`571.272.7822
`
`
` Paper No. 12
` Filed: June 4, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`AXIS COMMUNICATIONS AB, CANON INC.,
`and CANON U.S.A., INC.,
`Petitioner,
`
`v.
`
`AVIGILON FORTRESS CORPORATION,
`Patent Owner.
`
`
`Case IPR2019-00236
`Patent 7,868,912 B2 & C1
`____________
`
`
`Before GEORGIANNA W. BRADEN, KIMBERLY McGRAW, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`McGRAW, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 325(d) and 37 C.F.R. § 42.108
`
`
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`IPR2019-00236
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`I. INTRODUCTION
`Axis Communications AB, Canon Inc., and Canon U.S.A., Inc.
`(“Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting an inter partes
`review of all claims (i.e., claims 1–4 and 6–36)1 of U.S. Patent
`No. 7,868,912 B2 & C1 (Ex. 1001, “the ’912 patent”). See 35 U.S.C. § 311.
`Patent Owner, Avigilon Fortress Corporation (“Patent Owner”) filed a
`Preliminary Response. (Paper 8, “PO Resp.”). Institution of an inter
`partes review is authorized by statute when “the information presented in the
`petition . . . and any response . . . 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.” 35 U.S.C. § 314(a). Upon consideration of the
`Petition and Preliminary Response, we decline to institute review of claims
`1–4 and 6–36 of the ’912 patent.
`
`A. Related Proceedings
`Concurrent with the instant Petition, Petitioner filed another petition
`for inter partes review of the ’912 patent as well as two separate petitions
`for inter partes review of related U.S. Patent No. 7,932,923. See Pet. 69;
`Canon Inc. et al. v. Avigilon Fortress Corp., Case IPR2019-00235 (PTAB
`Nov. 12, 2018) (Paper 1); Canon Inc. et al. v. Avigilon Fortress Corp., Case
`IPR2019-00311 (PTAB Nov. 12, 2018) (Paper 1); Canon Inc. et al. v.
`Avigilon Fortress Corp., Case PR2019-00314 (PTAB Nov. 12, 2018)
`(Paper 1). Additionally, we instituted two inter partes review proceedings
`of related U.S. Patent No. 8,564,661. See Pet. 69; Canon Inc. et al. v.
`Avigilon Fortress Corp., Case IPR2018-00138 (PTAB June 1, 2018) (Paper
`
`
`1 Claim 5 was canceled during reexamination. Ex. 1001, Reexamination
`Certificate, 1:19.
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`8); Canon Inc. et al. v. Avigilon Fortress Corp., Case IPR2018-00140
`(PTAB June 1, 2018) (Paper 8).
`
`B. The ’912 Patent
`In general, the ’912 patent, titled “Video Surveillance System
`Employing Video Primitives,” is directed to an automatic video surveillance
`system. Ex. 1001, [54], 1:18–19. One object of the invention is to reduce
`the amount of video surveillance data needed to analyze the video. See id.
`at 2:42–44. Another object is to filter the data to identify desired portions of
`the data. See id. at 2:45–46. The ’912 patent states the system can process
`video data in real-time and store “extracted video primitives” to allow high
`speed forensic event detection later. Id. at 5:16–19. Video primitives can
`include “observable attributes” of an object in a video feed, such as the size,
`shape, position, speed, color, and texture of the object, or scene descriptors,
`that describe the overall scene, such the location of sky or foliage, weather
`conditions, and lighting changes. See id. at 13:14–64.
`Figure 2, shown below, is a flow diagram for an embodiment of the
`video surveillance system that involves setting up, calibrating, tasking, and
`operating the system. See id. at 4:26–27, Fig. 2.
`
`As shown in the flow diagram of Figure 2 above, the video
`surveillance system includes tasking the surveillance system (block 23),
`which “involves specifying one or more event discriminators.” Id. at 12:39–
`
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`44. “Event discriminators are identified with one or more objects (whose
`descriptions are based on video primitives), along with one or more special
`or temporal attributes. Id. at 5:29–33. For example, an operator can define
`an event discriminator (such as a “‘loitering’ event”) as a “person” object in
`the “automatic teller machine” space for “longer than 15 minutes” and
`“between 10:00 p.m. and 6:00 a.m.” Id. at 5:33–37.
`Figure 3, reproduced below, is a flow diagram for tasking the video
`surveillance system. Id. at 4:30–31.
`
`
`
`As shown in the flow diagram of Figure 3, reproduced above, one step
`in tasking the video surveillance system is to identify responses (block 34).
`Examples of responses include activating an alarm, locking a door,
`forwarding data such as video primitives to another computer system,
`saving data to a computer-readable medium, as well as “tasking the
`computer system . . . and/or another computer system.” Id. at 15:36–48
`(emphasis added).
`A flow diagram for operating one embodiment of the video
`surveillance system of the ’912 patent is shown in Figure 4, reproduced
`below. Id. at 4:30–31.
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`As shown in Figure 4 above, the system extracts video primitives
`from a video (block 42), archives the video primitives (block 43), extracts
`event occurrences (block 44), and undertakes a response (block 45). See
`also id. at 20:36–38 (stating “video primitives are determined in block 42,
`and the event discriminators are determined from tasking the system in block
`23 [of Figure 2]”). The ’912 patent explains that in “block 44, event
`occurrences are extracted from the video primitives using event
`discriminators.” Id. at 20:35–36. The event discriminators are used to filter
`the video primitives to determine if any event occurrences occurred. Id. at
`20:39–41. For example, an event discriminator can look for a “wrong way”
`event as defined by a person traveling the “wrong way” into an area between
`9:00 a.m. and 5:00 p.m. Id. at 20:41–43. “The event discriminators may
`also use other types of primitives . . . to detect occurrences.” Id. at 20:49–
`51. The archiving step (block 43) of Figure 4 “is optional; if the system is to
`be used only in real-time, the archiving step can be skipped.” Id. at 20:32–
`34. In “block 45, action is taken for each event occurrence extracted in
`block 44, as appropriate.” Id. at 20:52–54.
`Another embodiment is shown in Figure 9, reproduced below, in
`which the system analyses “archived video primitives with event
`discriminators to generate additional responses, for example, without
`needing to review the entire source video.” Id. at 24:35–39.
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`Figure 9 above depicts a flow diagram for an additional embodiment
`of the video surveillance system that “analyzes archived video primitives . . .
`without needing to review the entire source video.” See id. at 24:35–39.
`Any time after a video source has been processed according to the invention,
`video primitives for the source video are archived in block 43 of Fig. 4. Id.
`at 24:40–42. “The video content can be reanalyzed with the additional
`embodiment in a relatively short time because only the video primitives are
`reviewed and because the video source is not reprocessed.” Id. at 24:42–45.
`“As an example, the following event discriminator can be generated: ‘The
`number of people stopping for more than 10 minutes in area A in the last
`two months.’” Id. at 24:50–53. With this “additional embodiment, the last
`two months of source video does not need to be reviewed. Instead, only the
`video primitives from the last two months need to be reviewed, which is a
`significantly more efficient process.” Id. at 24:53–56. “Block 91 is the
`same as block 23 in FIG. 2.” Id. at 24:57. “In block 92, archived video
`primitives are accessed. The video primitives are archived in block 43 of
`FIG. 4.” Id. at 24:58–59. “Blocks 93 and 94 are the same as blocks 44
`and 45 in FIG. 4.” Id. at 24:60–61.
`
`C. Claims
`Petitioner challenges all claims (i.e., claims 1–4, 6–36) of the ’912
`patent. Claims 1, 6, 9, 12, 18, 23–28, and 31–33 are independent. Claims 1
`and 6 are representative and are reproduced below.
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`1. A video system comprising:
`a first processor which analyzes a video to determine
`attributes of objects detected in the video, the first processor
`being in communication with a first communications link to
`transfer the determined attributes over the communications link;
`and
`
`a second processor, separate from the first processor, in
`communication with the first communications link to receive
`the determined attributes transferred from the first processor
`over the first communications link, which determines a first
`event that is not one of the determined attributes by analyzing a
`combination of the received determined attributes and which
`provides, in response to a determination of the first event, at
`least one of an alert to a user, information for a report, and an
`instruction for taking an action,
`wherein the first processor determines attributes
`independent of a selection of the first event by the second
`processor, and
`wherein the second processor determines the first event
`without reprocessing the video analyzed by the first processor.
`6. A video system, comprising:
`an input in communication with a communications
`channel;
`a processor configured to receive from the input a stream
`of detected attributes received over the communications
`channel, the attributes being attributes of one or more objects
`detected in a video, the processor configured to determine an
`event that is not one of the detected attributes by analyzing a
`combination of the received attributes and configured to
`provide, upon a determination of the event, at least one of an
`alert to a user, information for a report and an instruction for
`taking an action,
`wherein the attributes received over the communications
`channel are independent of the event to be determined by the
`processor, and wherein the processor is configured to determine
`the event without reprocessing the video.
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`D. Asserted Grounds of Unpatentability
`Petitioner argues that the challenged claims are unpatentable based
`upon the following grounds:
`
`Reference(s)
`Talmon2
`Talmon and Aspectus4
`Talmon and Brill5
`
`Basis
`§ 102(e)3
`§ 103
`§ 103
`
`Challenged Claims
`1–4, 6–36
`1–4, 6–36
`1–4, 6–36
`
`
`
`II. ANALYSIS
`A. 35 U.S.C. § 325(d)
`Institution of an inter partes review is discretionary. See Harmonic
`Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1367 (Fed. Cir. 2016) (explaining
`that under § 314(a), “the PTO is permitted, but never compelled, to institute
`an IPR proceeding”). Accordingly, our rules provide that “the Board may
`authorize the review to proceed.” 37 C.F.R. § 42.108(a) (emphasis added).
`Our discretionary determination of whether to institute review is guided, in
`part, by 35 U.S.C. § 325(d), which states, in relevant part:
`
`
`2 U.S. Patent No. 8,004,563 B2, filed July 3, 2003, issued Aug. 23, 2011
`(Ex. 1003, “Talmon”).
`3 The Leahy-Smith America Invents Act, Pub. L. No. 112–29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. §§ 102 and 103. Because the ’912 has
`an effective filing date before September 16, 2012, the effective date of the
`applicable AIA amendments, we refer to the pre-AIA versions of §§ 102
`and 103.
`4 Aspectus Video Intelligence System VI-SystemTM (Brochure) (2003–2004)
`(Ex. 1005, “Aspectus”).
`5 Frank Brill et al., Event Recognition and Reliability Improvements for the
`Autonomous Video Surveillance System, Proceedings of a Workshop held in
`Monterey California, pp. 267–283 (Nov. 20–23, 1998) (Ex. 1004, “Brill”).
`
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`MULTIPLE PROCEEDINGS— . . . In determining
`whether to institute or order a proceeding under this chapter,
`chapter 30, or chapter 31, the Director may take into account
`whether, and reject the petition or request because, the same or
`substantially the same prior art or arguments previously were
`presented to the Office.
`35 U.S.C. § 325(d).
`Our discretion under § 325(d) involves a balance between several
`competing interests. See Neil Ziegmann, N.P.Z., Inc. v. Stephens, Case
`IPR2015–01860, slip op. at 12–13 (PTAB Feb. 24, 2016) (Paper 11)
`(“While petitioners may have sound reasons for raising art or arguments
`similar to those previously considered by the Office, the Board weighs
`petitioners’ desires to be heard against the interests of patent owners, who
`seek to avoid harassment and enjoy quiet title to their rights.”) (citing
`H. Rep. No. 112–98, pt. 1, at 48 (2011)). “On the one hand, there are the
`interests in conserving the resources of the Office and granting patent
`owners repose on issues and prior art that have been considered previously.”
`Fox Factory, Inc. v. SRAM, LLC, Case IPR2016–01876, slip op. 7 (PTAB
`Apr. 3, 2017) (Paper 8). “On the other hand, there are the interests of giving
`petitioners the opportunity to be heard and correcting any errors by the
`Office in allowing a patent—in the case of an inter partes review—over
`prior art patents and printed publications.” Id.
`Petitioner contends that claims 1–4 and 6–36 of the ’912 patent are
`unpatentable under 35 U.S.C. § 102(e) as anticipated by Talmon or under
`§ 103 as obvious over Talmon in combination with other asserted art. See
`Pet. 2. Petitioner’s contentions are premised on its argument that the
`challenged claims are not entitled to the benefit of the November 15, 2001
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`filing date of U.S. Application No. 09/987,707 (“the ’707 application”)6 for
`failure to satisfy the requirements of 35 U.S.C. § 112. See id. at 21–27.
`Specifically, Petitioner contends that each of the challenged claims “recite”
`or “encompass” “two-processor systems” in which the second processor
`determines events based on attributes that were detected by the first
`processor. Petitioner contends that the second processor of the ’707
`application does not determine any events but merely responds to events
`determined by the first processor. Id. at 21–22 (emphasis added) (citing
`Ex. 1006 ¶¶ 117–131; Ex. 1038). Although Petitioner acknowledges that
`“this issue was considered during the ex parte reexamination of the ’912
`patent,” Petitioner argues “the Examiner made a clear error in determining
`the claimed two-processor system was disclosed in Application No.
`09/987,707, filed November 15, 2001.” Id. at 22.
`Patent Owner responds that we should deny institution of all grounds
`under 35 U.S.C. § 325(d) because the issue of whether the claims of the ’912
`patent are entitled to claim priority to the November 15, 2001 filing date of
`the ’707 application was considered and properly decided during the
`ex parte reexamination proceeding of the ’912 patent. See Prelim. Resp. 15–
`20.
`
`For the reasons that follow, we exercise our discretion under
`35 U.S.C. § 325(d) and decline to institute inter partes review of the claims
`of the ’912 patent.
`The issue of whether claims 1–4 and 6–22 of the ’912 patent are
`supported by the ’707 application was considered and decided during the
`
`
`6 The ’912 patent claims priority to the ’707 application through a series of
`continuation-in-part applications. See Ex. 1001, [63].
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`ex parte reexamination proceeding. See Ex. 1016, 29–37; Ex. 1017, 6–7.
`For example, during the reexamination proceeding, relying on a declaration
`and “priority chart” by Dr. Zeger (Ex. 2004), Patent Owner argued the “first
`processor” of claim 1 of the ’912 patent is disclosed in Figures 1, 4, 5, and 9
`and paragraphs 49, 96, 106–117, and 148 of the ’707 application (Ex. 1038).
`See Ex. 1016, 31–33; Ex. 2004 ¶¶ 46–50, pp. 76–79, 84–87. Patent Owner
`also argued the “second processor” of claim 1, which determines events by
`analyzing received determined attributes from the first processor over a
`communications link, is disclosed in Figures 3, 4, 6, and 9 and paragraphs
`48, 49, 96–104, 117–124, and 148–151 of the ’707 application. See
`Ex. 1016, 31–33; Ex. 2004 ¶¶ 46–50, pp. 79–84, 86–87.
`In particular, Patent Owner argued that the disclosure in paragraph 96
`of the ’707 application of “forwarding . . . video primitives to another
`computer system via a network” provides support for both a first computer
`system that determines attributes (the processor of claim 1), as well as a
`second computer system that “receive[s] first the determined attributes/video
`primitives transferred from the first computer system over the
`network/communications link.” Ex. 1016, 31 (citing Ex. 20047 ¶ 48).
`Patent Owner also argued that because paragraph 118 of the ’707
`application “discloses that event discriminators, which are used to determine
`events from the attributes/video primitives are determined from tasking, the
`disclosure of ‘tasking . . . another computer system’ [in paragraph 96] is
`
`
`6 For clarity and convenience, this Decision will identify citations to the ’707
`application and to Zeger Declaration made during the ex parte
`reexamination proceeding as being made to Exhibit 1038 and Exhibit 2004
`respectively.
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`explicit support for a second . . . computer system that is tasked to determine
`events by analyzing attributes/video primitives.” Ex. 1016, 32 (citing
`Ex. 2004 ¶ 48); Ex. 1038 ¶ 118, Figs. 2, 4. Patent Owner explained that a
`person of ordinary skill in the art (“POSITA”) would have understood that
`by disclosing “tasking . . . another computer system” by the first computer
`system 11 “in response to detection of an event,” the inventors “were in
`possession of an invention where event determination is performed by the
`other computer systems regardless of the specific manner in which the other
`computer systems were tasked.” Id. Patent Owner also explained that a
`POSITA would have understood that by disclosing both (1) “tasking . . .
`another computer system” to determine events using video primitives and
`(2) “forwarding . . . video primitives . . . to another computer system via a
`network,” the “inventors were in possession of an invention where the other
`computer system tasked to determine events using video primitives would
`use any video primitives to determine the events, including forwarded video
`primitives.” Ex. 1016, 32–33 (citing Ex. 2004 ¶ 49).
`Dr. Zeger cited to, inter alia, paragraphs 118 and 148–151 of the ’707
`application as disclosing a first processor that determines attributes and a
`second processor that determines events. See Ex. 2004 ¶¶ 46–58, pp. 76–87.
`For example, Dr. Zeger states paragraph 118 of the ’707 application
`discloses that the “system analy[z]es archived video primitives with event
`discriminators to generate reports, for example without needing to review
`the entire source video. . . . The video content can be reanalyzed . . . in a
`relatively short period of time because only video primitives are reviewed
`and because the video source is not reprocessed.” Ex. 2004 ¶ 52 (quoting
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`Ex. 1038 ¶ 148); see also id. ¶¶ 31, 55 (stating Fig. 9 and ¶¶ 38, 44, 48, 66,
`67, 96, 148, 150, 151 of the ’707 application support limitations of claim 1).
`The Examiner agreed with Patent Owner’s arguments and found the
`’707 application adequately supported the claims of the ’912 patent. See
`Ex. 1017, 6–7 (citing Ex. 2004 ¶¶ 45–58; Ex. 1038 ¶¶ 96, 106, 148–151).
`The Examiner stated paragraph 106 of the ’707 application discloses a first
`processor that determines video attributes and paragraph 96 discloses
`forwarding video primitives data to another computer system (e.g., a second
`processor) “capable of being tasked.” Ex. 1017, 7. The Examiner also
`stated paragraphs 148–151, which discuss the embodiment of Figure 9,
`disclose another computer system (e.g., a second processor) that “was
`further capable of independently determining events.” Id. The Examiner
`quoted paragraph 148, which states “the system [of Figure 9] analyzed
`archived primitives to generate additional reports.” Id.
`Petitioner argues the Examiner erred because “the patentee relied on
`paragraph 96 [describing block 34 of Figure 3] of the ’707 application as
`allegedly supporting the claims,” but “[n]othing in block 34 of paragraph 96
`discloses a first processor detecting attributes and a second processor
`determining events based on those attributes.” Pet. 23–24 (emphasis added)
`(citing Ex. 1006 ¶ 125). Petitioner contends that “[a]t most, [the examples
`discussed in paragraph 96] relate to a first computer system to detect events
`and attributes, and a second computer system for handling a response, but
`none support the claims.” Id. at 25 (citing Ex. 1006 ¶ 125).
`This argument is not persuasive because Patent Owner also argued
`paragraph 118 “discloses that event discriminators, which are used to
`determine events from the attributes/video primitives are determined from
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`tasking.” Ex. 1016, 32 (citing Ex. 2004 ¶ 48); Ex. 1038 ¶ 118, Figs. 2, 4.
`Patent Owner asserted because of this disclosure in paragraph 118, the
`disclosure of “‘tasking . . . another computer system’ [in paragraph 96] is
`explicit support for a second . . . computer system that is tasked to determine
`events by analyzing attributes/video primitives.” Ex. 1016, 32. Petitioner
`does not adequately address these additional arguments.
`Petitioner does state that any argument by Patent Owner that “the
`disclosure of ‘tasking . . . another computer system’ in response to detecting
`an event” in paragraph 96 supports the claims is wrong because “this
`sentence” does not “indicat[e] or require[e] that the second event is based on
`attributes determined by the first processor.” Pet. 25 (citing Ex. 1016, 32;
`Ex. 1038 ¶ 96; Ex. 1006 ¶ 126). This argument is not persuasive because,
`again, Petitioner does not address Patent Owner’s arguments that paragraph
`118, in addition to paragraph 96, supports a second computer system that is
`tasked to determine events by analyzing video primitives. See Ex. 1016, 32.
`Petitioner also contends that the disclosure of saving data to a
`computer-readable medium does not support the claims because “a POSITA
`would understand that saving such data would be a reasonable response to
`take when an event is detected so the user can review the saved data or
`create reports” and “there is no reason to conclude this data would be used
`again to detect an event.” Pet. 25–26 (citing Ex. 1038 ¶¶ 65, 74, 124, 148;
`Ex. 1006 ¶ 127). This conclusory argument is not persuasive because
`paragraph 148 expressly states that the system of Figure 9 analyzes
`“archived video primitives with event discriminators to generate additional
`reports.” Ex. 1038 ¶ 148. Thus, paragraph 148 can be understood as
`disclosing a system that analyses archived video primitives with event
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`discriminators (e.g., a second processor that detects an event) and that this
`analysis is used to generate additional reports. Nor does Petitioner address
`Dr. Zeger’s priority claim chart, attached as Exhibit Z2 to his declaration,
`which cites to numerous other portions of the ’707 application for support
`for the two processors recited in claim 1. See, e.g., Ex. 2004, pp. 76–89
`(citing Ex. 1038, Figs. 1, 3–6, 9, ¶¶ 48, 49, 67, 96–104, 106–124, 148–151).
`Petitioner also argues the ’707 application does not support the
`challenged claims because Patent Owner did not so argue during prosecution
`of the application that gave rise to the ’912 patent. See Pet. 23. We
`disagree. The arguments Patent Owner chose to present during prosecution
`were sufficient to secure allowance of the ’912 patent, and, therefore, Patent
`Owner did not need to argue the ’707 application supported the claims of the
`’912 patent in order to secure allowance of the claims. Petitioner does not
`persuasively explain why we should determine that failure to present
`arguments unnecessary to secure allowance of a claim is evidence that the
`’707 application does not support the challenged claims.
`For the foregoing reasons, we determine Petitioner fails to present
`sufficient evidence or argument to convince us that the Examiner’s
`determination during the ex parte reexamination proceeding that the
`challenged claims of the ’912 patent are supported by the ’707 application
`was unreasonable or in error. Accordingly, we determine that re-
`adjudicating an issue already presented and considered by the Office would
`not be an efficient use of Board resources. See Unified Patents Inc. v.
`Berman, Case IPR2016-01571, slip op. at 12 (PTAB Dec. 14, 2016) (Paper
`10) (informative) (“Petitioner fails to present any argument distinguishing
`the Examiner’s prior consideration of [the references] or to provide a
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`compelling reason why we should re-adjudicate substantially the same prior
`art and arguments as those presented during prosecution and considered by
`the Examiner. This would not be an efficient use of Board resources in this
`matter.”). We, therefore, exercise our discretion and decline to institute inter
`partes review of the challenged claims.
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that the Petition is denied as to all challenged claims, and
`no trial is instituted.
`
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`For PETITIONER:
`
`AXIS COMMUNICATIONS AB
`C. Gregory Gramenopoulos
`Jessica L.A. Marks
`Finnegan, Henderson, Farabow, Garrett & Dunner LLP
`gramenoc@finnegan.com
`jessica.marks@finnegan.com
`
`CANON INC. AND CANON U.S.A., INC.
`Joseph A. Calvaruso
`Richard F. Martinelli
`Orrick, Herrington & Sutcliffe LLP
`jcalvaruso@orrick.com
`rfmptabdocket@orrick.com
`
`
`For PATENT OWNER:
`Eugene Goryunov
`Michael Dokhanchy
`KIRKLAND & ELLIS LLP
`egoryunov@kirkland.com
`reza.dokhanchy@kirkland.com
`
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