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 IPR2017-01190
`Patent No. 6,717,518
`____________________
`
`
`
`PATENT OWNER IMAGE PROCESSING TECHNOLOGIES LLC’S
`PRELIMINARY RESPONSE PURSUANT TO 37 C.F.R. § 42.107
`
`
`
`

`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`TABLE OF CONTENTS
`
`I. 
`
`II. 
`
`Introduction ...................................................................................................... 1 
`
`Constitutionality of Inter Partes Review ........................................................ 2 
`
`III.  Overview of the ’518 Patent ............................................................................ 2 
`
`A.  Histogram Calculation Based on Image Data ....................................... 3 
`
`B. 
`
`Detection of Eye Area—Two Preferred Embodiments ........................ 9 
`
`1.  Detection of Eye Area Based on Head Frame .............................. 11 
`
`2.  Detection of Eye Area Based on Location of a Facial
`Characteristic ................................................................................ 15 
`
`C. 
`
`D. 
`
`Claim 39 .............................................................................................. 19 
`
`Claim Construction ............................................................................. 20 
`
`1.  “anthropomorphic model” ............................................................ 21 
`
`2.  “characteristic of the face” / “facial characteristic” ...................... 21 
`
`IV.  Legal Standards ............................................................................................. 23 
`
`V.  No Review Should be Instituted for Claim 39 .............................................. 27 
`
`A. 
`
`Petitioner Has Not Shown that the Asserted References of
`Grounds 1 and 3 Teach or Suggest All Elements of Claim 39 of
`the ’518 Patent ..................................................................................... 27 
`
`1.  Ground 1: Eriksson (Exhibit 1005) and Stringa (Exhibit 1006)
`Do Not Teach or Suggest All Elements of Claim 39 ................... 29 
`
`2.  Ground 3: Ando (Exhibit 1009) and Stringa (Exhibit 1006) Do
`Not Teach or Suggest All Elements of Claim 39 ......................... 33 
`
`B. 
`
`Neither Ando Nor Suenaga Teaches or Suggests All Elements of
`Claim 39, and Petitioner Has Not Shown that a POSA Would
`Have Selected and Combined Ando and Suenaga for Ground 2 ........ 34 
`
`i
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`

`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`1.  Neither Ando (Exhibit 1009) nor Suenaga (Exhibit 1007)
`Teaches or Suggests All Elements of Claim 39 ............................ 35 
`
`2.  A POSA Would Not Have Combined Ando and Suenaga ........... 40 
`
`VI.  Conclusion ..................................................................................................... 46 
`
`
`
`
`
`
`
`ii
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`IPR2017-01190 (’518 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) ............................... 24, 25, 26
`
`Google, Inc. v. Everymd.com LLC,
`IPR2014-00347, Paper 9 (P.T.A.B. May 22, 2014) ............................................. 24
`
`Graham v. John Deere Co.,
`383 U.S. 1 (1966), ......................................................................................... 23, 24
`
`Grain Processing v. American-Maize Prods,
` 840 F.2d 902 (Fed. Cir. 1988) ............................................................................. 27
`
`In re Magnum Oil Tools Int’l.,
` 829 F.3d 1364 (Fed. Cir. 2016) .................................................................... 23, 25
`
`In re NTP, Inc.,
` 654 F.3d 1279 (Fed. Cir. 2011) ........................................................................... 27
`
`In re Omeprazole Patent Litigation,
` 536 F.3d 1361 (Fed. Cir. 2008) ........................................................................... 26
`
`InTouch Tech., Inc. v. VGo Communs., Inc.,
` 751 F.3d 1327 (Fed. Cir. 2014) ........................................................................... 27
`
`Kinetic Concepts, Inc. v. Smith & Nephew, Inc.,
` 688 F.3d 1342 (Fed. Cir. 2012) ........................................................................... 24
`
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ...................................................................................... 26, 27
`
`Liberty Mut. Ins. Co. v. Progressive Cas. Ins. Co.,
` CBM-2012-00003, Paper 7 (P.T.A.B. Nov. 26, 2012) ................................ 24, 25
`
`Ortho-McNeil Pharm. v. Mylan Labs,
` 520 F.3d 1358 (Fed. Cir. 2008) ........................................................................... 27
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ............................................................................ 20
`
`iii
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`Proctor & Gamble Co. v. Teva Pharm. USA, Inc.,
` 566 F.3d 989 (Fed. Cir. 2009) ...................................................................... 25, 26
`
`SAS Institute, Inc. v. ComplementSoft, LLC,
`825 F.3d 1341 (2016) ........................................................................................... 23
`
`Synopsys, Inc. v. Mentor Graphics Corp.,
` 814 F.3d 1309 (2016) .......................................................................................... 23
`
`Unigene Labs., Inc. v. Apotex, Inc.,
` 655 F.3d 1352 (Fed. Cir. 2011) ........................................................................... 26
`
`Whole Space Indus Ltd.,
` IPR2015-00488, Paper 14 (P.T.A.B. July 24, 2015) .......................................... 24
`
`Statutes
`
`35 U.S.C. § 103 ................................................................................................. 23, 24
`
`
`
`
`LIST OF EXHIBITS
`
`2001
`
`2002
`
`
`
`
`Claim construction opinion in Image Processing Technologies,
`LLC v. Samsung Elecs. Co., et al., No. 16-cv-00505-JRG (E.D.
`Tex.), dated June 21, 2017.
`The American Heritage College Dictionary (1997)
`
`iv
`
`

`

`IPR2017-01190 (’518 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 29, 2017 in case IPR2017-01190 for review of claim 39 of
`
`U.S. Patent No. 6,717,518 (the “’518 patent”).
`
`I.
`
`INTRODUCTION
`
`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.
`
`As to Grounds 1 and 3, Petitioner has not shown that the asserted references
`
`teach or suggest at least elements [d], [e], [f], and [g] of claim 39:
`
`[d] selecting pixels of the portion of the image having
`characteristics corresponding
`to
`the feature
`to be
`detected;
`[e] forming at least one histogram of the selected pixels;
`[f] analyzing the at least one histogram over time to
`identify characteristics of the feature to be detected;
`[g] said feature being the iris, pupil or cornea.
`
`As to Ground 2, Petitioner has not shown that either of the asserted
`
`references teaches or suggests all elements of claim 39, and Petitioner has also not
`
`shown that a person of ordinary skill at the time of the invention (a “POSA”)
`
`would have combined the asserted references of Ground 2 to arrive at the subject
`
`1
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`matter of claim 39. Specifically, Petitioner has not shown that a POSA would have
`
`combined Ando (Exhibit 1009) and Suenaga (Exhibit 1007) as asserted by
`
`Petitioner as Ground 2.
`
`The Board should decline to institute an inter partes review of claim 39 of
`
`the ’518 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 Jun. 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 all rights to challenge the
`
`constitutionality of the instant proceeding.
`
`III. OVERVIEW OF THE ’518 PATENT
`The ’518 patent is directed to the novel use of histograms to detect and
`
`analyze faces and eyes. As stated in the ’518 patent Abstract:
`
`In a process of detecting a person falling asleep, an image
`of the face of the person is acquired. Pixels of the image
`having characteristics corresponding to an eye of the
`person are selected and a histogram is formed of the
`selected pixels. The histogram is analyzed over time to
`identify each opening and closing of the eye, and
`characteristics indicative of the person falling asleep are
`
`2
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`determined. A sub-area of the image including the eye
`may be determined by identifying the head or a facial
`characteristic of the person, and then identifying the sub-
`area using an anthropomorphic model. To determine
`openings and closings of the eyes, histograms of
`shadowed pixels of the eye are analyzed to determine the
`width and height of the shadowing, or histograms of
`movement corresponding to blinking are analyzed.
`
`Ex. 1001 at 1 (Abstract).
`
`A. Histogram Calculation Based on Image Data
`The ’518 patent teaches the efficient, real-time identification and
`
`localization of facial characteristics by processing image data using histograms.
`
`E.g., Ex. 1001 at 2:1–3:13. Image data comprises frames of pixel data. Figure 1 of
`
`the ’518 patent teaches the relationship of the exemplary image processing system
`
`to a digital camera and the information captured by the camera.
`
`3
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`Ex. 1001 at Figure 1 (see Ex. 1001 at 5:8–9, 6:39–45).
`
`
`
`Signal S(PI) is a digital signal output by a camera (13). See Ex. 1001 at
`
`6:44–65. S(PI) is a succession of frames, with each frame representing a point in
`
`time. Ex. 1001 at 6:66–7:13. Each frame comprises pixels associated with a
`
`particular x, y (or i, j) horizontal and vertical location in the frame. See Ex. 1001 at
`
`Figure 1 at 6:58–65. In one embodiment depicted in Figure 1 of the ’518 patent,
`
`the frame rectangle is comprised of a series of horizontal lines of pixels with line
`
`synchronization signal (SL) indicating the end of a line, and frame synchronization
`
`signal (ST) indicating the end of a frame. See Ex. 1001 at 6:66–7:1. The digital
`
`signal S(PI) includes data reflecting properties associated with each pixel, for
`
`4
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`example luminance value for a black-and-white image, or, for example HSL (hue,
`
`saturation, luminance) values associated with the pixel for a color image. See Ex.
`
`1001 at 14:28–42, 25:66–26:12, 29:57–60, 32:14–20.
`
`Figure 5 of the ’518 patent illustrates a series of frames, and a pixel location
`
`i, j in each frame. See Ex. 1001 at 9:51–54. Note the arrows indicating x and y
`
`direction. Ex. 1001 at 5:16–17, 9:51–57.
`
`Ex. 1001 at Figure 5 (page 4).
`
`
`
`The signal S(PI) is processed to calculate properties associated with pixels.
`
`Domains of data associated with pixels include luminance, hue, saturation, speed,
`
`oriented direction, and x-axis and y-axis position. Id. at 2:21–25, 14:24–42.
`
`In Figure 11 of the ’518 patent, spatial and temporal processing unit (11) is
`
`shown in connection with a histogram formation unit 22a. Spatial and temporal
`
`processing unit (11) receives digital video signal S(PI) originating from a video
`
`camera or other imaging device. Ex. 1001 at 6:39–45. S(PI) represents the pixel
`
`values PI of video signal S, in a succession of frames, each representing an instant
`
`5
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`in time. Ex. 1001 at 6:58–65, 7:16–24; 9:6–10. Spatial and temporal processing
`
`unit (11) outputs signals SR (delayed video signal) and also calculated values such
`
`as speed (V) and oriented direction of displacement (DI) for pixels in the image.
`
`Ex. 1001 at 7:15–7:30. Speed and oriented direction are calculated by image
`
`processing system (11), based on a matrix of pixels centered on a particular pixel.
`
`Ex. 1001 at 7:13–20, 13:7–14:5. A bus Z–Z1 (the dotted line which appears in
`
`Figures 11 and also Figure 12 which is discussed below) transfers output signals of
`
`the image processing system (11) to histogram formation unit (22a). Ex. 1001 at
`
`14:15–23.
`
`Ex. 1001 at Figure 11 (page 6).
`
`
`
`Figure 12 of the ’518 patent shows an example of a histogram processor 22a
`
`with multiple histogram formation blocks 24–29. Ex. 1001 at 14:24–32. Block 24
`
`enables a histogram to be formed in the luminance domain (ranging from 0–255).
`
`6
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`

`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`Id. at 14:34–42. Similarly, the domain for Block 25 is speed (V) (ranging from 0–
`
`7). Id. at 14:43–49. The domain for Block 26 is oriented direction (DI) (ranging
`
`from 0–7). Id. at 14:50–57. The domain for Block 27 is time constant (CO)
`
`(ranging from 0–7). Id. at 14:58–65. The domain for Block 28 is position on the
`
`x-axis (a range corresponding to the number of pixels in a line). Id. at 14:66–
`
`15:10, Fig. 5. The domain for Block 29 is position on the y-axis (range
`
`corresponding to the number of lines in a frame). Id. The histogram formation
`
`blocks and other components are interconnected by a bus 23. Id. at 14:24–28.
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`7
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`Ex. 1001 at Figure 12 (page 7).
`
`
`
`A validation unit accompanies each histogram formation block of Figure 12.
`
`Ex. 1001 at 16:22–27. Figure 14, referring to histogram formation block 25 and
`
`validation unit 31 of Figure 12, shows a histogram formation block with a
`
`classifier 25b. The classifier has registers that permit classification criteria to be
`
`individually selected: “[b]y way of example, register 106 will include, in the case
`
`of speed, eight registers numbered 0–7. By setting a register to ‘1’, e.g., register
`
`8
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`number 2, only data that meet the criteria of the selected class, e.g., speed 2, will
`
`result in a classification output of ‘1’.” Ex. 1001 at 15:62–67.
`
`Ex. 1001 at Figure 14 (page 9).
`
`
`
`The ’518 patent teaches the use of the histogram formation blocks described
`
`above to detect features of an eye.
`
`B. Detection of Eye Area—Two Preferred Embodiments
`The ’518 patent teaches forming histograms (as described above in Section
`
`III.A) of the pixels of an image “having characteristics corresponding to
`
`characteristics of at least one eye.” Ex. 1001 at 2:32–36. The histogram can then
`
`be analyzed over time to identify each opening and closing of the eye. Ex. 1001 at
`
`9
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`

`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`2:37–40. In order to form a histogram of pixels having characteristics
`
`corresponding to characteristics of at least one eye, methods of efficiently finding
`
`the eye area are taught in the ’518 patent.
`
`In one embodiment, “a sub-area of the image comprising the eye is
`
`determined prior to the step of selecting pixels having characteristics
`
`corresponding to characteristics of an eye.” Ex. 1001 at 2:41–44. The
`
`specification of the ’518 teaches two different preferred methods for determining
`
`“a sub-area of the image comprising the eye”:
`
`In this embodiment, the step of selecting pixels of the
`image having characteristics of an eye involves selecting
`pixels within the sub-area of the image. The step of
`identifying a sub-area of the image preferably involves
`identifying [i.] the head of the driver, or [ii.] a facial
`characteristic of the driver, such as the driver's nostrils,
`and then identifying the sub-area of the image using an
`anthropomorphic model.
`
`Ex. 1001 at 2:44–50 (numerals “i.” and “ii.” added in brackets). As is explained
`
`further below, these methods are taught as alternatives within the specification.
`
`Compare Ex. 1001 at Figure 30, 24:59–29:10 (“head” method), and Figures 31–36,
`
`29:11–37 (“FIGS. 31–36 show an alternative method”).
`
`The above two methods—detection of an eye area based on the head and the
`
`detection of an eye area based on the location of a facial characteristic—are
`
`10
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`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`embodied in separate claims of the ’518 patent. Claims 1 and 2, for example, have
`
`the limitation “identifying the head of the person in the image” (method 1).
`
`Ex. 1001 at 32:29–54. Claim 15 similarly refers to detecting the head of a person.
`
`Ex. 1001 at 34:61–67. Claims 3–9 on the other hand, refer to “identifying the
`
`location of a facial characteristic of the person in the image.” Ex. 1001 at 32:55–
`
`33:45. Claim 16 similarly refers to identifying the “location of a facial
`
`characteristic.” Ex. 1001 at 35:1–8. Claims 15 and 16 notably both depend from
`
`claim 14 but not each other and use alternative methods of sub-area detection.
`
`Claim 39, the sole challenged claim, refers to “identifying a characteristic of the
`
`face.” Ex. 1001 at 36:66.
`
`1. Detection of Eye Area Based on Head Frame
`
`In the first embodiment discussed here, the head of a person is detected. Id.
`
`at 2:51–53. The head is located by searching the image for the head, identifying a
`
`rectangular frame for the head, and using an anthropomorphic ratio to locate an eye
`
`area based on the rectangular head area. See, e.g., id. at 2:41–3:13. Histograms
`
`are then used to analyze the eye area. The embodiment in general is illustrated by
`
`Figure 30:
`
`11
`
`

`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`Ex. 1001 at Figure 30 (page 17, annotations in red added).
`
`
`
`The head may be identified by selecting pixels that have characteristics
`
`corresponding to the edges of the head. Id. at 2:51–53. The characteristics of
`
`12
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`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`edges of the head are generally applicable to the entire facial region (i.e., the
`
`border characteristics are not specific features of the face), and include “hue
`
`corresponding to human skin,” slow movement, and variation from the background
`
`(corresponding to a pixel DP value of 1 in the patent, i.e. “DP = 1”). Id. at 26:16–
`
`45. Figure 24 illustrates detection of the edges of the head:
`
`
`Ex. 1001 at Figure 24 (Excerpt) (see 5:64–65).
`
`Once the edges of the head are detected, the area surrounding the face is
`
`masked such that only the face area is considered further. Id. at 26:66–27:1.
`
`Figure 25 illustrates this process:
`
`13
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`

`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`
`Ex. 1001 at Figure 25 (page 15); see also Ex. 1001 at 27:1–17.
`
`An anthropomorphic ratio is applied based on the rectangle identified as the
`
`face area (the face “frame”). Id. at 27:28–51. Figure 26 illustrates the application
`
`of a ratio “between the zone of the eyes and the entire face for a human being,
`
`especially in the vertical direction”. Id. at 27:34–35. Only the area within Z’ is
`
`considered further:
`
`
`Ex. 1001 at Figure 26 (page 15); see also Ex. 1001 at 27:28–51.
`
`14
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`2. Detection of Eye Area Based on Location of a Facial Characteristic
`
`In the second embodiment discussed here, the process of detecting an eye
`
`area first comprises identifying specific facial features instead of using the general
`
`characteristics, such as edge-detection of the head, described above in Section
`
`I.B.1. Id. at 29:12–14. The controller may execute a search mode to scan the
`
`image for facial characteristics, for example the nostrils, nose, ears, eyebrows,
`
`mouth, etc. Id. at 29:12–17, 52–57. In one embodiment, for example, the patent
`
`teaches searching for facial features in a series of sub-images, which are portions
`
`of the initial image. Id. at 29:12–51. The process of this “facial feature”
`
`embodiment is illustrated in the flowchart of Figure 35:
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`15
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`

`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`
`Ex. 1001 at Figure 35 (page 20 excerpt, annotated in red); see also 29:12–18).
`
`The controller, if searching for nostrils, for example, may search for nostrils
`
`in a first sub-image A by forming x-direction and y-direction histograms of pixels
`
`having low luminance to identify characteristics indicative of nostrils. Id. at
`
`29:24–35. If nostrils are not identified in a sub-image, the process is repeated for
`
`next sub-image and subsequent sub-images. Id. at 29:35–40. Figure 31 illustrates
`
`16
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`

`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`sub-images A through F of the main image, which are searched in sequence to
`
`identify a facial characteristic:
`
`Ex. 1001 at Figure 31 (page 18).
`
`
`
`Figure 32 illustrates an exemplary analysis of histograms to identify characteristics
`
`of nostrils.
`
`
`Ex. 1001 at Figure 32 (page 18); see also Ex. 1001 at 30:1–2.
`
`17
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`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`Nostrils are characterized, for example, by a peak in the y-direction histogram and
`
`two peaks in the x-direction histogram. Id. at 30:2–4. Histograms may also be
`
`analyzed to ensure a sufficient number of pixels with low luminance have been
`
`identified and to ensure thresholds are exceeded for the maximum (peak) of the
`
`histograms, among other things. Id. at 30:4–12.
`
`Once the nostrils are identified, an anthropomorphic model based on the
`
`spatial relationship between the eyes and nose of humans can be used to establish a
`
`search box around the eye. Id. at 30:40–45.
`
`The search box may then be analyzed for characteristics of an eye present in
`
`the search box. Id. at 30:51–56. The characteristics may include a pupil, iris, or
`
`cornea. Figure 36, for example, illustrates a histogram calculation targeted to
`
`detecting the pupil, in which the histogram units are set to detect pixels with low
`
`luminance levels and high gloss levels, characteristic of a pupil (item 432). Id. at
`
`30:61–64.
`
`18
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`Ex. 1001 at Figure 36 (page 21)
`
`
`
`The x-axis and y-axis histograms are analyzed over time to determine
`
`whether the eye is open or closed (id. at 31:24–60), from which the number and
`
`duration of blinks may be determined (id. at 31:61–32:13).
`
`C. Claim 39
`Claim 39 of the ʼ518 patent is reproduced below in its entirety, labeled with
`
`the Petition’s element notation for convenience.
`
`[pre] A process of detecting a feature of an eye, the
`process comprising the steps of:
`[a] acquiring an image of the face of the person, the
`image comprising pixels corresponding to the feature to
`be detected;
`[b] identifying a characteristic of the face other than the
`feature to be detected;
`[c] identifying a portion of the image of the face
`comprising
`the
`feature
`to be detected using an
`
`19
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`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`anthropomorphic model based on the location of the
`identified facial characteristic;
`[d] selecting pixels of the portion of the image having
`characteristics corresponding
`to
`the feature
`to be
`detected;
`[e] forming at least one histogram of the selected pixels;
`and
`[f] analyzing the at least one histogram over time to
`identify characteristics of the feature to be detected;
`[g] said feature being the iris, pupil or cornea.
`
`Ex. 1001 at 36:60–38:5.
`
`D. Claim Construction
`Petitioner proposes that the claims be construed pursuant to the standard in
`
`Phillips v. AWH Corp., under which “the ordinary and customary meaning of a
`
`claim term is the meaning that the term would have to a person of ordinary skill in
`
`the art in question at the time of the invention, i.e., as of the effective filing date of
`
`the patent application.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir.
`
`2005).
`
`Patent Owner agrees that the Phillips standard should apply for purposes of
`
`this inter partes review. For the Board’s reference, Patent Owner includes as
`
`Exhibit 2001 the court’s June 21, 2017 claim construction opinion in the Image
`
`Processing Technologies, LLC v. Samsung Elecs. Co., et al., No. 16-cv-00505-JRG
`
`(E.D. Tex.).
`
`20
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`

`IPR2017-01190 (’518 Patent) Preliminary PO Response
`
`“anthropomorphic model”
`
`1.
`The parties agreed in the Litigation that this term should be construed as
`
`“mathematical representation specifying the spatial relationship of human facial
`
`features.” Ex. 2001 at 9. Patent Owner proposes that “anthropomorphic model”
`
`should be construed as “mathematical representation specifying the spatial
`
`relationship of human facial features” for purposes of this inter partes review. Id.
`
`“characteristic of the face” / “facial characteristic”
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`2.
`Patent Owner proposes that “characteristic of the face” / “facial
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`characteristic” should be construed to mean “a distinguishing element of a face,
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`such as the nose, nostril, ears, eyebrows, mouth, etc.” See Ex. 1001 at 29:52–57.
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`This construction is consistent with the specification’s use of “characteristic
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`of the face” and “facial characteristic.” The specification teaches that “facial
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`characteristic[s]” include the nose, nostril, ears, eyebrows, and mouth. Ex. 1001 at
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`3:54–58, 29:54–56. Further, the specification teaches that sub-areas of the image
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`are searched for facial characteristics, which is consistent with these localized parts
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`of the face such as the nose. The specification also teaches that pixel properties
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`may indicate a particular facial feature. For example, low luminance can be used
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`to identify nostrils (id. at 29:24–30). Parts of the face such as eyebrows or lips will
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`have different color, hue, or luminance, and thus their respective pixel properties
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`may be used to identify these face parts. See id. at 29:52– 60.
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`This construction is also consistent with the claim language, which recites
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`“the location of the identified facial characteristic.” See Element 39c at 37:3–4.
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`Each distinguishing element, e.g., the nose, nostrils, ears, eyebrows, or mouth, has
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`a specific location on the face.
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`The specification contrasts facial characteristics with general properties of a
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`face, such as skin hue (color) and the contrast in color or movement compared with
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`the background of the image. In an embodiment in which the rectangular frame of
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`the head is used to locate an eye area, general properties of the face such as skin
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`hue, movement of the head, and contrast in hue of the head compared with the
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`background are used, for example, to determine the edge of the head. See id. at
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`26:22–29. By contrast, in a different embodiment in which specific facial
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`characteristics are used to locate the eye area, pixel characteristics specific to the
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`facial characteristic sought are used to locate that part of the face. For example,
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`low luminance is used to search for the nostrils. See id. at 2:65–67.
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`The language of claims 3–7 of the ’518 patent support Patent Owner’s
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`construction. Claims 5, 6, and 7 each recite the nostrils as a facial characteristic,
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`which is a specific part of the face. Claim 4 recites “selecting pixels of the image
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`having characteristics corresponding to the facial characteristic,” which, as
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`discussed above, is consistent with Patent Owner’s proposed definition because
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`face parts such as lips and eyebrows are generally a different color and intensity
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`than the rest of the face, and therefor may be found based on pixel properties such
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`as hue (color) values.
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`The meaning of “facial feature” proposed is also consistent with extrinsic
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`evidence. See Exhibit 2002, The American Heritage College Dictionary, Feature,
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`definition 1.a, “Any of the distinct parts of the face, such as the eyes, nose, or
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`mouth.” Exhibit 2002 at 4.
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`IV. LEGAL STANDARDS
`Petitioner has the burden to show that it is likely to prevail as to claim 39 of
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`the ’518 patent. 35 U.S.C. § 314. The Board may decline to institute the petition
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`as to any claim for which the Board determines that Petitioner has not shown it is
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`likely to prevail. SAS Institute, Inc. v. ComplementSoft, LLC, 825 F.3d 1341, 1352
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`(Fed. Cir. 2016), cert. granted sub nom. SAS Inst. Inc. v. Lee, 137 S. Ct. 2160 (May
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`22, 2017) (No. 16-969); Synopsys, Inc. v. Mentor Graphics Corp., 814 F.3d 1309,
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`1316–17 (Fed. Cir. 2016).
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`All three of Petitioner’s Grounds rely on obviousness combinations. To
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`make a prima facie showing of obviousness for a challenged claim under 35 U.S.C.
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`§ 103, the Petition must, among other requirements, fulfill the requirements set
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`forth in Graham v. John Deere Co., 383 U.S. 1 (1966), including demonstrating
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`that the cited references, in combination, disclose each element of the claim. In re
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`Magnum Oil Tools Int’l., 829 F.3d 1364, 1376 (Fed. Cir. 2016); see Apple Inc. v.
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`Contentguard Holdings, Inc., IPR2015-00442, Paper 9 at 12 (P.T.A.B. July 13,
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`2015).
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`A legal conclusion of obviousness must be based on a factual background
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`developed by consideration of each of the following factors: (1) the scope and
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`content of the prior art; (2) the differences between the prior art and the claims at
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`issue; and (3) the level of ordinary skill in the art at the time of the invention. See
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`35 U.S.C. § 103(a); Graham, 383 U.S. 1 at 17–18. Without exception,
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`consideration of every factor in the Graham framework is mandatory. Kinetic
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`Concepts, 688 F.3d at 1360 (Fed. Cir. 2012); see Liberty Mut. Ins. Co. v.
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`Progressive Cas. Ins. Co., CBM-2012-00003, Paper 7 at 3 (Order) (P.T.A.B. Nov.
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`26, 2012).
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`In particular, an obviousness analysis must identify the difference(s)
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`between the claim and the prior art. Kinetic Concepts, Inc. v. Smith & Nephew,
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`Inc., 688 F.3d 1342, 1360 (Fed. Cir. 2012) (“Indeed, courts must consider all of the
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`Graham factors prior to reaching a conclusion with respect to obviousness.”);
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`Whole Space Indus Ltd., IPR2015-00488, Paper 14 at 15 (P.T.A.B. July 24, 2015)
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`(differences between the prior art and the claims at issue is one of the fundamental
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`factual inquiries underlying an obviousness analysis); Google, Inc. v. Everymd.com
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`LLC, IPR2014-00347, Paper 9 at 25 (P.T.A.B. May 22, 2014) (“Rather,
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`Petitioners’ summaries, quotations, and citations from both references, with
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`IPR2017-01190 (’518 Patent) Preliminary PO Response
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`Belanger’s figures, place the burden on us to . . . identify any differences between
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`the claimed subject matter and the teachings of Shah and Belanger.”) (emphasis
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`added); Liberty Mut., CBM-2012-00003, Paper 7 at 2–3 (“Differences between the
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`claimed invention and the prior art are a critically important underlying factual
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`inquiry for any obviousness analysis.”).
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`Petitioner also has the burden to show whether there would have been a
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`motivation or reason to combine the asserted prior art, and whether the proposed
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`combination would render the patented claims obvious. In re Magnum Oil Tools,
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`829 F.3d at 1376.
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`A petition must provide an explicit rationale to make proposed modifications
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`to or combinations of the prior art references, despite the differences between the
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`claimed invention and the prior art, without relying on the patent disclosure itself.
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`Apple Inc. v. Contentguard, Paper 9 at 15; see also Proctor & Gamble Co. v. Teva
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`Pharm. USA, Inc., 566 F.3d 989, 995 (Fed. Cir. 2009).
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`A petition must also explain why a person of ordinary skill in the art would
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`simultaneously make multiple changes and implementation choices to arrive at a
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`particular invention. Apple Inc. v. Contentguard, Paper 9 at 16–17 (“[W]e are not
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`persuaded that the Petition sufficiently explains why a person of ordinary skill
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`would simultaneously make all of the many particular proposed changes and
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`implementation choices”) (internal citations omitted). Even if individual
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`modifications or choices were obvious, a petiti