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,
`
`v.
`
`Avigilon Fortress Corporation,
`
`Patent Owner.
`______________________
`
`Case No. IPR2019-00314
`
`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
`IPR2019-00314
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`TABLE OF CONTENTS
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`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 ................................................................................................. 6
`III. CLAIM CONSTRUCTION .......................................................................... 6
`A.
`“New User Rule” (Claims 1-41) ........................................................... 6
`B.
`“Applying” (Claims 1-41) ..................................................................... 7
`C.
`“Independent” (Claims 1-41) ................................................................ 8
`D.
`“Only” (Claims 1-41) ............................................................................ 9
`IV. THE CHALLENGED CLAIMS ARE PATENTABLE........................... 10
`A. Dimitrova In Combination With Brill Does Not Apply A
`New User Rule To The Plurality Of Detected Attributes ................... 10
`Dimitrova Does Not Disclose “Applying The New User
`Rule To Only The Plurality Of Detected Attributes” ......................... 13
`A “New User Rule” Necessarily Requires A Response ..................... 14
`C.
`D. Dimitrova Does Not Disclose “The Plurality Of Attributes
`That Are Detected Are Independent Of Which Event Is
`Identified” ............................................................................................ 15
`Dimitrova Does Not Disclose “Selecting The New User
`Rule Comprises Selecting A Subset Of The Plurality Of
`Attributes For Analysis” ...................................................................... 17
`V. MOTIVATION TO COMBINE ................................................................. 19
`VI. OBJECTIVE INDICIA OF NON-OBVIOUSNESS ................................ 20
`
`B.
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`E.
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
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`VII. DIMITROVA AND BRILL ARE NOT PRINTED
`PUBLICATIONS ......................................................................................... 21
`A.
`Evidence In The Petition Fails To Establish Dimitrova And
`Brill Were Printed Publications ........................................................... 21
`The Supplemental Information Fails To Establish Dimitrova
`And Brill Were Printed Publications ................................................... 22
`VIII. CONCLUSION ............................................................................................ 24
`
`
`B.
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`ABS Global v. Inguran, LLC,
`IPR2016-00927, Paper 33 (PTAB Oct. 2, 2017) .......................................... 21, 22
`Apple Inc. v. VirnetX Inc.,
`IPR2016-01585, 2018 WL 1014160 (Fed. Cir. 2018) .......................................... 3
`Axis Commc’n AB, et. al. v. Avigilon Fortress Corp.,
`IPR2018-00140, Paper 11 (PTAB Sept. 4, 2018) ..................................... 8, 11, 18
`Deere & Co. v. Gramm,
`IPR2015-00899, 2019 WL 7000102 (Fed. Cir. 2019) .......................................... 3
`Ford Motor Co. v. Versara Dev. Grp., Inc.,
`IPR2016-01019, Paper 9 (PTAB Oct. 4, 2016) .................................................. 22
`In re Freeman,
`30 F.3d 1459 (Fed. Cir. 1994) .............................................................................. 3
`Nestle USA, Inc. v. Steuben Foods, Inc.,
`884 F.3d 1350 (Fed. Cir. 2018) ............................................................................ 3
`Ohio Willow Wood Co. v. Alps South LLC,
`735 F.3d 1333 (Fed. Cir. 2013) ........................................................................ 3, 5
`Rivera v. Remington Designs, LLC,
`Case No. LA CV 16-04676 JAK, 2017 WL 3449615 (C.D. Cal.
`Jul. 7, 2017) ....................................................................................................... 2, 3
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
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`PATENT OWNER’S EXHIBIT LIST
`
`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).
`
`Forouzan Golshani & Nevenka Dimitrova, A Language for Content-
`Based Video Retrieval, 6 MULTIMEDIA TOOLS AND APPLICATIONS,
`289-312 (1998).
`IPR2018-00138; IPR2018-00140, Ex. 2009 (Grindon Dep. Transcript
`Aug. 15, 2018).
`
`
`2004
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`2005
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`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
`IPR2019-00314
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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.
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`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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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
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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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`
`
`I.
`
`INTRODUCTION
`Rather than engage directly with the missing disclosures in the asserted prior
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`art, Petitioners focus their Reply on collateral estoppel—an argument raised for the
`
`first time in the Reply—alleging that the Board’s decisions regarding U.S. Patent
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`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
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`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.
`
`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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`Accordingly, Petitioners have not shown that any issue Patent Owner raises here (1)
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
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`is the same as an issue in a prior action and (2) was actually litigated.
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`A. The ’923 Patent Presents Different Issues
`Petitioners argue that some of the proposed claim constructions and
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`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
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`cannot impose collateral estoppel to bar a claim construction dispute solely because
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`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
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`in the instant proceeding do not “embrace the same material scope” such that the
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`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
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`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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`

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`raised here merely because the ’923 patent claims priority to a parent of the ’661
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00311
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`patent. In re Freeman, 30 F.3d 1459, 1467 (Fed. Cir. 1994).
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`In particular, because the ’923 patent discloses a separate invention from the
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`’661 patent, including a distinct prosecution history and different claims, “a separate
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`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
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`(Fed. Cir. 2018) for the premise that “estoppel applies against similar claim terms
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`from related patents,” (Paper 31 at 2), misses the point. Collateral estoppel does not
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`apply when differences in the function of the claim language “materially alter[s] the
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`question of unpatentability.” Deere & Co. v. Gramm, IPR2015-00899, 2019 WL
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`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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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
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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,
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`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
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`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:
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`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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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`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
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`content of the prior art” in the ’923 patent were “actually litigated” in the ’661 patent.
`
`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 Dimitrova and Brill,
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`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.
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`III. CLAIM CONSTRUCTION
`
`A.
` “New User Rule” (Claims 1-41)
`Petitioners argue that Patent Owner is collaterally estopped from arguing that
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`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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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`is selected “after detecting the plurality of attributes,” a requirement absent from the
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`’661 patent.
`
`B.
` “Applying” (Claims 1-41)
`Petitioners argue that the term “applying” does not require “analysis” and that
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`a “query” is sufficient to satisfy this limitation. Paper 31 at 6. To the contrary, a
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`query merely retrieves data and does not apply the new user rule to the detected
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`attributes.2 The ’923 patent, however, explains that the purpose of “applying the
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`new user rule to the plurality of detected attributes” is to “identify[] an event of the
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`object that is not one of the detected attributes of the object.” Ex. 1001, Claim 1.
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`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’
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`assertion that “a ‘query’ must examine the attributes to find a match for collection
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`of attributes specified by the user rule” is not enough to indicate that a “query” meets
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`the claim limitation. Paper 31 at 6 (original emphasis). Namely, “find[ing] a match”
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`is nothing more than data retrieval; it provides no analysis to confirm that the
`
`identified event is “not one of the detected attributes of the object.” See Ex. 1001,
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`Claim 1.
`
`
`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.
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`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
`
`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
`
`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.
`
`C.
`“Independent” (Claims 1-41)
`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
`
`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
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`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-
`
`00140, 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
`
`27 at 11-12. The construction in the ’661 patent limited the independence element
`
`to only “a predefined/predetermined list of events,” (IPR 2018-00140, Paper 11 at
`
`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
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`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,
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`Claim 1.
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`D.
`“Only” (Claims 1-41)
`Petitioners claim that there is “no claim or specification support for the
`
`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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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`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.
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`Petitioners also misconstrue Dr. Bovik’s testimony by claiming that he
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`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
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`156:17-157:5.
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`IV. THE CHALLENGED CLAIMS ARE PATENTABLE
`A. Dimitrova In Combination With Brill Does Not Apply A New User
`Rule To The Plurality Of Detected Attributes
`Petitioners incorrectly assert that Patent Owner is estopped from arguing that
`
`Dimitrova 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
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`Dimitrova as compared to Courtney has already been actually litigated. Paper 31 at
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`11-13. That is incorrect. The ’661 patent and ’923 patent claim different things: the
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`’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
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`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 Dimitrova can only identify predefined events, as did Courtney, a reference
`
`overcome during prosecution. IPR2018-00140, Paper 11 (POR) at 44. Here, Patent
`
`Owner argues (1) that what Dimitrova stores and allegedly applies new user rules to
`
`are not attributes, as required, but events, regardless of whether they are
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`“predefined” as in Courtney, and (2) even if Dimitrova is found to apply the alleged
`
`new user rule to attributes, it applies the alleged new user rule to more than only the
`
`detected attributes. Accordingly, Kellogg cannot possibly meet the additional
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`requirements of the ’923 patent.
`
`Next, Petitioners argue that Dimitrova discloses “‘applying the new user rule
`
`to attributes’”—regardless of how the attributes are stored. Paper 31 at 11. But the
`
`issue is not how the information is stored but rather whether what is stored and
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`operated on are attributes. Petitioners argue that Patent Owner’s characterization of
`
`“walking [and] waving . . . contradicts the specification, which expressly states that
`
`attributes can include the activity of an object.” Paper 31 at 11. But Petitioners
`
`confuse Patent Owner’s argument.3 As explained in the Patent Owner’s Response,
`
`Petitioners’ only evidence that Dimitrova satisfies this limitation—something they
`
`refer to as the Parade Query—does not apply the new user rule to attributes as the
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`’923 patent requires. Paper 1 at 36; Paper 27 at 16; see also Ex. 2018 at 127:15-
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`128:6 (Petitioners’ expert Dr. Grindon confirming that Petitioners have not cited to
`
`any other query other than the Parade Query to allege Dimitrova satisfies this claim
`
`limitation).
`
`
`
`Petitioners next argue that the ’923 patent “provides no disclosure on the
`
`particular data structures used in an implementation to embody a detected object and
`
`its associated attributes.” Paper 31 at 12. 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
`
`Dimitrova, “queried,” according to Petitioners’ arguments) are attributes or events.
`
`
`3 It is unclear what Petitioners are pointing to when they claim that the Patent
`Owner’s Response page 45 supports their contention as this section relates to
`Patent Owner’s argument about Dimitrova’ and Brill’s printed publication status.
`Paper 31 at 11 (citing Paper 27 at 45).
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`As explained in Patent Owner’s response and Dr. Bovik’s declaration, Dimitrova
`
`stores and queries events. Paper 27 at 16-18; Ex. 2019 at 51-53.
`
`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
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`“an object, its classification and its motion,” misrepresents his testimony. Paper 31
`
`at 12 citing Ex. 1056 at 114:15-18. When questioned whether the claims permit a
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`data structure that stores an object, its motion, and its classification is outside the
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`claims, Dr. Bovik testified that “[t]he claims don’t use that language. Instead, the
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`claims teach something else.” Ex. 1056 at 114:19-23. Continuing, he explained
`
`that to meet the requirement to apply a new user rule only to attributes, a system
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`cannot store and operate on an object engaged in an activity, i.e., an event, such as a
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`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
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`117:12-15.
`
`B. Dimitrova 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. Dimitrova plainly disclosures querying more than “only” attributes,
`
`because it discloses querying abstraction data. See Paper 27 at 18-21. This is exactly
`
`why the Panel allowed the ’923 patent over the Day-I reference in reexamination:
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`the Panel found that Day-I did not teach applying the “new user rule” only to
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`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. Petitioners do not even attempt to respond to
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`this critical failure in their Petition, instead merely repeat their unsupported claim
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`construction assertions. Compare Paper 31 at 9-10 with id. at 13-14. Petitioners
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`argue that “the claims of the ’923 patent cannot be construed to exclude searching
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`abstractions because the ’923 patent provides no written description support for that
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`limitation,” but that is an improper Section 112 argument and does not negate the
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`claim language. Paper 31 at 13 (original emphasis).
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`Petitioners merely respond by reiterating their argument that Dimitrova’s
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`“‘exact’ search operator [] prevents the system from returning higher-level
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`abstraction.” Id. at 14. But this too is reliant on Petitioners’ faulty argument that
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`“the claim limitation does not preclude a system that includes higher level
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`abstractions,” which Patent Owner addressed in Section III.D supra.
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`C. A “New User Rule” Necessarily Requires A Response
`Petitioners admit that they “did not rely on Brill for attribute detection,” but
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`solely to show responses to a “new user rule.” Paper 31 at 15. Petitioners should
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`not be later permitted to backfill the Petition with new references to Brill to cure the
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`Petition’s deficiencies.
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`D. Dimitrova 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
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`estoppel applies, but as explained in Section III.C and IV.C, they have not shown
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`that the issues presented in this matter are identical to those actually litigated in the
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`prior proceeding. The ’661 patent requires that “the plurality of attributes that are
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`detected are independent of the identified event such that events may be defined
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`that do not require analysis of all of the plurality of attributes.” Ex. 1035, Claim
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`1. The ’923 claim language is different, requiring that “the plurality of attributes
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`that are detected are independent of which event is identified.” See Ex. 1001, Claim
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`1. In fact, the ’923 patent is clearly distinguished from the ’661 patent in this respect
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`because it is only in claim 2 of the ’923 patent that a “subset of the plurality of
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`attributes” are selected for analysis.
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`As explained above, while the arguments in the ’661 patent IPR focused on
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`comparing the “scope and content” between Dimitrova and Courtney, see Axis
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`Commc’n v. Avigilon Fortress Corp., IPR2018-00140, Paper 25 at 11-12, regarding
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`predefined events, the issue here concerns whether the alleged attribute detection is
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`independent of event identification, not merely whether Dimitrova is like Courtney.
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`Petitioners also argue that Patent Owner’s argument that Dimitrova “does not
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`disclose domain independent attribute detection is meritless” because the ’923 patent
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`does not “exclude an implementation targeted at a specific domain” by
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`mischaracterizing Dr. Bovik’s testimony. Paper 31 at 15-16. Dr. Bovik testified
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`that “any patent involving image analysis” may “need to know the domain that is
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`intended to be analyzed by the system.” Ex. 1056 at 93:18-23. In other words, there
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`may be some application-dependent analysis that takes place when “applying the
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`new user rule” to identify an event. But Petitioners misconstrue Dr. Bovik’s
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`testimony by arguing he suggests dependence when detecting attributes. Nowhere
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`in Dr. Bovik’s testimony did he contradict a central requirement of the claims of the
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`’923 Patent—detecting attributes independently from event identification.
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`Petitioners also contend that “[n]othing in the claims prohibits a system that
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`specifies a logical ordering among possible attributes, such as Dimitrova’s
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`basketball schema.” Paper 31 at 16. But as explained in the Patent Owner’s
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`Response, Dimitrova’s schema is “a formal specification of all objects of interest . .
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`. [that is] defined before the system is implemented.” Paper 27 at 29. As such, the
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`schema predetermines what attributes are to be determined, specifically on the basis
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`of the events. Id.
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`Finally, Petitioners argue that Patent Owner’s remaining arguments related to
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`the query language, attribute storage, and use of indices should be rejected because
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`“each of Avigilon’s criticisms of Dimitrova relate to a level of detail that the ’923
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`patent disclosure is silent on.” Paper 31 at 16. That is incorrect. As explained in
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`the POR, the claims preclude the approach taken by Dimitrova of storing and
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`16
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`querying events. As explained above, the issue is not about formatting or medium
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`of storage, but rather what the alleged new user rule is applied to; in Dimitrova, it is
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`events, in contradiction of the claims.
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`E. Dimitrova Does Not Disclose “Selecting The New User Rule
`Comprises Selecting A Subset Of The Plurality Of Attributes For
`Analysis”
`Petitioners first argue that Patent Owner’s argument “is based on the faulty
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`and rejected argument that the use of a schema is inconsistent with the ’923 patent
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`claims.” Paper 31 at 17. But Petitioners fail to actually rebut Patent Owner’s
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`argument. As reiterated in VI.B, Dimitrova’s schemas are inconsistent with the ’923
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`patent because they disclose domain-dependent attribute detection. It is not merely
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`because Dimitrova discloses a schema that is at issue; rather, it is because
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`Dimitrova’s schema is inconsistent with the ’923 patent. Also, even if the Board is
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`“unable to discern the relevance of indexing or Dimitrova’s ‘schema’” as it was in
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`the ’661 patent IPR, Petitioners fail to note that the Board’s discussion was explicitly
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`limited to the “independence-based claim elements.” IPR2018-00140, Paper 25
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`(FWD) at 11. Thus, the decision in the ’661 patent has no applicability to the claim
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`limitation, “selecting the new user rule comprises selecting a subset of the plurality
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`of attributes for analysis.” Ex. 1001, Claim 2.
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`Moreover, Petitioners argue that Dimitrova discloses this claim element
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`because the basketball scenario “expressly show[s] the collection of a large set of
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`Patent Owner’s Sur-Reply to Petitioners’ Reply
`IPR2019-00314
`attributes and the selecting [of] a subset of attributes for searching.” Paper 31 at 17.
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`But Petitioners miss the point. As Pate