`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`APPLE INC.,
`
`Petitioner,
`v.
`GESTURE TECHNOLOGY PARTNERS, LLC,
`
`Patent Owner
`__________________
`IPR2021-00921
`U.S. Patent No. 8,878,949
`__________________
`DECLARATION OF BENEDICT OCCHIOGROSSO, IN SUPPORT OF
`GESTURE TECHNOLOGY PARTNERS, LLC’s PATENT OWNER
`RESPONSE
`
`
`
`
`
`
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 1
`
`
`
`IPR2021-00921
`Patent 8,878,949
`
`I, Benedict Occhiogrosso, declare as follows:
`
`1.
`
`I make this declaration based upon my own personal knowledge and, if
`
`called upon to testify, would testify competently to the matters contained herein.
`
`2.
`
`I have been asked to render opinions in inter partes review proceeding
`
`IPR2021-00921, regarding claims 1-18 (the “Challenged Claims”) of U.S. Patent
`
`No. 8,878,949 (Ex. 1001, the “’949 Patent”).
`
`3.
`
`This declaration is a statement of my opinions on issues related to the
`
`patentability of the Challenged Claims.
`
`4.
`
`I am being compensated at my usual rate. My compensation is in no
`
`way related to the outcome of this case.
`
`I.
`
`BACKGROUND AND QUALIFICATIONS
`5.
`I, Benedict Occhiogrosso, have been retained by counsel for Gesture
`
`Technology Partners, LLC (“Patent Owner”) as an expert in Apple Inc. v. Gesture
`
`Technology Partners, LLC, IPR2021-00921.
`
`6.
`
`As shown in my curriculum vitae (attached as Exhibit A), I hold a
`
`Bachelor of Science Degree in Electrical Engineering as well as a Master of Science
`
`Degree in Electrical Engineering, both from the Polytechnic Institute of Brooklyn
`
`(now part of New York University).
`
`7.
`
`I have authored or co-authored nearly three dozen articles in peer-
`
`reviewed journals, conference proceedings, texts, industry trade publications, and
`
`
`
`2
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 2
`
`
`
`IPR2021-00921
`Patent 8,878,949
`monographs. These publications span a range of topics including Integrated Voice–
`
`Data Communications/Switching, Integrated Packet-Circuit Switching, Voice
`
`Digitization, Packet Voice, Indoor Wireless distribution, Disaster Recovery and
`
`Business Continuity, Data Center Engineering, Switching Processor Architecture,
`
`Telephone and Voice Mail Systems, PBX & LAN switching premises-based systems
`
`and related technologies and Internet of Things (IoT).
`
`8.
`
`I have more than 40 years of telecommunications and information
`
`technology experience. I am the co-founder and President of DVI Communications
`
`Inc., a telecommunications and information technology and business consulting
`
`firm. Since the establishment of DVI in 1979, I have planned, designed,
`
`implemented, and managed large-scale projects involving wired and wireless
`
`communications systems, which included transmission of voice and data. Prior to
`
`founding DVI and for several years thereafter, I held a Department of Defense
`
`security clearance and worked on several classified programs within the defense
`
`industry, where I supported the development of several pioneering technologies that
`
`have served as the prototypes for many telecommunications and IT systems later
`
`utilized in commercial practice. I have also supported the analysis of many video-
`
`based products and designed and deployed such technologies into numerous
`
`applications as discussed below.
`
`
`
`3
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 3
`
`
`
`IPR2021-00921
`Patent 8,878,949
`I have extensive expertise in voice-data-video switching, and
`
`9.
`
`transmission systems deployed in networks, including both circuit switching and
`
`packet switching using wireline and wireless distribution methods (including Land
`
`Mobile radio, Satellite, microwave, cellular and Wi-Fi). In addition, I have
`
`developed various applications systems including voicemail, e-mail, unified
`
`messaging, and audio/video recording for a variety of facility types including call-
`
`contact centers, data centers, trading floors, and mission-critical communications
`
`centers. At present, my primary responsibilities encompass strategic planning and
`
`systems design of client IT Infrastructures and program management for major
`
`projects undertaken by DVI.
`
`10. With respect to wireless communications, I am knowledgeable in
`
`transceiver architecture and design (including RF and baseband systems), operating
`
`over various channels subject to different types of performance degradation
`
`(including noise, multipath, rainfall, etc.). I have designed and deployed numerous
`
`wireless communications systems over the course of my career operating at UHF,
`
`microwave and millimeter wave frequencies supporting several applications
`
`including voice/data/video telecommunications, Automatic Vehicle Location
`
`(AVL), SCADA and telemetry in both outdoor and indoor settings. I am
`
`knowledgeable in modulation techniques, error correction /error detection coding
`
`and related signal processing used in transmission and reception supporting Land
`
`
`
`4
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 4
`
`
`
`IPR2021-00921
`Patent 8,878,949
`Mobile Radio, Cellular (from AMPS through 5G) and Wi-Fi (different vintages), as
`
`well as satellites and microwave. Among the clients I have supported over the years
`
`included DARPA Packet Radio network (PRNET) technology for survivable
`
`networks, Xerox’s pioneering XTEN Network (Microwave bypass (10.5 GHz) used
`
`as an alternative to Telco local loops), United Nations (multi-location C-band earth
`
`stations in a voice–data–fax network), TVRO applications for Bertelsmann BMG,
`
`Citicorp’s Ku-band CitiSATCOM network for data and video distribution, a major
`
`Financial Exchange’s low latency network for high frequency trading using
`
`cascaded microwave links, and NYC Transit’s 700/800 MHZ regional Bus radio
`
`System comprising 36 base stations supporting a fleet of 6000+ revenue producing
`
`vehicles
`
`for CAD/AVL, Fleet management
`
`and Dispatch-to-Operator
`
`communications. I have served as both a consulting and/or testifying expert in
`
`several cases enumerated in my CV. I have extensive experience in cellular
`
`voice/data communications technology and have supported multiple sides of the
`
`industry including Service Providers such as Sprint/Nextel Wireless, AT&T
`
`Wireless, Vonage, Rebtel; Equipment Manufacturers including Kyocera, Apple,
`
`Ademco, Nokia, M/A-com, Partech and Licensing. entities such as ASCAP (in their
`
`critical review of cellular technology).
`
`11. With respect to electronic security including video surveillance systems
`
`and access control systems I have analyzed, designed and deployed several physical
`
`
`
`5
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 5
`
`
`
`IPR2021-00921
`Patent 8,878,949
`security systems which employ a variety of technologies relevant to the matter at
`
`hand. Specifically, video analytics using image processing were deployed on both a
`
`retrofit as well as greenfield basis to provide force multiplier and enhanced alerting
`
`capabilities. The algorithms deployed vary in complexity from simple motion
`
`detection and perimeter detection / tripwire to more advanced capabilities using
`
`multiple sequence of frames for object detection, aberrant behavior, and other
`
`abnormal conditions specific to the application/ business use case. Many of these
`
`systems (typically using exterior cameras) for traditional facility protection, were
`
`designed to operate under differing viewing and illumination conditions (night,
`
`inclement weather etc.). For the Metropolitan Transportation Authority (MTA),
`
`applications included people/passenger counting (bus and platform), camera tamper,
`
`fare evasion, track intrusion, “wrong-way” and object leave – behind detection. For
`
`the NYC School Construction Authority (SCA) applications included loitering,
`
`occupancy and crowd formation in stairwells and other common areas. For several
`
`corporate and institutional clients, I have examined use of license plate recognition
`
`and vehicle detection (tailgating, stopped vehicle, zone alerts).
`
`12. For access control applications, in addition to traditional swipe and
`
`smart card methods, I have investigated various biometric and contactless methods
`
`for identification and authorization technologies including facial recognition, hand
`
`swipe/ hand geometry scanners that do not require the user to touch any surfaces.
`
`
`
`6
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 6
`
`
`
`IPR2021-00921
`Patent 8,878,949
`Many of the video-based systems are combined with multi-sensor inputs to provide
`
`a composite profile for viewer evaluation to facilitate risk assessment, identification
`
`and authorization. Recently, for commercial real estate clients, I have also
`
`investigated the use of thermographic cameras to detect individuals with elevated
`
`temperatures or fever as part of an overall access control strategy in the post-
`
`pandemic environment. In conjunction with our smart building and Internet of
`
`Things (IoT) practice, I maintain ongoing familiarity with various every day
`
`applications which employ a variety of sensors to engage users with respect to
`
`speech, touch, gaze and gesture control (for access control, smart home and smart
`
`office).
`
`13. Lastly, in conjunction with work I had performed for a captioned
`
`telephony project and the use of video relay services for users who are profoundly
`
`deaf as opposed to being merely hearing impaired, I have investigated the use of
`
`image processing and hand gesture recognition technology to support interpretation
`
`of users employing American Sign Language (ASL).
`
`14. As such, I am qualified to provide opinions regarding the state of the
`
`art at the effective filing date of the ’949 Patent (which I understand to be May 11,
`
`1999) and how a person of ordinary skill in the art (“POSITA”) at that time would
`
`have interpreted and understood the ’949 Patent.
`
`
`
`7
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 7
`
`
`
`IPR2021-00921
`Patent 8,878,949
`I am being compensated for my work and any travel expenses in
`
`15.
`
`connection with this proceeding at my standard consulting rates. My compensation
`
`is in no way dependent on or contingent on the outcome of my analysis or opinions
`
`rendered in this proceeding and is in no way dependent on or contingent on the
`
`results of these or any other proceedings relating to the above-captioned patent.
`
`16. Although I am not rendering an opinion about the level of skill of a
`
`POSITA proffered by Petitioner, based on my professional experience, I have an
`
`understanding of the capabilities of a POSITA (as such a POSITA is defined by
`
`Petitioner). Over the course of my career, I have supervised and directed many such
`
`persons. Additionally, I myself, at the time the ’949 Patent was filed and at its
`
`priority date, qualified as at least a POSITA.
`
`II. MATERIALS CONSIDERED
`17.
`In preparing this declaration, I reviewed the ’949 Patent, including its
`
`claims in view of its specification, the prosecution history of the ’949 Patent, and
`
`various prior art and technical references from the time of the invention.
`
`18.
`
`In addition, in preparing this declaration, I have reviewed all of the
`
`papers and exhibits in the record for inter partes review proceeding IPR2021-00921.
`
`III. LEGAL UNDERSTANDING
`19.
`I have worked with counsel for Patent Owner in the preparation of this
`
`Declaration. Nevertheless, the opinions, statements, and conclusions offered in this
`
`
`
`8
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 8
`
`
`
`IPR2021-00921
`Patent 8,878,949
`Declaration are purely my own and were neither suggested nor indicated in any way
`
`by counsel or anyone other than myself. I confirmed with counsel my understanding
`
`that the term “obvious,” as used in the Petitions addressed herein and as a general
`
`matter under United States law, refers to subject matter that would have occurred to
`
`a POSITA to which the ’924 Patent is directed without inventive or creative thought.
`
`That which is obvious, it is my understanding, flows naturally from the art and the
`
`education one of skill practicing in that art would have had in the relevant time
`
`frame, which for the ’949 Patent is 1999.
`
`A. Obviousness
`20.
`I understand that a patent claim can be invalid under 35 U.S.C. § 103 if
`
`the claimed subject matter would have been “obvious” to a person of ordinary skill
`
`in the art as of the priority date of the patent based upon one or more prior art
`
`references. I understand that an obviousness analysis should consider each of the
`
`following so-called “Graham factors”: (1) the scope and content of the prior art; (2)
`
`the differences between the claims and the prior art; (3) the level of ordinary skill in
`
`the pertinent art; and (4) secondary considerations, if any (such as unexpected
`
`results, commercial success, long-felt but unsolved needs, failure of others, copying
`
`by others, licensing, and skepticism of experts).
`
`21.
`
`I understand that a conclusion of obviousness may be based upon either
`
`a single prior art reference or a combination of prior art references. However, I
`
`
`
`9
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 9
`
`
`
`IPR2021-00921
`Patent 8,878,949
`understand that merely demonstrating that each of the claim elements was,
`
`independently, known in the prior art does not prove that a claim composed of
`
`several known elements is obvious. In other words, I have been informed that
`
`obviousness requires more than a mere showing that the prior art includes separate
`
`references covering each limitation in a claim. Rather, obviousness requires the
`
`additional showing that a person of ordinary skill at the time of the invention would
`
`have selected and combined those elements in the normal course of research and
`
`development to yield the claimed invention.
`
`22. Moreover, I understand that it can be important to identify a reason that
`
`would have prompted a person of ordinary skill in the relevant field to combine the
`
`elements in a way the claimed new invention does.
`
`23.
`
`I further understand that, to determine obviousness, courts look to the
`
`interrelated teachings of multiple patents or other prior art references, the effects of
`
`demands known to the design community or present in the marketplace, and the
`
`background knowledge possessed by a person having ordinary skill in the art.
`
`24.
`
`I also understand that, in determining whether a combination of prior
`
`art references renders a claim obvious, it may be helpful to consider whether there
`
`is some teaching, suggestion, or motivation to combine the references and a
`
`reasonable expectation of success in doing so. I understand, however, that the
`
`
`
`10
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 10
`
`
`
`IPR2021-00921
`Patent 8,878,949
`teaching, suggestion, or motivation to combine inquiry is not required and may not
`
`be relied upon in lieu of the obviousness analysis outlined above.
`
`25.
`
`I understand that the following exemplary rationales may lead to a
`
`conclusion of obviousness: the combination of prior art elements according to
`
`known methods to yield predictable results; the substitution of one known element
`
`for another to obtain predictable results; and the use of known techniques to improve
`
`similar devices in the same way.
`
`26. However, a claim is not obvious if the improvement is more than the
`
`predictable use of prior art elements according to their established functions.
`
`Similarly, a claim is not obvious if the application of a known technique is beyond
`
`the level of ordinary skill in the art.
`
`27. Further, when the prior art teaches away from combining certain known
`
`elements, discovery of successful means of combining them is not obvious. I
`
`understand that similar subject matter may not be sufficient motivation for a person
`
`of skill in the art to combine references if the references have conflicting elements.
`
`28.
`
`I understand that, in order to be used in an obviousness combination, a
`
`prior art reference must be “analogous.” I understand that two separate tests define
`
`the scope of analogous prior art: (1) whether the art is from the same field of
`
`endeavor, regardless of the problem addressed; and (2) if the reference is not within
`
`the field of the inventor’s endeavor, whether the reference still is reasonably
`
`
`
`11
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 11
`
`
`
`IPR2021-00921
`Patent 8,878,949
`pertinent to the particular problem with which the inventor is involved. In regard to
`
`test (2), the problems to which both the reference and the claimed invention relate
`
`must be identified and compared. I also understand that Petitioner has the burden of
`
`showing a cited reference is analogous art.
`
`29.
`
`I understand that obviousness of a patent claim cannot properly be
`
`established through hindsight, and that elements from different prior art references,
`
`or different embodiments of a single prior art reference, cannot be selected to create
`
`the claimed invention using the invention itself as a roadmap. I understand that the
`
`claimed invention as a whole must be compared to the prior art as a whole, and courts
`
`must avoid aggregating pieces of prior art through hindsight that would not have
`
`been combined absent the inventors’ insight.
`
`30.
`
`I understand that obviousness is not established by simply combining
`
`previously known elements from the prior art. A patent composed of several
`
`elements is not proved obvious merely by demonstrating that each of its elements
`
`was, independently, known in the prior art. An invention is unpatentable as obvious
`
`if the differences between the patented subject matter and the prior art would have
`
`been obvious at the time of invention to a person of ordinary skill in the art.
`
`31.
`
`I understand that obviousness of a patent cannot properly be established
`
`by mere conclusory statements. Instead, there must be some articulated reasoning
`
`with some rational underpinning to support the legal conclusion of obviousness.
`
`
`
`12
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 12
`
`
`
`IPR2021-00921
`Patent 8,878,949
`When an expert opines that all the elements of a claim disparately exist in the prior
`
`art, the expert should provide the rationale to combine the disparate references. A
`
`reason for combining disparate prior art references is a critical component of an
`
`obviousness analysis. The obviousness analysis should be made explicit and needs
`
`to provide an articulated reasoning with some rational underpinning to identify the
`
`reason that would have prompted a person of ordinary skill in the relevant field to
`
`combine the elements in the way the claimed invention does.
`
`32.
`
`I also understand that inventions in most, if not all, instances rely upon
`
`building blocks long since uncovered, and claimed discoveries almost of necessity
`
`will be combinations of what, in some sense, is already known. This is another
`
`reason why merely pointing to the elements being known in the art in separate
`
`locations is not the end of the obviousness inquiry.
`
`33.
`
`I understand that technical experts may testify to matters like the level
`
`of skill in the art at the time of the invention and what a POSITA might find obvious
`
`in light of the prior art without addressing objective indicia of non-obviousness.
`
`However, where an expert purports to testify not just to certain factual components
`
`underlying the obviousness inquiry, but to the ultimate question of obviousness, the
`
`expert must consider all factors relevant to that ultimate question, including all
`
`objective evidence of non-obviousness. Accordingly, I have undertaken such
`
`considerations here.
`
`
`
`13
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 13
`
`
`
`IPR2021-00921
`Patent 8,878,949
`I understand that, to render obvious a patent claim the prior art
`
`34.
`
`references must be enabling. That is, the references must provide sufficient
`
`information to allow one skilled in the art to practice what is disclosed without undue
`
`experimentation. I understand that, while a prior art reference may support any
`
`finding apparent to a person of ordinary skill in the art, prior art references that
`
`address different problems may not, depending on the art and circumstances, support
`
`an inference that the POSITA would consult both of them simultaneously.
`
`B.
`35.
`
`Secondary Considerations
`I understand that one of the so-called Graham factors that must be
`
`considered in determining obviousness is the existence of any secondary
`
`considerations, which tend to show that a patent claim is not obvious. Such
`
`secondary considerations of non-obviousness of a patent include (1) long-felt and
`
`unmet need in the art that was satisfied by the claimed invention of the patent; (2)
`
`failure of others to achieve the results of the claimed invention; (3) commercial
`
`success or lack thereof of the products and processes covered by the claimed
`
`invention; (4) deliberate copying of the claimed invention by others in the field; (5)
`
`taking of licenses under the patent by others; (6) whether the claimed invention was
`
`contrary to the accepted wisdom of the prior art; (7) expression of disbelief or
`
`skepticism by those skilled in the art upon learning of the claimed invention; (8)
`
`unexpected results achieved by the claimed invention; (9) praise of the claimed
`
`
`
`14
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 14
`
`
`
`IPR2021-00921
`Patent 8,878,949
`invention by others skilled in the art; and (10) lack of contemporaneous and
`
`independent invention by others.
`
`36.
`
`I understand that each of these considerations may form an independent
`
`basis for non-obviousness of a patent. I also understand that the fact that another
`
`person simultaneously and independently created the same invention claimed in an
`
`asserted patent can serve as an indication that the invention was obvious.
`
`37.
`
`I also have been informed by counsel that there must be a nexus
`
`between any such secondary considerations and the claimed invention.
`
`IV. CLAIM CONSTRUCTION
`38.
`I reviewed the comments in the Petition and Dr. Bederson’s Expert
`
`Declaration (Ex. 1003) pertaining to “construction of the claims” of the ’949 Patent.
`
`My understanding is simply that, in the absence of a specific controversy, one arrives
`
`at the appropriate “construction” or definition of what is embraced by the claims of
`
`the ’949 Patent and what is excluded by those claims by a reading of the ’949 Patent
`
`and arriving at what, based on that reading, the inventor of the claimed subject matter
`
`intended to protect as her or his invention.
`
`V. OPINIONS
`39. Petitioner challenges independent claims 1, 8, and 13 and dependent
`
`claims 2-7, 9-12, and 14-18 of the ’949 Patent (the “Challenged Claims”).
`
`
`
`15
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 15
`
`
`
`IPR2021-00921
`Patent 8,878,949
`In my opinion, as described below, Petitioner has not established by a
`
`40.
`
`preponderance of the evidence that the challenged claims are unpatentable.
`
`A. Ground 1 – Numazaki and Nonaka Do Not Render Claims 1-18
`Obvious
`In my opinion, Numazaki and Nonaka (the “Ground 1 References”) do
`
`41.
`
`not render obvious any of claims 1-18.
`
`1.
`42.
`
`Independent Claim 1
`In my opinion, the Ground 1 References do not render obvious
`
`independent claim 1 at least because they do not teach or suggest the following
`
`elements of independent claim 1.
`
`a. Claim element [1(a)]1
`43. Claim element [1(a)] recites: “a device housing including a forward
`
`facing portion, the forward facing portion of the device housing encompassing an
`
`electro-optical sensor having a field of view and including a digital camera separate
`
`from the electro-optical sensor.” The Petition argues that Numazaki teaches or
`
`suggests claim element [1(a)]. Pet., pp. 26-29. I disagree.
`
`44. The Petition argues that “[Numazaki’s] ‘reflected light extraction unit
`
`102’ is [the] ‘electro-optical sensor’” as claimed. Pet., p. 28. In my opinion, a
`
`
`1 For convenience of reference only, this Declaration adopts the claim element
`
`numbering presented in the Petition.
`
`
`
`16
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 16
`
`
`
`IPR2021-00921
`Patent 8,878,949
`POSITA would not interpret “reflected light extraction unit 102” as such. A portion
`
`of Fig. 2 including Numazaki’s “reflected light extraction unit 102” is reproduced
`
`below:
`
`
`
`Ex. 1004, Fig. 2 (cropped).
`
`45. The Petition asserts that each of the first “photo-detection unit 109” and
`
`the second “photo-detection unit 110” in Numazaki’s “reflected light extraction unit
`
`102” is a camera. Pet., p. 11, n. 1 (“A PHOSITA would have considered Numazaki’s
`
`photo-detection units to be camera units.”). Further, Petitioner describes operation
`
`of Numazaki’s “reflected light extraction unit 102” as follows:
`
`A timing control [112] unit is used to turn lighting unit 101 on (i.e.,
`illuminating the target object) when the first camera unit [109] is active
`and off when the second camera unit is active [110] . . . The result of
`this light control is the first camera unit [109] captures an image of the
`target object illuminated by both natural light and the lighting unit 101
`and the second camera unit [110] captures an image of the target object
`
`
`
`17
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 17
`
`
`
`IPR2021-00921
`Patent 8,878,949
`illuminated by only natural light . . . The difference between the two
`images—obtained by difference calculation unit 111—[is a “reflected
`light image” that] represents the “reflected light from the object
`resulting from the light emitted by the lighting unit 101.”
`
`Pet., p. 12. Because of its “difference calculation unit 111” and its two separate
`
`cameras having specific timing and lighting requirements, in my opinion, a POSITA
`
`would not have understood Numazaki’s “reflected light extraction unit 102” as being
`
`the “electro-optical sensor” of claim element [1(a)]. Nonaka does not cure this
`
`problem.
`
`46. The Petition also argues that “[Numazaki’s] ‘visible light photo-
`
`detection array 351’ is [the] digital camera as claimed.” Pet., p. 28. To meet claim
`
`element [1(a)], I understand that the Petition argues that Numazaki’s “photo-
`
`detection sensor unit 702” in Fig. 74 is or includes one or more of Numazaki’s
`
`“reflected light extraction unit 102” and Numazaki’s “visible light photo-detection
`
`array 351” (i.e., the claimed electro-optical sensor and digital camera, respectively).
`
`Pet., pp. 16 (“Fig. 74 depicts a laptop computer with a lighting unit 701 and camera
`
`unit 702”), 17 (“a PHOSITA would have understood that Numazaki’s eighth
`
`embodiment portable devices incorporate the controlled lighting and two-camera
`
`sensor structure described with respect to the first embodiment”), and 25-29. I
`
`disagree.
`
`47.
`
`I reviewed Numazaki in its entirety and it contains no disclosure stating
`
`the “photo-detection sensor unit” in Fig. 74 is or includes one or more of the
`
`
`
`18
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 18
`
`
`
`IPR2021-00921
`Patent 8,878,949
`“reflected light extraction unit 102” and the “visible light photo-detection array
`
`351.” Numazaki’s “photo-detection sensor unit” appears for the first time in
`
`Numazaki’s eighth embodiment. Numazaki generically teaches the “eighth
`
`embodiment is directed to a system configuration incorporating the information
`
`input generation apparatus of the present invention as described in [embodiments 1-
`
`7].” Ex. 1004, 50:21-24. Embodiments 1-7 in Numazaki, however, do not disclose
`
`a “photo-detection sensor unit.” That is why it is my opinion that a POSITA would
`
`understand that none of embodiments 1-7 teach or suggest the “photo-detection
`
`sensor unit” in Fig. 74 as being or including one or more of Numazaki’s “reflected
`
`light extraction unit 102” and Numazaki’s “visible light photo-detection array 351.”
`
`48. For example, the information input generation apparatus of Numazaki’s
`
`fifth embodiment is reproduced below:
`
`
`
`19
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 19
`
`
`
`IPR2021-00921
`Patent 8,878,949
`
`
`
`Ex. 1004, Fig. 46 (annotated). As shown, Fig. 46 does not contain a “photo-detection
`
`sensor unit” and Numazaki does not identify any component (or grouping of
`
`components) in Fig. 46 as being the “photo-detection sensor unit.”
`
`49.
`
`In my opinion, the mere fact that Numazaki’s eighth embodiment may
`
`“incorporate the information input generation apparatus” of Numazaki’s fifth
`
`embodiment, Ex. 1004, 50:21-24, does not mean to a POSITA that the “photo-
`
`detection sensor unit” in Fig. 74 is or includes one or more of the “reflected light
`
`extraction unit 102” and the “visible light photo-detection array 351” from Fig. 46
`
`(i.e., the claimed “electro-optical sensor” and “digital camera,” respectively). To the
`
`contrary, this would lead a POSITA to understand that the “reflected light extraction
`
`
`
`20
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 20
`
`
`
`IPR2021-00921
`Patent 8,878,949
`unit 102,” “visible light photo-detection array 351,” and the “photo-detection sensor
`
`unit” are different because the inventors of Numazaki chose different terms. Dr.
`
`Bederson's Expert Report even relies on the principle that two components with the
`
`same name are the same. “Both the third and fifth embodiments use the same
`
`language—reflected light extraction unit—to describe [the] image sensor unit they
`
`rely upon for their respective functions . . . a PHOSITA would have concluded that
`
`the ‘reflected light extraction units’ described in the third and fifth embodiments are
`
`the same two-sensor units introduced and described in the first embodiment.” Ex.
`
`1003, ¶¶ 40 and 43 (emphasis added). It follows that components with different
`
`names (e.g., “reflected light extraction unit 102,” “visible light photo-detection array
`
`351,” “photo-detection sensor unit”) are different. Nonaka does not cure this
`
`problem.
`
`50.
`
`In summary, it is my opinion that Numazaki fails to teach any of the
`
`following: (i) that the “reflected light extraction unit 102” is an electro-optical
`
`sensor; (ii) that the “photo-detection sensor unit 702” in Fig. 74 includes a digital
`
`camera or a combination of a digital camera and an electro-optical sensor; or (iii)
`
`that the “photo-detection sensor unit 702” in Fig. 74 includes one or more of
`
`“reflected light extraction unit 102” and “visible photo-detection array 351” from
`
`Fig. 46. Nonaka does not cure these problems.
`
`
`
`21
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 21
`
`
`
`IPR2021-00921
`Patent 8,878,949
`51. For at least these reasons, it is my opinion that the combination of
`
`Numazaki and Nonaka fails to teach or suggest claim element [1(a)].
`
`b. Claim element [1(b)]
`52. Claim element [1(b)] recites: “a processing unit within the device
`
`housing and operatively coupled to an output of the electro-optical sensor, wherein
`
`the processing unit is adapted to: determine a gesture has been performed in the
`
`electro-optical sensor field of view based on the electro-optical sensor output.”
`
`Petitioner contends that Numazaki teaches or suggests claim element [1(b)]. Pet.,
`
`pp. 29-30. I disagree.
`
`53. Numazaki discloses an “information input generation apparatus”
`
`(“IIGA”). An example of the IIGA is shown in Fig. 2:
`
`
`
`
`
`22
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 22
`
`
`
`IPR2021-00921
`Patent 8,878,949
`Ex. 1004, Fig. 2; 5:10-12 (“FIG. 2 is a detailed block diagram of the [IIGA].”). As
`
`shown in Fig. 2, the IIGA includes “feature data generation unit 103.” In Numazaki’s
`
`third embodiment, the IIGA is configured to be “a gesture camera for recognizing
`
`[a] hand action.” Ex. 1004, 29:4-10. This is accomplished by implementing the
`
`“feature input generation apparatus” according to Fig. 23 (reproduced below). Id.
`
`
`
`Ex. 1004, Fig. 23 (annotated); 6:4-7 (“FIG. 23 is a schematic block diagram showing
`
`an exemplary configuration of a feature data generation unit according to the third
`
`embodiment of the present invention.”).
`
`54.
`
`In Numazaki’s fifth embodiment, the IIGA is configured to be “a
`
`chromakey camera.” Ex. 1004, 39:17-23. This is accomplished by implementing
`
`the IIGA from Fig. 2 with a differently designed “feature data generation unit 103”
`
`
`
`23
`
`IPR2021-00921 Apple v. GTP
`GTP EX 2002 Page 23
`
`
`
`IPR2021-00921
`Patent 8,878,949
`as shown in Fig. 46 (reproduced below), and by adding “visible light photo-detection
`
`array 351,” as also shown in Fig. 46.
`
`
`
`Ex. 1004, Fig. 46 (annotated). Figs. 46, 49, 50, and 52 in Numazaki are also
`
`associated with the chromakey camera.
`
`55.
`
`In view of Fig. 23 and Fig. 4