`
`
`
`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 IPR2017-01189
`Patent No. 6,959,293
`____________________
`
`PATENT OWNER IMAGE PROCESSING TECHNOLOGIES LLC’S
`PRELIMINARY RESPONSE PURSUANT TO 37 C.F.R. § 42.107
`
`
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`Introduction ...................................................................................................... 1
`
`Constitutionality of Inter Partes Review ........................................................ 3
`
`III. The Examiner Considered Exhibit 1005 (Pirim WO99/36893) During
`Prosecution of the ’293 Patent ......................................................................... 4
`
`IV. Overview of the ’293 Patent ............................................................................ 4
`
`A.
`
`B.
`
`Person of Ordinary Skill in the Art ....................................................... 9
`
`Claim Construction ............................................................................. 10
`
`1. “the histogram calculation units being configured to form a
`histogram representative of the parameter” (Claim 1) ................. 10
`
`2. “a classification unit . . . configured to determine the data in the
`histogram that satisfy a selected criterion” (Claims 18, 23) ........ 14
`
`3. “wherein classification is performed automatically by processing
`statistical information associated with the calculated histogram”
`(Claim 18) ..................................................................................... 18
`
`V.
`
`Legal Standards ............................................................................................. 21
`
`VI. No Review Should be Instituted for Claims 2–17, 20–21, and 23–28 .......... 25
`
`A. Ground 1: Petitioner Has Not Shown that the Asserted References
`Pirim (Ex. 1005) with Yoda (Ex. 1006) Teach or Suggest All
`Elements of Claims 3–17 .................................................................... 25
`
`B.
`
`C.
`
`Ground 2: Petitioner Has Not Shown that the Asserted References
`Pirim and Eriksson (Exhibit 1008) Teach or Suggest All Elements
`of Claims 20 and 21............................................................................. 30
`
`Ground 3: Petitioner Has Not Shown that Pirim Teaches or
`Suggests All Elements of Claims 2, 23, and 28 .................................. 32
`
`1. Petitioner has not shown that Pirim teaches or suggests all
`elements of claim 2 ....................................................................... 32
`
`i
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`

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`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`2. Petitioner has not shown that Pirim teaches or suggests all
`elements of claims 23 and 28 ........................................................ 36
`
`D. Ground 4: Petitioner has Not Shown that the Asserted References
`Pirim and Qian (Exhibit 1007) Teach or Suggest All Elements of
`Claims 24–27 ....................................................................................... 39
`
`VII. Conclusion ..................................................................................................... 39
`
`
`
`
`
`ii
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`

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`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Apple Inc. v. Contentguard Holdings, Inc.,
` IPR2015-00442, Paper 9 (P.T.A.B. July 13, 2015) ..................................... 21, 23
`
`Cisco Systems, Inc. v. C-Cation Techs. LLC,
`IPR2014-00454, Paper 12 (P.T.A.B. Aug. 29, 2014) ............................................ 3
`
`Google, Inc. v. Everymd.com LLC,
`IPR2014-00347, Paper 9 (P.T.A.B. May 22, 2014) ............................................. 22
`
`Graham v. John Deere Co.,
`383 U.S. 1 (1966), ......................................................................................... 21, 22
`
`Grain Processing v. American-Maize Prods,
` 840 F.2d 902 (Fed. Cir. 1988) ............................................................................. 25
`
`In re Giannelli,
`739 F.3d 1375 (Fed. Cir. 2014) ............................................................................ 36
`
`In re Magnum Oil Tools Int’l.,
` 829 F.3d 1364 (Fed. Cir. 2016) .................................................................... 21, 23
`
`In re NTP, Inc.,
` 654 F.3d 1279 (Fed. Cir. 2011) ........................................................................... 24
`
`In re Omeprazole Patent Litigation,
` 536 F.3d 1361 (Fed. Cir. 2008) ........................................................................... 24
`
`InTouch Tech., Inc. v. VGo Communs., Inc.,
` 751 F.3d 1327 (Fed. Cir. 2014) ........................................................................... 24
`
`Kinetic Concepts, Inc. v. Smith & Nephew, Inc.,
` 688 F.3d 1342 (Fed. Cir. 2012) ........................................................................... 22
`
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ................................................................................ 24, 25, 28
`
`Liberty Mut. Ins. Co. v. Progressive Cas. Ins. Co.,
` CBM-2012-00003, Paper 7 (P.T.A.B. Nov. 26, 2012) ....................................... 22
`
`iii
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Malico, Inc. v. Cooler Master USA Inc.,
`594 F. App’x 621 (Fed. Cir. 2014) ...................................................................... 28
`
`Ortho-McNeil Pharm. v. Mylan Labs,
` 520 F.3d 1358 (Fed. Cir. 2008) ........................................................................... 24
`
`Proctor & Gamble Co. v. Teva Pharm. USA, Inc.,
` 566 F.3d 989 (Fed. Cir. 2009) ...................................................................... 23, 24
`
`SAS Inst., Inc. v. ComplementSoft, LLC,
`825 F.3d 1341 (2016),
`cert. granted sub nom. SAS Inst. Inc. v. Lee,
`137 S. Ct. 2160 (May 22, 2017) (No. 16-969) ..................................................... 21
`
`Synopsys, Inc. v. Mentor Graphics Corp.,
` 814 F.3d 1309 (2016) .......................................................................................... 21
`
`Unigene Labs., Inc. v. Apotex, Inc.,
` 655 F.3d 1352 (Fed. Cir. 2011) ........................................................................... 24
`
`Whole Space Indus Ltd.,
` IPR2015-00488, Paper 14 (P.T.A.B. July 24, 2015) .......................................... 22
`
`Statutes
`
`35 U.S.C. § 103 ................................................................................................. 21, 22
`
`
`
`
`Ex. 2001
`Ex. 2002
`Ex. 2003
`
`
`
`
`LIST OF EXHIBITS
`
`Not used
`WO 98-05002 (PCT/FR97/01354)
`Webster’s Encyclopedic Unabridged Dictionary of the English
`Language (1996)
`
`iv
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Patent Owner Image Processing Technologies LLC (“Patent Owner”) hereby
`
`submits this Preliminary Patent Owner’s Response to the Petition filed by Samsung
`
`Electronics Co. Ltd. and Samsung Electronics America, Inc. (collectively,
`
`“Petitioner”) on March 30, 2017 in case IPR2017-01189 for review of claims 2–
`
`17, 20–21, and 23–28 of U.S. Patent No. 6,959,293 (the “’293 patent”).
`
`I.
`
`INTRODUCTION
`
`On May 25, 2017, the Board issued a Decision Granting Institution in
`
`IPR2017-00336 as to the ’293 patent. The Board rejected Samsung’s petition as to
`
`challenged claims 1, 18, 19, and 29, and granted institution as to claim 22. The
`
`Board’s decision in IPR2017-00336 as to independent claim 1 is dispositive as to
`
`its dependent claim 2 in the present Petition’s Ground 3. The Board’s decision as
`
`to claim 18 is dispositive as to its dependent claims 20–21 in the present Petition’s
`
`Ground 2.
`
`The Board should not institute review because the Petition fails to establish a
`
`reasonable likelihood that the Petitioner would prevail with respect to any of the
`
`challenged claims. Petitioner relies on the Pirim reference (WO99/36893, Exhibit
`
`1005) as to all grounds, but Pirim was of record during prosecution of the ’293
`
`patent and was considered by the examiner, as explained more fully in Section III,
`
`below. Each of Petitioner’s grounds also fails for the following reasons:
`
`1
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`As to Ground 1, the Petitioner has not shown that the asserted references
`
`teach or suggest at least elements [3n] and [3o] of claim 3 (from which claims 4–
`
`17 depend).
`
`As to Ground 2, the Petitioner has not shown that the asserted references
`
`teach or suggest at least element [18g] of claim 18 (from which claims 20–21
`
`depend).
`
`As to Ground 3, the Petitioner has not shown that the asserted reference
`
`teaches or suggests at least element [1e] of claim 1 (from which claim 2 depends)
`
`and elements [23g] and [28e] of claims 23 and 28.
`
`As to Ground 4, the Petitioner has not shown that the asserted references
`
`teach or suggest at least element [23g] of claim 23 (from which claims 24–27
`
`depend).
`
`Additionally, the 84-page Petition, which also includes numerous graphics
`
`with text, does not comply with the Board’s 14,000-word limit because (i) it does
`
`not comply with 37 C.F.R. § 42.24(d) (certification of word count)1; and (ii) it
`
`incorporates by reference arguments from the Hart Declaration, in violation of
`
`37 C.F.R. § 42.6(a)(3). The Petition, for example, does not discuss the specific
`
`
`1 Petitioner’s “Certification of Word Count” does not include a word count,
`although Petitioner included a word count in all 11 other IPRs filed by Petitioner
`against Patent Owner. See Petitions in IPR2017-00336; IPR2017-00347;
`IPR2017-00353; IPR2017-00355; IPR2017-00357; IPR2017-01190; IPR2017-
`01212; IPR2017-01217; IPR2017-01218; IPR2017-01228; IPR2017-01231.
`
`2
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`elements of claims 13–16 but instead states its conclusion that the claims would be
`
`obvious to a person of ordinary skill in the art (or “POSA”) followed by cites to
`
`seven paragraphs of the Hart Declaration (Ex. 1002 ¶¶ 10–16), spanning four pages,
`
`without further elaboration. Petition at 57. Citing to a declaration to support
`
`conclusory statements that are not otherwise supported in the Petition amounts to
`
`incorporation by reference. See, e.g., Cisco Systems, Inc. v. C-Cation Techs. LLC,
`
`IPR2014-00454, Paper 12 at 8 (P.T.A.B. Aug. 29, 2014). Accordingly, the Board
`
`should not consider arguments that are not made in the Petition but are instead
`
`incorporated by reference to cited paragraphs of Dr. Hart’s Declaration, such as at
`
`paragraphs 10 to 16 of the Hart Declaration.
`
`For the above reasons, the Board should decline to institute an inter partes
`
`review of claims 2–17, 20–21, and 23–28 of the ’293 patent.
`
`II. CONSTITUTIONALITY OF INTER PARTES REVIEW
`
`The Supreme Court recently granted certiorari in Oil States Energy Svcs. v.
`
`Greene’s Energy Group, 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. Accordingly, Patent Owner reserves the right to challenge the
`
`constitutionality of this proceeding.
`
`3
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
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`III. THE EXAMINER CONSIDERED EXHIBIT 1005 (PIRIM
`WO99/36893) DURING PROSECUTION OF THE ’293 PATENT
`
`The examiner of the ’293 patent already considered Petitioner’s main
`
`asserted prior art, Pirim, and granted the ’293 patent over Pirim. During
`
`prosecution of the application for the ’293 patent, Mr. Pirim cited Pirim
`
`(WO99/36893). Ex. 1004 at 245 (Apr. 14, 2003 Information Disclosure Statement
`
`(IDS)). Further, the ’293 patent specification incorporates by reference
`
`WO98/05002, which has a similar disclosure to Exhibit 1005. See Ex. 1001 at
`
`7:22–28. WO98/05002 is attached as Exhibit 2002. For example, Figure 11 of
`
`Exhibit 1005 (Pirim WO 99/36893) on which Petitioner relies, is nearly identical to
`
`Figure 11 of Exhibit 2002. Compare Ex. 1005 at Fig. 11 (page 74), and Ex. 2002
`
`at Fig. 11 (page 63).
`
`The examiner considered Pirim (WO99/36893) and also the disclosures of
`
`these other, similar Pirim patents and publications during prosecution of the ’293
`
`patent. See, e.g., Ex. 1004 at 244–245 (June 14, 2001 and Apr. 14, 2003 IDSs with
`
`examiner’s initials by WO98/05002 and WO99/36893).
`
`IV. OVERVIEW OF THE ’293 PATENT
`
`The ’293 patent specification discloses a visual perception processor
`
`comprised of histogram calculation units. Ex. 1001 at 1 (Abstract). A baseline
`
`embodiment taught by the ’293 patent is the “passive histogram calculation
`
`unit[s],” as shown in Figure 3 of the patent:
`
`4
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Ex. 1001 at Fig. 3 (page 5, annotated).
`
`
`
`The passive histogram calculation unit receives signal DATA(A), with “A”
`
`representing a pixel parameter such as speed (V) or direction (DI). Ex. 1001 at
`
`7:30–34, 7:48–51, 8:19–24. Analysis memory 100 (red) contains a number n of
`
`addresses d equal to the number of possible levels of the parameter A that must be
`
`distinguished. Id. at 8:45–50. For each frame, each enabled pixel for which the
`
`value of parameter A has a value d will increment the address of row d of memory
`
`100 by 1. Id. at 8:53–64. Whether a pixel is enabled or not depends on the
`
`classifier 101 and time coincidences unit 102, as described below.
`
`The classifier 101 (blue) contains a register 101r that is capable of storing
`
`certain possible level values d for the levels of parameter A. For each pixel, the
`
`classifier provides a binary output “1” if the value of parameter A for the pixel has
`
`5
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
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`a level corresponding to the register 101r. Id. at 9:28–34. The output of the
`
`classifier 101 is connected to a bus 111. Id. Thus, “the classifier acts as a
`
`classification function fA which is the relationship that it establishes between the
`
`data DATA(A) that it receives and the output binary value (101s)A that it
`
`produced, via the memory of the classifier.” Ex. 1001 at 11:49–52.
`
`The time coincidences unit 102 (purple) includes at least one register 102r.
`
`Ex. 1001 at 9:36–50. The unit receives for each pixel the output values of the
`
`classifiers 101 from the various histogram calculation units 1 connected to bus 111
`
`(yellow). Id. at 9:37–41. The time coincidences unit, for each pixel, compares the
`
`output values received from bus 111 to values stored in register 102r, and
`
`generates an enable signal 102s equal to 1 when there is a coincidence between the
`
`register values and the data received from the bus.
`
`If the pixel is enabled (102s signal equal to 1), the histogram memory 100 is
`
`incremented for value d of parameter A. Id. at 9:7–13, 11:45 (“histogram memory
`
`100”). Also, the test unit 103 receives the same signal and updates, in parallel with
`
`the formation of the histogram, calculates key features such as minimum (MIN),
`
`maximum (MAX), number of points (NBPTS), position (POSRMAX) of the
`
`maximum of the histogram, and number of points (RMAX) at the maximum of the
`
`histogram. Id. at 10:7–13.
`
`6
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Although Petitioner points to disclosures of Pirim (WO99/36893) that are
`
`purportedly similar to the passive histogram calculation unit of Figure 3 of the ’293
`
`patent, the ‘293 patent specification notes that it is “desirable to provide an
`
`improved visual perception processor, and methods, as well as, in preferred
`
`embodiments, the auto-adapting, anticipation, and learning functions.” Ex. 1001 at
`
`1:49–53 (emphasis added). For example, the ’293 Patent, unlike prior Pirim
`
`references, teaches a “self-adapting histogram calculation unit[s] according to the
`
`invention.” Ex. 1001 at 4:45–49. Figure 4, which is included on the face of the
`
`patent, shows an exemplary embodiment of a self-adapting histogram calculation
`
`unit:
`
`7
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Ex. 1001 at Fig. 4 (page 6, annotated).
`
`
`
`As taught by the ’293 Patent:
`
`“According to one embodiment of the present invention, a self-
`adapting histogram processing unit 1 is provided. In this embodiment,
`the content of the memory of the classifier 101 is automatically
`updated. . . . To fulfill the self-adapting function, i.e. real time
`updating of the classifier 101, the histogram calculation unit 1 of
`FIG. 3 is perfected in accordance with FIG. 4. Instead of having a
`simple register 101r written outside the system, the classifier 101 has
`an addressable memory . . . . The memory of the classifier 101 is
`controlled by the system, and its content is modifiable.
`
`8
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Ex. 1001 at 11:14–31 (emphasis added).
`
`Another teaching of the ’293 Patent not disclosed in Pirim (Ex. 1005) is the
`
`polyvalent histogram unit. As explained further below, polyvalent histogram units
`
`can be flexibly programmed to process a desired parameter by the controller, and
`
`the ’293 patent teaches the polyvalent histogram units configured in a matrix
`
`whereby each polyvalent histogram unit has access to all parameter data for
`
`maximum flexibility of operation—something which is not disclosed by Pirim.
`
`Pirim (Ex. 1005) on the other hand discloses each histogram formation unit
`
`receiving data for one parameter separately from other units. Compare Ex. 1001
`
`(’293 patent) at 21:18–36, 42–47, Fig. 32, with Ex. 1005 (Pirim) at 27–28, Fig. 12
`
`(Figure 12 on stamped page 75).
`
`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 2000 (the foreign priority date of the
`
`’293 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 master’s
`
`9
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`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 with the Board’s prior decision in IPR2017-00336
`
`(Paper 15) that the broadest reasonable interpretation (BRI) standard should apply
`
`for purposes of inter partes review. IPR2017-00336, Paper 15 at 9–10.
`
`1. “the histogram calculation units being configured to form a
`histogram representative of the parameter” (Claim 1)
`
`For claim 1 of the ’293 patent in IPR2017-00336, the Board interpreted the
`
`claim element “the histogram calculation units being configured to form a
`
`histogram representative of the parameter” as “the at least two histogram
`
`calculation units being configured to each form a histogram representative of at
`
`least one common parameter.” IPR2017-00336, Paper 15 at 12 (emphasis in
`
`original). Patent Owner proposes that the Board adopt this same construction in
`
`this IPR.
`
`Based on a natural reading of the claim language, Patent Owner’s proposed
`
`construction is the broadest reasonable interpretation consistent with the
`
`specification as it would be understood by a POSA at the time of the invention.
`
`The claim reads:
`
`A visual perception processor for automatically detecting an event
`occurring in a multidimensional space (i, j) evolving over time with
`
`10
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`respect to at least one digitized parameter in the form of a digital
`signal on a data bus . . . the visual perception processor comprising . .
`. at least two histogram calculation units for the treatment of the at
`least one parameter,
`the histogram calculation units being
`configured to form a histogram representative of the parameter as a
`function of a validation signal and to determine by classification a
`binary classification signal resulting from a comparison of the
`parameter and a selection criterion C . . . .”
`
`Ex. 1001 at 26:34–54. (claim 1).
`
`The claim language requires that there must be at least one common
`
`parameter that is treated by at least two histogram calculation units. The term “the
`
`parameter” refers to the preamble recital of “at least one digitized parameter in the
`
`form of a digital signal on a data bus.” Ex. 1001 at 26:36–37. Claim 1 also
`
`requires “at least two histogram units” for the treatment of “the at least one
`
`parameter.” Ex. 1001 at 26:47–48. The claim requires that the plural histogram
`
`calculation units must each form a histogram representative of the singular
`
`parameter. Claim 1 states “the histogram calculation units being configured to
`
`form a histogram representative of the parameter as a function of a validation
`
`signal and to determine by classification.” Ex. 1001 at 26:49–51. The plural
`
`“histogram calculation units” must therefore each form a histogram representative
`
`of the singular “parameter.”
`
`11
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Patent Owner’s proposed construction is consistent with Petitioner’s
`
`argument for Ground 1. Petitioner argues in Ground 1 that “it would have been
`
`obvious to modify Tomitaka such that the two histogram units processed the same
`
`parameter.” Petition at 36 (emphasis added). Petitioner also claims in Ground 1
`
`that “Pirim discloses that in some configurations, a single parameter, such as x-
`
`position of a pixel, may be processed by multiple histogram units simultaneously.”
`
`Petition at 35.
`
`The specification of the ’293 patent also supports Patent Owner’s
`
`construction whereby two histogram units treat a common parameter. The ’293
`
`patent teaches the use of multiple histogram calculation units in certain
`
`embodiments with programmable input. See, e.g., Ex. 1001 at Fig. 32, 5:66–67
`
`(“FIG. 32 represents a set of histogram calculation units with programmable input
`
`control in their context of usage . . . .”). Figure 32 teaches an exemplary device
`
`comprising sixteen “polyvalent histogram calculation units,” which are the sixteen
`
`squared labelled “1a00” through “1a33,” each of which has access via bus 510
`
`(yellow) to parameters including luminance (L), tone (T), saturation (S), speed (V),
`
`and direction (D):
`
`12
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Ex. 1001 at Fig. 32 (page 29, annotated).
`
`
`
`Ex. 1001 at 20:43–47 (describing L, T, S), 21:33–47 (describing embodiment of
`
`Figure 32). A polyvalent histogram calculation unit is capable of processing
`
`various parameters, not only a single fixed parameter. Ex. 1001 at 21:18–36. The
`
`’293 patent teaches that more than one polyvalent histogram unit may be tasked to
`
`process one parameter. The patent teaches that “control unit 513 provides overall
`
`control and determines which of the parameters . . . are to be processed at a given
`
`13
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`time by one or several dedicated polyvalent histogram unit(s).” Ex. 1001 at 21:42–
`
`47 (emphasis added).
`
`Therefore, based on the requirements of the language of Claim 1 in the
`
`context of the specification, the claim language “the histogram calculation units
`
`being configured to form a histogram representative of the parameter” should be
`
`construed as “the at least two histogram calculation units being configured to each
`
`form a histogram representative of at least one common parameter.”
`
`2. “a classification unit . . . configured to determine the data in the
`histogram that satisfy a selected criterion” (Claims 18, 23)
`
`For Claim 18 of the ’293 Patent in IPR2017-00336, the Board interpreted “a
`
`classification unit . . . configured to determine the data in the histogram that satisfy
`
`a selected criterion” as “a classification unit . . . configured to determine the data to
`
`be included in the histogram based on satisfying a selected criterion.” IPR2017-
`
`00336, Paper 15 at 14.2 Patent Owner proposes that the Board adopt this same
`
`construction in this IPR.
`
`This broadest reasonable construction follows naturally from the language of
`
`the claim, in the context of the teachings in the patent specification about what a
`
`“classifier” does.
`
`
`2 Because the claim construction standard in this proceeding differs from the
`standard applicable to a district court litigation, Petitioner expressly reserves the
`right to argue in litigation a different construction for any term recited by the
`claims of the ’293 patent.
`
`14
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`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`Claim 18 recites a device that includes a histogram unit, a classification unit,
`
`a coincidence unit, a controller bus, and a transfer bus. Ex. 1001 at 29:20–45. A
`
`POSA would have understood the claim in the context of the specification,
`
`including the description of the passive histogram calculation unit 1 that is shown
`
`in Figure 3, shown below:
`
`Ex. 1001 at Fig. 3 (page 5, annotated).
`
`
`
`While the passive histogram unit of Figure 3 (the operation of which is
`
`described earlier in this Section II) does not show all limitations of Claim 18, it is a
`
`simple example for understanding the relationship between many of the claim
`
`elements. Claim 18 is reproduced below with item numbers as shown in Figure 3
`
`of the ‘293 Patent embedded to show this context, with the claim language
`
`proposed for construction bolded:
`
`15
`
`

`

`IPR2017-01189 (’293 Patent) Preliminary PO Response
`
`a histogram unit [100 (red)] coupled to the input portal and configured
`to calculate a histogram for a selected parameter;
`
`a classification unit [101 (blue)] coupled to the input portal and the
`histogram unit, and configured to determine the data in the
`histogram that satisfy a selected criterion [101r (blue)], and to
`generate an output [101s] accordingly,
`the classification unit
`supplying the output to the transfer bus [111 (yellow)]; and
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`a coincidence unit [102 (purple)] coupled to receive the output of the
`classification unit [inA] from the transfer bus and to receive selected
`coincidence criteria from the controller bus, the coincidence unit
`being configured to generate an enable signal [102s] for the histogram
`unit when the output of the classification unit satisfies the selected
`coincidence criterion [102r],
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`Ex. 1001 at 29:28–42 (emphasis added) (bracketed annotations added).
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`Although the term “classification unit” does not appear in the specification
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`outside of the patent claims, the “classifier” or “classifier unit,” item 101, is
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`described as a “classification function” that is the relationship between DATA(A)
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`and the binary signal 101s. Ex. 1001 at 11:49–52.
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`In the context of the specification and claim, the broadest reasonable
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`construction of “the data in the histogram” refers to data that will be used to form
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`the histogram. For example, where the specification states that a “signal ETD
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`enables the calculation of the range in the memory 118 of the classifier,” (Ex. 1001
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`at 16:33–35 (emphasis added)), the specification means that the signal ETD
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`IPR2017-01189 (’293 Patent) Preliminary PO Response
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`enables a calculation of the range that will be used in memory 118. Ex. 1001 at
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`16:30–42. Prior to the calculation, the content of memory 118 is represented by a
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`distribution R0 at time t0 (yellow). Id. at 16:30–31. As shown in Figure 20, signal
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`ETD (yellow) enables a multi-step calculation that takes place at times t1 through t5
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`(purple), resulting in the calculation of distribution R5 (green). The distribution of
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`values R5 is then used in memory 118 in t6:
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`Ex. 1001 at Fig. 20 (page 21, annotated).
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`
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`Ex. 1001 at 16:30–42, Fig. 20. Thus, a POSA would understand the claim
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`language in the manner proposed by Patent Owner’s construction because “in the”
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`is used consistently with this construction in the specification.
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`IPR2017-01189 (’293 Patent) Preliminary PO Response
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`3. “wherein classification is performed automatically by processing
`statistical information associated with the calculated histogram”
`(Claim 18)
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`The Board construed this claim in IPR2017-00336, stating that “[t]hus, in
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`light of the Specification and the language of claim 18, we agree with Patent
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`Owner that the ‘statistical information’ used for automatic classification must be
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`associated with the same histogram for which the classification applies.”
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`IPR2017-00336, Paper 15 at 15–16.3 Patent Owner proposes that the Board adopt
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`this same claim construction in this IPR.
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`The language of the claim supports this broadest reasonable interpretation of
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`claim 18. “Classification” refers to the classification unit configured as set forth in
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`the claim—this is the only other reference to classification in the claim. The
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`phrase “the calculated histogram,” refers to the histogram that is calculated by the
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`histogram unit. See Ex. 1001 at 29:28–29, 33–35. In this context, “calculated”
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`means determined by mathematical calculation, not that this calculation has been
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`completed. See Ex. 2003 at 4 (Webster’s Unabridged) (“Calculated . . . 1. arrived
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`at or determined by mathematical calculation; ascertained mathematically . . . .”).
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`The classification criteria for the histogram being calculated are updated in real
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`
`3 Because the claim construction standard in this proceeding differs from the
`standard applicable to a district court litigation, Petitioner expressly reserves the
`right to argue in litigation a different construction for any term recited by the
`claims of the ’293 patent.
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`IPR2017-01189 (’293 Patent) Preliminary PO Response
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`time while data are being added to the histogram is analyzed. Ex. 1001 at 11:14–
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`31 (real time updating of the classifier).
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`The specification also supports this broadest reasonable construction. The
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`specification teaches that statistical information for a histogram is calculated and
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`stored in memory in parallel with the formation of the histogram, and these
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`statistics are available during histogram calculation for use in the system. Ex. 1001
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`at 10:7–13. For example, referring to the example shown in Figure 3 of the patent,
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`the “test unit 103 updates the analysis registers 104 in relation to the information
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`that it receives,” and thus statistics stored in analysis output registers 104 include
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`“the number (NBPTS) of points for which information has already been received.”
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`Id. at 9:61–62 (emphasis added). The specification also teaches that the classifier
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`memory is modifiable and can be updated in real-time based on the statistical
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`information. Ex. 1001 at 11:14–21, 31–32. The specification further teaches that
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`classification by the classifier 101 can be based on statistical values, including
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`values such as RMAX which are statistical information stored in the analysis
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`registers 104. Ex. 1001 at 12:16–33.
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`There is no predicate basis in Claim 18 for updating classification criteria
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`based on a histogram calculated at an earlier moment in time or for a histogram
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`calculated by a separate histogram calculation unit. Rather, the specification
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`describes the self-adaptation function as “real time updating of the classifier.”
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`Ex. 1001 at 11:18–19 (emphasis added). In one embodiment of the classifier, for
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`example, the “[c]lassifier 101 enables comparison of the parameter P to a statistical
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`value Q, which can be prepared in various ways in relation to the statistical
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`parameters received on the different inputs . . . of multiplexer 120.” Ex. 1001 at
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`12:18–22. Figure 13a, which “represents an alternative embodiment of the
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`classifier 101” (Ex. 1001 at 12:16–17), is depicted below:
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`Ex. 1001 at Fig. 13a (page 12).
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`
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`Multiplexer 120 receives input from, for example, “the data in the analysis
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`output register.” Id. at 12:24–26. The analysis output registers contain statistical
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`information such as such as RMAX and NBPTS for the histogram and are
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`determined in parallel with the formation of the hist