UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`QUALCOMM INCORPORATED,
`Patent Owner.
`____________
`
`IPR 2018-01277 & IPR 2018-01278
`Patent 8,497,928 B21
`____________
`
`RECORD OF ORAL HEARING
`HELD: October 9, 2019
`____________
`
`
`Before DANIEL N. FISHMAN, MICHELLE N. WORMMEESTER, and
` AARON W. MOORE, Administrative Patent Judges.
`
`
`
`
`
`
`
`
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`
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`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`QUALCOMM INCORPORATED,
`Patent Owner.
`____________
`
`IPR 2018-01277 & IPR 2018-01278
`Patent 8,497,928 B21
`____________
`
`RECORD OF ORAL HEARING
`HELD: October 9, 2019
`____________
`
`
`Before DANIEL N. FISHMAN, MICHELLE N. WORMMEESTER, and
` AARON W. MOORE, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR 2018-01277 & IPR 2018-01278
`Patent 8,497,928 B21
`
`
`APPEARANCES:
`ON BEHALF OF PETITIONER:
`W. KARL RENNER, Esquire
`Fish & Richardson, P.C.
`1000 Maine Avenue, S.W., Suite 1000
`Washington, D.C. 20024
`KENNETH DARBY, Esquire
`Fish & Richardson, P.C.
`One Congress Plaza
`1 Congress Avenue, Suite 810
`Austin, TX 78701
`THOMAS A. ROZYLOWICZ, Esquire
`The McPherson Building
`901 15th Street, N.W.
`Washington, D.C. 20005
`
`
`ON BEHALF OF PATENT OWNER:
`BRIAN W. OAKS, Esquire
`MEGAN V. LADRIERE, Esquire
`Baker Botts, LLP
`1500 San Jacinto, Boulevard, Suite 1500
`Austin, TX 78701
`
`
`
`The above-entitled matter came on for hearing Wednesday, October 9,
`
`2019, commencing at the U.S. Patent and Trademark Office, 600 Dulany
`Street, Alexandria,
`Virginia.
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`P R O C E D I N G S
`JUDGE MOORE: Please, be seated. Good afternoon. Welcome to
`
`the Board. We will hear argument now in cases IPR 2018-1277 and IPR
`2018-1278. The Petitioner is Apple, Inc. The Patent Owner is Qualcomm,
`Inc. The patent at issue here is U.S. 8,497,928. I’m Judge Moore. On my
`left is Judge Wormmeester. Excuse me. On the video, we have Judge
`Fishman.
`
`Will counsel for the parties please introduce yourselves starting with
`Petitioner?
`
`MR. DARBY: Petitioner Apple, Your Honor. Kenneth Darby along
`with Karl Renner and Thomas Rozylowicz.
`
`MR. OAKS: Good afternoon, Your Honor. My name is Brian Oaks
`from Baker Botts for Patent Owner, Qualcomm. And also with me is Megan
`LaDriere also from Baker Botts, and we also have a number of
`representatives from Qualcomm who are here for several IPR hearings
`involving Qualcomm.
`
`JUDGE MOORE: Thank you. Pursuant to our hearing order, each
`side has 90 minutes of argument time.
`
`Petitioner, are you ready to begin?
`
`MR. DARBY: Your Honor, may we approach to distribute
`paperwork --
`
`JUDGE MOORE: Sure.
`
`MR. DARBY: -- and the demonstratives? Thank you.
`
`JUDGE MOORE: Like to reserve any time for rebuttal?
`
`MR. DARBY: Yes, Your Honor. We’ll be taking 45 minutes for the
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`direct and reserving 45 minutes for the rebuttal. Good afternoon, Your
`Honors, and may it please the Board. My name is -- again, is Kenneth
`Darby for Petitioner, Apple. We’re very excited to speak with you today
`about the ‘928 Patent and the two proceedings that Your Honors have
`listened to against the challenged claims, a ‘1277 proceeding based on the
`primary reference Hyodo and the ‘1278 proceeding based on the primary
`reference, Konicek.
`
`Can I have Slide 4, please?
`
`I’d like to start by saying just a few words about the ‘928 Patent. As
`noted here in the first bullet point, it is generally directed to techniques to
`automatically focus a digital camera. In the background section of the ‘928
`Patent, it describes the problem that the inventor set out to solve. They were
`looking to solve the convoluted user interactions required to focus a camera.
`Specifically mentioned is the half button press problem where the user
`would take their device, they would frame a scene, press the shutter button
`down halfway and initiate and lock focus. And once the focus was locked,
`they would move the camera to adjust the scene as they see fit without
`disturbing the focusing.
`
`Now, the ‘928 articulates a solution to this problem, but that solution
`was several years too late. The Hyodo reference, for example, at issue in the
`‘1277 proceeding a full eight years before the ‘928 Patent was filed
`disclosed a very similar solution as the ‘928, touch-based focal point
`selection. Focal point selection on a touch screen. And in the ‘1277
`proceeding, the Suh reference similarly described a year earlier in 1998,
`touch-based focal point selection.
`
`Indeed, Your Honors, by the time the ‘928 Patent was filed in 2007,
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`commercial products already included the touch-based focal point selection.
`It had emerged from the patent literature into commercial products. For
`example, Qualcomm’s Exhibit 2019 page 34 describes the Sony Cyber-shot
`camera with touch-based focal point selection.
`
`The ‘928 Patent has 16 claims, four of which are independent and two
`of those independent claims are challenged in Apple’s petitions; Independent
`Claim 7 and Independent Claim 10 along with dependent Claims 8, 11, and
`13.
`Slide 5, please?
`
`So here is Independent Claim 7. It’s a representative claim for
`
`purposes of our discussion here today and it recites a method for operating a
`mobile device. The method has five steps listed here. Three of those which
`we’ve highlighted here on the demonstrative exhibit, Slide 5, are the issues
`that have been disputed by the parties, the elements in dispute.
`
`The first of those is Element 7B in the petition. It’s selecting a second
`focal point for the image in response to receiving a first type of user input.
`The second is Element 7C, focusing the lens component while the image is
`being displayed, and the third is Element 7E, capturing the image in
`response to a second type of user input.
`
`Slide 7, please?
`
`This is a quick snapshot of the instituted grounds. We’ll be speaking
`to the first and lead ground in each of the two petitions, the Hyodo ground in
`the ‘1277 proceedings and the Konicek ground of the ‘1278 proceeding.
`
`Slide 11, please?
`
`So with that introduction, I’ll dive into the substantive issues of the
`case starting with the focal point selection feature, Element 7B. This is a
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`summary of the parties’ respective interpretations of the claim term.
`Apple’s petitions opened the proceedings with the plain meaning
`interpretation of the term “focal point” and all claims terms in the ‘928
`Patent.
`
`JUDGE MOORE: So are we construing “focal point” or “selecting a
`second focal point for the image”?
`
`MR. DARBY: I believe the term at issue is “focal point,” but the
`phrase, I’m not sure that it’s -- there’s a change in --
`
`JUDGE MOORE: So we’re just --
`
`MR. DARBY: -- (indiscernible) difference.
`
`JUDGE MOORE: We’re just construing “focal point”?
`
`MR. DARBY: Sure, yes. I think so, Your Honor, for today’s
`discussion and as far as I understand the parties’ respective positions.
`
`JUDGE MOORE: And that’s “focal point” everywhere it appears in
`the claim? For example, where it appears in the displaying limitation?
`
`MR. DARBY: Yes, Your Honor. The term “focal point” should have
`the same meaning throughout the claim. So Qualcomm offered the
`construction listed here, “An intended center of interest of a photograph that
`is not a predetermined area.” Apple then, in reply, offered a construction
`that reads, “A portion of the image that relates to the process of focusing.”
`To be clear, Your Honors, despite the alternative construction offered in
`reply, the correction approach and Apple’s primary interpretation is the plain
`meaning of the metes and bounds of term “focal point” don’t need to be
`defined in order to perform the prior art and that was just --
`
`JUDGE MOORE: What is the plain meaning of “focal point”?
`
`MR. DARBY: The plain meaning of focal point is demonstrated
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`through the main examples of the ‘928 Patent. There are several examples
`therein, including the intended center of interest which is one of the many
`examples, the point of clearest focus is yet another example. Also, there’s
`an example of the focal point being an object or an area such as the face of
`the friend in the waterfall, example, at Column 12 or the waterfall itself
`that’s selected by default as a focal point in that same example.
`
`JUDGE MOORE: So you’re saying it’s the area of the image that’s
`of interest to the user?
`
`MR. DARBY: Next slide, please? Your Honor, I’ll answer that
`question here with an excerpt from the institution decision. We believe that
`this is the correct approach. The plain meaning of the term should be
`viewed -- in view of the specification as it reads here from the institution
`decision, “In the ‘928 Patent, the focal point is the area of interest to the
`user. For example, the face of the friend in the ‘928 patent.” This is the
`correct approach, Your Honors, as articulated in the institution decisions and
`Apple would invite Your Honors to articulate the same in your final written
`decision.
`
`JUDGE MOORE: Well, how does that work then for focal point
`where it appears in the displaying limitation before the user has done
`anything?
`
`MR. DARBY: I think before the selecting step occurs when the
`camera is displaying a first focal point, it could be the default, for example,
`in the waterfall example which is just a portion of the image that the camera
`decides to focus on. So we would brief that in the petitions and I believe
`also in the alternative, we briefed an alternative interpretation of this
`language where the focal point displayed in the first step is actually the first
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`time around. So the user touches the screen to establish one point and then
`the second time around when they want to change the focal point, another
`selection is made. So it could be either a default selected by the camera or it
`could be the user selected ones.
`
`Slide 13, please?
`
`So we’ve talked about the plain meaning approach which Apple urges
`as the correct approach here, but I will take a minute here to discuss
`Qualcomm’s construction, the intended center of interest and why that
`construction cannot be adopted and can’t be supported on this record. We’ll
`start with the specifications. So the (inaudible) mentioned in the
`specification of an intended center of interest is this excerpt here from
`Column 9, lines 4 through 6 of the ‘928 Patent. And it reads, “In some
`embodiments, the focal point refers to the intended center of interest of a
`photograph and is typically the point where the image will be in clearest
`focus.”
`
`Next slide, please, 14?
`
`Looking at Slide 14, the summary of the arguments that have been set
`forth in Apple’s briefing, Your Honor, is that these -- there are three specific
`points of area that we’ve articulated in terms of Qualcomm’s analysis
`relating to the specification and its focal point selection -- or, excuse me, its
`focal point construction. We’ll concentrate here on the first aspect here
`which we gleaned as well from the institution decisions that the sentence we
`just discussed, the lone support, or the only possibility of support in the
`specifications starts and opens within some embodiment and that language
`makes clear that a focal point is not limited to the following description, the
`intended center of interest. It’s not definitional. That’s exemplary language
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`that could be other embodiments, of course, where the focal point is not the
`user’s intended center of interest. I discussed earlier the default focal point
`in the waterfall example (indiscernible).
`
`JUDGE MOORE: Well, is it possible that “focal point” sort of has
`different meanings depending on the perspective? So the user might want
`the focal point of their photo to be their friend, or their dog, or whatever.
`
`MR. DARBY: Sure.
`
`JUDGE FISHMAN: But then if you look at the claim, at the method
`for operating a mobile device, it’s performed by a processor and it displays
`an image having a first focal point. That leads me to believe that “focal
`point” as it’s used in the claims is the area in which the camera mechanism
`is focused. Does that make sense?
`
`MR. DARBY: It does, Your Honors. And, in fact, let me take a
`quick leap forward here. Well, actually, can we go back to Slide 11, please?
`Okay. So Apple offered an alternative construction that would account for
`the interpretation or the understanding that you just recited, “A portion of the
`image that relates to the process of focusing.” We believe that that
`interpretation would account for whether it’s the camera that’s selected by
`default, whether it’s a person that selects a focal point perhaps multiple
`times in an iterative type of approach.
`
`JUDGE FISHMAN: What does “relates to” mean?
`
`MR. DARBY: “Relates to” --
`
`JUDGE FISHMAN: It seems pretty wishy-washy to me.
`
`MR. DARBY: Agreed. I will -- we put in some record evidence in
`terms of the word “focal”.
`
`Could I go to Slide 22, please?
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`So there’s some record evidence here, Apple ‘1042 and Apple ‘1043
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`that provide or that help, you know, understand. And so the (indiscernible)
`is understanding of the term “focal” as relating to focus. So I understand the
`concern, Your Honors. It is -- it does -- “relates to” is a broad term, but,
`again, the many examples of the ‘928 specification and, as Your Honor
`pointed out, the way the claim is worded, a broad interpretation, if the claim
`term is to be construed, is necessary to account for all of those examples and
`the way the claim is set forth.
`
`JUDGE MOORE: Well, would it be wrong to construe “focal point”
`to be the portion of the image on which the camera is focused?
`
`MR. DARBY: “Portion of the image” -- tough to me -- for me to say
`if that would be wrong. It has not been briefed by either of the parties, but I
`do think that that’s closest to Apple’s alternative proposed construction.
`And I would say that I believe that the prior art would meet all of the ‘928
`Patent’s claim limitations that are challenged even under such construction.
`Is that helpful, Your Honor?
`
`Can you (indiscernible) Slide 15?
`
`Okay. So we’ve talked about the plain meaning of the term “focal
`point,” we’ve talked about Apple’s alternative construction concerning the
`term “focal point,” and we know that Qualcomm’s construction, the
`intended center of interest, is not supported by the specification, but I expect
`you’ve gathered from the briefing, Your Honors, that there is a prosecution
`history disclaimer argument that’s on the table.
`
`To summarize the argument -- this is on page 20 of the ‘1277 and
`‘1278 Patent Owner responses. “The articulation of an argument that the
`Applicant disavowed Hyodo’s disclosure of focal point selection because the
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`Applicant overcame a ‘102 rejection based on Hyodo.” Your Honors, we
`disagree with the disclaimer argument. It’s either not based on a proper
`understanding of the law or it is based on a mischaracterization of the
`prosecution history. So in Apple’s petitions, the excerpt is here.
`
`We pointed out in our review of the prosecution history that the two
`elements argued to overcome Hyodo were Element 7C, focusing while the
`image is being displayed and Element 7D, selecting a flash level value. The
`Applicant did not argue of Hyodo based on selecting of a focal point.
`
`Slide 18, please?
`
`So this is an excerpt from the prosecution history. This is an
`argument made by the Applicant in response to an office action and here, the
`Applicant was arguing that the prior art lacked selection of a focal point, but
`the primary reference -- or excuse me, the prior art reference asserted against
`the Claims was not Hyodo. It was a reference called Boies and it was cited
`two years before the Examiner identified and applied Hyodo.
`
`And as you can see here, the Examiner had taken a very broad
`interpretation of the term “focal point” in able to apply this Boies reference
`which is really just a pivotally mounted video camera. The Examiner said
`that, “Focal point is merely a point or state different than the current point or
`state.” And I think all parties here would agree that that is far too broad a
`construction interpretation of the term “focal point,” and the Applicant
`rightfully pushed back citing examples of the ‘928 specification, “The
`intended center of interest and the point in clearest focus,” and -- in addition
`to the example of the waterfall embodiment example that we’ve been
`discussing at Column 12 of the ‘928 Patent. So to the extent there’s any
`disclaimer or any disavowal, it should be cabined and limited to the overly
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`broad construction brought forth by the Examiner and the Boies reference,
`the point, pivot, zoom, type of video camera.
`
`Slide 23, please?
`
`Okay. So we’ve talked a lot about focal points and its construction.
`I’d like to now spend a few minutes speaking to the Hyodo reference at issue
`in the ‘1277 proceedings and I direct Your Honors’ attention to the excerpt
`at the bottom right here of the slide. This is a very succinct and very on-
`point summary of Hyodo’s disclosure as it pertains to focal point selection.
`Hyodo here says, “According to the camera, the present invention, the
`focusing and exposure is adjusted to the principal subject by touching the
`principal subject that is displayed on the image display.” So the user
`touches the display at the principal subject and the camera focuses to the
`principal subject.
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`JUDGE MOORE: Well, it focuses to some predetermined focal point
`nearest that.
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`MR. DARBY: Your Honors, I would love to discuss that disclosure
`with you. Absolutely.
`
`Can you go to Slide 24?
`
`So here is an excerpt from Apple’s ‘1277 petition and it’s an excerpt -
`- or, excuse me, it highlights an example from Hyodo. Here on the left-hand
`side of Slide 24 is annotated version of Hyodo’s Figure 5 where the user
`touches the principal subject, the child here on the rocking horse, and the
`camera recognizes that as the principal subject and places that portion of the
`image in clear focus.
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`Actually, right after the highlighted text here on the slide, Hyodo
`explains that, “The area inside a circle in the predetermined size which has
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`the position of the touch portion at its center is recognized to be the principal
`subject.” So the principal subject is the area touched and a circle of
`predetermined size surrounding that area. The touched portion of the image
`is the center of the principal subject or the center of the focal point.
`
`Slide 25, please?
`
`So Apple’s petition mapped Hyodo’s principal subject disclosure to
`the teachings and the specification of the ‘928 pattern in order to
`demonstrate obviousness. As stated here, “The user’s designation of a
`principal subject signals intent to establish a point of interest for the image.”
`Again, this is consistent with the examples in the ‘928 Patent specification,
`both the example of the area of the face of the friend and example of
`intended center of interest. In Hyodo, the user touches the touch screen to
`locate a portion of the image that is of interest. It’s the principal subject or
`the focal point.
`
`Slide 26, please?
`
`This is another excerpt from Your Honor’s institution decision
`articulating a very similar analysis. In the ‘928 Patent and in Hyodo, the
`“focal point” is the area of interest to the user. For example, the face of the
`friend in the ‘928 Patent or the child on the rocking horse in Hyodo. Again,
`Your Honors, Apple’s position is that this is the correct approach and -- but,
`again, invite Your Honors to rearticulate the same in your final written
`decision.
`
`Slide 27, please?
`
`So turning to Qualcomm’s construction, the intended center of
`interest, this was addressed in the petition as well. As Your Honors pointed
`out in your institution decision, there’s no meaningful difference between
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`Hyodo’s principal subject disclosure and the ‘928 Patent’s disclosure of an
`intended center of interest. So even if Your Honors were to adopt
`Qualcomm’s construction, Hyodo, nonetheless, would demonstrate
`obviousness.
`
`JUDGE MOORE: And just to be clear though, we weren’t construing
`any terms in the DI, right, because nobody had asked for a construction?
`
`MR. DARBY: I am not 100 percent certain --
`
`JUDGE MOORE: In other words, what --
`
`MR. DARBY: -- but I believe -- I know that Apple -- I know that
`Apple’s position was plain meaning. I don’t immediately recall whether or
`not Qualcomm offered a construction, but I do know that the Board adopted
`the plain meaning and so, again, that’s the same approach that we would say
`is appropriate for the final written decision, specifically recognize that
`Hyodo is consistent with the ‘928 Patent.
`
`All right. Slide 29, please?
`
`So a quick note here that should Your Honors see fit to adopt a
`construction at all, it’s Apple’s construction the application of Hyodo hasn’t
`been contested in this proceeding, so that adoption of Apple’s construction
`would be dispositive on the issue.
`I’ll pause here, Your Honors, to know that we’ve said a lot about focal point,
`mainly through the lens of Hyodo and as to Konicek. We’re happy to rest
`on the briefing there unless there are specific questions that we could
`answer.
`
`JUDGE MOORE: No.
`
`MR. DARBY: Okay. Thank you, Your Honor.
`
`Slide 35, please?
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`With that, we can pivot to Element 7C, focusing the lens component
`
`while the image is displaying. Here is another summary of the parties’
`constructions. Apple, again, opened the proceedings with the plain meaning
`interpretation. Qualcomm responded with the following construction, “The
`image that is being provided by the lens component is displayed on the touch
`screen display during the process of focusing the lens component.” Your
`Honors, you’ll note a slight discrepancy here between the two proceedings.
`The ‘1277 says that the image is displayed during focus. The ‘1278 says the
`image is updated during focusing.
`
`Slide 36, please?
`
`JUDGE MOORE: So -- could you go back --
`
`MR. DARBY: Absolutely.
`
`JUDGE MOORE: -- one slide? Why aren’t we just construing the
`image?
`
`MR. DARBY: I don’t believe either parties offered a construction of
`the image. Did your -- did you have something in particular?
`
`JUDGE MOORE: Well isn’t that really the issue here? I mean, in the
`first step of the claim you display an image and then later you focus on lens
`component while the image is displaying and then --
`
`MR. DARBY: Sure.
`
`JUDGE MOORE: -- at the end, you capture the image.
`
`MR. DARBY: Uh-huh.
`
`JUDGE MOORE: Right? It seems to me the arguments here really
`sort of dance around the question which is, “Well, what is the image?”
`
`MR. DARBY: As in --
`
`JUDGE MOORE: Is it --
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`MR. DARBY: -- is it a still image or --
`
`JUDGE MOORE: Is it a static image?
`
`MR. DARBY: Sure.
`
`JUDGE MOORE: Is it -- do you capture an image when you do the --
`
`or had you captured an image when you do the display and then that one
`image carries through because that’s sort of what the claim says when it
`refers to “an image” or is that image, you know, a frame that you’re
`receiving, you know, updates on, real time --
`
`MR. DARBY: Certainly.
`
`JUDGE MOORE: -- sort of a real time image, a moving image?
`
`MR. DARBY: Yes, I --
`
`JUDGE MOORE: Do you understand the issue?
`
`MR. DARBY: I do understand the issue, Your Honor. Thanks for the
`explanation.
`
`Slide 37, quickly?
`
`So we can turn to the ‘928 Patent specification here and there is some
`limited disclosure of a substantially real-time preview which would be an
`updating image during the focusing process. The issue here, of course, is
`that the specification says that, “The image may comprise a substantial real-
`time preview.” So the claim -- here “may” is permissive. It could be other
`embodiment similar to the focal point discussion that do not involve a real-
`time preview of the image.
`
`Another problem I would note here are the specification terms of
`adopting a construction that confines this claim term to a moving or
`updating image is that the specification doesn’t tell us that the real time
`preview occurs during focusing. It tells us that it occurs sometime before
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`capturing a photograph, but isn’t explicit in terms of one that is occurring.
`
`And so I think that the way the specification, to the extent that the
`feature is described, doesn’t cabin, or limit, the term “the image” to being --
`whether it be a still image that’s displayed during the focusing or a moving
`image that’s displayed during the focusing.
`
`JUDGE MOORE: Well, so is it your position that the image in this
`claim is just one static image?
`
`MR. DARBY: Apple’s position was that it could be an updating
`moving image or it could be a still image. As long as an image is on the
`display during the time that the focusing is happening, that that would meet
`the claim limitation precisely because the specification doesn’t tell us
`otherwise and nothing in the claim specifically tells us otherwise. I would --
`
`Move to Slide 38, please.
`
`Another excerpt from the institution decision here where Your Honors
`really hit on the key here, that the claim doesn’t require an updating of the
`image. And so we’ve now looked at the specification and it doesn’t clearly
`tell us that it’s got to be a real-time updating image and now we look at the
`claim and nothing in the claim says that it’s got to be an updating image.
`
` Now, I expect you’ve read in the briefing that there may be some
`secondary antecedent basis principles of claim construction that may perhaps
`support a different construction, Qualcomm’s construction of an updating
`image, Your Honors, but the claim and the specification are quite clear and
`those secondary principles should not override the specification certainly
`and also the facially clear claim language.
`
`Slide 39, please?
`
`So note here that all of Qualcomm’s arguments as to the Okawa
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`reference which is used to supplement Hyodo on this issue of displaying an
`image during the focusing step rely on the construction, specifically the
`updating construction, even in the ‘1277 proceeding where the construction
`says, “Displaying during focusing.” In fact, I’ll just pop back to, just briefly
`here, to Slide 36, please.
`
`So the excerpt in the center here is from the (indiscernible) -- the POR
`in the ‘1277 noting that Okawa arguably does not disclose focusing while
`the image is updating and then here, at the bottom excerpt of Slide 36,
`there’s an excerpt from Dr. Aliaga, Qualcomm’s expert, saying that the
`broadest reasoanble interpretation would mean “an image displayed on the
`touch screen is being updated during the focusing.”
`
`So, again, if the Board would see fit to reject Qualcomm’s
`construction, again, in the final written decision, that would be dispositive of
`the issue. And for that reason, Your Honors, and for the limited time that we
`have together today, I would suggest that we rest on the briefing in terms of
`Okawa’s disclosure under Qualcomm’s interpretation and move on to the
`final aspect of the --
`
`JUDGE MOORE: Does Okawa update the image?
`
`MR. DARBY: Your Honors, we’ve briefed that issue and in our
`petition, the first instance did assert that Okawa does update the image, but
`there is a dispute between the parties on that number. But again, that only
`comes into play if Your Honors would see fit to adopt Qualcomm’s
`construction that requires an updating image.
`
`JUDGE MOORE: Well, so that’s in Figure 5 of Okawa, the one with
`the six images of the two people and the OK sign; is that right?
`
`MR. DARBY: Sure.
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`Slide 40?
`
`Here. Yes, exactly, Your Honors. This is the -- this is the sort of
`
`demonstrative annotated figure from the petition.
`
`Slide 41, please?
`
`This is an excerpt from the analogy analysis set forth in the petition
`where Apple advances the theory that Okawa accomplishes display of the
`updated focal mark concurrently with changes to the “frame rate of the
`display.”
`
`JUDGE MOORE: Well, could you go back to the Figure 5 then?
`
`MR. DARBY: Absolutely. This is Slide 40.
`
`JUDGE MOORE: What is the image here?
`
`MR. DARBY: The image would be the couple standing, I think,
`giving the peace sign or countdown sign.
`
`JUDGE MOORE: Does the image include the focal mark?
`
`MR. DARBY: The focal mark is overlaid atop the image. So the
`critical aspect of Okawa is that the image, the people that have been framed
`in the view finder remain on the screen. The focal mark continues the
`update during the auto-focus time period to keep the user apprised of what’s
`going on. Some of these digital cameras of the time, the resolution on the
`LCD -- you know, the LCDs were quite small and the resolution wasn’t
`perfect. You couldn’t necessarily see what was happening on the screen
`during the focusing process and so users would have trouble not
`understanding, you know, is the camera done focusing, when can I go ahead
`and take the picture, and that was the problem that Okawa was looking to
`solve.
`
`JUDGE MOORE: Yeah. So just so I’m clear, the image does not
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`include the focal mark or it does?
`
`MR. DARBY: I would say the image does not include the focal mark.
`The focal mark is overlaid on -- atop the image. But the image, the people --
`and the people in it are on the display and Apple’s -- what Apple put forth in
`its petition is that the image itself is updated at a display rate and that the
`changes to the focal mark are synchronized with it.
`
`JUDGE MOORE: How do we know that the image is updated?
`
`MR. DARBY: So, let’s see.
`
`Slide 42, please?
`
`So this is an excerpt from Apple’s expert, Dr. Wright, and it’s
`basically a reading of the Okawa reference as a whole taken by Dr. Wright
`here in his approach and his conclusions which are set forth in the petition in
`which we discussed were based on, for example, this disclosure from Okawa
`that says that, “The focal mark is displayed when images from the taking
`are” -- or excuse me. It says, “Displaying a focal mark showing the f
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