Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`
`
` Paper No. 33
`
`
` Entered: October 1, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.; AND
`SAMSUNG ELECTRONICS AMERICA, INC.
`Petitioners
`
`v.
`
`IMAGE PROCESSING TECHNOLOGIES, LLC
`Patent Owner
`____________
`
`IPR2017-01190
`Patent 6,717,518 B1
`____________
`
`
`Before JONI Y. CHANG, MIRIAM L. QUINN, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`McSHANE, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
` Paper No. 33
`
`
` Entered: October 1, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.; AND
`SAMSUNG ELECTRONICS AMERICA, INC.
`Petitioners
`
`v.
`
`IMAGE PROCESSING TECHNOLOGIES, LLC
`Patent Owner
`____________
`
`IPR2017-01190
`Patent 6,717,518 B1
`____________
`
`
`Before JONI Y. CHANG, MIRIAM L. QUINN, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`McSHANE, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`I. INTRODUCTION
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`§ 6. This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons discussed herein, we determine that
`Petitioner has shown, by a preponderance of the evidence, that claim 39
`(“the challenged claim”) of U.S. Patent No. 6,717,518 B1 (Ex. 1001,
`“the ’518 patent”) is unpatentable.
`A. Procedural Background
`Samsung Electronics Co., Ltd. and Samsung Electronics America,
`Inc. (“Petitioner”) filed a Petition requesting inter partes review of claim 39
`of the ’518 patent pursuant to 35 U.S.C. §§ 311–319. Paper 2 (“Pet.”).
`Petitioner also filed the supporting Declaration of Dr. John C. Hart (“Hart
`Declaration”). (Ex. 1002). Image Processing Technologies, LLC (“Patent
`Owner”) filed a Preliminary Response to the Petition. Paper 6 (“Prelim.
`Resp.”). Pursuant to 35 U.S.C. § 314(a), on October 3, 2017, we instituted
`inter partes review on the following grounds:
`whether claim 39 would have been obvious under 35 U.S.C.
`§ 103(a) in view of Eriksson1 and Stringa2;
`whether claim 39 would have been obvious under 35 U.S.C.
`§ 103(a) in view of Ando3 and Suenaga4.
`
`
`1 Martin Eriksson, Eye-Tracking for Detection of Driver Fatigue,
`Proceedings of November 1997 IEEE Conference on Intelligent
`Transportation Systems, 314–319. (Ex. 1005).
`2 Luigi Stringa, Eyes Recognition for Face Recognition, Applied Artificial
`Intelligence—An International Journal, Vol. 7, No. 1, 1993, 365–382. (Ex.
`1006).
`3 U.S. Patent No. 5,008,946 (issued April 16, 1991) (Ex. 1009).
`4 U.S. Patent No. 5,805,720 (issued September 8, 1998) (Ex. 1007).
`
`
`
`2
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`See Paper 11 (“Inst. Dec.” or “Dec.”). Subsequent to institution, Patent
`Owner filed a Patent Owner Response (Paper 15, “PO Resp.”). Petitioner
`filed a Reply (Paper 19, “Pet. Reply”) to the Patent Owner Response.
`On April 24, 2018, the Supreme Court held that a final written
`decision in an inter partes review must decide the patentability of all claims
`challenged in the petition. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1359–60
`(2018) (“SAS”). Pursuant to SAS, on May 3, 2018, we instituted inter partes
`review on the following additional ground:
`whether claim 39 would have been obvious under 35 U.S.C.
`§ 103(a) in view of Ando and Stringa.
`See Paper 24; see also PGS Geophysical AS v. Iancu, 891 F.3d 1354, 1360–
`61 (Fed. Cir. 2018) (reading “the SAS opinion as interpreting the statute to
`require a simple yes-or-no institution choice respecting a petition, embracing
`all challenges included in the petition”); Guidance on the Impact of SAS on
`AIA Trial Proceedings (April 26, 2018) (available at
`https://www.uspto.gov/patents-application-process/patent-trial-and-
`appealboard/trials/guidance-impact-sas-aia-trial) (“[I]f the PTAB institutes a
`trial, the PTAB will institute on all challenges raised in the petition.”). The
`parties were requested to advise the Board if they wished to change the case
`schedule or submit further briefing in light of the institution of the Ando and
`Stringa ground. Paper 24, 1. The parties did not request additional briefing,
`nor was there a request for a change to the schedule. Paper 25, 3.
`An oral hearing was held on June 29, 2018. A transcript of the
`hearing is included in the record. Paper 31 (“Tr.”).
`
`
`
`3
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`B. Related Proceedings
`The parties indicate that a related matter is: Image Processing
`
`Technologies LLC v. Samsung Elecs. Co., No. 2:16-cv-00505-JRG (E.D.
`Tex.) (“the district court action”). Pet. 1, Paper 4, 1. The parties also
`indicate that inter partes review petitions have been filed for other patents
`asserted in the district court action. Pet. 1–2; Paper 4, 1.
`C. The ’518 Patent
`The ’518 patent is entitled “Method And Apparatus For Detection Of
`
`Drowsiness,” and was filed as PCT application No. PCT/EP99/00300 on
`January 15, 1999, and issued on April 6, 2004. Ex. 1001, [22], [45], [54],
`[86]. The ’518 patent claims priority to application FR 98 00378, dated
`January 15, 1998 and application PCT/EP98/05383, dated August 25, 1998.
`Id. at [30]. The application entered the U.S. national stage as application
`No. 09/600,390, meeting the requirements under 35 U.S.C. § 371 on
`February 9, 2001. Id. at [21], [86].
`
`The ’518 patent is directed to applying a generic image processing
`system in order to detect a person’s drowsiness. Ex. 1001, 2:1–5, 2:32–40.
`In order to accomplish that, the driver’s blink rate is detected using a video
`camera in a car. Id. at 6:28–57. The system first detects a driver entering
`the vehicle, by use of pixels “moving in a lateral direction away from the
`driver’s door.” Id. at 25:24–39. A driver’s head is detected by identifying
`pixels with selected characteristics, with the pixels loaded in histograms as
`depicted in Figure 24, reproduced below. Id. at 5:64–65, 26:46–49.
`
`
`
`4
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`
`Figure 24, above, illustrates the detection of the edges of a head using
`histograms. Ex. 1001, 5:64–65. The head edges are detected by looking for
`peaks in the histogram. Id. at 26:49–65. The system then masks portions of
`an image, and continues to analyze only the unmasked portions. Id. at
`26:66–27:10; see also id. at Fig. 25. The system then uses an
`anthropomorphic model to set sub-areas for further analysis. Id. at 27:31–
`38. Figure 26, reproduced below, shows the derivation of a sub-area. See
`id. at 27:31–38.
`
`
`
`
`
`5
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`Figure 26, above, depicts masking outside the eyes. Ex. 1001, 6:1–2. The
`’518 patent includes a variety of methods to identify blinking, including use
`of histograms to determine whether eyes are open or closed, as depicted in
`Figure 27, reproduced below. Id. at 27:52–28:14.
`
`
`The system checks for eye movement by methods including analyzing the
`pixels within area Z′ depicted above in Figure 27. Ex. 1001, 27:52–55. The
`peaks of the histogram shown in Figure 27, above, are used to determine
`whether an eye is open or closed. Id. at 28:32–29:10. Characteristics of
`features in a search box, such as, such as “a moving eyelid, a pupil, iris or
`cornea, a shape corresponding to an eye, a shadow corresponding to an eye,
`or any other indicia indicative of an eye,” may also be analyzed. Id. at
`30:56–59.
`
`Claim 39, with added formatting and paragraph annotations, is
`reproduced below.
`
`39. 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;
`
`
`
`6
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`[c] identifying a portion of the image of the face comprising the
`
`feature to be detected using an 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;
`
`[f] and 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, 36:60–38:4.
`
`II. ANALYSIS
`A. The Parties’ Post-Institution Arguments
` In our Decision on Institution, we concluded that the arguments and
`evidence advanced by Petitioner demonstrated a reasonable likelihood that
`claim 39 of the ’518 patent would have been unpatentable under 35 U.S.C.
`§ 103 over Eriksson and Stringa and over Ando and Suenaga. Dec. 7–26.
`We now determine whether Petitioner has established by a preponderance of
`the evidence that claim 39 is unpatentable. We previously instructed Patent
`Owner that “any arguments for patentability not raised and fully briefed in
`the [Patent Owner Response] will be deemed waived.” Paper 12, 3; see also
`37 C.F.R. § 42.23(a) (“Any material fact not specifically denied may be
`considered admitted.”); In re Nuvasive, Inc., 842 F.3d 1376, 1379–82 (Fed.
`Cir. 2016) (holding Patent Owner waived an argument addressed in
`Preliminary Response by not raising the same argument in the Patent Owner
`Response). Additionally, the Board’s Trial Practice Guide states that the
`Patent Owner Response “should identify all the involved claims that are
`believed to be patentable and state the basis for that belief.” Office Patent
`Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
`
`
`
`7
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`With a complete record before us, we note that we have reviewed
`arguments and evidence advanced by Petitioner to support its unpatentability
`contentions where Patent Owner chose not to address certain limitations in
`its Patent Owner Response. In this regard, the record contains persuasive
`arguments and evidence presented by Petitioner regarding the manner in
`which the asserted prior art teaches corresponding limitations of claim 39.
`Based on the preponderance of the evidence before us, we conclude that the
`prior art identified by Petitioner teaches or suggests all of the limitations of
`the reviewed claim.
`
`B. Claim Construction
`In an inter partes review, the Board interprets claim terms in an
`unexpired patent according to the broadest reasonable construction in light
`of the specification of the patent in which they appear. 37 C.F.R.
`§ 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46
`(2016) (upholding the use of the broadest reasonable interpretation
`approach). Under that standard, and absent any special definitions, we give
`claim terms their ordinary and customary meaning, as they would be
`understood by one of ordinary skill in the art at the time of the invention.
`In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
`
`“selecting pixels of the portion of the image having characteristics
`corresponding to the feature to be detected; forming at least one histogram
`of the selected pixels” (element 39[d], [e])
`Patent Owner asserts that the construction of claim element 39[d] is
`dispositive of the challenge to claim 39, and the claim language requires
`“selecting and forming a histogram of pixels that have characteristics
`corresponding to the feature to be detected, not merely selecting all the
`
`
`
`8
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`pixels in a particular area and forming a histogram of all the pixels in, for
`example, a rectangular area.” PO Resp. 34.
`Patent Owner refers to the discussion in the Decision on Institution
`related to this claim element, and argues that some portions of the ’518
`patent are contrary to the Board’s view of the claim construction in the
`Decision on Institution, and instead support Patent Owner’s proposed
`construction. PO Resp. 34. Patent Owner refers to Figure 27, with
`associated disclosure, asserting that “histograms that are formed only of
`‘pixels with the selected criteria corresponding to the driver’s eyelids,
`preferably DP=1 with vertical movement.’” Id. at 35 (citing Ex. 1001,
`28:15–18, 28:8–10). Patent Owner also refers to other portions of the ’518
`patent specification, alleging that “[t]he claim interpretation proposed . . .
`follows naturally from and is supported by the teachings of the remainder of
`the patent specification, which teach selecting particular pixels with
`characteristics of a feature such as luminance or movement and then forming
`histograms of only those selected pixels.” Id. at 39–41 (citing Ex. 1001, Ex.
`1001, 30:61–64, Figs. 32, 36).
`Patent Owner contends that the language of the claim, including
`elements 39[c], [d], and [e], requires “identification of an image portion that
`includes the feature to be detected, followed by selection of pixels within
`that image portion that have characteristics that correspond to the feature,
`followed by formation of a histogram of those selected pixels.” PO Resp.
`36. Patent Owner argues its proposed construction is in view of claim
`element 39[c], which uses the term “comprising” to indicate a portion of the
`image that includes more than just the feature to be detected, and contrasts
`this with element 39[d], which does not use that term. Id. at 37.
`
`
`
`9
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`Patent Owner refers to other portions of the ’518 patent alleged to
`provide guidance and “reinforce[] the understanding that selecting pixels
`having characteristics corresponding to a feature means choosing only those
`pixels that have the characteristics of that particular feature.” PO Resp. 37.
`In support, Patent Owner refers to other claims of the ’518 patent, such as
`claim 4, which recites “selecting pixels of the image having characteristics
`corresponding to the facial characteristic,” and its dependent claim 5, which
`recites that the “facial characteristic” is the “nostril” and “the step of
`selecting pixels of the image having characteristics corresponding to the
`facial characteristic” is selecting pixels with “low luminance levels.” Id. at
`37–38 (citing Ex. 1001, 33:10–31). Other independent/dependent claim sets
`12 and 13; 17 and 18; and 22 and 23 are also referred to as examples that
`recite selecting pixels that are moving (while blinking) in order to identify
`an eye. Id. at 38.
`
`Petitioner disputes Patent Owner’s proposed limited construction
`because it would limit element 39[d] to “‘selecting pixels of a portion of the
`image having characteristics corresponding to the feature to be selected’
`[that] precludes selection of pixels that are not of the feature itself.” Pet.
`Reply 6 (quoting Inst. Dec. 16).5 Petitioner asserts that claim terms should
`be given their broadest reasonable interpretation and should be interpreted
`according to their ordinary and customary meaning. Id. at 3–4. Petitioner
`argues that Patent Owner’s arguments ignore the use of “comprising” in the
`preamble, which signals that the entire claim is presumptively open-ended.
`
`5 Petitioner also refers to, and disputes, Patent Owner’s allegation that
`element 39[e] “cannot include ‘forming a histogram of all pixels in . . . a
`rectangular area’ but must include ‘only iris, pupil, or cornea pixels.’” Pet.
`Reply 6 (citing PO Resp. 34, 37).
`
`
`
`10
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`Id. at 6. Petitioner alleges that the term “having” is an open-ended term, and
`nothing in the specification precludes elements 39[d] and 39[e] from
`selecting and forming a histogram of all pixels in a specific area (“portion”)
`identified in element 39[c]. Id. at 7.
`
`Petitioner asserts that the ’518 patent discloses histograms that depict
`pixels other than those for the feature at issue. Pet. Reply 8 (citing Ex. 1001,
`Figs. 27, 32, 33, 34, and 36). Petitioner refers to annotated Figures 27, 32,
`33, 34, and 36, reproduced below.
`
`
`
`
`
`11
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`
`
`
`Petitioner refers to annotated Figure 36 as an example and asserts that it
`“shows two histograms of a pupil, and the histograms both include pixels
`that are not pupil pixels (annotated in red).” Pet. Reply 10. Petitioner also
`refers to other examples in the Specification where it alleges that all pixels in
`an area are used for forming a histogram. Id. (citing Ex. 1001, 18:58–
`19:25).
`
`Although we agree with Petitioner that the term “comprising” in the
`preamble signals the entire claim is presumptively open ended and could
`extend to the consideration of additional steps of a claimed process, the
`
`
`
`12
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`individual step element 39[d] stands on its own. Element 36[d] requires
`“selecting pixels of the portion of the image having characteristics
`corresponding to the feature.” Transitional phrases, such as “having,” are
`interpreted in light of the specification to determine whether open or closed
`language is intended. Lampi Corp. v. American Power Prods. Inc., 228 F.3d
`1365, 1376 (Fed. Cir. 2000) (citing Manual of Patent Examining Procedure
`§ 2111.03 (7th ed. rev. 2000).
`
`Turning to the specification, it describes the formation of Figure 36 as
`follows:
`Controller 42 sets the histogram formation units to detect the
`desired criteria. For example, FIG. 36 shows a sample
`histogram of a pupil 432, in which the linear combination units
`and validation units are set to detect pixels with very low
`luminance levels and high gloss that are characteristic of a
`pupil.
`Ex. 1001, 30:59–64.
`
`The pixels selected for the formation of the histogram in Figure 36 to
`detect the pupil, the feature of interest, are those having certain luminance
`and gloss levels that “are characteristic” of a pupil. Figure 36 depicts that,
`as described, the histogram includes pixels that are selected based on certain
`characteristics (like luminance levels) corresponding to the feature, but the
`histogram also includes pixels that are not those of the feature (pupil 432)
`itself. Thus, the specification discloses histograms that are formed of
`selected pixels having certain characteristics, however, the selected pixels
`with those characteristics may not end up being part of the feature itself.
`Therefore, the selected pixels are not restricted to those of the feature.
`
`We have reviewed the other claims that Patent Owner refers us to (PO
`Resp. 37–39), and do not find that these claims serve to differentiate the
`
`
`
`13
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`interpretation of element 39[d] on the issue of whether the selection of pixels
`having characteristics corresponding to the feature should be restricted to
`pixels that are of the feature itself.
`
`Therefore, we do not adopt Patent Owner’s proposed construction of
`element 39[d] because it is too limited. The claim only requires the
`selection of pixels of the portion of the image having characteristics
`corresponding to the feature and then using the selected pixels to form the
`histogram.
`
`Accordingly, we determine that the term “selecting pixels of the
`portion of the image having characteristics corresponding to the feature to be
`detected” requires that, as claimed, the selected pixels of the portion of the
`image have characteristics corresponding to the feature be selected, and this
`does not preclude selection of other pixels that have characteristics
`corresponding to the feature, that are not pixels of the feature itself. We also
`determine that we need not further construe the term to resolve the issues
`before us.
`
`“histogram”
`Patent Owner proposes that the term “histogram” be construed as “a
`statistical representation of the frequency of occurrence with which values
`of a parameter fall within a series of intervals.” PO Resp. 28. Patent Owner
`asserts that this construction is consistent with the ordinary and customary
`meaning of the term. Id. Petitioner does not dispute Patent Owner’s
`proposed construction. Tr. 34:20–24.
`We adopt Patent Owner’s proposed construction of the term
`“histogram.”
`
`
`
`14
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`“characteristic of the face”/“facial characteristic”
`Patent Owner also proposes claim construction for the terms
`
`“characteristic of the face”/“facial characteristic.” PO Resp. 33–34. Patent
`Owner asserts that construing these terms would be relevant to the disputed
`issues for Suenaga and Eriksson. Id. at 32. We do not reach Petitioner’s
`additional challenge under Suenaga, and Patent Owner does not present any
`arguments for Eriksson related to these terms. See id., 45–52. Accordingly,
`we determine that it is not necessary to provide an express interpretation of
`these terms.
`
`Other Terms
`We determine that it is not necessary to provide an express
`
`interpretation of any other term of the claims. Vivid Techs., Inc. v. Am. Sci.
`& Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)) (“[O]nly those terms
`need be construed that are in controversy, and only to the extent necessary to
`resolve the controversy.”).
`
`C.
`
`Level of Ordinary Skill in the Art
`
`Petitioner’s expert, Dr. Hart, testifies that a person of ordinary skill at
`the time of the ’518 patent invention would have had
`either (1) a Master’s Degree in Electrical Engineering or
`Computer Science or the equivalent plus at least a year of
`experience in the field of image processing, image recognition,
`machine vision, or a related field or (2) a Bachelor’s Degree in
`Electrical Engineering or Computer Science or the equivalent
`plus at least three years of experience in the field of image
`processing, image recognition, machine vision, or a related
`field.
` Additional education could substitute for work
`experience and vice versa.
`Ex. 1002 ¶ 44 (see also Pet. 4).
`
`
`
`15
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`Patent Owner does not provide proposed qualifications for one of
`
`ordinary skill in the art. See PO Resp. 1–75.
`
`We adopt and apply the assessment of the level of ordinary skill in the
`art articulated by Petitioner to our obviousness analysis in this proceeding.
`In addition, we note that the art of record in this proceeding—namely,
`Eriksson, Stringa, Ando, and Suenaga—is indicative of the level of ordinary
`skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir.
`2001).
`
`D. Obviousness of Claim 39 over Eriksson and Stringa
` Petitioner contends that claim 39 is obvious over Eriksson and
`Stringa. Pet. 26–41. To support its contentions, Petitioner provides
`evidence and explanations as to how the prior art teaches each claim
`limitation. Id. Petitioner also relies upon the Hart Declaration (Ex. 1002) to
`support its positions. Patent Owner counters that the prior art does not
`render claim 39 obvious because the prior art fails to teach or suggest some
`limitations of the claim and a person of skill in the art would not have
`combined Eriksson and Stringa in the manner proposed. PO Resp. 45–57.
` Based on the evidence in this entire trial record, we are persuaded by
`Petitioner’s explanations and evidence in support of the obviousness grounds
`asserted under Eriksson and Stringa for claim 39. We begin our discussion
`with a brief summary of the prior art, and then address the evidence,
`analysis, and arguments presented by the parties.
`
`
`
`16
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`1. Eriksson (Ex. 1005)
`Eriksson is directed to “a system that locates and tracks the eyes of a
`
`driver” for the “purpose of . . . detect[ing] driver fatigue.” Ex. 1005, 314.6
`Eriksson uses a small camera to “monitor the face of the driver and look for
`eye movements which indicate that the driver is no longer in condition to
`drive.” Id. Eriksson uses four steps for detection: (1) localization of the
`face; (2) computation of the vertical location of the eyes; (3) computation of
`the exact location of the eyes; and (4) estimation of the iris position. Id. at
`315. In the first step, localization of the face, Eriksson uses a “symmetry
`histogram,” shown in Figure 1 below. Id.
`
`
`Figure 1, above, depicts computed symmetry values that form the symmetry
`histogram used to determine the center of a face. Ex. 1005, 315–316. In the
`second step of Eriksson, the vertical location of the eyes is determined using
`an edge detection algorithm to form the histogram depicted in Figure 2. Id.
`at 316.
`
`
`6 The references used herein refer to the page numbers used in the original
`publication.
`
`
`
`17
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`
`
`Figure 2, above, depicts an original image, edges detected, and a histogram
`of the detected edges. Ex. 1005, 316. The peaks formed are considered in
`the third step of the process that computes the exact location of the eyes. Id.
`The eyes are located by searching for “intensity-valleys” in the image and
`also using “general constraints, such [as] that both eyes must be located
`‘fairly close’ to the center of the face.” Id. Finally, the position of the iris is
`found by the use of an “eye-template” shown in Figure 3. Id.
`
`
`Figure 3, above, depicts the eye-template that is laid over the image to find
`the position of the iris. Ex. 1005, 316. The template determines that there is
`a good match if there are “many dark pixels in the area inside the inner
`circle, and many bright pixels in the area between the two circles.” Id. at
`316–317. Upon a match, “the inner circle is centered on the iris and the
`
`
`
`18
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`outside circle covers the sclera.” Id. at 317. Eriksson generates a horizontal
`histogram across the pupil. Id. at 318. Figure 5, reproduced below, depicts
`horizonal histograms for open and closed eyes. Id. at 318.
`
`
`
`The histograms depicted above in Figure 5 are used to determine whether an
`eye is open or closed. Ex. 1005, 318. Measurement of blink rates over time
`can be used to detect drowsy drivers. Id.
`2. Stringa (Ex. 1006)
`Stringa is directed to an image processing normalization algorithm for
`
`face recognition. Ex. 1006, 365. Stringa locates the position of eyes “based
`on the exploitation of (a priori) anthropometric information combined with
`the analysis of suitable grey-level distributions, allowing direct localization
`of both eyes.” Id. at 369. Stringa discusses the “grammar” of facial
`structure, where the “human face presents a reasonable symmetry,” with
`“knowledge of the relative position of the main facial features.” Id.
`Stringa’s “guidelines can be derived from anthropometric data
`corresponding to an average face and refined through the analysis of real
`faces.” Id. An algorithm detects a line that connects the eyes, side limits of
`the face, and the nose axis, in order to estimate “the expectation zones of the
`two eyes.” Id. at 376. Stringa searches for the pupil based upon an analysis
`
`
`
`19
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`of horizonal grey-level distribution. Id. at 377. Figure 9, reproduced below,
`depicts the expectation zone for the eyes. Id.
`
`
`Figure 9, above, depicts the computed expection zone for two eyes. Ex.
`1006, 377. Stringa uses an analysis of a horizontal grey-area distribution, an
`then uses a second derivation for pupil identification as depicted in Figure
`10. Id. at 377–378.
`
`
`
`20
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`
`
`Figure 10, above, depicts a plot of a second derivation of eye data used to
`locate pupil location. Ex. 1006, 378. Figure 10 shows a peak corresponding
`to the eye’s pupil, with two adjacent peaks of lesser intensity indicating the
`discontinuity represented by the cornea. Id.
`3. Analysis
` A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`
`
`
`21
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`nonobviousness.7 Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
` Petitioner alleges, and we agree, that Eriksson teaches a process of
`detecting a features of an eye by acquiring an image of a person’s face
`comprised of pixels.8 Pet. 29–30 (citing Ex. 1005, 314–316; Ex. 1002
`¶¶ 85–87). Petitioner contends, and we agree, that Eriksson teaches the step
`of “identifying a character of the face other than the feature to be detected”
`recited as element 39[b], its teaching of the identification of the edges of the
`face and the vertical location of the eyes. Id. at 31–32 (citing Ex. 1005 at
`315–316; Ex. 1002 ¶¶ 89–92).
` Petitioner asserts, and we agree, that Stringa teaches element 39[c] by
`its use of the eye-connecting line, the face sides, and the nose axis for
`identification of the expectation zone for eyes. Pet. 34–35 (citing Ex. 1006,
`370, 376–379, Ex. 1002 ¶ 98). Stringa characterizes its approach as the use
`of an anthropomorphic model: “an algorithm is used based on the
`exploitation of (a priori) anthropometric information combined with the
`analysis of suitable grey-level distributions, allowing direct localization of
`the eyes.” Id. at 35 (citing Ex. 1006, 369).
` Petitioner contends, and we agree, that Eriksson teaches the step of
`pixel selection of the feature by selecting pixels from a portion of the image
`identified using the symmetry histogram and the gradient histogram
`
`7 Patent Owner does not argue on the record that there are objective indicia
`of nonobviousness.
`8 The Decision on Institution considered Eriksson’s teachings for the all the
`elements of claim 39, except for element 39[c]. Dec. 13–14. Here, we
`similarly consider the prior art, and in light of the determination that the
`evidence is sufficient to demonstrate the teachings of claim 39, as discussed
`below, we need not reach other of Petitioner alternative assertions.
`
`
`
`22
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`(element 39[d]). Pet. 36. For instance, Eriksson teaches selection of pixels
`from the portion of the image identified using the symmetry histogram,
`where it searches for areas within the portion of the symmetry histogram that
`have “intensity valleys” using a “raster-scan algorithm” and information
`from the gradient histogram. Id. (citing Ex. 1002 ¶ 100; Ex. 1005, 316). We
`agree with Petitioner’s argument that by searching for “intensity-valleys,”
`Eriksson uses the fact that pupils are generally darker and in an area more
`shadowed than the rest of the face. Id.; see also Ex. 1002 ¶ 101; Ex. 2003,
`156:13–157:4. Thus, Eriksson selects pixels based on whether they have the
`corresponding characteristic (darker) to the feature to be detected, i.e. the
`pupils. Id.
` Petitioner alleges, and we agree, that Eriksson teaches element 39[e]
`of “forming . . . a histogram of the selected pixels,” with analysis over time,
`to identify the characteristic of the feature, i.e. the pupil. Pet. 37–39 (citing
`Ex. 1002 ¶¶ 102, 103, 106, 108). Petitioner relies on Figure 5 of Eriksson’s
`teaching of the histogram formed. Id. at 37. Petitioner also alleges, and we
`agree, that Eriksson discloses analysis of the histogram and identification of,
`at least, a “pupil,” for the teaching of elements 39[f] and [g]. Id. at 38–40
`(citing Ex. 1005, 318; 1002 ¶¶ 106, 110).
` We agree with Petitioner that the combination of Eriksson and Stringa
`teaches every limitation of claim 39 and credit Dr. Hart’s supporting
`testimony, (Ex. 1002 ¶¶ 83, 85–87, 89–92, 98–99, 100–101, 103–104, 106–
`108), as it is consistent with the prior art disclosures.
` Petitioner asserts that a person of ordinary skill in the art would have
`been motivated to combine Eriksson and Stringa because both references are
`directed to similar systems that operate in a similar manner. Pet. 26.
`
`
`
`23
`
`
`
`IPR2017-01190
`Patent 6,717,518 B1
`
`Petitioner alleges that Stringa was cited by, and partially incorporated into,
`Eriksson, and therefore one of ordinary skill in the art would have known
`“that Stringa was a relevant and helpful reference in the field of facial
`recognition.” Id. at 28 (citing Ex. 1005, 315; Ex. 1002 ¶ 82). Petitio
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
