UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________________________
`
`CANON INC. and CANON U.S.A., INC., and
`AXIS COMMUNICATIONS AB,
`
`Petitioners,
`v.
`
`AVIGILON FORTRESS CORPORATION,
`Patent Owner.
`______________________________
`
`Case: IPR2019-00314
`U.S. Patent No. 7,932,923
`______________________________
`
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________________________
`
`CANON INC. and CANON U.S.A., INC., and
`AXIS COMMUNICATIONS AB,
`
`Petitioners,
`v.
`
`AVIGILON FORTRESS CORPORATION,
`Patent Owner.
`______________________________
`
`Case: IPR2019-00314
`U.S. Patent No. 7,932,923
`______________________________
`
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`IPR2019-00314
`U.S. Patent No. 7,932,923
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`TABLE OF CONTENTS
`
`2.
`
`3.
`
`INTRODUCTION ......................................................................................... 1
`I.
`COLLATERAL ESTOPPEL APPLIES ..................................................... 2
`II.
`III. CLAIM CONSTRUCTIONS........................................................................ 5
`A. MEANS-PLUS-FUNCTION ELEMENTS (CLAIMS 9-19, 30-41) ... 5
`B.
`“ATTRIBUTES” LIMITATIONS (CLAIMS 1-41) ............................. 5
`C.
`“NEW USER RULE” (CLAIMS 1-41) ................................................ 5
`D.
`INDEPENDENCE-BASED LIMITATIONS (CLAIMS 1-41) ............ 6
`1.
`INDEPENDENCE ARGUMENT (1) (AVIGILON’S
`“APPLYING” ARGUMENT) .................................................... 6
`INDEPENDENCE ARGUMENT (3) (AVIGILON’S
`“EVENT” ARGUMENT) ........................................................... 8
`INDEPENDENCE ARGUMENT (2) (AVIGILON’S
`“INDEPENDENT” ARGUMENT) ............................................ 8
`THE “ONLY” LIMITATIONS (CLAIMS 1-41) ................................. 9
`E.
`“VIDEO DEVICE” .............................................................................10
`F.
`IV. THE CHALLENGED CLAIMS ARE UNPATENTABLE .....................11
`A.
`DIMITROVA IN COMBINATION WITH BRILL DISCLOSES
`“APPLYING THE NEW USER RULE TO THE PLURALITY OF
`DETECTED ATTRIBUTES” AND “APPLYING THE NEW USER
`RULE TO ONLY THE PLURALITY OF DETECTED
`ATTRIBUTES” ...................................................................................11
`1.
`DIMITROVA DETECTS ATTRIBUTES .................................11
`2.
`DIMITROVA DISCLOSES APPLYING THE NEW USER
`RULE TO ONLY THE ATTRIBUTES ...................................13
`AVIGILON’S ARGUMENT THAT A RESPONSE IS NOT
`SHOWN MUST FAIL ..............................................................14
`
`3.
`
`i
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`IPR2019-00314
`U.S. Patent No. 7,932,923
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`B.
`
`C.
`
`DIMITROVA DISCLOSES “THE PLURALITY OF ATTRIBUTES
`THAT ARE DETECTED ARE INDEPENDENT OF WHICH
`EVENT IS IDENTIFIED” ..................................................................15
`DIMITROVA DISCLOSES “SELECTING THE NEW USER RULE
`COMPRISES SELECTING A SUBSET OF THE PLURALITY OF
`ATTRIBUTES FOR ANALYSIS” .....................................................17
`A POSITA WOULD HAVE BEEN MOTIVATED TO COMBINE
`DIMITROVA AND BRILL ..................................................................18
`PATENT OWNER’S “OBJECTIVE INDICIA OF NON-
`OBVIOUSNESS” IS NOT CREDIBLE .............................................19
`DIMITROVA AND BRILL ARE PRINTED PUBLICATIONS ..............20
`A.
`THE BOARD MAY CONSIDER POST-PETITION EVIDENCE
`CONFIRMING PUBLICATION ........................................................21
`THE EVIDENCE SUBMITTED WITH THE PETITION ALONE
`PROVES PUBLICATION ..................................................................23
`VI. CONCLUSION ............................................................................................25
`
`V.
`
`D.
`
`E.
`
`B.
`
`ii
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`
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`IPR2019-00314
`U.S. Patent No. 7,932,923
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`LIST OF EXHIBITS
`
`Ex. 1001 U.S. Patent No. 7,932,923 (“the ’923 Patent”)
`Ex. 1002
`Prosecution History of the ’923 Patent
`Ex. 1003
`“Visual Memory” by Christopher James Kellogg (“Kellogg”)
`Ex. 1004
`“Event Recognition and Reliability Improvements for the
`Autonomous Video Surveillance System” by Frank Brill et al.
`(“Brill”)
`Ex. 1005 Declaration of John R. Grindon, D.Sc.
`Ex. 1006
`“Motion Recovery for Video Content Classification” by N. Dimitrova
`et al. (“Dimitrova”)
`Ex. 1007 Declaration of Emily R. Florio
`Ex. 1008
`February 29, 2012 Request for inter partes Reexamination of the ’923
`Patent
`Ex. 1009 May 23, 2012 Order Granting/Denying Request for inter partes
`Reexamination of the ’923 Patent
`Ex. 1010 May 23, 2012 Office Action in inter partes Reexamination of the ’923
`Patent
`Ex. 1011 August 27, 2012 Amendment and Reply in inter partes
`Reexamination of the ’923 Patent
`February 13, 2013 Decision Granting Petition to Terminate inter
`partes Reexamination Proceeding of the ’923 Patent
`Ex. 1013 May 23, 2013 Attachment to Request for ex parte Reexamination of
`the ’923 Patent
`June 17, 2013 Order Granting/Denying Request for ex parte
`Reexamination of the ’923 Patent
`Ex. 1015 August 30, 2013 Office Action in ex parte Reexamination of the ’923
`Patent
`
`Ex. 1012
`
`Ex. 1014
`
`iii
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`U.S. Patent No. 7,932,923
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`Ex. 1016 October 30, 2013 Amendment and Reply in ex parte Reexamination
`of the ’923 Patent
`Ex. 1017 April 4, 2014 Final Office Action in ex parte Reexamination of the
`’923 Patent
`Ex. 1018 April 16, 2014 Amendment and Reply in ex parte Reexamination of
`the ’923 Patent
`Ex. 1019 April 30, 2014 Notice of Intent to Issue ex parte Reexamination
`Certificate of the ’923 Patent
`Ex. 1020 May 21, 2014 ex parte Reexamination Certificate of the ’923 Patent
`Ex. 1021 U.S. Patent No. 5,969,755 to Courtney (“Courtney”)
`Ex. 1022
`“Object-Oriented Conceptual Modeling of Video Data” by Young
`Francis Day et al., (“Day-I”)
`Ex. 1023 Declaration of Christopher James Bailey-Kellogg in IPR2018-00138
`and IPR2018-00140
`Ex. 1024 Applicant Response of June 11, 2012 in inter partes Reexamination of
`U.S. Patent No. 7,868,912 (“the ’912 Patent”)
`Ex. 1025 Decision Granting Petition to Terminate inter partes Reexamination
`of the ’912 Patent
`Ex. 1026 May 24, 2013 Attachment to Request for ex parte Reexamination of
`the ’912 Patent
`June 20, 2013 Order Granting/Denying Request for ex parte
`Reexamination of the ’912 Patent
`Ex. 1028 August 30, 2013 Office Action in ex parte Reexamination of the ’912
`Patent
`Ex. 1029 October 30, 2013 Amendment and Reply in ex parte Reexamination
`of the ’912 Patent
`Ex. 1030 March 27, 2014 Final Office Action in ex parte Reexamination of the
`’912 Patent
`
`Ex. 1027
`
`iv
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`Ex. 1031 April 16, 2014 Amend and Reply in ex parte Reexamination of the
`’912 Patent
`Ex. 1032 Notice of Intent to Issue ex parte Reexamination Certificate of the
`’912 Patent
`Ex. 1033 Declaration of Kenneth A. Zeger for the ex parte Reexamination of
`the ’923 Patent
`Ex. 1034 U.S. Patent No. 7,868,912
`Ex. 1035 U.S. Patent No. 8,564,661
`Ex. 1036 Curriculum Vitae of John R. Grindon, D.Sc.
`Ex. 1037 Merriam-Webster’s Collegiate Dictionary
`Ex. 1038 Declaration of Dr. Alan Bovik in IPR2018-00138 and IPR2018-00140
`Ex. 1039
`The New York Times October 2, 1999, Pro Basketball; McHale and
`Thompson Enter Hall of Fame with 3 Others, by Mike Wise
`Ex. 1041 Declaration of Guang-Yu Zhu
`Ex. 1042
`“Understanding MARC Bibliographic: Parts 1 to 6,” available at
`https://www.loc.gov/marc/umb/um01to06.html (last accessed August
`1, 2019)
`“Understanding MARC Bibliographic: Parts 7 to 10,” available at
`https://www.loc.gov/marc/umb/um07to10.html (last accessed August
`1, 2019)
`Ex. 1044 Nevenka Dimitrova et al., “Motion Recovery for Video Content
`Classification,” ACM Transactions on Information Systems, Vol. 13,
`No. 4, 408-439 (1995) from the MIT Libraries
`Ex. 1045 Bruce E. Flinchbaugh et al., “Autonomous Video Surveillance,” in
`Emerging Applications of Computer Vision, Vol. 2962, pp. 144-151
`(1997) from the Library of Congress (Served But Not Filed)
`
`Ex. 1043
`
`v
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`Ex. 1046
`
`Frank Brill et al., “Event Recognition and Reliability Improvements
`for the Autonomous Video Surveillance System” Proceedings of the
`Image Understanding Workshop, Nov. 20-23, 1998, Vol. 1, pp. 267-
`283 from the University of Virginia Library
`Ex. 1047 Declaration of Katie Zimmerman filed in KAZ USA, Inc. v. Exergen
`Corp., Case IPR2016-01437, Exhibit 1027 (Served But Not Filed)
`Ex. 1048 Declaration of Marilyn McSweeney filed in Yahoo! Inc. v. CreateAds
`LLC, Case IPR2014-00200, Exhibit 1007 (Served But Not Filed)
`Ex. 1049 Declaration of Bryan Patrick Kasik
`Ex. 1050
`2019.08.09 Conference Call Transcript
`Ex. 1051
`Frank Brill et al., “Event Recognition and Reliability Improvements
`for the Autonomous Video Surveillance System” Proceedings of the
`Image Understanding Workshop, Nov. 20-23, 1998, Vol. 1, pp. 267-
`283 from the University of Wisconsin-Madison Memorial Library
`Email from the University of Wisconsin-Madison Memorial Library
`Ex. 1052
`Ex. 1053 Declaration of Rachel Watters
`Ex. 1054 Declaration of Katherine Zimmerman relating to Kellogg (Served But
`Not Filed)
`Ex. 1055 Declaration of Katherine Zimmerman relating to Dimitrova (Pending
`Authorization)
`Transcript of Deposition of Dr. Alan Bovik
`
`Ex. 1056
`
`vi
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`
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`IPR2019-00314
`U.S. Patent No. 7,932,923
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`I.
`
`INTRODUCTION
`
`Avigilon’s Response fails to rebut Petitioner’s showing of invalidity of the
`
`’923 Patent claims for two primary reasons.
`
`First, most of Avigilon’s arguments must be rejected as collaterally estopped
`
`because they have already been considered and rejected in the Final Written
`
`Decisions involving Avigilon’s related U.S. Patent No. 8,564,661.1 Papst
`
`Licensing GmbH & Co. KG v. Samsung Electronics America, 924 F.3d 1243,
`
`1250-51 (Fed. Cir. 2019).
`
`For example, Avigilon again argues that Dimitrova is deficient because it
`
`does not show the “independence based claim elements” and rather merely
`
`discloses an event querying/filtering system, like the Courtney reference applied
`
`against the patent in reexamination.
`
`But Avigilon made the same argument in the ’661 IPR and the Board
`
`unequivocally rejected it there. IPR2018-00140 FWD, 12.
`
`Similarly, Avigilon again argues that the claimed new user rule requires a
`
`response, which the Board also rejected. Id. 13.
`
`Second, Avigilon’s arguments here fail on their merits as discussed below.
`
`1 As the Board has already recognized (Papers 13 at 3) the ‘923 Patent here is
`related to the ’661 Patent.
`
`1
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`II.
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`COLLATERAL ESTOPPEL APPLIES
`
`“Collateral estoppel protects a party from having to litigate issues that have
`
`been fully and fairly tried in a previous action and adversely resolved against a
`
`party-opponent.”2 Nestle USA, Inc. v. Steuben Foods, Inc., 884 F.3d 1350, 1351
`
`(Fed. Cir. 2018); Papst, 924 F.3d at 1250. Collateral estoppel applies to issues
`
`decided in IPRs, including issues decided during the invalidation of a related
`
`patent. Papst, 924 F.3d at 1249; Mobile Tech, Inc. v. Invue Security Product,
`
`IPR2018-00481, FWD, Paper 29 (July 16, 2019).
`
`After the filing of the current petition, the Board issued its Final Written
`
`Decisions invalidating the related ’661 patent on May 30, 2019. See IPR2018-
`
`00140, Paper 25. Avigilon withdrew its appeals of those decisions and is now
`
`collaterally estopped as to the issues the Board has already decided.
`
`Collateral estoppel bars Avigilon from re-litigating factual and legal issues
`
`here where: (1) the issue is the same as the issue in the prior action; (2) the issue
`
`was actually litigated in the first action; (3) there was a final judgement in the first
`
`action that necessarily required determination of the identical issue; and (4) the
`
`prior action featured full representation of the estopped party. Mobile Tech,
`
`2 All emphasis throughout added unless otherwise stated.
`
`2
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`U.S. Patent No. 7,932,923
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`IPR2018-00481, Final Written Decision, Paper 29 at 10. All four elements apply
`
`here.
`
`One, most the issues raised by Avigilon in these proceedings are the same as
`
`issues the Board rejected in the ’661 patent Final Written Decision. The ’661 and
`
`’923 patents, claim priority to the same parent application and use the same claim
`
`terms. The relevant portions of the specifications and figures are identical. And
`
`Avigilon agrees the claim terms should be construed consistently between the
`
`patents. See, Paper 9 at 8 (relying on the ’661 IPR institution decisions); 9 (relying
`
`on ’661 IPRs for “rules”); 12 (same for event and independent terms); 13, 14, 35.
`
`As explained below (see Section III), Avigilon reargues the same claim
`
`construction positions that the Board has already rejected. And Avigilon does not
`
`argue3 that there is anything different about the ’923 patent to support a different
`
`result here. See, Nestle, 884 F.3d at 1351 (estoppel applies against similar claim
`
`terms from related patents). Similarly, Avigilon also improperly argues the Board
`
`should reject the exact same prior art, Dimitrova and Brill, that it previously
`
`considered in the ’661 IPRs. The Board need not and should not reevaluate its prior
`
`invalidity analysis regarding the significance of this prior art.
`
`3 Nor could Avigilon argue that the constructions should differ, having advocated
`for consistent constructions in its preliminary response.
`
`3
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`Two, not only were the issues the same as in the prior ’661 patent
`
`proceedings, but they were actually litigated in those proceedings. Specifically,
`
`claim construction and the content of the prior art were, obviously, the central
`
`issues in the ’661 IPR and Avigilon fully argued for the patentability of the ’661
`
`patent. See Papst, 924 F.3d at 1252-53.
`
`Three, the Board’s final written decisions in the ’661 IPR proceedings
`
`became irrevocably final when Avigilon dropped its appeals. Papst, 924 F.3d at
`
`1249 (citations omitted). These decisions were also necessary to the ’661 IPR final
`
`judgment. Claim construction is a prerequisite for determining validity. See, e.g.,
`
`Oakley, Inc. v. Sunglass Hut Int’l, 316 F.3d 1331, 1339 (Fed. Cir. 2003) (“[a]n
`
`assessment of the likelihood of validity of a patent claim over the prior art also
`
`involves a two-step process,” with claim construction as the “first step”). The
`
`Board, of course, necessarily rejected each of Avigilon’s validity arguments
`
`regarding the scope and content of the prior art when it found the ’661 patent
`
`claims invalid.
`
`Four, Avigilon was fully represented and vigorously litigated the prior
`
`action. In that action, Avigilon presented testimony from Dr. Bovik, cross
`
`examined Petitioner’s expert Dr. Grindon, and argued at the oral hearing. Both
`
`experts are the same as in this proceeding. On that full record, the Board issued a
`
`thorough well-reasoned opinion.
`
`4
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`Elements one through three are specifically addressed below for each
`
`collaterally estopped issue. Element four is the same for all issues.
`
`III. CLAIM CONSTRUCTIONS
`
`A. Means-Plus-Function Elements (Claims 9-19, 30-41)
`
`The Board should adopt the Petitioner’s proposed constructions, which
`
`Avigilon “does not challenge.” Paper 27, 15.
`
`B.
`
` “Attributes” Limitations (Claims 1-41)
`
`Avigilon summarily states that “[n]o construction of ‘attributes’ is necessary
`
`here for Petitioners’ challenges,” conceding that the construction of these claim
`
`terms is not material to its validity arguments. Id., 6.
`
`C.
`
`“New User Rule” (Claims 1-41)
`
`The Board construed the substantively identical “rule” limitations in the
`
`related the ’661 IPRs to not require a response. See IPR2018-00138 FWD, 11-13
`
`(“[a]lthough Patent Owner argues that a rule requires more than a query that
`
`returns whether an event has occurred (PO Resp. 31–32; Sur-Reply 9–10), we
`
`agree with Petitioner that a ‘response’ is not required”); IPR2018-00140 FWD, 6
`
`(same constructions).
`
`Avigilon raises the same issue here arguing that a “new user rule” requires a
`
`response. Paper 27, 6-8. Avigilon relies on content identical in both patents and
`
`nothing about the ’661 patent makes this issue different. Because this same issue
`
`5
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`was actually litigated and necessary to the Board’s final judgment in the ’661 IPRs,
`
`collateral estoppel applies.
`
`Moreover, the ’923 patent clearly and repeatedly explains that rules and
`
`responses are separate elements, and that responses are optional. See, e.g., Ex.
`
`1001, 8:37 (“In block 34, a response is optionally identified”); 8:50-58
`
`(“responses identified in block 34 are optionally associated with each event
`
`discriminator”); 11:13-16.
`
`D.
`
`Independence-Based Limitations (Claims 1-41)
`
`1.
`
`Independence Argument (1) (Avigilon’s “Applying”
`Argument)
`
`Avigilon presents no evidence that supports its assertion that the “plain and
`
`ordinary” meaning of “applying the new user rule to the plurality of detected
`
`attributes” requires some special, undisclosed “analysis” on top of a “query.”
`
`Paper 27, 8-10. And, it offers no dictionary definitions or other evidence showing
`
`that the plain meanings of these words necessitate these additional limitations.
`
`Avigilon’s attempt to incorporate some particular “analysis” into the word
`
`“applying” is belied by the claims themselves, which use the terms differently. For
`
`example, claim 1 uses the term “applying the new user rule,” in the present
`
`limitation, but the same claim also recites “analyzing the video.”
`
`6
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` Moreover, “querying” is not merely “retrieving the detected attributes from
`
`a database” as Avigilon suggests. Id., 9. Rather, a “query” must examine the
`
`attributes to find a match for the collection of attributes specified by the user rule.
`
`Avigilon argues that the use of “analysis/analyzing” in dependent claims 2
`
`and 13 requires that the independent claims include those limitations is illogical.
`
`Dependent claims are narrower than the claims from which they depend. Thus
`
`reciting “analysis” in a dependent claim does not work backwards to require
`
`analysis in the independent claim.
`
`The ’923 patent gives no special meaning to the term “applying.” Indeed,
`
`the specification never once uses “applying” as the claim does. Nor does it suggest
`
`that “applying” should be limited to requiring analysis. The generic statement that
`
`the system can “further analyze previously processed video without needing to
`
`reprocess completely the video,” relied on by Avigilon (Paper 27, 10) is
`
`completely consistent with “querying” stored attributes, which does not require
`
`reprocessing the video.
`
`Avigilon’s expert witness, Dr. Bovik, admitted that “querying” meets the
`
`“applying” limitation: “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.” Ex. 2019, 42. Dr. Bovik’s
`
`7
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`U.S. Patent No. 7,932,923
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`unsupported statements about passive vs. active analysis (Paper 27, 10) do not
`
`contradict this admission.
`
`Finally, Avigilon’s reference to a statement that “a decision is made” (id.,
`
`10) in the ’923 patent reexamination does not reference analysis or constitute a
`
`clear an unmistakable disclaimer.
`
`2.
`
`Independence Argument (3) (Avigilon’s “event” Argument)
`
`Avigilon provides no response and only improperly incorporates “the
`
`reasons stated in” its Preliminary Response (id., 10) by reference, which violates
`
`37 CFR § 42.6(a)(3) and the Scheduling Order. Paper 14, 7. Petitioner’s
`
`construction should be adopted.
`
`3.
`
`Independence Argument (2) (Avigilon’s “independent”
`Argument)
`
`Avigilon first states that no construction is necessary, but then repeats its
`
`same failed argument from the ’661 IPRs that “independent” means “the attributes
`
`are detected without regard to or knowledge of events or identification of events.”
`
`Paper 27, 11-12. The Board has already ruled that there is no reason to so limit the
`
`claims, in ruling on this necessarily decided issue. See IPR2018-00138 FWD, 9;
`
`IPR2018-00140 FWD, 11. Collateral estoppel applies because this is the same
`
`issue the Board argued and finally decided in the ’661 patent IPRs.
`
`8
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`Notwithstanding Avigilon’s attempt to characterize this as a new
`
`construction due to its addition of the phrase “or identification of events” (Paper
`
`27, 11-12), this is the same already, finally rejected argument. Indeed, Avigilon
`
`calls its change a “minor alteration.” Id. Moreover, the addition of a second set of
`
`information (the identification of events) is baseless. Avigilon provides no citation
`
`to the ’923 patent specification nor any other explanation regarding what it means
`
`to detect attributes “without regard to or knowledge of …identification of events.”
`
`Its construction should be rejected and Petitioners’ unrebutted construction should
`
`be adopted.
`
`E.
`
`The “Only” Limitations (Claims 1-41)
`
`Avigilon’s argument that the claims include a negative limitation precluding
`
`the searching of abstractions (Paper 27, 14) must fail because it identifies no
`
`written description support for that limitation in the ’923 patent. Inphi Corp. v.
`
`Netlist, Inc., 805 F.3d 1350, 1355 (Fed. Cir. 2015). The ’923 patent does not
`
`disclose a system that never searches abstractions. Even if it did, the ’923 Patent
`
`does not disclose any benefits or reasons to avoid searching abstractions. To the
`
`contrary, all the embodiments of the ’923 patent state that both primitives
`
`(attributes) and abstractions may be searched. Ex. 1001, 8:16-17, 8:50-52; see Ex.
`
`1056, 156:17-158:9 (Avigilon’s expert admitting abstractions “might be involved
`
`in” “defining events”). A construction of the claims forbidding searching
`
`9
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`U.S. Patent No. 7,932,923
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`abstractions lacks written description support in the ’923 patent and would be an
`
`error.
`
`Avigilon’s reliance on Crystal Semiconductor Corp. v. TriTech
`
`Microelectronics Int’l, Inc., 246 F.3d 1336, 1348 (Fed. Cir. 2001) is misplaced
`
`because that case explains that “comprising” creates a presumption that “the claim
`
`does not exclude additional, unrecited elements.” There is no claim or
`
`specification support for the argument that a system must completely exclude
`
`searches on abstractions to comport with the claims. Thus, at most, this limitation
`
`only requires an embodiment that can search attributes alone. See Ex. 1056,
`
`207:16-208:15 (if a system “practices every element of the claim,” it is irrelevant
`
`that is also “applies new user rules to abstractions”).
`
`F.
`
`“Video Device”
`
`Avigilon argues that the phrase “video device” in the preambles of claims 9
`
`and 30 is limiting. Paper 27, 14-15. But Avigilon does not state how the phrase
`
`should be construed. Moreover, Avigilon does not argue that the prior art in this
`
`proceeding lacks a video device. Thus, this term need not be construed.
`
`10
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`IV. THE CHALLENGED CLAIMS ARE UNPATENTABLE
`
`A.
`
`Dimitrova in Combination With Brill Discloses “Applying the New
`User Rule to the Plurality of Detected Attributes” and “Applying
`the New User Rule to Only the Plurality of Detected Attributes”
`
`1.
`
`Dimitrova Detects Attributes
`
`Avigilon repeats its failed argument that Dimitrova stores and indexes
`
`events, not attributes, and is therefore just like Courtney. Id., 17-18. The Board
`
`has already rejected this argument. IPR2018-00140 FWD at 12-13. Because the
`
`parties actually litigated and the Board finally resolved this same issue—ruling that
`
`Dimitrova does not merely detect and search events like Courtney—as a necessary
`
`part of its final judgment, Avigilon is collaterally estopped from trying to obtain a
`
`different decision here.
`
`Moreover, Avigilon argues that activities, e.g., walking or waving, are
`
`events to distinguish the prior art. See, e.g., Paper 27 at 45 (Dimitrova “stores and
`
`operates on . . . events, and not attributes.”); see also Ex. 2019 at 51 (walking and
`
`waving are events). However, this interpretation contradicts the specification,
`
`which expressly states that attributes can include the activity of an object,
`
`including speed, motion, appearance and disappearance of an object. Ex. 1001,
`
`7:6-12, 7:37-41. Avigilon’s argument is also inconsistent with the claims. Claim
`
`1, for example, requires an identification of an event “that is not one of the
`
`11
`
`
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`IPR2019-00314
`U.S. Patent No. 7,932,923
`
`detected attributes.” If attributes and events are mutually exclusive, as Avigilon
`
`contends, then this claim limitation would be meaningless. Rather, the ’923 Patent
`
`is clear that attributes are “characteristics associated with an object,” including
`
`characteristics that can specify an activity of the object. Thus, the prior art’s
`
`detection and recording of activity attributes is not a valid basis to distinguish it
`
`from the ’923 patent.
`
`Furthermore, contrary to Avigilon’s arguments (Paper 27, 17-18),
`
`Dimitrova’s use of an OMV data structure does not distinguish it from the ’923
`
`patent claims. Avigilon criticizes Dimitrova because it detects an object’s motion
`
`attributes. Id. But the ‘923 patent does this same thing. Ex. 1001, 7:6-11 (a
`
`salient motion is a video primitive, i.e., attribute); 7:42-50 (trajectories are a
`
`property of a salient motion). The claims do not limit the form of the data
`
`structures used to retain and work on this data. Indeed, the patent provides no
`
`disclosure on the particular data structures used in an implementation to embody a
`
`detected object and its associated attributes. See, e.g., Ex. 1056, 45:5-14
`
`(Avigilon’s expert stating there must be “some kind of storage involved,” but “it’s
`
`not claimed”), 55:24-56:4 (no opinion on whether storing objects in an index is
`
`within the claims), 85:15-23 (“not excluding” storing attributes “in an object-
`
`oriented database”), 114:15-18 (“patent doesn’t say” you can’t store “an object, its
`
`classification and its motion”). Thus, the ’923 patent does not provide any basis to
`
`12
`
`
`
`IPR2019-00314
`U.S. Patent No. 7,932,923
`
`exclude Dimitrova’s OMV triplets from being an adequate way to organize an
`
`object and its attributes.
`
`Avigilon also blatantly misrepresents Dr. Grindon’s testimony to allege that
`
`he agreed OMV triplets are events. Paper 27, 16. The cited testimony does not
`
`discuss events at all. Ex. 2018, 133:1-3. Instead, Dr. Grindon merely agreed with
`
`the undisputed fact that Dimitrova stores data in an OMV triplet.
`
`2.
`
`Dimitrova Discloses Applying the New User Rule to Only the
`Attributes
`
`Avigilon’s argument that Dimitrova is inapplicable to the claims because it
`
`searches abstractions (Paper 27, 18-19) is wrong for several reasons. First, as
`
`discussed above, the claims of the ’923 patent cannot be construed to exclude
`
`searching abstractions because the ’923 patent provides no written description
`
`support for that limitation. See Section III.E supra. To the contrary, all the
`
`embodiments of the ’923 patent state that both primitives (attributes) and
`
`abstractions may be searched. See Ex. 1056, 156:17-158:9 (Avigilon’s expert
`
`admitting abstractions “might be involved in” “defining events”). A construction
`
`of the claims that forbids searching abstractions lacks written description support
`
`in the ’923 patent and would be an error. Thus, Avigilon cannot rely on the
`
`reexamination file history to add this a limitation that is nowhere to be found it the
`
`13
`
`
`
`IPR2019-00314
`U.S. Patent No. 7,932,923
`
`patent. See Paper 27, 18 (not citing the ’923 patent or even alleging a clear and
`
`unmistakable disclaimer).
`
`Moreover, even if the claims were properly limited to precluding the
`
`searching of abstractions—they are not—Dimitrova discloses an “exact” search
`
`operator that prevents the system from returning higher-level abstractions.
`
`Avigilon relies on a conclusory argument from Dr. Bovik on this point, but that
`
`argument is inapposite. Paper 27, 21. Dr. Bovik only states that “the ‘exact’ query
`
`operator still operates on data that contains higher-level abstractions.” Ex. 2019,
`
`52-53. But the claim limitation does not preclude a system that includes higher
`
`level abstractions. Indeed, the ’923 patented system includes higher level
`
`abstractions. See Ex. 1001, 8:16-17, 8:50-52. Rather the claim requires the new
`
`user rule to be applied to only the attributes. Dimitrova’s exact operator only
`
`considers and returns results that exactly match the specified attributes. Ex. 1006
`
`at 21.
`
`3.
`
`Avigilon’s Argument That a Response is Not Shown Must
`Fail
`
`As discussed above, Avigilon’s argument that a “rule” requires a response
`
`must fail because it is collaterally estopped from arguing that claim construction,
`
`and because the construction is contrary to the intrinsic evidence. See Section III.C
`
`supra.
`
`14
`
`
`
`IPR2019-00314
`U.S. Patent No. 7,932,923
`
`Furthermore, Avigilon’s argument (Paper 27, 23-24) that Brill does not
`
`teach applying the new user rule to attributes completely misses the point. The
`
`Petition did not rely on Brill for attribute detection. It relied on Brill to show the
`
`use of a response with a rule. Petition, 38-39. Avigilon does not dispute that Brill
`
`teaches a response and so has identified no infirmity with the argument presented
`
`in the Petition.
`
`B.
`
`Dimitrova Discloses “The Plurality of Attributes That Are
`Detected Are Independent of Which Event is Identified”
`
`Avigilon is collaterally estopped from arguing that Dimitrova does not teach
`
`the independence limitation because this same issue was actually litigated and
`
`necessary to the Board’s final determination in the ’661 patent IPRs. See
`
`IPR2018-00140 FWD, 10-12 (holding Dimitrova discloses the independence
`
`limitations and is not like Courtney).
`
`Moreover, Avigilon’s argument that Dimitrova does not show the
`
`independence based limitations because it does not disclose domain independent
`
`attribute detection (Paper 27, 25-27) is meritless. The claims of the ’923 patent do
`
`not exclude an implementation targeted at a specific domain. Indeed, Avigilon’s
`
`expert Dr. Bovik explained that all system implementations, including the ’923
`
`patent system, need to be designed with a specific domain in mind. Ex. 1056,
`
`92:21-93:23 (agreeing that “an engineer would need to know the domain that is
`
`15
`
`
`
`IPR2019-00314
`U.S. Patent No. 7,932,923
`
`intended to be analyzed by the system” to practice the patent); 122:4-123:1 (claims
`
`don’t require systems “able to operate in both the grocery store environment and in
`
`the traffic analysis environment”).
`
`The Board has already directly rejected Avigilon’s argument that
`
`Dimitrova’s disclosure of the use of a schema or indexing has any relevance to the
`
`independence-based claim elements. IPR2018-00140 FWD, 11. And there is
`
`none. Nothing in the claims prohibits a system that specifies a logical ordering
`
`among possible attributes, such as Dimitrova’s basketball schema which identifies
`
`the relationship between a player and a school. Paper 27, 27.
`
`Avigilon’s repeated arguments that OMV triplets are inconsistent with the
`
`claims is wrong for the reasons set forth above. See Section IV.A.1 supra. To
`
`reiterate, each of Avigilon’s criticisms of Dimitrova relate to a level of detail that
`
`the ’923 patent disclosure is silent on. The ’923 patent does not disclose the query
`
`language used. Nor does it disclose how attributes must be stored. Nor does it
`
`preclude using an index to speed up searching. All of these arguments are
`
`completely unsupported by ’923 patent and should be rejected, as the Board has
`
`already done.
`
`16
`
`
`
`IPR2019-00314
`U.S. Patent No. 7,932,923
`
`C.
`
`Dimitrova Discloses “Selecting the New User Rule Comprises
`Selecting a Subset of the Plurality of Attributes for Analysis”
`
`Avigilon’s argument that Dimitrova cannot select a subset of attributes for
`
`analysis (Paper 27, 30-32) is meritless. First, the argument is based on the faulty
`
`and rejected argument that the use of a schema is inconsistent with the ’923 patent
`
`claims. See Section IV.B supra.
`
`Second, Avigilon argues without support that Dimitrova does not collect
`
`certain attributes in certain situations. Paper 27, 31. But nothing in Dimitrova
`
`states that it does not collect the attributes it says it collects. Moreover, Avigilon
`
`does not address the parade, pet, and Miro queries discussed in the Petition.
`
`Rather, Avigilon focuses only on the disclosed basketball scenari
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