`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________________________________
`
`
`
`
`
`Samsung Electronics Co., Ltd., and
`Samsung Electronics America, Inc.,
`Petitioner
`
`v.
`
`Image Processing Technologies, LLC,
`Patent Owner.
`
`______________________________________________
`CASE IPR2017-00353
`Patent No. 8,983,134
`
`
`PETITIONER’S REPLY
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`TABLE OF CONTENTS
`
`2.
`
`B.
`
`
`Introduction ..................................................................................................... 1
`I.
`II. Argument ........................................................................................................ 2
`A.
`IPT’s Proposed Claim Constructions Are Wrong ................................ 2
`1.
`IPT’s Construction of “forming at least one histogram . . .
`said at least one histogram referring to classes defining
`said target” Is Incorrect .............................................................. 3
`IPT’s Construction of “wherein forming the at least one
`histogram further comprises determining X minima and
`maxima and Y minima and maxima of boundaries of the
`target” Is Incorrect ..................................................................... 8
`Claims 1 and 2 Are Obvious Over Gilbert and Hashima
`(Ground A) ......................................................................................... 13
`1.
`Gilbert and Hashima Each Discloses Element 1[a] ................. 13
`2.
`Gilbert and Hashima Each Discloses Element 1[b] ................. 16
`3.
`Gilbert and Hashima Each Discloses Element 1[c] ................. 19
`4.
`Gilbert and Hashima Each Discloses Claim 2 ......................... 24
`5.
`It Would Be Obvvious To Combine Gilbert and Hashima ..... 24
`Claims 1 and 2 Are Obvious Over Ueno and Gilbert (Ground
`B) ........................................................................................................ 25
`1.
`Ueno and Gilbert Each Discloses Element 1[c] ...................... 26
`2.
`It Would Be Obvious To Combine Ueno and Gilbert ............. 30
`III. Conclusion .................................................................................................... 30
`Certification of Word Count ................................................................................... 31
`
`
`
`
`
`
`
`C.
`
`
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`LIST OF EXHIBITS
`
`1006
`1007
`1008
`
`Exhibit No. Description
`1001
`U.S. Patent No. 8,983,134 (“the ’134 patent”)
`1002
`Declaration of Dr. John C. Hart
`1003
`Curriculum Vitae for Dr. John C. Hart
`1004
`Prosecution File History of U.S. Patent No. 8,983,134
`1005
`Alton L. Gilbert et al., A Real-Time Video Tracking System,
`PAMI-2 No. 1 IEEE Transactions on Pattern Analysis and
`Machine Intelligence 47 (Jan. 1980) (“Gilbert”)
`U.S. Patent 5,521,843 (“Hashima”)
`U.S. Patent 5,150,432 (“Ueno”)
`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. 1005)
`Deposition Transcript of Patent Owner’s Expert, Dr. Alan Bovik,
`December 15, 2017.
`
`1009
`
`1010
`1011
`
`
`
`
`
`
`
`
`ii
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`I.
`INTRODUCTION
`The Board instituted review of the ’134 Patent on two grounds: A) Claims 1
`
`and 2 are obvious over Gilbert and Hashima; and B) Claims 1 and 2 are obvious
`
`over Ueno and Gilbert. Institution Decision (Paper 12) at 29.
`
`Regarding Ground A, Patent Owner IPT does not dispute that Gilbert and
`
`Hashima disclose element 1[pre] or that they disclose claim 2. Patent Owner
`
`challenges only claim elements 1[a], 1[b], and 1[c]. P.O. Resp. at 2, 27-28; Ex.
`
`2007 (Bovik Decl.) ¶ 45. That the combination of Gilbert and Hashima discloses
`
`1[pre] and claim 2 should be deemed admitted. 37 CFR § 42.23(a) (“Any material
`
`fact not specifically denied may be considered admitted.”).
`
`Regarding Ground B, Patent Owner disputes only that Ueno and Gilbert
`
`disclose claim element 1[c]. P.O. Resp. at 2, 27-28; Ex. 2007 (Bovik Decl.) ¶ 45.
`
`That the combination of Ueno and Gilbert discloses 1[pre], 1[a], 1[b], and claim 2
`
`should be deemed admitted. 37 CFR § 42.23(a).
`
`As discussed below, Patent Owner provides no argument that claims 1 and 2
`
`are not rendered obvious under either Ground A or Ground B under the proper
`
`constructions preliminarily adopted by the Board in its Institution Decision.
`
`Accordingly, to the extent Patent Owner’s incorrect claim constructions are
`
`rejected, claims 1 and 2 are invalid. Furthermore, even under Patent Owner’s
`
`1
`
`
`
`
`improper claim constructions, claims 1 and 2 are still invalid as obvious under
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`Grounds A and B.
`
`II. ARGUMENT
`A.
`IPT’s Proposed Claim Constructions Are Wrong
`Patent Owner IPT offers constructions for two terms:
`
`(1) “forming at least one histogram . . . said at least one histogram referring
`
`to classes defining said target” (claim element 1[a]); and
`
`(2) “wherein forming the at least one histogram further comprises
`
`determining X minima and maxima and Y minima and maxima of boundaries of
`
`the target” (claim element 1[c]). P.O. Resp. at 5-14.
`
`While Patent Owner states it disagrees with the Board’s preliminary
`
`constructions of three other terms (P.O. Resp. at 4-5 (“forming at least one
`
`histogram of the pixels in the one or more of a plurality of classes in the one or
`
`more of a plurality of domains,” “class,” and “domain”)), Patent Owner
`
`nevertheless applies the Board’s constructions for the purposes of this Review and
`
`does not distinguish the prior art based on those constructions. Petitioner likewise
`
`agrees that the Board’s preliminary constructions of those three terms should be
`
`applied for the purposes of this Review.
`
`2
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`1.
`
`IPT’s Construction of “forming at least one
`histogram . . . said at least one histogram
`referring to classes defining said target” Is
`Incorrect
`As a preliminary matter, it is not necessary for the Board to construe the
`
`term “forming at least one histogram . . . said at least one histogram referring to
`
`classes defining said target” for the purposes of this review. This term is part of
`
`claim element 1[a], and Patent Owner does not dispute that Ueno (Ground B)
`
`discloses this limitation under either the Board’s preliminary construction or under
`
`that proposed by Patent Owner. P.O. Resp. at 2, 27-28; Ex. 2007 (Bovik Decl.)
`
`¶ 45. In addition, Patent Owner acknowledges that Gilbert (Ground A) discloses
`
`both intensity histograms and projection histograms (P.O. Resp. at 15-18), and
`
`Petitioner applies both Gilbert’s intensity histograms and projection histograms, in
`
`the alternative, to claim 1. See, e.g., Petition at 41-43; Ex. 1002 (Hart Decl.) ¶¶ 94-
`
`98. While Patent Owner disputes that Gilbert’s intensity histograms disclose
`
`limitation 1[a] under Patent Owner’s construction, it offers no opinion that
`
`Gilbert’s projection histograms do not disclose this limitation, even under the
`
`construction Patent Owner proposes. P.O. Resp. at 36-38; Ex. 2007 (Bovik. Decl.)
`
`¶¶ 71-78. Thus, Patent Owner acknowledges that both Gilbert (Ground A) and
`
`Ueno (Ground B) disclose limitation 1[a] under any construction. Resolution of
`
`this dispute, therefore, is immaterial to this Review.
`
`3
`
`
`
`Nevertheless, Patent Owner’s construction is incorrect. Patent Owner seeks
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`an overly narrow construction of this term, requiring that the claimed histogram
`
`include only pixels falling into classes that define the target. Patent Owner admits
`
`that the District Court in the parallel litigation did not adopt this narrow
`
`construction and that Patent Owner is now seeking to insert the additional
`
`limitation that the histogram may not include pixels in classes that do not define
`
`the target. P.O. Resp. at 5-6. Such a construction is inconsistent with the claim
`
`language and with the specification.
`
`a.
`
`IPT’s Construction Is Inconsistent with the Claim
`Language
`Claim element 1[a] recites “forming at least one histogram . . . said at least
`
`one histogram referring to classes defining said target” (emphasis added). The
`
`language “referring to classes” suggests that the histogram must at least include
`
`pixels falling into classes that define the target. But it does not require that the
`
`histogram include no pixels except those falling into classes that define the target.
`
`Neither does it require that every pixel defining the target be included in the
`
`histogram. The histogram is only required to “refer” to classes defining the target,
`
`not to exclude pixels in classes other than those that define the target. Indeed, if
`
`Patent Owner were correct that the histogram could only include pixels defining
`
`the target, limitation 1[b], which requires “identifying the target in said at least one
`
`4
`
`
`
`
`histogram itself” (emphasis added), would be superfluous because the entire
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`histogram itself would be the target; the target could not be identified in the
`
`histogram in such a case.
`
`Perhaps recognizing its construction is untenable, Patent Owner’s expert, Dr.
`
`Bovik, repeatedly refused at his deposition to answer whether Patent Owner’s
`
`construction would require that only target pixels be included in the claimed
`
`histogram. Ex. 1011 (Bovik Dep. Tr.) at 62:12-72:17.
`
`b.
`
`IPT’s Construction Is Inconsistent with the
`Specification
`The specification also does not support Patent Owner’s overly narrow
`
`construction. For example, Patent Owner’s own description of the embodiment
`
`shown in Figure 12 of the ’134 Patent contradicts its claim construction argument.
`
`As Patent Owner states, “the target in Figure 12 is defined by, for example,
`
`‘significant speeds’ (see Ex. 1001 at 21:37-40).” But Figure 12 (annotated below)
`
`shows that the histogram is formed both of pixels that fall within the class of
`
`significant speeds and pixels that do not fall within the class of significant speeds.
`
`5
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`Indeed, the ’134 Patent states:
`
`FIG. 12 diagrammatically represents the envelopes of histograms 38
`and 39, respectively in x and y coordinates, for velocity data. In this
`example, xM and yM represent the x and y coordinates of the maxima of
`the two histograms 38 and 39, whereas la and lb for the x axis and lc
`and ld for the y axis represent the limits of the range of significant or
`interesting speeds, la and lc being the longer limits and lb and ld being
`the upper limited of the significant portions of the histograms. . . .
`The vertical lines La and Lb, of abscises la and lb and the horizontal lines
`Lc and Ld of ordinals lc and ld form a rectangle that surrounds the
`cross hatched area 40 of significant speeds (for all x and y directions).
`A few smaller areas 41 with longer speeds, exist close to the main
`area 40, and are typically ignored.
`
`
`’134 Patent at 21:25-42 (emphasis added). In other words, the histogram includes
`
`both pixels falling within the class of “significant or interesting speeds” (within the
`
`red rectangle defined by la, lb, lc, and ld) and pixels outside of this class
`
`“significant or interesting speeds” (i.e., regions shaded yellow) that define the
`
`6
`
`
`
`
`target. See also ’134 Patent at 25:31-33 (“For example, referring to Fig. 12, the
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`box surrounding the target may be established using la, lb, lc, and ld as the bounds of
`
`the box.”). Patent Owner’s proposed construction is unduly narrow and would
`
`exclude this embodiment.
`
`While Patent Owner argues that Figure 17 supports its construction of claim
`
`1 (P.O. Resp. at 10), its expert took the contradictory position during his deposition
`
`that the embodiment shown in Figure 17 is not an implementation of claim 1. See,
`
`e.g., Ex. 1011 (Bovik Dep. Tr.) at 50:2-51:22 (emphasis added):
`
`Q. Do you -- do you see the line Yb in Figure 17?
`A. I do.
`
`. . .
`Q. So the line Yb, though, is on the -- it bounds the maximum X axis
`value of the face; right?
`A. . . . And again, as I said earlier, it is my belief that this embodiment
`isn’t directed toward claim 1 in any case.
`See also id. at 54:15-54:25 (emphasis added):
`
`Q: Okay, And you’d agree that, in Figure 17, the line Ya is determined
`based on the peak 125 in the histogram in Figure 17 that’s labeled 124x;
`right?
`A: Well, again, I’ll say the same thing, that, you know, that the line Ya
`would be arrived at by some series of calculations following the
`creation of this histogram, 124x.
`Q: uh-huh.
`A: Again, that histogram wouldn’t be the same histogram. It couldn’t
`be the same histogram in claim 1, okay, for the aforementioned
`reasons.
`
`7
`
`
`
`Thus, Patent Owner’s construction cannot be reconciled with the
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`specification.
`
`2.
`
`IPT’s Construction of “wherein forming the at
`least one histogram further comprises
`determining X minima and maxima and Y
`minima and maxima of boundaries of the
`target” Is Incorrect
`Whether “determining X minima and maxima and Y minima and maxima”
`
`is performed as part of calculating the histogram or as a step following histogram
`
`calculation is irrelevant to both Ground A (Gilbert and Hashima) and Ground B
`
`(Ueno and Gilbert). Gilbert’s projection histogram is formed from only those
`
`pixels that are classified as target pixels. Thus, the first and last non-zero bins of
`
`Gilbert’s X and Y projection histograms are the minimum and maximum
`
`boundaries of the target in the X and Y directions with no subsequent calculation.
`
`Similarly, Hashima’s projection histograms are formed from only black pixels that
`
`make up the target, so the first and last non-zero bins are the minima and maxima
`
`of the target. And the histogram of Ueno directly provides the top and bottom
`
`boundaries of the head in just the same way the peaks of the histograms shown in
`
`Figure 17 of the ’134 Patent are used to provide the boundaries of the head. Each
`
`of Gilbert, Hashima, and Ueno therefore discloses this limitation, regardless of
`
`how this term is construed.
`
`8
`
`
`
`Nevertheless, Patent Owner’s construction is incorrect. The Board properly
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`observed in its institution decision that “claim 1 does not preclude creating a
`
`histogram, and then determining X minima and maxima and Y minima and
`
`maxima of boundaries of the target from that histogram, from both being part of
`
`the ‘forming’ step.” Paper 12 at 20.
`
`a.
`
`The Intrinsic Evidence Contradicts Patent Owner’s
`Construction
`Patent Owner incorrectly argues that “forming the histogram” must “exclude
`
`actions taken after creating the histogram.” P.O. Resp. at 13. This is inconsistent
`
`with the ’134 Patent, which describes first forming a histogram and then analyzing
`
`the histogram to determine the X minima and maxima and Y minima and maxima
`
`of the target. For example, as shown in Figure 17, reproduced below, the shaded
`
`histograms are formed and then analyzed to determine the locations of the peaks
`
`125a, 125b, 125c, and 125d to determine the boundaries of the target.
`
`
`
`9
`
`
`
`In addition, Patent Owner’s construction is inconsistent with the dependent
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`claims. Claim 4, which depends from claim 1, recites “wherein forming the at
`
`least one histogram further comprises successively increasing the size of a selected
`
`area . . . ,” expressly demonstrating that the “forming the at least one histogram”
`
`language requires additional steps that occur after histogram creation. This
`
`claimed process is described with reference to Figures 21, 22, and 23, noting that
`
`adjustments are made based on content of already-created histograms:
`
`Prior to further enlarging the area under consideration, the center of the
`area under consideration, which until this point has been the pixel
`selected by the user, will be adjusted based on the content of
`histograms 222 and 224.
`’134 Patent at 24:42-46 (emphasis added). At his deposition, Patent Owner’s
`
`expert attempted to reconcile Patent Owner’s construction with the patent’s
`
`disclosure, arguing that the “histogram” of claim 1 can only be the very last
`
`histogram formed, after all adjustment of the “area under consideration” has been
`
`completed:
`
`Keep in mind that this is an iterative process where there are histograms
`computed along the way. Those histograms that are along the way
`and not the last histogram do not correspond to, in claim 1, you know,
`the formed limitation 1(a), but also ongoing, the “at least one
`histogram” in the pixels. Okay? It’s -- there is a histogram at the end
`which corresponds to that. . . . there are on histogram -- there are for
`histograms that are formed, computed, and calculated prior to the “at
`least one histogram” of the pixels in limitation 1(a).
`
`10
`
`
`
`
`Ex. 1001 (Bovik Dep. Tr.) at 26:15-27:5. In other words, Patent Owner argues
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`only the last histogram in the series of Figures 21-23 is the recited “at least one
`
`histogram” and, therefore, “wherein forming the at least one histogram further
`
`comprises determining X minima and maxima and Y minima and maxima” has
`
`happened as part of calculating the histogram and not as a subsequent step. But
`
`this explanation is directly contradicted by the claims that depend from claim 1.
`
`Again, claim 4 recites “[t]he process according to claim 1, wherein the process of
`
`forming the at least one histogram further comprises successively increasing the
`
`size of a selected area until the boundary of the target is found.” The language
`
`“the at least one histogram” refers back to the histogram of claim 1 and shows it
`
`cannot refer to only the last histogram of the series because claim 4 expressly
`
`recites successive steps that happen after its formation. Thus, the language
`
`“forming the at least one histogram further comprises . . .” cannot exclude steps
`
`performed after calculating the histogram, or claim 4 would be inoperable. Claims
`
`5 and 6 similarly introduce subsequent steps using the same “forming the at least
`
`one histogram further comprises . . .” language. Thus, the claim language and
`
`specification demonstrates Patent Owner’s proposed construction is wrong.
`
`11
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`b.
`
`Patent Owner’s Intrinsic and Extrinsic Evidence
`Contradicts its Position
`Patent Owner cites the specification, its expert and a dictionary to assert that
`
`a POSA would “understand that forming a histogram is the same as creating the
`
`histogram.” P.O. Resp. at 14. But this actually contradicts Patent Owner’s
`
`proposed construction because Patent Owner argues that “forming a histogram”
`
`must subsume both creating the histogram and determining X and Y minima and
`
`maxima in one single step. None of Patent Owner’s citations to the specification
`
`or to extrinsic evidence supports the idea that “forming” is a single-step
`
`combination of “creating” and “determining X and Y minima and maxima.” In
`
`other words, Patent Owner is not even applying the dictionary definition of
`
`“forming” that it purports to be using.
`
`To the contrary, the plain language of the claims and use in dependent
`
`claims of the phrase “forming the at least one histogram further comprises . . . ,”
`
`supports the Board’s determination that the proper construction of claim 1
`
`encompasses “creating a histogram, and then determining X minima and maxima
`
`and Y minima and maxima of boundaries of the target from that histogram.” Paper
`
`12 at 20.
`
`12
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`B. Claims 1 and 2 Are Obvious Over Gilbert and
`Hashima (Ground A)
`Patent Owner does not dispute that claim 2 or the preamble of claim 1 is
`
`disclosed by Gilbert or Hashima and challenges only claim elements 1[a], 1[b], and
`
`1[c]1. P.O. Resp. at 27-28; Ex. 2007 (Bovik Decl.) ¶¶ 68-71.
`
`1. Gilbert and Hashima Each Discloses Element
`1[a]
`Gilbert and Hashima each disclose element 1[a], “forming at least one
`
`histogram of the pixels in the one or more of a plurality of classes in the one or
`
`more of a plurality of domains, said at least one histogram referring to classes
`
`defining said target,” under all proposed constructions.
`
`Element 1[a] Disclosed Under Proper
`Construction
`Under the constructions adopted by the Board in its institution decision,
`
`a.
`
`Gilbert and Hashima each disclose element 1[a] for the reasons given in
`
`Petitioner’s opening documents and the institution decision. See Petition at 41-43;
`
`Ex. 1002 (Hart Decl.) ¶¶ 94-100; Institution Decision (Paper 12) at 15-16. Patent
`
`Owner presents no rebuttal under this construction.
`
`
`1 Claim elements 1[pre], 1[a], 1[b], and 1[c] are defined in Petition (Paper 1) at 39,
`41, 43-44.
`
`13
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`b.
`
`Element 1[a] Disclosed Under IPT’s
`Improper Construction
`(1) Gilbert
`Patent Owner argues that Gilbert does not disclose element 1[a] because
`
`Gilbert forms intensity histograms of “pixels with all intensity values, not limited
`
`to classes of intensity values defining a target,” based on its incorrect construction
`
`that the histogram may include only pixels in classes defining the target. P.O.
`
`Resp. at 37. But Gilbert does not form an intensity histogram of all pixels. Rather
`
`it selects only those pixels falling within the target TR window, i.e., having the X
`
`and Y position classes that refer to the target location, as Patent Owner’s expert
`
`admitted at deposition:
`
`Q. Now in -- in your declaration -- and I’ll -- I’ll refer you to paragraph
`75 -- you explain that separate intensity histograms are created for each
`of the three regions, the background region, the plume region, and the
`target region; correct?
`A. Yeah. I -- as I state, you know, these feature histograms are formed
`for each window. I’ll agree with that. You know -- you know, just
`being careful that, you know, I don’t mean histogram like used in the
`claim language, which --
`Q. But it’s a histogram?
`A. Yeah, sure.
`Ex. 1011 (Bovik Dep. Tr.) at 75:22-76:8. Thus, Gilbert’s intensity histograms
`
`disclose this limitation, even under Patent Owner’s incorrect construction.
`
`Furthermore, Patent Owner never even addresses Gilbert’s projection
`
`histograms in the X- and Y-domains. As shown in Gilbert’s Figure 4, each
`
`14
`
`
`
`
`projection histogram is formed of only those pixels having the value “1” in the
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`binary picture, indicating that it has an intensity value that classifies it as part of
`
`the target. Ex. 1005 (Gilbert) at 50-51; Ex. 1002, Hart Decl. ¶ 100. Thus,
`
`Gilbert’s projection histograms are formed of only those pixels in classes defining
`
`the target and thus disclose element 1[a] even under Patent Owner’s unreasonably
`
`narrow proposed construction. Patent Owner fails to rebut that Gilbert’s projection
`
`histograms disclose this limitation even under its improper construction.
`
`(2) Hashima
`Patent Owner incorrectly argues that Hashima forms “a histogram of all
`
`pixels in a binary image,” which it argues does not select only those pixels defining
`
`the target when forming a histogram. P.O. Resp. at 39. But in Hashima, the
`
`histograms are formed by imaging a “target mark” comprising a “black circle”
`
`with a “white triangle,” (Ex. 1006 at 8:1-5), and then summing the number of
`
`black pixels at each x- or y-location. Id. at 8:18-9:7. In other words, only the
`
`“black” pixels are selected for forming the histogram. If all pixels were included
`
`in the X- and Y-projection histograms as Patent Owner alleges, the projection
`
`histograms would simply comprise a flat line with 512 counts in each bin (since a
`
`512 x 512 pixel image has 512 pixels at each x-position or y-position). See id. at
`
`10:43-45. At his deposition, Dr. Bovik would not admit that white pixels were not
`
`included in Hashima’s histograms but stated that “they don’t contribute to the
`
`15
`
`
`
`
`height of the histogram there,” which is effectively the same thing. Ex. 1011
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`(Bovik Dep. Tr.) at 119:22-25.
`
`Thus, both Gilbert and Hashima disclose limitation 1[a] even under Patent
`
`Owner’s improper proposed construction.
`
`2. Gilbert and Hashima Each Discloses Element
`1[b]
`Both Gilbert and Hashima disclose “identifying the target in said at least one
`
`histogram itself.”
`
`a.
`Gilbert
`As set forth in the Petition, Gilbert creates an intensity histogram to separate
`
`target pixels from background and plume pixels. Petition at 43-44, 67; Ex. 1005
`
`(Gilbert) at 48-50; Ex. 1002 (Hart Decl.) ¶¶101, 158. This information is used by
`
`the projection processor to create X- and Y-projection histograms that identify the
`
`target by showing its position and extent in the X-Y coordinate space. Id.; see also
`
`Ex. 1005, Fig. 4, annotated below.
`
`16
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`This is not appreciably different from the embodiment illustrated in Figure
`
`17 of the ’134 Patent. There, pixels with movement above a certain threshold are
`
`formed into X- and Y-projection histograms to “identify” a target by indicating its
`
`location and extent in the X-Y coordinate space, as shown below.
`
`17
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`While the projection histograms of Figure 17 of the ’134 Patent are formed
`
`of pixels having a selected movement range, the projection histograms of Gilbert
`
`are formed of pixels having a selected intensity range, but the principle is identical.
`
`Alternatively, Gilbert “identifies” the target in the intensity histogram itself
`
`when it sets lower and upper intensity thresholds and “identifies” the pixels with
`
`intensity between those thresholds as belonging to the target. Patent Owner objects
`
`that a statistical calculation is performed to calculate the thresholds and that it is
`
`data derived from the intensity histograms that are used to identify the target. P.O.
`
`Resp. at 43. This is incorrect. While the thresholds are derived from the intensity
`
`histogram, the target is actually identified when pixel intensity values in the
`
`histogram are compared to the plume/target/background classification thresholds.
`
`Ex. 1005 (Gilbert) at 50 (“With the pixel classification stored in the classification
`
`memory, the real-time pixel classification is performed by letting the pixel
`
`18
`
`
`
`
`intensity address the classification memory location containing the desired
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`classification.”) (emphasis added). Thus, Gilbert discloses identifying a target
`
`both in the intensity histogram itself and in the projection histogram itself.
`
`Patent Owner’s argument that the projection histogram cannot identify the
`
`target because it was already identified in the intensity histogram is unavailing.
`
`P.O. Resp. at 45-47. The intensity histogram identifies the target in intensity-space
`
`with no information about its location. The projection histograms, on the other
`
`hand, identify its location and extent in coordinate (X-Y) space. Thus, they are not
`
`cumulative, and one “identification” does not render the other “identification”
`
`redundant or unnecessary, as each performs different aspects of the identification
`
`process. Ex. 1005 (Gilbert) at 50-51.
`
`b.
`Hashima
`Hashima discloses element 1[b] for the reasons given in Petitioner’s opening
`
`papers. Petition at 22-25, 43; Ex. 1002 (Hart Decl.) ¶¶61-66, 102. Patent Owner
`
`fails to rebut Hashima’s disclosure of this element.
`
`3. Gilbert and Hashima Each Discloses Element
`1[c]
`Element 1[c], “wherein forming the at least one histogram further comprises
`
`determining X minima and maxima and Y minima and maxima of boundaries of
`
`the target,” is disclosed under all proposed constructions.
`
`19
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`a.
`
`Element 1[c] is disclosed under the proper
`construction
`(1) Gilbert
`Patent Owner admits that Gilbert discloses this limitation under the proper
`
`construction wherein forming a histogram and determining the X and Y minima
`
`and maxima from the histogram falls within the scope of this claim element. P.O.
`
`Resp. at 30 (“The projection histogram [of Gilbert] is formed based on the
`
`intensity histogram and can be used to find the X and Y minima and maxima of the
`
`target.”) (emphasis original).
`
`(2) Hashima
`Similarly, Patent Owner admits that Hashima determines X and Y minima
`
`and maxima from the histogram. P.O. Resp. at 32 (“Thus, the determination [of X
`
`and Y minima and maxima] is not made as a part of forming the histograms but
`
`from data derived from the already-formed histograms.”). Thus, Patent Owner
`
`agrees both Gilbert and Hashima disclose this element under the proper
`
`construction.
`
`20
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`b.
`
`Element 1[c] is disclosed under IPT’s
`incorrect construction
`(1) Gilbert
`Gilbert’s projection histograms immediately determine the X and Y minima
`
`and maxima of boundaries of the target, as is evident from Figure 4, annotated
`
`below. See also Petition at 44; Ex. 1002 (Hart Decl.) ¶¶103-04.
`
`
`
`21
`
`
`
`In other words, the process of forming the X- and Y-projection histograms
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`also determines the X and Y minima and maxima of boundaries of the target, as
`
`these boundaries are the lowest or highest non-zero bin in each histogram. As soon
`
`as the histograms are formed, the X and Y minima and maxima are known. Thus,
`
`Gilbert discloses this limitation under Patent Owner’s improperly narrow
`
`construction, as well.
`
`At his deposition, Dr. Bovik acknowledged that Gilbert discloses that “nose
`
`and tail points” of the histogram could be used as minima and maxima of the target
`
`but argued that this is less accurate and more subject to noise, so Gilbert teaches
`
`that calculating center-of-area points is more accurate. Ex. 1001 (Bovik Dep. Tr.)
`
`at 112:17-25. But nothing in the claim language requires any minimum accuracy
`
`or maximum noise level in the determination of X and Y minima and maxima, and
`
`Dr. Bovik’s distinction is not based on any claimed feature.
`
`(1) Hashima
`Hashima similarly discloses this limitation under Patent Owner’s improperly
`
`narrow construction. Patent Owner argues that Hashima only uses the histograms
`
`to derive features such as the center point of a target. P.O. Resp. at 31. But the
`
`calculation in Hashima that Patent Owner cites describing calculating the center X
`
`and Y position is the following:
`
`22
`
`
`
`
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`Specifically, the X coordinate mx of the central position Pm (mx, my)
`can be determined using opposite end positions Xb1, Xb2 obtained
`from the X-projected histogram according to the following equation
`(3): mx=(Xb1+Xb2)/2.
`The Y coordinate my of the central position Pm (mx, my) can be
`determined using opposite end positions Yb1, Yb2 obtained from the
`Y-projected histogram according to the following equation (4):
`my=(Yb1+Yb2)/2.
`
`
`Ex. 1006 (Hashima) at 11:13-25; P.O. Resp. 31-32. Regardless of whether a center
`
`point is only derived from the histogram, the “opposite end positions,” Xb1, Xb2,
`
`Yb1, and Yb2, are the first and last non-zero points of the projection histograms
`
`and are the X and Y minima and maxima of the target, as Figure 15 of Hashima,
`
`annotated below, makes clear.
`
`23
`
`
`
`
`
`Again, Dr. Bovik’s criticism is that there could be noise that would prevent
`
`IPR2017-00353 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`Xb1 and Xb2 from precisely aligning with the max and min of the target. Ex. 1011
`
`(Bovik Dep. Tr.) at 127:6-23. But the claims specify no minimum accuracy. Thus,
`
`calculation of the X- and Y-Projection histo
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
