UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`APPLE INC.,
`
`Petitioner,
`v.
`GESTURE TECHNOLOGY PARTNERS, LLC,
`
`Patent Owner
`__________________
`IPR2021-00923
`U.S. Patent No. 8,194,924
`__________________
`DECLARATION OF BENEDICT OCCHIOGROSSO, IN SUPPORT OF
`GESTURE TECHNOLOGY PARTNERS, LLC’s PATENT OWNER
`RESPONSE
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`
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`IPR2021-00923 Apple v. GTP
`GTP EX 2002 Page 1
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`
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`APPLE INC.,
`
`Petitioner,
`v.
`GESTURE TECHNOLOGY PARTNERS, LLC,
`
`Patent Owner
`__________________
`IPR2021-00923
`U.S. Patent No. 8,194,924
`__________________
`DECLARATION OF BENEDICT OCCHIOGROSSO, IN SUPPORT OF
`GESTURE TECHNOLOGY PARTNERS, LLC’s PATENT OWNER
`RESPONSE
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`
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`IPR2021-00923
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`I, Benedict Occhiogrosso, declare as follows:
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`1.
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`I make this declaration based upon my own personal knowledge and, if
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`called upon to testify, would testify competently to the matters contained herein.
`
`2.
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`I have been asked to render opinions in inter partes review proceeding
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`IPR2021-00923, regarding claims 1-14 (the “Challenged Claims”) of U.S. Patent
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`No. 8,194,924 (Ex. 1001, the “’924 Patent”).
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`3.
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`This declaration is a statement of my opinions on issues related to the
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`patentability of the Challenged Claims.
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`4.
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`I am being compensated at my usual rate. My compensation is in no
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`way related to the outcome of this case.
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`I.
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`BACKGROUND AND QUALIFICATIONS
`5.
`I, Benedict Occhiogrosso, have been retained by counsel for Gesture
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`Technology Partners, LLC (“Patent Owner”) as an expert in Apple Inc. v. Gesture
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`Technology Partners, LLC, IPR2021-00923.
`
`6.
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`As shown in my curriculum vitae (attached as Exhibit A), I hold a
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`Bachelor of Science Degree in Electrical Engineering as well as a Master of Science
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`Degree in Electrical Engineering, both from the Polytechnic Institute of Brooklyn
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`(now part of New York University).
`
`7.
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`I have authored or co-authored nearly three dozen articles in peer-
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`reviewed journals, conference proceedings, texts, industry trade publications, and
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`monographs. These publications span a range of topics including Integrated Voice–
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`Data Communications/Switching, Integrated Packet-Circuit Switching, Voice
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`Digitization, Packet Voice, Indoor Wireless distribution, Disaster Recovery and
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`Business Continuity, Data Center Engineering, Switching Processor Architecture,
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`Telephone and Voice Mail Systems, PBX & LAN switching premises-based systems
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`and related technologies and Internet of Things (IoT).
`
`8.
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`I have more than 40 years of telecommunications and information
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`technology experience. I am the co-founder and President of DVI Communications
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`Inc., a telecommunications and information technology and business consulting
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`firm. Since the establishment of DVI in 1979, I have planned, designed,
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`implemented, and managed large-scale projects involving wired and wireless
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`communications systems, which included transmission of voice and data. Prior to
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`founding DVI and for several years thereafter, I held a Department of Defense
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`security clearance and worked on several classified programs within the defense
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`industry, where I supported the development of several pioneering technologies that
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`have served as the prototypes for many telecommunications and IT systems later
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`utilized in commercial practice. I have also supported the analysis of many video-
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`based products and designed and deployed such technologies into numerous
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`applications as discussed below.
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`I have extensive expertise in voice-data-video switching, and
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`9.
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`transmission systems deployed in networks, including both circuit switching and
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`packet switching using wireline and wireless distribution methods (including Land
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`Mobile radio, Satellite, microwave, cellular and Wi-Fi). In addition, I have
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`developed various applications systems including voicemail, e-mail, unified
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`messaging, and audio/video recording for a variety of facility types including call-
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`contact centers, data centers, trading floors, and mission-critical communications
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`centers. At present, my primary responsibilities encompass strategic planning and
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`systems design of client IT Infrastructures and program management for major
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`projects undertaken by DVI.
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`10. With respect to wireless communications, I am knowledgeable in
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`transceiver architecture and design (including RF and baseband systems), operating
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`over various channels subject to different types of performance degradation
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`(including noise, multipath, rainfall, etc.). I have designed and deployed numerous
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`wireless communications systems over the course of my career operating at UHF,
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`microwave and millimeter wave frequencies supporting several applications
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`including voice/data/video telecommunications, Automatic Vehicle Location
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`(AVL), SCADA and telemetry in both outdoor and indoor settings. I am
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`knowledgeable in modulation techniques, error correction /error detection coding
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`and related signal processing used in transmission and reception supporting Land
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`
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`Mobile Radio, Cellular (from AMPS through 5G) and Wi-Fi (different vintages), as
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`well as satellites and microwave. Among the clients I have supported over the years
`
`included DARPA Packet Radio network (PRNET) technology for survivable
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`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
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`Financial Exchange’s low latency network for high frequency trading using
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`cascaded microwave links, and NYC Transit’s 700/800 MHZ regional Bus radio
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`System comprising 36 base stations supporting a fleet of 6000+ revenue producing
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`vehicles
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`for CAD/AVL, Fleet management
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`and Dispatch-to-Operator
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`communications. I have served as both a consulting and/or testifying expert in
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`several cases enumerated in my CV. I have extensive experience in cellular
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`voice/data communications technology and have supported multiple sides of the
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`industry including Service Providers such as Sprint/Nextel Wireless, AT&T
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`Wireless, Vonage, Rebtel; Equipment Manufacturers including Kyocera, Apple,
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`Ademco, Nokia, M/A-com, Partech and Licensing. entities such as ASCAP (in their
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`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
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`security systems which employ a variety of technologies relevant to the matter at
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`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
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`capabilities. The algorithms deployed vary in complexity from simple motion
`
`detection and perimeter detection / tripwire to more advanced capabilities using
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`multiple sequence of frames for object detection, aberrant behavior, and other
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`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,
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`inclement weather etc.). For the Metropolitan Transportation Authority (MTA),
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`applications included people/passenger counting (bus and platform), camera tamper,
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`fare evasion, track intrusion, “wrong-way” and object leave – behind detection. For
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`the NYC School Construction Authority (SCA) applications included loitering,
`
`occupancy and crowd formation in stairwells and other common areas. For several
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`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
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`for identification and authorization technologies including facial recognition, hand
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`swipe/ hand geometry scanners that do not require the user to touch any surfaces.
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`Many of the video-based systems are combined with multi-sensor inputs to provide
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`a composite profile for viewer evaluation to facilitate risk assessment, identification
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`and authorization. Recently, for commercial real estate clients, I have also
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`investigated the use of thermographic cameras to detect individuals with elevated
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`temperatures or fever as part of an overall access control strategy in the post-
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`pandemic environment. In conjunction with our smart building and Internet of
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`Things (IoT) practice, I maintain ongoing familiarity with various every day
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`applications which employ a variety of sensors to engage users with respect to
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`speech, touch, gaze and gesture control (for access control, smart home and smart
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`office).
`
`13. Lastly, in conjunction with work I had performed for a captioned
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`telephony project and the use of video relay services for users who are profoundly
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`deaf as opposed to being merely hearing impaired, I have investigated the use of
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`image processing and hand gesture recognition technology to support interpretation
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`of users employing American Sign Language (ASL).
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`14. As such, I am qualified to provide opinions regarding the state of the
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`art at the effective filing date of the ’924 Patent (which I understand to be July 8,
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`1999) and how a person of ordinary skill in the art (“POSITA”) at that time would
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`have interpreted and understood the ’924 Patent.
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`I am being compensated for my work and any travel expenses in
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`15.
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`connection with this proceeding at my standard consulting rates. My compensation
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`is in no way dependent on or contingent on the outcome of my analysis or opinions
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`rendered in this proceeding and is in no way dependent on or contingent on the
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`results of these or any other proceedings relating to the above-captioned patent.
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`16. Although I am not rendering an opinion about the level of skill of a
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`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
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`Petitioner). Over the course of my career, I have supervised and directed many such
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`persons. Additionally, I myself, at the time the ’924 Patent was filed and at its
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`priority date, qualified as at least a POSITA.
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`II. MATERIALS CONSIDERED
`17.
`In preparing this declaration, I reviewed the ’924 Patent, including its
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`claims in view of its specification, the prosecution history of the ’924 Patent, and
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`various prior art and technical references from the time of the invention.
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`18.
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`In addition, in preparing this declaration, I have reviewed all of the
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`papers and exhibits in the record for inter partes review proceeding IPR2021-00923.
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`III. LEGAL UNDERSTANDING
`19.
`I have worked with counsel for Patent Owner in the preparation of this
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`Declaration. Nevertheless, the opinions, statements, and conclusions offered in this
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`Declaration are purely my own and were neither suggested nor indicated in any way
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`by counsel or anyone other than myself. I confirmed with counsel my understanding
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`that the term “obvious,” as used in the Petitions addressed herein and as a general
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`matter under United States law, refers to subject matter that would have occurred to
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`a POSITA to which the ’924 Patent is directed without inventive or creative thought.
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`That which is obvious, it is my understanding, flows naturally from the art and the
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`education one of skill practicing in that art would have had in the relevant time
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`frame, which for the ’924 Patent is 1999.
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`A. Obviousness
`20.
`I understand that a patent claim can be invalid under 35 U.S.C. § 103 if
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`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
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`references. I understand that an obviousness analysis should consider each of the
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`following so-called “Graham factors”: (1) the scope and content of the prior art; (2)
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`the differences between the claims and the prior art; (3) the level of ordinary skill in
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`the pertinent art; and (4) secondary considerations, if any (such as unexpected
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`results, commercial success, long-felt but unsolved needs, failure of others, copying
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`by others, licensing, and skepticism of experts).
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`21.
`
`I understand that a conclusion of obviousness may be based upon either
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`a single prior art reference or a combination of prior art references. However, I
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`understand that merely demonstrating that each of the claim elements was,
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`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
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`obviousness requires more than a mere showing that the prior art includes separate
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`references covering each limitation in a claim. Rather, obviousness requires the
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`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
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`development to yield the claimed invention.
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`22. Moreover, I understand that it can be important to identify a reason that
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`would have prompted a person of ordinary skill in the relevant field to combine the
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`elements in a way the claimed new invention does.
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`23.
`
`I further understand that, to determine obviousness, courts look to the
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`interrelated teachings of multiple patents or other prior art references, the effects of
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`demands known to the design community or present in the marketplace, and the
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`background knowledge possessed by a person having ordinary skill in the art.
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`24.
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`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
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`is some teaching, suggestion, or motivation to combine the references and a
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`reasonable expectation of success in doing so. I understand, however, that the
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`teaching, suggestion, or motivation to combine inquiry is not required and may not
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`be relied upon in lieu of the obviousness analysis outlined above.
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`25.
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`I understand that the following exemplary rationales may lead to a
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`conclusion of obviousness: the combination of prior art elements according to
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`known methods to yield predictable results; the substitution of one known element
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`for another to obtain predictable results; and the use of known techniques to improve
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`similar devices in the same way.
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`26. However, a claim is not obvious if the improvement is more than the
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`predictable use of prior art elements according to their established functions.
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`Similarly, a claim is not obvious if the application of a known technique is beyond
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`the level of ordinary skill in the art.
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`27. Further, when the prior art teaches away from combining certain known
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`elements, discovery of successful means of combining them is not obvious. I
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`understand that similar subject matter may not be sufficient motivation for a person
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`of skill in the art to combine references if the references have conflicting elements.
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`28.
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`I understand that, in order to be used in an obviousness combination, a
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`prior art reference must be “analogous.” I understand that two separate tests define
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`the scope of analogous prior art: (1) whether the art is from the same field of
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`endeavor, regardless of the problem addressed; and (2) if the reference is not within
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`the field of the inventor’s endeavor, whether the reference still is reasonably
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`pertinent to the particular problem with which the inventor is involved. In regard to
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`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
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`showing a cited reference is analogous art.
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`29.
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`I understand that obviousness of a patent claim cannot properly be
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`established through hindsight, and that elements from different prior art references,
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`or different embodiments of a single prior art reference, cannot be selected to create
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`the claimed invention using the invention itself as a roadmap. I understand that the
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`claimed invention as a whole must be compared to the prior art as a whole, and courts
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`must avoid aggregating pieces of prior art through hindsight that would not have
`
`been combined absent the inventors’ insight.
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`30.
`
`I understand that obviousness is not established by simply combining
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`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
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`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
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`with some rational underpinning to support the legal conclusion of obviousness.
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`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
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`reason for combining disparate prior art references is a critical component of an
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`obviousness analysis. The obviousness analysis should be made explicit and needs
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`to provide an articulated reasoning with some rational underpinning to identify the
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`reason that would have prompted a person of ordinary skill in the relevant field to
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`combine the elements in the way the claimed invention does.
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`32.
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`I also understand that inventions in most, if not all, instances rely upon
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`building blocks long since uncovered, and claimed discoveries almost of necessity
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`will be combinations of what, in some sense, is already known. This is another
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`reason why merely pointing to the elements being known in the art in separate
`
`locations is not the end of the obviousness inquiry.
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`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.
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`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
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`expert must consider all factors relevant to that ultimate question, including all
`
`objective evidence of non-obviousness. Accordingly, I have undertaken such
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`considerations here.
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`I understand that, to render obvious a patent claim the prior art
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`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
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`experimentation. I understand that, while a prior art reference may support any
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`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.
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`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
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`secondary considerations of non-obviousness of a patent include (1) long-felt and
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`unmet need in the art that was satisfied by the claimed invention of the patent; (2)
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`failure of others to achieve the results of the claimed invention; (3) commercial
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`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)
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`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
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`skepticism by those skilled in the art upon learning of the claimed invention; (8)
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`unexpected results achieved by the claimed invention; (9) praise of the claimed
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`invention by others skilled in the art; and (10) lack of contemporaneous and
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`independent invention by others.
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`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
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`person simultaneously and independently created the same invention claimed in an
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`asserted patent can serve as an indication that the invention was obvious.
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`37.
`
`I also have been informed by counsel that there must be a nexus
`
`between any such secondary considerations and the claimed invention.
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`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 ’924 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
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`the ’924 Patent and what is excluded by those claims by a reading of the ’924 Patent
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`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 claim 1 and dependent claims 2-14
`
`of the ’924 Patent (the “Challenged Claims”).
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`In my opinion, as described below, Petitioner has not established by a
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`40.
`
`preponderance of the evidence that the challenged claims are unpatentable.
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`A. Ground 1 – Mann and Numazaki Do Not Render Claims 1-6, 11,
`and 14 Obvious
`In my opinion, Mann and Numazaki (the “Ground 1 References”) do
`
`41.
`
`not render obvious any of claims 1-6, 11, and 14.
`
`1.
`42.
`
`Independent Claim 1
`In my opinion, the Ground 1 References do not render obvious
`
`independent claim 1 at least because it does not teach or suggest the following
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`elements of independent claim 1.
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`a. Claim element [1(e)]1
`43. Claim element [1(e)] recites “wherein the computer is adapted to
`
`perform a control function of the handheld device based on at least one of the first
`
`camera output and the second camera output.” Claim element [1(e)] requires the
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`“first camera output” be an output of a “first camera oriented to view a user of the
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`handheld device.” Compare claim element [1(e)] with claim element [1(c)]. The
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`Petition’s contentions regarding claim element [1(e)] do not invoke the recited
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`“second camera output.” See Pet., pp. 20-25 and 38-42. It is my understanding that
`
`
`1 For convenience of reference only, this Declaration adopts the claim element
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`numbering presented in the Petition.
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`the Board agreed in the Institution Decision. Paper 10, p. 15 (“The Petition does not
`
`address the alternative involving the second camera output.”). Instead, the Petition
`
`relies solely on modifying the cited first camera in Mann in view of Numazaki, which
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`supposedly teaches or suggests “wherein the computer is adapted to perform a
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`control function of the handheld device based on” the first camera output. Pet., pp.
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`38-42.
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`44. The Petition admits that Mann (Ex. 1004) does not disclose “wherein
`
`the computer is adapted to perform a control function of the handheld device based
`
`on” the first camera output. Pet., pp. 38-42. The Petition attempts to address this
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`missing element in Mann by combining it with Numazaki (Ex. 1005). Id. In my
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`opinion, it would not have been obvious to a POSITA to modify Mann, based on
`
`Numazaki, such that the computer of Mann would perform a control function of the
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`handheld device based on the first camera output as Petition asserts. See Pet., pp.
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`20-25 and 38-42.
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`45. Numazaki does not teach or suggest “wherein the computer is adapted
`
`to perform a control function of the handheld device based on” the first camera
`
`output. The Petition uses the term “camera units” to refer to what Numazaki
`
`describes as “photo-detection units.” Compare Pet., p. 14 (“when the first camera
`
`unit is active and off when the second camera unit is active.”) (citing Ex. 1005,
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`11:20-32) with Ex. 1005, 11:28-32 (“such that the lighting unit 101 emits the light
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`GTP EX 2002 Page 17
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`IPR2021-00923
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`when the first photo-detection unit 109 is in a photo-detecting state, whereas the
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`lighting unit 101 does not emit the light when the second photo-detection unit 110
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`is in a photodetecting state.”). This Declaration will use the term “photo-detection
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`unit” (i.e., the term used in Numazaki) to refer to what the Petition identifies as
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`“camera units.”
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`46. Numazaki discloses a “reflected light extraction unit 102” with a “first
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`photo-detection unit 109,” a “second photo-detection unit 110,” and a “difference
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`calculation unit 111.” Ex. 1005, 10:57-66; 11:20-51; Fig. 2. The first photo-
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`detection unit 109 requires that a lighting unit 101 emit light during detection. Id. at
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`11:26-30, Fig. 2. Later, at a different time, when first photo-detection unit 109 is
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`not active, the second photo-detection unit 110 detects while lighting unit 101 is not
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`active. Id., 11:30-32, Fig. 2. Those two images—the image from the first photo-
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`detection unit 109 and the image from the second photo-detection unit 110—are then
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`subtracted from each other to create a third image referred to as the “reflected light
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`image.” See id., 10:57-66; 11:43-56. The “reflected light image” is not the output
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`of any photo-detection unit and thus not an output of a camera because Petitioner
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`equates a photo-detection unit to a camera of claim 1 — “A PHOSITA would have
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`considered Numazaki’s photo-detection units to be camera units. Bederson Dec. (Ex.
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`1003), ¶ 39 (explaining that Numazaki describes using CMOS or CCD sensor units
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`at 15:24-16:19, which were two of the more common optical sensors used in camera
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`18
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`IPR2021-00923 Apple v. GTP
`GTP EX 2002 Page 18
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`IPR2021-00923
`Patent 8,194,924
`units at the time).” Pet., p. 14, n. 1. But Numazaki performs all of its control
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`functions based on the “reflected light image,” rather than any images output from
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`the photo-detection units.
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`47. Because Numazaki requires two images to perform an analysis and
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`operate the computer, Numazaki does not teach or suggest “wherein the computer is
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`adapted to perform a control function of the handheld device based on” the first
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`camera output. Similarly, Numazaki does not teach or suggest performing a control
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`function of a handheld device absent the other hardware that Numazaki identifies as
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`necessary, such as the lighting unit, the image-subtraction circuitry, and the
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`associated timing circuitry. The Petition does not recognize this problem in
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`Numazaki. See Pet., pp. 13-15. Nor does the Petition argue that it would have been
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`obvious to modify Numazaki to meet this claim element. See id. Thus, Mann and
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`Numazaki, whether viewed separately or in combination, fail to teach or suggest
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`limitation [1(e)].
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`48. The Petition contends that a POSITA would have been motivated to
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`“utilize Mann’s front-facing camera to recognize gestures performed in front of that
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`camera pursuant to the teachings of Numazaki” because “such gestures would draw
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`much less attention than physically interacting with [Mann’s] watch face or using
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`[Mann’s] PDA stylus,” and “remaining covert and avoiding attention from the
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`19
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`IPR2021-00923 Apple v. GTP
`GTP EX 2002 Page 19
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`subject are goals of [Mann’s] invention.” Pet., 20-22. In my opinion, a POSITA
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`would disagree.
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`49. The Petition fails to provide any explanation or reasoning as to why
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`Numazaki’s no-touch gestures would draw “much less” attention than physically
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`interacting with a watch interface or using a stylus on a PDA. Pet., 21. While the
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`Petition contends that physically touching a watch interface or using a stylus to
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`interact with the PDA “runs the risk of being noticed by the subject,” a POSITA
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`would assert that performing stroke gestures in the air above the watch or above the
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`PDA results in an even greater risk of being noticed by the subject. Id. This is based
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`on at least: (a) watches long predate handheld computing devices and these watches
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`were operated by physical interactions (e.g., winding); and (b) the PDA comes with
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`a stylus specifically designed for physical contact with a display of the PDA.
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`Accordingly, physically interacting with a watch or PDA is what would be expected,
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`while no-touch gesture recognition is much more recent, especially in view of the
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`effective filing date of the ’924 Patent, and thus more likely to intrigue the subject
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`and draw their attention. The cited support from the Bederson declaration provides
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`no additional insight as to why no-touch gestures would be “much less” likely than
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`physical interactions to draw the subject’s attention. Ex. 1003, ¶ 47.
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`50. Further, Mann discloses that a user interacts with its “touch sensitive
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`clockface” using finger strokes. Ex. 1004, p. 18. By definition, a finger stroke is
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`20
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`IPR2021-00923 Apple v. GTP
`GTP EX 2002 Page 20
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`IPR2021-00923
`Patent 8,194,924
`not a stationary gesture. Accordingly, Numazaki would need to generate a set of
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`images to capture the finger stroke.
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`51. As discussed above, to capture a stationary gesture, Numazaki requires
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`two images from two different photo-detector units, where the lighting unit is active
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`(i.e., on) for one image but not active (i.e., off) for the other image. To capture the
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`non-stationary finger stroke gesture, this process would need to be repeated multiple
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`times, which would cause the lighting unit to flicker. In all likelihood, the flickering
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`would draw attention to the user’s interaction with Mann’s watch or PDA, which, as
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`acknowledged by Petition, is exactly what Mann wants to avoid. Pet., pp. 20-21
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`(“remaining covert and avoiding attention from the subject are goals of [Mann’s]
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`invention”). Accordingly, the motivation to combine the references is lacking.
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`52. The Petition contends that a POSITA would have been motivated to
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`“implement Mann’s device with the no-touch gesture functionality” taught by
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`Numazaki because Mann’s native touch-based gesture control would obstruct the
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`user’s view of the watch face or PDA display when the user physically interacts with
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`(e.g., touches) the watch or PDA, respectively. Pet., pp. 22-23. I disagree.
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`53. Even if an obstruction does occur with the watch face or PDA display
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`when the user physically interacts with the watch or PDA, respectively, the
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`obstruction is very brief to start a recording, stop a recording, etc. Further, Mann
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`even suggests that an obstruction to the watch face is of little concern because “the
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`IPR2021-00923 Apple v. GTP
`GTP EX 2002 Page 21
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`IPR2021-00923
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`clock menu is usable without paying much attention to the face of the clock.” Ex.
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`1004, p. 18.
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`54. Moreover, Mann is focused on using the watch or PDA to record a
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`subject “without the
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