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`Paper No. 11
`Entered: October 3, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`SAMSUNG ELECTRONICS CO., LTD.; AND
`SAMSUNG ELECTRONICS AMERICA, INC.
`Petitioners
`
`v.
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`IMAGE PROCESSING TECHNOLOGIES, LLC
`Patent Owner
`____________
`
`IPR2017-01218
`Patent 8,983,134 B2
`____________
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`
`Before JONI Y. CHANG, MIRIAM L. QUINN, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`McSHANE, Administrative Patent Judge.
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`
`
`DECISION
`Instituting Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
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`571-272-7822
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`Paper No. 11
`Entered: October 3, 2017
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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.
`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
`Instituting Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
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`IPR2017-01218
`Patent 8,983,134 B2
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`I. INTRODUCTION
`A. Background
`Samsung Electronics Co., Ltd. and Samsung Electronics America,
`Inc. (“Petitioner”) filed a Petition requesting inter partes review of claims 3–
`6 (“the challenged claims”) of U.S. Patent No. 8,983,134 B2 (Ex. 1001, “the
`’134 patent”) pursuant to 35 U.S.C. §§ 311–319. Paper 2 (“Pet.”). Image
`Processing Technologies, LLC (“Patent Owner”) filed a Preliminary
`Response to the Petition. Paper 8 (“Prelim. Resp.”).
`We have authority under 35 U.S.C. § 314(a), which provides that an
`inter partes review may not be instituted “unless . . . the information
`presented in the petition . . . shows that there is a reasonable likelihood that
`the petitioner would prevail with respect to at least 1 of the claims
`challenged in the petition.” See 37 C.F.R. § 42.4(a) (“The Board institutes
`the trial on behalf of the Director.”).
`We determine that Petitioner has demonstrated that there is a
`reasonable likelihood that it would prevail with respect to at least one
`challenged claim. For the reasons described below, we institute an inter
`partes review of claim 3 of the ’134 patent.
`B. Related Proceedings
`The parties indicate that a related matter is: Image Processing
`
`Technologies LLC v. Samsung Elecs. Co., No. 2:16-cv-00505-JRG (E.D.
`Tex.). Pet. 1, Paper 5, 1. Petitioner also indicates that it previously filed
`Case IPR2017-00353 against other claims of the ’134 patent. Pet. 2, 5, 6. In
`Case IPR2017-00353, inter partes review was instituted against claims 1 and
`2 of the ’134 patent. See Samsung Electronics Co., Ltd. v. Image Processing
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`Tech. LLC, Case IPR2017-00353 (PTAB May 25, 2017) (Paper 12) (“the
`’353 IPR”); see also, infra, Section II.C.3.
`C. The ’134 Patent
`The ’134 patent is entitled “Image Processing Method,” and issued on
`
`March 17, 2015 from an application filed on March 17, 2014. Ex. 1001,
`[22], [45], [54]. The ’134 patent claims priority to application FR 96 09420,
`dated July 26, 1996. Id. at [30]. The ’134 patent also claims priority to the
`following applications: (1) U.S. Patent Application No. 12/620,092, filed on
`November 17, 2009—now U.S. Patent No. 8,805,001; (2) U.S. Patent
`Application No. 11/676,926, filed on February 20, 2007—now U.S. Patent
`No. 7,650,015; (3) U.S. Patent Application No. 09/792,294, filed on
`February 23, 2001—now U.S. Patent No. 7,181,047; (4) U.S. Patent
`Application No. 09/230,502, filed on July 22, 1997—now U.S. Patent No.
`6,486,909; and (5) Application No. PCT/EP98/05383, filed on August 25,
`1998. Id. at [60].
`
`The ’134 patent is directed to an image processing system that
`identifies and localizes moving objects. Ex. 1001, 1:35–39. The input
`signal used in the system has “a succession of frames, each frame having a
`succession of pixels.” Id. at 3:31–34. Figure 14a of the ’134 patent is
`reproduced below.
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`Figure 14a, above, depicts a velocity histogram, with classes C1–Cn
`representing a particular velocity. Ex. 1001, 20:49–54. Figures 16 and 17 of
`the ’134 patent are reproduced below.
`
`Figure 16, above, depicts camera 13 viewing a head. Ex. 1001, 22:19–23.
`Figure 17 depicts x axis and y axis histograms of a head from a video
`conference. Id. at 8:66–67, 22:4–6, 22:55–67. Face V is approximately
`defined by the peaks in the two respective histograms. Id. at 23:1–9. Figure
`22 of the ’134 patent is reproduced below.
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`Figure 22, above, illustrates a situation where an area under consideration
`begins to cross the borders of a target. Ex. 1001, 24:38–42. Under these
`circumstances, histograms 222 and 224 for the x and y projections,
`respectively, include pixels with significant variation, that allow the
`detection of target edges. Id. at 24:38–42. In a preferred embodiment, the
`center of the area “is determined to be (XMIN+ XMAX)/2, (YMIN+ YMAX)/2,
`where XMIN and XMAX are the positions of the minima and maxima of the x
`projection histogram, and YMIN and YMAX are the positions of the minima and
`maxima of the y projection histogram . . . Other methods of relocating the
`center of the target box may be used if desired.” Id. at 24:46–54.
`Claim 1, reproduced below, is not challenged here, but all the
`challenged claims at issue depend, directly or indirectly, from claim 1. See
`Ex. 1001, 26:36–27:3.
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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:
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`forming at least one histogram of the pixels in the one or more
`of a plurality of classes in the one or more of a plurality of
`domains, said at least one histogram referring to classes defining
`said target; and
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`identifying the target in said at least one histogram itself,
` wherein forming the at least one histogram further comprises
`determining X minima and maxima and Y minima and maxima of
`boundaries of the target.
`Ex. 1001, 26:36–50.
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`D. Asserted Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability against
`
`claims 3–6 of the ’134 patent:
`Ground
`Prior Art
`§ 103
`Gerhardt1 and Bassman2
`§ 103
`Gilbert,3 Gerhardt, and Hashima4
`
`Pet. 3.
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`II. ANALYSIS
`A. Claim Construction
`The parties concur that a district court-type claim construction under
`Phillips v. AWH Corp. should apply because the ’134 patent will expire
`within 18 months of the Notice of the Filing Date. Pet. 3–4; Prelim. Resp.
`12; see Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc);
`see also 37 C.F.R. § 42.100(b). Under that standard, and absent any special
`definitions, terms are given “the meaning that [a] term would have to a
`person of ordinary skill in the art in question at the time of the invention.”
`Phillips, 415 F.3d at 1316. Herein, we give claim terms their ordinary and
`customary meaning, as they would be understood by one of ordinary skill in
`the art at the time of the invention. In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007).
`
`
`1 U.S. Patent No. 5,481,622 (issued January 2, 1996) (Ex. 1013).
`2 U.S. Patent No. 6,044,166 (issued March 28, 2000) (Ex. 1014).
`3Alton L. Gilbert, A Real-Time Video Tracking System, PAMI-2, NO. 1,
`IEEE TRANSACTIONS ON PATTERN ANALYSIS AND MACHINE
`INTELLIGENCE, January, 1980. (Ex. 1005).
`4 U.S. Patent No. 5,521,843 (issued May 28, 1996) (Ex. 1006).
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`B. Alleged Obviousness of Claims 3–6 over Gerhardt and Bassman
` Petitioner contends that claims 3–6 are obvious over Gerhardt and
`Bassman. Pet. 37–54. To support its contentions, Petitioner provides
`explanations as to how Gerhardt and Bassman teach each claim limitation.
`Id. Petitioner also relies upon the Declaration of Dr. John C. Hart (“Hart
`Declaration” (Ex. 1002)) to support its positions. Patent Owner counters
`that the prior art does not render claims 3–6 obvious because the prior art
`fails to sufficiently teach some limitations of the claims, a person of ordinary
`skill in the art would not have combined the references, and Petitioner’s
`rationale to combine the references is driven by impermissible hindsight.
`Prelim. Resp. 17–28, 35–45, 53–56.
` On this record, we are persuaded by Petitioner’s explanations and
`evidence in support of the obviousness grounds asserted under Gerhardt and
`Bassman for claim 3, but we find that the evidence and explanations
`presented for claims 4–6 is insufficient. We begin our discussion with a
`brief summary of the prior art, and then address the evidence, analysis, and
`arguments presented by the parties.
`1. Gerhardt (Ex. 1013)
`Gerhardt is directed to tracking a target using “an eyetracking system”
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`that “process[es] the pixel data to substantially determine the position of the
`user’s pupil.” Ex. 1013, 7:45–53. Gerhardt continuously acquires an eye
`image and attempts to locate the pupil by use of a continuous loop, with
`pupil location mapping to display screen coordinates, if a pupil is found. Id.
`at 8:45–52. Gerhard uses a “frame grabber,” coupled to a “camera means”
`used to acquire a video image, to subsequently generate a histogram using
`pixel intensity value, and to identify and track the position of a user’s pupil.
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`Id. at 2:25–44, 9:39–61. Figure 5, reproduced below, is an example of a
`histogram for the captured eye image (id. at 4:38–39).
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`Figure 5, above, depicts a vertical axis indicates “the pixel count of each bin,
`and the horizontal axis indicates the magnitude of the pixel intensity of each
`bin,” with several bins of pixel intensity data, as “represented by a 7-bit
`greyscale . . . divided . . . into 128 bins.” Ex. 1013, 9:39–46.
`Bassman (Ex. 1014)
`2.
`Bassman is directed to image processing for sequences of images. Ex.
`
`1014, Abs. Bassman discloses a traffic monitoring system that uses a video
`camera, deriving successive image frames, and digitally processing the
`pixels of the successive image frames. Id. at 2:39–45. Figure 5, reproduced
`below, depicts an image derived from a video camera.
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`Figure 5, above, illustrates an image in which image pixels are integrated
`into a “1D strip,” with 1D strip 510 computed by integrating horizontally the
`amplitudes of the pixels across the image zone and subsampling the
`vertically-oriented integrated pixel amplitudes along the center of zone 508.
`Ex. 1014, 2:28–30, 6:16–20. Object detection may be done by computing a
`histogram of the image intensity values within the integration window
`centered at a pixel position. Id. at 6:60–63. Bassman discloses the use of an
`image-flow estimator with delay that “permit[s] objects to be tracked over
`time” by “computing and storing the average value contained within the
`integration window,” and “[b]y performing this operation at each strip pixel,
`a one-dimensional array of average brightness values is constructed.” Id. at
`7:7–12. Bassman also discloses that with “two corresponding arrays for
`images taken at times t-1 and t, the one-dimensional image ‘flow’ that maps
`pixels in one array to the other is computed,” and this is “used to track
`objects between each pair of successive image frames.” Id. at 7:12–17.
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`3. Analysis
` A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art;5 and (4) objective evidence of
`nonobviousness.6 Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`Independent Claim 1
` Challenged claims 3–6 depend directly or indirectly from independent
`claim 1, and, therefore, include all its limitations. See Ex. 1001, 26:36–27:3.
`Petitioner provides evidence and explanations in support of the contention
`that Gerhardt and Bassman teach all the limitations of claim 1 of the ’134
`patent. Pet. 37–46. Petitioner contends that both Gerhardt and Bassman
`individually teach every element of claim 1, except Gerhardt alone teaches
`the last limitation of claim 1, that is, the step directed to the determination of
`the X minima and maxima and the Y minima and maxima. See id. at 39–45.
`Petitioner also alleges that Bassman’s more accurate target identification
`process “could improve a similar image processing device, such as the
`system in Gerhardt.” Id. at 37. Our regulations require Petitioner to identify
`
`5 Petitioner proposes an assessment of the level of ordinary skill in the art.
`Pet. 4; see Ex. 1002 ¶¶ 51–53. Patent Owner proposes similar qualifications.
`Prelim. Resp. 10. At this juncture, we adopt the proposed qualifications.
`6 There is no objective indicia of nonobviousness yet in the record.
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`the basis of its challenges. See 37 C.F.R. § 42.104(b). In this instance,
`because Petitioner identifies Bassman in combination with Gerhardt as to
`one of the claim elements, i.e., the “identifying the target” step, we will
`proceed analyzing Gerhardt’s’s teachings for the majority of elements of
`claim 1, except for the “identifying the target” limitation where we will also
`consider Bassman’s teachings.
` Petitioner alleges that Gerhardt discloses tracking a pupil that
`“process[es] pixel data to substantially determine the position of the user’s
`pupil” in a continuous loop to map images, with the use of a “frame
`grabber.” Pet. 39–40 (citing Ex. 1013, 2:25–39, 2:40–44, 7:45–53, 8:45–52;
`Ex. 1002 ¶ 102). Petitioner contends that Gerhardt teaches the histogram
`formation as claimed. Id. at 41 (citing Ex. 1013, 9:39–61, Fig. 5; Ex. 1002
`¶¶ 107–108). Petitioner alleges that both Gerhardt and Bassman teach the
`limitation of “identifying the target” in the histogram by Gerhardt’s pupil
`identification (Ex. 1013, 9:39–61, 10:6–34. Figs. 4–6), and Bassman’s
`classification of strip pixels as either “detection” or “background” (Ex. 1014,
`6:60–7:17). Id. at 43–45. Gerhardt is relied upon for the teaching of the
`limitation of determining the “X minima and maxima” and the “Y minima
`and maxima,” with its determination of “blob descriptors,” that include
`determination of X and Y coordinates. Id. at 45–46 (citing Ex. 1013, 12:32–
`61, Fig. 10).
` Petitioner asserts that a person of ordinary skill in the art would have
`been motivated to combine Gerhardt and Bassman because both references
`are directed to similar systems that operate in a similar manner. Pet. 37.
`And, as discussed above, Petitioner alleges that it would have been
`recognized by a person of ordinary skill that Bassman’s accurate target
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`identification process could improve Gerhardt’s system by preventing false
`positives in pupil identification. Id. at 37–38 (citing Ex. 1002 ¶¶ 99–100).
`Additionally, Petitioner alleges that a person of ordinary skill would have
`expected the combination of the references would yield predictable results.
`Id. at 37–38.
` We have reviewed Petitioner’s evidence and explanations for the
`alleged teaching of the elements of independent claim 1 and we are
`persuaded that the evidence provided is sufficient at this juncture.
` Patent Owner argues that the prior art fails to teach the limitation of
`“identifying the target in said at least one histogram itself” of claim 1, and
`the challenges to its dependent claims fail at least on that basis. Prelim.
`Resp. 35–39. Patent Owner argues that Gerhardt teaches that there is more
`than just pupil data in the thresholded image, referring to non-pupil elements
`depicted in Figure 8c, under the process shown in Figure 16. Id. at 36–38.
`Patent Owner alleges that in Gerhardt, “[t]he target pupil is not identified in
`the histogram itself but multiple steps later using the pixel blob data.” Id. at
`36 (citing Ex. 1013, 15:40–42, Fig. 16). Patent Owner also alleges that the
`Petition fails to argue that Bassman teaches this claim limitation. Id. at 36.
` Patent Owner contends that Petitioner’s rationale to combine Gerhardt
`and Bassman is inadequate. Prelim. Resp. 41–45. Patent Owner argues that
`the Petition is deficient because it fails to explain how and why the
`references are combined. Id. at 39–41. Patent Owner more specifically
`alleges that Gerhardt and Bassman “operate differently because they are
`directed to different objectives,” and, therefore, a person of ordinary skill in
`the art would not have combined the references. Id. at 41. Patent Owner
`asserts that Gerhardt’s objective of tracking a user’s pupil to map its position
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`onto an interface device is directed to substantial repeatability of eye
`movements, and that it forms a histogram of an entire image. Id. at 41–42.
`Patent Owner characterizes Bassman as tracking multiple targets and then
`subsampling data only in a selected image zone, so some pixel data is lost,
`and also alleges that its tracking is not dependent on guidance from a user.
`Id. at 43–44. Patent Owner argues that a person of ordinary skill would not
`have combined Bassman’s alleged teaching of linking positions of targets in
`a previous frame with Gerhardt because applying Bassman’s image flow
`technique would increase computational complexity and would be
`impractical because of the differences in the respective methods of image
`processing. Id. at 44–45.
` Patent Owner does not persuade us with its arguments. In the
`Petition, the histogram depicted in Figure 5 of Gerhardt is relied upon for the
`teaching of the claim limitation of “identifying the target in said at least one
`histogram itself.” See Pet. 43–44; Ex. 1013, 9:39–61, 10:6–34. Fig. 5. The
`evidence indicates that Gerhardt discloses identification of a “target,” that is,
`the pupil in the histogram (“[a] dark, substantially-circular region 82
`substantially corresponds to pupil 70 of Fig. 4”). Id.; see also Ex. 1001,
`10:8–10, Figs. 4–6. Claim 1 does preclude other data, besides the data
`related to the target itself, being presented in the histogram, nor is further
`analysis of data precluded.
` Additionally, we are not persuaded by the Patent Owner’s arguments
`concerning the rationale to combine the references. We recognize that, if a
`proposed modification would render the prior art invention unsatisfactory for
`its intended purpose, then there is no suggestion or motivation to make the
`proposed modification. In re Gordon, 733 F.2d 900 (Fed. Cir. 1984). Here,
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`we view the argument and evidence presented by Patent Owner at this stage
`in the proceeding as insufficient to demonstrate that the prior art
`combination would not function in a satisfactory manner. See KSR, 550
`U.S. at 417 (“[I]f a technique has been used to improve one device, and a
`person of ordinary skill in the art would recognize that it would improve
`similar devices in the same way, using the technique is obvious unless its
`actual application is beyond his or her skill.”). At this juncture, we view the
`evidence and explanations presented to support the rationale to combine is
`sufficient.
`
`Claim 3
` Claim 3 recites a “process according to claim 1, wherein said image
`processing system comprises at least one component selected from a
`memory, a temporal processing unit, and a spatial processing unit.” Ex.
`1001, 26:53–56. Petitioner maps Gerhardt’s graphics card with memory or
`the memory of its computer to the claimed “memory,” and its use of running
`averages function as a “temporal processing unit.” Pet. 46–48. It is also
`asserted that Bassman’s system contains a memory, temporal processing
`unit, and spatial processing unit. Id. at 48–49. The Petition also contends
`that Gerhardt and Bassman describe digital systems that track objects in
`video frames, and therefore inherently disclose the claim 3 component
`limitations. Id. at 50–51.
` Patent Owner presents no additional arguments on the obviousness
`challenge to claim 3, except for the arguments addressed as to claim 1,
`which we do not find persuasive for the reasons discussed above. See
`Prelim. Resp. 35–45. We have reviewed the Petitioner’s evidence and
`explanations for the alleged teaching of the elements of claim 3, and are
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`persuaded that the evidence provided is sufficient for purposes of this
`Decision.
` Therefore, based on the record before us, Petitioner has demonstrated
`a reasonable likelihood of prevailing on its assertion that claim 3 would have
`been obvious over Gerhardt and Bassman.
`Claims 4, 5, and 6
` Claim 4 is to the process of 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.” Ex. 1001, 26:57–60. Claim 5
`depends from claim 4, “wherein forming the at least one histogram further
`comprises adjusting a center of the selected area based upon a shape of the
`target until substantially the entire target is within the selected area.” Id. at
`26:61–64. Claim 6 depends from claim 5, wherein “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.” Id. at 26:65–27:3.
` Petitioner contends that Gerhardt teaches that its system speed can be
`improved “by limiting examination, and thus blob definition, to only a
`portion of the full pixel image (say, a 320x240 or 220xl60 pixel
`subset) . . . .” Pet. 51 (quoting Ex. 1013, 21:1–11). Petitioner then alleges
`that Gerhardt teaches the limitation of claim 4, with the explanation: “that
`when only a portion of the full pixel image is considered and when pupil
`detection fails, ‘the size of the active window can be incrementally increased
`until the pupil blob is again successfully selected.’” Id. (citing Ex. 1013,
`21:1–18; see also, Ex. 1002 ¶ 125, pages 94–98 (claim 4 chart)).
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` Patent Owner argues that Gerhardt fails to teach the claim 4 limitation
`of “successively increasing the size of a selected area until the boundary of
`the target is found,” or claim 5’s limitation of “adjusting a center of the
`selected area based upon a shape of the target until substantially the entire
`target is within the selected area,” “as a part of ‘forming the at least one
`histogram’ on a ‘frame-by-frame basis.’” Prelim. Resp. 19. More
`specifically, Patent Owner asserts that Gerhardt does not teach the limitation
`of “selectively increasing” a selected area size “on a frame-by-frame basis
`because the active window can only be adjusted over several frames until the
`pupil blob is selected and is only disclosed as occurring after histogram
`formation.” Id. at 20. Patent Owner refers to Gerhardt’s disclosure where
`In some cases the use of a smaller active image region will
`result in a failure to select the pupil blob. In these cases, in a
`manner similar to that described above for percentage
`comparison tolerances, the size of the active window can be
`incrementally increased until the pupil blob is again
`successfully selected.
`Prelim. Resp. 20 (citing Ex. 1013, 21:12–16).
` Patent Owner refers to Gerhardt’s disclosure relating to the
`“percentage comparison tolerances,” which recites that “if the blob’s
`area and length-to-width ratio are within a pre-determined percentage
`tolerance, say 10%, of the respective running averages, then the blob
`is selected as being the pupil blob.” Prelim. Resp. 20–21 (citing Ex.
`1013, 13:39–61). Patent Owner refers to Figure 16 of Gerhardt,
`depicting an embodiment of the pupil location process (id. at 22),
`reproduced below.
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` Based upon Figure 16, above, Patent Owner alleges that “[i]f a
`frame fails (i.e., DIFFERENCE ERROR ≥TOLERANCE”), the
`COMPAIRSON (sic) CONSTRAINTS are relaxed” and a “new EYE
`IMAGE, i.e. frame of image data, is then acquired to be processed.”
`Prelim. Resp. 22–23. Patent Owner then argues that Gerhardt does
`not teach that a successive increase of the size of the selected area as
`claimed on a frame-by-frame basis because “[t]he increases in size
`disclosed in Gerhardt are never performed successively as a part of
`forming the at least one histogram formed in that frame.” Id. at 21–23
`(citing Ex. 1013, 15:40–42, Fig. 16). Patent Owner further asserts that
`“[t]he portion of Gerhardt which Petitioner relies on refers to
`increasing incrementally the active window over multiple frames until
`the boundary of the target is found, in each case after the histogram is
`already formed.” Id. at 23.
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`
` We are persuaded by Patent Owner’s arguments and evidence.
`As Petitioner alleges, and Gerhardt states, increasing the size of the
`active window is performed to select a pupil blob. See Pet. 51 (citing
`Ex. 1013, 21:1–18); Ex. 1002 ¶ 125, pages 94–98 (claim 4 chart)).
`Gerhardt discloses that the manner in which this is done for blobs is
`similar to that disclosed for percentage comparison tolerances. Ex.
`1013, 21:12–18. In the related process depicted in Figure 16, if the
`blob characteristics do not meet required tolerances, new eye images
`are successively acquired. See id. at Fig. 16. Although a histogram is
`formed as part of the process, as part of the “Threshold Image” step,
`we are not persuaded that the histogram is formed by increasing the
`size of a selected area until the boundary of a target is found in a
`frame. We find that the Petition lacks sufficient evidence and
`explanation to demonstrate a reasonable likelihood that Petitioner will
`prevail on its assertion that claim 4 would have been obvious over
`Gerhardt and Bassman.
` Claims 5 and 6 depend, directly or indirectly, from claim 4. In
`light of failure to demonstrate a reasonable likelihood of prevailing on
`its assertion that claim 4 is obvious over Gerhardt and Bassman, the
`obviousness challenges to claims 5 and 6 also fail.7
`
`
`7 The Petition includes a discussion of Hashima in the detailed discussion of
`Ground 1, but does not include this prior art under the identification of the
`ground, nor in the explanation of the rationale to combine the prior art for
`the ground. See Pet. 3, 37–39, 53. Patent Owner objects to consideration of
`Hashima under Ground 1. Prelim Resp. 28. The inclusion of Hashima at
`page 53 of the Petition appears to be in error, and Hashima is addressed as a
`prior art reference under Ground 2. See, infra, Section II.C.2 and II.C.3.
`
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`C. Alleged Obviousness of Claims 3–6 over Gilbert,
`Gerhardt, and Hashima
`Petitioner contends that claims 3–6 would have been obvious over
`Gilbert, Gerhardt, and Hashima. Pet. 55–80. To support its contentions,
`Petitioner provides explanations as to how the prior art discloses each claim
`limitation. Id. Petitioner also relies upon the Hart Declaration to support its
`positions. Patent Owner counters that the prior art does not render claims 3–
`6 obvious because the prior art fails to sufficiently teach some claim
`limitations, a person of ordinary skill in the art would not have combined the
`references, and Petitioner’s rationale to combine the references is driven by
`impermissible hindsight. Prelim. Resp. 28–35, 45–56.
`On this record, we are persuaded by Petitioner’s explanations and
`evidence in support of the obviousness grounds asserted for claim 3, but we
`find that the evidence and explanations presented for claims 4–6 is
`insufficient. We begin our discussion with a brief summary of the prior art,
`and then address the evidence, analysis, and arguments presented by the
`parties.
`
`1. Gilbert (Ex. 1005)
`Gilbert relates to an object identification and tracking system, which
`includes an image processing system having a video processor, a projection
`processor, a tracker processor, and a control processor. Ex. 1005, 47–48.
`Gilbert’s video processor receives a digitized video signal in which each
`field consists of pixels. Id. at 48. Gilbert discloses that “[e]very 96 ns, a
`pixel intensity is digitized and quantized into eight bits (256 gray levels),
`counted into one of six 256-level histogram memories, and then converted
`by a decision memory to a 2-bit code indicating its classification (target,
`plume, or background.).” Id. Gilbert’s projection processor then uses pixels
`
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`Patent 8,983,134 B2
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`identified as being part of the target to create x- and y-projections. Id. at 50.
`Figure 4 of Gilbert is reproduced below.
`
`
`Figure 4 of Gilbert depicts a Y-projection and X-projections of the
`target. Ex. 1005, 51. Gilbert’s system uses these projections to determine
`the center of the upper and lower portions of the target, and those points are
`then used to determine the center of the target (XC, YC). Id. at 50–51.
`2. Hashima (Ex. 1006)
`Hashima relates to a system and method of recognizing and tracking a
`
`target mark with a video camera. Ex. 1006, Abs. In Hashima, the target
`mark can be a black circle with a white triangle as depicted in Figure 3, as
`reproduced below.
`
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`Figure 3, above, depicts Hashima’s target mark. Ex. 1006, 5:16.
`
`Figure 6 of Hashima is reproduced below.
`
`
`Figure 6, above, depicts x- and y-projected histograms of a target
`
`mark. Hashima describes creating these histograms by summing the number
`of black pixels at each x- or y- location. Ex. 1006, 8:18–9:7. Hashima also
`describes finding the central position of the detected mark as shown in
`reproduced Figure 15 below.
`
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`Figure 15, above, depicts a process of finding central position Pm of
`
`the target mark. Hashima describes finding Pm (mx, my) using the equations
`(1) mx = (Xb1+Xb2)/2 and (2) my = (Yb1+Yb2)/2. Ex. 1006, 11:6–25.
`3. Analysis
`
`Independent Claim 1
`Petitioner asserts that Gilbert, Hashima, and Gerhardt teach all the
`limitations of independent claim 1. Pet. 59–63. As discussed above, supra
`Section I.B, inter partes review was previously instituted for claim 1 of the
`’134 patent over Gilbert and Hashima in the ’353 IPR. Petitioner relies upon
`similar evidence and explanations to this Petition, and adds reliance on
`Gerhardt’s teachings. Id. at 55–68. Here, we adopt and incorporate portions
`of the ’353 IPR Decision to Institute of the determinations made for claim 1
`of the ’134 patent, which found that the teachings of Gilbert and Hashima
`were sufficient for institution based upon obviousness. See Case IPR2017-
`00353 (PTAB May 25, 2017) (Paper 12), 14–23. The Petition also relies
`upon Gerhardt for the “target identification” step of claim 1, and provides
`rationale for the combination, as discussed below. We find Gerhardt’s
`teachings are sufficient as to the “target identification” limitation at this
`juncture.
`
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`Petitioner also asserts that a person of ordinary skill in the art would
`have been motivated to combine Gilbert, Gerhardt, and Hashima because the
`references are directed to similar systems that operate in a similar manner.
`Pet. 55. Petitioner further contends that it would have been recognized by a
`person of ordinary skill that Gerhardt’s adaptive thresholding technique
`could improve Gilbert’s target identification inefficiencies and reliability.
`Id. at 57–59 (citing Ex. 1002 ¶¶ 140–142). Additionally, it is argued that
`there was a reasonable expectation that the combination would result in a
`more efficient computational system. Id. at 59 (citing Ex.
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