Trials@uspto.gov
`571-272-7822
`
`Paper 12
`Entered: May 25, 2017
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`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.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314 and 37 C.F.R. § 42.108
`
`
`
`
`571-272-7822
`
`Paper 12
`Entered: May 25, 2017
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`
`
`
`
`
`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.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314 and 37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2017-00353
`Patent 8,983,134 B2
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`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 grant Petitioner’s request and institute an inter
`partes review of all challenged claims.
`I. 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
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`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 Abstract.
`
`Figure 14a of the ’134 patent is reproduced below.
`
`
`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.
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`Figure 22 of the ’134 patent is reproduced below.
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`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 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.” Prelim. Resp. 9. At this stage of the proceeding,
`we determine our decision would not change under either assessment.
`
`E. References
`Petitioner relies 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);
`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).
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`F. Grounds Asserted
`Petitioner challenges the patentability of claims 1 and 2 of the ʼ134
`
`patent on the following grounds:
`
`
`Claims
`References
`1 and 2
`Gilbert and Hashima
`1 and 2
`Hashima and Ueno
`1 and 2
`Ueno and Gilbert
`Petitioner also relies on expert testimony from Dr. Hart (Ex. 1002,
`“Hart Decl.”).
`
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`
`
`Basis
`35 U.S.C. § 103(a)
`35 U.S.C. § 103(a)
`35 U.S.C. § 103(a)
`
`
`
`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). On the other hand, claim terms in an unexpired patent are construed
`according to their broadest reasonable interpretation in light of the
`specification of the patent in which they appear. See 37 C.F.R. § 42.100(b);
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016).
`Petitioner contends the ’134 patent will expire on July 22, 2017,
`which is within 18 months of the Notice of Filing Date Accorded (Paper 3
`(according the Petition a filing date of November 30, 2016)) and, thus,
`Petitioner suggests that it has applied the Phillips standard to all claim
`construction issues. Pet. 3. Petitioner states that it “has interpreted each
`claim term according to its plain and ordinary meaning” and that it “does not
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`believe any term needs an explicit construction.” Id. at 3–4 (citing Ex. 1002
`¶ 48). Patent Owner “agrees that the Phillips standard should apply for
`purposes of this inter partes review,” and Patent Owner proposes
`constructions for several claim terms. Prelim. Resp. 10–21.
`In an inter partes review, a party may request a district court-type
`claim construction standard be applied if the challenged patent will expire
`within 18 months of the entry of the Notice of Filing Data Accorded to
`Petition. See 37 C.F.R. § 42.100(b). In this case, other than the phrase
`“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,” as recited in claim 1
`and discussed below, we determine explicit construction of any term is not
`necessary to resolve the issues before us at this stage of the proceeding. 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”).
`We further determine our 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,” discussed below, would not change based on the
`standard applied. Because Patent Owner does not contest that the ’134
`patent will expire during this proceeding, we construe the claims of the ’134
`patent under the claim construction standard applicable to expired patents—
`namely, the district court-type claim construction standard.
`Patent Owner argues 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” should be construed as “forming at least one histogram of the
`pixels in two or more classes that are in two or more domains.” Prelim.
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`Resp. 15. In essence, Patent Owner argues that “one or more of a plurality”
`requires at least one plurality (i.e., two or more). Id. (citing Ex. 2002).
`Patent Owner further argues that a construction that requires “at least one
`class selected from multiple classes, and at least one domain selected from
`multiple domains, would render the term ‘plurality’ superfluous, so that the
`claim limitation would be reduced to ‘one or more classes in one or more
`domains.’” Id.
`We disagree with Patent Owner. “[C]laims are interpreted with an
`eye toward giving effect to all terms in the claim.” Bicon, Inc. v. Straumann
`Co., 441 F.3d 945, 950 (Fed. Cir. 2006). Here, Patent Owner’s proposed
`construction would render “one or more” in the claim superfluous (i.e.,
`under Patent Owner’s construction, the claim could simply read “a plurality
`of classes that are in a plurality of domains”). On the other hand,
`interpreting the phrase “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 encompass at least one class from among a plurality of possible
`classes and at least one domain from among a plurality of possible domains
`gives effect to all the terms of the claim.
`Accordingly, we determine 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.”
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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.
`
`
`1 We refer to the original page numbers at the top of the pages 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.
`
`
`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
`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
`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 nonobviousness. 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
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`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 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 are persuaded, based on the current record, that
`Petitioner has demonstrated a reasonable likelihood of prevailing on this
`obviousness challenge.
`For example, for claim 1’s preamble, 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
`Ex. 1005, 48; Ex. 1002 ¶¶ 92–93). Petitioner contends Hashima also teaches
`the preamble. Id. at 40–41.
`Petitioner contends Gilbert and Hashima each disclose the step 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, said at least one
`histogram referring to classes defining said target,” as recited in claim 1. Id.
`at 41. Specifically, Petitioner relies on Gilbert’s intensity histogram
`(discussed above), Gilbert’s X- and Y-projection histograms, as well as
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`Hashima’s X- and Y-axis histograms. Id. at 41–43 (citing Ex. 1005, 48, 50–
`51, Fig. 4; Ex. 1006, 8:22–30; Ex. 1002 ¶¶ 94–98, 100). For the limitation
`of “identifying the target in said at least one histogram itself,” Petitioner
`contends the histograms in both Gilbert and Hashima are used to identify a
`target. Id. at 43–44 (citing Ex. 1005, 48–50; Ex. 1006, 8:18–10:24;
`Ex. 1002 ¶¶ 101–102).
`Regarding “wherein identifying the target in said at least one
`histogram further comprises determining X minima and maxima and Y
`minima and maxima of boundaries of the target,” as recited in claim 1,
`Petitioner contends “Gilbert uses the center of areas of the target’s upper and
`lower halves to find a center point,” and teaches that “‘target nose and tail
`points’ could be used.” Id. at 44 (citing Ex. 1005, 50; Ex. 1002 ¶ 103).
`Petitioner further contends that Hashima discloses “determining X maxima
`and minima and Y maxima and minima of the boundaries of the target in the
`histogram to calculate the center point of the target using the equations
`(XMIN + XMAX)/2 and (YMIN + YMAX)/2.” Id. (citing Ex. 1006, 11:13–24, Fig.
`15; Ex. 1002 ¶¶ 103–104).
`Although Petitioner appears to contend Gilbert discloses all of the
`limitations of claim 1, Petitioner contends that, “[t]o the extent Patent Owner
`argues Gilbert does not disclose the claimed plurality of domains or method
`of finding the X- and Y-minima and maxima, it would have been obvious to
`replace these features of Gilbert with those of Hashima.” Id. at 44–45
`(citing Ex. 1002 ¶ 100). Petitioner further argues the combination of
`Hashima and Gilbert teaches “an input signal comprising a succession of
`frames, each frame comprising a succession of pixels,” as recited in claim 1.
`Id. at 45.
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`Petitioner also provides a sufficiently persuasive rationale for
`combining the teachings of Gilbert and Hashima. For example, Petitioner
`contends that a person of ordinary skill reading Gilbert would have been
`motivated to plot histograms in other domains to increase the likelihood of
`successfully recognizing the target “because each additional domain
`provides another opportunity for correlation between that domain and the
`unique target being tracked.” Id. at 36. Petitioner also contends that it
`would have been obvious for a person of ordinary skill in the art to modify
`Gilbert with “simpler location tracking and camera movement based on the
`end-points of a target in a histogram (i.e., X-minima and maxima and
`Y-minima and maxima), such as the calculation disclosed by Hashima.” Id.
`at 38. Petitioner contends a person of ordinary skill would have been
`motivated to do so
`because (1) it would enable drawing a tracking box, which can
`be used to more efficiently track a target, and (2) it would reduce
`the number of calculations needed to determine the center, which
`can be used to reposition the camera, resulting in faster, more
`efficient processing to improve tracking of a target.
`Id. at 38–39 (citing Ex. 1002 ¶ 88). To support its rationales for combine the
`teachings of Gilbert and Hashima, Petitioner relies upon the supporting
`testimony of Dr. Hart. Ex. 1002 ¶¶ 78–88.
`Petitioner provides further analysis of claim 2, detailing where it
`contends each limitation of that claim is taught by Gilbert and Hashima. Id.
`at 45–48. We have reviewed Petitioner’s evidence and argument, and find
`that, on the current record, Petitioner has sufficiently shown the cited
`references teach each limitation of the challenged claims, and that Petitioner
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`has provided a sufficiently persuasive rationale for combining those
`teachings at this stage of the proceeding.
`Patent Owner argues Gilbert and Hashima, alone or in combination,
`do not teach “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,” “identifying the
`target in said at least one histogram itself,” and “forming the at least one
`histogram further comprises determining X minima and maxima and Y
`minima and maxima of boundaries of the target,” as recited in claim 1.
`Prelim. Resp. 27–35. Patent Owner argues neither Gilbert’s intensity
`histograms nor its projection histograms teach these claim limitations. Id. at
`27–32. Regarding Gilbert’s intensity histograms, Patent Owner argues they
`fail to teach these limitations because (1) they are in a single domain (i.e.,
`intensity), (2) they are not formed of pixels in two or more classes, and (3)
`they are not formed using determined X and Y minima and maxima of
`boundaries of the target. Id. Patent Owner also argues that because Gilbert
`mentions other parameters (i.e., domains), but does not disclose using more
`than a single parameter (i.e., intensity) in combination, a person of ordinary
`skill in the art would have been lead away “from forming histogram(s) of the
`pixels in two or more selected subsets of parameter values that are in two or
`more domains, where the histogram(s) refer to selected subsets of parameter
`values that define the target.” Id. at 29.
`Regarding Gilbert’s projection histograms, Patent Owner argues they
`fail to teach the argued limitations because (1) they are formed after the
`target has been identified, (2) the classes in those histograms do not define
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`the target, and (3) they are not formed using X and Y minima and maxima of
`boundaries of the target. Id. at 30–32.
`Patent Owner further argues that “Hashima does not cure the
`deficiencies of Gilbert, because the x-axis and y-axis histograms [of
`Hashima] on which Petitioner relies do not satisfy the language of the
`claim.” Id. at 33. In particular, Patent Owner argues Hashima’s histograms
`(1) include all of the pixels in a window, (2) form separate histograms in the
`x- and y- position domains, and (3) are not formed by determining x minima
`and maxima and y minima and maxima of boundaries of the target. Id. at
`33–35.
`At this stage of the proceeding, we are not persuaded by Patent
`Owner’s arguments regarding the references’ teachings. As discussed above
`in our claim construction section, we have not adopted Patent Owner’s
`proposed construction which would require a plurality of domains. See
`supra Section II.A. We also find Petitioner has sufficiently shown the
`references teach a plurality of classes. For example, Petitioner relies on
`Gilbert’s 256 gray-scale levels in its intensity domain as teaching a plurality
`of classes. See Pet. 40; Ex. 1002 ¶ 92.
`We also see no requirement in claim 1 that the classes collectively
`must comprise less than all of the values in the domain as Patent Owner
`appears to suggest. See Prelim. Resp. 30 (arguing Gilbert’s intensity
`histograms “include pixels with all intensity values.”); id. at 33 (arguing
`Hashima’s histograms “include all of the pixel data in the window”).
`Specifically, claim 1, which uses the open-ended transition “comprising,”
`recites that the target comprises pixels in one or more of a plurality of
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`classes and that the histogram is formed from those pixels, but it does not
`preclude the histogram from also including other pixels outside the target.
`Patent Owner argues that a target is not identified from Gilbert’s
`projection histograms because the target was already previously identified in
`Gilbert’s intensity histogram. Prelim. Resp. 31. We are sufficiently
`persuaded that identifying the target in the intensity histograms does not
`preclude the target from also being identified in the projection histograms.
`As shown in Gilbert’s Figure 4 (depicted above), Gilbert’s projection
`histograms display target pixels and identify the target in the x- and y-
`domains. See Ex. 1002 (Hart Decl.) ¶ 54.
`Patent Owner further argues “neither the intensity histogram nor any
`projection histogram [in Gilbert] is formed using determined x minima and
`maxima and y minima and maxima of boundaries of the target.” Prelim.
`Resp. 31. Patent Owner contends that “Petitioner misinterprets the claim
`language to mean that the x minima and maxima and y minima and maxima
`are determined from the histogram. This is incorrect because claim 1 clearly
`requires that the determination be a step in forming the histogram.” Id. at
`31–32.
`We are not persuaded by Patent Owner’s arguments in this regard. In
`particular, at this stage of the proceeding, we find claim 1 includes
`determining X minima and maxima and Y minima and maxima of
`boundaries of the target as part of the “forming” step of the claimed process.
`In order words, 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
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`minima and maxima and Y minima and maxima of boundaries of the target
`have been determined. Accordingly, we are not persuaded by Patent
`Owner’s argument that the references teach only determining the recited
`points after the histogram has been formed.
`Patent Owner argues Hashima does not cure Gilbert’s deficiencies and
`Hashima’s x-axis and y-axis histograms do not satisfy the limitations of
`claim 1. Prelim. Resp. 33. At this stage of the proceeding, we do not find
`these arguments persuasive because they focus on Hashima in isolation, and
`they do not address the combination of Gilbert and Hashima argued by
`Petitioner (see Pet. 34–50).
`Regarding Petitioner’s rationale to combine Gilbert and Hashima,
`Patent Owner contends a person of ordinary skill in the art would not have
`combined Gilbert and Hashima because Gilbert is directed to tracking an
`unknown and fast-moving target (e.g., a missile) whereas Hashima is
`directed to tracking a known target (e.g., for docking a spaceship). Prelim.
`Resp. 41–47. Patent Owner also argues “Gilbert could not make use of the
`Hashima method because [] the more-robust, less-noise-sensitive method of
`Gilbert is appropriate to the operating environment of Gilbert,” and
`“Petitioner conveniently overlooks Gilbert’s express teaching away from use
`of nose and tail points (allegedly corresponding to x and y minima and
`maxima).” Id. at 46–47.
`At this stage of the proceeding, we are not persuaded by Patent
`Owner’s arguments. As discussed above, Petitioner provides sufficiently
`persuasive reasoning for combining the teachings of Hashima with Gilbert,
`including that a person of ordinary skill would have been motivated to
`modify Gilbert to (1) enable drawing a tracking box, which can be used to
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`more efficiently track a target, and (2) reduce the number of calculations
`needed to determine the center, which can be used to reposition the camera,
`resulting in faster, more efficient processing to improve tracking of a target.
`Pet. 38–39 (citing Ex. 1002 ¶ 88). Petitioner’s reasoning is supported by its
`expert’s testimony. Ex. 1002 (Hart Decl.) ¶¶ 78–88.
`Based on the current record, we are unpersuaded a person of ordinary
`skill would not have considered both Gilbert and Hashima because they
`track different types of targets. It is well-settled that simply because two
`references have different objectives does not preclude a person of ordinary
`skill in the art from combining their respective teachings. In re Heck, 699
`F.2d 1331, 1333 (Fed. Cir. 1983) (“The use of patents as references is not
`limited to what the patentees describe as their own inventions or to the
`problems with which they are concerned.”) (quoting In re Lemelson, 397
`F.2d 1006, 1009 (CCPA 1968)); see also EWP Corp. v. Reliance Universal
`Inc., 755 F.2d 898, 907 (Fed. Cir. 1985) (“A reference must be considered
`for everything that it teaches, not simply the described invention or a
`preferred embodiment.”). In addition, we do not find Patent Owner’s
`teaching away argument persuasive because, although Gilbert teaches the
`top and bottom center-of-area points are preferable to the target nose and tail
`points, Gilbert does not suggest the nose and tail points cannot be used. See
`Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 738 (Fed. Cir. 2013) (A
`reference that “merely expresses a general preference for an alternative
`invention but does not criticize, discredit, or otherwise discourage
`investigation into” the claimed invention does not teach away.).
`For the reasons discussed above, based on the current record, we
`determine Petitioner has shown a reasonable likelihood of prevailing with
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`respect to its obviousness challenge to claims 1 and 2 over Gilbert and
`Hashima.
`C. Asserted Obviousness Over Ueno and Gilbert
`1. Overview of Ueno
`Ueno is titled “Apparatus for Encoding/Decoding Video Signals to
`Improve Quality of a Specific Region,” and issued on September 22, 1992.
`Ex. 1007, at [45], [54]. Ueno’s abstract describes its subject matter as
`follows:
`An image encoding apparatus comprises a region detecting
`circuit for detecting a specific region from input image signals
`and outputting the region specifying signals for discriminating
`the specific region from other regions, a low-pass filter for
`selectively filtering and outputting the image signals of regions
`other than the specific region in the input image signals, and an
`encoding circuit for encoding the image signal output from the
`low-pass filter.
`Id. at [57]. Figure 3 of Ueno is reproduced below.
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`Figure 3 shows x- and y-axis histograms in Ueno. Ueno states:
`FIG. 3 shows an interframe difference image input to the facial
`region detecting circuit 102. Information for the interframe
`difference image is converted into binary data of “0” or “1” by
`the preset first threshold level. Then the number of pixels having
`the binary data value of “1” or the value equal to or more than
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