Case IPR2014-00358
`Attorney Docket No. CA0006P
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`Patent No. US RE43,707 E
`Page 1 of 8
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________
`
`EIZO CORPORATION
`Petitioner
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`v.
`
`BARCO N.V.
`Patent Owner
`___________
`
`Case IPR2014-00358
`Patent No. US RE43,707 E
`___________
`
`PATENT OWNER’S REQUEST FOR REHEARING
`
`
`
`
`Attorney Docket No. CA0006P
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`
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`Patent No. US RE43,707 E
`Page 1 of 8
`
`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 No. US RE43,707 E
`___________
`
`PATENT OWNER’S REQUEST FOR REHEARING
`
`
`
`
`
`Case IPR2014-00358
`Attorney Docket No. CA0006P
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`I.
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`INTRODUCTION
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`Patent No. US RE43,707 E
`Page 2 of 8
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`Patent Owner Barco N.V. respectfully requests a rehearing pursuant to 37
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`C.F.R. § 42.71(c) for partial reconsideration of the Board’s Decision to Institute
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`Trial (Paper 11) with respect to claims 101-104 in view of Greene and Kamada.
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`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition, a
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`panel will review the decision for an abuse of discretion.” The Federal Circuit has
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`held that “[a]n abuse of discretion occurs where the decision is based on an
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`erroneous interpretation of the law, on factual findings that are not supported by
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`substantial evidence, or represents an unreasonable judgment in weighing relevant
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`factors.” Gose v. United States Postal Service, 451 F.3d 831, 836 (Fed. Cir. 2006)
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`(internal quotations omitted); see also O'Keefe v. U.S. Postal Service, 318 F.3d
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`1310, 1314 (Fed. Cir. 2002) (“The Board necessarily abuses its discretion when it
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`rests its decision on factual findings unsupported by substantial evidence.”)
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`(internal quotations omitted).
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`Under 37 C.F.R. § 42.71(d), “[t]he request must specifically identify all
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`matters the party believes the Board misapprehended or overlooked, and the place
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`where each matter was previously addressed in a motion, an opposition, or a
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`reply.”
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`Case IPR2014-00358
`Attorney Docket No. CA0006P
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`II. REQUEST FOR RECONSIDERATION
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`Patent No. US RE43,707 E
`Page 3 of 8
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`Claim 101 recites, inter alia, “wherein the tolerance level varies among
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`pixels of the display.” Claims 102-104 depend from claim 101.
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`In the Decision, the Board noted the Petitioner’s acknowledgment that
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`Greene fails to disclose this feature. However, the Board found disclosure of this
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`feature in Kamada:
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`“Kamada describes a constant correction value k that is applied to a
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`rectangular region and this constant correction value is gradually
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`decreased to zero as applied to the surrounding region. Ex. 1004 ¶ 45.
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`In other words, Kamada is describing the desired response of having a
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`lower degree of non-uniformity for pixels in the rectangular region
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`and a graduating lower degree of non-uniformity in the surrounding
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`region. The difference in the desired degrees of non-uniformity is a
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`variance in the tolerance level.” (Paper 11 at pp. 23-24, emphasis
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`added).
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`Patent Owner respectfully notes that the conclusion emphasized above is not
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`argued in the Petition’s challenges to any of claims 101-104.
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`In its claim chart for claim 64, the Petitioner did argue that “By applying a
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`reduced correction value for the surrounding region, pixels in the central
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`Case IPR2014-00358
`Attorney Docket No. CA0006P
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`rectangular region have a lower degree of non-uniformity than pixels in the
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`Patent No. US RE43,707 E
`Page 4 of 8
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`surrounding region at the edge of the display.” (Corrected Petition at p. 32) It
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`appears that this argument as to claim 64 may be the source of the Board’s
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`conclusion above as to claim 101.
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`In its Preliminary Response, Patent Owner refuted the Petitioner’s argument
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`as to claim 64 at length (pp. 22-27). Because the Petition was otherwise defective
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`as to claim 64, however, it was not necessary for the Board to consider the Patent
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`Owner’s rebuttal.
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`Patent Owner respectfully submits that the lack of a need to consider the
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`Patent Owner’s rebuttal inadvertently led the Board to a factual conclusion that is
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`not supported by the evidence. Patent Owner Barco N.V. respectfully requests
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`reconsideration of the Board’s conclusion in light of Patent Owner’s rebuttal
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`already of record.
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`Patent Owner does NOT seek to introduce new argument at this time. Patent
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`Owner only petitions the Board to reconsider the above factual conclusion on the
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`basis of the arguments against the same conclusion that were presented already in
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`the Preliminary Response and possibly overlooked due to the particular procedural
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`stance of this proceeding. The basis of the Patent Owner’s request are the
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`Case IPR2014-00358
`Attorney Docket No. CA0006P
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`following three paragraphs, which appear below exactly as originally presented in
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`Patent No. US RE43,707 E
`Page 5 of 8
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`Patent Owner’s Preliminary Response at pages 25-26:
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`*****>
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`As near as can be determined, the Petition contends that Kamada ‘reduces’
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`the correction value within the surrounding region in order to create non-
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`uniformity. Again, what the cited reference actually teaches is essentially the
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`opposite of what the Petition alleges. In this case, Kamada actually teaches that
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`the width w1 of the region at issue -- the surrounding region within which the
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`correction value is ‘reduced’ -- is selected for proper correction of a particular
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`uneven appearance of a display, not to create a “desired” non-uniformity:
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`In FIG. 6, Kamada presents examples of values for the first and second data
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`for correcting six different types of uneven appearance. To properly correct a
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`circular uneven appearance, the size of the rectangular region may be as small as a
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`single point, and the appropriate width of the surrounding region may be many
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`times more than that of the rectangular region (see, e.g., para. [0054] and the first
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`two examples from FIG. 6). To properly correct a particular horizontal or vertical
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`band uneven appearance, the widths of the rectangular region and of the
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`surrounding region may be selected according to the characteristics of the
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`particular band (see, e.g., para. [0054] and the first two examples from FIG. 6). To
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`Case IPR2014-00358
`Attorney Docket No. CA0006P
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`successfully correct a shot uneven appearance, the width w1 of the surrounding
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`Patent No. US RE43,707 E
`Page 6 of 8
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`region is set to zero (see para. [0055] and the fifth example from FIG. 6). In a
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`further example, the width of the rectangular correction region may be set
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`substantially equal to one line, providing for a streak uneven appearance to be
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`properly corrected (para. [0055] and the last example from FIG. 6).
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`The Petition argues that “By applying a reduced correction value for the
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`surrounding region, pixels in the central rectangular region have a lower degree of
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`non-uniformity than pixels in the surrounding region at the edge of the display”
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`(Paper No. 4 at 32). In fact, as demonstrated above, Kamada explicitly teaches
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`setting the dimensions of the rectangular and surrounding regions according to the
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`particular uneven appearance to be corrected. Kamada thereby teaches that by
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`applying an appropriate correction value to each pixel in the surrounding region,
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`such uneven appearance of the display can be properly corrected. Kamada does
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`not teach that pixels in the surrounding region of a corrected display will have a
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`degree of non-uniformity that is higher or lower than for pixels in the rectangular
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`region, or any “desired” non-uniformity, and the Petition’s contradictory
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`allegations have no basis in the cited teachings.
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`<*****
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`Case IPR2014-00358
`Attorney Docket No. CA0006P
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`Patent No. US RE43,707 E
`Page 7 of 8
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`The Patent Owner respectfully notes that it specifically cited the arguments
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`above in its defense of claim 101: “As demonstrated at length above, what Kamada
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`actually teaches is to set the dimensions of the rectangular and surrounding regions
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`according to a particular uneven appearance to be corrected.” (Preliminary
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`Response at p. 27, emphasis in original) Clearly, the “proper correction” which
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`Kamada stipulates repeatedly means to cancel non-uniformity at each corrected
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`pixel, not to somehow create different degrees of it.
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`Patent Owner respectfully reiterates that “In light of these actual teachings,
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`the Petition’s statement that ‘[Kamada teaches] reducing the correction for pixels
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`on the edge of the display … in implicit recognition of the different tolerance level
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`for those pixels’ (p. 41) is simply fiction.” (Preliminary Response, p. 27)
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`For at least this reason, the Petition fails to show a reasonable likelihood of
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`prevailing with respect to any of claims 101-104.
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`The Board is hereby authorized to charge any fees or costs associated with
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`this submission to Deposit Account No. 506021.
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`Date: July 26, 2014
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`Reg. No. 41,818
`Tel. No. (703) 499-9594
`Fax No. (703) 499-9594
`Customer No. 49108
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`____/Kerry Hartman/____________
`Signature of Practitioner
`Kerry T. Hartman
`HARTMAN PATENTS PLLC
`3399 Flint Hill Pl.
`Woodbridge, VA 22192
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`Case IPR2014-00358
`Attorney Docket No. CA0006P
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`CERTIFICATE OF SERVICE
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`Patent No. US RE43,707 E
`Page 8 of 8
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`The undersigned hereby certifies that a copy of this document has been
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`served in its entirety (including a copy of this certificate) on the Petitioner via
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`FedEx International Priority service directed to the following name and address,
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`via electronic mail directed to marcweinstein@quinnemanuel.com, and via the
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`Patent Review Processing System:
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`
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`Marc K. Weinstein
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`Quinn Emanuel Urquhart & Sullivan LLP, NBF Hibiya Bldg., 25F,
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`1-1-7 Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-0011, Japan
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`____/Kerry Hartman/____________
`Signature of Practitioner
`Kerry T. Hartman
`HARTMAN PATENTS PLLC
`3399 Flint Hill Pl.
`Woodbridge, VA 22192
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`
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`Date: July 26, 2014
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`Reg. No. 41,818
`Tel. No. (703) 499-9594
`Fax No. (703) 499-9594
`Customer No. 49108
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