UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`Canon Inc., Canon U.S.A., Inc., and Axis Communications AB,
`
`Petitioners,
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`v.
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`Avigilon Fortress Corporation,
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`Patent Owner.
`______________________
`
`Case No. IPR2019-00311
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`U.S. Patent No. 7,932,923
`______________________
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`PATENT OWNER’S SUR-REPLY TO PETITIONERS’ REPLY
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`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`Canon Inc., Canon U.S.A., Inc., and Axis Communications AB,
`
`Petitioners,
`
`v.
`
`Avigilon Fortress Corporation,
`
`Patent Owner.
`______________________
`
`Case No. IPR2019-00311
`
`U.S. Patent No. 7,932,923
`______________________
`
`
`PATENT OWNER’S SUR-REPLY TO PETITIONERS’ REPLY
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
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`TABLE OF CONTENTS
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`B.
`
`C.
`
`Page
`Introduction .................................................................................................... 1
`I.
`II. Collateral Estoppel Does Not Apply ............................................................ 1
`A.
`The ’923 Patent Presents Different Issues ............................................ 2
`B.
`The Issues In The ’923 Patent Have Not Been Actually
`Litigated ................................................................................................. 5
`III. Claim Construction ....................................................................................... 5
`A.
`“New User Rule” (Claims 1-41) ........................................................... 5
`B.
`“Applying” (Claims 1-41) ..................................................................... 6
`C.
`“Independent” (Claims 1-41) ................................................................ 7
`D.
`“Only” (Claims 1-41) ............................................................................ 8
`IV. The Challenged Claims Are Patentable ...................................................... 9
`A.
`Kellogg Does Not Disclose A System That Functions Using
`Only A “Single Camera” ....................................................................... 9
`Kellogg Does Not Disclose “Selecting A New User Rule After
`Detecting The Plurality Of Attributes” ............................................... 11
`Kellogg Does Not Disclose “Applying The New User Rule To
`The Plurality Of Detected Attributes” ................................................. 12
`Kellogg Does Not Disclose “Applying The New User Rule To
`Only The Plurality Of Detected Attributes” ........................................ 14
`Kellogg Does Not Disclose “The Plurality Of Attributes That
`Are Detected Are Independent Of Which Event Is Identified” .......... 15
`
`D.
`
`E.
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`i
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`F.
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
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`G.
`H.
`
`I.
`
`B.
`
`Kellogg Does Not Disclose “Selecting The New User Rule
`Comprises Selecting A Subset Of The Plurality Of Attributes
`For Analysis” ....................................................................................... 17
`Kellogg Does Not Disclose “A Video Device” .................................. 18
`Kellogg In Combination With Brill Does Not Disclose A
`“Single Camera” .................................................................................. 18
`Kellogg In Combination With Brill Does Not Disclose
`“Applying The New User Rule To Only The Plurality Of
`Detected Attributes” ............................................................................ 19
`V. Motivation To Combine .............................................................................. 20
`VI. Objective Indicia Of Non-Obviousness ..................................................... 20
`VII. Kellogg and Brill Are Not Printed Publications ....................................... 21
`A.
`Evidence In The Petition Fails To Establish Kellogg And Brill
`Were Printed Publications ................................................................... 21
`The Supplemental Information Fails To Establish Kellogg And
`Brill Were Printed Publications ........................................................... 22
`VIII. Conclusion .................................................................................................... 24
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`ii
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`ABS Global v. Inguran, LLC,
`IPR2016-00927, Paper 33 (PTAB Oct. 2, 2017) .......................................... 23, 25
`Acceleration Bay, LLC v. Activision Blizzard Inc.,
`908 F.3d 765 (Fed. Cir. 2018) ............................................................................ 24
`Apple Inc. v. VirnetX Inc.,
`IPR2016-01585, 2018 WL 1014160 (Fed. Cir. 2018) .......................................... 5
`Argentum Pharm. LLC v. Research Corp. Tech., Inc.,
`IPR2016-00204, Paper 19 (PTAB May 23, 2016) ............................................. 24
`Axis Commc’n AB, et. al. v. Avigilon Fortress Corp.,
`IPR2018-00138, Paper 11 (PTAB Sept. 4, 2018) ......................................... 10, 14
`Axis Commc’n v. Avigilon Fortress Corp.,
`IPR2018-00138, Paper 25 (May 30, 2019) ......................................................... 16
`Deere & Co. v. Gramm,
`IPR2015-00899, 2019 WL 7000102 (Fed. Cir. 2019) .......................................... 5
`Ford Motor Co. v. Versara Dev. Grp., Inc.,
`IPR2016-01019, Paper 9 (PTAB Oct. 4, 2016) .................................................. 25
`In re Freeman,
`30 F.3d 1459 (Fed. Cir. 1994) .............................................................................. 5
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) .......................................................................... 20
`Nestle USA, Inc. v. Steuben Foods, Inc.,
`884 F.3d 1350 (Fed. Cir. 2018) ............................................................................ 5
`Net MoneyIN, Inc. v. VeriSign, Inc.,
`545 F.3d 1359 (Fed. Cir. 2008) .......................................................................... 16
`Ohio Willow Wood Co. v. Alps South LLC,
`735 F.3d 1333 (Fed. Cir. 2013) ........................................................................ 5, 7
`iii
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`Rivera v. Remington Designs, LLC,
`Case No. LA CV 16-04676 JAK, 2017 WL 3449615 (C.D. Cal.
`Jul. 7, 2017) ....................................................................................................... 4, 5
`Statutes
`35 U.S.C. § 312(a)(3) ............................................................................................... 20
`
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`PATENT OWNER’S EXHIBIT LIST
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`Description
`
`i
`
`Exhibit
`No.
`2001 Declaration of Michael W. De Vries in Support of Unopposed Motion
`to Appear Pro Hac Vice on Behalf of Patent Owner Avigilon Fortress
`Corporation.
`
`2002 Declaration of Adam R. Alper in Support of Unopposed Motion to
`Appear Pro Hac Vice on Behalf of Patent Owner Avigilon Fortress
`Corporation.
`
`2003 Declaration of Akshay S. Deoras in Support of Unopposed Motion to
`Appear Pro Hac Vice on Behalf of Patent Owner Avigilon Fortress
`Corporation.
`
`37 C.F.R. § 1.132 Declaration of Kenneth A. Zeger (excerpt of U.S.
`Patent No. 7,868,912 Reexamination).
`
`Thomas Olson & Frank Brill, Moving Object Detection & Event
`Recognition Algorithms for Smart Cameras, 1 PROC. 1997 IMAGE
`UNDERSTANDING WORKSHOP 159-175 (1997).
`
`Jonathan D. Courtney, Automatic Video Indexing Via Object Motion
`Analysis, 30(4) PATTERN RECOGNITION 607-625 (1997).
`
`2007 U.S. Patent No. 6,628,835 to Brill et al.
`
`2008 Young Francis Day, et al, Spatio-Temporal Modeling of Video Data
`for On-Line Object-Oriented Query Processing, Proceedings of the
`International Conference on Multimedia Computing and Systems 98-
`105 (1995).
`
`Second Supplemental Amendment, U.S. Patent No. 7,932,923 (Feb. 4,
`2011).
`
`IPR2018-00138; IPR2018-00140, Ex. 2009 (Grindon Dep. Transcript
`Aug. 15, 2018).
`
`
`2004
`
`2005
`
`2006
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`2009
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`2010
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`2012
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`2013
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`2016
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
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`Description
`
`Exhibit
`No.
`2011 Declaration of Jennifer A. Babbitt.
`
`SearchWorks Catalog Entry for Thomas Olson & Frank Brill, Moving
`Object Detection & Event Recognition Algorithms for Smart Cameras,
`1 PROC. 1997 IMAGE UNDERSTANDING WORKSHOP 159-175 (1997).
`
`Scanned Cover and Front Matter of Jonathan D. Courtney, Automatic
`Video Indexing Via Object Motion Analysis, 30(4) PATTERN
`RECOGNITION 607-625 (1997)
`
`2014 MARC Standards Wikipedia Search.
`
`2015 Declaration of Jennifer A. Babbitt for Sur-Reply.
`
`LinkedIn Profile of Marilyn McSweeney.
`
`2017 Declaration of Jennifer A. Babbitt in Support of Patent Owner’s
`Opposition to Petitioner’s Motion for Authorization to Compel
`Testimony and/or Documents.
`
`2018 Deposition Transcript of John Grindon, D.Sc. dated October 2, 2019.
`
`2019 Declaration of Dr. Alan Bovik in Support of Patent Owner’s
`Responses to Inter Partes Review of U.S. Patent No. 7,932,923.
`
`2020 Dr. Alan Bovik Curriculum Vitae.
`
`2021 David G. Lowe, Distinctive Image Feature From Scale-Invariant
`Keypoints, 60(2) INTERNATIONAL JOURNAL OF COMPUTER
`VISION 91-110 (2004).
`
`2022 Herbert Bay, et al., Speeded-Up Robust Features (SURF), 110
`COMPUTER VISION AND IMAGE UNDERSTANDING 346-359
`(2008).
`
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`Exhibit
`No.
`2023 Declaration of Jennifer A. Babbitt in Support of Patent Owner’s
`Response.
`
`
`Description
`
`
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`iii
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
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`I.
`
`INTRODUCTION
`
`Rather than engage directly with the missing disclosures in the asserted prior
`
`art, Petitioners focus their Reply on collateral estoppel—an argument raised for the
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`first time in the Reply—alleging that the Board’s decisions regarding U.S. Patent
`
`No. 8,564,661 (“’661 patent”) control the outcome here. But, as explained below,
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`the ’661 patent and the ’923 patent claim different inventions. The law is clear that
`
`collateral estoppel does not apply in situations like this, and Petitioners’ new
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`argument should be rejected.
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`The remainder of the Reply also fails to cure the deficiencies in the prior art
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`and the Petition. Although Petitioners contend in several places that the testimony
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`of Patent Owner’s expert Dr. Bovik supports their positions, his deposition transcript
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`reveals that Petitioners repeatedly omit and misquote key portions of his testimony.
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`Without the selective omissions, Dr. Bovik’s testimony confirms the opinions set
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`forth in his declaration that the challenged claims of the ’923 patent are not invalid.
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`At bottom, Petitioners fail to adequately rebut the arguments set forth in Patent
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`Owner’s Response, and thus Petitioners fail to meet their burden.
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`II. COLLATERAL ESTOPPEL DOES NOT APPLY
`
`Collateral estoppel does not apply to any issues in the instant proceeding. The
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`Board has never issued a final written decision concerning the ’923 patent, and
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`significant differences exist between the ’923 patent and the ’661 patent.
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`Accordingly, Petitioners have not shown that any issue Patent Owner raises here (1)
`
`is the same as an issue in a prior action and (2) was actually litigated.
`
`A. The ’923 Patent Presents Different Issues
`
`Petitioners argue that some of the proposed claim constructions and
`
`arguments should be collaterally estopped because the ’661 patent and the ’923
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`patent “claim priority to the same application and use the same claim terms” and
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`“portions of the specifications and figures are identical.” Paper 31 at 3. But “a court
`
`cannot impose collateral estoppel to bar a claim construction dispute solely because
`
`the patents are related.” Rivera v. Remington Designs, LLC, Case No. LA CV 16-
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`04676 JAK (SSx), 2017 WL 3449615 at *4-5 (C.D. Cal. Jul. 7, 2017). Instead,
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`“[e]ach case requires a determination that each of the requirements of collateral
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`estoppel are met, including that the issue previously decided is identical to the one
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`sought to be litigated.”1 Id. Here, the claims and the proposed constructions at issue
`
`in the instant proceeding do not “embrace the same material scope” such that the
`
`issues are identical to the prior actions. Apple Inc. v. VirnetX Inc., IPR2016-01585,
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`2018 WL 1014160 at *25 (Fed. Cir. 2018). It would run against collateral estoppel’s
`
`doctrine of fairness to prevent Patent Owner from vigorously defending new issues
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`1 All emphasis throughout added unless otherwise noted.
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`2
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`raised here merely because the ’923 patent claims priority to a parent of the ’661
`
`patent. In re Freeman, 30 F.3d 1459, 1467 (Fed. Cir. 1994).
`
`In particular, because the ’923 patent discloses a separate invention from the
`
`’661 patent, including a distinct prosecution history and different claims, “a separate
`
`claim construction issue is presented.” Rivera, 2017 WL 3449615 at *5. Thus,
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`Petitioners’ reliance on Nestle USA, Inc. v. Steuben Foods, Inc., 884 F.3d 1350, 1351
`
`(Fed. Cir. 2018) for the premise that “estoppel applies against similar claim terms
`
`from related patents,” (Paper 31 at 2), misses the point. Collateral estoppel does not
`
`apply when differences in the function of the claim language “materially alter[s] the
`
`question of unpatentability.” Deere & Co. v. Gramm, IPR2015-00899, 2019 WL
`
`7000102 at *13-14 (Fed. Cir. 2019); see Ohio Willow Wood Co. v. Alps South LLC,
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`735 F.3d 1333, 1343 (Fed. Cir. 2013).
`
`As an example, claim 1 of both the ’661 patent and the ’923 patent are
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`reproduced below to show they disclose distinct inventions that materially differ:
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`3
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`IPR2019-00311
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`
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`Compare Ex. 1035, Claim 1 with Ex. 1001, Claim 1 (annotated). As seen above, for
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`example, the ’923 patent requires that objects are detected in a single camera,
`
`whereas the ’661 patent does not. Prior-art teachings that use multiple cameras—
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`like Petitioners’ prior-art references—do not teach the claims of the ’923 patent,
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`even if they would otherwise disclose the ’661 patent claims. Moreover, the ’923
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`patent explicitly requires that both a physical and temporal attribute are detected in
`
`the single camera—a requirement absent from the ’661 patent claims. Furthermore,
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`the ’661 patent does not require the new user rule be applied to only the detected
`
`attributes, as the ’923 patent does. In fact, it requires something entirely different:
`
`identification of events that “do not require analysis of all of the plurality of
`
`attributes.” Ex. 1035, Claim 1. Such differences indicate that the two patents
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`4
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`disclose separate inventions with materially different scope, and are not just “the
`
`mere use of different words.” Ohio Willow Wood, 735 F.3d at 1343.
`
`B.
`
`The Issues In The ’923 Patent Have Not Been Actually Litigated
`
`Petitioners have also failed to show that “the claim construction and the
`
`content of the prior art” in the ’923 patent were “actually litigated” in the ’661 patent.
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`Paper 31 at 3. Rather, as further explained below in Sections III through VII, Patent
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`Owner’s proposed claim construction, the incompatibility of Kellogg and Brill, and
`
`the printed publication status of the prior art are new issues raised for the first time
`
`in this proceeding. As such, Petitioners have failed to satisfy this second required
`
`factor and their collateral estoppel argument should fail.
`
`III. CLAIM CONSTRUCTION
`
`A.
`
` “New User Rule” (Claims 1-41)
`
`Petitioners argue that Patent Owner is collaterally estopped from arguing that
`
`a “new user rule” requires a response. Paper 31 at 5. But “user rule” in the ’661
`
`patent and “new user rule” in the ’923 patent are not the same term, and do not
`
`present the same issue. Unlike the ’923 patent where a new user rule is “select[ed],”
`
`the ’661 patent describes several ways of “creating” a “user rule” in its specification
`
`in passages not found in the ’923 patent. Compare Ex. 1001, Claim 1 with Ex. 1035,
`
`Claim 1, 12:22-32, 18:8-14. The ’923 patent also specifies that the “new user rule”
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`5
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`is selected “after detecting the plurality of attributes,” a requirement absent from the
`
`’661 patent.
`
`B.
`
` “Applying” (Claims 1-41)
`
`Petitioners argue that the term “applying” does not require “analysis” and that
`
`a “query” is sufficient to satisfy this limitation. Paper 31 at 6. To the contrary, a
`
`query merely retrieves data and does not apply the new user rule to the detected
`
`attributes.2 The ’923 patent, however, explains that the purpose of “applying the
`
`new user rule to the plurality of detected attributes” is to “identify[] an event of the
`
`object that is not one of the detected attributes of the object.” Ex. 1001, Claim 1.
`
`The claim language confirms that some form of analysis must take place to confirm
`
`that the identified event is “not one of the detected attributes.” Id. Thus, Petitioners’
`
`assertion that “a ‘query’ must examine the attributes to find a match for collection
`
`of attributes specified by the user rule” is not enough to indicate that a “query” meets
`
`the claim limitation. Paper 31 at 6 (original emphasis). Namely, “find[ing] a match”
`
`is nothing more than data retrieval; it provides no analysis to confirm that the
`
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`2 A POSITA would understand that a query is just “a request for data or
`information from a database table or a combination of tables.”
`https://www.techopedia.com/definition/5736/query.
`3 A “subset” is a set each of whose elements is an element of an inclusive set.
`https://www.merriam-webster.com/dictionary/subset
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`6
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`identified event is “not one of the detected attributes of the object.” See Ex. 1001,
`
`Claim 1.
`
`Although Petitioners contend that Dr. Bovik admitted that “‘querying’ meets
`
`the ‘applying’ limitation,” their Reply selectively quotes from Dr. Bovik’s
`
`deposition testimony, omitting testimony that directly contradicts their assertions:
`
`
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`Paper 31 at 7. But Petitioners omit the end of the sentence, where Dr. Bovik
`
`explained that “[a] POSITA would understand that the claim limitation ‘applying
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`the new user rule to only the plurality of detected attributes’ means a system that can
`
`search, query, or analyze anything other than attributes does not meet this
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`limitation.” Ex. 2019 at 42.
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` Accordingly, contrary
`
`to Petitioners’
`
`mischaracterizations, Dr. Bovik was discussing a different claim limitation and
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`asserting that, whatever is alleged to meet the “applying” step, it must act on only
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`attributes. He did not “admit[]” that a query satisfies the “applying” limitation.
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`C.
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`“Independent” (Claims 1-41)
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`Petitioners claim that collateral estoppel applies to the “independent” terms
`
`because the Board rejected Patent Owner’s argument in the ’661 patent IPR. Paper
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`31 at 8. But the ’923 patent discloses a different invention from the ’661 patent, and
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`7
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`the rejected construction in the ’661 patent is not the same as the one proposed in
`
`the instant proceeding. See supra Section II. In the ’661 patent, Patent Owner
`
`proposed construing the “independent” terms as “the plurality of detected attributes
`
`are detected without regard to or knowledge of a predefined/predetermined list of
`
`events of interest.” Axis Commc’n AB, et. al. v. Avigilon Fortress Corp., IPR2018-
`
`00138, Paper 11 at 29 (PTAB Sept. 4, 2018). In contrast, in the instant proceeding,
`
`Patent Owner proposed construing the terms as requiring that “the attributes are
`
`detected without regard to or knowledge of events or identification of events.” Paper
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`27 at 11-12. The construction in the ’661 patent limited the independence element
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`to only “a predefined/predetermined list of events,” (IPR2018-00138, Paper 11 at
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`29), whereas in the ’923 patent, attribute detection must be independent of events or
`
`identifications of events, even if not “predefined” or “predetermined,” (Ex. 1001,
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`Claim 1). Moreover, the claims of the ’661 patent and the ’923 patent require
`
`different types of attribute and event detection. For example, the ’661 patent requires
`
`the detected attributes to be independent of the identified event such that the “events
`
`may be defined that do not require analysis of all of the plurality of attributes.” See
`
`Ex. 1035, Claim 1. The ’923 patent makes no such requirement. See Ex. 1001,
`
`Claim 1.
`
`D.
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`“Only” (Claims 1-41)
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`8
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`Petitioners claim that there is “no claim or specification support for the
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`argument that a system must completely exclude searches on abstractions” because
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`“the ’923 patent does not disclose any benefits or reasons to avoid searching
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`abstractions.” Paper 31 at 9. First, the specification clearly distinguishes attributes
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`(video primitives) from “abstractions thereof.” Ex. 1001 at 8:16-17, 8:50-53 (“video
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`primitives (or their abstractions)”). The claim language then unambiguously only
`
`covers attributes by requiring “applying the new user rule to only the plurality of
`
`detected attributes.” Ex. 1001, Claim 1. This is confirmed by the prosecution
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`history, where the applicant added the phrase “wherein the applying the new user
`
`rule to the plurality of detected attributes comprises applying the new user rule to
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`only the plurality of detected attributes” during reexamination. Ex. 1016 at 8; Ex.
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`1018 at 7.
`
`Petitioners also misconstrue Dr. Bovik’s testimony by claiming that he
`
`admitted abstractions “‘might be involved in’ ‘defining events.’” Paper 31 at 9. In
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`actuality, Dr. Bovik testified that “there could be some abstraction somewhere, you
`
`know, involved in the 923, but not the objects, not the attributes.” Ex. 1056 at
`
`156:17-157:5.
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`IV. THE CHALLENGED CLAIMS ARE PATENTABLE
`
`A. Kellogg Does Not Disclose A System That Functions Using Only A
`“Single Camera”
`
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`9
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`Petitioners argue that the ’923 patent does not preclude systems with multiple
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`cameras like Kellogg because “[n]othing in the ’923 patent suggests that its inventors
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`invented technology for single camera object detection.” Paper 31 at 11. Not so.
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`The ’923 patent claims themselves show that the inventors invented a single-camera
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`system for attribute detection. To the extent Petitioners are making a Section 112
`
`argument, that is improper in an IPR. Regardless, Kellogg does not disclose a system
`
`that can function with only a single camera. See, e.g., Ex. 1003 at 10, 19, 68; Ex.
`
`2019 at 34.
`
`Having failed to find a disclosure of a single-camera system in Kellogg,
`
`Petitioners raise a host of new arguments. First, Petitioners contend that the
`
`specification of the ’923 patent also discloses systems with multiple cameras. Paper
`
`31 at 10. Even if true, this is irrelevant. The claims require “detecting an object in
`
`a video from a single camera” and “detecting a plurality of attributes of the object
`
`by analyzing the video from single camera.” Ex. 1001, Claim 1. A system must
`
`meet these limitations to fall within the scope of the claim. To the extent Petitioners
`
`argue the ’923 patent does not enable single camera operation, Patent Owner
`
`disagrees, but that is irrelevant for this proceeding. Paper 31 at 11.
`
`Second, Petitioners contend that Patent Owner’s expert, Dr. Bovik,
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`“admitt[ed]” that “object detection from a single camera” is not “the invention.”
`
`Paper 31 at 11. But Dr. Bovik was explaining the opposite of what Petitioners are
`
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`10
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`implying. He testified that the requirement to use a single camera is not limited to
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`just object detection but is relevant to all claim elements. Ex. 1056 at 22:22 - 23:14.
`
`Third, Petitioners erroneously claim that Dr. Bovik admitted that Kellogg
`
`shows object detection and tracking. Paper 31 at 12. In fact, Dr. Bovik simply
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`explained that Kellogg was not concerned with occlusion during object detection,
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`which is consistent with his testimony that Kellogg is not concerned with object
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`detection at all. Ex. 2019 at 29-30. Even if the Board agrees with Petitioners that
`
`Kellogg discloses detecting objects, nothing in Kellogg or Dr. Bovik’s testimony
`
`shows that Kellogg does so “from a single camera” as required.
`
`B.
`
`Kellogg Does Not Disclose “Selecting A New User Rule After
`Detecting The Plurality Of Attributes”
`Petitioners’ sole argument that Kellogg discloses “selecting a new user rule
`
`after detecting the plurality of attributes” is that Kellogg searches the “pre-collected
`
`centroid trajectories of moving objects.” Paper 31 at 13. But the term “event” is
`
`defined in the ’923 patent as “one or more objects engaged in an activity,” and
`
`“moving” is an example given for the expressly defined term, “activity.” Ex. 1001
`
`at 3:30-34, 44-46. Thus, although “trajectories” in the abstract may be an attribute,
`
`recording “pre-collected centroid trajectories of moving objects” is recording an
`
`event. Thus, Kellogg detects events, not attributes. See Ex. 1001, Claim 1; Paper
`
`27 at 22-23.
`
`
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`11
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`C. Kellogg Does Not Disclose “Applying The New User Rule To The
`Plurality Of Detected Attributes”
`Petitioners incorrectly assert that Patent Owner is estopped from arguing that
`
`Kellogg does not disclose the limitation of “applying the new user rule to the
`
`plurality of detected attributes,” because “the issue of the scope and content of
`
`Kellogg as compared to Courtney has already been actually litigated.” Paper 31 at
`
`14. That is incorrect. The ’661 patent and ’923 patent claim different things: the
`
`’661 patent requires “applying the user rule to at least some of the plurality of
`
`attributes,” while the ’923 patent requires “applying the new user rule to the plurality
`
`of detected attributes.” Compare Ex. 1035, Claim 1 with Ex. 1001, Claim 1. As
`
`noted in Section III.A, the term “new user rule” does not appear in the ’661 patent.
`
`Moreover, the ’661 patent only requires applying the rule to some of the detected
`
`attributes, while the ’923 patent requires applying the rule to “the plurality of
`
`detected attributes.” Neither of these issues is identical to or was litigated in the
`
`prior proceeding. Moreover, in the ’661 patent proceeding, Patent Owner argued
`
`that Kellogg only searched for predefined events, as did Courtney, a reference
`
`overcome during prosecution. Axis, IPR2018-00138, Paper 11 (POR) at 21-22.
`
`Here, Patent Owner argues here that (1) what Kellogg stores and allegedly applies
`
`new user rules to are not attributes, as required, but events, regardless of whether
`
`they are “predefined” as in Courtney, and (2) even if Kellogg is found to apply the
`
`alleged new user rule to attributes, it applies the alleged new user rule to more than
`
`
`
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`12
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`only the detected attributes. Accordingly, Kellogg cannot possibly meet the
`
`additional requirements of the ’923 patent.
`
`Next, Petitioners argue that Kellogg discloses “‘applying the new user rule to
`
`the attributes’—regardless of how the attributes are stored.” Paper 31 at 15. But
`
`Petitioners miss the point. The question is not merely about storage of attributes in
`
`one form or medium or another—it is whether what is stored and allegedly applied
`
`user rules to (in Kellogg, “queried,” according to Petitioners’ arguments) are
`
`attributes or events. See Section IV.B. And Petitioners’ argument that Dr. Bovik
`
`agreed that the ’923 patent does not limit “how motion attributes are stored” because
`
`the patent does not say you cannot store “an object, its classification and its motion,”
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`misrepresents his testimony. Paper 31 at 15 citing Ex. 1056 at 114:15-18. When
`
`questioned whether the claims permit a data structure that stores an object, its
`
`motion, and its classification is outside the claims, Dr. Bovik testified that “[t]he
`
`claims don’t use that language. Instead, the claims teach something else.” Ex. 1056
`
`at 114:19-23. Continuing, he explained that to meet the requirement to apply a new
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`user rule only to attributes, a system cannot store and operate on an object engaged
`
`in an activity, i.e., an event, such as a person walking. Id. at 115:11-116:17. When
`
`counsel for Petitioners asked whether he was saying that “it doesn't matter what gets
`
`stored,” Dr. Bovik disagreed. Id. at 117:12-15.
`
`
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`13
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`Petitioners also misconstrue Dr. Bovik’s testimony by claiming he agreed that
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`Kellogg does not store events. Paper 31 at 15. In fact, Dr. Bovik explained in his
`
`deposition that Kellogg does “not stor[e] the same events as in the patent” because
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`although Kellogg stores and applies user rules to “objects engaged in activity,” the
`
`event was not identified independently from the detected attributes as required by
`
`the claim language. See Ex. 1056 at 119:21-120:21, 222:6-224:12, 225:8-24.
`
`Notably, Petitioners also do not address the testimony of their own expert, Dr.
`
`Grindon, who explained that Kellogg does not store attributes. Ex. 2018 at 18:8-12.
`
`D. Kellogg Does Not Disclose “Applying The New User Rule To Only
`The Plurality Of Detected Attributes”
`The requirement of “applying the new user rule to only the plurality of
`
`detected attributes” does not exist in the ’661 patent, and was not litigated in that
`
`IPR proceeding. Kellogg plainly disclosures querying more than “only” attributes,
`
`because it discloses querying abstraction data. See Paper 27 at 27-31. This is exactly
`
`why the Panel allowed the ’923 patent over the Day-I reference in reexamination:
`
`the Panel found that Day-I did not teach applying the “new user rule” only to
`
`attributes because it applied the “new user rule” to “object-oriented abstractions.”
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`Ex. 1016 at 9, 14; Ex. 1017 at 13, 38. In their response to Patent Owner’s argument,
`
`Petitioners argue that Kellogg’s “fixed grid” and “PR quadtree” indices are
`
`“irrelevant because Petitioner does not rely on these features of Kellogg,” because
`
`they only relied Kellogg’s “bucket index.” Paper 31 at 16. But Kellogg’s
`
`
`
`
`14
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`
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`implementation of the visual memory does not include the “bucket index” because
`
`“it is not an efficient query mechanism for large queries” and only “provides a useful
`
`basis for comparing performance of other indices,” which are the ones that should
`
`be used in the system. Paper 27 at 31. Petitioners downplay the relevance of
`
`Kellogg’s decision not to use the bucket index by asserting that “a feature need not
`
`be in a prior art’s preferred embodiment.” Paper 31 at 17. Even if that were true,
`
`Kellogg’s decision to not implement a bucket index in the embodiment on which
`
`Petitioners rely is relevant; it indicates that Kellogg does not arrange the elements in
`
`the same way as the ’923 patent because the bucket index is merely a performance
`
`benchmarking tool that is not part of Kellogg’s system. Net MoneyIN, Inc. v.
`
`VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008) (finding a reference does not
`
`anticipate unless “all of the limitations [are] arranged or combined the same way as
`
`recited in the claim”). And, to the extent that Petitioners argue Kellogg’s bucket
`
`index renders the ’923 patent obvious, they are incorrect because Kellogg explicitly
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`teaches away the bucket index because “it is not an efficient query mechanism for
`
`large queries.” Ex. 1003 at 84; see Paper 27 at 31. Regardless, as explained in the
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`POR, the bucket index does not solve the problems with Kellogg. Paper 27 at 31.
`
`E.
`
`Kellogg Does Not Disclose “The Plurality Of Attributes That Are
`Detected Are Independent Of Which Event Is Identified”
`For the independence-based limitations, Petitioners argue that collateral
`
`estoppel applies, but as explained in Section III.C and IV.C, they have not shown
`
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`15
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
`that the issues presented in this matter are i
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