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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________________________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________________________________
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`
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`Samsung Electronics Co., Ltd., and
`Samsung Electronics America, Inc.,
`Petitioner
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`v.
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`Image Processing Technologies, LLC,
`Patent Owner.
`
`______________________________________________
`CASE IPR2017-00336
`Patent No. 6,989,293
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`PETITIONER’S REPLY
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`
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`TABLE OF CONTENTS
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`
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`Introduction ..................................................................................................... 1
`I.
`II. Argument ........................................................................................................ 1
`A.
`IPT Admits Pirim PCT Discloses all but one Element of Claim
`22 .......................................................................................................... 1
`IPT’s Proposed Claim Construction Is Wrong .................................... 2
`1.
`The Claim Language Contradicts IPT’s Construction ............... 2
`2.
`The Specification Does Not Support IPT’s Construction.......... 4
`3.
`IPT’s Construction Is Not Supported By The Extrinsic
`Evidence ................................................................................... 10
`IPT Admits Claim 22 Is Disclosed Under the Proper
`Construction of Element 22[b] ........................................................... 11
`Claim 22 Is Obvious In Light of Pirim PCT, Even under IPT’s
`Erroneous Construction ...................................................................... 15
`III. Conclusion .................................................................................................... 18
`Certification of Word Count ................................................................................... 18
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`D.
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`B.
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`C.
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`LIST OF EXHIBITS
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`1006
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`1007
`1008
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`Exhibit No. Description
`1001
`U.S. Patent No. 6,959,293
`1002
`Declaration of Dr. John C. Hart
`1003
`Curriculum Vitae of Dr. John C. Hart
`1004
`Prosecution File History of U.S. Patent No. 6,959,293
`1005
`WO 99/36893, Patrick Pirim and Thomas Binford, “Method and
`Apparatus for Detection of Drowsiness,” published July 22, 1999
`Robert Rogers, “Real-Time Video Filtering with Bit-Slide
`Microprogrammable Processors,” Ph.D. Dissertation, New Mexico
`State University (December 1978)
`U.S. Patent No. 5,546,125 to Tomitaka, et al., issued August 1996
`Alton L. Gilbert et al., “A Real-Time Video Tracking System,”
`IEEE Transactions on Pattern Analysis and Machine Intelligence,
`Vol. PAMI-2, No. 2, January 1980
`Declaration of Susan E. Beck (authenticating Ex. 1006)
`D. Trier, A. K. Jain and T. Taxt, “Feature Extraction Methods for
`Character Recognition-A Survey”, Pattern Recognition, vol. 29,
`no. 4, 1996, pp. 641–662.
`M. H. Glauberman, “Character recognition for business
`machines,” Electronics, vol. 29, pp. 132-136, Feb. 1956
`Declaration of Gerard P. Grenier (authenticating Ex. 1008)
`
`1009
`1010
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`1011
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`1012
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`ii
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`I.
`INTRODUCTION
`Patent Owner IPT admits Pirim PCT discloses every limitation of claim 22
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`except for element 22[b], “an input multiplexer adapted to receive data describing
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`one or more parameters of the event being detected . . .” IPT also admits that
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`Pirim PCT discloses an input multiplexer that receives data describing at least one
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`parameter (“data (V)”) of the event being detected. IPT, thus, admits that claim 22
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`is fully disclosed by the Pirim PCT, applying the plain and ordinary meaning of
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`claim element 22[b].
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`IPT’s only response is based on its incredible argument that the claim term
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`“one or more” actually means “two or more” and that Pirim PCT, therefore, does
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`not disclose claim 22. IPT’s argument is meritless. It cannot explain, especially
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`under the broadest-reasonable-interpretation claim-construction standard it agrees
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`applies, how “one or more” could possibly mean “two or more.” One is not the
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`same as two, and if the claimed multiplexer were required to receive two or more
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`parameters, the claim would have recited “two or more.” It does not; it recites
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`“one or more.”
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`II. ARGUMENT
`A.
`IPT Admits Pirim PCT Discloses all but one Element
`of Claim 22
`IPT’s Patent Owner Response and supporting declaration of Dr. Agouris
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`(Ex. 2009) challenge only Pirim PCT’s disclosure of element 22[b], “an input
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`1
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`multiplexer adapted to receive data describing one or more parameters of the event
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`being detected . . .” P.O. Resp. at 22-26; Ex. 2009 (Agouris Decl.) at §§ I.5,
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`III.A.1, III.B, III.C, III.D. Because Patent Owner does not respond to Petitioner’s
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`application of Pirim PCT to any other element of claim 22, including 22[pre],
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`22[a], 22[c], 22[d], 22[e], or 22[f], Petitioner’s showing that Pirim PCT discloses
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`these limitations (Petition at 40-45, 49-51; Ex. 1002 (Hart Decl.) at ¶¶ 80-85, 94-
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`101) should be deemed admitted. 37 CFR § 42.23(a) (“Any material fact not
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`specifically denied may be considered admitted.”). Thus, the only issue that
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`remains for trial is whether Pirim PCT discloses element 22[b].
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`B.
`IPT’s Proposed Claim Construction Is Wrong
`Patent Owner urges a construction of claim element 22[b] that (1) is
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`contradicted by the plain and ordinary meaning of the claim language, (2) reads out
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`all of the disclosed embodiments except for one, which is instead improperly read
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`into the claim, and (3) is not supported by the extrinsic evidence it cites. IPT’s
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`proposed construction of claim element 22[b] is incorrect. That term should be
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`accorded its plain and ordinary meaning, consistent with the BRI standard IPT
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`agrees should apply.
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`1.
`The Claim Language Contradicts IPT’s Construction
`Patent Owner’s Response relies on a unique application of claim element
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`22[b], “an input multiplexer adapted to receive data describing one or more
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`2
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`parameters of the event being detected, and to output data describing a selected one
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`of the one or more parameters in response to a selection signal.” P.O. Resp. at 13-
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`19. Patent Owner does not actually offer a construction of this phrase, but instead
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`merely alleges that this language “requires that the multiplexer be capable of
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`receiving data from multiple parameters.” Id. at 14 (emphasis added). This
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`statement contradicts the plain meaning of “receive . . . one or more parameters,”
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`which can be met by receiving one parameter or more than one parameter. It does
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`not require receiving “multiple parameters,” as IPT alleges. Effectively, IPT urges
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`the Board to narrow the scope of claim 22 by rewriting element 22[b] as follows:
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`an input multiplexer adapted to receive data describing one two or more
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`parameters of the event being detected, and to output data describing a
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`selected one of the one two or more parameters in response to a
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`selection signal.
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`IPT cannot explain why the applicant would have used the word “one” in
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`claim 22 if it really meant to say “two.” IPT’s proposed construction, thus, directly
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`contradicts the claim language.
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`In fact, this Panel previously rejected this same argument by Patent Owner
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`IPT as applied to similar claim language in another patent by the same inventor. In
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`IPR2017-00353, this Panel rejected IPT’s argument that the claim limitation
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`“forming at least one histogram of the pixels in the one or more of a plurality of
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`3
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`classes in the one or more of a plurality of domains” should be construed to mean
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`“forming at least one histogram of the pixels in two or more classes that are in two
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`or more domains” because it did not give effect to all of the terms of the claim.
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`IPR2017-00353, Paper No. 12 at 9-10 (May 25, 2017) (emphasis added). Patent
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`Owner’s construction should similarly be rejected here.
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`2.
`The Specification Does Not Support IPT’s Construction
`IPT argues that the claimed multiplexer must have the form shown in Figure
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`31a, i.e., that it must receive at least two parameters, DATA (A), DATA (B), etc.
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`See P.O. Resp. at 15-16 (pointing to MUX (500) of Figure 31a, which receives
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`Data (A), Data (B), Data (C), and Data (E)). The implicit claim construction IPT
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`urges would import into claim 22 the embodiment depicted in Figure 31a. Id. The
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`Federal Circuit has repeatedly counseled against a construction that imports
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`limitations from an embodiment described in the specification. See, e.g., Comark
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`Communs., Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed. Cir. 1998)
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`(“limitations from the specification are not to be read into the claims”).
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`Patent Owner IPT contrasts the input multiplexer shown in Figure 3 (which
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`is used by Petitioner to illustrate claim 22) and that of Figure 31a, arguing claim 22
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`is directed to the embodiment of Figure 31a only. IPT justifies excluding the
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`embodiment of Figure 3, because it is said to depict only a “passive histogram
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`calculation unit” and not an “improved visual perception processor” including “the
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`auto-adapting, anticipation, and learning functions” that are the alleged focus of the
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`’293 Patent. P.O. Resp. at 6-7. This argument fails for at least two reasons.
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`First, nothing in claim 22 requires the inclusion of any “auto-adapting,
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`anticipation, and learning functions.” To the contrary, these alleged improvements
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`are covered by other claims, such as claim 3 (reciting a “learning multiplexer”)
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`and claim 6, requiring “means for anticipating the value of the classification
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`criterion C.”
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`Second, even if IPT were correct that claim 22 were directed to these
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`“improved” embodiments, IPT’s construction would exclude not only the
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`embodiment of Figure 3, but also nearly every other embodiment disclosed in the
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`’293 Patent, including the “improved” embodiments with auto-adapting,
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`anticipation, and learning functions. See, e.g., Figures 4, 12, 13d, 14, 15a, 15b, 17,
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`25, annotated below, each of which includes only the type of input multiplexer
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`disclosed in Figure 3 that IPT argues does not satisfy claim element 22[b].
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`Petitioner’s Reply
`Petitioner’s Reply
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`MEMORY
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`WR
`1051
`ADRESS
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`DATA (A)
`COUNTER
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`112
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`FIG. 12
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`DATA (A)
`COUNTER
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`COUNTER
`”HAW 5
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`' COMBINATORIAL
`Loelc ARRAY
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`”6.4 101!
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`Included among these embodiments that would be excluded by IPT’s construction
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`are embodiments that are expressly described as having the so-called auto-
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`adapting, anticipation, and learning functions:
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`FIG. 4 is a diagram representing a self-adapting histogram calculation
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`unit according to the invention with the anticipation and learning
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`functionalities;
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`. . .
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`FIG. 12 is a representation of the elements of the histogram
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`calculation unit with a self-adapting functionality according to one
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`embodiment of the present invention;
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`FIGS. 13a and 13d are representations of an enabling counter fitted
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`with several adapting modules according to alternate embodiments of
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`the present invention;
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`. . .
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`FIG. 15a is a diagram representing the elements of a self-adapting
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`histogram calculation unit with anticipation according to a first
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`embodiment;
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`FIG. 15b is a diagram representing the elements of a self-adapting
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`histogram calculation unit with anticipation according to an alternate
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`embodiment;
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`. . .
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`FIG. 17 is a diagram representing the elements of the self-adapting
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`histogram calculation unit with anticipation according to a alternate
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`embodiment;
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`. . .
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`FIG. 25 is a representation of the elements of a histogram calculation
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`unit with a learning functionality according to one embodiment of the
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`present invention;
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`’293 Patent at 4:47-5:44 (emphasis added).
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`IPT’s proposed claim construction, which imports limitations from one
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`embodiment and excludes essentially every other embodiment disclosed in the
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`specification, cannot be correct. “[A] claim interpretation that excludes a preferred
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`embodiment from the scope of the claim is rarely, if ever, correct.” On-Line
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`Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d 1133, 1138 (Fed. Cir.
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`2004).
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`IPT also misapplies the doctrine of claim differentiation to argue that,
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`because other claims recite multiplexers, the multiplexer of claim 22 must have a
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`different scope. P.O. Resp. at 17 (acknowledging that claims 4 and 13 expressly
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`recite the type of multiplexer described in Figure 3 for receiving one parameter
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`(data signal) and a “counter” input). But the doctrine of claim differentiation
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`applies to resolve ambiguity when a claim would otherwise be superfluous. “To
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`the extent that the absence of such difference in meaning and scope would make a
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`claim superfluous, the doctrine of claim differentiation states the presumption that
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`the difference between claims is significant.” Tandon Corp. v. U.S. Int'l Trade
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`Comm'n, 831 F.2d 1017, 1023 (Fed. Cir. 1987). Claim 3, from which claims 4 and
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`13 both depend, includes at least half a dozen limitations not recited by
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`independent claim 22, and IPT’s suggestion that a narrower scope for “input
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`multiplexer” is required to differentiate claim 22 from claims 4 or 13 is frivolous.
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`3.
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`IPT’s Construction Is Not Supported By The Extrinsic
`Evidence
`The extrinsic evidence IPT cites for the definition of a multiplexer does not
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`support IPT’s narrow construction. For example, the IEEE definition of
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`multiplexer as “a device for selecting one of a number of inputs and switching its
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`information to the output,” (P.O. Resp. at 18), simply describes the multiplexer
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`shown in Figure 3 of the ’293 Patent, which is consistently called a “multiplexer”
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`in the ’293 patent. See ’293 Patent Figure 3 (annotated excerpt showing that the
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`“INIT” signal switches one of the “COUNTER” and “DATA(A)” signals to the
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`output of multiplexer 105).
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`Finally, IPT’s unsupported assertion that a POSA would understand the
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`disputed claim language to mean that “the multiplexer must be capable of
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`10
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`receiving both ‘one’ or ‘more’ than one parameter” makes no sense. P.O. Resp. at
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`18-19 (emphasis added). Requiring both A or B is meaningless and grammatically
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`improper. Evidently, IPT sees this odd linguistic construction as a more palatable
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`way to present the ridiculous proposition that a POSA would understand “A or B”
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`to actually mean “A and B.” Understandably, IPT includes no citation to its
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`expert’s declaration for this bold statement.
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`In summary, all of IPT’s arguments on claim construction essentially boil
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`down to an assertion that “one or more” really means “two or more.” There is
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`simply no justification for rewriting the claim as IPT argues. The phrase “an input
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`multiplexer adapted to receive data describing one or more parameters of the event
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`being detected, and to output data describing a selected one of the one or more
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`parameters in response to a selection signal” should carry its plain and ordinary
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`meaning—specifically, “one or more” means “one or more” or “at least one.” It
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`does not mean “two or more” or “at least two.”
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`C.
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`IPT Admits Claim 22 Is Disclosed Under the Proper
`Construction of Element 22[b]
`Pirim PCT discloses claim 22 under the proper construction (i.e., the plain
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`and ordinary meaning) of claim element 22[b], as described in the Petition and
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`11
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`supported by the declaration of Dr. Hart (Ex. 1002), filed concurrently therewith.1
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`See Petition at 40-45, 49-51; Ex. 1002 (Hart Decl.) ¶¶ 80-85; 94-101. In particular,
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`in addition to disclosing claim elements 22[pre], 22[a], 22[c], 22[d], 22[e], and
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`22[f], which Patent Owner does not challenge, Pirim PCT discloses element 22[b],
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`“an input multiplexer adapted to receive data describing one or more parameters of
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`the event being detected, and to output data describing a selected one of the one or
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`more parameters in response to a selection signal.” For example, Figure 14 of
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`Pirim PCT (annotated below) discloses an input multiplexer (104) (shaded green)
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`that receives data describing one or more parameters of the event being detected (at
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`least parameter “data (v)”) and to output data describing a selected one of the one
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`or more parameters (Mux 104 outputs “data (v)”) in response to a selection signal
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`(“init”).
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`1 Patent Owner mischaracterizes the District Court’s Claim Construction Order,
`alleging it “construed” the term “configured to determine the data in the histogram
`. . .” P.O. Resp. at 2 n1. In fact, the Order did not construe that term but rather
`found claim 22 invalid as indefinite, i.e., incapable of being construed. Petitioner
`did not raise that argument here, as indefiniteness is not a ground for institution of
`inter partes review. But if Patent Owner is arguing for the same “construction”
`found by the District Court, claim 22 is invalid as indefinite.
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`12
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`Critically, IPT does not dispute that element 22[b] is disclosed by Pirim
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`PCT under the plain and ordinary meaning of this limitation. To the contrary, IPT
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`repeatedly admits that Pirim PCT discloses a multiplexer adapted to receive one
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`parameter of the event being detected, and to output that parameter in response to a
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`selection signal:
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`13
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`IPR2017-00336 (U.S. 6,989,293)
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`each multiplexer of Pirim relies on a binary signal to determine
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`whether the single parameter data is passed to the histogram unit or
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`instead whether a “counter” or “zero” signal is passed.
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`P.O. Resp. at 2.
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`Patent Owner attempts to distinguish Pirim PCT, arguing that when the
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`“init” signal is set to one, it is the “counter” signal that is selected and not “data
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`(v)” so “MUX 104 does not disclose selecting ‘one of the one or more parameters,’
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`either in response to a ‘selection signal’ or otherwise.” P.O. Resp. at 23-24. This
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`argument is frivolous because when the “init” signal is set to its other state, zero,
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`the “data (v)” input is selected, as Pirim PCT describes: “the init line is set to zero,
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`which . . . in the case of multiplexor 104 results in data from the spatial processing
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`unit 117, i.e., the V data, being sent to the Address line of memory 100.” Ex. 1005
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`(Pirim PCT) at 29.2 Thus, the “init” signal selects either the “data (v)” or
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`“counter” input of MUX 104 to be sent to its output, depending on whether “init”
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`is set to zero or one, respectively, and it is thus the claimed “selection signal.”
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`Further, Patent Owner’s own expert agrees with Petitioner and admits that
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`the “init” signal controls which input of multiplexer 104 is routed to the output:
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`2 Citations to Ex. 1005 (Pirim PCT) refer to the page numbers added by Petitioner
`in the lower right corner of the exhibit.
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`14
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`Pirim’s multiplexers 102 and 104 (yellow) both take only “init” (green)
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`as the control signal to determine which of the two output signal (blue)
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`to output. . . . The two possible input data signals for multiplexer 104
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`are data(V), i.e., the “V” or velocity parameter data, and the Counter
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`signal, which is used to reset the histogram memory.
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`Ex. 2009 (Agouris Decl.) at §§III.C.39-40.
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`In addition, neither the Patent Owner nor Dr. Agouris ever suggests that
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`Pirim PCT’s “data (V)” is not a “parameter” as recited by claim 22. Indeed, Dr.
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`Agouris expressly refers to “data (V)” as “velocity parameter data.” Ex. 2009
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`(Agouris Decl.) at § III.C.40. Thus, Dr. Agouris admits that Pirim PCT discloses
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`claim 22 under the proper (plain meaning) construction of element 22[b].
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`D. Claim 22 Is Obvious In Light of Pirim PCT, Even
`under IPT’s Erroneous Construction
`Even if IPT were correct that “one or more” means “two or more”—it does
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`not—Pirim PCT would still render claim 22 obvious. For example, it would have
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`been obvious to use the same type of multiplexer (104) disclosed in Figure 14 of
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`Pirim PCT to switch between two “data” parameters, such as speed “V” and
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`direction “DI.” See, e.g., Ex. 1005 (Pirim PCT) at 24-25 (noting that “V”
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`represents pixel speed in the range 0 - 7 and “DI” represents direction of pixel
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`displacement, also in the range of 0 - 7). Doing so would enable the system to
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`15
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`time-share one histogram calculation unit, reducing the amount of hardware
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`required. Such a proposed modification of the embodiment of Figure 14 is
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`illustrated in the excerpt below:
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`In this proposed modification a new mux (in yellow) is added upstream of
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`the existing mux 104 and used to select which of the “V” and “DI” parameters will
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`be processed by this histogram unit, thereby allowing one histogram unit to be
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`used for processing two parameters. It would have been obvious to make such a
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`modification because the added mux would operate in exactly the same way as the
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`existing mux (switching one of two inputs to the output) and would enable a
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`reduction in the number of hardware components or logic gates by time-sharing a
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`histogram unit.
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`16
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`IPT asserts that such a modification to Pirim PCT is not possible because
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`IPR2017-00336 (U.S. 6,989,293)
`Petitioner’s Reply
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`Pirim PCT’s histogram units are all different, with each only capable of treating a
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`single parameter. P.O. Resp. at 25 (arguing that a classifier for the speed
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`histogram unit would have only eight registers while the luminance histogram unit
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`would require 256). But this argument is contradicted by Pirim PCT, which
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`expressly discloses that all of the histogram units are identical: “In general, each of
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`the histogram formation blocks 24-29 is identical to the others and functions in the
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`same manner.” Ex. 1005 (Prim PCT) at 28. Furthermore, in the exemplary
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`modification shown above, both speed “V” and direction “DI” are represented by
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`integers 0 - 7 and, thus, both use classifiers with eight registers. Ex. 1005 (Pirim
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`PCT) at 30 (noting that both the classifier associated with histogram formation
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`block 25 (V) and the classifier associated with histogram formation block 26 (DI)
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`have eight registers). IPT is simply wrong that one histogram formation block of
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`Pirim PCT could not be used to process two different data parameters selected
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`using a multiplexer like multiplexer 104 shown in Figure 14 of Pirim PCT.
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`Thus, Pirim PCT anticipates or renders obvious claim 22, not only under the
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`correct construction of the claim language, but also under the incorrect
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`construction offered by Patent Owner.
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`III. CONCLUSION
`For the reasons set forth above, the Board should find that claim 22 of the
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`’293 Patent is invalid as anticipated or obvious in light of Pirim PCT.
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`Respectfully Submitted,
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`/s/ John Kappos
`John Kappos (Reg. No. 37,861)
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`CERTIFICATION OF WORD COUNT
`Pursuant to 37 C.F.R. § 42.24(d), Petitioner certifies that this petition
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`includes 3049 words, as measured by Microsoft Word, exclusive of the table of
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`contents, mandatory notices under § 42.8, certificates of service and word count,
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`and exhibits.
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`18
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`CERTIFICATE OF SERVICE
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`The undersigned certifies pursuant to 37 C.F.R. § 42.6(e) and § 42.105 that on
`
`December 6, 2017, a true and correct copy of PETITIONER’S REPLY was served via
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`express mail on the Patent Owner at the following correspondence address of record:
`
`Gregory Nelson
`FOX ROTHSCHILD LLP
`222 Lakeview Avenue, Suite 700
`West Palm Beach, FL 33401
`
`
`Gregory Nelson
`FOX ROTHSCHILD LLP
`997 Lennox Drive, Bld. 3
`Lawrenceville, NJ 08648
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`Copies were also sent to Patent Owner’s litigation counsel via electronic mail:
`
`S. Calvin Capshaw
`CAPSHAW DERIEUX, LLP
`114 E. Commerce Ave.
`Gladewater, TX 75647
`ccapshaw@capshawlaw.com
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`Michael N. Zachary
`ANDREWS KURTH KENYON LLP
`1801 Page Mill Road, Suite 210
`Palo Alto, CA 94304
`MichaelZachary@AndrewsKurthKenyon.com
`
`
`Christopher J. Coulson
`Mark Chapman
`Rose Cordero Prey
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004
`ChrisCoulson@AndrewsKurthKenyon.com
`MarkChapman@AndrewsKurthKenyon.com
`RosePrey@AndrewsKurthKenyon.com
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`Respectfully submitted,
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`/s/ John Kappos .
`John Kappos (Reg. No. 37,861)
`O’Melveny & Myers LLP
`610 Newport Center Drive, 17th Floor
`Newport Beach, CA 92660
`Telephone: (949) 760-9600
`
`Attorney for Petitioner
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`
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