UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`Petitioners,
`
`v.
`
`IMAGE PROCESSING TECHNOLOGIES LLC,
`Patent Owner.
`_________________
`
`Case IPR2017-00336 (Patent 6,959,293 B2)
`Case IPR2017-00353 (Patent 8,983,134 B2)
`_________________
`
`Record of Oral Hearing
`Held: February 21, 2018
`________________
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`
`
`
`Before JONI Y. CHANG, MICHAEL R. ZECHER, and JESSICA C.
`KAISER, Administrative Patent Judges.
`
`
`
`
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`
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`Petitioners,
`
`v.
`
`IMAGE PROCESSING TECHNOLOGIES LLC,
`Patent Owner.
`_________________
`
`Case IPR2017-00336 (Patent 6,959,293 B2)
`Case IPR2017-00353 (Patent 8,983,134 B2)
`_________________
`
`Record of Oral Hearing
`Held: February 21, 2018
`________________
`
`
`
`
`Before JONI Y. CHANG, MICHAEL R. ZECHER, and JESSICA C.
`KAISER, Administrative Patent Judges.
`
`
`
`
`
`
`
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`Case IPR2017-00336 (Patent 6,959,293 B2)
`Case IPR2017-00353 (Patent 8,983,134 B2)
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`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MARC J. PENSABENE
`NICHOLAS WHILT
`O'Melveny & Myers, LLP
`7 Times Square
`New York, NY 10036-6537
`(212) 326-2070
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`GEORGE E. BADENOCH
`CHRIS J. COULSON
`Andrews Kurth Kenyon LLP
`One Broadway
`New York, NY 10004-1007
`(212) 908-6185
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
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`February 21, 2018, commencing at 1:00 p.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-00336 (Patent 6,959,293 B2)
`Case IPR2017-00353 (Patent 8,983,134 B2)
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`P R O C E E D I N G S
`- - - - -
` JUDGE CHANG: Please be seated. Thank you.
` Good afternoon. I'm Administrative Patent Judge Joni
`Chang. Here with me is Judge Michael Zecher. Joining with us
`remotely from Denver is Judge Jessica Kaiser.
` Good afternoon, Judge Kaiser. I just want to
`double-check all the volume and communications.
` JUDGE KAISER: Can you hear me now, Judge Chang?
` JUDGE CHANG: Yes.
` And, also, the camera that you're looking at the podium,
`I just want to double-check that.
` JUDGE KAISER: No, it's not. Can you please have them
`change it to the podium camera?
` JUDGE CHANG: Okay. Thank you.
` JUDGE KAISER: Thank you very much.
` JUDGE CHANG: Oh, no problem. Okay.
` And, counsel, please introduce yourselves and your
`colleague, starting with the petitioner.
` MR. PENSABENE: Good afternoon, Your Honor. Marc
`Pensabene from O'Melveny & Myers. With me is Nicholas Whilt, also
`from O'Melveny & Myers. Petitioner is Samsung.
` JUDGE CHANG: Welcome.
` MR. BADENOCH: Good afternoon, Your Honor. George
`Badenoch from Andrews Kurth Kenyon, and with me is Chris Coulson
`from Andrews Kurth Kenyon for Patent Owner.
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` JUDGE CHANG: Thank you. Welcome.
` This is a consolidated oral hearing for IPR2017-00336
`and IPR2017-00353. It involved two patents: Patent 6,959,293 and
`Patent 8,983,134. This is open to the public. No portion -- no
`portion of the oral hearing is confidential, and the transcript
`will be entered into the file of both cases.
` And before I begin, I have a few procedural issues to go
`over. Just want to be clear: The demonstratives are not
`evidence, and they are not substantive briefs, but they're merely
`visual aids to assist the parties' presentations during the oral
`hearing.
` And because Judge Kaiser is participating remotely,
`counsel please only speak at the podium because Judge Kaiser will
`not be able to hear if you're just talking at the desk.
` And for clarity, please identify the specific slide
`number or page number of your demonstrative when you're discussing
`it. And if you have any paper that you're referring to and
`project it on the screen, we'd be able to see it but Judge Kaiser
`will not. But she has access to the file electronically. So if
`you give her the exhibit number and the page number, if you want
`to direct her attention -- or our attention to any specific
`papers.
` And consistent with our prior order, each party has
`total 45 minutes for both cases. In our order, we left it up to
`the parties how they break out the time. For example, you can use
`30 minutes for IPR2017-00353 and 15 minutes for the other case.
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`But did you -- have you guys talked to each other to at least --
` MR. BADENOCH: Your Honor, we have not.
` JUDGE CHANG: Okay.
` MR. BADENOCH: I think the assumption was that
`petitioner would present on both patents. The Patent Owner would
`respond on both patents, and then the petitioner was going to
`reserve 15 minutes of our 45 minutes for rebuttal time, again, on
`both patents.
` JUDGE CHANG: Okay. I'm good with that.
` Patent Owner, Counsel?
` MR. PENSABENE: That's fine, Your Honor.
` JUDGE CHANG: Okay. Just make sure that, during the
`presentation, clearly state which patent -- which IPR case are you
`referring to. Okay?
` MR. PENSABENE: And, Your Honor, if I may, I'm going to
`be presenting -- Marc Pensabene -- regarding the '134 Patent, and
`my colleague, Mr. Whilt, will be addressing the '293 Patent. I
`believe that Patent Owner may have a similar arrangement with
`their two counsel.
` MR. BADENOCH: That's correct, Your Honor. I'm going to
`present on the '134 Patent, and my colleague, Chris Coulson, will
`address the '293 Patent.
` JUDGE CHANG: Thank you for that clarification.
` MR. BADENOCH: If I go a little over my portion, I'm
`sure the panel will understand. Mr. Coulson will understood.
` JUDGE CHANG: Okay. One last thing is, did everybody
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`give the court reporter your business card? Okay.
` And, also, a copy of your demonstratives? Okay. Great.
` MR. PENSABENE: And we also have hard copies for the
`bench if you --
` JUDGE CHANG: That would be great. Thank you.
` MR. PENSABENE: May I approach?
` JUDGE CHANG: Yes, please.
` MR. PENSABENE: And for the '134 Patent.
` JUDGE CHANG: Okay. We just need two copies.
` MR. PENSABENE: Oh, okay. Sure. And these are for
`'293.
` JUDGE CHANG: Okay. Great. Thank you.
` Any other questions or issues before we start?
` MR. COULSON: Your Honor, may I approach with the Patent
`Owner slides?
` JUDGE CHANG: Sure. That would be great.
` I'm going to set the timer for 30 minutes so it's up to
`you.
` MR. PENSABENE: That would be great.
` JUDGE CHANG: About 30 minutes.
` MR. PENSABENE: Thank you very much.
` JUDGE CHANG: Okay. You may start any time.
` MR. PENSABENE: Very good.
` I'm going to start by addressing, as I said, the '134
`Patent, IPR-353. And I'll start on Slide 7. This is a
`demonstrative Exhibit 1012 for the record, the petitioner's
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`demonstratives.
` As shown on Slide 7, there's three limitations in
`dispute, and consistent with the briefing, I have labeled them 1A,
`1B, and 1C. The Court will note that Claim 2 was not
`independently disputed. It, therefore, stands or falls along with
`Claim 1.
` Turning to Slide 9, I have got a copy of Figure 17 from
`the patent, which may be used as an illustration of the disputed
`patent claims. In this embodiment of the system, the patent
`creates projection XY histograms of pixels with significant
`motion. This is an example of 1A of the patent claim, forming the
`at least one histogram.
` On Slide 10, we have an illustration of Element 1B,
`identifying the target in the at least one histogram. As shown on
`Slide 10, the cost of pixels with the greatest movement generally
`occurred at the peripheral edges of the target. This information
`can be used to identify the target. In this case, the system
`identifies the target in the histogram by finding the peaks in the
`histogram, and from this, the position and size will be
`determined.
` Slide 11 illustrates the third limitation of 1C of the
`claim, determining the X and Y minima and maxima of the target.
`In this case, again, the peaks of the histogram define the edges
`of the target, and they thus define the X and Y minima and maxima
`of the target.
` I'd like now to go to Slide 13. The Patent Owner has
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`identified two main terms for construction: Terms 1A and 1C,
`forming the histogram and determining X and Y minima and maxima
`limitations.
` I'll first address the first of these, limitation 1A.
`Turning to Slide 16, we have the Patent Owner's present position,
`and it's interesting to note that the Patent Owner does not
`propose a formal construction for this claim term. Instead, what
`the Patent Owner does is they essentially argue that the phrase
`"referring to" in the claim should be replaced by the phrase "made
`up only of."
` This new construction is not only illogical and contrary
`to plain and ordinary meaning of the phrase "referring to," it
`adds limitations that were not adopted by the district court. On
`the slide, I have got reproduced the district court's construction
`which, as we can see, is broader than what the Patent Owner now
`proposes. The district court construed the term to be forming at
`least one histogram, at least one histogram being formed of pixels
`in the one or more classes that define the target.
` Likewise, turning to Slide 17, we see that the
`institution decision, this Board also applied an interpretation of
`the claim limitation broader than what the Patent Owner now
`proposes. And on Slide 17, I have reproduced with the -- how the
`Board applied this limitation in the institution decision. In
`that decision, the Board found that Claim 1, which uses the
`open-ended transition phrase "comprising" in the preamble, recites
`that the target comprises pixels in one or more plurality classes
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`and that the histogram that's formed from these pixels but it does
`not preclude the histogram from also including other pixels
`outside the target. The petitioner submits that the
`interpretation applied in the institution decision was correct and
`should be maintained in the final decision.
` In short, Patent Owner's construction interpreting
`"referring to" to mean "made up only of" is contrary to the plain
`and ordinary meaning of the phrase. The Patent Owner has not
`pointed to any express definition in either the patent or the
`file history where this term is defined as they propose, and, in
`fact, they don't even make an argument that it's expressly
`defined. Likewise, the Patent Owner has not pointed to anything
`in the patent or the prosecution history where there's been a
`clear disavowal of claimed scope. We must, therefore, give this
`term the plain and ordinary meaning, and the Patent Owner has
`submitted no evidence to support the plain meaning consistent with
`its position.
` Simply put, referring to classes does not require
`excluding pixels in any class that did not define the target.
` JUDGE ZECHER: Counsel, wouldn't -- assuming we would
`adopt Patent Owner's construction in this regard, wouldn't it
`create conflict with other limitations in the claim such as the
`identifying step?
` MR. PENSABENE: It would. It renders them superfluous.
`I mean, you wouldn't need to identify if it was just of the pixels
`of the target.
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` In the end, as I'll get to a little bit later on in my
`presentation, the construction of this term actually does not
`matter because under either construction, the Board's initial
`interpretation or the Patent Owner's now much narrow construction,
`the prior art clearly discloses this limitation.
` I'll now address the second limitation for construction,
`the "wherein" clause. As shown on Slide 22, the Patent Owner,
`again, does not propose a construction for this term. Instead,
`the Patent Owner argues that forming the histogram in this
`limitation must exclude actions taken after creating the
`histogram. In other words, as the Patent Owner argues in their
`responsive papers, quote, "This limitation requires 'that the
`formation of the histogram itself determine the X and Y boundaries
`of the target.'" That's the Patent Owner response at page 12.
` Now, as the Patent Owner acknowledges, this is in direct
`conflict with the Board's interpretation and the institution
`decision and the way the Board applied this limitation there.
` JUDGE KAISER: Counsel, how do you respond to Patent
`Owner's contention that our preliminary construction reads out the
`“wherein” portion of this limitation; in other words, the wherein
`forming at least one histogram further comprises?
` MR. PENSABENE: I'm glad you raised that point, and
`actually, I think that's just patently wrong. If you look at the
`edited version of the language, they have disconnected determining
`the X and Y minima from the histogram completely. They would
`remove any reference to the histogram in that limitation.
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` The Board’s interpretation, consistent with the patent,
`requires that the X and Y minima and maxima are determined by the
`histogram. By looking at the histogram and analyzing the
`histogram, you can determine the X and Y minima and maxima. And
`the Board's interpretation and the claim language as written are
`consistent with that. The way the Patent Owner proposed
`editing that language would remove any reference to histogram, and
`the X and Y minima and maxima can be determined in any manner
`whatsoever.
` JUDGE KAISER: But how is analyzing the histogram part
`of forming a histogram?
` MR. PENSABENE: Well -- and maybe I misspoke by using
`the word "analyzing", but by forming the histogram, you then plot
`certain points, and those points that are plotted in the histogram
`determine the X and Y minima and maxima. And I'll explain that in
`more detail when I get to the prior art. But it's actually, when
`you form the histogram, by creating the histogram in these
`particular prior art references, those minima and maxima are
`automatically determined by the forming of the histogram.
` So, again, it doesn't really matter how the term is
`interpreted. Under either construction, the Board's or the Patent
`Owner's, the prior art reference is still disclosing.
` Turning to Slide 23, for example --
` JUDGE ZECHER: Counsel, can I ask you a quick question?
` MR. PENSABENE: Sure.
` JUDGE ZECHER: Now, there's other claims that are not at
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`issue in this proceeding that use this same language; right?
` MR. PENSABENE: Correct.
` JUDGE ZECHER: Forming at least one histogram further
`comprising. I believe it's Claims 4, 5, and 6; is that correct?
` MR. PENSABENE: Correct.
` JUDGE ZECHER: Now, do you understand those additional
`limitations in Claims 4, 5, and 6 to -- would any of those
`additional limitations be required in order to form a histogram,
`or is it consistent with how we have looked at that limitation in
`Claim 1 of just -- it's formed and then you do this additional
`step?
` MR. PENSABENE: I'm glad you raised those, and actually,
`I was going to make the same point a couple of slides later that
`you're exactly right. The way the Court has interpreted it is
`consistent not only with Claim 1 in the specification but also
`with the other claims. If we were to interpret this as the Patent
`Owner proposes, this Claims 4, 5, and 6 would all be
`nonfunctional. All those claims, 4, 5, and 6, all recite steps
`that are taken outside of or beyond simply putting data in a
`histogram.
` For example, in Claim 4, it talks about enlarging the
`window which is being examined. Claim 5, for example, talks about
`adjusting the center of the area being examined. And then Claim 6
`talks about first setting the X and Y minima and maxima before
`forming the histogram.
` So in all cases, all of these dependent claims,
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`consistent with the way the Board addressed the claim in its
`institution decision, all these claims require steps beyond the
`strict simply putting data into the histogram, which is as Patent
`Owner would have the term construed.
` JUDGE KAISER: Counsel, if you look at your Slide 24,
`which I think has this claim on it that Judge Zecher is referring
`to, what of Patent Owner's argument that it all fits together if
`you only consider the last histograms or the last histogram of
`the iteration?
` MR. PENSABENE: Well, again, it's still incorrect
`because the -- forming -- creating the histogram in the ways
`described in the patent doesn't determine these X and Y minima and
`maxima. In fact, if I can go back to Slide 23, this is the way
`it's described in the specification. In the specification, for
`example, you form the histogram and then you look at where the
`peaks are. And looking at the peaks is how you determine where
`the X and Y minima and maxima of the target are. And this is the
`way it's described in the specification.
` Keep in mind that Figure 17, which is on Slide 23, is
`not independent or a different embodiment than Figures 21 through
`23. This is specifically how the histogram is treated in that
`embodiment.
` JUDGE KAISER: I believe the Patent Owner points us to
`Column 19 of the patent. And I don't know the slide number, but
`if you were to look at the challenged patent in column 19 about
`line 41, there's a reference to the characteristics for the
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`histogram being simultaneously computed and then stored in the
`memory, and those included the minimum and the maximum. How do
`you square that with your interpretation?
` MR. PENSABENE: It's actually quite simple, and you have
`taken away some of the thunder from my rebuttal, but I'll address
`it now.
` So up on the screen now, I have put Patent Owner Slide
`11. And I believe this is the language you're referring to; is
`that correct?
` JUDGE KAISER: You'll have to give me a moment to find
`that slide, but it should be Column 19 of the patent, about line
`41.
` MR. PENSABENE: Right. So this is actually very, very
`different than what the claim is talking about. What this is
`talking about is forming the -- is keeping track of the X and Y --
`is keeping track of the minimum and maximum of the histogram. The
`specification language here is very clear. It's tracking the
`minimum and maximum of the histogram, not of the target.
` If we go back to Slide 23, you know, here, we look at
`the claim language and we see the claim clearly requires
`determining the X and Y minima and maxima of the histogram. These
`are two extremely different things, and the Patent Owner's
`argument is trying to convolute them and confuse them to get a
`strained construction, but clearly, it's wrong.
` If we look at, for example, Figure 17, we can clearly
`see there that the minimum and maximum of the histogram are very
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`different than a minimum and maximum of the target. The patent
`only talks about tracking the minimum and maximum of the histogram
`simultaneously. Nowhere does it talk about tracking the minimum
`and maximum of the target simultaneously. It's always described
`as being done afterwards, for example, as shown in Slide 17.
` Does that address your question, Your Honor?
` JUDGE KAISER: It does. Thank you.
` MR. PENSABENE: Can we go to Slide 26?
` If there are no other questions on claim construction,
`I'd like to now turn to the application of the art to the claims.
` On Slide 26, I have illustrated graphically the elements
`that are disputed by the Patent Owner. And as we can see here,
`the Patent Owner disputes Elements 1A and 1C under the Patent
`Owner's construction. The Patent Owner does not dispute that
`those limitations are met by both references under the Board's
`preliminary interpretation and application of those claims.
` Similarly, the Patent Owner disputes that Gilbert
`discloses Element 1B, but does not dispute that Hashima Element 1B
`under any construction.
` Now, this is extremely significant because as we look
`at, on Slide 27, if the Patent Owner's constructions are rejected,
`then there is no dispute -- Patent Owner does not dispute that
`Claims 1 and 2 are invalidated by the Hashima reference.
` I'd like to now talk about the first limitation that's
`disputed, 1A. As summarized on Slide 32, again, the Patent Owner
`does not dispute that Gilbert discloses 1A under the Board's
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`preliminary construction. The Patent Owner only disputes whether
`the intensity histogram of Gilbert satisfies 1A under the Patent
`Owner's proposed construction.
` And this is reflected in the language from the Patent
`Owner's response where, again, the Patent Owner pointing only to
`the intensity histogram tries to distinguish them based on the
`fact that they are not limited to classes that define the target.
`Interestingly, the Patent Owner does not even address Gilbert's
`projection histograms in their response.
` As we look at, on Slide 33, even under the Patent
`Owner's proposed construction, Gilbert's projection histogram,
`which were ignored by the Patent Owner, clearly disclosed Element
`1A. In Gilbert, pixels of certain intensity values are classified
`as target pixels, and that's shown by the equations on the left
`side of this slide. Then, only the pixels in that intensity
`class -- in that targeted intensity class are formed into the
`projection histograms in the X and Y coordinate space. This is
`not disputed. Thus even if the Patent Owner's construction of 1A
`is adopted, which we submit a wrong, Gilbert clearly discloses it.
` Turning to Slide 34, I'll talk about Hashima, and,
`again, the Patent Owner does not dispute that Hashima discloses 1A
`under the Board's preliminary construction. The Patent Owner only
`disputes whether Hashima discloses 1A under the Patent Owner's
`construction. And, again, this is tied to the position of the
`Patent Owner has taken, that the histogram can only refer to
`classes that define the target. It can't include any other data.
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` Looking on Slide 35, however, we see that even if the
`Patent Owner's improper construction is adopted, Element 1A is
`clearly disclosed by Hashima. In Hashima, only black pixels of
`the target are included in the projection histogram. The white
`ones, for example, are not. Now, Patent Owner's expert tried to
`dance around this question and avoid answering questions about
`this issue, but even the Patent Owner's expert had to admit in
`deposition that the white pixels don't contribute to the height of
`the histogram. They're not included in the histogram. It's,
`therefore, clear that Hashima discloses the element in the 1A even
`under the Patent Owner's unduly narrow construction.
` I'll now turn to Element 1B: Identifying the target.
`And as shown on Slide 37, Element 1B is clearly disclosed by
`Gilbert in the projection histogram. As explained in our papers,
`Gilbert identifies the missile target in the projection histograms
`and identifies the location, orientation, and structure all by
`reference to the projection histograms.
` Now, Patent Owner's argument with regard to this
`limitation is that the projection histograms can't identify the
`target because the intensity histograms or the grayscale
`histograms have already identified the target.
` Now, first of all, this argument has already been
`rejected by the Board, and the Board said, quote, "Identifying the
`target in the intensity histograms does not preclude the target
`from also being identified in the projection histograms." That's
`the Institution Decision at 20.
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` Regardless, Gilbert clearly identified the target in the
`projection histograms. The grayscale histograms select which
`pixels are likely part of the target. It's not until those pixels
`are then put into the projection histograms -- the X and Y
`projection histograms -- that the location of the target can be
`identified and the target is identified.
` In fact, on Slide 38, if we compare Gilbert to Figure 17
`of the '134 Patent, it's clear that Gilbert identifies the target
`in the same way the '134 Patent does. Now, while Gilbert forms
`histograms of pixels having a selected intensity range, the '134
`Patent forms histograms in the example of Figure 17 of pixels
`having a selected movement range. In both cases, all the pixels
`in that class are included in the histogram, and in both cases,
`the target is then identified by looking at that histogram.
` Turning to Hashima on Slide 39, I'll note again that
`Hashima -- there's no dispute that Hashima discloses limitation
`1B. Thus even if Gilbert is found not to disclose limitation 1B,
`there's no dispute that Hashima does.
` I'll next turn to the last disputed limitation, 1C, the
`wherein clause. As shown on Slide 41, the Patent Owner admits
`that Gilbert discloses Element 1C under the Board's preliminary
`interpretation. Patent Owner only disputes whether Gilbert
`discloses 1C under the Patent Owner's construction. Again, this
`is based on Patent Owner's position that the term excludes any
`actions after putting data in the histogram.
` If the Board rejects the Patent Owner's overly narrow
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`construction, however, we need not go no further because there's
`no dispute that under the patent -- under the Board's construction
`and interpretation, that Gilbert discloses this limitation.
` But even if the Patent Owner's construction were
`adopted, Gilbert still satisfies the claim as shown on Slide 42.
`Again, the Patent Owner's overly narrow construction requires that
`determining X and Y minima and maxima are done as part of creating
`the histogram. In Gilbert, the X and Y minima and maxima are
`immediately known from the Gilbert projection histograms. For
`example, these are referred to in --
` JUDGE KAISER: Let me -- I want to understand this point
`a little bit better. So you say that these points are immediately
`known from the projection histograms. But what's the determining
`in that? In other words, as I understand your argument, it's --
`you know, these are sort of the first non-zero points on the
`histograms.
` MR. PENSABENE: Correct.
` JUDGE KAISER: So that's just sort of a fact of how the
`histograms are created, but how is it being determined?
` MR. PENSABENE: In the case of a projection histogram of
`the type disclosed at Gilbert, there are no further actions that
`need to be done. In different types of histograms, for example,
`where we're talking about tracking movement, there may be
`something else requires; for example, determining the peak. You
`know, looking at the histogram and finding where the peak is.
` But in the case of the histogram of Gilbert, the
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`projection of Gilbert, there is no further action required, and
`that's exactly our point; that even under the Patent Owner's
`construction, the X and Y minima and maxima are known because
`they're the first non-zero points.
` JUDGE KAISER: Did your expert opine as to this
`interpretation of the references under the determining step?
` MR. PENSABENE: I believe he did and --
` JUDGE KAISER: Where is that in the record?
` MR. PENSABENE: We discussed this at Petition's page 44
`and in the reply at 21 and 22.
` JUDGE KAISER: No, I'm asking about your expert's
`declaration.
` MR. PENSABENE: Oh, I'm sorry. I think in the papers we
`cite to the Hart (ph) declaration, paragraphs 103 to 104.
` JUDGE KAISER: But in those paragraphs, did your expert
`express an opinion about it's simply knowing that -- or simply the
`first non-zero points effectively being the minima and maxima,
`that that would satisfy this determining step?
` MR. PENSABENE: I don't know if he used those exact
`words, but certainly his opinion was consistent with that -- that
`application of the claim.
` Of significance, the Patent Owner's expert does not
`really dispute this point. The only thing the Patent Owner's
`expert disputes is that, using the nose and tail points would be
`subject to noise. Maybe they're not as good as using the center
`of the target, for example. But Claim 1 doesn't require anything
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`about noise immunity. It just talks about determining the X and Y
`minima and maxima, which, again, are clearly done by forming the
`histograms.
` The Hashima reference similarly discloses Element 1C, as
`summarized on Slide 43, the Patent Owner admits that Hashima
`discloses 1C under the Board's preliminary interpretation. Patent
`Owner only disputes whether Hashima discloses 1C under the Patent
`Owner's construction. And, again, as reflected in the quotes
`from the Patent Owner's filing, this is based on their view that
`the claim excludes any action after putting data in the histogram.
`If the Board rejects the Patent Owner's opinion about the
`construction of this term, then, clearly, the Board needs to go no
`further because the Patent Owner admit
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