`
`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 IPR2017-01218
`Patent No. 8,983,134
`____________________
`
`IMAGE PROCESSING TECHNOLOGIES LLC’S
`PATENT OWNER RESPONSE PURSUANT TO 37 C.F.R. § 42.120
`
`
`
`
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`Introduction ...................................................................................................... 1
`
`Constitutionality of Inter Partes Review ........................................................ 3
`
`III. Overview of the ’134 Patent ............................................................................ 4
`
`IV. Person of Ordinary Skill in the Art ................................................................ 14
`
`V.
`
`Prosecution History ....................................................................................... 14
`
`A.
`
`B.
`
`The ’001 Patent ................................................................................... 14
`
`The ’134 patent .................................................................................... 18
`
`VI. Claim Construction ........................................................................................ 19
`
`A.
`
`[1c] “wherein forming the at least one histogram further comprises
`determining X minima and maxima and Y minima and maxima of
`boundaries of the target.” .................................................................... 20
`
`1. The Board’s Preliminary Construction Would Conflict with the
`’134 Patent Prosecution History. .................................................. 21
`
`2. Patent Owner’s Proposed Construction is Consistent with the
`Plain Meaning of the Claim and the Patent Specification. ........... 23
`
`3. There is No Requirement that the Scope of the Claim Encompass
`All Embodiments Taught in the Patent. ........................................ 26
`
`4. The Board’s Preliminary Construction Would Conflict with
`Principles of Claim Differentiation. .............................................. 27
`
`B.
`
`[1a] “forming at least one histogram . . . said at least one
`histogram referring to classes defining said target” ............................ 28
`
`1. “Comprising” Used Elsewhere in the Claim Does Not Expand
`the Scope of this Claim Element. .................................................. 31
`
`2. Other Claim Language Already Requires that the Target be
`Included in the Histogram. ............................................................ 33
`
`i
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`3. The Specification teaches limiting the data used to form
`histograms to data for pixels that meet classes that define the
`target, such as DP=1. .................................................................... 35
`
`C.
`
`[1a] “forming at least one histogram of the pixels in the one or
`more of a plurality of classes in the one or more of a plurality of
`domains” .............................................................................................. 38
`
`VII. The Asserted Prior Art ................................................................................... 39
`
`A. Gerhardt ............................................................................................... 39
`
`B.
`
`C.
`
`Bassman ............................................................................................... 41
`
`Gilbert .................................................................................................. 42
`
`D. Hashima ............................................................................................... 46
`
`VIII. Legal Standards ............................................................................................. 52
`
`IX. Claim 3 Is Not Obvious Over The Asserted Prior Art Combinations. .......... 53
`
`A. Gerhardt in View of Bassman Does Not Teach or Suggest All
`Elements of Claim 3. ........................................................................... 53
`
`1. The references do not teach or suggest element [1a] “forming at
`least one histogram . . . said at least one histogram referring to
`classes defining said target”. ......................................................... 53
`
`2. The references also do not teach or suggest element [1a]
`“forming at least one histogram of the pixels in the one or more
`of a plurality of classes in the one or more of a plurality of
`domains”. ...................................................................................... 55
`
`3. The references do not teach or suggest the claim element [1c]
`“forming the at least one histogram further comprises
`determining X minima and maxima and Y minima and maxima
`of boundaries of the target”. ......................................................... 55
`
`B.
`
`Gilbert in View of Gerhardt and Further in View of Hashima Does
`Not Teach or Suggest All the Elements of Claim 3. ........................... 57
`
`ii
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`1. The references do not teach or suggest the claim element [1c]
`“forming the at least one histogram further comprises
`determining X minima and maxima and Y minima and maxima
`of boundaries of the target”. ......................................................... 57
`
`2. The references do not teach or suggest [1a] “forming at least one
`histogram of the pixels in the one or more of a plurality of
`classes in the one or more of a plurality of domains”. ................. 61
`
`C.
`
`A POSA Would Not Have Selected and Combined the Asserted
`References to Reach Claim 3. ............................................................. 61
`
`1. A POSA Would Not Have Combined Gerhardt and Bassman ..... 64
`
`2. A POSA Would Not Have Combined Gilbert, Gerhardt and
`Hashima ........................................................................................ 69
`
`X.
`
`Conclusion ..................................................................................................... 72
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
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`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`TABLE OF AUTHORITIES
`
`Cases
`Apple Inc. v. Contentguard Holdings, Inc.,
` IPR2015-00442, Paper 9 (P.T.A.B. July 13, 2015) ............................................ 53
`
`Aylus Networks, Inc. v. Apple Inc.,
`No. 13-CV-04700-EMC, 2016 WL 270387 (N.D. Cal. Jan. 21, 2016), .............. 34
`
`Blackboard, Inc. v. Desire2Learn, Inc.,
` 574 F.3d 1371 (Fed. Cir. 2009) ........................................................................... 28
`
`Digital-Vending Servs. v. Univ. of Phoenix,
` 672 F.3d 1270 (Fed. Cir. 2012) ........................................................................... 27
`
`Dippin' Dots, Inc. v. Mosey,
`476 F.3d 1337 (Fed. Cir. 2007) ............................................................................ 32
`
`Genentech, Inc. v. Chiron Corp.,
` 112 F.3d 495 (Fed. Cir. 1997) ............................................................................. 33
`
`In re Magnum Oil Tools Int’l.,
` 829 F.3d 1364 (Fed. Cir. 2016) ........................................................................... 53
`
`In re NTP, Inc.,
` 654 F.3d 1279 (Fed. Cir. 2011) ........................................................................... 63
`
`In re Smith,
`871 F.3d 1375 (Fed. Cir. 2017) ..................................................................... 31, 36
`
`INVISTA v. M&G USA,
`951 F. Supp. 2d 604 (D. Del. 2013) ..................................................................... 26
`
`Liberty Ammunition, Inc. v. United States,
`835 F.3d 1388 (Fed. Cir. 2016) ............................................................................ 33
`
`Ortho-McNeil Pharm. v. Mylan Labs,
` 520 F.3d 1358 (Fed. Cir. 2008) ........................................................................... 63
`
`Phillips v AWH Corp.,
` 415 F.3d 1303 (Fed. Cir. 2005) ........................................................................... 54
`
`iv
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`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`Sebela Int'l Ltd. v. Actavis Labs. FL, Inc.,
`No. CV 17-4789-CCC-MF, 2017 WL 4782807 (D.N.J. Oct. 20, 2017 .............. 32
`
`Spectrum Int’l, Inc. v. Sterilite Corp.,
` 164 F.3d 1372 (Fed. Cir. 1998) ........................................................................... 33
`
`Tandon Corp. v. United States ITC,
` 831 F.2d 1017 (Fed. Cir. 1987) ........................................................................... 28
`
`TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc.,
`529 F.3d 1364 (Fed. Cir. 2008) ............................................................................ 26
`
`Toro Co. v. White Consol. Indus., Inc.,
` 199 F.3d 1295 (Fed. Cir. 1999) ........................................................................... 28
`
`Unigene Labs., Inc. v. Apotex, Inc.,
` 655 F.3d 1352 (Fed. Cir. 2011) ........................................................................... 54
`
`Statutes
`
`35 U.S.C. § 103 ........................................................................................................ 52
`
`
`
`
`
`
`v
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`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`TABLE OF EXHIBITS
`
`Exhibit
`
`Ex. 2001. ............
`
`Description
`Claim construction opinion in the Image
`Processing Technologies, LLC v. Samsung
`Elecs. Co., et al., No. 16-cv-00505-JRG
`(E.D. Tex.), dated June 21, 2017.
`Ex. 2002. ............ Webster’s New Universal Unabridged
`Dictionary (1996) (excerpt)
`Ex. 2003. ............ U.S. Patent. No. 8.805,001 (’001 Patent)
`Declaration of Michael N. Zachary in
`Support of Patent Owner’s Motion for
`Pro Hac Vice
`Ex. 2005. ............ U.S. Patent No. 5,912,980 (“Hunke”)
`Ex. 2006. ............ T.D. Grove & K.D. Baker, Colour
`Based Object Tracking (“Grove”)
`Ex. 2007. ............ Declaration of Dr. Alan Bovik
`(IPR2017-00353)
`Ex. 2008. ............ Random House Webster’s College
`Dictionary (1998)
`Ex. 2009. ............ The American Heritage College
`Dictionary (1997)
`Ex. 2010. ............ (not used)
`Ex. 2011. ............ Dec. 22 2017 Deposition Transcript,
`Dr. John Hart, IPR2017-01218, -01190
`Ex. 2012. ............ Dec. 15, 2017 Deposition Transcript,
`Dr. Alan Bovik, IPR2017-00353
`
`Ex. 2004. ............
`
`
`
`
`
`vi
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`Patent Owner Image Processing Technologies LLC (“Patent Owner”) hereby
`
`submits this Patent Owner’s Response to the Petition filed by Samsung Electronics
`
`Co., Ltd. and Samsung Electronics America, Inc. (collectively, “Petitioner”). On
`
`October 3, 2017, the Board instituted this inter partes review No. IPR2017-01218
`
`for only claim 3 of U.S. Patent No. 8,983,134 (the “’134 patent”) on only two
`
`grounds, i.e. whether claim 3 is unpatentable under 35 U.S.C. § 103 as obvious
`
`over:
`
`•
`
`•
`
`Ground 1: Gerhardt (Ex. 1013) in view of Bassman (Ex. 1014);
`
`Ground 2: Gilbert (Ex. 1005) in view of Gerhardt and further in
`
`view of Hashima (Ex. 1006).
`
`No other grounds were authorized for this inter partes review. Paper 11 at 29.
`
`I.
`
`INTRODUCTION
`
`Claim 3 is not obvious over the asserted prior art of either ground.
`
`The Board rendered preliminary claim interpretations for the purposes of
`
`institution of this review. The Board, however, did not have the benefit of a
`
`complete record, including the relevant prosecution history, in doing so. Under a
`
`claim construction based on the complete record, Patent Owner respectfully
`
`submits that the asserted reference combinations do not teach or suggest at least the
`
`following two limitations of independent claim 1 from which claim 3 depends:
`
`1
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`o
`
`[1c] “wherein forming the at least one histogram further
`
`comprises determining X minima and maxima and Y minima and
`
`maxima of boundaries of the target”.1 This limitation requires that
`
`the formation of the histogram determine the X and Y boundaries of
`
`the target. The Board’s preliminary analysis has concluded otherwise
`
`in instituting this inter partes review and also in instituting review no.
`
`IPR2017-00353 (Paper 12 at Page 20)2 for claim 1 (and its dependent
`
`claim 2). Patent Owner submits further arguments herein, however,
`
`including a discussion of the relevant prosecution history and
`
`additional portions of the specification showing that Patent Owner’s
`
`construction is correct. Petitioner has not shown that the cited prior
`
`art determines target boundaries as part of forming a histogram.
`
`Patent Owner’s proposed claim construction is therefore dispositive of
`
`this proceeding.
`
`o
`
`[1a] “forming at least one histogram of the pixels in the one or
`
`more of a plurality of classes . . . said at least one histogram
`
`
`1 Patent Owner follows the convention [1pre], [1a], [1b], [1c] used in the Petition.
`See Petition, 39–45.
`2 The Board incorporated portions of IPR2017-00353 Paper 12 in its Institution
`Decision (Paper 11) for this proceeding (IPR2017-01218). See Paper 11 at 22, 24.
`
`2
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`referring to classes defining said target”.3 This limitation requires
`
`that the at least one histogram must be formed of data from pixels that
`
`fall in classes that define the target. (See Section VI.B.) This
`
`requirement alone is dispositive of the first instituted ground, because
`
`Gerhardt in view of Bassman at most discloses intensity histograms
`
`formed of all pixels in an area. This does not teach or suggest limiting
`
`the data used to form the histogram based on classes that define the
`
`target.
`
`Claim 3 is also not obvious because a person of ordinary skill in the art at
`
`the time of the invention would not have selected and combined the references in
`
`the asserted manner to arrive at the subject matter of claim 3.
`
`The Board should find that claim 3 of the ’134 patent is not obvious over
`
`either of the two asserted prior art combinations.
`
`II. CONSTITUTIONALITY OF INTER PARTES REVIEW
`Patent Owner challenges the constitutionality of this proceeding for the
`
`reasons asserted in Oil States Energy Svcs. v. Greene’s Energy Group, No. 16-712
`
`(cert. granted June 12, 2017). Inter partes review proceedings violate the
`
`
`3 Patent Owner also asserts that the limitation requires that the histogram must be
`formed of pixels in two or more classes that are in two or more domains. (See
`Section VI.C).
`
`3
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`Constitution by extinguishing private property rights through a non-Article III
`
`forum without a jury.
`
`III. OVERVIEW OF THE ’134 PATENT
`The ’134 patent is directed to efficient, real-time identification and
`
`localization of a wide range of moving objects using histograms. E.g., Ex. 1001,
`
`1:35–39, 3:31–41. The inventor developed a system that can track a target object
`
`using multiple characteristics, such as velocity, direction, hue or saturation. E.g.,
`
`Ex. 1001, 25:22–34, 25:58–67. Tracking techniques known at the time of the
`
`invention of the ’134 patent were inadequate because, for example, they were
`
`memory intensive; were limited in terms of the information obtained about an
`
`object; could not provide information in real-time; used complex algorithms for
`
`computing object information; or were designed to detect only one type of object.
`
`E.g., Ex. 1001, 1:41–2:6, 2:41–3:14.
`
`The ’134 patent overcame the limitations of the prior art through novel
`
`techniques, including generating histograms using classifiers that enable only data
`
`from pixels meeting multiple selected classification criteria to be included in
`
`histograms; and tracking a target using histograms that are formed based on
`
`determined boundaries of the target. E.g., Ex. 1001, 18:11–14, 18:46–52, 21:48–
`
`22:3, 23:59–25:2 and Figs. 21–23.
`
`4
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`The patent teaches histogram units that form histograms of various
`
`properties associated with the pixels, for example: luminance; speed (V); oriented
`
`direction (D1); time constant (CO); hue; saturation; first axis (x(m)); and second
`
`axis (y(m)), e.g., Ex. 1001, 3:65–4:9. Figure 11 of the ’134 patent shows an
`
`example of a histogram processor 22a with multiple histogram formation blocks
`
`24–29. Ex. 1001, 16:54–60. Blocks for video signal parameters are shown on the
`
`top of Figure 11. Block 24 enables a histogram to be formed in the luminance
`
`domain. Id., 16:62–17:3. The domain for Block 25 is speed (V). Id., 17:4–10.
`
`The domain for Block 26 is oriented direction (DI) . Id., 17:11–18. The domain
`
`for Block 27 is time constant (CO). Id., 17:19–26.
`
`The domains for Blocks 28 and 29 are positions on the x-axis and y-axis,
`
`respectively. Id., 17:27–38, 18:53–58, 20:55–21:11. The histogram formation
`
`blocks and other components are interconnected by a bus 23. Id., 16:54–56.
`
`5
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`Ex. 1001, Fig. 11 (page 8, annotated)
`
`
`
`The histogram units form histograms that include only pixel values that fall
`
`within certain ranges. Figure 13, referring to histogram formation block 25 and
`
`validation unit 31 of Figure 11, shows a histogram formation block with a
`
`classifier 25b. The classifier has registers that permit classification criteria to be
`
`individually selected (such as only speed=2). Ex. 1001, 18:20–24.
`
`6
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`Ex. 1001, Fig. 13 (page 10, annotated)
`
`
`
`Classifiers may be set for multiple parameters at the same time, using the
`
`validation unit accompanies each histogram formation block of Figure 11. An
`
`example is speed of 2, a direction of 4, and a luminance of 125, Ex. 1001, 19:10–
`
`17, and speed of 2 and a direction of 4. Ex. 1001, 21:48–53. Classifier output is
`
`communicated to the validation units. Id., 18:42–48. Each validation unit
`
`generates a validation that determines if data for a pixel will be used. Id., 18:48–
`
`52.
`
`The ’134 patent teaches the use of histograms to track a target. The
`
`embodiment shown by Figure 17 and explained at, e.g., 22:55–23:34 finds the
`
`7
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`target by first forming histograms for pixels in certain classes, such as those with
`
`values of DP=1, 22:44–54, and then performing calculations to find the peaks of
`
`the completed histograms. Ex. 1001, 23:1–5; Ex. 2012, 47:7–22, 54:8–58:15.
`
`A more sophisticated lock-on tracking embodiment is taught in at 23:59–
`
`25:2 and shown at Figures 20–23. This is an embodiment of claim 1 of the ’134
`
`patent, including the formation of at least one histogram that includes determining
`
`X minima and maxima and X minima and maxima boundaries of the target. Ex.
`
`2012, 14:18–15:25, 31:9–32:1, 34:9–35:24. The lock-on tracking process forms
`
`histograms for pixels in certain classes, such as DP=1. Ex. 1001, 24:38–42; Ex.
`
`2012, 24:22–27:15. The process forms X and Y histograms over an expanding
`
`area of interest while continually updating the histogram’s statistics Xmin, Xmax,
`
`Ymin, and Ymax. See Ex. 1001, 19:41–50 (“These [statistical] characteristics are
`
`determined in parallel with the formation of the histogram . . . .”); 24:46–51.
`
`8
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`
`Ex. 1001, Fig. 13 (with annotations in red).
`
`The lock-on process begins by the user selecting a spot on an object
`
`(Fig. 20). Id., 23:59–67. The pixel position is used as a starting point. The x and
`
`y histogram formation blocks attempt to form histograms of pixels in the bounded
`
`area (XA, XB, YA, YB), but if there are no pixels meeting the selected criteria (in
`
`this example, DP=1), no data can be added to the histograms at this point. Id.,
`
`24:25–29, Fig. 21.
`
`9
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`
`Ex. 1001, Fig. 21 (page 15, no edge pixels found yet).
`
`The size of the bounded area box is successively increased, and more pixels
`
`are successively processed by the histogram calculation units.4 Id., 24:29–34. At
`
`each increase, the area of interest is bounded by XA-nK, XB+nK, YA-nK, YB+nK (where
`
`n is the current iteration and K is a constant). Id., 24:29–38. As the area under
`
`consideration begins to cross the borders of the target, the x and y histograms will
`
`begin to include pixels which correspond to a target edge. Id., 24:38–42.
`
`Ex. 1001, Fig. 22 (page 15, annotated).
`
`
`
`
`4 Processing additional pixel data for an additional area of an image may continue
`formation of a histogram. See Ex. 2011 at 83:7–24.
`
`10
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`A target boundary is found when the area of interest extends beyond the
`
`MAX value of the X histogram, i.e. XB+nK>XMAX. As each target boundary is
`
`determined, the area of interest stops expanding in that direction. At that point, the
`
`center of the area under consideration is adjusted “based upon the content of
`
`histograms 222 and 224,” for example based on Xmin, Xmax, Ymin, and Ymax. Id.,
`
`24:42–54. The center is adjusted in order to account for situations in which the
`
`“initial starting position is neared to one edge of the target than to another.” Id.,
`
`24:51–54.
`
`Once all extrema are determined, “the entire target is bounded” and included
`
`within the histogram such that XA-nk<XMIN, XB+nK>XMAX, YA-nK<YMIN, and
`
`YB+nK>YMAX. Id., 24:55–59, Figure 23. At this point, histogram formation is
`
`complete.
`
`
`Ex. 1001, Fig. 23 (page 13, annotated)
`
`11
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`The diagrams below illustrate the lock-on tracking method, in which the area
`
`of interest (blue square) expands until all the boundaries of a target (red circle) are
`
`determined. At each stage, X and Y histogram calculation units will process all
`
`pixels within the blue square to calculate Xmin, Xmax, Ymin, and Ymax for comparison
`
`against the boundaries of the area of interest, i.e. XA-nK, XB+nK, YA-nK, and YB+nK.
`
`
`
`
`
`12
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`Step 1: A small area of interest (blue) is
`chosen within the target red circle. No edge
`(DP=1) pixels are processed yet. See Ex.
`2012, 13:25–16:12.
`
`
`
`Step 2: The area of interest increases. Some
`edge pixels are processed.
`XA+nK>XMAX and YA+nK>YMAX. Thus, the
`XMAX and YMAX of boundaries of the target
`have been determined.
`
`Step 3: The area of interest is increased and
`the center is moved, because two boundaries
`have already been determined (XMAX and
`YMAX). See Ex. 2012, 31:9–32:1.
`XA-nK=XMIN and YA-nK=YMIN, so the complete
`boundaries have not been determined yet.
`
`Step 4: The area of interest is increased and
`the center is moved. Ex. 2012, 32:18–33:11,
`35:3–36:2.
`XA-nK<XMIN and YA-nK<YMIN. All boundaries
`have been determined.
`
`13
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`IV. PERSON OF ORDINARY SKILL IN THE ART
`Patent Owner applies the level of ordinary skill in the art (or “POSA”) in
`
`1996 (the foreign priority date of the ’134 patent) adopted by the Board. Paper 11
`
`at 10 n.5.
`
`V.
`
`PROSECUTION HISTORY
`A. The ’001 Patent
`The ’134 patent is a continuation of U.S. Patent No. 8,805,001 (Ex. 2003).
`
`Ex. 1001, 1. The ’001 patent and the ’134 patent were both examined by the same
`
`U.S. Patent Office Examiner. Id.; Ex. 2003, 1. During prosecution of the ’001
`
`patent, the examiner simultaneously examined claims that recited:
`
`• “wherein forming the at least one histogram further comprises
`
`determining X minima and maxima and Y minima and maxima of
`
`boundaries of the target” (claim 56); and
`
`• “wherein identifying the target in said at least one histogram further
`
`comprises determining a center of the target to be between X and
`
`Y minima and maxima of the target” (claim 58).
`
`Ex. 1022, 126–127. The Examiner indicated that both claims would be allowable.
`
`Ex. 1022, 157.
`
`Applicant cancelled the claim 56, (Ex. 1022, 167), and continued to
`
`prosecute claims including claims 57 and 58:
`
`14
`
`

`

`IPR2017-01218 (’134 Patent) Patent Owner Response
`
`57. A process of tracking a target in an input signal
`implemented using a system comprising an image
`processing system,
`the
`input signal comprising a
`succession of
`frames, each
`frame comprising a
`succession of pixels, the target comprising pixels in one
`or more of a plurality of classes in one or more of a
`plurality of domains, the process performed by said
`system comprising, on a frame-by-frame basis:
`
`forming at least one histogram of the pixels in the one or
`more of a plurality of classes in the one or more of a
`plurality of domains, said at least one histogram referring
`to classes defining said target, and
`
`identifying the target in said at least one histogram itself.
`
`to claim 57, wherein
`58. The process according
`identifying the target in said at least one histogram
`further comprises determining a center of the target
`to be between X and Y minima and maxima of the
`target.
`
`Ex. 1022, 167 (emphasis added). The Examiner rejected amended claim 57 over a
`
`reference Hunke (Ex. 2005) combined with Grove (Ex. 2006). Ex. 1022, 197–99.
`
`The Examiner indicated that dependent claim 58 would be allowable if rewritten in
`
`independent form.
`
`
`
`Hunke describes a two-step process whereby target colors are found using a
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`histogram, and then afterwards the target is located using the identified colors.
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`Hunke describes identification of “typical” target colors for a specific target based
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`on a normalized color distribution. Figure 5 of Hunke, reproduced below, shows a
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`normalized color distribution. The horizontal and vertical axes of the two-
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`IPR2017-01218 (’134 Patent) Patent Owner Response
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`dimensional histogram are “R” (red) and G (green) in the RGB (red, green, blue)
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`color space. Box 76 shows the colors that are identified as target colors.
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`Ex. 2005, 5. Hunke tracks the object using a virtual camera box, and maintains
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`objet in the center of the virtual box and within the margins of the box. Ex. 2005,
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`5:28–35, 6:63–7:8, 7:30–33, and Fig. 1.
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`Excerpt of Hunke, Fig. 1 (showing one tracking module and virtual box)
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`In rejecting claim 57, the examiner acknowledged that Hunke only discloses
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`identifying of the target in the image computed based on the (already formed) color
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`histogram, rather than in the histogram itself. Ex. 1022, 198. The Examiner,
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`however, relied on Grove as teaching “color based object identification within the
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`IPR2017-01218 (’134 Patent) Patent Owner Response
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`histogram itself.” Id. Grove purports to describe “a system for tracking objects
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`based on their colour.” Ex. 2006, 3 (right column). For example, Figure 6 of
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`Grove shows:
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`Ex. 2006, 3.
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`
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`The examiner’s rejection provides valuable guidance in interpreting the
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`language of claim element [1c]. Regardless of the merits of the Examiner’s
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`rejection based on Grove, the rejection shows that the Examiner interpreted
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`“wherein identifying the target in said…histogram…comprises determining a
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`center” to require that determining the center take place as part of the step of
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`identifying the target in the histogram. Otherwise, the Examiner presumably could
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`have rejected dependent claim 58 on the exact same basis on which claim 57 was
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`rejected.
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`The applicant amended claim 57 to include the elements of claim 58, and the
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`resulting claim issued as claim 1 of the ’001 patent, which includes the limitation
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`“identifying the target in said at least one histogram itself, wherein identifying the
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`target in said at least one histogram further comprises determining a center of the
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`IPR2017-01218 (’134 Patent) Patent Owner Response
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`target to be between X and Y minima and maxima of the target.” Ex. 1022, 240,
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`243, 254; Ex. 2003, 28.
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`The ’134 patent
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`B.
`During prosecution of the ’134 patent, in a preliminary amendment,
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`applicant submitted claims including claim 14 and 19, which, after being combined
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`and amended, issued as claim 1:
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`14. (New) A process of tracking a target in an input
`signal implemented using a system comprising an image
`processing system,
`the
`input signal comprising a
`succession of
`frames, each
`frame comprising a
`succession of pixels, the target comprising pixels in one
`or more of a plurality of classes in one or more of a
`plurality of domains, the process performed by said
`system comprising, on a frame-by-frame basis:
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`forming at least one histogram of the pixels in the one or
`more of a plurality of classes in the one or more of a
`plurality of domains, said at least one histogram referring
`to classes defining said target, and identifying the target
`form said at least one histogram.
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`19. The process according to claim 52 [sic 14], wherein
`forming the at least one histogram further comprises
`determining X minima and maxima and Y minima and
`maxima of boundaries of the target.
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`Ex. 1004, 197–98. The Examiner rejected claim 14 under 35 U.S.C. § 102(e) over
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`Hunke. Ex. 1004, 142–43. The Examiner relied on the identification of target
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`colors from the normalized color distribution as anticipating the claim. Id. The
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`Examiner indicated that dependent claim 19 would be allowable over Hunke. Ex.
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`1014, 146, 198. In response, applicant amended claim 14:
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`IPR2017-01218 (’134 Patent) Patent Owner Response
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`forming at least one histogram of the pixels in the one or
`more of a plurality of classes in the one or more of a
`plurality of domains, said at least one histogram referring
`to classes defining said target[[,]]; and
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`identifying the target [[form]]in said at least one
`histogram itself,
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`wherein forming the at least one histogram further
`comprises determining X minima and maxima and Y
`minima and maxima of boundaries of the target.
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`Ex. 1004, 86, 89 (October 24, 2014 response). The examiner allowed the claim as
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`amended. Ex. 1004, 36.
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`VI. CLAIM CONSTRUCTION
`Patent Owner agrees that the Phillips standard applies. Paper 11 at 6.
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`The construction of each of the terms below is helpful to resolving
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`Samsung’s challenge to claim 1 because, when each term is given its proper scope,
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`it is apparent that Samsung’s argument is flawed. Samsung must identify the
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`specific histograms it alleges satisfies all the elements of the claim [1a], [1b], and
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`[1c]. For example, if Samsung wishes to rely on both the intensity and projection
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`histograms of Gilbert, see IPR2017-00353 Paper 22 (Petitioner Reply) at 15, 19
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`(referencing both histograms), each histogram must refer to classes defining the
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`target, and the target must be identified in each histogram. Under the proper scope
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`of each claim element, Samsung cannot make this showing for any specific
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`histograms. Samsung cannot avoid the need for claim construction by picking and
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`choosing among different histograms from the same or different references while
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`IPR2017-01218 (’134 Patent) Patent Owner Response
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`failing to explain how each histogram on which it chooses to rely satisfies all claim
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`elements.
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`A.
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`[1c] “wherein forming the at least one histogram further
`comprises determining X minima and maxima and Y minima and
`maxima of boundaries of the target.”
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`Patent Owner proposes that the plain meaning of the claim element “wherein
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`forming the at least one histogram further comprises determining X minima and
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`maxima and Y minima and maxima of boundaries of the target,” in light of the
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`specification and the prosecution history, requires that the formation of the
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`histogram itself determine the X and Y boundaries of the target. That is, a POSA
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`would understand that a later calculation to determine X and Y boundaries of the
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`target that is performed separately from and after formation of the histogram falls
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`outside of the plain meaning of the claim term. A POSA would reach this
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`conclusion based on the language of the claim in the context of the prosecution
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`history and specification. Ex. 2012, 136:2-138:24.
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`Although the Board’s preliminary conclusion was that “claim 1 does not
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`preclude creating a histogram, and then determining X minima and maxima and Y
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`minima and maxima of boundaries of the target from that histogram, from both
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`being part of the ‘