication No. 2005/0093798 A1 (Ex. 1004, “Kamada”).
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`
`Additionally, the ’707 patent is the subject of Inter Partes
`Reexamination No. 95/002,047 and was the subject of Ex Parte
`Reexamination No. 90/020,037 (“the ’037 Reexam.”).3 Pet. 1.
`C. The ʼ707 Patent
`The ’707 patent is directed to a system and method for noise reduction
`in medical images being viewed on display systems. Ex. 1001, 4:14–16.
`Scientific studies indicate that even a “slight increase of noise in medical
`images can have a significant negative impact on the accuracy and quality of
`medical diagnosis.” Id. at 1:30–33. Accordingly, the ’707 patent provides a
`noise reduction system and method that addresses non-uniformity of pixel
`behavior present in matrix-addressed electronic display devices. Id. at 4:36–
`41.
`
`The ’707 patent includes a range of embodiments, including a vision
`measurement system — a set-up for automated, electronic vision of
`individual pixels of a matrix-addressed display. Id. at 6:10–17. The vision
`measurement system includes an image capturing device, a movement
`device for moving the image capturing device, and/or a display. Id. at 6:17–
`20. Each of the embodiments reaches the same result of outputting an
`electronic image of pixels. Id. at 6:20–23. “[A] process is run to extract
`pixel characterization data from the electronic image.” Id. at 7:4–7.
`Algorithms are used to assign a luminance value to each pixel, where the
`algorithm includes a first task of identifying a location of each of the matrix
`display pixels and relating the pixels to the pixels of the electronic image,
`and a second task of calculating and assigning one light-output value for
`
`3 The Office issued a reexamination certificate, U.S. Reexamination
`Certificate No. RE43,707 C1, on March 31, 2014. Ex. 2005.
`
` 3
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`each pixel. Id. at 7:8–13, 8:52–54. A test image may be generated by
`driving each of the pixels with the same drive signal or drive level, and the
`light-output of each pixel can be calculated from the test image. Id. at 9:25–
`39. The next task of the algorithm is to define a drive function, thereby
`providing a correction principle to generate a required light-output response
`curve for an individual pixel and, thus, equalizing the response of all of the
`pixels in a display. Id. at 10:29–42.
`An example of equalizing the behavior of the pixels is illustrated in
`Figure 10 as follows:
`
`
`Figure 10 illustrates that pixels with curves A–C are equalized to that
`of curve D. Id. at 12:3–5. A specific transfer curve for each pixel may be
`used to compensate for the behavior of each pixel’s characteristic luminance
`response, thereby modifying or curing any unequal luminance behavior over
`a display area. Id. at 12:19–28.
`D. Illustrative Claims
`We instituted inter partes review, on July 23, 2014, as to claims 101–
`104 of the ʼ707 patent. Subsequent to the filing of the Petition, a
`Reexamination Certificate issued in the ’037 Reexam., amending claim 101.
`See Ex. 2005. Claim 101, which depended from independent claim 100,
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`now is written in independent form to include all of the limitations of
`cancelled claim 100. Id. Claims 102–104 depend, directly or indirectly,
`from independent claim 101.
`Independent claim 101 is illustrative of the claims at issue and is
`reproduced below:
`101. An image processing apparatus comprising:
`an array of logic elements configured to generate a
`display signal based on a map and an image signal that
`represents at least one physical and tangible object
`wherein the display signal is configured to cause a
`display to depict a display image of the at least one physical
`and tangible object, and
`wherein the map comprises correction data configured to
`correct for pixel non-uniformity only when the pixel non-
`uniformity is outside of a tolerance level, and
`wherein the tolerance level varies among pixels of the
`display.
`
`E. Claim Construction
`The Board interprets claims of an unexpired patent using the broadest
`reasonable interpretation in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); see also In re Cuozzo Speed Techs.,
`LLC, No. 2014-1301, slip op. at 16–19 (Fed. Cir. July 8, 2015) (“Congress
`implicitly approved the broadest reasonable interpretation standard in
`enacting the AIA,” and “the standard was properly adopted by PTO
`regulation.”). Under the broadest reasonable interpretation standard, claim
`terms are given their ordinary and customary meaning, as would be
`understood by one of ordinary skill in the art in the context of the entire
`
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`disclosure. In re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007).
`1. “tolerance level”
`Independent claim 101 recites the term “tolerance level” with respect
`to pixel non-uniformity. Ex. 2005, 2:55–3:2. Neither Petitioner nor Patent
`Owner sets forth a construction for “tolerance level.” See Tr. 7:22–8:2,
`11:18–21, 24:10–12; Pet. 10. The ʼ707 patent does not provide a specific
`definition for “tolerance level,” but discloses that in measuring a color shift
`“small deviations in color go unnoticed. This means that there is a certain
`tolerance on differences in luminosity relationships of sub-pixel elements
`which still provide an apparently uniform display.” Ex. 1001, 12:65–13:1.
`The ordinary and customary definition for “tolerance” is “[l]eeway for
`variation from a standard” and “[t]he permissible deviation from a specified
`value of a structural dimension, often expressed as a percent,”4 and the
`ordinary and customary definition for “level” is “[r]elative position or rank
`on a scale.”5 Accordingly, we determine that the ordinary and customary
`meaning of “tolerance level” is a permissible deviation or variation from a
`position on a scale. This meaning of “tolerance level” is consistent with its
`usage in the ʼ707 patent specification. See Ex. 1001, 12:65–13:1.
`Accordingly, based on its ordinary and customary meaning and its usage in
`the ʼ707 patent specification and claims, we construe “tolerance level” to
`
`4 See tolerance, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
`LANGUAGE (2011) (available at
`http://search.credoreference.com/content/entry/hmdictenglang/tolerance/0).
`5 See level, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
`LANGUAGE (2011) (available at
`http://search.credoreference.com/content/entry/hmdictenglang/level/0).
`
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`mean the permissible amount of deviation in luminosity that still provides an
`apparently uniform display.
`
`II. ANALYSIS
`A. Timeliness of Petition
`Patent Owner contends that the Petition is time-barred under 35
`U.S.C. § 315(b) because the Petition was filed more than one year after the
`date on which Petitioner was served a complaint alleging infringement of the
`patent. PO Resp. 10–25; Prelim. Resp. 2–15. Patent Owner specifically
`argues that it served a complaint alleging infringement of U.S. Patent No.
`7,639,849 B2 (“the ʼ849 patent”) upon Petitioner on October 7, 2011. PO
`Resp. 10–11; Prelim. Resp. 2; see Ex. 2002. Subsequent to this service, the
`ʼ849 patent was reissued on October 2, 2012, as the ʼ707 patent. PO Resp.
`11; Prelim. Resp. 2. The instant Petition was filed on January 17, 2014,
`more than two years after the date of service of the complaint. Id.
`Accordingly, Patent Owner argues that the Petition is untimely under
`Section 315(b). PO Resp. 10–25; Prelim. Resp. 2–15.
`We are not persuaded by Patent Owner’s arguments. 35 U.S.C.
`§§ 251, 252 recite, respectively, that
`[w]henever any patent is, through error, deemed wholly or
`partly inoperative or invalid, . . . the Director shall, on the
`surrender of such patent . . . , reissue the patent for the
`invention disclosed in the original patent” and that “[t]he
`surrender of the original patent shall take effect upon the issue
`of the reissued patent” (emphasis added).
`The reissue patent is a distinct property right that “does not simply replace
`an original patent nunc pro tunc.” Intel Corp. v. Negotiated Data Solutions,
`Inc., 703 F.3d 1360, 1364 (Fed. Cir. 2012) (citing Spectronics Corp. v. H.B.
`
` 7
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`Fuller Co., 940 F.2d 631, 637–38 (Fed. Cir. 1991)). 35 U.S.C. § 315(b)
`recites that
`[a]n inter partes review may not be instituted if the petition
`requesting the proceeding is filed more than 1 year after the
`date on which the petitioner, real party of interest, or privy of
`the petitioner is served with a complaint alleging infringement
`of the patent (emphasis added).
`
`Here, Patent Owner served upon Petitioner a complaint alleging
`infringement of the ʼ849 patent. See Ex. 2002. Patent Owner acknowledges
`that this original complaint does not allege infringement of the ʼ707 patent.
`Tr. 35:22–23. The reissuance of the ʼ849 patent as the ʼ707 patent did not
`continue the ʼ849 patent, but rather resulted in the surrender of the ʼ849
`patent and the issuance of a new patent, the ʼ707 patent. Patent Owner
`served Petitioner with an amended complaint alleging infringement of the
`ʼ707 patent on January 17, 2013. See Ex. 2004. The Board accorded the
`instant Petition a filing date of January 17, 2014. See Paper 3. Patent
`Owner acknowledges that the claims challenged in the Petition were not in
`the original ʼ849 patent. Tr. 36:18–20. Accordingly, Section 315(b) is not
`applicable here because the Petition was not filed more than one year after
`Petitioner was served with the amended complaint first alleging
`infringement of the ʼ707 patent.
`We also are not persuaded by Patent Owner’s argument that the
`claims of the ʼ849 patent are substantially identical to the claims of the ʼ707
`patent. Therefore, under Section 252, the ʼ849 patent is not the same as the
`ʼ707 patent for the purposes of Section 315(b). Prelim. Resp. 6–8, 12–14.
`35 U.S.C. § 315(b) requires that “the petitioner . . . is served with a
`complaint alleging infringement of the patent” (emphasis added).
`
` 8
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`
`Accordingly, we are not persuaded by Patent Owner’s argument and
`determine that the Petition is not barred under Section 315(b).
`B. Obviousness of Claims 101–104 over Greene and Kamada
`1. Overview
`Petitioner argues that Greene and Kamada render obvious claims 101–
`104 of the ’707 patent. A patent claim is obvious under 35 U.S.C. § 103(a)
`if the differences between the claimed subject matter and the prior art are
`“such that the subject matter[,] as a whole[,] would have been obvious at the
`time the invention was made to a person having ordinary skill in the art to
`which said subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
`398, 406 (2007). The question of obviousness is resolved on the basis of
`underlying factual determinations, including: (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of skill in the art; and (4) objective evidence of
`nonobviousness, i.e., secondary considerations. See Graham v. John Deere
`Co., 383 U.S. 1, 17–18 (1966).
`2. Greene (Ex. 1008)
`Greene teaches methods for correcting spatial non-uniformities in the
`brightness of electronic displays. Ex. 1008, 1:8–13. Greene describes
`“several methods for keeping a resultant luminance substantially constant
`using active control means.” Id. at 8:45–47. “The correction methods
`incorporate the measurement of brightness characteristics of the display” and
`“can be applied to selected pixels or all of the pixels.” Id. at 4:34–36. The
`measured data is stored and then “selectively retrieved during the operation
`of the display and used to scale and/or interpolate drive signals in real-time.”
`Id. at 4:39–44. Corrections are made with respect to a chosen reference
`
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`system such that any remaining gradual and abrupt brightness non-
`uniformities over the selected pixels fall below the human eye’s detectable
`luminance threshold under intended viewing conditions. Id. at 4:51–55.
`The luminance correction method is illustrated in Figure 4, reproduced
`below:
`
`
`Figure 4 is a block diagram of the luminance correction method,
`which includes data input, luminance scaler/adder 56, central random access
`memory 54, display controller 52, row drivers 52a, and column drivers 52b.
`Ex. 1008, 10:48–58. Luminance scaler/adder 56 receives data input, such as
`video data, and recomputes the color coordinates of the received data input
`based on luminance ratios stored in central random access memory 54. Id. at
`10:53–58. As a result of this recomputing, the color coordinates are
`normalized for the intended light display. Id. at 10:59–61. Then, display
`controller 52, which is operatively connected to row drivers 52a and column
`drivers 52b, receives the normalized data. Id. at 10:53–56. A modified pixel
`stream then is output to drivers 52a and 52b. Id. at 11:8–11.
`
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`
`3. Kamada (Ex. 1004)
`Kamada teaches a display correction circuit and a display apparatus
`that correct uneven image appearance caused by the display apparatus.
`Ex. 1004 ¶ 2. Kamada describes a memory that stores first data indicative of
`size and position of a rectangular region on the display screen and second
`data indicative of gray level changes in a surrounding region around the
`rectangular region in an isometric manner with respect to a horizontal and
`vertical direction. Id. ¶ 19. An image processing unit adjusts gray level of
`image data in response to the first data and second data. Id. The image
`processing apparatus is illustrated in Figure 1, reproduced below:
`
`
`Figure 1 is a diagram of the liquid crystal display apparatus that
`includes image processing apparatus 11, memory 12, signal source 13, and
`liquid crystal display panel 14. Ex. 1004 ¶¶ 41–42. Signal source 13
`supplies image data signals for display on liquid crystal display panel 14.
`Id. ¶ 42. Image processing apparatus 11 corrects the image data signals
`based on correction data stored by memory 12 and supplies the corrected
`image data signals to liquid crystal display panel 14. Id.
`An area to be corrected is specified by two points corresponding to the
`top left corner and the bottom right corner of a rectangular region. Id. ¶ 45.
`
`
`11
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`Constant correction value k, which corresponds to an amount of shift by
`which a gray level is changed, is applied to the rectangular region. Id.
`Constant correction value k is decreased gradually in a region surrounding
`the rectangular region, where the surrounding region has a specified width
`surrounding the rectangular region. Id. Thus, the correction value is k at the
`edge of the rectangular region and decreases to zero at the edge of the
`surrounding region. Id.
`4. Analysis
`Petitioner argues that Greene teaches all of the limitations of
`independent claim 101, except for the limitation “wherein the tolerance level
`varies among pixels of the display.” Pet. 38–42. Petitioner argues that
`Kamada teaches that a constant correction value is applied to a rectangular
`region, and the correction value gradually decreases in the surrounding
`region until it becomes zero. Pet. 40 (citing Ex. 1004 ¶ 45). Petitioner
`further argues that both Greene and Kamada are directed to suppressing non-
`uniformity or unevenness of light-output in pixel displays and that a person
`with ordinary skill in the art would have had reason to combine the teachings
`of Greene and Kamada in order to reduce the size of correction data that
`needs to be stored, an advantage taught by Kamada. Pet. 40–41 (citing
`Ex. 1004 ¶ 47).
`Patent Owner contends that Kamada fails to teach that “the tolerance
`level varies among pixels of the display.” PO Resp. 6–9. Patent Owner
`specifically argues that Kamada teaches correcting an uneven appearance,
`but fails to teach a “different ‘tolerance level’ of one pixel versus another.”
`PO Resp. 6.
`
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`
`We are persuaded by Patent Owner that Kamada fails to teach that
`“the tolerance level varies among pixels of the display.” As discussed
`above, we construe the term “tolerance level” to mean the permissible
`amount of deviation in luminosity that still provides an apparently uniform
`display. See supra Section I.E.1. As argued by Petitioner, Kamada teaches
`the application of a constant correction value in a specified region and the
`decrease of the constant correction value in the region surrounding the
`specified region. See Pet. 40 (citing Ex. 1004 ¶ 45). The correction value
`corresponds to an amount of shift by which a gray level is changed.
`Ex. 1004 ¶ 45. That is, the correction value defines the amount of gray level
`shift applied to each pixel. See Tr. 12:17–24. Therefore, the correction
`value and “tolerance level” are independent values, and, accordingly, we are
`not persuaded that Kamada’s teaching of a correction value meets the
`limitation “the tolerance level varies among pixels of the display.”
`Petitioner acknowledges that the constant correction value and
`tolerance levels are not the same values. Tr. 12:10–16. Petitioner, however,
`contends that the correction value and tolerance level are related, such that,
`for example, the lower the tolerance, the more correction that will be
`applied. Id. Petitioner also argues that “reducing the correction for pixels
`located in the surrounding region at the edge of the display implicitly
`recognizes that the threshold or tolerance level for pixels depends on the
`position of the pixel in the display.” Pet. 40. We are not persuaded that this
`can be inferred from Kamada. As discussed above, Kamada teaches the
`application of a constant correction value to pixels, and Kamada is silent as
`to the application of the correction value based on a “tolerance level.” See
`Ex. 1004 ¶ 45. Although Kamada teaches the application of the constant
`
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`correction value based on the location of the pixel, Kamada applies the same
`correction value regardless of the luminosity of the pixel. Ex. 1004 ¶ 45; see
`Tr. 12:17–24. As such, Kamada’s constant correction value is applied
`regardless of any “tolerance value,” and, therefore, we do not infer that an
`increase or decrease in the correction value would be based on a “tolerance
`value.”
`In addition, Patent Owner objects to Petitioner’s discussion of
`paragraph 696 of Kamada with respect to the limitation “wherein the
`tolerance level varies among pixels of the display” because Patent Owner
`argues that Petitioner raises this argument for the first time at the hearing,
`and did not present this rationale in the Petition. Tr. 25:19–23; see PO
`Resp. 3; Tr. 19:21–25, 20:6–8. We have reviewed Petitioner’s arguments
`with respect to claim 101 in the Petition, and we agree with Patent Owner
`that Petitioner did not present an analysis in the Petition that relies on
`paragraph 69 of Kamada as teaching “wherein the tolerance level varies
`among pixels of the display.” Instead, the Petition focused on the
`applicability of paragraphs 45 and 47 of Kamada to the limitation “wherein
`the tolerance level varies among pixels of the display.” See Pet. 39–40.
`Accordingly, Petitioner’s argument that paragraph 69 teaches this limitation
`is a new argument, and we will not consider it for the purposes of this
`Decision. See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
`
`
`6 Paper 20 identifies Patent Owner’s objection as to paragraph 49.
`Tr. 25:19–23. However, we recognize this to be a typographical error.
`During oral hearing, Patent Owner clearly identified paragraph 69, and,
`therefore, we address Patent Owner’s objection as to paragraph 69.
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`48,768 (Aug. 14, 2014) (“No new evidence or arguments may be presented
`at oral argument.”).
`
`III. CONCLUSION
`We are not persuaded that Petitioner has demonstrated by a
`preponderance of the evidence that claims 101–104 would have been
`obvious over Greene and Kamada.
`
`IV. ORDER
`Accordingly, it is hereby:
`ORDERED that, based on the grounds under review, claims 101–104
`of U.S. Patent No. RE43,707 E have not been shown by a preponderance of
`the evidence to be unpatentable; and
`FURTHER ORDERED that this is a Final Written Decision of the
`Board under 35 U.S.C. § 318(a), and parties to the proceeding seeking
`judicial review of this decision must comply with the notice and service
`requirements of 37 C.F.R. § 90.2.
`
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`For PETITIONER:
`Lead Counsel
`Marc Weinstein
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`marcweinstein@quinnemanuel.com
`
`FOR PATENT OWNER:
`
`Lead Counsel
`Kerry T. Hartman
`HARTMAN PATENTS PLLC
`khartman@hartmanpatents.com
`
`Back-up Counsel
`Jeffrey Morgan
`BARNES & THORNBURG LLP
`jeff.morgan@BTlaw.com
`
`
`
`
`16
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