UNITED STATES PATENT AND TRADEMARK OFFICE
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`__________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`__________________
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`PRIME FOCUS CREATIVE SERVICES CANADA, INC.,
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`Petitioner,
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`v.
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`LEGEND3D, INC.,
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`Patent Owner.
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`__________________
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`Case IPR2016-01243
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`Patent 7,907,793 B1
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`__________________
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`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 CFR § 42.64
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`Mail Stop Patent Board
`Patent Trial and Appeal Board
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`Case No.: IPR2016-01243
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`Docket No.: LF-L0018
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`I. INTRODUCTION
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`Pursuant to 37 Code of Federal Regulations (“CFR”) § 42.64(b)(1), Patent
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`Owner Legend3D, Inc. (“Patentee” or “LEGEND3D”) hereby submits the
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`following Objections to Evidence in relation to the filings by Petitioner Prime
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`Focus Creative Services Canada, Inc., (“Petitioner”) of the petitioner for inter
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`partes review (Paper 1) and accompanying exhibits. For these purposes, the
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`Federal Rules of Evidence (“FRE”) are applicable hereto. (37 CFR § 42.62(a))
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`II. OBJECTIONS TO EVIDENCE
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`Prime Focus Exhibit 1007 (Business Wire Dec. and Press Releases)
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`OBJECTION: The subject declaration fails to show that the declarant has
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`personal knowledge of the facts claimed, and the statements are hearsay and
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`multiple hearsay, lack proper foundation and authentication, are argumentative,
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`assume facts, and are based on inadmissible evidence (FRE, Rules 602, 611(a),
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`702, 703, 705, 801-802, 805, & 901). For example, the declarant does not indicate
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`how long he has been so employed and does not indicate that he is a custodian of
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`records or other qualified witness and trustworthiness has not been demonstrated.
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`Further, Exhibit 1 is hearsay and multiple hearsay, and lacks proper foundation and
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`authentication (FRE, Rules 801-802, 805, & 901); and Exhibit 2 is also hearsay
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`and multiple hearsay, and lacks proper foundation and authentication (FRE, Rules
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`801-802, 805, & 901). The subject information is also irrelevant (FRE, Rule 402)
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`and substantially more prejudicial than probative (FRE, 403).
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`Prime Focus Exhibit 1007 (Declaration of Dr. David Forsyth)
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`Forsyth Declaration, ¶¶ 1 through 97:
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`OBJECTION: The subject declaration is not under oath or affirmation or
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`penalty of perjury as required by law. (FRE, Rule 603; 28 United States Code §
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`1746; and 37 CFR §§ 1.68, 42.2, 42.53(a), 42.61(a), 42.63(a), Coalition for
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`Affordable Drugs IX, LLC v. Bristol-Myers Squibb Company, Case No. IPR01723,
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`at p. 6, fn. 5, (PTAB February 22, 2016) (Paper 10)) The aforesaid “declaration” is
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`therefore not evidence (see, e.g., Gemtron Corp. v. Saint-Gobain Corp. (Fed. Cir.
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`2009) 572 F.3d 1371, 1380 [unsworn attorney argument is not evidence]), Patentee
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`moves and will move to exclude and/or strike the subject “declaration” as not in
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`compliance with the law, and therefore the subject petition is unsupported by any
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`evidence and this defect is fatal to the petition.
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`Forsyth Declaration, ¶ 2:
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`2. … It is my opinion that the prior art references in the associated
`petition for IPR render all of the claims of the ‘793 Patent (i.e., Claims 1 through
`20) obvious. …
`OBJECTION: The subject statements are legal conclusions. (Nationwide
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`Transport Finance v. Cass Information Systems, Inc. (9th Cir. 2008) 523 F.3d
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`1051, 1058-1060) The subject statements additionally lack proper foundation and
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`authentication and/or are based on inadmissible evidence (FRE, Rules 611(a), 702,
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`703, 705, 801-802, & 901). The subject statements are also irrelevant (FRE, Rule
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`402) and substantially more prejudicial than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶ 6:
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`I have been asked to assume, for my analysis, that the claims of the
`6.
`challenged ‘793 Patent have a priority date of August 17, 2009 (its filing date).
`To the extent that Patent Owner argues for a different priority date, I reserve the
`right to supplement my declaration to address those arguments.
`OBJECTION: The subject statements misstate the evidence, are
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`argumentative, assume facts, lack proper foundation and authentication, and/or are
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`based on inadmissible evidence (FRE, Rules 611(a), 702, 703, 705, 801-802, &
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`901). The subject statements are legal conclusions. (Nationwide Transport
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`Finance v. Cass Information Systems, Inc. (9th Cir. 2008) 523 F.3d 1051, 1058-
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`1060) The subject statements are also irrelevant (FRE, Rule 402) and substantially
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`more prejudicial than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶ 8:
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`I understand that, due to procedural limitations for IPR proceedings,
`8.
`the grounds of invalidity discussed herein are based solely on prior art patents and
`other printed publications. I understand that Petitioner reserves all rights to assert
`at a later time other grounds for invalidity not addressed herein, for instance
`failure of the application to claim patentable subject matter under 35 U.S.C. §
`101, failure to meet requirements under 35 U.S.C. § 112 (e.g., lack of written
`description in support of the claims), and anticipation or obviousness under 35
`U.S.C. §§ 102 and 103 not based solely on patents and printed publications (e.g.,
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`evidence of prior use). Thus, the absence of discussion of such matters here
`should not be interpreted as indicating that there are no such additional grounds
`for invalidity of the ‘793 Patent. Similarly, absence of discussion of other printed
`prior art references here should not be interpreted as indicating that there are no
`other printed prior art references that either anticipate or render obvious the ‘793
`Patent.
`OBJECTION: The subject statements are legal conclusions. (Nationwide
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`Transport Finance v. Cass Information Systems, Inc. (9th Cir. 2008) 523 F.3d
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`1051, 1058-1060) The subject statements additionally lack proper foundation and
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`authentication, are argumentative, are hearsay and multiple hearsay, and/or are
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`based on inadmissible evidence (FRE, Rules 611(a), 702, 703, 705, 801-802, 805,
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`& 901). The subject statements are also irrelevant (FRE, Rule 402) and
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`substantially more prejudicial than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶¶ 18 through 30:
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`I am not a patent attorney and my opinions are limited to what I
`18.
`believe a person of ordinary skill in the art would have understood. I use the
`principles below, however, as a guide in formulating my opinions.
`19. My understanding is that a primary step in determining the validity of
`patent claims is to properly construe the claims to determine claim scope and
`meaning.
`In an IPR proceeding, I understand that claims are to be given their
`20.
`broadest reasonable construction in light of the patent’s specification. 37 C.F.R. §
`42.100(b). For the purposes of this IPR, I have construed each claim term in
`accordance with its plain and ordinary meaning under the required broadest
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`reasonable construction. In other forums, such as in federal courts, different
`standards of proof and claim interpretation control, which are not applied by the
`patent office for IPR. Accordingly, I reserve the right to argue for a different
`interpretation or construction of the challenged claims in other proceedings, as
`appropriate. For the purposes of this IPR, however, my opinions on invalidity
`would not change regardless of what standard for claim construction is applied by
`the Patent Trial and Appeal Board (PTAB).
`21.
`It is my understanding that a claim is anticipated under 35 U.S.C. §
`102 if each and every element and limitation of the claim is found either expressly
`or inherently in a single prior art reference. I understand that anticipation is a
`question of fact. I further understand that the requirement of strict identity
`between the claim and the reference is not met if a single element or limitation
`required by the claim is missing from the applied reference.
`22.
`It is my understanding that a claim is unpatentable under 35 U.S.C. §
`103 if the claimed subject matter as a whole would have been obvious to a person
`of ordinary skill in the art at the time of the alleged invention. I understand that
`obviousness is a question of law based on underlying factual issues. I also
`understand that an obviousness analysis takes into account the scope and content
`of the prior art, the differences between the claimed subject matter and the prior
`art, the level of ordinary skill in the art at the time of the invention, and the
`existence of secondary considerations such as commercial success or long-felt but
`unresolved needs.
`23.
`In determining the scope and content of the prior art, it is my
`understanding that a reference is considered appropriate prior art if it falls within
`the field of the inventor’s endeavor. In addition, I understand that a reference is
`prior art if it is reasonably pertinent to the particular problem with which the
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`inventor was involved. A reference is reasonably pertinent if it logically would
`have commended itself to an inventor’s attention in considering his problem. If a
`reference relates to the same problem as the claimed invention, that supports the
`use of the reference as prior art in an obviousness analysis.
`24. To assess the differences between prior art and the claimed subject
`matter, it is my understanding that 35 U.S.C. § 103 requires the claimed invention
`to be considered as a whole. This “as a whole” assessment requires showing that
`one of ordinary skill in the art at the time of invention, confronted by the same
`problems as the inventor and with no knowledge of the claimed invention, would
`have selected the elements from the prior art and combined them in the claimed
`manner.
`It is my further understanding that the Supreme Court has recognized
`25.
`several rationales for combining references or modifying a reference to show
`obviousness of claimed subject matter. Some of these rationales include:
`combining prior art elements according to known methods to yield predictable
`results; simple substitution of one known element for another to obtain predictable
`results; use of a known technique to improve similar devices (methods or
`products) in the same way; applying a known technique to a known device
`(method or product) ready for improvement to yield predictable results; choosing
`from a finite number of identified, predictable solutions, with a reasonable
`expectation of success; known work in one field of endeavor prompting variations
`of it for use in either the same field or a different one based on design incentives
`or other market forces if the variations are predictable to one of ordinary skill in
`the art; and some teaching, suggestion, or motivation in the prior art that would
`have led one of ordinary skill to modify the prior art reference or to combine prior
`art reference teachings to arrive at the claimed invention.
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`It is further my understanding that a proper obviousness analysis
`26.
`focuses on what was known or obvious to a person of ordinary skill in the art, not
`just the patentee. Accordingly, I understand that any need or problem known in
`the field of endeavor at the time of invention and addressed by the patent can
`provide a reason for combining the elements in the manner claimed.
`27.
`I understand that a claim can be obvious in light of a single reference,
`without the need to combine references, if the elements of the claim that are not
`found explicitly or inherently in the reference can be supplied by the common
`sense of one of skill in the art.
`28.
`I understand that secondary indicia of non-obviousness may include:
`(1) a long felt but unmet need in the prior art that was satisfied by the invention of
`the patent; (2) commercial success of processes covered by or products made by
`the patent; (3) unexpected results achieved by the invention; (4) praise of the
`invention by others skilled in the art; (5) licensing of the patent by others; (6)
`deliberate copying of the invention; (7) failure of others to find a solution to the
`long felt need; and (8) skepticism by experts. I also understand that there must be
`a relationship between any such secondary considerations and the invention. I
`further understand that contemporaneous and independent invention by others is a
`secondary consideration supporting an obviousness determination.
`29.
`In sum, my understanding is that prior art teachings are properly
`combined where a person of ordinary skill in the art having the understanding and
`knowledge reflected in the prior art and motivated by the general problem facing
`the inventor would have been led to make the combination of elements recited in
`the claims. Under this analysis, the prior art references themselves, or any need or
`problem known in the field of endeavor at the time of the invention, can provide a
`reason for combining the elements of multiple prior art references in the claimed
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`manner.
`It is my understanding that the ‘793 Patent should be interpreted based
`30.
`on how it would be read by a person of ordinary skill in the art at the time of the
`effective filing date of the application. It is my understanding that factors such as
`the education level of those working in the field, the sophistication of the
`technology, the types of problems encountered in the art, the prior art solutions to
`those problems, and the speed at which innovations are made may help establish
`the level of skill in the art.
`OBJECTION: The subject statements are legal conclusions. (Nationwide
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`Transport Finance v. Cass Information Systems, Inc. (9th Cir. 2008) 523 F.3d
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`1051, 1058-1060) The subject statements additionally lack proper foundation and
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`authentication, are hearsay or multiple hearsay, and/or are based on inadmissible
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`evidence (FRE, Rules 611(a), 702, 703, 705, 801-802, 805, & 901). The subject
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`statements are also irrelevant (FRE, Rule 402) and substantially more prejudicial
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`than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶¶ 36-38:
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`36. The ‘793 Patent is directed to making production of stereoscopic
`movies more efficient. Stereopsis is an effect where human observers perceive
`depth when the image presented to the left eye is slightly different from the image
`presented to the right eye. If only one image is available, a second image must be
`created. A visual effects artist can begin the conversion process of a single image
`into a pair of stereoscopic images by determining the depth of each object in a
`frame relative to the camera. For example, in a frame of a horse jumping
`presented in the association Petition, the visual artist could begin by deciding that
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`the horse is 10 feet away and that the background is 100 feet away; a computer
`can then use that information to compute a second view. The shot will be
`composed of a sequence of frames and the artist must ensure that the depths are
`consistent throughout the shot. The technologies of the ‘793 Patent reduce the
`artist’s workload by helping with the initial determination of the depth of objects
`in an image sequence. See Ex. 1001, ‘793 Patent at col. 1 l. 21-25. Furthermore,
`the technologies of the ‘793 Patent help to propagate the choices an artist has
`made to future frames in the image sequence.
`37. The motion objects in the foreground are managed by creating a
`“mask” of the object. See id. at col. 35 l. 48-49. The mask is then copied to the
`next frame in the sequence and moved and reshaped so that it fits the same motion
`object in the next frame, and so on. See id. at col. 35 l. 50 – col. 36 l. 1-2. The
`visual artist then decides the depth of the motion object in the first frame (e.g., the
`horse is 10 feet away) and that depth is applied to the motion object in the second
`and further frames. See id. at col. 36 l. 3-6.
`38. The sequence is then reconstructed from the composite background
`and the foreground object or objects. See id. at col. 35 l. 1-3. This approach helps
`ensure consistency across the scene so that the barn always appears to be 100 feet
`away and the horse always appears to be 10 feet away.
`OBJECTION: The subject statements misstate the evidence, are
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`argumentative, and the best evidence is the document being referred to itself
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`(FRE, Rules 611(a) & 1002). The subject statements are also irrelevant (FRE,
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`Rule 402) and substantially more prejudicial than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶ 39:
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`39. The ‘081 Patent and ‘670 Patents both claim a “color” parameter,
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`whereas the ‘793 Patent claims a “depth” parameter. “Color” and “depth”
`parameters are very different. A “color” parameter relates to the visible hue,
`saturation or lightness of an object while a “depth” parameter relates to the
`perceived distance of an object from the camera. These concepts are entirely
`distinct and do not really overlap.
`OBJECTION: The subject statements misstate the evidence, constitute an
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`improper/incomplete hypothetical, are argumentative, lack proper foundation and
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`authentication, and assume facts (FRE, Rules 611(a), 702, 703, 705, & 901). For
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`example, “color” as used in the predecessor patents includes the HSL color space
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`model consisting of hue, saturation, and luminance wherein saturation and
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`luminance affect “depth” perception such that the subject testimony contravenes
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`the rule of completeness (FRE, Rule 106). Further, the best evidence is the
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`document being referred to itself (FRE, Rule 1002). The subject statements are
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`also irrelevant (FRE, Rule 402) and substantially more prejudicial than probative
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`(FRE, Rule 403).
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`Forsyth Declaration, ¶ 40:
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`40. The ‘081 and ‘670 Patents relate to colorization. Neither the ‘081
`Patent nor the ‘670 Patents discuss “depth” (other than to mention the “bit depth”
`to which a film is digitized), nor do they discuss 3D conversion more generally.
`Without any discussion whatsoever about depth or 3D conversion, a person of
`ordinary skill in the art could not possibly have recognized that the inventor of the
`‘081 Patent or ‘670 Patent had possession of the depth-related invention of the
`‘793 Patent when those older patents were filed. Since “color” and “depth” are
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`distinct concepts, as discussed above, nothing in the disclosures of the ‘081 or
`‘670 Patents would have indicated to a person of ordinary skill in the art to think
`about depth or 3D conversion when reading those patents.
`OBJECTION: The subject statements misstate the evidence, constitute an
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`improper/incomplete hypothetical, are argumentative, lack proper foundation and
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`authentication, and assume facts (FRE, Rules 611(a), 702, 703, 705, & 901). For
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`example, “color” as used in the predecessor patents includes the HSL color space
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`model consisting of hue, saturation, and luminance wherein saturation and
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`luminance affect “depth” perception such that the subject testimony contravenes
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`the rule of completeness (FRE, Rule 106). Further, the best evidence is the
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`document being referred to itself (FRE, Rule 1002). The subject statements are
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`also irrelevant (FRE, Rule 402) and substantially more prejudicial than probative
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`(FRE, Rule 403). To the extent that these statements purport to improperly
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`incorporate by reference other statements, which is objected to (In Re Magnum Oil
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`Tool Int’l, Ltd. (Fed. Cir. 2016) 829 F.3d 1364, 1379), the corresponding
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`objections to those statements are incorporated herein by this reference.
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`Forsyth Declaration, ¶ 41:
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`41. Comparing the specifications of the ‘081, ‘670, and ‘793 Patents, it
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`can be seen that a substantial amount of new information was added going from
`the older ‘081 and ‘670 Patents to the ‘793 Patent. See Exs. 1014 and 1015. This
`new information actually teaches how to use the method of the ‘793 Patent for
`purposes of 3D conversion. Only after all of this new matter related to 3D
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`conversion was added could a person of ordinary skill the art recognize that the
`inventor had possession of the depth-related invention claimed in the ‘793 Patent.
`OBJECTION: The subject statements misstate the evidence, constitute an
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`improper/incomplete hypothetical, are argumentative, lack proper foundation and
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`authentication, and assume facts (FRE, Rules 611(a), 702, 703, 705, & 901). For
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`example, “color” as used in the predecessor patents includes the HSL color space
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`model consisting of hue, saturation, and luminance wherein saturation and
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`luminance affect “depth” perception such that the subject testimony contravenes
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`the rule of completeness (FRE, Rule 106). The subject statements regarding
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`alleged “new matter” are legal conclusions. (Nationwide Transport Finance v.
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`Cass Information Systems, Inc. (9th Cir. 2008) 523 F.3d 1051, 1058-1060)
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`Additionally, the statements in relation to and Exhibits 1014 and 1015 are
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`argumentative and lack proper foundation and authentication (FRE, Rules 611(a),
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`702, 703, 705, & 901) and, because demonstrative evidence is simply used as
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`a testimonial aid, it is generally not admitted into the evidentiary record and is
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`ordinarily excluded (FRE, Rule 611(a), and see United States v. Cox (9th Cir.
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`1980) 633 F.2d 871, 874). The foregoing exhibits also lacks foundation and
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`authentication and authentication (FRE, Rule 901; Bradshaw v. FFE Transp.
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`Services, Inc. (8th Cir. 2013) 715 F.3d 1104, 1109) Further, the best evidence is
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`the document being referred to itself (FRE, Rule 1002). The subject statements are
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`also irrelevant (FRE, Rule 402) and substantially more prejudicial than probative
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`(FRE, Rule 403).
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`Forsyth Declaration, ¶ 42:
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`I understand that, since the ‘793 Patent cannot claim priority to the
`42.
`‘081 Patent or the ‘670 Patent, both the ‘081 Patent and the ‘670 Patent qualify at
`least as pre-AIA 35 U.S.C. § 102(b) prior art against the ‘793 patent.
`OBJECTION: The subject statements lack proper foundation and
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`authentication, misstate the evidence, are argumentative, assume facts, are hearsay
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`or multiple hearsay, and/or are based on inadmissible evidence (FRE, Rules
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`611(a), 702, 703, 705, 801-802, 805, & 901). The subject statements are legal
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`conclusions. (Nationwide Transport Finance v. Cass Information Systems,
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`Inc. (9th Cir. 2008) 523 F.3d 1051, 1058-1060) The subject statements are also
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`irrelevant (FRE, Rule 402) and substantially more prejudicial than probative (FRE,
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`Rule 403).
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`Forsyth Declaration, ¶ 43:
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`43. There are several approaches to converting a single 2D image into a
`pair of complementary images that appear 3D. One such method is to rebuild the
`3D geometry of a scene with a computer, project the original image onto it, and
`render the two different points of view. U.S. Patent No. 7,573,475 to Sullivan
`(“Sullivan”) embodies such a technique. I understand that Sullivan qualifies at
`least as pre-AIA 35 U.S.C. § 102(b) prior art against the ‘793 patent.
` OBJECTION: The subject statements lack proper foundation and
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`authentication, misstate the evidence, are argumentative, assume facts, are hearsay
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`or multiple hearsay, and/or are based on inadmissible evidence (FRE, Rules
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`611(a), 702, 703, 705, 801-802, 805, & 901). The best evidence is the document
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`being referred to itself (FRE, Rule 1002). The last statement is a legal conclusion.
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`(Nationwide Transport Finance v. Cass Information Systems, Inc. (9th Cir. 2008)
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`523 F.3d 1051, 1058-1060) The subject statements are also irrelevant (FRE, Rule
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`402) and substantially more prejudicial than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶ 44:
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`44. Another method of 3D conversion involves shifting pixels
`horizontally. A visual artist can simply slide pixels left and right within an image
`so that an object appears as it would to each eye if the object were at a particular
`distance from the viewer. U.S. Patent Application No. 12/341,992 (“Passmore”)
`embodies one such approach. I understand that Passmore qualifies at least as pre-
`AIA 35 U.S.C. § 102(e) prior art against the ‘793 patent.
`OBJECTION: The subject statements lack proper foundation and
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`authentication, misstate the evidence, are argumentative, assume facts, are hearsay
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`or multiple hearsay, and/or are based on inadmissible evidence (FRE, Rules
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`611(a), 702, 703, 705, 801-802, 805, & 901). The best evidence is the document
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`being referred to itself (FRE, Rule 1002). The last statement is a legal conclusion.
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`(Nationwide Transport Finance v. Cass Information Systems, Inc. (9th Cir. 2008)
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`523 F.3d 1051, 1058-1060) The subject statements are also irrelevant (FRE, Rule
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`Case No.: IPR2016-01243
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`Docket No.: LF-L0018
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`402) and substantially more prejudicial than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶ 45:
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`45. There is substantial motivation to combine/modify the ‘081 Patent
`with Passmore or Sullivan, the ‘670 Patent with Passmore or Sullivan, the ‘081
`Patent with the ‘670 Patent and Passmore, and the ‘081 Patent with the ‘670
`Patent and Sullivan.
`OBJECTION: The subject statements lack proper foundation and
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`authentication, misstate the evidence, are argumentative, assume facts, and/or are
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`based on inadmissible evidence (FRE, Rules 611(a), 702, 703, 705, & 901). The
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`statements are legal conclusions. (Nationwide Transport Finance v. Cass
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`Information Systems, Inc. (9th Cir. 2008) 523 F.3d 1051, 1058-1060) The subject
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`statements are also irrelevant (FRE, Rule 402) and substantially more prejudicial
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`than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶ 46:
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`46. All of these publications are in the same field of endeavor—image
`analysis and image enhancement. The ‘793 Patent expressly states as such:
`“related to the field of image analysis and image enhancement.” See Ex. 1001,
`‘793 Patent at col. 1 l. 19-21. The ‘793 Patent therefore admits that it falls within
`the same field of endeavor as the ‘081 and ‘670 Patents based on their patent
`classification. The ‘793 Patent is also clearly within the same field of endeavor as
`Passmore and Sullivan since they all teach methods of 3D conversion. All of these
`references may therefore be considered analogous art because they are all within
`the same field of endeavor.
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`15
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`Case No.: IPR2016-01243
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`Docket No.: LF-L0018
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`OBJECTION: The subject statements lack proper foundation and
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`authentication, misstate the evidence, are argumentative, assume facts, and/or are
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`based on inadmissible evidence (FRE, Rules 611(a), 702, 703, 705, 801-802, 805,
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`& 901). The best evidence is the document being referred to itself (FRE, Rule
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`1002). The statements are legal conclusions. (Nationwide Transport Finance v.
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`Cass Information Systems, Inc. (9th Cir. 2008) 523 F.3d 1051, 1058-1060) The
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`subject statements are also irrelevant (FRE, Rule 402) and substantially more
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`prejudicial than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶ 47:
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`47. The teachings of the ‘081 and ‘670 Patents are extremely pertinent to
`the particular problem addressed in the ‘793 Patent. The ‘793 Patent shares the
`majority of its disclosure with the ‘081 and ‘670 Patents, acknowledging that the
`older patents are pertinent to the ‘793 Patent. Passmore and Sullivan, which teach
`how to convert images into 3D, are also clearly pertinent to the particular problem
`with which the inventor of the ‘793 Patent was involved because they all relate to
`the same problem—3D conversion. Again, all of these references may be
`considered analogous art because they are all pertinent to the particular problem
`addressed by the inventor of the ‘793 Patent.
`OBJECTION: The subject statements lack proper foundation and
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`authentication, misstate the evidence, are argumentative, assume facts, and/or are
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`based on inadmissible evidence (FRE, Rules 611(a), 702, 703, 705, 801-802, 805,
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`& 901). For example, not all “3D” conversion is “stereoscopic 3D” conversion as
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`16
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`Case No.: IPR2016-01243
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`Docket No.: LF-L0018
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`assumed by the declarant and the ‘793 Patent contains no “stereoscopic 3D”
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`conversion claims evidencing the distinction. The best evidence is the document
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`being referred to itself (FRE, Rule 1002). The statements are legal conclusions.
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`(Nationwide Transport Finance v. Cass Information Systems, Inc. (9th Cir. 2008)
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`523 F.3d 1051, 1058-1060) The subject statements are also irrelevant (FRE, Rule
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`402) and substantially more prejudicial than probative (FRE, Rule 403).
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`Forsyth Declaration, ¶ 48:
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`48. The Passmore and Sullivan prior art references contain teachings,
`suggestions, and motivations that would have led one of ordinary skill in the art to
`modify either or both the ‘670 or ‘081 Patents to arrive at the challenged ‘793
`Patent. For example, Passmore states:
`Embodiments of the [3D-related] invention may use pre- existing digital
`masks that exist for movies. One such source of digital masks is movies that
`have been colorized. Colorized movies generally utilize digital masks that
`are either raster or vector based areas that define portions of a movie where a
`palette of color is to be applied. As these masks generally define human
`observable objects that also are associated by the human mind at a given
`depth, these masks may be utilized by embodiments of the invention to
`augment the depth of an image. The enormous effort of generating masks for
`an entire movie may thus be leveraged.
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`Ex. 1005, Passmore at ¶ 48. These strong market forces—i.e., the benefit in
`leveraging substantial amounts of previous manual labor—would have prompted
`the variation of the methods of the ‘670 and ‘081 Patents (which would have
`produced a large number of masks during the colorization process) for use in 3D
`conversion with predictable results. All that is required is the simple substitution
`of one known element from Passmore or Sullivan—depth—for another element
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`17
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`Case No.: IPR2016-01243
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`Docket No.: LF-L0018
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`from the ‘670 or ‘081 Patents—color—to obtain predictable results.
`OBJECTION: The subject statements lack proper foundation and
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`authentication, misstate the evidence, are argumentative, assume facts, and/or are
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`based on inadmissible evidence (FRE, Rules 611(a), 702, 703, 705, 801-802, 805,
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`& 901). For example, “color” as used in the predecessor patents includes the color
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`space model consisting of hue, saturation, and luminance wherein saturation and
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`luminance affect “depth” perception such that the subject testimony contravenes
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`the rule of completeness (FRE, Rule 106). Furthermore, not all “3D” conversion is
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`“stereoscopic 3D” conversion as assumed by the declarant and the ‘793 Patent
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`contains no “stereoscopic 3D” conversion claims evidencing the distinction. The
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`best evidence is the document being referred to itself (FRE, Rule 1002). The
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`statements regarding certain things being prior art and motivations are legal
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`conclusions. (Nationwide Transport Finance v. Cass Information Systems,
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`Inc. (9th Cir. 2008) 523 F.3d 1051, 1058-1060) The subject statements are also
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`irrelevant (FRE, Rule 402) and substantially more prejudicial than probative (FRE,
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`Rule 403).
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`Forsyth Declaration, ¶ 49:
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`I am familiar with Business Wire as a periodical that publishes press
`49.
`releases. Business Wire is a reliable authority with respect to press release news
`about individual companies. To the extent that I am interested in learning about a
`development at a parti