Paper 37
`Entered: May 9, 2018
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`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 8,983,134 B2
`____________
`
`
`Before JONI Y. CHANG, MICHAEL R. ZECHER, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`KAISER, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`Entered: May 9, 2018
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`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 8,983,134 B2
`____________
`
`
`Before JONI Y. CHANG, MICHAEL R. ZECHER, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`KAISER, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`IPR2017-00353
`Patent 8,983,134 B2
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`I.
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`
`INTRODUCTION
`
`Samsung Electronics Co., Ltd. and Samsung Electronics America,
`Inc. (collectively, “Petitioner”) filed a Petition pursuant to 35 U.S.C.
`§§ 311–19 requesting an inter partes review of claims 1 and 2 of U.S. Patent
`No. 8,983,134 B2, issued on March 17, 2015 (Ex. 1001, “the ’134 patent”).
`Paper 2 (“Pet.”). Image Processing Technologies LLC (“Patent Owner”)
`filed a Preliminary Response. Paper 6 (“Prelim. Resp.”). Applying the
`standard set forth in 35 U.S.C. § 314(a), which requires demonstration of a
`reasonable likelihood that Petitioner would prevail with respect to at least
`one challenged claim, we granted Petitioner’s request and instituted an inter
`partes review of all challenged claims. Paper 12 (“Inst. Dec.”), 29.
`Following institution, Patent Owner filed a Response to the Petition
`(Paper 17, “PO Resp.”), and Petitioner filed a Reply (Paper 22, “Pet. Reply).
`A final oral hearing was held on February 21, 2018. A transcript of that
`hearing has been entered in the record. Paper 33 (“Hr’g Tr.”).
`For the reasons discussed below, Petitioner has shown by a
`preponderance of the evidence that all challenged claims of the ’134 patent
`are unpatentable.
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`II. BACKGROUND
`A. The ʼ134 Patent (Ex. 1001)
`The ʼ134 patent is titled “Image Processing Method.” Ex. 1001, at
`[54]. The Abstract describes the subject matter as follows:
`A method and apparatus for localizing an area in relative
`movement and for determining the speed and direction thereof in
`real time is disclosed. Each pixel of an image is smoothed using
`its own time constant. A binary value corresponding to the
`existence of a significant variation in the amplitude of the
`smoothed pixel from the prior frame, and the amplitude of the
`variation, are determined, and the time constant for the pixel is
`updated. For each particular pixel, two matrices are formed that
`include a subset of the pixels spatially related to the particular
`pixel. The first matrix contains the binary values of the subset of
`pixels. The second matrix contains the amplitude of the variation
`of the subset of pixels. In the first matrix, it is determined
`whether the pixels along an oriented direction relative to the
`particular pixel have binary values representative of significant
`variation, and, for such pixels, it is determined in the second
`matrix whether the amplitude of these pixels varies in a known
`manner indicating movement in the oriented direction. In each
`of several domains, histogram of the values in the first and
`second matrices falling in such domain is formed. Using the
`histograms, it is determined whether there is an area having the
`characteristics of the particular domain. The domains include
`luminance, hue, saturation, speed (V), oriented direction (Dl),
`time constant (CO), first axis (x(m)), and second axis (y(m)).
`
`
`Id. at [57].
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`Figure 14a of the ’134 patent is reproduced below.
`
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`
`Figure 14a depicts a hypothetical velocity histogram with classes C1–Cn
`each representing a particular velocity. Id. at 20:49–54. Figure 17 of the
`’134 patent is reproduced below.
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`Figure 17 depicts x axis and y axis histograms of the head of a user in a
`video conference. Id. at 22:4–6, 22:55–67. The face V of the user is
`approximately defined by the peaks in the two histograms. Id. at 23:1–9.
`Figure 22 of the ’134 patent is reproduced below.
`
`
`Figure 22 depicts a circumstance where an area under consideration begins
`to cross the borders of the target. Id. at 24:38–42. In particular, histograms
`222 and 224 for x and y projections include pixels in which there is a
`significant variation, and, thus, the histograms detect the target edge in the x
`and y axis. Id. at 5:18–21, 24:38–42. The ’134 patent discloses that in a
`preferred embodiment, the center of the area “is determined to be
`(XMIN+XMAX)/2, (YMIN+YMAX)/2, where XMIN and XMAX are the positions of
`the minima and maxima of the x projection histogram, and YMIN and YMAX
`are the positions of the minima and maxima of the y projection
`histogram . . . Other methods of relocating the center of the target box may
`be used if desired.” Id. at 24:46–54.
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`B. Illustrative Claim
`Of the challenged claims, claim 1 is independent and is reproduced
`below:
`
`1. A process of tracking a target in an input signal
`implemented using a system comprising an image processing
`system, the input signal comprising a succession of frames, each
`frame comprising a succession of pixels, the target comprising
`pixels in one or more of a plurality of classes in one or more of a
`plurality of domains, the process performed by said system
`comprising, on a frame-by-frame basis:
`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; and
`identifying the target in said at least one histogram itself,
`wherein forming the at least one histogram further
`comprises determining X minima and maxima and Y minima and
`maxima
`of
`boundaries
`of
`the
`target.
`
`Id. at 26:36–50.
`
`C. Related Proceedings
`Petitioner and Patent Owner identify a related litigation in the U.S.
`District Court for the Eastern District of Texas involving the ʼ134 patent, as
`well as other patents, titled: Image Processing Techs. LLC v. Samsung
`Elecs. Co., No. 2:16-cv-00505-JRG (E.D. Tex.). Pet. 1; Paper 4, 2.
`Petitioner indicates that it has concurrently filed inter partes review petitions
`for the other patents asserted in that litigation, and Patent Owner also
`identifies those inter partes reviews. Pet. 1; Paper 4, 2.
`
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`D. Level of Skill in the Art
`Petitioner contends that a person having ordinary skill in the art
`[at] the time of the alleged invention of the ’134 Patent would
`have had either (1) a Master’s Degree in Electrical Engineering
`or Computer Science or the equivalent plus at least a year of
`experience in the field of image processing, image recognition,
`machine vision, or a related field[;] or (2) a Bachelor’s Degree in
`Electrical Engineering or Computer Science or the equivalent
`plus at least three years of experience in the field of image
`processing, image recognition, machine vision, or a related field.
`Pet. 4. Petitioner further contends “[a]dditional education could substitute
`for work experience and vice versa.” Id. (citing Ex. 1002 (Declaration of
`Dr. John C. Hart) ¶¶ 45–48). Patent Owner contends a person of ordinary
`skill “would be someone with an undergraduate degree in electrical
`engineering or image processing or a related field, followed by at least two
`years of graduate coursework and also at least early-stage thesis research, in
`digital image processing.” PO Resp. 3; Prelim. Resp. 9. We note that either
`assessment appears consistent with the level of ordinary skill in the art at the
`time of the invention as reflected in the prior art in the instant proceeding.
`See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001). We
`determine that our analysis in this Decision is supported by either
`assessment.
`
`E. References and Other Evidence
`We instituted trial based on the following references:
`1. “Gilbert” (Alton L. Gilbert, et al., A Real-Time Video Tracking
`System, PAMI-2 No. 1 IEEE TRANSACTIONS ON PATTERN
`ANALYSIS AND MACHINE INTELLIGENCE 47–56 (1980))
`(Ex. 1005);
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`2. “Hashima” (U.S. Patent No. 5,521,843; issued May 28, 1996)
`(Ex. 1006); and
`3. “Ueno” (U.S. Patent No. 5,150,432; issued Sept. 22, 1992)
`(Ex. 1007).
`In addition, Petitioner submitted an expert declaration from Dr. Hart
`(Ex. 1002, “Hart Decl.”).
`Patent Owner relies on an expert declaration of Dr. Alan Bovik
`(Ex. 2007, “Bovik Decl.”). In addition, the deposition transcript for Dr.
`Bovik (Ex. 1011) has also been filed.
`F. Instituted Grounds
`Trial was instituted on the following grounds:
`
`
`References
`Basis
`35 U.S.C. § 103(a)
`Gilbert and Hashima
`35 U.S.C. § 103(a)
`Ueno and Gilbert
`35 U.S.C. § 103(a)
`Hashima and Ueno
`Inst. Dec. 29; Paper 36, 3.
`
`
`Claims
`1 and 2
`1 and 2
`1 and 2
`
`
`
`II. ANALYSIS
`
`A. Claim Construction
`
`Claims of an expired patent are given their ordinary and customary
`meaning in accordance with Phillips v. AWH Corp., 415 F.3d 1303 (Fed.
`Cir. 2005) (en banc). See In re Rambus Inc., 694 F.3d 42, 46 (Fed. Cir.
`2012). Petitioner and Patent Owner agree that the ’134 patent has expired
`and thus the claim construction standard applicable to expired patents—
`namely, the district court-type claim construction standard—applies to this
`proceeding. Pet. 3–4; Prelim. Resp. 10; Hr’g Tr. 49:18–19. Under that
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`standard, the “words of a claim ‘are generally given their ordinary and
`customary meaning,’” as would be understood by a person of ordinary skill
`in the art in question at the time of the invention. Phillips, 415 F.3d at 1312
`(quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.
`Cir. 1996)). “In determining the meaning of the disputed claim limitation,
`we look principally to the intrinsic evidence of record, examining the claim
`language itself, the written description, and the prosecution history, if in
`evidence.” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d
`1005, 1014 (Fed. Cir. 2006) (citing Phillips, 415 F.3d at 1312–17). We also
`can consider extrinsic evidence, although it is “less significant than the
`intrinsic record.” Phillips, 415 F.3d at 1317.
`In the Petition, Petitioner stated it did “not believe any term needs an
`explicit construction.” Pet. 4. In its Preliminary Response, Patent Owner
`proposed constructions for “domain,” “class,” “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,” and “said at least one histogram referring
`to classes defining said target.” Prelim. Resp. 10–21. In our Institution
`Decision, we determined we needed to address only the construction of
`“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” to resolve the issues
`before us. Inst. Dec. 9. In particular, we determined that “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” is not limited to “forming at least one
`histogram of the pixels in two or more classes that are in two or more
`domains,” as Patent Owner had proposed. Id. at 10.
`
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`Following institution, in its Patent Owner Response, Patent Owner
`does not reargue our determination not to construe “domain” and “class” or
`our construction of the “forming” step, and instead states that it has applied
`our construction of the “forming” step and the plain and ordinary meaning of
`“class” and “domain” in its Patent Owner Response. PO Resp. 4–5. We
`determine we need not further construe these terms. See Vivid Techs., Inc. v.
`Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (holding that
`“only those terms need be construed that are in controversy, and only to the
`extent necessary to resolve the controversy”); see also Nidec Motor Corp. v.
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
`(citing Vivid Techs. in the context of an inter partes review). In the Patent
`Owner Response, Patent Owner proposes constructions for “said at least one
`histogram referring to classes defining said target” and “wherein forming the
`at least one histogram further comprises determining X minima and maxima
`and Y minima and maxima of boundaries of the target.” PO Resp. 5–14.
`We address those claim limitations further below.
`
`1. “said at least one histogram referring to classes defining
`said target”
`Patent Owner contends “forming at least one histogram . . . said at
`least one histogram referring to classes defining said target” should be
`construed as “forming at least one histogram . . . at least one histogram being
`formed of pixels in the one or more classes that define said target.” PO
`Resp. 5 (citing Ex. 2006, 46). Patent Owner further contends that “said at
`least one histogram referring to classes defining said target” requires the
`histogram to be “made up of only the data for the pixels whose properties
`match the classes that define the target.” Id. at 6. In particular, Patent
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`Owner argues this limitation allows for the histogram to contain classes that
`include all values in a domain “if and only if those classes all define the
`target.” Id. Patent Owner contends its proposed construction is consistent
`with the language of claim 1 because the histogram is formed of “the one or
`more of a plurality of classes in the one or more of a plurality of domains,”
`with the emphasized “the” referring back to the plurality of classes of the
`pixels which comprise the target. Id. at 8–9 (citing Ex. 2007 ¶¶ 25–37).
`Patent Owner also points to examples in the specification of the ’134 patent,
`which Patent Owner contends include only classes defining the target. Id. at
`9–11 (citing Ex. 1001, Figs. 12, 17).
`Petitioner contends neither the claim language nor the Specification
`requires that the recited histogram include “no pixels except those falling
`into classes that define the target” or “every pixel defining the target.”
`Pet. Reply 4–8 (emphasis omitted).
`We do not agree with Patent Owner’s proposed construction. Claim 1
`recites “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.” Ex. 1001, 26:43–46
`(emphasis added). Patent Owner’s proposed construction attempts to read
`“only” into the language of the claim. PO Resp. 7 (“Accordingly, although
`the target may contain pixels not in classes defining it, the histogram must
`refer only to classes defining said target.”) (italicized emphasis added), 11
`(“Patent Owner’s proposed construction that the histogram only includes
`values in the target classes”). The claim language, however, does not
`include the term “only” or require that classes not defining the target be
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`excluded from the histogram. In other words, the claim language requires
`only that the recited histogram refer to classes defining the target.
`We have reviewed the portions of the specification cited by Patent
`Owner (i.e., Figures 12 and 17 and the associated description of those
`figures) and find that they do not require limiting the recited histogram to
`only classes defining the target. We “depart from the plain and ordinary
`meaning of claim terms based on the specification in only two instances:
`lexicography and disavowal,” Hill-Rom Services, Inc. v. Stryker Corp., 755
`F.3d 1367, 1371 (Fed. Cir. 2014), and Patent Owner has pointed to nothing
`in the specification that amounts to either lexicography or disavowal. In
`such a circumstance, and in light of the Federal Circuit’s caution “against
`limiting the claimed invention to preferred embodiments or specific
`examples in the specification,” Williamson v. Citrix Online, LLC, 792 F.3d
`1339, 1346–47 (Fed. Cir. 2015); Superguide Corp. v. DirecTV Enterprises,
`Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (noting that “it is important not to
`import into claim limitations that are not a part of the claim”), we decline to
`limit the broad language of claim 1 to the specific examples Patent Owner
`cites.
`Accordingly, we determine “said at least one histogram referring to
`classes defining said target” is not limited to “said at least one histogram
`referring to only classes defining said target.” We also determine we need
`not further construe this term to resolve the issues before us.
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`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”
`Patent Owner contends that “wherein forming the at least one
`histogram further comprises determining X minima and maxima and Y
`minima and maxima of boundaries of the target” does not encompass
`creating a histogram and then determining the X minima and maxima and Y
`minima and maxima of the boundaries of the target from that histogram. PO
`Resp. 12–13 (citing Ex. 2007 ¶¶ 38–42). In our Institution Decision, in
`analyzing one of Petitioner’s challenges, we determined “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. That is, the histogram of claim 1
`is not formed until after X minima and maxima and Y minima and maxima
`of boundaries of the target have been determined.” Inst. Dec. 20–21.
`Patent Owner contends this interpretation is incorrect because (1) it
`reads the wherein clause out of the claim, PO Resp. 13; (2) a person of
`ordinary skill in the art would have understood that “forming the histogram”
`requires “adding data to the histogram,” id. at 13–14; and (3) general
`purpose dictionary definitions of “forming” support that a person of ordinary
`skill in the art would have understood that “forming a histogram” is the same
`as “creating a histogram,” id. at 14. We do not agree with these arguments.
`First, we disagree that our preliminary interpretation reads the wherein
`clause out of the claim. As we stated in our Institution Decision, “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
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`histogram, from both being part of the ‘forming’ step.” Inst. Dec. 20–21. In
`other words, we determined that under our preliminary construction,
`“determining X minima and maxima and Y minima and maxima of
`boundaries of the target” would still be part of the “forming” step.
`We also do not agree that a person of ordinary skill in the art would
`have understood that “forming” a histogram is limited to adding data to the
`histogram, as Patent Owner contends. PO Resp. 13–14 (citing Ex. 2007
`¶¶ 40–41). Patent Owner and its expert cite portions of the specification that
`mention “forming a histogram for pixels of the output signal within the
`classes selected by the classifier within each domain selected by the
`validation signal,” and the process “further includes the steps of forming
`histograms along coordinate axes for the pixels within the classes selected
`by the classifier within each domain selected by the validation signal.” PO
`Resp. 14 (quoting Ex. 1001, 6:11–18); Ex. 2007 ¶¶ 40–41 (quoting same).
`Patent Owner’s expert, Dr. Bovik, testifies that each of these involves
`adding data to the histogram. Ex. 2007 ¶¶ 40–41. These portions of the
`specification, however, do not show the “forming” step is limited to adding
`data to the histogram. We have also considered the general purpose
`dictionaries cited by Patent Owner (PO Resp. 14 (citing Ex. 2008;
`Ex. 2009)), but we find this extrinsic evidence is inconclusive and does not
`outweigh the intrinsic evidence we discuss below.
`In particular, Petitioner contends that Patent Owner’s proposed
`construction is inconsistent with the embodiment disclosed in Figure 17 of
`the ’134 patent. Pet. Reply 9. Figure 17 is reproduced below.
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`Figure 17 depicts x axis and y axis histograms of the head of a user in
`a video conference. Ex. 1001, 22:4–6, 22:55–67. As Petitioner points out in
`Figure 17, (Pet. Reply 9), histograms 124x and 124y are created and then
`analyzed to determine peaks 125a, 125b, 125c, and 125d. Ex. 1001, 22:55–
`26:9. We agree with Petitioner that the embodiment in Figure 17 is
`consistent with a construction of this claim limitation which encompasses
`determining the recited points (i.e., peaks 125a, 125b, 125c, and 125d) from
`a created histogram (i.e., histograms 124x and 124y). In other words, Figure
`17 is consistent with our preliminary determination 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.” Inst. Dec. 20–21.
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`Patent Owner’s contention at the oral hearing that Figure 17 is not an
`embodiment of claim 1 (see Hr’g Tr. 30:13–15, 34:17–19, 36:8–9) is
`undermined by its reliance on Figure 17 to support its interpretation of other
`limitations of claim 1 (PO Resp. 9–10) and its contention that the asserted
`prior art differs from Figure 17 (id. at 41–42). Dr. Bovik similarly relied on
`Figure 17 in his declaration. See Ex. 1007 ¶¶ 31–34, 106–108. Indeed,
`Patent Owner conceded that the first time either Patent Owner or Dr. Bovik
`contended Figure 17 was not an embodiment of claim 1 was during Dr.
`Bovik’s deposition (i.e., that contention does not appear in Patent Owner’s
`briefs). See Hr’g Tr. 40:19–42:19. We have reviewed Dr. Bovik’s
`deposition testimony regarding Figure 17 and do not find it helpful because
`it assumes, without analyzing, the correctness of Patent Owner’s
`construction of this claim limitation. See Ex. 1011, 51:1–8.
`For the first time at the hearing, Patent Owner changed tack to assert
`its proposed claim construction for this limitation is supported by the
`prosecution history and other disclosures in the specification of the ’134
`patent not cited in its briefs. See, e.g., Hr’g Tr. 35:4–17, 36:18–39:6, 43:1–
`18. Petitioner objected to Patent Owner raising new arguments at the oral
`hearing. Id. at 57:5–21. We agree with the Petitioner that these arguments
`were not made in the briefs. We need not consider Patent Owner’s
`arguments raised for the first time at the oral hearing. See Dell Inc. v.
`Acceleron, LLC, 884 F.3d 1364, 1369 (Fed. Cir. 2018) (holding that the
`Board was not obligated to consider an “untimely argument . . . raised for
`the first time during oral argument”). In any event, we do not agree with
`Patent Owner’s new arguments for the reasons discussed below.
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`Patent Owner’s counsel relied on the prosecution history for the first
`time at the oral hearing. See Hr’g Tr. 35:4–17, 43:1–18. Although the
`prosecution history is in the record (Ex. 1004), neither party relied on the
`prosecution history in its briefs. Hr’g Tr. 43:13–18, 65:3–17. During the
`oral hearing, Patent Owner’s counsel contended that the applicant added this
`claim limitation by amendment and pointed to the embodiment in column 24
`for support. Id. at 35:4–13; see id. at 43:4–9. We have reviewed the
`prosecution history in Exhibit 1004, and do not find support for Patent
`Owner’s construction. Patent Owner is correct that claim 1 was amended
`during prosecution to add this limitation (specifically, the Examiner found a
`dependent claim that included that limitation would be allowable if rewritten
`in independent form and the applicant amended that claim accordingly). See
`Ex. 1004, 86, 88, 146, 197, 198. We do not find, and Patent Owner has not
`pointed us to, any disavowal of claim scope or any other statement in the
`prosecution history that clearly limits claim 1 to a particular embodiment in
`the specification. See id.
`During the oral hearing, Patent Owner also relied on a statement in the
`specification that “[f]or the histogram formed in memory 100, key
`characteristics for that histogram are simultaneously computed in a unit
`112,” including “the minimum (MIN) of the histogram [and] the maximum
`(MAX) of the histogram” (Ex. 1001, 19:41–45). Hr’g Tr. 36:18–39:6. As
`Petitioner points out (id. at 14:10–24), and we agree, this disclosure refers to
`computing the minimum and maximum of the histogram, whereas claim 1
`recites determining minima and maxima of boundaries of the target.
`Patent Owner also relied extensively at the oral hearing on the
`embodiment in Figures 21–23 of the ’134 patent, as well as the associated
`17
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`description of that embodiment. In particular, Patent Owner contends that
`the last histogram formed in the iterative process in that embodiment maps
`to the “at least one histogram” recited in claim 1, such that steps occurring
`prior to the formation of that last histogram can be part of the recited
`“forming” step. See, e.g., Hr’g Tr. 38:21–24. Even if we were to accept
`these contentions (i.e., even if we were to agree that that embodiment meets
`the limitations of claim 1), we see nothing in the specification limiting the
`“forming” step or this limitation of claim 1 to that embodiment, and Patent
`Owner has not pointed us to any limiting language in the specification.
`Indeed, Dr. Bovik characterized this embodiment as “one way of
`. . . practicing claim 1.” Ex. 1011, 16:7–12. As discussed above, we are
`mindful not to limit “the claimed invention to preferred embodiments or
`specific examples in the specification.” Williamson, 792 F.3d at 1346–47.
`Thus, even considering Patent Owner’s belated arguments made
`during the oral hearing, we conclude our preliminary determination remains
`correct: “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.” Inst. Dec. 20–21. We determine we need not further
`construe this limitation to resolve the issues before us.
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`B. Asserted Obviousness Over Gilbert and Hashima
`1. Overview of Gilbert and Hashima
`Gilbert is titled “A Real-Time Video Tracking System,” and dated
`January 1980. Ex. 1005, 47.1 Gilbert relates to an object identification and
`tracking system, which includes an image processing system comprising a
`video processor, a projection processor, a tracker processor, and a control
`processor. Id. at 47–48. Gilbert’s video processor receives a digitized video
`signal in which each field consists of pixels. Id. at 48. Gilbert discloses that
`“[e]very 96 ns, a pixel intensity is digitized and quantized into eight bits
`(256 gray levels), counted into one of six 256-level histogram memories, and
`then converted by a decision memory to a 2-bit code indicating its
`classification (target, plume, or background.).” Id. Gilbert’s projection
`processor then uses pixels identified as being part of the target to create
`x- and y-projections. Id. at 50. Figure 4 of Gilbert is reproduced below.
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`1 We refer to the original page numbers at the top of the pages in Exhibit
`1005 rather than the page numbers added by Petitioner.
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`Figure 4 of Gilbert depicts a Y-projection and X-projections of the target.
`Gilbert’s system uses these projections to determine the center of the upper
`and lower portions of the target, and those points are then used to determine
`the center of the target (XC, YC). Id. at 50–51.
`Hashima is titled “System for and Method of Recognizing and
`Tracking Target Mark,” and issued on May 28, 1996. Ex. 1006, at [45],
`[54]. Hashima relates to a system and method of recognizing and tracking a
`target mark with a video camera. Id. at [57]. In Hashima, the target mark
`can be a black circle with a white triangle as depicted in Figure 3
`(reproduced below).
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`Figure 3 depicts Hashima’s target mark. Figure 6 of Hashima is reproduced
`below.
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`Figure 6 depicts x- and y-projected histograms of a target mark. Hashima
`describes creating these histograms by summing the number of black pixels
`at each x- or y- location. Id. at 8:18–9:7. Hashima also describes finding
`the central position of the detected mark as shown in Figure 15 below.
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`Figure 15 depicts a process of finding central position Pm of the target mark.
`Hashima describes finding Pm (mx, my) using the equations (1) mx =
`(Xb1+Xb2)/2 and (2) my = (Yb1+Yb2)/2. Id. at 11:6–25.
`2. Analysis
`Petitioner contends that claims 1 and 2 would have been obvious over
`Gilbert and Hashima. Pet. 34–50. We have reviewed the information
`provided by Petitioner, including the relevant portions of the supporting Hart
`Declaration (Ex. 1002), and, taking into account the arguments presented in
`the Patent Owner Response, Petitioner has demonstrated by a preponderance
`of the evidence that claims 1 and 2 are unpatentable as obvious over Gilbert
`and Hashima.
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the subject matter sought to be patented and the prior art are such
`that the subject matter as a whole would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) when in the record, objective
`evidence of non-obviousness.2 See Graham v. John Deere Co., 383 U.S. 1,
`17–18 (1966). In that regard, an obviousness analysis “need not seek out
`precise teachings directed to the specific subject matter of the challenged
`claim, for a court can take account of the inferences and creative steps that a
`person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418.
`Petitioner’s obviousness analysis, as supported by the Hart
`Declaration, demonstrates where each element of the challenged claims is
`taught in Gilbert and Hashima. Pet. 39–48; Ex. 1002 ¶¶ 89–108. We agree
`with and adopt Petitioner’s analysis and Dr. Hart’s testimony as our own.
`For example, for the preamble of claim 1, Petitioner contends Gilbert
`discloses a process of tracking a target (i.e., a missile) and uses a video
`signal (i.e., input signal) comprising digitized fields with a frame rate of 60
`fields/s (i.e., 30 frames/s in a succession of frames), each image frame
`comprising a matrix of digitized points (i.e., a succession of pixels). Pet.
`39–40 (citing Ex. 1005, 47–48; Ex. 1002 ¶¶ 89–91). Petitioner further
`contends that Gilbert tracks the target by categorizing pixels into 256 gray-
`scale levels (i.e., a plurality of classes) according to their pixel intensity (i.e.,
`domain), and Gilbert discloses that a plurality of other domains, such as
`“texture, edge, and linearity measures” could also be used. Id. at 40 (citing
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`2 Patent Owner does not present arguments or evidence of such secondary
`considerations in its Patent Owner Response.
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`Ex. 1005, 48; Ex. 1002 ¶¶ 92–93). Petitioner contends Hashima also teaches
`the preamble. Id. at 40–41.
`Petitioner contends Gilbert and
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