`Entered: August 31, 2015
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`E-WATCH, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00413
`Patent 7,365,871 B2
`____________
`
`Before JAMESON LEE, GREGG I. ANDERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`DECISION
`On Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`IPR2015-00413
`Patent 7,365,871 B2
`
`
`
`
`
`Introduction
`Petitioner requests rehearing of the Board’s Decision declining to institute
`trial in this proceeding. Paper 14 (“Req. Rehg.”).
`Discussion
`Petitioner requests rehearing because the Board allegedly
`(1) “misapprehended the broadest reasonable construction of the term ‘select[ing]
`. . . the image,’” and (2) misapprehended the disclosure of the asserted prior art
`references. Req. Rehg. 1. Both reasons, in the absence of the Board’s having
`misapprehended or overlooked an assertion by Petitioner, merely reflect
`disagreement with the Board’s conclusion or determination. As such, they are an
`inappropriate basis for a rehearing request, which is not an opportunity to make
`further briefing before the Board. Petitioner does not identify any argument or
`assertion in the Petition that was misapprehended or overlooked.
`No further discussion is necessary. Nevertheless, we make several
`additional points. First, we correct a misstatement by Petitioner of our claim
`construction. According to Petitioner, the Board interpreted the various selecting
`limitations as requiring a selection from two or more images. Req. Rehg. 1–2, 4–7.
`That is incorrect. Note the following statement from the Decision: “But that does
`not cure the deficiency discussed above, in the context of limitation 1(j), regarding
`the selection of an already generated or digitized image.” Paper 13, 19 (emphasis
`added). In that regard, note further that limitation 1(j) requires the already
`generated image to be selected for “viewing” as well as for transmission, and that
`with regard to a similar limitation in claim 12, i.e., limitation 12(e), we stated:
`The cited text is not sufficiently on point, relative to the limitation that
`one or more stored images are selectable from memory for display.
`Instead, the image output from camera module 68 simply may be sent
`
`2
`
`
`
`IPR2015-00413
`Patent 7,365,871 B2
`
`
`
`
`
`both to the display and the memory. In that regard, Apple does not
`provide an adequate explanation.
`Paper 13, 19 (emphases added). Thus, taking a picture does not meet the
`requirement of selecting an already generated image for viewing or display.
`
`Second, Petitioner believes because we instituted a challenge based on a
`continuation application of the application that issued as Parulski in IPR2014-
`00439 based on a petition filed by another petitioner, we must do the same here.
`That also is incorrect. No final determination was made in the other proceeding,
`which has terminated. We must assess this Petition based on the arguments and
`evidence made herein without regard to the other proceeding.
`
`Third, Petitioner presents this new argument on page 11 of the rehearing
`request: “Any use of the keypad in a transmit mode, as opposed to an image
`capture mode, requires that the user select an ‘already generated’ image data signal
`for viewing or transmission.” Petitioner provides no citation to indicate where this
`contention was made in the Petition. It is inappropriate in a rehearing request.
`
`Fourth, Petitioner asserts in the rehearing request that its Petition had
`asserted that Umezawa discloses limitations 1(j), 6(n), and 12(e). Req. Rehg. 13.
`That is incorrect. The cited portions of the Petition, i.e., pages 44–45 and 48–49,
`indicate only that to the extent Patent Owner would argue that Parulski does not
`teach the “framing feature” or “framing aspect” of the claims, Umezawa discloses
`the framing limitation, to combine with the disclosure from Parulski, not that
`Umezawa itself discloses limitations 1(j), 6(n), and 12(e).
`
`Fifth, contrary to Petitioner’s assertion, the Board made no determination in
`IPR2015-00412 about Parulski or Parulski in combination with Umezawa.
`Conclusion
`The request for rehearing is denied.
`
`
`
`
`
`3
`
`
`
`
`
`
`
`IPR2015-00413
`Patent 7,365,871 B2
`
`FOR PETITIONER:
`Brian Buroker
`Blair Silver
`Gibson, Dunn & Crutcher LLP
`bburoker@gibsondunn.com
`bsilver@gibsondunn.com
`
`FOR PATENT OWNER
`
`Robert C. Curfiss
`bob@curfiss.com
`
`David O. Simmons
`IVC Patent Agency
`dsimmons1@sbcglobal.net
`
`
`4
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