Paper No. 42
`Trials@uspto.gov
`571-272-7822 Entered: January 10, 2019
`
`
`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.
`____________
`
`IPR2017-01218
`Patent 8,983,134 B2
`____________
`
`
`
`Before JONI Y. CHANG, MIRIAM L. QUINN, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`McSHANE, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`

`

`IPR2017-01218
`Patent 8,983,134 B2
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`
`I.
`
`INTRODUCTION
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`Samsung Electronics Co., Ltd. and Samsung Electronics America,
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`Inc. (hereafter “Petitioner”) filed a Request for Rehearing (Paper 41, “Req.
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`Reh’g”) of the Final Written Decision entered in this case (Paper 40,
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`“Dec.”), in which we found that Petitioner had demonstrated by a
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`preponderance of the evidence that claim 3 of U.S. Patent No. 8,983,134 B2
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`(“the ’134 patent,” Ex. 1001) was unpatentable, and claims 4–6 of the
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`’134 patent had not been shown to be unpatentable. Dec. 45–46. In its
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`Request for Rehearing, Petitioner contends that (1) we misapprehended the
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`’134 patent claims and specification in requiring the steps of claim 4 be
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`completed within a single frame; (2) based on the alleged erroneous
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`interpretation of claim 4, we misapprehended that Gerhardt did not teach the
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`limitations of claim 4; and (3) we incorrectly concluded that the validity of
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`claims 5 and 6 need not be considered in view of Gerhardt and Bassman,
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`again in light of the alleged erroneous interpretation of claim 4. Req. Reh’g
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`1–8. For the reasons set forth below, Petitioner’s Request for Rehearing is
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`denied.
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`II. DISCUSSION
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`
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`A party requesting rehearing has the burden to show a decision should
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`be modified by specifically identifying all matters the party believes were
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`misapprehended or overlooked, and the place where each matter was
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`addressed previously in a motion, opposition, or a reply. 37 C.F.R.
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`§ 42.71(d).
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`
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`Petitioner alleges that we erroneously interpreted claim 4 by requiring
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`that its recitation of “successively increasing the size of a selected area until
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`the boundary of the target is found” must occur within a single frame. Req.
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`
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`2
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`

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`IPR2017-01218
`Patent 8,983,134 B2
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`Reh’g 3. Petitioner contends that, in reaching our conclusion, we
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`misinterpreted the claim language and specification. Id. More specifically,
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`Petitioner reargues that the Decision’s interpretation is inconsistent with the
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`’134 patent specification’s disclosure of adjusting the size of the “selected
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`area” or “tracking box” over multiple frames during the process depicted in
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`Figures 21–23 of the patent. Id. Petitioner avers that the Decision erred by
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`finding that the determination of target limits, or “lock-on” process, is
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`distinct from a tracking process. Id. (citing Dec. 29–30). Petitioner argues
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`that in light of the specification’s disclosure, the process of adjusting the
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`tracking box “on a frame-by-frame basis” occurs not only after the
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`boundaries of the target have been found, but also during the lock-on
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`process. Id. at 4–5 (citing Ex. 1001, 24:62–25:2).
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`
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`Petitioner also contends that the lock-on process occurs over at least
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`three frames, as shown in Figures 21–23, and for each of the figures, a new
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`histogram is created. Id. at 5. Petitioner argues that these figures “must
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`depict new frames” because the ’134 patent describes clearing the histogram
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`memory so a new one can be formed by setting the “init=1” signal between
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`frames. Id. at 5 (citing Ex. 1001, 17:55–62, 19:63–20:3). Although we
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`credited Patent Owner’s assertion that frame data could be stored and
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`reprocessed, Petitioner alleges that the Decision does not address that the
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`’134 patent does not disclose reprocessing a frame multiple times, or another
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`mechanism whereby the histogram memories may be cleared and reset
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`except by the end-of-frame “init=1” signal. Id. Additionally, Petitioner
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`asserts that claim 6, which depends from claim 4, is inconsistent with Patent
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`Owner’s assertion of “adding to” an existing histogram because the
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`histogram would not include the results of processing “only the pixels within
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`3
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`IPR2017-01218
`Patent 8,983,134 B2
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`the selected area” as claim 6 requires, because the histogram would also
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`include data from the previous selected area. Id. at 6.
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`
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`Petitioner further argues that Gerhardt discloses claim 4 if proper
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`claim construction is applied. Req. Reh’g 7. Petitioner avers that the
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`incorrect construction of claim 4 led to the failure to consider the validity of
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`claims 5 and 6 over Gerhardt and Bassman. Id. at 7–8.
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`
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`We are not persuaded that we misapprehended or overlooked any
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`issue in determining that Petitioner had not shown by a preponderance of the
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`evidence that claims 4–6 are unpatentable. As discussed in the Decision, we
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`did not find persuasive Petitioner’s arguments that Gerhardt teaches the
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`limitations of claim 4 because its teaching that incrementally increasing a
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`window size to detect a pupil blob requires the use of several frames.1 Dec.
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`30–32. We considered Petitioner’s contention that the use of several frames
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`was acceptable under claim 4, but we did not agree with Petitioner’s position
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`on this issue. Id. at 26–30. Independent claim 1, and claim 4 which depends
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`from claim 1, are reproduced below.
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`1. A process of tracking a target in an input signal implemented
`using a system comprising an image processing system, the
`input signal comprising a succession of frames, each frame
`comprising a succession of pixels, the target comprising pixels
`in one or more of a plurality of classes in one or more of a
`plurality of domains, the process performed by said system
`comprising, on a frame-by-frame basis:
`
`forming at least one histogram of the pixels in the one or
`more of a plurality of classes in the one or more of a
`plurality of domains, said at least one histogram referring
`to classes defining said target; and
`
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`1 The Final Written Decision also found that Gilbert and Hashima failed to
`teach or suggest the limitations of claim 4. See Dec. 43–44. Petitioner does
`not address these references in its Rehearing Request.
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`
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`4
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`IPR2017-01218
`Patent 8,983,134 B2
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`identifying the target 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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`4. The process according to claim 1, wherein forming the at
`least one histogram further comprises successively increasing
`the size of a selected area until the boundary of the target is
`found.
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`Ex. 1001, 26:36–50, 26:57–60 (emphasis added).
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`
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`We considered both the claim language and the specification in the
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`Decision and found that neither supported Petitioner’s positions. Dec. 28–
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`30. As discussed, we found that when claim 4 recites “forming the at least
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`one histogram,” this refers to one step of the process claimed in claim 1,
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`where the steps of the process are performed “on a frame-by-frame” basis.
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`See id. at 26, 28–29. In particular, claim 1 is to a process, with the process
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`having the steps of “forming histograms” and “identifying the target.” This
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`process is performed by the system “on a frame-by-frame basis”—that is,
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`the claimed steps are respectively performed on single frame. See id. at 28–
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`29. Claim 4 further limits the “forming histogram” step of claim 1, and as
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`part of that step on a single frame, the size of a selected area is “successively
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`increas[ed]” “until the boundary of the target is found.” Id. As discussed,
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`we determined that this construction is consistent with the specification,
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`which describes the successive increase of the size of the selected area to
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`find the boundary of the target in a single frame. See id. at 29–30 (citing Ex.
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`1001, 24:25–38).
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`
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`We find no support for Petitioner’s argument that Figures 21, 22, and
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`23 of the ’134 patent depict the use of at least three frames. Figures 21–23
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`of the ’134 patent are reproduced below.
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`5
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`IPR2017-01218
`Patent 8,983,134 B2
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`As addressed in the Decision, Petitioner’s reargument is based on the
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`contention that because there are new histograms created in Figures 21–23,
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`shown above, there must be new frames used because the patent describes
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`clearing the histogram memory between frames. See Dec. 30; Req. Reh’g 5
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`(citing Pet. Supp. Reply 3–4). We find no error or misapprehension in our
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`failing to find persuasive Petitioner’s argument that we should not adopt the
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`plain reading of the claim in light of the specification. Dec. 30. Petitioner
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`bootstraps its arguments. The referenced portions of the specification that
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`Petitioner bases its arguments upon state that “[b]etween frames, memory
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`100 is initiated, i.e., cleared of all memory, by setting init=l in multiplexors
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`102 and 104” and “[t]he histogram in each memory 100 . . . and the
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`memories 100 are cleared and units 112 are re-initialized for processing the
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`next frame.” Ex. 1001, 17:55–62, 19:63–20:3 (emphasis added). The
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`specification discloses clearing histogram data memories between frames,
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`however, the cited disclosures do not address the use of data before the next
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`IPR2017-01218
`Patent 8,983,134 B2
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`frame is taken and processed. As discussed in the Decision, the ’134 patent
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`allows for the storage of frame data in memory and the use of a matrix for
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`storage. Dec. 30 (citing Ex. 1001, 5:21–23, 13:8–30). In the portion of the
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`specification relating to increasing the size of an area of consideration to
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`find the edges of the target, it discloses “subsequent iterations” in forming
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`the respective histograms depicted in Figures 22 and 23, and the “iterations”
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`are disclosed to be increasing the size of the box with histogram formation.
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`See Ex. 1001, 24:25–42, 24:55–59, Figs. 22, 23. There is no disclosure that
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`additional frames are utilized in this process, and rather, as discussed in the
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`Decision, the specification alternatively supports that single frame data may
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`be stored in a matrix for the “iterations” of box size increases with histogram
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`formation. See Dec. 30–31.
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`
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`We are also not persuaded by Petitioner’s argument based on alleged
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`inconsistencies with claim 6, which depends from claim 5.2 Req. Reh’g 6.
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`Claim 6 recites that forming a histogram “further comprises setting the X
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`minima and maxima and Y minima and maxima as boundaries . . . such that
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`only pixels within the selected area will be processed by the image
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`processing system.” Ex. 1001, 26:65–27:3. Petitioner argues that if the
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`selected area is changed without clearing the histogram, the histogram would
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`not include only the pixels within the selected area because it would also
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`include data from a previous selected area. Req. Reh’g 6. Petitioner’s
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`argument, however, takes an overly limited view absent support in the
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`specification; Petitioner’s argument does not consider that processing a
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`2 Petitioner states that claim 6 depends from claim 4. Req. Reh’g. 6. Claim
`6 instead depends directly from claim 5, with claim 5 depending from claim
`4. See Ex. 1001, 26:57–27:3.
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`IPR2017-01218
`Patent 8,983,134 B2
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`histogram iteration may utilize different processing parameters which may
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`further limit data to be processed.
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`
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`Finally, Petitioner misconstrues the Decision’s statement that “[o]nly
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`in the process of tracking, not in the determination of target limits, is there a
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`suggestion [in the specification] of multiple frames.” Dec. 30. Petitioner
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`argues that the Decision acknowledges the use of multiple frames in
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`tracking, but that the Decision considers the lock-on and tracking processes
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`as distinct processes, which is alleged to be a misinterpretation. Req. Reh’g.
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`3 (citing Dec. 29–30). Petitioner then asserts that the Decision provides
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`support that adjusting the tracking box “on a frame-by-frame basis” applies
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`not only after the boundaries of the target have been found and locked onto,
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`but also during the lock-on process while the target’s boundaries are being
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`determined. Id. at 4.
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`
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`Petitioner’s argument that the Decision’s statements suggest that the
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`lock-on and tracking processes are distinct processes is misapplied to the
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`issue of the correct interpretation of claim 4. As discussed in the Decision
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`and further above, under the claim language and specification, histograms
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`are formed while successively increasing the size of a selected area until the
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`boundary of the target is found in a single frame. See Dec. 26–30. The use
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`of multiple frames as discussed in the Decision refers to repeating the
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`claimed process in a frame-by-frame3 manner over multiple frames for
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`3 The specification’s statement that “in the course of tracking a target, the
`tracking box will be enlarged and reduced as appropriate to maintain a track
`of the target, and is preferably adjusted on a frame by-frame basis,” is
`interpreted to mean that it is preferable that enlargement or reduction of
`tracking box should be performed on each and every individual respective
`frame. Ex. 1001, 24:66–25:2.
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`IPR2017-01218
`Patent 8,983,134 B2
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`tracking as a target, that is, “in the course of tracking.” See Dec. 28–30; see
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`also Ex. 1001, 24:62–25:2, 25:16–21. The specification not only supports
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`that the step of increasing the size of a selected area until the boundary of the
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`target is done on a single frame, but also that the steps of enlarging or
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`reducing a tracking box during tracking is done on a “frame-by-frame”
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`basis, that is, the respective step is performed on one frame at a time. See
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`Ex. 1001, 24:1–42, 24:65–25:2.
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`
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`Petitioner’s additional arguments regarding Gerhardt’s disclosure of
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`claim 4 and the validity of claims 5 and 6 are based on the assumption that
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`we incorrectly interpreted claim 4. Req. Reh’g 7–8. However, after
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`consideration of Petitioner’s arguments, we remain persuaded that we have
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`correctly interpreted claim 4, and that the evidence Petitioner provides is
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`insufficient to support that claims 4–6 are obvious over Gerhardt and
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`Bassman or over Gilbert, Gerhardt, and Hashima.
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`III. CONCLUSION
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`For the foregoing reasons, Petitioner has not demonstrated that we
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`misapprehended or overlooked any issue in our determination that Petitioner
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`failed to show by a preponderance of the evidence that claims 4–6 of the
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`’134 patent are unpatentable.
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`IV. ORDER
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`Accordingly, it is ORDERED that Petitioner’s Request for Rehearing
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`is denied.
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`IPR2017-01218
`Patent 8,983,134 B2
`
`
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`PETITIONER:
`
`John Kappos
`Nick Whilt
`Brian M. Cook
`Marc Pensabene
`Clarence Rowland
`O’MELVENY & MYERS LLP
`jkappos@omm.com
`nwhilt@omm.com
`bcook@omm.com
`mpensabene@omm.com
`crowland@omm.com
`
`
`PATENT OWNER:
`
`Chris J. Coulson
`Michael Zachary (pro hac vice)
`Lauren N. Robinson
`Craig Y. Allison
`BUNSOW DE MORY LLP
`ccoulson@bdiplaw.com
`mzachary@bdiplaw.com
`lrobinson@bdiplaw.com
`callison@bdiplaw.com
`
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`10
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