Trials@uspto.gov
`571-272-7822
`
`Paper 26
`Date: November 28, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE, INC., LG ELECTRONICS, INC.,
`LG ELECTRONICS U.S.A., INC., AND GOOGLE LLC,
`Petitioner,
`
`v.
`
`GESTURE TECHNOLOGY PARTNERS, LLC,
`Patent Owner.
`
`IPR2021-009221
`Patent 8,553,079 B2
`
`
`
`
`
`
`
`
`
`Before KEVIN F. TURNER, JONI Y. CHANG, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`DOUGAL, Administrative Patent Judge.
`
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining Some Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`1 IPR2022-00090 (LG Electronics, Inc. and LG Electronics U.S.A., Inc.) and
`IPR2022-00360 (Google LLC) have been joined with this proceeding.
`
`
`
`
`
`571-272-7822
`
`Paper 26
`Date: November 28, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE, INC., LG ELECTRONICS, INC.,
`LG ELECTRONICS U.S.A., INC., AND GOOGLE LLC,
`Petitioner,
`
`v.
`
`GESTURE TECHNOLOGY PARTNERS, LLC,
`Patent Owner.
`
`IPR2021-009221
`Patent 8,553,079 B2
`
`
`
`
`
`
`
`
`
`Before KEVIN F. TURNER, JONI Y. CHANG, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`DOUGAL, Administrative Patent Judge.
`
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining Some Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`1 IPR2022-00090 (LG Electronics, Inc. and LG Electronics U.S.A., Inc.) and
`IPR2022-00360 (Google LLC) have been joined with this proceeding.
`
`
`
`
`
`
`IPR2021-00922
`Patent 8,553,079 B2
`
`I.
`
`INTRODUCTION
`
`A.
`
`Background
`
`Applying the standard set forth in 35 U.S.C. § 314(a), we instituted an
`
`inter partes review challenging the patentability of claims 1–30 (the
`
`“challenged claims”) of U.S. Patent No. 8,553,079 B2 (Ex. 1001, “the ’079
`
`patent”). Paper 10 (“Dec.”). Apple, Inc.2 filed the request for an inter partes
`
`review (Paper 1, “Petition” or “Pet.”), which Patent Owner, Gesture
`
`Technology Partners, LLC, opposed (Paper 8).
`
`After institution, Patent Owner filed a Response (Paper 13, “PO
`
`Resp.”), Petitioner filed a Reply (Paper 17, “Reply”), and Patent Owner filed
`
`a Sur-reply (Paper 18, “Sur-reply”). An oral hearing was held on September
`
`13, 2022, and a copy of the transcript was entered into the record. Paper 25
`
`(“Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6. This Decision is a Final
`
`Written Decision under 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73 as to the
`
`patentability of the claims on which we instituted trial. Having reviewed the
`
`arguments of the parties and the supporting evidence, we determine that
`
`Petitioner has shown by a preponderance of the evidence, that claims 1–6,
`
`8–16, 18–26, and 28–30 are unpatentable. We also determine that Petitioner
`
`has not shown that claims 7, 17, and 27 are unpatentable.
`
`B.
`
`Related Matters
`
`The parties identify these related matters: Gesture Technology
`
`Partners, LLC v. Huawei Device Co., Ltd., No. 2:21-cv-00040 (E.D. Tex.);
`
`Gesture Technology Partners, LLC v. Samsung Electronics Co., No. 2:21-
`
`
`2 Apple, Inc., LG Electronics, Inc., LG Electronics U.S.A., Inc., and Google
`LLC are collectively referred to herein as “Petitioner.”
`
`2
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`
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`IPR2021-00922
`Patent 8,553,079 B2
`
`cv-00041 (E.D. Tex.); Gesture Technology Partners, LLC v. Apple Inc., No.
`
`6:21-cv-00121 (W.D. Tex.); Gesture Technology Partners, LLC v. Lenovo
`
`Group Ltd., No. 6:21-cv-00122 (W.D. Tex.); Gesture Technology Partners,
`
`LLC v. LG Electronics, Inc., No. 6:21-cv-00123 (W.D. Tex.); Gesture
`
`Technology Partners, LLC v. Motorola Mobility LLC, No. 1:22-cv03535
`
`(ND Ill.); and Gesture Technology Partners, LLC v. Katherine K. Vidal, No.
`
`1:22-cv-622 (E.D. VA). Pet. 77; Paper 20, 2–3. Patent Owner also identifies
`
`the following related Ex Parte Reexaminations: No. 90/014,900; No.
`
`90/014,901; No. 90/014,902; and No. 90/014,903. Paper 20, 3–4.
`
`C.
`
`The ’079 Patent
`
`The ’079 patent relates to “[a] method for determining a gesture,”
`
`such as a hand or finger gesture, using a camera and a light source, where
`
`the gesture serves as an input for a computer. Ex. 1001, Abstract, 1:54–57,
`
`1:64–2:2. Figure 2, reproduced below, depicts an embodiment in which a
`
`computer device (e.g., laptop) includes this method.
`
`
`
`3
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`Patent 8,553,079 B2
`
`As illustrated in Figure 2, a laptop (138) may include camera locations (100,
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`101, 105, 106, 108, 109), a keyboard surface (102), a screen housing (107), a
`
`light (122), light emitting diodes (LEDs) (210, 211), and a work volume area
`
`(170) within which a user’s movements are detected. Id. at 2:39–53. The
`
`system can detect a user’s finger alone or the user may employ external
`
`objects such as a ring (208) to help detect and recognize gestures performed
`
`in the work volume area (170). Id. at 2:54–3:8. The ’079 patent describes
`
`detecting point, pinch, and grip gestures using this configuration. Id. at 2:54–
`
`61, 3:48–51.
`
`D.
`
`Illustrative Claim
`
`Petitioner challenges claims 1–30 of the ’079 patent. Claims 1, 11,
`
`and 21 are independent. Claim 1 is illustrative:
`
`1. A computer implemented method comprising:
`
`providing a light source adapted to direct illumination
`through a work volume above the light source;
`
`providing a camera oriented to observe a gesture
`performed in the work volume, the camera being fixed relative
`to the light source; and
`
`determining, using the camera, the gesture performed in
`the work volume and illuminated by the light source.
`
`Ex. 1001, 13:2–9.
`
`
`
`II. ANALYSIS
`
`A.
`
`Summary of Issues
`
`In the below analysis, we first address the grounds of unpatentability.
`
`We then address Patent Owner’s jurisdiction argument.
`
`4
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`B.
`
`Instituted Grounds
`
`Petitioner asserts the following grounds of unpatentability (Pet. 5),
`
`supported by the declaration of Dr. Benjamin B. Bederson (Ex. 1010):
`
`Claim(s) Challenged
`1, 2, 4–14, 17, 19, 21, 22,
`24–28, 30
`3, 15, 23
`16, 29
`18
`20
`
`
`
`35 U.S.C. §
`
`103(a)3
`
`103(a)
`103(a)
`103(a)
`103(a)
`
`Reference(s)/Basis
`Numazaki,4 Knowledge of a
`PHOSITA5
`Numazaki, Numazaki ’8636
`Numazaki, DeLuca7
`Numazaki, DeLeeuw8
`Numazaki, Maruno9
`
`1.
`
`Legal Standards for Unpatentability
`
`Petitioner bears the burden to demonstrate unpatentability. Dynamic
`
`Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
`
`2015).
`
`A claim is unpatentable as obvious under 35 U.S.C. § 103 if “the
`
`differences between the subject matter sought to be patented and the prior art
`
`are such that the subject matter as a whole would have been obvious at the
`
`time the invention was made to a person having ordinary skill in the art to
`
`which said subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
`
`398, 406 (2007) (quoting 35 U.S.C. § 103(a)). We resolve the question of
`
`
`3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 285–88 (2011), revised 35 U.S.C. § 103 effective March 16, 2013.
`Because the challenged patent was filed before March 16, 2013, we refer to
`the pre-AIA versions.
`4 U.S. Patent 6,144,366, issued Nov. 7, 2000 (“Numazaki”) (Ex. 1004).
`5 A person of ordinary skill in the art (“PHOSITA”).
`6 U.S. Patent 5,900,863, issued May 4, 1999 (“Numazaki ’863”) (Ex. 1005).
`7 U.S. Patent 6,064,354, issued May 16, 2000 (“DeLuca”) (Ex. 1006).
`8 U.S. Patent 6,088,018, issued July 11, 2000 (“DeLeeuw”) (Ex. 1007).
`9 U.S. Patent 6,191,773 B1, issued Feb. 20, 2001 (“Maruno”) (Ex. 1008).
`
`5
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`Patent 8,553,079 B2
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`obviousness based on underlying factual determinations, including: (1) the
`
`scope and content of the prior art; (2) any differences between the prior art
`
`and the claims; (3) the level of skill in the art; and (4) when in evidence,
`
`objective indicia of nonobviousness.10 See Graham v. John Deere Co., 383
`
`U.S. 1, 17–18 (1966).
`
`We apply these principles to the Petition’s challenges.
`
`2.
`
`Level of Ordinary Skill in the Art
`
`Petitioner asserts that “[a] person having ordinary skill in the art
`
`(‘PHOSITA’) at the time of the ’079 Patent would have had at least a
`
`bachelor’s degree in electrical engineering or equivalent with at least one
`
`year of experience in the field of human computer interaction” and that
`
`“[a]dditional education or experience might substitute for the above
`
`requirements.” Pet. 4 (citing Ex. 1010 ¶¶ 29–31). Patent Owner does not
`
`dispute Petitioner’s level of ordinary skill in the art. PO Resp. 6.
`
`We are persuaded that Petitioner’s declarant’s statement is consistent
`
`with the problems and solutions in the ’079 patent and prior art of record.
`
`We adopt this definition for the purposes of this Final Decision.
`
`3.
`
`Claim Construction
`
`In inter partes review, we construe claims using the same claim
`
`construction standard that would be used to construe the claims in a civil
`
`action under 35 U.S.C. § 282(b), including construing the claims in
`
`accordance with the ordinary and customary meaning of such claims as
`
`understood by one of ordinary skill in the art and the prosecution history
`
`pertaining to the patent. 37 C.F.R. § 42.100(b) (2020).
`
`
`10 Neither party presents evidence or arguments regarding objective evidence
`of nonobviousness in the instant proceeding.
`
`6
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`Patent 8,553,079 B2
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`Patent Owner proposes a construction for a term in claims 3, 15, and
`
`23. PO Resp. 6–8. The parties do not propose any other any claim
`
`constructions. Pet. 5–6; PO Resp. 6. We address the term “a plurality of light
`
`emitting diodes” in claims 3, 15, and 23 below. To the extent any other term
`
`needs construction, we address the term in the later arguments below. See
`
`Realtime Data, LLC v. Iancu, 912 F.3d 1368, 1375 (Fed. Cir. 2019) (“The
`
`Board is required to construe ‘only those terms . . . that are in controversy,
`
`and only to the extent necessary to resolve the controversy.’” (quoting Vivid
`
`Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`
`a)
`
`A Plurality of Light Emitting Diodes
`
`Patent Owner proposes that “wherein the light source includes a
`
`plurality of light emitting diodes,” in claim 3, be construed to mean “the
`
`light source illuminates the gesture by having two or more (i.e., a plurality)
`
`LEDs of the light source emit light at the same time.” PO Resp. 6–8. Patent
`
`Owner argues that the similar limitations in claims 15 and 23 should also be
`
`construed in this way. Id. at 8.
`
`Patent Owner argues that claim 1, from which claim 3 depends,
`
`“requires that the gesture performed in the work volume is illuminated by
`
`the light source, not a portion of the light source. As a result, the ‘plurality of
`
`light emitting diodes’ recited in claim 3 must illuminate the work volume,
`
`not a subset of the LEDs.” Id. at 7.
`
`Patent Owner’s argument is inconsistent. As quoted above, Patent
`
`Owner says that a subset of LEDs cannot illuminate the work volume, but
`
`Patent Owner’s argued-for-construction would only require two LEDs to
`
`emit light at the same time, even if the system had three or more. Thus, this
`
`argument does not support Patent Owner’s argued-for-construction.
`
`7
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`Patent 8,553,079 B2
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`Claim construction starts with an analysis of the claim language itself.
`
`Sjolund v. Musland, 847 F.2d 1573, 1582 (Fed. Cir. 1988) (“[T]he claims
`
`define the invention.”). Claim 1 includes “providing a light source adapted
`
`to direct illumination through a work volume above the light source,” a
`
`“camera being fixed relative to the light source,” and “determining . . . the
`
`gesture performed in the work volume and illuminated by the light source.”
`
`Ex. 1001, 13:3–9. Claim 3 adds that “the light source includes a plurality of
`
`light emitting diodes.” Id. at 13:12–13.
`
`Reading claims 1 and 3 it can be seen that Patent Owner’s
`
`construction is not apparent or implied from the claim language. Neither
`
`claim requires, for example, that the gesture be illuminated by 100% of the
`
`light source, or by at least two LEDs of the light source. Claim 1 merely
`
`states that the gesture be “illuminated by the light source.” The amount of
`
`illumination is not specified.
`
`Patent Owner also argues that the purpose for having multiple light
`
`emitting diodes from the Specification should be read into the claims. PO
`
`Resp. 7. “Claim 3, when read in light of the specification, means the light
`
`source illuminates the gesture by having two or more (i.e., a plurality) LEDs
`
`of the light source emit light at the same time.” Id.; see also id. (“the
`
`specification, . . . describes the purpose of the light source as increasing the
`
`amount of light incident to the object (e.g., finger) performing the gesture.
`
`Ex. 1001, 3:1-3”).
`
`The mere fact that the Specification provides an example as to how
`
`the light source is used is not a sufficient reason for us to read a limitation
`
`into the claims from the Specification. If the specification “reveal[s] a
`
`special definition given to a claim term by the patentee that differs from the
`
`meaning it would otherwise possess[,] . . . the inventor’s lexicography
`
`8
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`Patent 8,553,079 B2
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`governs.” Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en
`
`banc) (citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366
`
`(Fed. Cir. 2002)); see also Reply 19. However, this is not the case here.
`
`Patent Owner does not identify anywhere in the Specification where “light
`
`source” or “plurality of light emitting diodes” are defined as “the light
`
`source illuminates the gesture by having two or more (i.e., a plurality) LEDs
`
`of the light source emit light at the same time.”
`
`For these reasons we decline to adopt Patent Owner’s claim
`
`construction. We determine that the added limitation in claims 3, 15, and 23
`
`should be read according to its plain and ordinary meaning. In other words,
`
`“the light source includes a plurality of light emitting diodes,” simply means
`
`exactly what it says “the light source includes a plurality of light emitting
`
`diodes.”
`
`4.
`Obviousness over Numazaki and Knowledge of a
`PHOSITA
`
`Petitioner argues that Numazaki in view of the knowledge of a
`
`PHOSITA would have rendered obvious claims 1, 2, 4–14, 17, 19, 21, 22,
`
`24–28, and 30. Pet. 6–35. Patent Owner specifically contends that Numazaki
`
`does not disclose all the limitations of claims 1, 7, 11, 17, 21, and 27. PO
`
`Resp. 8–20.
`
`We first give an overview of the asserted prior art, Numazaki. This is
`
`followed by a discussion of Petitioner’s positions and Patent Owner’s
`
`arguments in response where we conclude that Petitioner has shown by a
`
`preponderance of the evidence that some of the challenged claims are
`
`unpatentable.
`
`9
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`IPR2021-00922
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`a)
`
`Numazaki
`
`Numazaki “relates to a method and an apparatus for generating
`
`information input in which input information is extracted by obtaining a
`
`reflected light image of a target object.” Ex. 1004, 1:8–11.
`
`Figure 1, reproduced below, depicts a block diagram for an
`
`information input generation apparatus.
`
`
`
`Figure 1 shows that an information input generation apparatus includes a
`
`lighting unit (101), a reflected light extraction unit (102), a feature data
`
`generation unit (103), and a timing signal generation unit (104). Id. at 10:23–
`
`28. Numazaki describes emitting light from the light emitting unit (101) and
`
`that the intensity of the light varies in time according to a timing signal from
`
`the timing signal generation unit (104). Id. at 10:29–31. The light is directed
`
`onto a target object and light reflected from the target object is extracted by
`
`the reflected light extraction unit (102). Id. at 10:31–35. Numazaki teaches
`
`that the feature data generation unit (103) extracts feature data from the
`
`reflected light image. Id. at 10:57–61. Numazaki further teaches operating a
`
`computer based on information obtained from the feature data. Id. at 10:61–
`
`66.
`
`10
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`Figure 2, reproduced below, shows a more detailed block diagram of
`
`an embodiment of information input generation apparatus.
`
`
`
`In Figure 2, a timing control unit (112) is used to turn the lighting unit (101)
`
`on (i.e., illuminating the target object) when the first photo detection unit
`
`(109) is active and off when the second photo detection unit (110) is active.
`
`Id. at 11:20–32. The first photo detection unit captures an image of the target
`
`object illuminated by both natural light and the lighting unit and the second
`
`photo detection unit captures an image of the target object illuminated by
`
`only natural light. Id. at 11:33–39. The difference between the two images—
`
`obtained by a difference calculation unit (111)—represents the “reflected
`
`light from the object resulting from the light emitted by the lighting unit
`
`101.” Id. at 11:43–51. This information is then used by the feature data
`
`generation unit (103) to determine gestures, pointing, etc. of the target object
`
`that may be converted into commands executed by a computer. Id. at 10:57–
`
`66.
`
`Figure 74, reproduced below, illustrates a system incorporating an
`
`information input generation apparatus.
`
`11
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`
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`Figure 74 shows a portable computer with an information input
`
`generation device. Id. at 50:25–29. The device includes a lighting unit (701)
`
`and a photo-detection sensor unit (702). Id. at 50:29–35. Numazaki teaches
`
`that “the operator operating the keyboard can make the pointing or gesture
`
`input by slightly raising and moving the index finger.” Id. at 50:38–40.
`
`b)
`
`Claim 1
`
`Petitioner relies on Numazaki in view of the knowledge of a
`
`PHOSITA for teaching or suggesting all of the elements of claim 1. Pet. 10–
`
`14. For example, Petitioner relies on the portable computer with an
`
`information input generation device of Figure 74 with its lighting unit (701)
`
`and photo-detection sensor unit (702) for the providing a computer, light
`
`source, and camera, method steps of claim 1. Id. at 10–13.
`
`Petitioner further argues that the determining step is taught by
`
`Numazaki, where the lighting and photo-detection sensor units are used to
`
`determine a hand gesture in the area above the laptop. Id. at 12–13 (citing
`
`Ex. 1004, 50:30–43).
`
`Numazaki only provides some details about the photo-detection
`
`sensor unit. See generally Ex. 1004, 50:25–54:6. However, Petitioner relies
`
`on Numazaki’s teaching that “light and camera arrangement” of Figure 2 “is
`
`12
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`incorporated into the eighth embodiment” for more details about the
`
`photo-detection sensor unit. Pet. 13–14; see also id. at 9 (quoting Ex. 1004,
`
`50:21–24) (“Numazaki teaches that its eighth embodiment incorporates ‘the
`
`information input generation apparatus of the present invention as described
`
`in the above embodiments.’”); Ex. 1010 ¶¶ 42–43 (discussing what a
`
`PHOSITA would have understood was incorporated into the eighth
`
`embodiment); Ex. 1004, 53:22–36 (Numazaki discussing “the photo-
`
`detection section” and then pointing to the prior discussion “as already
`
`described in detail above”). Petitioner describes Numazaki as teaching a
`
`system where two images are obtained of the target object by two different
`
`cameras, one with the lighting unit on and one with it off. Pet. 14 (citing
`
`Ex. 1007, 11:20–39). The images are compared to obtain certain
`
`information. Id. (citing Ex. 1007, 11:43–51). Petitioner concludes that the
`
`obtained “information is then used by feature data generation unit 103 to
`
`determine gestures, pointing, etc. of the target object that may be converted
`
`into commands executed by a computer” and that this all reads on the
`
`determining step of claim 1. Id. (citing Ex. 1007, 10:57–66).
`
`Patent Owner argues that Numazaki does not teach the steps of
`
`“providing a camera” or “determining a gesture” in claim 1. PO Resp. 8–13.
`
`We address each argument in turn below.
`
`(1) Providing a Camera
`
`Claim 1 requires “providing a camera oriented to observe a gesture
`
`performed in the work volume, the camera being fixed relative to the light
`
`source.” Ex. 1001, 13:5–7. As noted above, Petitioner relies on Numazaki’s
`
`portable computer with an information input generation device of Figure 74
`
`with its photo-detection sensor unit (702) for the providing a camera method
`
`step of claim 1. Pet. 12–13. The Petition further relies on Numazaki’s
`
`13
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`teaching that “light and camera arrangement” of Figure 2 “is incorporated
`
`into the eighth embodiment” for more details about the photo-detection
`
`sensor unit. Id. at 13–14; see also id. at 9 (quoting Ex. 1004, 50:21–24)
`
`(“Numazaki teaches that its eighth embodiment incorporates ‘the
`
`information input generation apparatus of the present invention as described
`
`in the above embodiments.’”); Ex. 1010 ¶¶ 42–43 (discussing what a
`
`PHOSITA would have understood was incorporated into the eighth
`
`embodiment); Ex. 1004, 53:22–36 (Numazaki discussing “the photo-
`
`detection section” and then pointing to the prior discussion “as already
`
`described in detail above”). We determine that Petitioner has shown by a
`
`preponderance of the evidence that this limitation is taught by Numazaki.
`
`Neither Patent Owner, nor Patent Owner’s declarant, contest
`
`Petitioner’s position, supported by its declarant, that Numazaki’s reflected
`
`light extraction unit, with its two photo detection units in Figure 2 teach a
`
`camera. See PO Resp. 10 (citing Pet. 6, 7, 12–14; Ex. 1010 ¶¶ 35–36)
`
`(acknowledging Petitioner’s position and declarant support); Ex. 2004 ¶ 50
`
`(Patent Owner’s declarant acknowledging Petitioner’s position and declarant
`
`support).
`
`However, Patent Owner argues that “[n]one of embodiments 1–7 in
`
`Numazaki [(including Figure 2)] mention a ‘photo-detection sensor unit,’
`
`and thus none of embodiments 1–7 teach or suggest the ‘photo-detection
`
`sensor unit’ in Fig. 74 as being a camera.” PO Resp. 9 (citing Ex. 2002
`
`¶ 48). Patent Owner admits that Numazaki Figure 2 teaches two
`
`“photo-detection units,” but essentially argues that because the term
`
`“photo-detection unit” is not identical to Figure 74’s “photo-detection sensor
`
`unit,” one of skill in the art would not understand what a “photo-detection
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`14
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`sensor unit” is, or how it relates to the rest of the disclosure. Id. at 9, 11; see
`
`also Sur-reply 1–2.
`
`In support, Patent Owner relies on its declarant who testifies: “I
`
`reviewed Numazaki in its entirety and it contains no disclosure stating that
`
`the ‘photo-detection sensor unit’ is a camera” and “it is my opinion that a
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`POSITA would understand that none of embodiments 1–7 disclose the
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`‘photo-detection sensor unit’ in Fig. 74 as being or including a camera.”
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`Ex. 2002 ¶ 48.
`
`As will be understood from reviewing Numazaki, Numazaki discloses
`
`an eighth embodiment having a number of different portable form factors
`
`shown in Figures 74–79, but sharing “a system configuration incorporating
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`the information input generation apparatus of the present invention as
`
`described in the above embodiments,” i.e., embodiments 1–7, including
`
`Figure 2. Ex. 1004, 50:19–20; see also Ex. 1010 ¶ 40. In addition to
`
`referring back to the prior disclosure, additional details of the information
`
`input generation apparatus including the photo-detection section are
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`provided at 52:33–54:6. This section not only describes an information input
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`generation apparatus that is very similar to the disclosure of Figure 2, but it
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`again refers back to the “the photo-detection section . . ., as already
`
`described in detail above.” Id. at 53:22–36; see also Dec. 9 (explaining that
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`“details about the photo-detection sensor unit” could be found at Ex. 1004,
`
`50:25–54:6).
`
`Thus, the position of Patent Owner and Patent Owner’s declarant is
`
`inconsistent with the express disclosure of Numazaki that makes clear that
`
`the photo-detection section of the eighth embodiment, including the
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`“photo-detection sensor unit” of Figure 74 incorporates the disclosure of the
`
`photo-detection section of the prior embodiments, including Figure 2. Thus,
`
`15
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`we determine that one of ordinary skill in the art would have understood
`
`Numazaki to teach that the “photo-detection sensor unit” in Figure 74 is or at
`
`least includes a camera, just as Numazaki’s reflected light extraction unit,
`
`with its two photo detection units in Figure 2 teach a camera.
`
`For the above reasons, Patent Owner’s arguments do not identify any
`
`shortcomings in the showing by Petitioner that Numazaki teaches providing
`
`a camera.
`
`(2) Determining the Gesture
`
`Claim 1 also requires “determining, using the camera, the gesture
`
`performed in the work volume and illuminated by the light source.”
`
`Ex. 1001, 13:8–9. As noted above, Petitioner relies on Numazaki to teach
`
`this step, where Numazaki’s lighting and photo-detection sensor units are
`
`used to determine a hand gesture in the area above the laptop. Pet. 12–13
`
`(citing Ex. 1004, 50:30–43). Petitioner further relies on Numazaki’s teaching
`
`that “light and camera arrangement” of Figure 2 “is incorporated into the
`
`eighth embodiment” for more details about the photo-detection sensor unit.
`
`Id. at 13–14; see also id. at 9 (citing Ex. 1010 ¶¶ 42–43). We determine that
`
`Petitioner has shown by a preponderance of the evidence that this limitation
`
`is taught by Numazaki.
`
`Patent Owner argues that this limitation is not taught because “[a]
`
`POSITA would interpret [it] . . . as requiring the gesture be illuminated by
`
`the light source while the camera is capturing one or more images of the
`
`gesture.” PO Resp. 11 (citing Ex. 2002, ¶ 52; Ex. 1001, Abst., 3:1–8). Patent
`
`Owner then puts forth two positions based on whether “a camera” in the
`
`prior limitation means “only one camera” or “multiple cameras.” Id. at 12.
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`16
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`Patent Owner’s first argument is that if “providing a camera” means
`
`“providing only one camera,” Numazaki teaches two and thus does not teach
`
`only one. Id. at 12.
`
`Unless a more limited construction is indicated by the specification or
`
`prosecution history, the indefinite article “a” or “an” is construed in a claim
`
`to mean “one or more.” KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351,
`
`1356 (Fed. Cir. 2000). Thus, “providing a camera” is not limited to one
`
`interpretation or the other, but can include one camera or multiple cameras. 11
`
`As the claim is not limited to “only one camera,” Patent Owner’s argument
`
`does not identify any shortcomings in Petitioner’s showing.
`
`Patent Owner then argues that if “a camera” means “multiple
`
`cameras,” Numazaki fails to teach the limitation because the claim
`
`requires the gesture be illuminated by the light source when any
`of the cameras is capturing an image of the gesture. But as
`discussed above, Numazaki requires two photo-detection units
`(i.e., two cameras) and Numazaki’s lighting unit (i.e., light
`source) is not active when one of the photodetection units is
`capturing an image of the gesture.
`
`PO Resp. 12.
`
`However, claim 1 does not require or refer to capturing images. It is
`
`not clear why Patent Owner is arguing that a person of ordinary skill in the
`
`art would interpret the claim as requiring the capturing of images when that
`
`is not claimed. Patent Owner does not further explain this position.
`
`The claim does require that the gesture be “illuminated by the light
`
`source,” but Patent Owner admits that this is taught by Numazaki. Id. Patent
`
`Owner states that “Numazaki requires two photo-detection units (i.e., two
`
`
`11 Patent Owner disavows this argument in the Sur-reply when it agrees that
`‘“a camera’ . . . should be construed as ‘one or more cameras.’” Sur-reply 3.
`
`17
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`cameras) and Numazaki’s lighting unit (i.e., light source) is not active when
`
`one of the photodetection units is capturing an image of the gesture.” Id.
`
`The claim does not require that the gesture remain permanently
`
`illuminated. Further, the fact that Numazaki also teaches a second
`
`photo-detection unit that captures the gesture while lighting unit 101 is not
`
`active is not excluded by the language of the claim. The fact that Numazaki
`
`compares both images in determining the gesture is also not excluded by the
`
`claim. The claim merely requires that the determining be made “using the
`
`camera,” that “the gesture [be] performed in the work volume” and that the
`
`gesture be “illuminated by the light source” at some point in time. Claim 1
`
`uses the term “comprising” to create an “open ended” claim. “‘Comprising’
`
`is a term of art used in claim language which means that the named elements
`
`are essential, but other elements may be added and still form a construct
`
`within the scope of the claim.” Genentech, Inc. v. Chiron Corp., 112 F.3d
`
`495, 501 (Fed. Cir. 1997). Thus, the additional steps taught by Numazaki
`
`highlighted by Patent Owner are not excluded from the claim.
`
`For the above reasons, Patent Owner’s arguments do not undermine
`
`the showing by Petitioner that Numazaki teaches all of the aspects of the
`
`determining a gesture claim element.
`
`(3) Conclusion
`
`After review of the arguments and evidence, and further in view of the
`
`above discussion, we determine that Petitioner has shown, by a
`
`preponderance of the evidence, that claim 1 is unpatentable over Numazaki
`
`and the knowledge of a PHOSITA.
`
`c)
`
`Claims 11 and 21
`
`Independent claim 11 is directed to a computer apparatus and is very
`
`similar to method claim 1. Compare Ex. 1001, 13:31–39, with id. at 13:1–9.
`
`18
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`Independent claim 21 is directed to a computer implemented method and is
`
`very similar to method claim 1. Compare id. 14:14–22, with id. at 13:1–9.
`
`As such, the Petition relies on essentially the same teachings of Numazaki
`
`discussed above with respect to claim 1 for the features of claims 11 and 21,
`
`which we agree with for the reasons explained above. See Pet. 28–30, 33.
`
`Similarly, Patent Owner argues that the Petition fails to teach or
`
`suggest the claim elements of claims 11 and 21 “for the same reasons above
`
`with respect to claim [1].” PO Resp. 16–17, 18–19. Patent Owner then
`
`briefly reiterates some of the same arguments discussed above. Id. Patent
`
`Owner does not provide any additional argument other than what has already
`
`been addressed with respect to claim 1 above.
`
`After review of the arguments and evidence, and further in view of the
`
`above discussion, we determine that Petitioner has shown, by a
`
`preponderance of the evidence, that claims 11 and 21 are unpatentable over
`
`Numazaki and the knowledge of a PHOSITA.
`
`d)
`
`Claims 7, 17, and 27
`
`Claims 7, 17, and 27 depend from claims 1, 11, and 21, respectively
`
`and are very similar in scope:
`
`7. . . . providing a target positioned on a user that is viewable in
`the work volume.
`
`17. . . . including a target that is viewable by the camera when
`in the work volume.
`
`27. . . . providing a target positioned on the user that is viewable
`by the camera.
`
`Ex. 1001, 13:21–23, 14:5–7, 14:35–37.
`
`19
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`Petitioner argues12 that Numazaki teaches using a hand within the
`
`work volume. Pet. 22–23 (citing Ex. 1004, 10:57–66, 50:35–37, Figs. 74,
`
`77). Petitioner also argues that Numazaki recognizes “that it was known to
`
`paint a fingertip or to wear a ring in a particular color to improve detection.”
`
`Id. at 23 (citing Ex. 1004, 3:4–11). Petitioner argues that in view of these
`
`teachings in Numazaki, “[a] PHOSITA would have understood . . . that the
`
`Fig. 74 arrangement described in the eighth embodiment [of Numazaki] is
`
`particularly well suited to a ring or other small target mounted on a user’s
`
`finger.” Id. (citing Ex. 1010 ¶¶ 48–49).
`
`Petitioner acknowledges, however, that Numazaki “cautions that
`
`requiring users to wear or mount some external component may negatively
`
`impact the user’s convenience and may bring with it durability issues.” Id.
`
`(citing Ex. 1004, 3:32–38). Petitioner relies on the testimony of its declarant
`
`to support its position that “users would accept” the tradeoff “of improved
`
`accuracy in exchange for the minor inconvenience of wearing a small ring or
`
`other hand-based target when using gesture recognition while typing.” Id.
`
`(citing 1010 ¶¶ 48–49). Further, Petitioner argues that “the durability
`
`concerns are implicated by a ring target, and many adults wear rings
`
`routinely while typing with no ill effect, which suggests that such a tradeoff
`
`would be acceptable to many users.” Id. at 23–24 (citing 1010 ¶¶ 48–49).
`
`Patent Owner argues13 that the portions of Numazaki that Petitioner
`
`discusses, identifying the user’s inconvenience and durability issues
`
`
`12 Petitioner relies on the same positions laid out with respect to claim 7 for
`claims 17 and 27. Pet. 33, 34.
`13 Paten
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