`
`
`
`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
`
`
`PETITIONER’S REPLY
`
`
`
`
`
`

`

`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`TABLE OF CONTENTS
`
`B.
`
`
`Introduction ..................................................................................................... 1
`I.
`II. Argument ........................................................................................................ 2
`A.
`IPT’s Constructions Are Incorrect ....................................................... 2
`1.
`IPT’s Construction of “forming at least one
`histogram…said at least one histogram referring to
`classes defining said target” Is Incorrect (1[a]) ......................... 2
`IPT’s Construction of “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” Is Incorrect
`(1[a]) ........................................................................................... 7
`IPT’s Construction of “wherein forming the at least one
`histogram further comprises determining X minima and
`maxima and Y minima and maxima of boundaries of the
`target” Is Incorrect (1[c]) ........................................................... 8
`Claim 3 Is Obvious Over Gerhardt in View of Bassman
`(Ground A) ......................................................................................... 17
`1.
`Gerhardt and Bassman Each Discloses Element 1[a] .............. 17
`2.
`Gerhardt Discloses Element 1[c] ............................................. 19
`3.
`It Would Have Been Obvious To Combine Gerhardt and
`Bassman ................................................................................... 20
`Claim 3 Is Obvious Over Gilbert, Gerhardt, and Hashima
`(Ground B) ......................................................................................... 21
`1.
`Gilbert, Gerhardt, and Hashima Each Discloses Element
`1[a] ........................................................................................... 21
`Gilbert, Gerhardt, and Hashima Each Discloses Element
`1[c] ........................................................................................... 24
`It Would Have Been Obvious To Combine Gilbert,
`Gerhardt, and Hashima ............................................................ 29
`III. Conclusion .................................................................................................... 30
`Certification of Word Count ................................................................................... 31
`
`
`2.
`
`3.
`
`C.
`
`2.
`
`3.
`
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`

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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`
`
`
`
`Exhibit
`No.
`1001
`
`LIST OF EXHIBITS
`
`Description
`
`U.S. Patent No. 8,983,134 (“the ’134 patent”)
`
`1002
`
`Declaration of Dr. John C. Hart
`
`1003
`
`Curriculum Vitae for Dr. John C. Hart
`
`1004
`
`1005
`
`1006
`
`1007
`1008
`
`1009
`
`1010
`
`1011
`1012
`
`Prosecution File History of U.S. Patent No.
`8,983,134
`
`Alton L. Gilbert et al., A Real-Time Video Tracking
`System,
`PAMI-2 No. 1 IEEE Transactions on Pattern
`Analysis and
`Machine Intelligence 47 (Jan. 1980) (“Gilbert”)
`U.S. Patent 5,521,843 (“Hashima”)
`
`Reserved
`D. Trier, A. K. Jain and T. Taxt, “Feature
`Extraction Methods
`for Character Recognition-A Survey”, Pattern
`Recognition, vol.
`29, no. 4, 1996, pp. 641–662
`M. H. Glauberman, “Character recognition for
`business
`machines,” Electronics, vol. 29, pp. 132-136, Feb.
`1956
`Declaration of Gerard P. Grenier (authenticating
`Ex. 1005)
`
`Reserved
`Reserved
`
`ii
`
`Filing/Service
`Status
`Filed and
`served on
`03/31/2017
`Filed and
`served on
`03/31/2017
`Filed and
`served on
`03/31/2017
`Filed and
`served on
`03/31/2017
`Filed and
`served on
`03/31/2017
`
`Filed and
`served on
`03/31/2017
`
`Filed and
`served on
`03/31/2017
`
`Filed and
`served on
`03/31/2017
`
`Filed and
`served on
`03/31/2017
`
`
`
`

`

`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`U.S. Patent No. 5,481,622 to Gerhardt (“Gerhardt”) Filed and
`served on
`03/31/2017
`U.S. Patent No. 6,044,166 to Bassman (“Bassman”) Filed and
`served on
`03/31/2017
`
`
`
`
`
`
`
`Filed and
`served on
`03/31/2017
`
`Reserved
`Reserved
`Reserved
`Reserved
`Reserved
`Reserved
`Reserved
`Prosecution File History of U.S. Patent No.
`8,805,001
`
`
`
`1013
`
`1014
`
`1015
`1016
`1017
`1018
`1019
`1020
`1021
`1022
`
`
`
`
`iii
`
`

`

`
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`I.
`INTRODUCTION
`The Board instituted review of claim 3 of the ’134 Patent on two grounds:
`
`A) claim 3 is obvious over Gerhardt and Bassman; and B) claim 3 is obvious over
`
`Gilbert, Gerhardt, and Hashima. Institution Decision, 29.
`
`Regarding Ground A, Patent Owner Image Processing Technologies (“IPT”)
`
`does not in its Response dispute that Gerhardt and Bassman disclose elements
`
`1[pre], 1[b], or claim 3.1 IPT only challenges 1[a] and 1[c]. PO Resp., 53-56.
`
`That the combination of Gerhardt and Bassman discloses 1[pre], 1[b], and claim 3
`
`should therefore be deemed admitted. 37 CFR §42.23(a).
`
`Regarding Ground B, IPT similarly disputes only that Gilbert, Gerhardt, and
`
`Hashima disclose elements 1[a] and 1[c]. PO Resp., 2-3, 57-61; Ex. 2007, ¶45.
`
`That the combination of Gilbert, Gerhardt, and Hashima discloses 1[pre], 1[b], and
`
`claim 3 should therefore be deemed admitted. 37 CFR §42.23(a).
`
`As discussed below, IPT provides no argument that claim 3 is not rendered
`
`obvious under either Ground A or B under the proper constructions preliminarily
`
`adopted by the Board in its Institution Decision. Accordingly, to the extent IPT’s
`
`incorrect claim constructions are rejected, claim 3 is invalid. Furthermore, even
`
`under IPT’s constructions, claim 3 is invalid.
`
`
`1 Elements 1[pre], 1[a], 1[b], and 1[c] are defined in the Petition at 39, 41, 43, 45.
`
`1
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`II. ARGUMENT
`A.
`IPT’s Constructions Are Incorrect
`IPT disagrees with the Board’s constructions of three terms (as set forth in
`
`the Institution Decision for IPR2017-00353), but does not dispute the Board’s
`
`construction of the terms “class” and “domain.” PO Resp., 19-39. Petitioner
`
`likewise agrees that the Board’s constructions of those two terms should be applied
`
`in this Review. For the reasons below, IPT’s constructions of the three disputed
`
`terms are incorrect and should be rejected in favor of the Board’s constructions.
`
`1.
`
`IPT’s Construction of “forming at least one
`histogram…said at least one histogram
`referring to classes defining said target” Is
`Incorrect (1[a])
`It is not necessary for the Board to construe this term since, as discussed in
`
`Sections II.B.1 and II.C.1, Gerhardt and Bassman (Ground A) and Gilbert,
`
`Gerhardt, and Hashima (Ground B) each discloses this element under either
`
`construction.
`
`Nevertheless, IPT’s construction is incorrect. IPT seeks an overly narrow
`
`construction requiring that the claimed histogram include only pixels falling into
`
`classes that define the target. Although IPT’s construction uses the same language
`
`adopted by the District Court in the parallel litigation, IPT argues the term should
`
`further be construed as requiring that the claimed histogram include only pixels
`
`falling into classes that define the target. PO Resp., 28-31. But IPT admits that the
`
`2
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`

`

`
`District Court did not adopt this narrow construction and that IPT is now seeking
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`to insert the additional limitation that the histogram may not include pixels in
`
`classes that do not define the target. IPR2017-00353 (Paper 17) at 5-6.
`
`a.
`
`IPT’s Construction Is Inconsistent with the Claim
`Language
`The Board properly found that claim 1 “does not preclude the histogram
`
`from also including other pixels outside the target.” IPR2017-00353 (Paper 12) at
`
`19-20. Element 1[a] recites “forming at least one histogram…said at least one
`
`histogram referring to classes defining said target.”2 The language “referring to
`
`classes” suggests that the histogram must at least include pixels falling into classes
`
`defining the target. But it does not require that the histogram include no pixels
`
`except those falling into classes defining the target. Thus, contrary to IPT’s
`
`argument, the Board’s interpretation of claim 1 does not “read the requirement that
`
`the histogram refer to classes defining the target out of the claim.” PO Resp., 30.
`
`The histogram is only required to “refer” to classes defining the target, not to
`
`exclude pixels in classes other than those that define the target. Indeed, if IPT
`
`were correct that the histogram could only include pixels defining the target,
`
`element 1[b], which requires “identifying the target in said at least one histogram
`
`
`2 All emphasis added unless otherwise noted.
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`3
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`

`

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`itself,” would be superfluous because the entire histogram itself would be the
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`target; the target could not be identified in the histogram in such a case.
`
`In its response, IPT undermines its construction by conceding that the
`
`claimed histogram can contain pixels other than those in classes defining the target.
`
`IPT argues that “[i]f a target is being tracked by color, for example, it is likely that
`
`there may be some other background pixels that are the same or similar color” in
`
`the histogram. Id., 34. IPT further argues that in the “lock-on” embodiment the
`
`“edges of the target are defined by movement, but certainly other areas of the
`
`image also may be moving” and included in the histogram. Id., 35. IPT’s
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`description of the claims therefore demonstrates that its construction is incorrect.
`
`IPT argues the term “referring to” in element 1[a] must mean “consisting of”
`
`or “only” because other portions of claim 1 recite the open-ended term
`
`“comprising.” Id., 29. In doing so, IPT concedes its construction improperly
`
`rewrites element 1[a] to recite “histogram only referring to classes defining said
`
`target” or “histogram referring to consisting of classes defining said target.” This
`
`is not how the patentee drafted the claim. Perhaps recognizing its construction is
`
`untenable, IPT’s expert repeatedly refused at his deposition to answer whether
`
`IPT’s construction would require that only target pixels be included in the claimed
`
`histogram. Ex. 2012, 62:12-72:17.
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`4
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`b.
`
`IPT’s Construction Is Inconsistent with the
`Specification
`The specification does not support IPT’s overly narrow construction. For
`
`example, IPT’s own description of Figure 12 contradicts its construction. IPT
`
`argues the target in Figure 12 is defined by pixels with “significant speeds.” PO
`
`Resp., 37; IPR2017-00353 (Paper 17), 11 (“The target in Figure 12 is defined by,
`
`for example, ‘significant speeds’”). But Figure 12 (annotated below) shows that
`
`the histogram is formed both of pixels that fall within the class of significant
`
`speeds and pixels that do not fall within the class of significant speeds.
`
`
`
`The ’134 Patent states:
`
`FIG. 12 diagrammatically represents the envelopes of histograms 38
`and 39, respectively in x and y coordinates, for velocity data. In this
`example, xM and yM represent the x and y coordinates of the maxima of
`the two histograms 38 and 39, whereas la and lb for the x axis and lc
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`5
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`
`
`and ld for the y axis represent the limits of the range of significant or
`interesting speeds, la and lc being the longer limits and lb and ld being
`the upper limited of the significant portions of the histograms….
`The vertical lines La and Lb, of abscises la and lb and the horizontal lines
`Lc and Ld of ordinals lc and ld form a rectangle that surrounds the
`cross hatched area 40 of significant speeds (for all x and y directions).
`A few smaller areas 41 with longer speeds, exist close to the main
`area 40, and are typically ignored.
`’134 Patent, 21:25-42. Thus, the histogram includes both pixels falling within the
`
`class of “significant or interesting speeds” (within the red rectangle defined by la,
`
`lb, lc, and ld) and pixels outside of this class of “significant or interesting speeds”
`
`(regions shaded yellow) that define the target. Id., 25:31-33 (“referring to Fig. 12,
`
`the box surrounding the target may be established using la, lb, lc, and ld as the
`
`bounds of the box.”). IPT’s construction excludes this embodiment.
`
`While IPT focuses on Figure 17 that depicts forming histograms of pixels
`
`with DP=1 (PO Resp., 35-36), its expert took the contradictory position that Figure
`
`17 is not an implementation of claim 1. Ex. 2012, 50:2-51:22, 54:15-54:25. Thus,
`
`IPT’s construction cannot be reconciled with the specification and the Board’s
`
`interpretation in the Institution Decision should be maintained.
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`6
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`2.
`
`IPT’s Construction of “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” Is Incorrect (1[a])
`It is unnecessary for the Board to construe this term. As discussed below,
`
`each prior art ground discloses this element under both the Board’s preliminary
`
`construction and IPT’s construction. Sections II.B.1, II.C.1.
`
`Nevertheless, IPT’s construction is incorrect because it improperly rewrites
`
`“one or more” to mean “two or more.” PO Resp., 38. Not only did the Board
`
`reject IPT’s construction in the Institution Decision, the District Court in parallel
`
`litigation rejected IPT’s construction.3 Ex. 2001 at 43.
`
`Petitioner agrees with IPT that “plurality” means multiple. PO Resp., 38
`
`n.16. Thus, “pixels in the one or more of a plurality of classes” refers to pixels in
`
`at least one class of multiple classes. Likewise, “one or more of a plurality of
`
`domains” refers to at least one of multiple domains. But IPT seeks to rewrite the
`
`claim to require multiple pluralities of classes and multiple pluralities of domains,
`
`as if it recited “the pixels in the one or more of a plurality pluralities of classes in
`
`the one or more of a plurality pluralities of domains.” This is not how the patentee
`
`drafted the claim.
`
`
`3 IPT did not contest the Board’s construction in IPR2017-00353.
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`7
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`

`

`One of ordinary skill would understand that “one or more” objects refers to
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`
`
`either one object or more than one object—or, in other words, at least one object.
`
`This is supported by the claim language and the specification, which discloses
`
`“classifier 25b may be set to consider only data within a particular speed category
`
`or [multiple] categories, e.g., speed 1, speeds 3 or 5, speed 3-6, etc.” ’134 Patent,
`
`18:15-17. In other words, it can consider pixels in just one class (e.g., speed 1) or
`
`in more than one class (e.g., speed 1, speeds 3 or 5). There is no basis for rewriting
`
`this phrase to mean at least two. Moreover, IPT’s construction excludes
`
`embodiments where, according to IPT, histograms are formed in a single class and
`
`domain. PO Resp., 35-36 (arguing Figure 17’s histograms are “formed only of
`
`pixels with DP=1”). Thus, IPT’s construction should be rejected and the Board’s
`
`interpretation in the Institution Decision should be maintained.
`
`3.
`
`IPT’s Construction of “wherein forming the at
`least one histogram further comprises
`determining X minima and maxima and Y
`minima and maxima of boundaries of the
`target” Is Incorrect (1[c])
`Whether “determining X minima and maxima and Y minima and maxima”
`
`is performed as part of calculating the histogram or as a step following histogram
`
`calculation is irrelevant to Ground B. Each of Gilbert and Hashima discloses this
`
`element, regardless of how this term is construed.
`
`8
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`

`

`Nevertheless, the Board properly observed in its Institution Decision that
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`claim 1 does not preclude “further analysis of data.” Institution Decision, 13;
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`IPR2017-00353 (Paper 12) at 20.
`
`a.
`The Specification Contradicts IPT’s Construction
`IPT incorrectly argues “forming the histogram” must “exclude actions taken
`
`after creating the histogram.” PO Resp., 23. This is inconsistent with the ’134
`
`Patent, which describes first forming a histogram and then analyzing the histogram
`
`to determine the target’s X and Y minima and maxima. For example, in Figure 17
`
`below, the shaded histograms are formed and then analyzed to determine the
`
`locations of the peaks 125a, 125b, 125c, and 125d to determine the target’s
`
`boundaries. ’134 Patent, 23:1-22.
`
`IPT concedes its construction excludes the embodiment in Figure 17, and
`
`summarily responds that a “claim need not encompass all disclosed embodiments.”
`
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`9
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`PO Resp., 26. But IPT fails to explain why element 1[c] should be construed to
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`exclude this embodiment. The cases IPT cites also undermine its position. For
`
`example, in TIP Sys., the rejected construction, although encompassing an
`
`alternative embodiment, would have led “to a nonsensical result,” “contradict[ed]
`
`the language of the claims,” and failed to comport with “[t]he most natural reading
`
`of the claim language.” 529 F.3d 1364, 1372-73 (Fed. Cir. 2008). None of these
`
`reasons is present here.
`
`While IPT concedes its construction excludes the embodiment in Figure 17,
`
`IPT argues its construction is consistent with the embodiment in Figures 20-23.
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`PO Resp., 25-26. Not so. Figures 20-23 are not a separate embodiment from
`
`Figure 17. The specification explains that Figure 17 shows a way to implement the
`
`embodiment in Figures 20-23. In describing Figures 20-23, the specification
`
`explains “the system may be set to track pixels with DP=1.” ’134 Patent, 24:13-
`
`22. The specification describes this process of tracking pixels with DP=1 with
`
`reference to Figure 17. Id., 22:44-59. Therefore, IPT’s construction also excludes
`
`the embodiment in Figures 20-23.
`
`IPT attempts to support its construction by incorrectly arguing that the
`
`embodiment in Figures 20-23 determines the X and Y minima and maxima of the
`
`target while it is forming a histogram. PO Resp., 8-9. IPT argues these minima
`
`and maxima values are stored in registers 112 named MIN and MAX in Figure 13
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`10
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`

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`(Id., 9), but those registers do not store the “X minima and maxima and Y minima
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`and maxima of boundaries of the target” as element 1[c] requires. The
`
`specification explains that those registers store the “minimum (MIN)
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`[and]…maximum (MAX) of the histogram.” ’134 Patent, 19:44-45. This is an
`
`important difference because, as illustrated in Figure 17 (annotated below), the X
`
`and Y minima and maxima “of the histogram[s]” (which are stored in the MIN
`
`and MAX registers IPT identifies) are the coordinates of the ends of histograms
`
`124x and 125y (identified in red below). Id., 22:55-67. By contrast, the X and Y
`
`minima and maxima “of the boundaries of the target” (as element 1[c] requires)
`
`are the coordinates of the histograms’ peaks (125a, 125b, 125c, 125d) (identified in
`
`blue below). Id. As discussed above, the histogram is formed and then analyzed
`
`to determine the coordinates of those peaks. The specification therefore does not
`
`support IPT’s attempt to exclude from element 1[c] any analysis of the created
`
`histogram to determine the target’s X and Y minima and maxima.
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`11
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`
`
`
`IPT’s construction is inconsistent with dependent claims. Claim 4, which
`
`depends from claim 1, recites “wherein forming the at least one histogram further
`
`comprises successively increasing the size of a selected area…,” expressly
`
`demonstrating that the “forming the at least one histogram” language requires
`
`additional steps that occur after histogram creation. This process is described with
`
`reference to Figures 21-23, noting that adjustments are made based on content of
`
`already-created histograms:
`
`Prior to further enlarging the area under consideration, the center of the
`area under consideration, which until this point has been the pixel
`selected by the user, will be adjusted based on the content of
`histograms 222 and 224.
`’134 Patent, 24:42-46.
`
`
`
`IPT’s expert attempted to reconcile IPT’s construction with Figures 21-23,
`
`arguing that claim 1’s histogram can only be the very last histogram formed, after
`
`12
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`

`
`all adjustment of the “area under consideration” has been completed. Ex. 2012,
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`25:13-27:5. In other words, IPT argues only the last histogram in the series of
`
`Figures 21-23 is the recited “at least one histogram” and, therefore, “wherein
`
`forming the at least one histogram further comprises determining X minima and
`
`maxima and Y minima and maxima” has happened as part of calculating the
`
`histogram and not as a subsequent step. But this explanation is contradicted by
`
`dependent claim 4, which recites “wherein the process of forming the at least one
`
`histogram further comprises successively increasing the size of a selected area
`
`until the boundary of the target is found.” The language “the at least one
`
`histogram” refers back to claim 1’s histogram and shows it cannot refer to only the
`
`last histogram of the series because claim 4 expressly recites successive steps that
`
`happen after its formation. Thus, “forming the at least one histogram further
`
`comprises…” cannot exclude steps performed after histogram creation, or claim 4
`
`would be inoperable. Claims 5 and 6 similarly introduce subsequent steps using
`
`the same language.
`
`
`
`In response, IPT argues claim 4 “may merely limits [sic] the scope to
`
`exclude, for example, successively decreasing the size of the selected area.” PO
`
`Resp., 28. But IPT misapplies the doctrine of claim differentiation by not giving
`
`the same meaning to “wherein forming the at least one histogram” in the dependent
`
`13
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`claims as in element 1[c]. Thus, the claim language and specification demonstrate
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`that IPT’s construction is wrong.
`
`b.
`
`The Prosecution History Does Not Support IPT’s
`Construction
`IPT mischaracterizes the ’134 prosecution in arguing that, if the Board’s
`
`construction were correct, the examiner would not have allowed claim 1 to issue
`
`over the Hunke reference. Id., 21-22. During prosecution, the examiner relied on
`
`Hunke to reject certain claims, but indicated that proposed dependent claim 19
`
`(which included the minima/maxima limitation) would be allowable if rewritten in
`
`independent form. Ex. 1004 at 146. However, the examiner never suggested that
`
`Hunke discloses determining the X and Y minima and maxima of boundaries of
`
`the target, using a histogram or otherwise. Id., 139-47. Thus, the examiner never
`
`indicated that element 1[c] excludes actions taken after histogram creation. Id.; PO
`
`Resp., 23.
`
`IPT’s analysis of Hunke confirms that the examiner would have had no
`
`reason to interpret element 1[c] to exclude actions taken after histogram creation in
`
`allowing claim 1. While IPT cites Hunke’s disclosure of a “virtual camera box,”
`
`this does not identify the X and Y minima and maxima of boundaries of the target
`
`because a “border” separates the target from the box’s edges. Ex. 2005, 6:63-7:8;
`
`see id., Figure 1, 5:28-35, 7:30-33. IPT also refers to Hunke’s “object analysis,”
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`14
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`but the cited section relates to a separate binary matrix that only includes the target
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
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`and does not provide X and Y minima and maxima. Id., 14:10-19, 13:6-15.
`
`Therefore, the ’001 prosecution does not support IPT’s construction.
`
`IPT incorrectly argues the Board’s construction is inconsistent with the
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`related ’001 prosecution. PO Resp., 14-17, 22-23. Initially, while element 1[c]
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`recites “wherein forming the at least one histogram further comprises
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`determining X minima and maxima and Y minima and maxima of boundaries of
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`the target,” IPT focuses on a different claim element in the ’001 prosecution
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`history that recites “wherein identifying the target in said at least one histogram
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`further comprises determining a center of the target to be between X and Y
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`minima and maxima of the target.” There is no reason this limitation in the ’001
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`prosecution would be relevant to the construction of element 1[c].
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`IPT also incorrectly argues the ’001 Patent examiner’s rejection based on the
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`Grove reference “shows that the Examiner interpreted ‘wherein identifying the
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`target in said…histogram…comprises determining a center’ to require that
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`determining the center take place as part of the step of identifying the target in the
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`histogram.” PO Resp., 17 (emphasis original). The examiner never suggested
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`such an interpretation (Ex. 1022 at 62-70). The examiner simply stated that a
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`proposed dependent claim including this limitation (claim 58) would be allowable
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`if rewritten in independent form. Id., 69. In any case, such an interpretation of
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`Grove is unsupported. Grove teaches “calculating the centroid and spatial extent
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`Petitioner’s Reply
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`of all those pixels within it that have non-zero probabilities of being non-
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`background” as a separate algorithm having nothing to do with identifying the
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`target from a histogram. Ex. 2006 at 2. Grove teaches using this algorithm only
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`when the histogram is not thought to represent the target. Id. Thus, the ’001
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`prosecution does not support IPT’s construction.
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`c.
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`IPT’s Intrinsic and Extrinsic Evidence Contradicts
`its Position
`IPT cites the specification, its expert, and a dictionary to assert that a POSA
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`would “understand that forming a histogram is the same as creating the histogram.”
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`PO Resp., 23-26. But this actually contradicts IPT’s construction because IPT
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`argues that “forming a histogram” must subsume both creating the histogram and
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`determining X and Y minima and maxima in a single step. In addition, none of
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`IPT’s cited evidence supports the idea that “forming” is a single-step combination
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`of “creating” and “determining X and Y minima and maxima.”
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`IPT incorrectly argues the Board’s construction eliminates “wherein forming
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`the at least one histogram further comprises” from element 1[c]. Id., 24. As the
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`Board explained, “claim 1 does not preclude creating a histogram, and then
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`determining X minima and maxima and Y minima and maxima of boundaries of
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`the target from that histogram, from both being part of the ‘forming’ step.”
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`IPR2017-00353 (Paper 12) at 20. Thus, the Board explained that its construction
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`Petitioner’s Reply
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`does not eliminate this claim language because the X and Y minima and maxima
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`are determined from the histogram. Id., 20-21.
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`B. Claim 3 Is Obvious Over Gerhardt in View of
`Bassman (Ground A)
`IPT does not dispute that elements 1[pre], 1[b], or claim 3 are disclosed by
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`Gerhardt and Bassman, but challenges only 1[a] and 1[c] under IPT’s
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`constructions. PO Resp., 53-56.
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`1. Gerhardt and Bassman Each Discloses Element
`1[a]
`Gerhardt and Bassman each discloses element 1[a] under all proposed
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`constructions.
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`Element 1[a] Disclosed Under Proper
`Construction
`Under the Board’s construction in the Institution Decision, Gerhardt and
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`a.
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`Bassman each discloses element 1[a] for the reasons given in Petitioner’s opening
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`documents and the Institution Decision. Petition, 41-43; Ex. 1002 ¶¶107-11;
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`Institution Decision, 10-14. IPT presents no rebuttal under this construction.
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`Element 1[a] Disclosed Under IPT’s
`Improper Construction
`IPT argues that neither Gerhardt nor Bassman discloses element 1[a] based
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`b.
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`on its construction that the histogram may include only pixels in classes defining
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`the target. PO Resp., 54. Specifically, IPT argues that neither reference discloses
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`Petitioner’s Reply
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`“the formation of a histogram limited to pixels in a subset of intensity values,
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`spatial values or any other values in classes defining the target.” Id. But Gerhardt
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`discloses embodiments where it selects only pixels falling within “a portion of the
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`full pixel image (say, a 320x240 or 220x160 pixel subset)” (i.e., a subset of spatial
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`values). Ex. 1013, 21:1-18. Although IPT argues “a mere window or rectangle
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`does not satisfy the claim” because it does not “define[] the target,” it provides no
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`support for this proposition. PO Resp., 54, n.18. Indeed, in Gerhardt, this window
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`is defining the target: “By keeping a running average of the centroid location for
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`previously-selected pupil blobs, an active image region can be examined that is
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`centered about the running average centroid location.” Ex. 1013, 21:8-11.
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`Similarly, Bassman “compute[s] a histogram of the image intensity values
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`within the integration window” (i.e., a subset of spatial values). Ex. 1014, 6:60-
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`7:17. As an example, the integration window may be “all image pixels on column
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`x that are within the delineated lane bounds.” Id., 6:29-32. In this example, a
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`vehicle is defined, in part, by being present in a specified lane and the histogram is
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`formed only of those defining pixels. Id., 6:10-35. The fact that non-target pixels
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`may also be defined by the spatial values of the lane is no different (other than in
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`the choice of restrictive domain) than IPT’s example from the ’134 Patent of
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`meeting element 1[a] under its construction. PO Resp., 28-294 (arguing “it is likely
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`Petitioner’s Reply
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`that there will be movement in other parts of the image that are not the target” and
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`these pixels would also be accumulated in the histogram).
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`Gerhardt and Bassman also each discloses histograms formed in two or more
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`classes that are in two or more domains, as IPT’s construction requires. In each
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`case, the histograms are formed according to the x-axis, y-axis, and intensity
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`domains, with their respective classes. Ex. 1013, 21:1-18 (creating an intensity
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`histogram in an x-, y- restricted space); Ex. 1014, 6:60-7:17 (computing an
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`intensity histogram within an x-, y- restricted integration window). The ’134
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`Patent even discloses these as possible domains. ’134 Patent, 4:5-9.
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`2. Gerhardt Discloses Element 1[c]
`Under the Board’s construction in the Institution Decision, Gerhardt
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`discloses element 1[c] for the reasons given in Petitioner’s opening documents and
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`the Institution Decision.5 Petition, 45-46; Ex. 1002, ¶116; Institution Decision, 10-
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`14. IPT presents no rebuttal under this construction.
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`4 This reasoning is also applicable to Gerhardt.
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`5 Contrary to IPT’s argument, Gerhardt is not comparable to Hunke. In Gerhardt,
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`the target’s maximum and minimum X and Y values are determined (Ex. 1013,
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`12:32-61, while in Hunke they are not (Section II.A.3.b).
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`Petitioner’s Reply
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`3.
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`It Would Have Been Obvious To Combine
`Gerhardt and Bassman
`To the extent necessary, it would have been obvious to combine Gerhardt
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`and Bassman for the reasons discussed in Petitioner’s opening papers.6 Petition,
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`37-39. Relying entirely on attorney argument, IPT incorrectly argues Gerhardt and
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`Bassman cannot be combined because Gerhardt itself “already includes
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`mechanisms for improving pupil tracking” in response to certain perceived
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`shortcomings. PO Resp., 64-65. Just because Gerhardt provides one solution does
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`not mean a POSA would not be motivated to seek out an additional or better
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`solution, such as Bassman’s linking process. Ex. 1014, 6:60-7:17; Ex. 1002, ¶100.
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`Similarly, a POSA would have recogniz