Paper No. 13
`Trials@uspto.gov
`571.272.7822 Filed: July 8, 2019
`
`
`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.
`
`Case 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.
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`Trials@uspto.gov
`571.272.7822 Filed: July 8, 2019
`
`
`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.
`
`Case 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.
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`IPR2019-00311
`Patent 7,932,923 B2 & C1
`
`
`I. INTRODUCTION
`Canon Inc., Canon U.S.A., Inc., and Axis Communications AB
`(“Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting an inter partes
`review of all claims (i.e., claims 1–41) of U.S. Patent No. 7,932,923 B2 &
`C1 (Ex. 1001, “the ’923 patent”). See 35 U.S.C. § 311. Avigilon Fortress
`Corporation (“Patent Owner”) filed a Preliminary Response. (Paper 9,
`“Prelim. Resp.”). Petitioner filed an authorized Reply to respond to Patent
`Owner’s arguments that Kellogg and Brill are not printed publications
`(Paper 11, “Reply”) to which Patent Owner filed an authorized Sur-Reply
`(Paper 12, “Sur-Reply”).
`Applying the standard set forth in 35 U.S.C. § 314(a), which
`authorizes institution of an inter partes review 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,” we institute an inter partes
`review of claims 1–41 of the ’923 patent.
`Our factual findings and conclusions at this stage of the proceeding,
`including claim construction, are preliminary and are based on the
`evidentiary record developed thus far. This is not a final decision as to
`patentability of claims for which inter partes review is instituted. Any final
`decision will be based on the full record as developed during trial.
`
`A. Related Proceedings
`Concurrent with the instant Petition, Petitioner filed another petition
`for inter partes review of the ’923 patent. Canon Inc. et al. v. Avigilon
`Fortress Corp., Case IPR2019-00314 (PTAB Nov. 12, 2018) (Paper 1).
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`
`We issued final written decisions in two cases filed by Petitioner
`involving related U.S. Patent No. 8,564,661 B2 (“the ’661 patent”).1 Axis
`Communications AB et al. v. Avigilon Fortress Corp., Case IPR2018-00138
`(PTAB May 30, 2019) (Paper 25); Axis Communications AB et al. v.
`Avigilon Fortress Corp., Case IPR2018-00140 (PTAB May 30, 2019)
`(Paper 25). 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. We also recently denied
`institution of inter partes review of the related ’912 patent. Canon Inc. et al.
`v. Avigilon Fortress Corp., Case IPR2019-00235 (PTAB June 4, 2019)
`(Paper 19) (stating Petitioner did not show asserted reference qualified as a
`prior art printed publication); Canon Inc. et al. v. Avigilon Fortress Corp.,
`Case IPR2019-00236 (PTAB June 4, 2019) (Paper 12) (exercising discretion
`under 35 U.S.C. § 325(d) to decline institution).
`The ’923 patent was subject to ex parte reexamination, during which
`the United States Patent and Trademark Office (the “USPTO”) determined
`that claims 1–41 were patentable as amended. See Ex. 1001, Reexamination
`Certificate 1:29–32.
`
`B. 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, at [54], [57],
`Reexamination Certificate 1:29–4:28. In one embodiment, the disclosed
`
`
`1 Petitioner states the ’923 patent, the ’661 patent, and U.S. Patent No.
`7,868,912 B2 (“the ’912 patent”) are related as each claim priority to
`U.S. Application No. 09/694,712. Pet. 8.
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`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.
`Ex. 1001, 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 exist which have the
`following properties: 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.
`
`C. Claims
`Petitioner challenges all claims (i.e., 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 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, 1:34–54 (matter in brackets added for
`clarity; matter in italics indicates additions made to the claim during the
`reexamination proceeding).
`
`D. Asserted Grounds of Unpatentability
`Petitioner argues the challenged claims are unpatentable based upon
`the following grounds:
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`Reference(s)
`Kellogg2
`Kellogg and Brill4
`
`Basis
`§ 102(b)3
`§ 103
`
`Challenged Claims
`1–41
`1–41
`
`
`
`II. DISCUSSION
`A. 35 U.S.C. § 325(d)
`We have discretion to deny review when “the same or substantially
`the same prior art or arguments previously were presented to the Office.”
`35 C.F.R. § 325(d). Patent Owner argues the Petition should be dismissed
`under § 325(d) because (1) Kellogg, asserted in both Grounds 1 and 2, is
`cumulative to U.S. Patent No. 5,969,755 (Ex. 1021, “Courtney ’755”) and
`(2) Brill, asserted only in Ground 2, is cumulative to a number of references
`at issue during the ex parte reexamination of the ’923 patent.5 Prelim. Resp.
`29, 32.
`
`
`2 Christopher James Kellogg, Visual Memory (Submitted B.A. and Master’s
`thesis to the Department of Electrical Engineering and Computer Science of
`the Massachusetts Institute of Technology (May 1993) (Ex. 1003,
`“Kellogg”).
`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 patent 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 Frank Brill et al., Event Recognition and Reliability Improvements for the
`Autonomous Video Surveillance System, Proceedings of a Workshop held in
`Monterey California, Nov. 20–23, 1998, pp. 267–283 (Ex. 1004, “Brill”).
`5 Specifically, Patent Owner contends Brill is cumulative to three different
`references: (1) U.S. Patent No. 6,628,835 (Ex. 2007), (2) a 1997 paper (i.e.,
`Ex. 2005, the “1997 Olson and Brill paper”), and (3) another paper (i.e.,
`Ex. 2006, “Courtney 1997). Prelim. Resp. 32–37.
`
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`After considering the evidence and argument of record, we decline to
`exercise our discretion to deny review under 35 U.S.C. § 325(d).
`Patent Owner contends Kellogg is cumulative to Courtney ’755
`because Kellogg raises “the same or substantially the same issues” as
`Courtney ’755. Prelim. Resp. 29. Specifically, Patent Owner contends that
`during the reexamination proceeding of the ’923 patent, the USPTO found
`Courtney ’755 teaches searching for an already predefined/predetermined
`indexed event, not an attribute and, therefore, does not teach determining an
`event based on attributes. Id. at 31 (citing Ex. 1017, 15). Patent Owner
`asserts Kellogg parallels Courtney because both “mark database objects as
`events or potential events for retrieval via the query mechanism.” Id. (citing
`Ex. 1021, 5:1–19; Ex. 1003, 54, 64); see also id. at 29 (stating Kellogg
`teaches storing events and indexing them for efficient user query response).
`Petitioner, however, asserts that Kellogg is not cumulative to
`Courtney ’755 because the two references are directed to different systems
`that operate differently and because Kellogg queries attributes, not events.
`See Pet. 32–34 (citing Ex. 1003, 22, 24, 25, 36–37, 52, 55, 71; Ex. 1005
`¶¶ 187–190). Petitioner contends Kellogg, unlike Courtney ’755, “only
`stores basic attributes” and does not apply its queries to a predefined list of
`events. See id. at 32. We are persuaded by these asserted material
`differences between Kellogg and Courtney ’755, and the fact that Kellogg is
`asserted against all claims in all grounds, and thus, we decline to exercise
`our discretion to deny review under § 325(d). Because we are persuaded not
`to exercise our discretion based on Petitioner’s contentions regarding
`Kellogg, we need not and do not address Patent Owner’s contentions that
`
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`Brill, asserted only in Ground 2, is cumulative to a number of references at
`issue during the ex parte reexamination of the ’923 patent.
`
`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 v. John Deere Co., 383 U.S. 1, 17
`(1966). Petitioner contends a person of ordinary skill in the art would have
`(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. Pet. 8–9
`(citing Ex. 1005 ¶¶ 76–80).
`Patent Owner provides a similar definition but states that a person of
`ordinary skill in the art must have experience, research, or training in both
`“video processing” and “surveillance systems.” Prelim. Resp. 7.
`Specifically, Patent Owner states a POSITA would have (i) a Bachelor of
`Science degree in electrical engineering, computer engineering, or computer
`science, with approximately two years of experience or research in the field
`of video surveillance systems or (ii) equivalent training and work experience
`in the field of video surveillance systems. Id. at 7–8; see also id. at 7
`(stating the ’923 patent is at the intersection of “video processing” and
`“surveillance systems” and, therefore, both are required in the ordinary level
`of skill).
`Although the parties articulate different levels of skill for a POSITA,
`neither party explains how their recited level of skill impacts the
`
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`obviousness analysis. We also note that Patent Owner’s proposed skill
`levels differs from that proffered during the ex parte reexamination
`proceeding of the ’923 patent. For example, during the reexamination
`proceeding, Patent Owner did not state a POSITA must have experience,
`research, or training in both “video processing” and “surveillance systems.”
`Rather, Patent Owner defined the level of ordinary skill in the art of the ’923
`patent as:
`a person typically having a Bachelor’s degree in Electrical
`Engineering or Computer Science or the equivalent education or
`experience. This individual would have benefited from course
`work that includes image or signal processing, and computer
`science or programming, or the equivalent education or
`experience. In addition, this person would typically have about
`three years of industrial experience that would develop his/her
`knowledge of image processing and pattern recognition, or the
`equivalent.
`Ex. 1016, 63 n.9 (emphasis added).
`Based on the record before us, including the types of problems and
`solutions described in the ’923 patent and the cited prior art, we determine
`the level of ordinary skill proposed by Petitioner is consistent with the
`’923 patent and the asserted prior art. Accordingly, at this stage in the
`proceeding, we apply Petitioner’s level of ordinary skill in the art. We
`further note that our analysis would be the same under either parties’
`definition.
`
`C. Claim Construction
`The Petition was filed prior to November 13, 2018, and
`the ’923 patent has not expired. Therefore, we interpret terms in the
`challenged claims according to their broadest reasonable construction in
`light of the specification of the ’923 patent. See 37 C.F.R. § 42.100(b)
`
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`(2017); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46
`(2016) (upholding the use of the broadest reasonable interpretation
`standard); see also Changes to the Claim Construction Standard for
`Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal
`Board, 83 Fed. Reg. 51,340, 51,344 (Oct. 11, 2018) (“The Office will
`continue to apply the BRI standard for construing unexpired patent claims
`. . . in AIA proceedings where a petition was filed before the [November 13,
`2018] effective date of the rule.”).
`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
`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).
`Only those claim terms that are in controversy need to be construed,
`and only to the extent necessary to resolve the controversy. Nidec Motor
`Corp. v. Zhongshan Broad Ocean Motor Co. Ltd., 868 F.3d 1013, 1017
`(Fed. Cir. 2017).
`The parties propose constructions for a number of claim terms. We
`address the parties’ proposed constructions below.
`1. “attributes” of an object
`Petitioner asserts that the term “attributes” (claims 1–41) should be
`construed as “characteristics associated with an object.” Pet. 9–10. Patent
`Owner disputes Petitioner’s construction as “overly broad and inconsistent
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`with the specification” but states no construction of this term is necessary.
`Prelim. Resp. 8. We agree with Patent Owner that no express construction
`of “attributes” is required for purposes of this Decision.
`
`2. “new user rule”
`Petitioner defines a “new user rule” (claims 1–41) as a “specified
`combination of a set of attributes for identifying an event.” Pet. 10 (citing
`Ex. 1001 4:63–64, 7:1–12, 10:58–64, 10:66–11:1, Fig. 4; Ex. 1005 ¶¶ 93–
`95). Patent Owner contends Petitioner’s construction improperly equates
`“new user rule” with “event discriminators.” Prelim. Resp. 9. Patent Owner
`asserts selecting a “new user rule” requires “more than merely providing an
`event discriminator” and that the term “new user rule” should be construed
`according to its ordinary meaning as a “new [] set of conditions such that
`when a defined event is detected it may trigger a response.” Id. at 9–10
`(emphasis added) (citing Ex. 1001, 4:54–56, 4:63–5:5, 8:50–54, 56–58,
`11:13–14; Ex. 1005 ¶ 93); see also id. at 9 (stating “Dr. Grindon agreed that
`user ‘rules’ must have the ability to trigger responses”).
`We determine that no explicit construction of “new user rule” is
`necessary for purposes of this Decision. Petitioner provides evidence and
`argument that under either proposed definition, Kellogg as well as the
`combined teachings of Kellogg and Brill, meet this limitation. See Pet. 38–
`39, 63 (citing Ex. 1003, 79–80; Ex. 1004, Fig. 11; Ex. 1005 ¶¶ 213–216,
`300).
`
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`3. “independence-based” limitations
`a. “independence” argument (1)6: “applying the new user rule to the
`plurality of detected attributes”
`Claim 1 recites “identifying an event of the object . . . by applying the
`new user rule to the plurality of detected attributes.” Independent claims 8,
`9, 22, 29, and 30 recite the same or similar limitations.
`Petitioner asserts that the term “applying” in the phrase “applying the
`new user rule to the plurality of detected attributes” should “encompass any
`mechanism for analyzing the detected attributes to determine if they satisfy
`the user rule criteria, e.g., querying a database.” Pet. 11–12 (citing Ex. 1005
`¶¶ 100–103). Patent Owner responds Petitioner’s construction is overbroad
`and that “merely querying a database is not sufficient to disclose ‘applying
`the new user rule to the plurality of detected attributes.’” Prelim. Resp. 10–
`12. Citing various portions of the ’923 patent, Patent Owner contends, under
`the plain meaning of the claim, “[s]ome level of analysis, determination,
`identification, etc. is required when ‘applying the new user rule to the
`plurality of detected attributes.’” Id. at 11 (citing Ex. 1001, 5:12–23, 8:37–
`49, 14:56–15:4); see also id. (stating a “mere query does not satisfy the
`claim language because mere data retrieval is not ‘applying the new user
`rule’ to ‘identify’ an event”). Patent Owner further contends that because it
`argued during the reexamination proceeding that “the ’923 patent teaches
`that multiple detected attributes are to be examined and then, based upon
`such attributes, a decision is made as to whether or not certain events
`
`
`6 This Decision refers to the independence arguments (1), (3), (2) as
`identified by the parties and in the order argued by the parties. See, e.g.,
`Pet. 11–19; Prelim. Resp. 10–14.
`
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`occurred,” this means that “[t]his active evaluation of attributes is a more
`involved process and is not satisfied by retrieving results from a database.”
`Id. (citing Ex 1016, 31).
`At this stage of the proceeding, we are not persuaded that the disputed
`claim terms should be construed narrowly as asserted by Patent Owner.
`Contrary to Patent Owner’s arguments, the cited portions of the ’923 patent
`do not state that applying a new user rule to the plurality of detected
`attributes requires some level of analysis, determination, or identification
`beyond querying a database. For example, column 5, line 6 through line 23
`of Exhibit 1001 describes several “unique and novel features” of the system,
`including that the system can “further analyze previously processed video
`without needing to reprocess completely the video” and that by “analyzing
`previously processed video, the system can perform inference analysis based
`on previously recorded video primitives, which greatly improves the
`analysis speed of the computer system.” Column 8, line 37 through line 49
`describes examples of a “response” such as activating an alarm or
`forwarding data to another computer system. Column 14, line 56 through
`column 15, line 4 describes an alternative embodiment in which the system
`analyses archived video primitives with event discriminators to generate
`additional reports. Nor do we agree, at this stage of the proceeding, with
`Patent Owner’s argument that, because of statements it made during the
`reexamination proceeding, the claim term “applying the new user rule” to
`“identify an event” “is “not satisfied [by a query that] retriev[es] events from
`a database” See Prelim. Resp. 11 (citing Ex. 1016, 31). Rather, the
`identified statements relate to Patent Owner’s arguments that “the attributes
`collected are independent of the events identified.” Ex. 1016, 31.
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`Thus, for the foregoing reasons, we disagree with Patent Owner’s
`proposed construction. We determine no construction of the term is required
`at this stage of the proceeding.
`
`b. “independence argument (3): event”
`
`Independent claim 1 recites “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 . . . .” Reexamination Certificate 1:43–
`45). The remaining independent claims recite the same or similar
`limitations. Petitioner argues the claimed user defined “event” comprises a
`“minimum of two attributes.” See Pet. 14 (citing Ex. 1005 ¶ 113).
`Petitioner acknowledges that the ’923 patent defines “event” as “one or more
`objects engaged in an activity,” but asserts Patent Owner’s attempt to
`distinguish the Courtney ’755 during the ’923 reexamination proceeding
`“results in a departure from the basic definition of ‘event’ in the ‘definitions’
`section of the ’923 patent.” See id. at 12 (citing Ex. 1001, 3:44–46).
`Petitioner asserts that to distinguish Courtney ’755, Patent Owner argued
`“the claim language requires that the claimed event is more than a single
`attribute.” Id. at 12–13 (emphasis omitted) (citing Ex. 1016, 39). Petitioner
`also asserts that in IPR2018-00138, Patent Owner distinguishes prior art “by
`conflating single activity attributes with events by arguing that activities like
`appear, enter or exit, when recorded by the prior art are merely
`predetermined events.” Id. at 13.
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`Patent Owner responds “event” should be construed as “one or more
`objects engaged in activity” as defined by the ’923 patent. Prelim.
`Resp. 11–12 (citing Ex. 1001, 3:44–46).
`We agree with Patent Owner that the term “event” is defined by the
`’923 patent as “one or more objects engaged in an activity.” Ex. 1001, 3:44–
`45. “The event may be referenced with respect to a location and/or a time.”
`Id. at 3:45–46. Based on the current record, we are not persuaded that the
`term “event” should be construed differently from the definition provided by
`the ’923 patent. During the ’923 reexamination proceeding, Patent Owner’s
`arguments were directed to claim language reciting “identifying an event of
`the object that is not one of the detected attributes of the object,” not to
`redefining the meaning of the term “event.” See Ex. 1016, 39 (stating that
`although the ’923 patent discloses “identified events that are the same as a
`detected attribute” as well as “events that are not detected attributes,” the
`“claims of the ’923 patent require identification of an event that is not a
`detected attribute and are silent regarding identification of an event that is a
`detected attribute”).
`For the foregoing reasons, we construe the term “event” as defined in
`the ’923 patent as “one or more objects engaged in an activity.” Ex. 1001,
`3:44–46. We determine that no further construction of the term “event” is
`required to resolve issues in dispute at this stage of the proceeding.
`
`c. “independence argument (2): plurality of attributes that are detected are
`independent of which event is identified”
`Claim element 1[e] recites “wherein the plurality of attributes that are
`detected are independent of which event is identified.” Petitioner asserts
`that the claim term “independent” requires that the “event detection process
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`does not alter the attribute detection process.” Pet. 15 (emphasis omitted);
`see also id. at 40 (stating claim element 1[e] requires that “attribute detection
`is not impacted or affected by the event detection process”). Patent Owner
`responds “independent” should be construed to mean “the attributes are
`detected without regard to or knowledge of events or identification of
`events.” Prelim. Resp. 12.
`At this stage of the proceeding, we need not construe this claim
`limitation as Petitioner provides evidence and argument that Kellogg
`discloses this limitation under either claim interpretation. See Pet. 40–42.
`
`4. “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” (claims 1–19, 22–29); “wherein the analysis of the
`combination of the attributes to detect the event comprises analyzing only
`the combination of the attributes” (claims 20–21); “wherein the applying
`the selected new user rule to the plurality of attributes stored in memory
`comprises applying the selected new user rule to only the plurality of
`attributes stored in memory” (claims 30–41)
`
`
`
`Petitioner argues the above limitations “should at most only limit
`claims as excluding coverage of systems that always reference an object
`hierarchy structures such as a tree structure that requires traversal of
`abstractions to apply the user rule.” Pet. 21 (citing Ex. 1005 ¶ 138).
`Petitioner, however, also argues that the above limitations “require[] that the
`prior art have the ability to search only the attributes themselves.” Id. at 40
`(citing Ex. 1005 ¶ 221). Patent Owner responds the claims cover “applying
`the new user rule to only the plurality of detected ‘attributes,’ not ‘attributes
`[and their abstractions]’ as Petitioners contend.” Prelim. Resp. 17; see also
`id. at 48–49 (citing Ex. 1003, 52, 64) (asserting Kellogg’s query mechanism
`
`16
`
`
`
`IPR2019-00311
`Patent 7,932,923 B2 & C1
`
`queries database objects that carry non-attribute abstractions, such as object-
`history data).
`We determine that no explicit construction of the above “wherein”
`clauses is necessary for purposes of this Decision. Petitioner provides
`evidence and argument that the asserted prior art can “search only the
`attributes themselves and does not require traversing a tree structure of
`abstractions to search the detected attributes.” See, e.g., Pet. 40 (citing
`Ex. 1003, 83; Ex. 1005 ¶¶ 221–222) (stating Kellogg can store attribute data
`in a “bucket index” and can “search only the attributes themselves”).
`
`5. “means-plus-function”
`Petitioner proposes constructions for the following phrases it contends
`are means-plus-function limitations subject to 35 U.S.C. § 112 ¶ 6: “means
`for detecting an object in a video from a single camera” (claim 9); “means
`for detecting first and second objects in a video from a single camera” (claim
`30); “means for detecting a plurality of attributes of the object . . .” (claim
`9); “means for detecting a plurality of attributes of the object. . .” (claim 30);
`“means for selecting a new user rule after the plurality of detected attributes
`are stored in memory” (claim 9); “means for identifying an event. . .” (claim
`9); “means for identifying an event of the first object interacting with the
`second object. . .” (claim 30). Pet. 21–23.
`Patent Owner does not address Petitioner’s constructions for these
`terms or propose its own constructions. See Prelim. Resp. 19 (“Patent
`Owner does not believe it is necessary at the Preliminary Response stage to
`address the means-plus-function constructions proposed by Petitioners, but
`reserves the right to do so if trial is instituted.”).
`
`17
`
`
`
`IPR2019-00311
`Patent 7,932,923 B2 & C1
`
`
`Each of these limitations recites “means” and further recites a
`function, thus creating a presumption that 35 U.S.C. § 112 ¶ 6 applies.
`See 35 U.S.C. § 112 ¶ 6 (“An element in a claim for a combination may be
`expressed as a means or step for performing a specified function without the
`recital of structure, material, or acts in support thereof, and such claim shall
`be construed to cover the corresponding structure, material, or acts described
`in the specification and equivalents thereof.”); see also Williamson v. Citrix
`Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (en banc in relevant part)
`(quoting Personalized Media Commc’ns, LLC v. Int’l Trade Comm’n, 161
`F.3d 696, 703 (Fed. Cir. 1998)) (holding that “use of the word ‘means’
`creates a presumption that § 112 ¶ 6 applies”).
`We agree with Petitioner that these limitations are means-plus-
`function limitations subject to 35 U.S.C. § 112 ¶ 6. We also agree, on this
`record, with Petitioner’s identification of the structure corresponding to the
`recited functions. See Pet. 21–23.
`Neither party proposes express constructions for any other claim
`terms in this proceeding. For purposes of this Decision, we do not find it
`necessary to construe expressly any other claim terms.
`
`D. Asserted Anticipation of Claims 1–41 by Kellogg
`Citing the Declaration of John R. Grindon, D.Sc. (Ex. 1005) for
`support, Petitioner contends claim 1–41 are unpatentable under pre-AIA
`§ 102(b) as anticipated by Kellogg. See Pet. 34–62.
`For the reasons discussed below, we determine, on the present record,
`the information presented shows a reasonable likelihood Petitioner would
`prevail in establishing that at least one claim is anticipated by Kellogg,
`which is sufficient to warrant institution of an inter partes review.
`
`18
`
`
`
`IPR2019-00311
`Patent 7,932,923 B2 & C1
`
`
`1. Prior Art Status of Kellogg
`Kellogg is a paper by Christopher James Kellogg titled “Visual
`Memory.” Ex. 1003, 1. Kellogg states on its title page that it was submitted
`in partial fulfillment of the requirements for the degrees of Bachelor of
`Science and Master of Science in Computer Science at the Massachusetts
`Institute of Technology (“MIT”). Id. at 1. Kellogg is dated May 1993 and
`bears an MIT Library stamp of July 9, 1993. Id. The parties dispute
`whether Petitioner has shown that Kellogg was publicly accessible, and
`therefore, available as prior art under pre-AIA § 102(b). See, e.g., Pet. 3;
`Prelim. Resp. 19–25; Reply 1–5; Sur-Reply 1–5.
`Under 35 U.S.C. § 311(b), a petitioner in an inter partes review may
`only challenge the claims of a patent based on “prior art consisting of patents
`or printed publications.” For institution purposes, Petitioner has the burden
`to present information in the Petition to show a reasonable likelihood that it
`will prevail on the merits, which includes, inter alia, presenting information
`to show the asserted art is a patent or printed publication. See 35 U.S.C.
`§ 314(a); 37 C.F.R. § 42.108(c). “Whether a reference qualifies as a printed
`publication under § 102 is a legal conclusion based on underlying fact
`findings.” Acceleration Bay, LLC v. Activision Blizzard Inc., 908 F.3d 765,
`772 (Fed. Cir. 2018). “A reference is considered publicly accessible if it
`was ‘disseminated or otherwise made available to the extent that persons
`interested and ordinarily skilled in the subject matter or art, exercising
`reasonable diligence, can locate it.’” Id.
`Petit
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