`
`
`
`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 SUPPLEMENTAL REPLY
`
`
`
`
`
`
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply
`
`
`TABLE OF CONTENTS
`
`
`Introduction ..................................................................................................... 1
`I.
`II. Argument ........................................................................................................ 1
`A.
`Proper Construction of the Claims ....................................................... 1
`B.
`The Asserted Grounds Render Claims 4-6 Obvious ............................ 6
`1.
`Claims 4-6 Are Obvious Over Gerhardt and Bassman .............. 6
`2.
`Claims 4-6 Are Obvious Over Gilbert, Gerhardt and
`Hashima ..................................................................................... 7
`III. Conclusion ...................................................................................................... 8
`
`
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`
`
`
`
`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 Supplemental 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
`Filed and
`served on
`03/30/2018
`
`Reserved
`Reserved
`Reserved
`Reserved
`Reserved
`Reserved
`Reserved
`Prosecution File History of U.S. Patent No.
`8,805,001
`
`Deposition of Alan C. Bovik in Case IPR2017-
`00353
`
`
`
`1013
`
`1014
`
`1015
`1016
`1017
`1018
`1019
`1020
`1021
`1022
`
`1023
`
`
`
`
`iii
`
`
`
`
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`I.
`INTRODUCTION
`This Supplemental Reply is submitted with the permission of the Board to
`
`address newly instituted claims 4-6. Paper 26 at 4-5. The Board originally did not
`
`institute review of claims 4-6 because it adopted, at least in part, Patent Owner’s
`
`implicit construction of the phrase “wherein forming the at least one histogram
`
`further comprises …” (appearing in each of claims 4-6, as well as claim 1) that
`
`improperly excludes actions taken before or after data is put in the histogram and
`
`excludes actions taken over multiple frames. This overly narrow construction is
`
`inconsistent with the claim language and incorrectly excludes disclosed
`
`embodiments. Claims 4-6, as properly construed, are invalid over the instituted
`
`grounds and Patent Owner’s own characterization of the prior art. And even under
`
`a narrower (and incorrect) construction argued by Patent Owner, the claims are
`
`rendered obvious under both instituted grounds.
`
`II. ARGUMENT
`A.
`Proper Construction of the Claims
`Patent Owner’s arguments regarding claims 4-5 hinge on its implicit
`
`construction of the claim language “wherein forming the at least one histogram
`
`further comprises …” to exclude (i) any actions taken before or after putting data
`
`in the histogram (creating the histogram), and (ii) any actions taken over multiple
`
`frames. Patent Owner is demonstrably wrong on both counts.
`
`1
`
`
`
`First, the claims do not exclude actions before or after putting data in
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`
`
`(creating) the histogram. The phrase “wherein forming the at least one histogram
`
`further comprises …” in claims 4-6 is identically found in independent claim 1
`
`upon which claims 4-6 depend and which was found invalid in IPR2017-00353.
`
`Construing this language from claim 1 in IPR2017-00353, the Board found:
`
`claim 1 does not preclude creating a histogram, and then determining
`X maxima and minima and Y maxima and minima of boundaries of the
`target from that histogram, from both being part of the ‘forming’ step.
`IPR2017-00353, Paper 37 at 13-14. The language of claims 4-6 is identical to that
`
`in claim 1 and, thus, similarly does not preclude actions taken after (or before)
`
`creating a histogram from being part of the “forming” step.
`
`Indeed, claim 6 recites:
`
`wherein forming the at least one histogram further comprises setting
`the X minima and maxima and Y minima and maxima as boundaries in
`X and Y histogram formation units such that only pixels within the
`selected area will be processed by the image processing system.
`The X and Y boundaries must be fixed before data is put into the histogram and
`
`cannot be set or adjusted while it is being created or it would not include only
`
`pixels in the selected area, as recited. Thus, the language “forming the at least one
`
`histogram further comprises …” must be construed in a manner consistent with
`
`claim 1 (and claims 4 and 5) such that it does not exclude setting X and Y
`
`boundaries before creating a histogram.
`
`2
`
`
`
`Second, Patent Owner’s argument that the claims must be limited to actions
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`
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`performed within a single frame and exclude actions taken over multiple frames is
`
`equally without merit. Looking, for example, at claims 4 and 6, the patent
`
`describes setting the X/Y minima and maxima and increasing the size of the
`
`selected area after a histogram is created and over
`
`multiple frames. The specification describes the
`
`process of successively increasing the size of a
`
`selected area with reference to Figures 21-23. The
`
`first histogram is created, as shown in Figure 21,
`
`using a selected area with boundaries XA, XB, YA, and YB. “The size of the area
`
`under consideration is then successively increased, preferably by a constant size K,
`
`so that in subsequent iterations, the pixels considered would be in the box
`
`bounded by XA-nK, XB+nK, YA-nK, YB-nK, where n is
`
`the number of the current iteration.” Ex. 1001 at
`
`24:29-34 (emphasis added). This is shown in
`
`Figure 22. “Referring to Fig. 22, when the area
`
`under consideration begins to cross the borders of target 218, the histograms 222
`
`and 224 for the x and y projections will begin to include pixels in which DP=1 (or
`
`any other selected criteria to detect the target edge).” Id. at 24:38-42.
`
`3
`
`
`
`The patent further describes that the size of the selected area is preferably
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`
`
`changed over multiple, successive frames. For example, “It will be appreciated
`
`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.” Ex. 1001 at 24:66-25:2 (emphasis added).
`
`The center of the selected area is similarly adjusted (claim 5) across multiple
`
`frames. As described in the patent, the selected area will “move with the target,”
`
`making clear that adjustments are made across multiple frames:
`
`It will be appreciated that as the target moves, the targeting box will
`move with the target, constantly adjusting the center of the targeting
`box based upon the movement of the target and enlarging and reducing
`the size of the targeting box.
`Id. at 25:16-19 (emphasis added). Further,
`
`
`After additional iterations, as shown in Fig. 23, it being understood
`that the center of the box bounding the area of consideration may have
`moved from the prior iteration, the box will be larger than the target . . .
`Id. at 24:55-58 (emphasis added). Thus, a histogram is created, a box size and/or
`
`center location are adjusted based on
`
`analyzing the histogram, a new histogram is
`
`created, the center location and/or size are
`
`again adjusted, a new histogram is created,
`
`and so on, successively.
`
`4
`
`
`
`The patent nowhere describes a process whereby the size of the selected area
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`
`
`is adjusted while a histogram is being created (i.e., simultaneous with data being
`
`placed in the histogram), and Patent Owner’s construction, which excludes
`
`adjusting the selected area’s size after a histogram is created and over multiple
`
`frames, is incorrect for excluding the only disclosed embodiments of this process.
`
`Indeed, limiting size adjustments to those occurring within a single image frame
`
`contradicts the patent’s teachings.
`
`In addition to teaching size adjustments that take place across multiple
`
`frames, as described above, the only mechanism described in the patent for
`
`clearing the histogram memories to allow a new histogram to be created operates
`
`between frames, i.e., there is no disclosed mechanism for creating and clearing
`
`multiple histograms within a single frame:
`
`Referring to FIG. 13, histogram forming portion 25a includes a memory
`100, which is preferably a conventional digital memory. In the case of
`histogram formation block 25 which forms a histogram of speed,
`memory 100 is sized to have addresses 0-7, each of which may store up
`to the number of pixels in an image. Between frames, memory 100 is
`initiated, i.e., cleared of all memory, by setting init=1 in multiplexors
`102 and 104.
`Ex. 1001 at 17:55-62 (emphasis added); see also id. at 19:63-20:2 (At the
`
`completion of the formation of the histogram in memory 100 at the end of each
`
`frame, . . . the memories 100 are cleared and units 112 are re-initialized for
`
`processing the next frame.)
`
`5
`
`
`
`Thus, the phrase “forming the at least one histogram further comprises …”
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`
`
`must be construed to include actions taken after (or before) data is placed in the
`
`histogram, as found in IPR2017-00353, and over multiple frames. Patent Owner’s
`
`narrow construction would exclude the only embodiments described or enabled in
`
`the specification.
`
`B.
`The Asserted Grounds Render Claims 4-6 Obvious
`Under the proper constructions discussed above, the grounds asserted in the
`
`petition render claims 4-6 obvious.
`
`1.
`
`Claims 4-6 Are Obvious Over Gerhardt and
`Bassman
`Gerhardt discloses claim 4 as set forth in the Petition at 51. Further, in its
`
`Institution Decision, the Board cited Patent Owner’s description of Gerhardt, in
`
`which Patent Owner admitted that Gerhardt adjusts the active window (selected
`
`area) “until the pupil blob is selected,” but only does so “over several frames …
`
`after histogram formation.” Paper 11 at 16 (citing P.O. Prelim. Resp. at 20). Thus
`
`Patent Owner admits that Gerhardt discloses claim 4 under the proper construction
`
`because it forms a histogram and then increases the size of the active window until
`
`the boundaries of the pupil blob (target) are found.
`
`Even if increasing the size of the selected area must occur within a single
`
`frame, Gerhardt discloses claim 4. For example, Gerhardt forms a brightness
`
`6
`
`
`
`
`histogram of an image frame and selects likely pupil (target) pixels based on
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`brightness. Ex. 1013 at 9:40-61; Fig. 5. The spatial region corresponding to the
`
`target is then successively enlarged using a region-growing method that adds
`
`adjacent pixels of the same color to the pixel blob until the spatial extent of the
`
`target has been found. Id. at 11:52-12:14. Thus, after a “single-pass scan” of the
`
`image frame, “the x and y coordinate maxima and minima for the pixels within the
`
`blob” (i.e., its boundaries) have been determined. Id. at 12:32-61; Fig. 10.
`
`Gerhardt and Bassman render claims 5 and 6 obvious for the reasons set
`
`forth in the Petition at 52-54.
`
`2.
`
`Claims 4-6 Are Obvious Over Gilbert,
`Gerhardt and Hashima
`Under the proper construction discussed above, claim 4 is rendered obvious
`
`by Gilbert, Gerhardt, and Hashima for the reasons set forth in the Petition at 73-75.
`
`Furthermore, in its institution decision, the Board noted Patent Owner’s admission
`
`that Hashima incrementally makes adjustments to the boundary size where “the
`
`adjustment is based on already-formed histograms . . . .” Paper 11 at 27 (quoting
`
`P.O. Prelim. Resp. at 34-35). In other words, to the extent claim 4 encompasses
`
`creating a histogram and then making adjustments to the size of the selected area,
`
`Patent Owner admits Hashima discloses this limitation.
`
`7
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`
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`Similarly, to the extent increasing the size of the selected area must be
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`
`
`completed within a single frame, Gerhardt discloses claim 4, as discussed above.
`
`Gilbert, Gerhardt, and Hashima render claims 5 and 6 obvious for the
`
`reasons set forth in the Petition at 76-79.
`
`III. CONCLUSION
`The Board should find claims 4-6 invalid as obvious in view of (1) Gerhardt
`
`and Bassman and (2) Gilbert, Gerhardt, and Hashima.
`
`Respectfully Submitted,
`
`
`/s/ Marc Pensabene
`Marc Pensabene (Reg. 37,416)
`
`
`
`
`
`8
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`
`
`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Supplemental Reply
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies pursuant to 37 C.F.R. § 42.6(e) and § 42.105 that
`
`
`
`
`
`on May 31, 2018, a true and correct copy of PETITIONER’S
`
`SUPPLEMENTAL REPLY was served via electronic mail on Counsel for the
`
`Patent Owner at the following address of record:
`
`Michael N. Zachary (pro hac vice)
`ANDREWS KURTH KENYON LLP
`1801 Page Mill Road, Suite 210
`Palo Alto, CA 94304
`MichaelZachary@AndrewsKurthKenyon.com
`
`Lauren N. Robinson (Reg. No. 74,404)
`BUNSOW DE MORY LLP
`701 El Camino Real
`Redwood City, CA 94063
`lrobinson@bdiplaw.com
`
`
`Christopher J. Coulson (Reg. No. 61,771
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004
`ChrisCoulson@AndrewsKurthKenyon.com
`
`Craig Y. Allison (Reg. No. 38,067)
`BUNSOW DE MORY LLP
`701 El Camino Real
`Redwood City, CA 94063
`callison@bdiplaw.com
`
`Respectfully submitted,
`
`/s/ Marc Pensabene .
`Marc Pensabene (Reg. No. 37,416)
`O’Melveny & Myers LLP
`Times Square Tower, 7 Times Square
`New York, NY 10036
`Telephone: (212) 326-2000
`
`Attorney for Petitioner
`
`
`9
`
`
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