`
`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
`____________________
`
`PATENT OWNER IMAGE PROCESSING TECHNOLOGIES LLC’S
`RESPONSE PURSUANT TO 37 C.F.R. § 42.120
`
`
`
`
`
`

`

`
`
`TABLE OF CONTENTS
`
`I.
`
`Introduction ...................................................................................................... 1
`
`II.
`
`Overview of the ’134 Patent ............................................................................ 3
`
`A.
`
`Person of Ordinary Skill in the Art ....................................................... 3
`
`B.
`
`Claim Construction................................................................................ 4
`
`1. “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” ......................................................................................... 4
`
`2. “class” and “domain” ...................................................................... 4
`
`3. “forming at least one histogram . . . said at least one histogram
`referring to classes defining said target”......................................... 5
`
`4. “wherein forming the at least one histogram further comprises
`determining X minima and maxima and Y minima and maxima
`of boundaries of the target.” .........................................................12
`
`III.
`
`Summary of the Prior Art .............................................................................. 15
`
`A. Gilbert ..................................................................................................15
`
`B.
`
`C.
`
`Hashima ...............................................................................................18
`
`Ueno ....................................................................................................23
`
`IV. Legal Standards ............................................................................................. 26
`
`V.
`
`The Patentability of Claims 1 and 2 Should Be Affirmed ............................ 27
`
`A.
`
`Summary of Patent Owner’s Argument ..............................................27
`
`B.
`
`None of the Asserted References Teaches or Suggests “wherein
`forming the at least one histogram further comprises determining
`X minima and maxima and Y minima and maxima of boundaries
`of the target” ........................................................................................28
`
`i
`
`

`

`
`
`1. Gilbert does not teach or suggest “wherein forming the at least
`one histogram further comprises determining X minima and
`maxima and Y minima and maxima of boundaries of the target” 29
`
`2. Hashima does not teach or suggest “wherein forming the at least
`one histogram further comprises determining X minima and
`maxima and Y minima and maxima of boundaries of the target” 31
`
`3. Ueno does not teach or suggest “wherein forming the at least one
`histogram further comprises determining X minima and maxima
`and Y minima and maxima of boundaries of the target” ..............33
`
`4. Because Gilbert, Hashima, and Ueno Do Not Teach or Suggest,
`Alone or in Combination, Claim Element [1c] of Claims 1 and 2,
`These Claims Are Not Obvious under Grounds 1 or 3 .................35
`
`C.
`
`For Ground 1, Neither Gilbert nor Hashima Teaches or Suggests
`“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” ..................................................................................................36
`
`1. Gilbert does not teach or suggest “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”.......................................36
`
`2. Hashima does not teach or suggest “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” ...............39
`
`3. Because Gilbert and Hashima Do Not Teach or Suggest, Alone
`or in Combination, Claim Element [1a] of Claims 1 and 2, These
`Claims Are Not Obvious under Ground 1 ....................................42
`
`D.
`
`E.
`
`For Both Ground 1 and Ground 3, Gilbert Does Not Teach or
`Suggest “identifying the target in said at least one histogram
`itself” ...................................................................................................43
`
`A POSA Would Not Have Selected and Combined the Asserted
`References to Arrive at the Invention of the ’134 Patent ....................47
`
`ii
`
`

`

`
`
`1. A POSA Would Not Have Selected and Combined Gilbert and
`Hashima ........................................................................................47
`
`2. A POSA Would Not Have Selected and Combined Gilbert and
`Ueno ..............................................................................................50
`
`F.
`
`Reservation of Rights Regarding Constitutionality of Proceeding .....54
`
`VI. Conclusion ..................................................................................................... 55
`
`
`
`
`
`iii
`
`

`

`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Grain Processing v. American-Maize Prods,
` 840 F.2d 902 (Fed. Cir. 1988) .............................................................................27
`
`In re NTP, Inc.,
` 654 F.3d 1279 (Fed. Cir. 2011) ...........................................................................27
`
`In re Omeprazole Patent Litigation,
` 536 F.3d 1361 (Fed. Cir. 2008) ...........................................................................27
`
`InTouch Tech., Inc. v. VGo Communs., Inc.,
` 751 F.3d 1327 (Fed. Cir. 2014) ...........................................................................27
`
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ...................................................................................... 26, 27
`
`Oil States Energy Svcs. LLC v. Greene’s Energy Group LLC,
` No. 16-712 (cert. granted June 12, 2017) .......................................................3, 54
`
`Ortho-McNeil Pharm. v. Mylan Labs,
` 520 F.3d 1358 (Fed. Cir. 2008) ...........................................................................27
`
`Unigene Labs., Inc. v. Apotex, Inc.,
` 655 F.3d 1352 (Fed. Cir. 2011) ...........................................................................26
`
`Statutes
`
`35 U.S.C. § 316(e) ...................................................................................................26
`
`
`
`
`
`iv
`
`

`

`
`
`Table of Exhibits
`
`Exhibit No.
`
`2006
`
`2007
`
`2008
`
`2009
`
`Description
`Excerpt from Memorandum Opinion and Order on Claim
`Construction, Image Processing Techs. LLC v. Samsung
`Elecs. Co., No. 2:16-CV-505 (E.D. Tex.) (D.I. 174)
`Declaration of Dr. Alan Bovik
`Excerpt from the American Heritage College Dictionary,
`Third Ed., 1997 (definition of “form”)
`Excerpt from the Random House Webster’s College
`Dictionary, Second Ed., 1998.
`
`
`
`
`
`
`
`
`
`
`
`
`
`v
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`Patent Owner Image Processing Technologies LLC (“Patent Owner”) hereby
`
`submits this Patent Owner’s Response in case IPR2017-00353, in which the
`
`Board has instituted review (Paper 12) of claims 1 and 2 of U.S. Patent No.
`
`8,983,134 (the “’134 patent”), based on a Petition (Paper 2) filed by Samsung
`
`Electronics Co. Ltd. and Samsung Electronics America, Inc. (collectively,
`
`“Petitioner”) on November 30, 2016.
`
`The Board has instituted review of claims 1 and 2 on two grounds. Claim 2
`
`depends from claim 1. Therefore, if claim 1 is not unpatentable as obvious, claim
`
`2 also survives. The instituted grounds are:
`
`Instituted Ground 1: Obviousness of claims 1 and 2 over Gilbert (Ex. 1005)
`
`and Hashima (Ex. 1006);
`
`Instituted Ground 3: Obviousness of claims 1 and 2 over Ueno (Ex. 1007)
`
`and Gilbert.
`
`I.
`
`INTRODUCTION
`
`Claim 1 is not unpatentable as obvious. None of the asserted references,
`
`Gilbert, Hashima, or Ueno, teaches or suggests all of the limitations of claim 1, and
`
`the asserted combinations of references also do not teach or suggest these
`
`limitations.
`
`1
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`For both Grounds 1 and 3, none of the asserted references teaches or
`
`suggests element [1c] 1 “wherein 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.
`
`For Ground 1, neither Gilbert nor Hashima teaches or suggests element [1a]
`
`“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.”
`
`Additionally, for Ground 1, Gilbert does not teach or suggest element [1b]
`
`“identifying the target in said at least one histogram itself.” Further, a POSA
`
`would not have selected and combined Gilbert and Hashima to arrive at the
`
`invention of claims 1 and 2 of the ’134 patent. A POSA would not have
`
`considered the “low-speed known-target” tracking algorithm of Hashima in
`
`combination with the “high-speed unknown-target” tracking algorithm of Gilbert.
`
`For Ground 3, a POSA would not have selected and combined Gilbert and
`
`Ueno to arrive at the invention of claims 1 and 2 of the ’134 patent. A POSA
`
`would not have considered the “low-speed known-target” tracking algorithm of
`
`Ueno, which also requires a fixed background, in combination with the “high-
`
`speed unknown-target” tracking algorithm of Gilbert.
`
`
`1 For convenience, Patent Owner will herein use Petitioner’s element notation.
`
`2
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`As to all claims on which review has been instituted, claims 1 and 2, Patent
`
`Owner raises the issue of the constitutionality of the instant proceeding in order to
`
`preserve its rights. The Supreme Court recently granted certiorari in Oil States
`
`Energy Svcs. LLC v. Greene’s Energy Group LLC, No. 16-712 (cert. granted June
`
`12, 2017) regarding the question of whether inter partes review proceedings
`
`violate the Constitution by extinguishing private property rights through a non-
`
`Article III forum without a jury.
`
`Therefore, claims 1 and 2 of the ’134 patent are not unpatentable as obvious
`
`over the two asserted combinations of references, and the validity of claims 1 and 2
`
`of the ’134 patent should be affirmed.
`
`II. OVERVIEW OF THE ’134 PATENT
`
`A.
`
`Person of Ordinary Skill in the Art
`
`For purposes of this inter partes review, Patent Owner submits that a person
`
`of ordinary skill in the art (or “POSA”) in 1996 (the foreign priority date of the
`
`’134 patent) 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. The requisite knowledge and experience would have been acquired,
`
`for example, by someone who had completed all coursework in a two year
`
`3
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`master’s program focused on digital image processing, along with at least some
`
`thesis research qualifying towards a degree in such a program.
`
`B. Claim Construction
`
`Patent Owner agrees that the Phillips standard should apply for purposes of
`
`this inter partes review.
`
`1.
`
`“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”
`
`In its Institution Decision, the Board held 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. Paper 12 at 10. Although Patent Owner maintains that its
`
`proposed construction is correct, and disagrees with the Board, Patent Owner does
`
`not reargue the issue here and has applied the Board’s construction for this Patent
`
`Owner Response. Patent Owner’s application of the Board’s construction for
`
`purposes of this Response is not intended to and should not be construed as an
`
`admission by Patent Owner or as a waiver of Patent Owner’s position that its
`
`construction is correct.
`
`2.
`
`“class” and “domain”
`
`Patent Owner proposed constructions for the terms “class” and “domain” in
`
`its Preliminary Response. Paper 6 at 10–14. In its Institution Decision, the Board
`
`4
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`declined to construe the terms “class” and “domain” in its Institution Decision.
`
`Paper 12 at 8–10 Although Patent Owner maintains that these terms should be
`
`construed, and disagrees with the Board, Patent Owner does not reargue the issue
`
`here and has applied the plain and ordinary meaning of these claim terms for this
`
`Patent Owner Response. Patent Owner’s application of the Board’s determination
`
`that “class” and “domain” need not be construed for purposes of this Response is
`
`not intended to and should not be construed as an admission by Patent Owner or as
`
`a waiver of Patent Owner’s position that its construction is correct.
`
`3.
`
`“forming at least one histogram . . . said at least one
`histogram referring to classes defining said target”
`
`Patent Owner proposes that, based on the Board’s guidance to date regarding
`
`claim construction (Paper 12 at 8–10), for the purposes of this proceeding,
`
`“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.”2 The United States District Court for the Eastern District of Texas has
`
`
`2 Although Patent Owner maintains that its proposed construction wherein “one or
`more of a plurality of classes in one or more of a plurality of domains” refers to
`“two or more classes” in “two or more domains” is correct, Patent Owner does not
`reargue the issue here and has applied the Board’s construction for this Patent
`Owner Response. Patent Owner’s application of this construction for purposes of
`this Response is not intended to and should not be construed as an admission by
`Patent Owner or as a waiver of Patent Owner’s position that its construction is
`correct.
`
`5
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`adopted this construction. Ex. 2006 (Excerpt from E.D. Tex. Claim Construction
`
`Memorandum) at 46. Patent Owner further proposes that the claim language “said
`
`at least one histogram referring to classes defining said target” means that, as
`
`repeatedly set forth in the specification, the histogram is made up of only the data
`
`for the pixels whose properties match the classes that define the target.
`
`In its Institution Decision, the Board determined that it was not necessary to
`
`resolve any other claim construction issues beyond the claim phrase described
`
`above in Section II.B.1. Paper 12 at 9. However, Patent Owner proposes that
`
`resolution of the meaning of “forming at least one histogram . . . said at least one
`
`histogram referring to classes defining said target” is necessary at this stage of the
`
`proceeding because neither Gilbert nor Hashima teaches or discloses this claim
`
`element as would be understood by a POSA at the time of the invention.
`
`In its Institution Decision, the Board found no requirement that the classes
`
`must comprise less than all values in the domain, Paper 12 at 19, i.e. the classes
`
`might collectively include all the values in a domain. Patent Owner does not
`
`herein dispute this point. However, the “at least one histogram” in “forming at
`
`least one histogram . . . said at least one histogram referring to classes defining said
`
`target” may contain classes comprising all values in a domain if and only if those
`
`classes all define the target, per the limitation of “said at least one histogram
`
`referring to classes defining said target.” Therefore, a histogram including classes
`
`6
`
`

`

`for all values in a domain may satisfy the claim language as long as all pixels are in
`
`IPR2017-00353
`Patent Owner Response
`
`classes defining said target.
`
`Patent Owner respectfully disagrees, however, with the Board’s statement in
`
`its Institution Decision that claim 1 “does not preclude the histogram from also
`
`including other pixels outside the target.” Paper 12 at 19–20. Construing the
`
`claim language to include domain data for all pixels, even pixels whose domain
`
`values do not match the classes that define the target, would not give effect to the
`
`claim language. The Board appears to have relied on the language in the preamble
`
`of claim 1 that “the target compris[es] pixels in one or more of a plurality of
`
`classes in one or more of a plurality of domains.” Paper 12 at 19–20 (emphasis
`
`added) (stating that “it does not preclude the histogram from also including other
`
`pixels outside the target.”). Respectfully, Patent Owner suggests that the Board
`
`has conflated the “comprising” language associated with the “target” (in the
`
`preamble) with the language of the claim element “forming at least one histogram”
`
`later in the claim, which has no such “comprising” language. Indeed, the “forming
`
`at least one histogram” language states: “forming at least one histogram of the
`
`pixels . . . .” (emphasis added). Accordingly, although the target may contain
`
`pixels not in classes defining it, the histogram must refer only to classes defining
`
`said target. Patent Owner respectfully asks the Board to reconsider its position.
`
`7
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`Patent Owner’s proposed construction is consistent with the plain meaning
`
`of the claim language itself as would be understood by a POSA at the time of the
`
`invention. Ex. 2007 ¶¶ 25–37. The target comprises pixels in one or more of a
`
`plurality of classes in one or more of a plurality of domains. A histogram is then
`
`formed of “the one or more of a plurality of classes in the one or more of a
`
`plurality of domains” (emphasis added). The definite article “the” refers back to
`
`the first reference of the pixels in a plurality of classes which make up the target.
`
`See Ex. 2007 ¶ 29. The histogram is thus formed in the classes that comprise the
`
`target. For reference, the first part of claim 1 of the ’134 patent is copied below,
`
`with relevant portions bolded.
`
`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
`
`Ex. 1001 at 26:36–46 (emphasis added). The plain meaning of the claim language
`
`thus supports Patent Owner’s construction of “said at least one histogram referring
`
`8
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`to classes defining said target” requiring the pixels making up the histogram to be
`
`in classes defining the target. Ex. 2007 ¶¶ 28–30.
`
`As an example, a target (face), for example, might be defined by classes
`
`(skin hue and luminance values), but some of the pixels making up the target (lips
`
`and eyes) might not fall into those classes. The target (face) thus may comprise
`
`pixels in classes defining it (skin hue) but also pixels not defining it (lips and eyes
`
`hue). A histogram of all hue and luminance values would necessarily include
`
`classes defining the target (face), but it would also include many classes not
`
`defining the target (neither skin, nor lips, nor eyes), so it could not be said that a
`
`histogram of all hue values “refer[s] to classes defining said target.”
`
`Another example comes from the patent specification itself, in Figure 17,
`
`copied below.
`
`Ex. 1001 at Fig. 17.
`
`
`
`9
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`Figure 17 is a “diagram illustrating histograms formed on the shape of the head of
`
`a participant in a video conference.” Ex. 1001 at 8:66–67. The target of these
`
`histograms is a user’s head. See Ex. 1001 at 22:32–43. The histograms used to
`
`identify the user’s face V rely on movement, where DP=1. Ex. 1001 at 22:44–54.
`
`In other words, the class defining the target is based on movement. As seen in
`
`Figure 17, however, the user’s face (target) V comprises edge pixels which are in
`
`the histogram and non-edge pixels which are not. This is because the greatest
`
`movement occurs at the peripheral edges of the head. Ex. 1001 at 22:44–45. Thus,
`
`the histograms used to identify the face end up being formed based on pixels in a
`
`class defining the target (face), but not all pixels of the face are in this class. Pixels
`
`not in the class defining the target are not included. See Ex. 2007 ¶¶ 31–34.
`
`The distinction between the target and the histogram referring to classes
`
`defining the target can also be seen in Figure 12 of the ’134 patent, a “two-
`
`dimensional histogram of a moving area.” Ex. 1001 at 8:54–55.
`
`10
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`Ex. 1001 at Fig. 12.
`
`
`
`The target in Figure 12 is defined by, for example, “significant speeds” (see
`
`Ex. 1001 at 21:37–40). The histograms are formed from pixels having significant
`
`speeds, illustrated in Figure 12 by only black dots representing pixels. The black
`
`blob labeled 40 has white portions in it, indicating pixels not falling into classes
`
`defining the target. A POSA would recognize that these handful of pixels
`
`completely surrounded by pixels of significant speeds are nevertheless likely to be
`
`pixels comprising the target. Ex. 2007 ¶¶ 36–37. Accordingly, Patent Owner’s
`
`proposed construction that the histogram only includes values in the target classes
`
`is consistent with and supported by the specification and gives effect to the claim
`
`language. See Ex. 2007 ¶¶ 35–37.
`
`11
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`Thus, the language of Claim 1 “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,” such that the histogram is
`
`formed of the pixels in classes that define the target, not all pixels regardless of
`
`what class they fall into. See Ex. 2007 ¶ 37.
`
`4.
`
`“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 proposes that the plain meaning of the claim element “wherein
`
`forming the at least one histogram further comprises determining X minima and
`
`maxima and Y minima and maxima of boundaries of the target” requires that the
`
`formation of the histogram itself determine the X and Y boundaries of the target.
`
`That is, a later calculation to determine X and Y boundaries of the target that is
`
`performed separately from and after formation of the histogram falls outside of the
`
`plain meaning of the claim term.
`
`Patent Owner respectfully disagrees with the Board’s statement 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. The plain meaning of “forming the at least one histogram” would be
`
`12
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`understood by a POSA to be the “creating a histogram” step and thus would
`
`exclude actions taken after creating the histogram. Ex. 2007 ¶¶ 38–42.
`
`The Board’s interpretation of “wherein forming the at least one histogram
`
`further comprises” effectively reads this language out of claim 1. Under the
`
`Board’s interpretation, a histogram can be fully created, but “forming the at least
`
`one histogram” continues to encompass actions taken until the X and Y extrema of
`
`boundaries of the target are determined from the histogram data. The claim
`
`language also encompasses determining X and Y minima and maxima as a part of
`
`creating the histogram. The “wherein” clause is thus stripped of meaning. If there
`
`were no limitation on when the X and Y minima and maxima of boundaries of the
`
`target are to be determined in claim 1, the surrounding claim language would be
`
`written as follows:
`
`identifying the target in said at least one histogram itself; 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.
`
`As written, however, the claim language clearly places a limitation on determining
`
`X and Y extrema in that the determination must be made as a part of forming the at
`
`least one histogram. See Ex. 2007 ¶¶ 39–41.
`
`Additionally, a POSA at the time of the invention would understand
`
`“forming the histogram” to mean “adding data to the histogram,” i.e. calculating or
`
`13
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`creating the histogram. Ex. 2007 ¶ 40. This construction is consistent with the use
`
`of “forming” in the specification. The specification describes, for example,
`
`“forming a histogram for pixels of the output signal within the classes selected by
`
`the classifier within each domain selected by the validation signal.” Ex. 1001 at
`
`6:11–14. Forming a histogram thus involves sorting pixels from an input signal
`
`into classes. The specification goes on to say that 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.”
`
`Ex. 1001 at 6:15–18. A POSA would understand that forming a histogram along
`
`coordinate axes for pixels within classes involves adding data to the histogram.
`
`Ex. 2007 ¶ 41.
`
`Finally, the dictionary definition of “forming” is consistent with Patent
`
`Owner’s construction. The Random House Webster’s College Dictionary in 1998
`
`defined the verb “form” as “to construct or frame” or “to make or produce.” Ex.
`
`2009. The American Heritage College Dictionary in 1997 similarly defined the
`
`verb “form” as to “to give form to; shape” or “to shape or mold . . . into a
`
`particular form.” Ex. 2008. A POSA at the time of the invention would thus
`
`understand that forming a histogram is the same as creating a histogram.
`
`14
`
`

`

`IPR2017-00353
`Patent Owner Response
`
`III. SUMMARY OF THE PRIOR ART
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`A. Gilbert
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`Gilbert is entitled “A Real-Time Video Tracking System.” Gilbert states in
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`the first paragraph of the section “Introduction”:
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`IMAGE PROCESSING methods constrained to operate on sequential
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`images at a high repetition rate are few. Pattern recognition techniques
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`are generally quite complex, requiring a great deal of computation to
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`yield an acceptable classification. Many problems exist, however,
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`where such a time-consuming technique is unacceptable. Reasonably
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`complex operations can be performed on wide-band data in real time,
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`yielding solutions to difficult problems in object identification and
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`tracking.
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`Ex. 1005 (Gilbert) at 47.
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`In Gilbert, an image consists of m x n pixels, and “pixel intensity is digitized
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`and quantized into eight bits (256 gray levels), counted into one of six 256-level
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`histogram memories, and then converted by a decision memory to a 2-bit code
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`indicating its classification (target, plume, or background). Ex. 1005 at 47–48.
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`Gilbert discloses that a tracking window is placed around the target image,
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`wherein:
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`The tracking window frame is partitioned into a background region
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`(BR) and a plume region (PR). The region inside the frame is called
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`the target region (TR) as shown in Fig. 2. During each field, the
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`feature histograms are accumulated for the three regions of each
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`tracking window.
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`Ex. 1005 (Gilbert) at 47. Figure 2 of Gilbert shows its tracking window:
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`IPR2017-00353
`Patent Owner Response
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`Ex. 1005 (Gilbert) at Fig. 2.
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`Gilbert describes that, based on intensity of the pixels, the image is binarized
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`into “target” and “non-target” pixels:
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`The video processor described above separates the target image from
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`the background and generates a binary picture, where target presence
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`is represented by a “1” and target absence by a “0.”
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`Ex. 1005 (Gilbert) at 48. The binary image is then analyzed:
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`The target location, orientation, and structure are characterized by the
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`pattern of 1 entries [that is, pattern of “1” versus “0” values] in the
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`binary picture matrix, and the target activity is characterized by a
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`sequence of picture matrices.
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`Ex. 1006 (Gilbert) at 60 (explanation added in brackets for clarity).
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`One analysis of the binary image is via projection histograms, for example
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`as shown in Gilbert Figure 4:
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`Ex. 1006 (Gilbert) at 51.
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`A “projection histogram” in Gilbert is, generally speaking, a histogram of a
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`parameter, for example based on x-axis location or y-axis location.
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`Gilbert discloses the calculation of several pixel intensity histograms, i.e. the
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`feature histograms described above. For each of several areas (or windows) in the
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`image, BR, PR, and TR, an intensity histogram is formed. Ex. 1005 (Gilbert) at
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`49. Figure 2 shows these windows:
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`Ex. 1005 (Gilbert) at Fig. 2 (annotated with coloring and red lines/text).
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`The distribution of pixels over intensity, or “feature histogram,” is formed
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`for each window as hi
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`BR(x) for the region BR (top of Fig. 2), hiPR(x) for the region
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`PR (bottom of Fig. 2), and hi
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`TR(x) for the region TR (middle of Fig. 2). Ex. 1005
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`(Gilbert) at 49. For each feature histogram, all pixels in the window are used to
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`create the histogram. Ex. 1005 (Gilbert) at 49 (“When the entire- region has been
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`scanned, h contains the distributions of pixels over intensity and is referred to as
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`the feature histogram of the region R.”). Therefore, the feature histograms
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`represent the distribution of pixel intensity for all pixels in the windows. As can be
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`seen in Figure 2 of Gilbert above, a histogram of the TR region would contain a lot
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`more than just target pixels, because there is no defining class. The feature
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`histograms of the regions PR, BR, and TR are used to classify pixels in the image
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`as target or non-target (specifically, background, plume, or target). Ex. 1005
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`(Gilbert) at 50 (left column).
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`B. Hashima
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`As a preliminary matter, Hashima was before the examiner during
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`prosecution of the ’134 patent. Hashima was cited by the examiner during
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`prosecution of U.S. Patent No. 8,805,001 (“the ’001 patent”), of which the ’134
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`patent is a continuation. Subsequently, the applicant cited Hashima in an
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`information disclosure statement during prosecution of the ’134 patent, bringing
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`Hashima to the attention of the same examiner who handled the ’001 patent. Thus,
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`Hashima was of record and the examiner fully considered Hashima’s potential
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`relevance to the claims of the ’134 patent.
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`Hashima is entitled “System for and Method of Recognizing and Tracking
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`Target Mark.” Hashima states in the first paragraph of the section Technical Field:
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`The present invention relates to a system for and a method of
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`recognizing and tracking a target mark using a video camera, and
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`more particularly to a system for and a method of recognizing and
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`tracking a ta