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`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 TO PATENT OWNER’S
`SUPPLEMENTAL RESPONSE
`
`
`Paper No. 35
`
`
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply to PO’s Supplemental Response
`
`Claims 3-6 at issue in this IPR each depends from claim 1, which was
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`
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`already found invalid under Gilbert and Hashima in a Final Written Decision in
`
`IPR2017-00353. Under the construction of claim 1 adopted in that case,
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`Petitioner’s evidence here (including Gilbert and Hashima), demonstrating that
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`claims 3-6 are invalid, stands entirely unrebutted. Even if Patent Owner were to
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`convince the Board its prior construction of claim 1 was wrong, Petitioner has
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`shown claims 3-6 are obvious even under Patent Owner’s proposed construction.
`
`I.
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`CLAIMS 1 AND 4-6 DO NOT EXCLUDE STEPS
`PERFORMED AFTER HISTOGRAM CREATION
`In its Final Written Decision, the Board construed the phrase “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,” stating:
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`claim 1 does not preclude creating a histogram, and then determining
`X minima and maxima and Y minima and maxima of boundaries of the
`target from that histogram, from both being part of the “forming” step.
`IPR2017-00353, Paper 37 at 18 (emphasis added). The identical phrase, “wherein
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`forming the at least one histogram further comprises,” appears in dependent claims
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`4-6 and must be construed the same way, as fully supported by the specification.
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`Patent Owner’s attempt to unreasonably narrow the claims’ scope, on the
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`other hand, excludes the very embodiment Patent Owner relies on for support—
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`detecting and tracking a target by creating histograms of pixels with DP=1, as
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`1
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`
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply to PO’s Supplemental Response
`
`
`depicted in at least Figures 16-23. Pixels having DP=1 are those exhibiting
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`significant variation from frame to frame (Ex. 1001 at 10:56-61), thus indicating
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`the edges of a moving target. Figure 17 of this embodiment illustrates first
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`creating histograms of pixels with DP=1 and then using those histograms to
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`determine X and Y minima and maxima of the target, consistent with the Board’s
`
`and Petitioner’s construction of claim 1.
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`Because Patent Owner’s proposed construction would exclude the process
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`depicted in Figure 17, it is forced to take the unreasonable position that Figure 17
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`is a separate embodiment from Figures 20-23, and that Figure 17 does not embody
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`claim 1 while Figures 20-23 do. Paper 34 at 2-3. This is not so. Figures 17 and
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`20-23 all present aspects of the same embodiment of target tracking using
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`histograms of pixels with DP=1. For example:
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`[T]he system of the invention is set to identify only pixels with DP=1,
`and to form a histogram of these pixels … This is illustrated in Fig. 17.
`Ex. 1001 at 22:48-55 (emphasis added). Further:
`
`“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.”
`Id. at 24:38-41 (emphasis added); see also id. at 24:1-29, 54-59. Patent Owner’s
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`construction, excluding the DP=1 embodiment, cannot be correct.
`
`2
`
`
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply to PO’s Supplemental Response
`
`Further, Patent Owner’s assertion that the steps recited in claims 1 and 4-6
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`
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`must be completed while the histogram is being calculated (Paper 34 at 3)
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`contradicts claims 4 (“successively increasing the size of a selected area”) and 6
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`(setting X and Y so “that only pixels within the selected area will be processed”).
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`Indeed, if the selected area were changing while the histogram was being
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`calculated, claim 6 would be inoperable.
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`Patent Owner invents an undisclosed embodiment to try to fix this problem,
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`alleging that a histogram formed using a small selected area might be added to in
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`the next iteration using a larger selected area. Paper 34 at 3-4. But the patent
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`nowhere describes such a process of adding to an existing histogram and, in fact,
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`contradicts it. First, the patent’s system receives and processes data from a video
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`camera as a succession of horizontal scanned lines each comprising a succession of
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`pixels making up an image frame. Ex. 1001 at 9:23-41. Once the scan has
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`completed a frame, for example, there is no way disclosed in the patent to go back
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`and rescan the same frame but exclude those pixels already included in the
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`histogram by the previously used smaller selected area box. Second, the patent
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`teaches that when the last horizontal scan line is processed and the end of the frame
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`is reached, the histogram memory is cleared and re-initialized before processing
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`the next set of pixels. Id. at 17:60-62, 19:63-20:2. Thus, Patent Owner’s attempt
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`to reconcile claims 1, 4, and 6 under its already rejected construction requires an
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`3
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`
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply to PO’s Supplemental Response
`
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`imaginary embodiment inconsistent with what is described in the patent. Patent
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`Owner’s overly narrow construction is incorrect.
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`II.
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`PATENT OWNER’S PROSECUTION HISTORY
`ARGUMENT WAS ALREADY REJECTED
`The Board considered and rejected Patent Owner’s prosecution history
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`argument in the Final Written Decision in IPR2017-00353, concluding that Patent
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`Owner had not pointed to “any disavowal of claim scope or any other statement in
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`the prosecution history that clearly limits claim 1 to a particular embodiment in the
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`specification.” IPR2017-00353, Paper 37 at 17. Indeed, Patent Owner merely
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`speculates about what the examiner might have thought the claim scope to be,
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`based on a “pattern of rejections and allowances” over different prior art applied
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`to different claims of a different application. Paper 34 at 7. Regardless, it is the
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`patentee’s statements during prosecution, and not the examiner’s, that might limit
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`claim scope, and even then, only when there is clear disclaimer. “An ambiguous
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`disclaimer . . . does not advance the patent's notice function or justify public
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`reliance, and the court will not use it to limit a claim term's ordinary meaning.”
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`Sandisk Corp. v. Memorex Prods., 415 F.3d 1278, 1287 (Fed. Cir. 2005).
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`Thus, the rejection of Patent Owner’s construction in the Final Written
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`Decision of IPR2017-00353 should be maintained and claims 3-6 found
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`unpatentable under Petitioner’s unrebutted evidence.
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`4
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`
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply to PO’s Supplemental Response
`
`Respectfully Submitted,
`
`
`
`/s/ Nicholas Whilt
`Nicholas Whilt (Reg. 72,081)
`
`
`
`5
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`
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`IPR2017-01218 (U.S. 8,983,134)
`Petitioner’s Reply to PO’s Supplemental Response
`
`CERTIFICATE OF SERVICE
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`The undersigned certifies pursuant to 37 C.F.R. § 42.6(e) and § 42.105 that
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`
`
`
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`on June 22, 2018, a true and correct copy of PETITIONER’S REPLY TO
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`PATENT OWNER’S SUPPLEMENTAL RESPONSE was served via electronic
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`mail on Counsel for the Patent Owner at the following address of record:
`
`Michael N. Zachary (pro hac vice)
`Bunsow De Mory LLP
`701 El Camino Real
`Redwood City, CA 94063
`Telephone: 650-351-7248
`Facsimile: 415-426-4744
`mzachary@bdiplaw.com com
`
`Lauren N. Robinson (Reg. No. 74,404)
`BUNSOW DE MORY LLP
`701 El Camino Real
`Redwood City, CA 94063
`lrobinson@bdiplaw.com
`
`
`Chris J. Coulson Registration No. 61,771
`Bunsow De Mory LLP
`101 Brambach Rd.
`Scarsdale, NY 10583
`Telephone: 646-502-6973
` Facsimile: 415-426-4744
`ccoulson@bdiplaw.com
`
`Craig Y. Allison (Reg. No. 38,067)
`BUNSOW DE MORY LLP
`701 El Camino Real
`Redwood City, CA 94063
`callison@bdiplaw.com
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`Respectfully submitted,
`
`/s/ Nicholas Whilt .
`Nicholas Whilt (Reg. No. 72,081)
`O’Melveny & Myers LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
`Telephone: (213) 430-6000
`
`Attorney for Petitioner
`
`
`6
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`
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