UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.
`Petitioner
`
`v.
`
`GESTURE TECHNOLOGY PARTNERS LLC
`Patent Owner
`_________________
`
`Inter Partes Review Case No. IPR2021-00923
`U.S. Patent No. 8,194,924
`
`SUPPLEMENTAL DECLARATION OF DR. BENJAMIN B. BEDERSON
`
`IPR2021-00923
`Apple EX1018 Page 1
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`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.
`Petitioner
`
`v.
`
`GESTURE TECHNOLOGY PARTNERS LLC
`Patent Owner
`_________________
`
`Inter Partes Review Case No. IPR2021-00923
`U.S. Patent No. 8,194,924
`
`SUPPLEMENTAL DECLARATION OF DR. BENJAMIN B. BEDERSON
`
`IPR2021-00923
`Apple EX1018 Page 1
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`
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`IPR2021-00923
`U.S. Patent No. 8,194,924
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`I, Benjamin B. Bederson, hereby declare the following:
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`1. My name is Benjamin B. Bederson, Ph.D and I am over 21 years of age
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`and otherwise competent to make this Declaration. I make this Declaration based on
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`facts and matters within my own knowledge and on information provided to me by
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`others.
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`2.
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`I submitted an initial declaration in support of Apple’s petition for Inter
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`Partes Review of U.S. Patent No. 8,194,924 (“the ’924 Patent”). I understand the
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`PTAB instituted the requested review and that the proceeding involves the full scope
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`of the proposed grounds addressed in my initial declaration. I have been asked to
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`address a few additional issues in response to Patent Owner’s Response (Paper 12)
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`and Patent Owner’s expert’s declaration (Ex. 2002).
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`I.
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`A POSITA would have been motivated to combine Mann and Numazaki
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`3.
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`I understand Patent Owner and its expert argue that it would not have
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`been obvious to implement Numazaki’s no-touch gesture recognition technology
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`upon Mann’s device because “physically interacting with a watch or PDA is what
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`would be expected,” noting the long history of users physically interacting with
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`those types of devices in order to control them. Paper 12, 11. The argument
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`continues, alleging Mann’s touch-based gestures actually “provide a cover for the
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`user to trigger the recording” while no-touch gesture recognition would be “more
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`likely to intrigue the [target] subject and draw their attention.” Paper 12,13-14; Ex.
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`2002, ¶¶ 49, 54, 55. I disagree.
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`4.
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`Just the opposite is true. In my initial declaration, I explained that
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`Mann’s goal is to capture a recording of a subject without drawing the subject’s
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`attention. Ex. 1003, ¶ 47. Mann’s goal is to avoid “creat[ing] a visual disturbance to
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`others and attract[ing] considerable attention on account of the gesture of bringing
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`the camera up to the eye.” Ex. 1004, 1-2. I explained that physically touching Mann’s
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`device “runs the risk of being noticed by the subject.” Ex. 1003, ¶ 47. Whether
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`touching Mann’s device or bringing it up to the eye, in both circumstances the user
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`risks drawing the subject’s attention by performing an action that the subject may
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`recognize as interacting with the device. For example, when a user brings a camera
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`to the eye, it’s unavoidable that the subject will assume she is being recorded.
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`Similarly, when the user physically interacts with the watch or PDA, it risks the
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`subject recognizing that the user has in fact interacted with the device and may have
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`initiated some process within the device (e.g., a recording). This is one of the key
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`reasons a POSITA would have understood no-touch gestures draw less attention that
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`Mann’s native touch-based gestures. Touch-based gestures are easily recognizable
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`as the user interacts with the device, which is precisely why they draw more
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`attention. When a user seeks to initiate a recording on a device without the subject
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`knowing, she should avoid actions that suggest a function has been initiated on the
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`U.S. Patent No. 8,194,924
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`device.
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`5.
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`From the perspective of avoiding attention, Mann’s touch-based
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`gestures improve upon raising a camera to one’s eye to capture video. But Mann’s
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`touch-based gestures still depend on physical actions that a subject is likely to
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`associate with the user interacting with and controlling the device. As Patent Owner
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`and its expert admit, the proposed no-touch gestures have no such association. Paper
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`12, 11; Ex. 2002, ¶ 49 (“physically interacting with a watch or PDA is what would
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`be expected, while no-touch gesture recognition is much more recent”).
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`Accordingly, contrary to Patent Owner’s argument, a POSITA would have
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`understood that using no-touch gestures as proposed are less likely to draw the
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`subject’s attention to the fact that the user is interacting with an electronic device.
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`6.
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`I understand Patent Owner argues Numazaki’s lighting unit would
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`flicker when detecting gestures, drawing attention to it and undermining Mann’s
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`intention to record covertly. Paper 12, 12; Ex. 2002, ¶ 51. I disagree. Mr.
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`Occhiogrosso’s argument assumes the emitted light is visible to the human eye.
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`Numazaki is unequivocal that it is not. Numazaki discloses “it is preferable to use a
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`device that can emit the near infrared light which is invisible to the human eyes, as
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`the lighting unit 101 . . . so that the target human being will not sense the glare of
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`the light.” Ex. 1005, 12:1-6. Indeed, Mr. Occhiogrosso did not later dispute that
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`4
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`Numazaki’s emitted light could be invisible to the human eye. Ex. 1019, 46:14-47:4.
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`Accordingly, Numazaki’s use of invisible infrared light would not cause the lighting
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`unit to flicker in a way perceptible to the recorded subject.
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`7.
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`In response to an opinion I expressed in my initial declaration that
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`Mann’s touch-based gestures would result in the user’s finger inadvertently touching
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`the glass over the camera, reducing its fidelity over time, I understand Mr.
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`Occhiogrosso opines that the user-facing camera would be left “untouched” because
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`it is “separate” from and “above” the portion of the watch face with which the user
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`interacts. Ex. 2002, ¶¶ 56-57. I disagree. Although Mann does illustrate physical
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`separation between the camera and area within which a user interacts, a PHOSITA
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`would have understood that a number of factors support my conclusion. The close
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`proximity of the camera and the area within which the user interacts means a user’s
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`finger would need to stay precisely within the designated touch-based gesture area
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`to avoid touching the camera. Given the very small space available, as discussed in
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`detail below, I would expect a user’s finger to regularly extend beyond the gesture
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`area, which means it will often touch the very nearby camera. Indeed, Mr.
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`Occhiogrosso’s opinion assumes a level of precision with which a user interacts with
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`the screen that is simply not realistic. Mann teaches that display 400—an area that
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`contains the circle within which a user performs gestures—is only “0.7 inches on the
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`diagonal.” Ex. 1004, 14. Accordingly, Mr. Occhiogrosso assumes that a user can
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`precisely swipe her finger in this very small space, starting and stopping with
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`sufficient precision to avoid going beyond the boundaries and touching the glass
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`overlaying the camera. I disagree that such precision is possible.
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`8.
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`This becomes apparent when considering entry of the symbol, “#” upon
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`the clockface as described by Mann, which is entered as a vector using a finger
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`stroke. Following the same examples Mann describes for entering entering the
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`number “3” with a “stroke from left to right,” entering “#” requires starting a finger
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`stroke at the 5 o’clock position and swiping across the clock face toward the 11
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`o’clock position. Ex. 1004, 15. The following thus depicts Mann’s proposed entry
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`of the “#” symbol:
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`6
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`Id. at Figs. 3, 4 (combined and annotated to show effect of touch-based clock face
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`entry). That a user must target what would appear to cover less than half the available
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`watch face real estate, means those gestures will often be off target and will often
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`touch nearby portions of the watch face, including user-facing camera 350.
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`Accordingly, as I stated in my initial declaration, such inadvertent touches will
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`“ultimately result in a loss of fidelity over time due to grease and grime from the
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`user’s finger (or at least require regular cleanings to avoid such fidelity loss).” Ex.
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`1003, ¶ 48.
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`9. Mr. Occhiogrosso’s testimony raises a related problem with Mann’s
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`native touch-based finger strokes. He stresses that only a small area of an already
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`small watch face is designated for touch-based finger strokes. Given a confined
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`space that cannot exceed 0.7 inches on the diagonal as described above, a POSITA
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`would understand that performing such touch-based gestures with sufficient
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`precision would require an elevated level of focus from the user. The user would not
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`be able to casually swipe her finger in a general direction across the watch face, but
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`must instead start and stop that finger swipe in precise locations within a very small
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`portion of the watch face. Such movements would not be “very brief” and “of little
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`concern” as Mr. Occhiogrosso opines. Ex. 2002, ¶ 53. Rather, this motivates the
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`proposed combination. With Numazaki’s no-touch gestures, the user’s finger can
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`simply be swiped above the watch face in a particular direction. No starting target
`
`or stopping target are required for the gesture to be correctly identified, which means
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`much less focus is demanded of the user in contrast to the deliberate, space-confined
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`entry I described above. With Mann’s goal of drawing minimal attention to the fact
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`that the user is initiating a recording, simplifying the gesture process by allowing the
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`user to casually swipe a finger with significantly less precision (and focus) than
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`Mann’s native process would be a significant improvement.
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`10.
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`I understand Patent Owner and its expert also argue that it would not
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`have been obvious to combine Numazaki’s gesture recognition technology with
`
`
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`8
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`Mann’s PDA or wristwatch devices because Numazaki’s gesture-recognition
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`hardware creates a reflected light image that is “not a regular image that would be
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`displayed to a person, either as a single still image or within a video (e.g.,
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`documentary)” and “the average person would be confused upon viewing the
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`‘reflected light image.’” Paper 12, 18-19, Ex. 2002, ¶ 60. I disagree.
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`11. Numazaki teaches a system that captures images of an illuminated
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`object in order to detect gestures performed by that object. As I stated in my initial
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`declaration at ¶¶ 39-40, Numazaki uses its controlled lighting and two-camera
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`arrangement to illuminate the target object (e.g., the user’s hand) in a controlled
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`manner such that a precise image of the user’s hand and hand movement can be
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`ascertained. Ex. 1005, 11:9-23. A timing control unit turns lighting unit 101 on to
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`illuminate a target object while Numazaki’s first camera unit 109 is active, then off
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`when the second camera unit 110 is active. Id. at 11:20-32. Using this lighting
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`control, the first camera captures an image of a target object illuminated by both
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`natural light and directed light from lighting unit 101, while the second camera
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`captures an image of the target object illuminated by only natural light. Id. at 11:33-
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`39. The difference calculation unit 111 extracts and outputs a “reflected light image”
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`created by subtracting the first camera’s captured aggregate of natural and reflected
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`light image information from the second camera’s captured natural light-only image
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`information. Id. at 11:43-51.
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`12. Numazaki’s two-sensor structure improves upon a single sensor
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`structure by ensuring that resulting image reflects only the illuminated target object,
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`excluding extraneous image information and negating environmental light effects,
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`to create a precise image. Uniquely, Numazaki’s lighted two-camera configuration
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`is capable of “extracting a specific target object at high precision easily even under
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`an environment [with] . . . external light fluctuation” in an “optimum state even when
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`a distance with respect to the target object is changing.” Id. at 4:31-40 (emphasis
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`added). This enables Numazaki’s feature data generation unit to use that precise
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`image in a myriad of applications that includes, but is not limited to, determining
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`gestures, pointing, etc. of the target object as I describe in my initial declaration at ¶
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`40 (citing Ex. 1005 at 10:57-66).
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`13. Accordingly, Numazaki’s two-sensor structure improves upon a single
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`sensor structure by ensuring that the produced image captures the illuminated object
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`while excluding extraneous image information. In the context of Mann’s two-sided
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`recording, this improved fidelity benefits the functionality, contrary to Mr.
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`Occhiogrosso’s testimony.
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`14.
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`I also understand Patent Owner argues no-touch gestures would be
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`more cumbersome to use in conjunction with Mann’s wristwatch because, according
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`to Mr. Occhiogrosso, no-touch gestures would be cumbersome “if the user-facing
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`camera on the wristwatch has a narrow field of view.” Ex. 2002, ¶ 62. However, Mr.
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`Occhiogrosso never explains why a POSITA would use such a narrow field of view.
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`In fact, a POSITA would not have implemented the user-facing camera with so
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`narrow a field of view that slight wrist motions make the gesture detection
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`ineffective. Instead, the field of view would have been configured such that a user
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`could inconspicuously swipe a finger across the screen in a predetermined direction.
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`So long as the finger passes over the face of the device, the gesture is recognized. A
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`POSITA would understand this is far simpler and less conspicuous than Mann’s
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`native touch-based gestures, which require high precision and significant focus from
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`the user as I explained above.
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`II. A POSITA would have been motivated to combine Mann and Numazaki
`with Amir
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`15.
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`I understand Patent Owner and its expert argue “Amir’s pupil-detection
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`functionality is unnecessary and redundant,” suggesting that Mann’s native video-
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`based functionality is sufficient because a recipient can simply search the received
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`video for a frame in which the subject’s eye are open. Paper 12, 32-33; Ex. 2002, ¶
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`83. I disagree. This argument ignores the benefits of communicating images over
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`video. As I explained in my initial declaration at ¶ 59, Mann expressly contemplates
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`taking pictures and sending those to remote locations. I explained, given its
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`investigative journalism focus, Mann’s system would benefit from functionality that
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`ensures captured images are of high quality and capture the subject’s facial features.
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`The proposed combination with Amir does just this, ensuring that any captured and
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`subsequently transmitted image captures important facial features of the subject,
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`including the subject’s open eyes.
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`16. A captured image requires far less bandwidth to transmit than video.
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`Amir’s functionality ensures that whatever image is ultimately captured and
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`transmitted will be useful for subject identification at least because it ensure the
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`subject’s eyes are open. Further, sending an isolated image require far less work on
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`the receiving end than the alternative Mr. Occhiogrosso proposes—transmitting high
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`bandwidth video and forcing the recipient to search, frame-by-frame, for an image
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`where the subject’s eyes are open.
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`III. A POSITA would have been motivated to combine Mann and Numazaki
`with Aviv
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`17.
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`I understand Patent Owner and its expert argue Aviv teaches away from
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`a combination with Mann because the “scenarios contemplated by Aviv are very
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`different from those disclosed by Mann.” Paper 12, 34-36; Ex. 2002, ¶¶ 85-86. Mr.
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`Occhiogrosso also argues Aviv teaches away from Mann because Aviv intends to
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`mount the camera high so as to “minimize occlusion between the [] camera and the
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`movement of individuals.” Ex. 1007, 5:55-58; Ex. 2002, ¶ 85. I disagree.
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`18.
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`In my original declaration, I explained that given Mann’s focus on
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`surreptitious monitoring, a POSITA would have recognized the applicability and
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`benefit of Aviv’s functionality that automatically detects criminal conduct and
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`trigger image capture. Ex. 1003, ¶¶ 65-67. A POSITA would have also recognized
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`12
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`Aviv’s goal to mitigate occlusion aligns with, rather than against, Mann’s device.
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`Indeed, Mann expressly recommends a user use the device in a manner that avoids
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`U.S. Patent No. 8,194,924
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`drawing the attention of a subject. Ex. 1004, Abstract, 13.
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`IV. Conclusion
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`19.
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`I declare that all statements made herein of my knowledge are true, and
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`that all statements made on information and belief are believed to be true, and that
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`these statements were made with the knowledge that willful false statements and the
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`like so made are punishable by fine or imprisonment, or both, under Section 1001 of
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`Title 18 of the United States Code.
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`Date:
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`By: _______________________________
`Dr. Benjamin B. Bederson
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