Trials@uspto.gov
`571-272-7822
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`Paper 47
`Entered: July 1, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CANON INC., CANON U.S.A., INC., and
`AXIS COMMUNICATIONS AB,
`Petitioner,
`
`v.
`
`AVIGILON FORTRESS CORPORATION,
`Patent Owner.
`____________
`
`IPR2019-00311
`Patent 7,923,923 B2 & C1
`____________
`
`
`
`Before GEORGIANNA W. BRADEN, KIMBERLY McGRAW, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`McGRAW, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`Paper 47
`Entered: July 1, 2020
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CANON INC., CANON U.S.A., INC., and
`AXIS COMMUNICATIONS AB,
`Petitioner,
`
`v.
`
`AVIGILON FORTRESS CORPORATION,
`Patent Owner.
`____________
`
`IPR2019-00311
`Patent 7,923,923 B2 & C1
`____________
`
`
`
`Before GEORGIANNA W. BRADEN, KIMBERLY McGRAW, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`McGRAW, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`
`
`IPR2019-00311
`Patent 7,932,923 B2 & C1
`
`I. INTRODUCTION
`In this inter partes review, instituted pursuant to 35 U.S.C. § 314,
`Canon Inc., Canon U.S.A., Inc., and Axis Communications AB (collectively
`“Petitioner”) challenge claims 1–41 of U.S. Patent No. 7,932,923 B2 & C1
`(Ex. 1001, “the ’923 patent”), owned by Avigilon Fortress Corporation
`(“Patent Owner”). This Final Written Decision is entered pursuant to
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the reasons discussed below,
`Petitioner has not shown by a preponderance of the evidence that claims 1–
`41 of the ’923 patent are unpatentable.
`A. Procedural History
`Petitioner filed a Petition for inter partes review of claims 1–41 of
`the ’923 patent. Paper 1 (“Pet.”). Patent Owner filed a Preliminary
`Response. Paper 9. Petitioner then filed an authorized Reply to address
`Patent Owner’s arguments that the asserted references are not printed
`publications (Paper 11), to which Patent Owner filed an authorized Sur-reply
`(Paper 12). Applying the standard set forth in 35 U.S.C. § 314(a), which
`requires demonstration of a reasonable likelihood that Petitioner would
`prevail with respect to at least one challenged claim, we instituted an inter
`partes review of the challenged claims. Paper 13 (“Inst. Dec.”).
`Following institution, Patent Owner filed a Patent Owner Response
`(Paper 27, “PO Resp.”), Petitioner filed a Reply (Paper 31, “Pet. Reply”),
`and Patent Owner filed a Sur-reply (Paper 38, “PO Sur-reply”). An oral
`hearing was held on April 8, 2020, and a copy of the hearing transcript has
`been entered into the record. Paper 46 (“Tr.”).
`B. Related Matters
`Concurrent with the instant Petition, Petitioner filed another petition
`for inter partes review of the ’923 patent in IPR2019-00314. Canon Inc. et
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`al. v. Avigilon Fortress Corp., IPR2019-00314, Paper 1 (PTAB Nov. 12,
`2018). We issue a final written decision in IPR2019-00314 concurrently
`with this Decision.
`Petitioner also has filed several petitions challenging patents related to
`the ’923 patent.1 For example, Petitioner filed petitions in IPR2018-00138
`and IPR2018-00140 challenging claims of related U.S. Patent No. 8,564,661
`B2 (“the ’661 patent”). In both of these proceedings, we determined that
`Petitioner had shown by a preponderance of the evidence that each of the
`challenged claims of the ’661 patent are unpatentable. Axis Commc’ns AB et
`al. v. Avigilon Fortress Corp., IPR2018-00138, Paper 25 (PTAB
`May 30, 2019); Axis Commc’ns AB et al. v. Avigilon Fortress Corp.,
`IPR2018-00140, Paper 25 (PTAB May 30, 2019).
`Petitioner also filed petitions in IPR2019-00235 and IPR2019-00236
`challenging claims of related U.S. Patent No. 7,868,912 B2. We denied
`institution of both of these proceedings. See Canon Inc. et al. v. Avigilon
`Fortress Corp., IPR2019-00235, Paper 19 (PTAB June 4, 2019) (stating that
`Petitioner did not show the asserted reference qualified as a prior art printed
`publication); Canon Inc. et al. v. Avigilon Fortress Corp., IPR2019-00236,
`Paper 12 (PTAB June 4, 2019) (exercising discretion under 35 U.S.C.
`§ 325(d) to decline institution).
`C. The ’923 Patent (Ex. 1001)
`The ’923 patent, titled “Video Surveillance System Employing Video
`Primitives,” is generally directed to methods, devices, and computer
`readable storage media for video surveillance. See Ex. 1001, codes (54),
`
`
`1 Petitioner states the ’923 patent and U.S. Patent Nos. 8,564,661 B2
`and 7,868,912 B2 are related as each claim priority to U.S. Application
`No. 09/694,712. Pet. 8.
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`Patent 7,932,923 B2 & C1
`(57), Reexamination Certificate 1:29–4:28. In one embodiment, the
`disclosed video surveillance system operates by (1) obtaining source video,
`(2) extracting “video primitives” from the video, (3) archiving the video
`primitives, (4) extracting “event occurrences” from the video primitives
`using “event discriminators,” and (5) undertaking a response, as appropriate.
`Id. at Fig. 4, 4:30–31, 11:63–65. “Video primitive” refers to an “observable
`attribute” of an object viewed in a video feed, such as the size, shape,
`position, speed, color, and texture of the object. Id. at 7:6–12. The ’923
`patent explains that event discriminators are used to filter the video
`primitives to determine if any event occurrences occurred. Id. at 10:66–
`11:1. 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 11:1–4. The event discriminator checks the
`video primitives and determines if any video primitives with the following
`properties exist: a timestamp between 9:00 a.m. and 5:00 p.m., a
`classification of “person” or “group of people,” a “position inside the area,”
`and a “wrong direction of motion.” Id. at 11:4–9.
`D. Illustrative Claims
`Petitioner challenges claims 1–41 of the ’923 patent. Claims 1, 8, 9,
`20, 22, 29, and 30 are independent. Claim 1 is representative and is
`reproduced below.
`1. A method comprising:
`[a] detecting an object in a video from a single camera;
`[b] detecting a plurality of attributes of the object by analyzing the
`video from said single camera, the plurality of attributes
`including at least one of a physical attribute and a temporal
`attribute, each attribute representing a characteristic of the
`detected object;
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`[c] selecting a new user rule after detecting the plurality of
`attributes;
`[d1] after detecting the plurality of attributes and after selecting the
`new user rule, identifying an event of the object that is not one
`of the detected attributes of the object by applying the new
`user rule to the plurality of detected attributes,
`[d2] wherein the applying the new user rule to the plurality of
`detected attributes comprises applying the new user rule to
`only the plurality of detected attributes;
`[e] wherein the plurality of attributes that are detected are
`independent of which event is identified,
`[f] wherein the step of identifying the event of the object identifies
`the event without reprocessing the video, and
`[g] wherein the event of the object refers to the object engaged in
`an activity.
`Ex. 1001, Reexamination Certificate, 1:34–55 (matter in brackets added for
`clarity; matter in italics indicates additions made to the claim during the
`reexamination proceeding).
`E. Asserted Challenges to Patentability
`Petitioner asserts that claims 1–41 are unpatentable based on the
`following challenges (Pet. 3):
`Claim(s) Challenged
`35 U.S.C. §
`1–41
`102(b)2
`1–41
`103
`
`2 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
`challenged claims of the ’923 patent have an effective filing date before the
`effective date of the applicable AIA amendments, we refer to the pre-AIA
`versions of §§ 102 and 103.
`3 Christopher James Kellogg, Visual Memory (May 1993) (B.S. and M.S.
`thesis, Massachusetts Institute of Technology, Department of Electrical
`Engineering and Computer Science) (Ex. 1003, “Kellogg”).
`4 Frank Z. Brill et al., Event Recognition and Reliability Improvements for
`the Autonomous Video Surveillance System, in Proceedings of a Workshop
`
`Reference(s)
`Kellogg3
`Kellogg, Brill4
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`F. Testimonial Evidence
`In support of its unpatentability contentions, Petitioner relies on a
`declaration by John R. Grindon, D.Sc. (Ex. 1005). Patent Owner cross-
`examined Dr. Grindon via deposition. See Ex. 2018. In support of its Patent
`Owner Response, Patent Owner relies on a declaration by Alan Bovik, Ph.D.
`(Ex. 2019). Petitioner cross-examined Dr. Bovik via deposition.
`See Ex. 1056.
`
`II. DISCUSSION
`A. Legal Principles
`To prevail on its challenge to Patent Owner’s claims, Petitioner must
`demonstrate by a preponderance of the evidence that the claims are
`unpatentable. 35 U.S.C. § 316(e) (2012); 37 C.F.R. § 42.1(d) (2018). The
`petitioner “has the burden from the onset to show with particularity why the
`patent it challenges is unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815
`F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring
`inter partes review petitions to identify “with particularity . . . the evidence
`that supports the grounds for the challenge to each claim”)). This burden
`never shifts to Patent Owner. See Dynamic Drinkware, LLC v. Nat’l
`Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) (citing Tech. Licensing
`Corp. v. Videotek, Inc., 545 F.3d 1316, 1326–27 (Fed. Cir. 2008))
`(discussing the burden of proof in inter partes review).
`“A claim is anticipated only if each and every element as set forth in
`the claim is found, either expressly or inherently described, in a single prior
`art reference.” Verdegaal Bros. v. Union Oil Co., 814 F.2d 628, 631 (Fed.
`
`held in Monterey California, Nov. 20–23, 1998, pp. 267–283 (Ex. 1004,
`“Brill”).
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`Cir. 1987). In order to anticipate a claimed invention, a prior art reference
`must disclose all of the claim limitations “arranged or combined in the same
`way as in the claim.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359,
`1370 (Fed. Cir. 2008); see also Dayco Prods., Inc. v. Total Containment,
`Inc., 329 F.3d 1358, 1368 (Fed. Cir. 2003) (stating that the “dispositive
`question regarding anticipation [i]s whether one skilled in the art would
`reasonably understand or infer from the [prior art reference’s] teaching that
`every claim element was disclosed in that single reference”) (first alteration
`in original) (emphasis omitted).
`A claim is unpatentable for obviousness under 35 U.S.C. § 103(a) if
`the differences between the claimed subject matter and the prior art are
`“such that the subject matter, as a whole, would have been obvious at the
`time the invention was made to a person having ordinary skill in the art to
`which said subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
`398, 406 (2007). The question of obviousness is resolved on the basis of
`underlying factual determinations, including (1) the scope and content of the
`prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of skill in the art; and (4) when in evidence, objective
`indicia of non-obviousness (i.e., secondary considerations). Graham v. John
`Deere Co., 383 U.S. 1, 17–18 (1966).
`B. Level of Ordinary Skill in the Art
`In determining whether an invention would have been obvious at the
`time it was made, we consider the level of ordinary skill in the pertinent art
`at the time of the invention. Graham, 383 U.S. at 17. Before institution, the
`parties provided slightly different definitions of the level of skill in the art.
`See Pet. 8–9 (citing Ex. 1005 ¶¶ 76–80); Prelim. Resp. 7. In our Decision on
`Institution, we adopted Petitioner’s proposed definition of a person of
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`ordinary skill in the art as someone having (i) a Bachelor of Science degree
`in electrical engineering, computer engineering, or computer science, with
`approximately two years of experience or research related to video
`processing and/or surveillance systems, or (ii) equivalent training and work
`experience in computer engineering and video processing and/or
`surveillance systems. Inst. Dec. 8 (citing Pet. 8–9; Ex. 1005 ¶¶ 76–80).
`Neither party disputes our definition of the level of ordinary skill in
`the art from the Institution Decision. We see no reason to change our
`definition based on the complete record and, thus, maintain our definition for
`the purposes of this Decision. We further note that our analysis would be
`the same under either party’s definition.
`C. Claim Construction
`In an inter partes review filed before November 13, 2018, such as
`here, we construe claim terms in an unexpired patent according to their
`broadest reasonable construction in light of the specification of the patent in
`which they appear. 37 C.F.R. § 42.100(b) (2018);5 Cuozzo Speed Techs.,
`LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of the
`broadest reasonable interpretation standard as the claim interpretation
`standard to be applied in inter partes reviews).
`Consistent with the broadest reasonable construction, claim terms are
`presumed to have their ordinary and customary meaning as understood by a
`person of ordinary skill in the art in the context of the entire patent
`
`
`5 The 2018 amendment to this rule does not apply here because the Petition
`was filed before November 13, 2018. See Changes to the Claim
`Construction Standard for Interpreting Claims in Trial Proceedings Before
`the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018)
`(now codified at 37 C.F.R. pt. 42 (2019)) (amending 37 C.F.R. § 42.100(b)
`effective November 13, 2018).
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`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). An inventor may provide a meaning for a term that is different from
`its ordinary meaning by defining the term in the specification with
`reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994).
`The parties propose constructions for a number of claim terms. See
`Pet. 9–23; PO Resp. 5–15; Pet. Reply 4–10; PO Sur-reply 5–9. We need
`only construe claim terms that are in controversy, and only to the extent
`necessary to resolve the controversy. Nidec Motor Corp. v. Zhongshan
`Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid
`Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`To the extent we find it necessary to address the meaning of any claim term,
`we do so below in the context of our unpatentability analysis.
`D. Asserted Anticipation of Claims 1–41 by Kellogg
`Petitioner contends that claims 1–41 are unpatentable under 35 U.S.C.
`§ 102(b) as anticipated by Kellogg. Pet. 34–43. In response, Patent Owner
`argues Petitioner fails to show that Kellogg discloses all the limitations of
`the challenged claims. PO Resp. 15–38. For the reasons explained below,
`Petitioner has not established by a preponderance of the evidence that
`Kellogg anticipates claims 1–41 of the ’923 patent.
`1. Overview of Kellogg
`Kellogg is a master’s thesis titled “Visual Memory” with the stated
`goals of designing a “visual memory architecture” and implementing a
`“visual memory prototype to support a real-time scene monitoring
`prototype.” Ex. 1003, 1, 10. Kellogg explains that visual memory supports
`computer vision applications “by efficiently storing and retrieving
`spatiotemporal information. It is a unique combination of databases, spatial
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`representation and indexing, and temporal representation and indexing.”
`Id. at 9. Chapter 3 of Kellogg presents a design for a visual memory system.
`See id. at 18–67. Chapter 4 describes a prototype of a visual memory system
`that implements the design of chapter 3. See id. at 68–80. In this prototype,
`image processing using video cameras tracks objects and stores information
`about them in the visual memory. Id. at 68. Using a graphical query
`interface, users can specify queries to the visual memory and view the result
`in various ways. Id. Chapter 5 describes tests that were conducted to
`analyze the prototype’s performance. See id. at 81–87.
`2. Petitioner’s Contentions
`We begin our analysis by summarizing Petitioner’s anticipation
`arguments, focusing on Petitioner’s contentions for method claim 1, which is
`representative of the other independent claims. Petitioner contends that
`Kellogg discloses each limitation recited in method claim 1. Pet. 34–43.
`Petitioner asserts that Kellogg discloses the limitations of claim element
`1[a], which require detecting an object in a video from a single camera, as
`Kellogg discloses the real-time processing of CCD camera images and
`software that tracks people walking in its field of view. See Pet. 35–36
`(citing Ex. 1003, 21, 30–31, 50, 68–69, 79, Figs. 3–5, 4–9); Ex. 1005
`¶¶ 195–196. Petitioner also asserts that Kellogg discloses the “detecting a
`plurality of attributes” limitations of claim element 1[b], as it teaches
`detecting various physical and temporal attributes that represent
`characteristics of an object, such as the height of a person (physical attribute)
`or the time intervals an object is present (temporal attribute). See id. at 37
`(citing Ex. 1003, 24, 63, 25, 74, 36–41; Ex. 1005 ¶¶ 202–207).
`Petitioner further contends that Kellogg discloses the “selecting a new
`user rule” limitations of claim element 1[c] because Kellogg discloses “a
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`tasking mechanism to allow users to create ad hoc queries using a set of
`attributes, i.e., selecting a new user rule.” Pet. 38 (citing Ex. 1005 ¶¶ 209–
`210, 215–216). In particular, Petitioner points to Kellogg’s “Approach
`Query,” which “tracks all objects that came within 3 units of a given object
`on its trajectory during a certain set of valid times,” as an example of a “new
`user rule” disclosed in Kellogg. See id. at 38–39 (citing Ex. 1003, 62–63;
`Ex. 1005 ¶¶ 209–216 (emphasis omitted)).
`Petitioner also asserts that Kellogg’s “Approach Query” satisfies the
`limitations of claim element 1[d1] that require, inter alia, “identifying an
`event of the object that is not one of the detected attributes of the object by
`applying the new user rule to the plurality of detected attributes,” because
`the query applies at least two different attributes from the plurality of
`detected attributes. Id. at 39 (citing Ex. 1003, 62–63; Ex. 1005 ¶ 218).
`Petitioner further contends that Kellogg also satisfies the limitations of claim
`element 1[d1] that require applying the new user rule after detecting
`attributes and creating the query because “Kellogg’s system was designed to
`record basic attributes so that a search can later be created based on any
`arbitrary subset of the recorded attributes.” Id. at 39–40 (citing Ex. 1003,
`53–54, 78; Ex. 1005 ¶ 220).
`Petitioner further asserts the limitations of claim element 1[d2] that
`recite “applying the new user rule to the plurality of detected attributes
`comprises applying the new user rule to only the plurality of detected
`attributes” require that “the prior art have the ability to search only the
`attributes themselves.” Pet. 40 (citing Ex. 1005 ¶ 221; Pet. 19–21).
`Petitioner argues Kellogg discloses this limitation because Kellogg discloses
`that the attribute data can be stored in a “bucket index” and therefore,
`“Kellogg can search only the attributes themselves and does not require
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`traversing a tree structure of abstractions to search the detected attributes.”
`Id. (citing Ex. 1003, 83; Ex. 1005 ¶ 222).
`Petitioner also contends that the attributes queried in Kellogg’s
`Approach Query are “independent of which event is identified,” as required
`by claim element 1[e], because the attributes are pre-collected. Id. at 40–42
`(citing Ex. 1003, 62–63; Ex. 1005 ¶¶ 223–225, 227). Petitioner further notes
`that Kellogg “discloses that the queries are forensic in nature, where ‘[a]
`large amount of [stored] information could be established prior to
`application execution.’” Id. at 42 (alterations in original) (emphasis omitted)
`(quoting Ex. 1003, 9) (citing Ex. 1003, 19).
`In addition, Petitioner contends that because Kellogg searches stored
`attributes in its database, Kellogg performs the “identifying” step “without
`reprocessing the video,” as required by claim element 1[f]. See Pet. 42
`(citing Ex. 1003, 53–54, 77, 79; Ex, 1005 ¶¶ 228–229). Finally, Petitioner
`asserts that Kellogg’s Approach Query satisfies the limitations of claim
`element 1[g] (“wherein the event of the object refers to the object engaged in
`an activity”) because the Approach Query identifies an Approach Event,
`which refers to an object (persons p, q) engaged in activity (the action of
`moving along a certain trajectory). See Pet. 42 (citing Ex. 1003, 62–63;
`Ex. 1005 ¶ 230; Ex. 1001, 3:31–33).
`3. Analysis
`In our Institution Decision, we determined that Petitioner made an
`adequate showing for institution purposes that Kellogg discloses each
`limitation of claim 1. See Inst. Dec. 21. Nevertheless, on the complete
`record now before us as discussed in detail below, we find that a
`preponderance of the evidence does not establish that Kellogg discloses
`“wherein the applying the new user rule to the plurality of detected attributes
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`comprises applying the new user rule to only the detected attributes,” as
`recited in independent claim 1, element [d2], as well as in independent
`claims 8, 9, 22, and 29, and similarly recited in independent claims 20 and
`30 (hereinafter the “only” limitations). Accordingly, because Petitioner’s
`anticipation analysis relies on Kellogg for teaching the claimed “only”
`limitations, we determine that Petitioner has not shown by a preponderance
`of the evidence that independent claims 1, 8, 9, 20, 22, and 30, or the claims
`that depend therefrom, are anticipated by Kellogg.
`As described above, Petitioner contends the “Approach Query” is a
`“new user rule.” See Pet. 38–39 (stating that the creation of ad hoc queries
`using a set of attributes, such as the “Approach Query,” discloses selecting a
`“new user rule”). Dr. Grindon explains that the Approach Query “specifies
`a combination of a set of physical and temporal attributes together with
`object classification attributes for identifying an ‘Approach Event’ between
`person p and persons q by searching for any persons q that came within a
`certain distance of person p at a given time period.” Ex. 1005 ¶ 212 (citing
`Ex. 1003, 62–63). According to Dr. Grindon, the Approach Query “searches
`the centroid of the two objects and their trajectories, and the distance
`between the moving centroids.” Id. Dr. Grindon further states that the
`Approach Query “also searches for trajectories within certain periods, e.g.,
`time-1 and time-2.” Id. In addition, the Approach Query “also applies the
`object classification attribute, i.e., person, for both objects.” Id. Dr.
`Grindon opines that the event being identified by the Approach Query “is
`not just one of the detected attributes, but rather a collection or a set of
`attributes.” Id. ¶ 218.
`Petitioner also contends that the “only” limitations require “that the
`prior art have the ability to search only the attributes themselves.” See
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`Pet. 40 (citing Ex. 1005 ¶ 221; Pet. 19–21); see also id. at 47, 52, 60
`(referring to analysis of claim 1 to show unpatentability of independent
`claims 8, 9, 20, 22, and 30). Petitioner asserts that Kellogg can search only
`the attributes themselves and does not require traversing a tree structure of
`abstractions to search the detected attributes because Kellogg discloses that
`the attribute data can be stored in a “bucket index.” Id. (citing Ex. 1003, 83;
`Ex. 1005 ¶ 222). Petitioner asserts that a “bucket index simply maintains a
`list of all the objects stored in the visual memory” and “answers a query by
`retrieving all the objects in its list and checking them against the query
`specification,” thus demonstrating that the system can search only the
`attributes themselves. Id. (citing Ex. 1003, 83; Ex. 1005 ¶ 222).
`Patent Owner asserts Kellogg does not apply “the new user rule to
`only the plurality of detected attributes” because Kellogg’s prototype visual
`memory system does not use the bucket index, but rather performs its
`queries on “spatial indices” (i.e., “fixed grid” and “bucket PR quadtree”) and
`on “temporal indices,” such as the “temporal segment tree.” See PO
`Resp. 27–31 (citing Ex. 1003, 72–77, Figs. 4–3, 4–4, 4–5); see also
`Ex. 1003, 67 (describing a spatiotemporal query in which “the indexing
`mechanism finds the temporal description in the temporal indices, retrieves
`the corresponding versions of the spatial indices, finds the spatial description
`in them, and retrieves the corresponding spatiotemporal object versions”).
`Patent Owner contends that these indices “are not optional in Kellogg” and
`that they are the only way the queries are described as operating. Id. at 27
`(citing Ex. 1003, 54, 64). Patent Owner asserts that because the indices used
`by Kellogg have a tree-structure hierarchy, Kellogg’s queries on these
`indices “quer[y] object-oriented abstractions” and, therefore, do not apply
`the new user rule to only the plurality of detected attributes, as required by
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`IPR2019-00311
`Patent 7,932,923 B2 & C1
`the claims. See PO Resp. 27–31. Patent Owner further asserts that the
`bucket index “is not described in Kellogg’s implementation of the visual
`memory” but is only used “to analyze the performance of the two
`implemented spatial indices.” See PO Resp. 31 (citing Ex. 1003, § 4 (titled
`“Implementation”), 84).
`Petitioner replies that Kellogg’s “fixed grid” and “PR quadtree”
`indices are irrelevant because Petitioner does not rely on these features of
`Kellogg. Pet. Reply 16 (citing Pet. 40; Ex. 1005 ¶¶ 221–222); see also
`Tr. 15:6–7 (stating that “what [Petitioner] rel[ies] on to show that Kellogg is
`searching only the attributes is this bucket index that’s disclosed in
`Kellogg”). Petitioner further states that even though Kellogg’s bucket index
`is not in Kellogg’s implementation section, Kellogg actually “built and
`tested the bucket index.” Pet. Reply 17 (citing Ex. 1003, 83); see also id. at
`16 (stating that the bucket index “answers a query by retrieving all the
`objects in its list and checking them against the query specification” (citing
`Ex. 1003, 83)).
`Based on the complete record, we determine that Petitioner has not
`shown sufficiently that Kellogg discloses the ‘only’ limitations of
`independent claims 1, 8, 9, 20, 22, 29, and 30, because Petitioner has failed
`to demonstrate sufficiently that Kellogg discloses performing the Approach
`Query on the bucket list, which is the basis of Petitioner’s showing for these
`limitations. Petitioner points to Kellogg’s disclosure of using a bucket index
`to test the performance of Kellogg’s spatial indices using a spatial query and
`to test the performance of Kellogg’s temporal indices using a temporal
`query, but Petitioner has not shown sufficiently that Kellogg discloses
`performing the “Approach Query,” which is a spatiotemporal query, on the
`bucket list index. See Pet. 40 (citing Ex. 1003, 83; Ex. 2005 ¶ 222). Nor has
`
`15
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`
`
`IPR2019-00311
`Patent 7,932,923 B2 & C1
`Petitioner shown that a person skilled in the art would have understood that
`Kellogg’s bucket list index could have supported a spatiotemporal query.
`See id.
`Significantly, Kellogg draws a distinction between (1) “Spatial
`Queries” (Ex. 1003, 54–57 (§ 3.7.2)), (2) “Temporal Queries” (id. at 57–59
`(§ 3.7.3)) and (3) “Spatiotemporal Queries” (id. at 59–63 (§ 3.7.4)). A
`spatiotemporal query “specifies a spatiotemporal object and a temporal
`object, and how objects must intersect with these to satisfy the query.” Id.
`at 59; see also id. at 68 (stating that the visual memory prototype specifies “a
`variety of queries, including spatial, temporal, and spatiotemporal”). Id.
`at 68. Kellogg states that its “query mechanism is tailored to the spatial and
`temporal representations,” and describes the query mechanism and the types
`of queries supported by its visual memory. Id. at 53. Indeed, Kellogg states
`that the “interaction of space and time makes spatiotemporal indexing a
`complex problem.” Ex. 1003, 66.
`Neither of Kellogg’s tests involving the bucket list to demonstrate
`query performance appear to test a spatiotemporal query. See Ex. 1003, 82–
`87. The first test, as shown in Figure 5–4, is titled “Spatial query
`performance.” Id. at 86. This test shows “the performance for spatial
`indices with a 10-unit by 10-unit query square” by comparing query
`performance on (1) the spatial quadtree index, (2) the spatial grid index, and
`(3) the bucket list index. See id. at 83–86. The second test, shown in
`Figure 5–5, titled “Temporal query performance,” shows the “performance
`for temporal indices with a query interval of 10 seconds” by comparing
`query performance on (1) the temporal B+ tree index, (2) the temporal
`Segment tree index, and (3) the bucket list index. See id. at 83–85, 87.
`Thus, while Kellogg discloses performing a spatial query and a temporal
`
`16
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`IPR2019-00311
`Patent 7,932,923 B2 & C1
`query on the bucket list index, there is no disclosure of performing a
`spatiotemporal query, such as the Approach Query, on the bucket list index.
`In sum, Petitioner does not provide sufficient argument or evidence that
`Kellogg performed, or otherwise discloses, performing the Approach Query,
`or any spatiotemporal query, on a bucket list. Nor has Petitioner presented
`sufficient argument or evidence that a bucket index could support a
`spatiotemporal query.
`Therefore, for the foregoing reasons, based on the complete record,
`Petitioner has not shown sufficiently that Kellogg discloses the “only”
`limitations, i.e., “wherein the applying the new user rule to the plurality of
`detected attributes comprises applying the new user rule to only the detected
`attributes,” as recited in independent claim 1, element [d2], as well as in
`independent claims 8, 9, 22, and 29, and similarly recited in independent
`claims 20 and 30. Accordingly, we determine that Petitioner has not shown
`by a preponderance of the evidence that independent claims 1, 8, 9, 20, 22,
`and 30, or the claims that depend therefrom, are anticipated by Kellogg.
`E. Asserted Obviousness of Claims 1–41 over Kellogg and Brill
`Petitioner contends that claims 1–41 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combined teachings of Kellogg and Brill.
`Pet. 62–75. Petitioner does not rely on Brill to teach the “only” limitations
`not disclosed by Kellogg as described above. Id. Nor does Petitioner
`provide any argument that these limitations would have been obvious to one
`of ordinary skill in the art. Id. Accordingly, Petitioner has not shown by a
`preponderance of the evidence that the combination of Kellogg and Brill
`teaches or suggests each of the limitations of claims 1–41. Accordingly,
`Petitioner has not shown by a preponderance of the evidence that claims 1–
`41 would have been obvious over Kellogg and Brill.
`
`17
`
`
`
`III. CONCLUSION
`For the foregoing reasons, we determine that Petitioner has not shown
`by a preponderance of the evidence that claims 1–41 are unpatentable.
`
`
`Claims
`Shown
`Unpatentable
`
`
`
`
`Claims
`Not Shown
`Unpatentable
`1–41
`1–41
`1–41
`
`IPR2019-00311
`Patent 7,932,923 B2 & C1
`
`Claims
`
`35 U.S.C. §
`
`Reference(s)
`
`1–41
`1–41
`
`102(b)
`103(a)
`
`Kellogg
`Kellogg, Brill
`Overall Outcome
`
`
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that claims 1–41 of U.S. Patent No. 7,932,923 B2 & C1
`have not been shown to be unpatentable; and
`FURTHER ORDERED that, because this is a final written decision,
`parties to this proceeding seeking judicial review of the decision must
`comply with the notice and service requirements of 37 C.F.R. § 90.2.
`
`
`
`
`
`
`18
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`IPR2019-00311
`Patent 7,932,923 B2 & C1
`FOR PETITIONER:
`
`Joseph Calvaruso
`Richard Martinelli
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`jvc
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