IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Inventor(s)
`
`Patent Owner
`
`Patrick Pirim
`
`Image Processing Technologies LLC
`
`Reexam. Control No. :
`
`90/014,056
`
`Reexam. Filed
`
`December 15, 2017
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`Confirmation No.
`
`1361
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`Patent No.
`
`Issue Date
`
`Application No.
`
`App. Filing Date
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`Title
`
`6,959,293
`
`October 25, 2005
`
`09/792,436
`
`February 23, 2001
`
`METHOD AND DEVICE FOR AUTOMATIC VISUAL
`PERCEPTION
`
`Examiner
`
`Art Unit
`
`Majid Banankhah
`
`3992
`
`Mail Stop Ex Parte Reexam
`Commissioner for Patents
`P.O. Box 1450
`Alexandria, Virginia 22313-145
`
`APPEAL BRIEF
`
`Applicant submits this Appeal Brief in responseto the Final Rejection (“Rejection”) mailed
`
`September 7, 2018. Notice of Appeal wastimely filed in this case on November6, 2018.
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`TABLE OF CONTENT
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`I.
`
`Real party of interest 0... eee ceeee cece cneeceeceeeeeeseecaaeceseesseeseaeessaesesaeseeeetaeessaseseeseeeetaaeeaeee 5
`
`TL. Related proceeding 00.0... eee ceseceeeeeeseecsaeceeceeeeesaeecsaeceaeesseeseaeecaeseseeseseseaeecsaeseeeseaeetaaesaeee 5
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`IIL.
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`Status Of CALMS 0... ee eee cee ceseceeeeseeeesseecsaeceeeseaeesaaecaeceseesseeesasessaseeeeseeeessaessaeseneeteaeenaaes 6
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`IV.
`
`Status Of Amendments 00... eee cece ceee cence ceaeceeeeeeeeessaecaeceaeeseneesaaesaeceeesseeeeasecsasseeeneneetaaes 6
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`V.
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`Summary of claimed subject matter... eee ese ceeeceeeceeeeeeseeceaeseeeseeeetaeeseaeeeeeeteeeetaaeseaeen 7
`
`VI
`
`ATSUMONEoe cee eect ere ee rere nese eee ee ceae eee ae sete geeeeeaeeteaaeseeesesesseseesaeseeseeseeseeeseeeeeneeeeeea 8
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`VIA Overview of the ’293 Patent ...... 0. ee eee cee ceeecteeeeeeesaeeceaeceeeeseeesaaeseaseneeseneetaaessaeeeeeneas 9
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`VIB Claim Construction oo... cece ceecceeeeeeeecsseceeeseeeseseecsaeceaeeseeessaeecaeseseeseaeenaeessaeseeeneneenaaes 10
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`VI.B.1
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`35 U.S.C. § 112, Paragraph Six Does Not And Should Not Apply........ ee 10
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`VI.B.1.4/) The Examiners Erred in Adopting a § 112 (6) construction for Claim 1
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`VI.B.1.Gi) Claim 1 Does Not Trigger A 35 U.S.C. § 112(6) Construction
`
`VI.B.1.Gii) The Proposed Means-Plus-Function Construction Omits Structure
`
`10
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`13
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`16
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`VI.B.1.Giv) Patent Owner's Argument Prevails Even Under a § 112(6) Claim Interpretation
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`17
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`VI.B.2
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`Color Is Not an Individual Parameter 0.0... eee cess ceeeeeeeeeeeceaeceeeeteeeetaeeeeaeens 17
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`VI.B.3.
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`The Final Rejection Improperly Interprets the Term “Two Histogram Units” ........ 18
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`VI.B.4
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`“ahistogram representative of the parameter”... eee eee eee ceeeceeeeteeeeteeenaees 21
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`VI.C Analysis of grounds for rejectiOn...... eee ceecceseeseecseceeeeeeeeeeseeceaeceeeseeeesaeestasseeeeseneenaaes 21
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`VIC.L Piri PCT oe cececsee ene ceneceeeeeseecsaeceaeeseeessseessaeceaesseeseseesaaeseaeseeeeseneetaaeseaeen 22
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`VI.C.1.) Pirim PCTis not a generic system, but a drowsiness detection system
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`VI.C.1.Gi) The “Generic” System Customized by Pirim PCT is Applicable Only to
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`Localization and Tracking of Moving Objects.
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`VI.C.1.Gii) Pirim PCT Discloses only a Passive Histogram Calculation Unit, Not the
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`Improved Histogram Calculation Units that are Disclosed by the ’293 Patent
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`VI.C.1.Gv) Pirim PCT Computes Histograms in Real-Time As Data Arrives.
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`VI.C.1.(v) The Examiners Cannot Avoid the Real-Time Histogram Calculation of Pirim
`
`PCT by Improperly Relying on the Disclosures of the ’293 Patent.
`
`22
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`28
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`29
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`33
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`40
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`VI.C.2—Rejection under 35 U.S.C § 103(a) over Pirim PCT in view of Siegel. oo... 44
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`VLC.2.(4) Siegel
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`VI.C.2.Gi) The Proposed Combination of Pirim PCT and Siegel Would Not Produce the
`
`Claimed Invention
`
`VI.C.2.ii) The Proposed Combination of Pirim PCT and Siegel is Inoperable
`
`VI.C.2.4iv) No Motivation to Combine Pirim PCT andSiegel.
`
`44
`
`46
`
`48
`
`53
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`VI.C.3
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`Rejection under 35 U.S.C § 103(a) over Pirim PCT in view of Hirota... 57
`
`VI.C.3.(i) Hirota
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`VI.C.3.Gi) The Proposed Combination with Hirota Would not Produce the Claimed
`
`Invention 62
`
`VI.C.3.Gii) The Proposed Combination of Pirim PCT and Hirota Is Inoperable
`
`VI.C.3.(iv) No Motivation to Combine Pirim PCT and Hirota
`
`61
`
`65
`
`68
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`VIC.4
`
`Obviousness Criteria Not Met in Ground 1 OF 2.00... eececececeeseeceeeeeeeeeeeeeenaeeeenees 75
`
`3
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`VID.
`
`«CONCLUSIONLee eee eee eeeeeneeccceeseccecasssceccsssceceanesecensaseeensasceesaassesssatsceensatscessaaseceessneeseesees 78
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`VITL Claims appendix... eee eee ceeceseceeeeeeeeeeseeceaeceeeseneesaeecaeceseeseeeesaaesaeseseeseaeesasessasseseeneneeeaaes 79
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`TX.—Evidence Relied upon 0... eee ceeeeceseeeseeceeceeeesseeesseecsaeceseesseeesaaessaeseeeseeesaaecsasseeeseneeeaaes 80
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`I.
`
`REAL PARTY OF INTEREST
`
`Image Processing Technologies, LLC
`
`General Patent Corporation (managing memberof Image Processing Technologies, LLC)
`
`Il.
`
`RELATED PROCEEDINGS
`
`The Board is advised that U.S. Patent No. 6,959,293 (the “’293 patent’) is or was involved
`
`in the following proceedings:
`
`1.
`
`Image Processing Technologies, LLC yv. Canon Inc., et al., Case No. 10 CV 03867
`
`(E.D.N.Y) (Dismissed).
`
`2.
`
`Image Processing Technologies, LLC v. Samsung Electronics Co., Ltd., et al., Case No.
`
`2:16 CV 505 (“the Samsunglitigation’) (E.D. Tex.) (Pending).
`
`3.
`
`Samsung Electronics Co., Ltd., et al. v. Image Processing Technologies, LLC, IPR2017
`
`00336 (‘IPR I’) (Concluded; Claim 1 held to be not invalid over Pirim PCT in combination with
`
`otherart (, IPR2017-00336, paper 38 (5-9-2018) at page 10)).
`
`4,
`
`Samsung Electronics Co., Ltd., et al. v. Image Processing Technologies, LLC, IPR2017
`
`01189 “IPR If’) (Institution Denied, see Institution Decision, paper 9).
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`Il.
`
`STATUS OF CLAIMS
`
`[1] Only Claim 1 is subject to re-examination. It stands rejected by Final Office Action Dated
`
`September 7", 2018. Therejection is appealed.
`
`IV.
`
`STATUS OF AMENDMENTS
`
`[2] None!.
`
`'Tn the current re-examination proceedings.
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`V.
`
`SUMMARY OF CLAIMED SUBJECT MATTER
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`1. A visual perception processor for automatically detecting an event (FIG 1, 40,33, 37, 36, 6:35-
`
`7:50, 22:22-40)) occurring in a multidimensional space (1, j) evolving over time with respect to at
`
`least one digitized parameter in the form of a digital signal on a data bus, said digital signal being in
`
`the form of a succession air of binary numbersassociated with synchronization signals enabling to
`
`define a given instant (T) of the multidimensional space and the position (i, j) in this space (FIG. 2,
`
`7:55-8:23), the visual perception processor comprising:
`
`the data bus (FIG 2, 32 7:30-40, 21:38-42);
`
`a control unit (FIGs 6-11, 33, 6:9-60, 20:54-57, 22:40-26:30;)
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`a time coincidences bus carrying at least a time coincidence signal; (bus 111 in FIGs1, 3,4,
`
`30,3 1a, 32, 38, 4, 9:37-42, 10:42-46); and
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`at least two histogram calculation units for the treatment of the at least one parameter (FIGs
`
`32,37, 20:54-57, 21:36-47),
`
`the histogram calculation units (FIGs 31a, 32, element 1 of FIG. 31a can be any histogram
`
`unit, for example of FIGs 3, 4,15A, 15B, 16, 17,25, 31b, 8:44-9:26) being configured to form a
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`histogram representative of the parameter as a function of a validation signal (9:23-25) and to
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`determinebyclassification a binary classification signal resulting from a comparison of the
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`parameter andaselection criterion C (FIGs 16, 18, 9:27-34, 11:15-16:54), wherein the
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`classification signal is sent (9:35, 10:35-40) to the time coincidences bus, and wherein the
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`validation signal
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`is produced from time coincidences signals from the time coincidence bus (FIGs
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`22, 23, 9:36-50, 10:53-58, 16:54-18:48) so that the calculation of the histogram depends on the
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`classification signals carried by the time coincidence bus (10:42-11:2).
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`VI. ARGUMENT
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`[3] Patent Owner respectfully submits this de novo appeal from a Final Office Action (“Office
`
`Action” or “Final Rejection”) issued in connection with a third party’s reexamination request
`
`involving Claim 1 of U.S. Patent No. 6,959,293 (“’293 Patent’). The Examiners issued the
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`Final Office Action on September 7, 2018, determining that Claim 1 was obvious onthe basis
`
`of two different prior art combinations:
`
`(1) Pirim PCT in view of Siegel; and (2) Pirim PCT in
`
`view of Hirota. A Notice of Appeal wastimely filed on November6, 2018, within the statutory
`
`period for response of two months from the mailing date of the Office Action. See 37 C.F.R.
`
`1.550(d).
`
`[4] As discussed in further detail below, the main reference involved in the reexamination, Pirim
`
`PCT, has previously been the basis for an obviousness challenge on two different occasions. In
`
`two separate IPRs, petitioner Samsung Electronics, Ltd. challenged Claim 1 and Claim 2
`
`(which depends from Claim 1), respectively, in view of Pirtm PCT alone or in combination
`
`with other art. In one IPR (IPR I), the PTAB issued a final written decision finding Claim 1
`
`patentable over Pirim PCT in combination with another reference. In the other (IPR II), the
`
`PTABdeclinedto institute an IPR for Claim 2 in view of Pirim PCT. The current ex parte
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`reexamination proceeding wasalso filed by Samsung, and representsits third attempt to
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`invalidate the patent on the basis of the Pirim PCT. Pirim PCT wasalso cited during the
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`original prosecution before the PTO, and fully considered bythe original examiner, and was not
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`relied on as a basis for rejecting any of the claims.
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`[5] Patent Owner demonstrates below that the combinations of the prior art, including Pirim PCT,
`
`relied on by the Examinersin the current reexamination proceeding do not render Claim 1
`
`obvious under 35 U.S.C. § 103. The combination of Pirim PCTandSiegel (a) does not disclose
`
`all elements of Claim 1 of the ’293 Patent; (b) would not have been combined bya Person of
`
`Ordinary Skill in The Art (7POSITA”) and (c) such combinations, if effected as proposed,
`
`would be inoperable. Similarly, the combination of Pirim PCT and Hirotafails for the same
`
`reasons.
`
`[6] Accordingly, Patent Owner requests that the PTAB reverse the decision of the Examiners and
`
`direct that a Certificate of Reexamination affirming Claim 1 of the ’293 Patent be issued.
`
`VI.A
`
`OVERVIEW OF THE ’293 PATENT
`
`[7] The ’293 patentis directed to a visual perception processor comprised of histogram
`
`calculation units (Abstract). The ’293 patent is the result of over three years of research and
`
`developmentresulting in improvements beyondthe disclosures of Pirim PCT by the same
`
`inventor, Patrick Pirim. The ’293 patent specifically describes the use of multiple histogram
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`calculation units that process the same parameter(s): “the choice of the parameter processed by
`
`each histogram calculation unit, the contents of the analysis output register 104 and the
`
`function fog? are determined by the A.P.1.” (the '293 patent 20:54-57). In at least one
`
`embodiment, the ’293 patent explains that “control unit 513 provides overall control and
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`Function to process parameters DATA(A), DATA(B)... described at 20:48-54 in conjunction with Figure 31b.
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`determines which of the parameters F, T, S$, V, D, pO, pi, ..., p15 are to be processed at a given
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`time by one or several dedicated polyvalent histogram unit(s).”” Ex. 1001 at 21:42—-47; FIG. 32
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`(figure below). npn
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`
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`PREALLEEAREAIDALLLREINAAD
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` re 16| ‘ste
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`
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`355nngpd
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`[8] The disclosures of the ‘293 patent are made directly in view of and, as a novel improvement
`
`over, a drowsiness detection system illustrated in Pirtm PCT (discussed in more detail below).
`
`VI.B
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`CLAIM CONSTRUCTION
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`VI.B.1 35 U.S.C. § 112, Paragraph Six Does Not And Should Not Apply
`
`VI.B.1.(i) The Examiners Erred in Adopting a § 112 (6) construction for Claim 1
`
`10
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`[9] Patent Owner respectfully requests that the Board consider and adoptits previous claim
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`construction of Claim 1 of the '293 as set forth in IPR I and IPR II.
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`[See IPR2017-01189,
`
`Institution Decision Paper 9 at pages 9-10 and IPR2017-00336 Final Written Decision, Paper38
`
`at pages 10-27 ). The IPR decisions did not find that construction under § 112, paragraph six
`
`was required or appropriate for any claim term, nor did the parties to the IPR orin this
`
`reexamination proceeding request the adoption of a § 112 (6) construction. The ’293 Patent
`
`wasoriginally examined in 2004, and Claim 1 was not found to include any terms requiring a §
`
`112 (6) construction. The *293 Patent has been the subject of two district court cases, one
`
`against petitioner Samsung and one against Canon,in which no party nor the Court proposed or
`
`adopted a § 112 (6) construction. Nevertheless, the Examiners here sua sponte have attempted
`
`for the first time to impose a § 112 (6) construction for the claim term “histogram calculation
`
`unit.” In view of the groundsfor rejection, the Examiners’ § 112 (6) interpretation is not only
`
`inconsistent with the Board’s and Courts’ construction, but it also was unnecessary to the
`
`Examiners’ decision.
`
`[10]
`
`IPR proceedings are akin to a reexamination proceedingsand are part of the prosecution
`
`record in construing the patent's claims. See Aylus Networks, Inc. v. Apple Inc., 856 F.3d 1353,
`
`1360 (Fed. Cir. 2017) (holding that statements made during an IPR are properly considered and
`
`relied upon in later claim construction). The PTAB (and its predecessor the BPAT) have
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`repeatedly admonishedthat, although it is permissible to change positions if warranted by the
`
`evidence as prosecution progresses (i.e. changes), “ideally the Examiner’s position would
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`remain consistent throughout prosecution.” Ex Parte Dressler, et al., Appeal No. 2012-011087,
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`11
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`2015 WL 996274, at *5 (P.T.A.B. Mar. 3, 2015). There is no reason in the present case to stray
`
`from the repeated prior interpretations of Claim 1,which did not impose § 112 (6).
`
`[11]
`
`In construing the term “at least two histogram calculation units for the treatment of the at
`
`least one parameter” both IPR I and IPR II, the PTAB specifically chose not to employ 35
`
`U.S.C. § 112 (6). (See IPR2017-01189, Institution Decision Paper 9 at pages 9-10 and
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`IPR2017-00336 Final Written Decision, Paper38 at pages 10-27). And, in both IPR I and IPR
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`II, the Petitioner (who is the Requester in this reexamination proceeding) did not present a
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`construction of “at least two histogram calculation units for the treatment of the at least one
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`parameter” under 35 U.S.C. § 112(6), which it was required to do if appropriate.?
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`[12]
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`Further, the Examiners have provided no compelling rationale as to why their newly
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`adopted, unrequested, and unnecessary 11" hour means-plus-function analysis should trump
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`and/or supersede the PTAB’s previous two analyses and the USPTO’s original prosecution, and
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`ignore the significant procedural history of this case. The PTAB’s prior review of claim
`
`construction, and the examiner’s original review in 2004, is entitled to a presumption of
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`administrative correctness. Generally speaking, the PTAB’s prior claim construction ruling on
`
`337 C.E.R. § 42.104(b)(3) requires the Petitioner in an Inter Partes Review to “identify the specific portions of the
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`specification that describe the structure, material, or acts corresponding to each claimed function” “[w]here the claim to
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`be construed contains a means-plus-function or step-plus-function limitation.”
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`12
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`the same claim terms is binding on the PTO. Nestlé USA, Inc. v. Steuben Foods, Inc., 2017-
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`1193 (Fed. Cir. Mar. 13, 2018).
`
`[13]
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`Additionally, in the pending Samsunglitigation (involving Requester and Patent Owner),
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`the parties did not seek to have the Court construe “at least two histogram calculation units for
`
`the treatmentof the at least one parameter” under 35 U.S.C. § 112(6), and the Court's
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`"Memorandum Opinion and Order” dated June 21, 2017 does not construe this term under 35
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`U.S.C. § 112(6). See generally, Ex. 11 (no construction of this term). Moreover, even in the
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`Request for Ex Parte Reexamination in the present proceeding, the Requester chose not to
`
`proposea construction of this term under 35 U.S.C. § 112, paragraphsix.
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`VI.B.1.(ii) Claim 1 Does Not Trigger A 35 U.S.C. § 112(6) Construction
`
`[14]
`
`tis presumed that § 112(6) does not apply to any claim absent a set of well-defined
`
`circumstances. As set forth in the MPEP § 2181, it is rebuttably presumed that 35 U.S.C. §
`
`112(6) does not apply to a claim elementthat does not include the term “means” or “step.” It is
`
`indisputable that Claim 1 does not include these “trigger” terms. Accordingly, it is presumed
`
`that 35 U.S.C. § 112(6) does not apply, and as set forth below Patent Ownerrespectfully
`
`submits that this threshold presumption has not been overcome.
`
`[15]
`
`The Final Rejection contendsthat the term “histogram calculation unit” is a nonce word.
`
`However, the claim language describes a definite structural interaction with other elements in
`
`the claim. As indicated by MPEP § 2181, “the fact that a particular mechanism...is defined in
`
`functional termsis not sufficient to convert a claim element containing that term into a ‘means
`
`13
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`for performing a specified function’” within the meaning of Paragraph 6. MPEP § 2181; see
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`also Zeroclick, LLC v. Apple Inc., 891 F.3d 1003 (Fed. Cir. 2018).
`
`[16]
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`Further, § 112(6) should not apply because the term “histogram calculation unit,” when read
`
`in the context of the specification and Claim 1 as a whole, contains sufficient defining structure.
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`[17]
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`As noted by MPEP § 2181, “paragraph 6 will not apply if persons of ordinary skill in the art
`
`reading the specification understand the term to have a sufficiently definite meaning as the
`
`namefor the structure that performs the function, even when the term coversa broadclass of
`
`structures or identifies the structures by their function.” For example, the term “computing
`
`unit,” when “read in light of the specification connoted sufficient, definite structure to one of
`
`skill in the art to preclude application” of Paragraph 6. MPEP § 2181, citing Inventio AG v
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`Thyssenkrupp Elevator Amers. Corp., 649 F.3d 1350, 1359-60 (Fed. Cir. 2011) (holding the
`
`term “computing unit” connoted sufficiently definite structure based on the connections
`
`between the unit and other componentsin the claim itself and based on the specification
`
`description of the term).
`
`[18]
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`Similarly, the term “histogram calculation unit,” when read in light of the specification,
`
`connotessufficient, definite structure. Although the claim is not necessarily limited to all the
`
`features of a particular embodiment, the term “histogram calculation unit” is no different in
`
`kind from the term “computing unit” cited in the MPEP. A “calculation unit” is, indeed, a form
`
`of “computing unit;” it both processes instructions and calculates results. Further, here the
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`“histogram calculation unit” is a componentofthe “visual perception processor,” i.e., a term
`
`14
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`that uses the term “processor” that has been found to be not a means + function term. It is the
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`componentthat acts on the supplied data in calculating a histogram.
`
`[19]
`
`Further, the patent specification extensively describes “histogram calculation unit.” Figure
`
`31a is equipped with parameter selection multiplexor 500 that can be configured through APIto
`
`select any of the parameters DATA for the processing by a histogram calculation unit 1 (see
`
`column 20:54-66), including selection of a common parameter by two histogram units as
`
`recited by Claim 1. Histogram calculation unit 1, in turn, can be a polyvalent calculation unit as
`
`described by the specification, for example in FIGs. 31a, 32, and at 8:44-9:26. The Final
`
`Rejection fails to address the embodiment of a histogram unit related to Claim 1 thatis reflected
`
`in Figures 31a, 32 and summarily says at page 22 that there is a “confusion” to the embodiment
`
`of Claim 1.
`
`[20]
`
`Claim 1 also, consistently with the specification, includes sufficient structure such that §
`
`112(6) clearly should not apply. As noted by MPEP § 2181, the Federal Circuit has held that
`
`terms that include a functional component such as “eyeglass hanger member” and “eyeglass
`
`contacting member” are not subject to § 112(6) where the “claims themselves contain sufficient
`
`structural limitations for performing these functions. MPEP § 2181, citing Al-Site Corp. v. VST
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`Int'l, Inc., 174 F.3d 1308, 1317-19 (Fed. Cir. 1999) (claim recital of structure, “an attaching
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`portion attachable to a portion of said frame of said pair of eyeglasses to enable the temples of
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`the frame [to be opened and closed]” precluded application of § 112(6)).
`
`[21]
`
`Similar to the claim in Al-Site Corp., Claim 1 of the ’293 patent recites a physical device,
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`namely a visual perception processor that includes, among other things: 1) a “data bus” that
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`carries a digital signal for a parameter and, 2) a “time coincidencesbus.” Further, each
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`histogram calculation unit based on this structural interconnection determines: 3) “a binary
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`classification signal” that is sent to the “time coincidences bus,” and 4) a validation signalis
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`produced from the “time coincidencesignals” from the time coincidencesbus, so that the
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`calculation of the histogram dependsontheclassification signals. These interdependent
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`structural connection elements clearly identify sufficient structure such that application of §
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`112(6) is improper.
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`[22]
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`As additional evidence ofthe structure recited by Claim 1, dependent Claim 2 recites
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`“several histogram calculation units organized into a matrix, wherein each of the calculation
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`units is connected to the data bus and to the time coincidences bus.” See FIG. 32 of the ’293
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`patent and related disclosures of the specification, which are discussed in the next section.
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`VLB.1.Gii)
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`The Proposed Means-Plus-Function Construction Omits
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`Structure
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`[23] While Patent Ownerstrongly disputes that a § 112(6) construction is proper, Patent Owner
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`further points out that the Examiners’ means-plus-function claim construction actually omits
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`significant portions of the structure described in the specification and drawings for performing
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`the claimed function. *
`
`[24]
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`For example, memory 100 (shownin FIG. 3 of the '293) is not mentioned in the Examiners’
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`proposed construction. Moreover, at least portions of the specification identified with the
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`following headings disclose multiple embodiments of structure in Claim 1 that have not been
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`identified or cited by the Examiners when formulating a claim construction: VIII. Self-
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`4 A proper BRI analysis should identify correspondingstructures in all disclosed embodiments of the claim.
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`adaptation (col. 11, lines 9-53); A. First Embodimentof Classifier (col. 11, line 54 throughcol.
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`12, line 14); B. Second Embodiment of Classifier (col. 12, lines 15-42); and C. Third
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`Embodimentof Classifier (col. 12, line 43 through col. 13, line 36). This list is merely
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`exemplary and is not exhaustive. Accordingly, in view ofthis significant disparity between the
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`Examiners’ proposed construction and the corresponding structure set forth in the specification,
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`it is clear that the Examiners’ proposed meansplus function construction is inappropriate.
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`VI.B.1.(iv)Patent Owner's Argument Prevails Even Under a § 112(6) Claim
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`Interpretation
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`[25]
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`Although Patent Ownerdisagrees with the assertion that a 35 U.S.C. § 112(6) claim
`
`construction should apply, Patent Owner submits that, nevertheless, Claim 1 is patentable over
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`the combination of references cited under both a proper 35 U.S.C. § 112(6) claim construction
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`as well as a BRI-based claim construction for the same reasons presented herein. Therefore,
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`Patent Owner respectfully requests reversal of the rejections pending in Grounds 1 and 2 even if
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`the proposed construction under 35 U.S.C. § 112(6) is adopted.
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`VI.B.2 Color Is Not an Individual Parameter
`
`[26]
`
`Patent Owner agrees that color is not an individual parameter as pointed out by the
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`Examiners at pages 30-31 of the Final Rejection. Indeed, in the Reply to the Office Action,
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`Patent Ownerdid, in fact, imprecisely refer to a “color” as parameter. This was intended to
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`mean that in view of the well-established record, an individual color component such as Hue (in
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`HSV color space) or Red (in RGB color space) or a scalar composite value derived from the
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`color components in a predetermined fashion is a parameter (such as a 24-bit composite
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`mentioned on the page 17 of the Reply). Patent Ownerdid not intend to give the impression
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`that it was taking the position that coloritself qualifies as a parameter.
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`VI.B.3 The Final Rejection Improperly Interprets the Term “Two Histogram Units”
`
`[27]
`
`The claim language “the histogram calculation units being configured to form a histogram
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`representative of the parameteras a function of a validation signal and to determine by
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`classification a binary classification signal ... wherein the classification signalis sent to the
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`time coincidences bus, and wherein the validation signal is produced from time coincidences
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`signals from the time coincidence bus so that the calculation of the histogram depends on the
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`classification signals carried by the time coincidence bus.” should be interpreted as “the
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`histogram calculation units each being configured[etc.] ...”
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`[28]
`
`The claim recites: "wherein the validation signal is produced from time coincidences
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`signals from the time coincidence bus so that the calculation of the histogram depends on the
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`classification signals carried by the time coincidence bus" (emphasis added). For "the
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`classification signals" (plural) from this portion of the claim to have an antecedentbasis,
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`portion reciting "the histogram calculation units being configured ... to determine by
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`classification a binary classification signal " must be interpreted to mean "the histogram
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`calculation units each being configured”so that each histogram calculation unit is configured to
`
`determine "a binary classification signal." Otherwise, there would be no antecedentbasis for
`
`the term "the classification signals.” Such an interpretation is consistent with the specification
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`and drawings. For example, in the specification, each HCU is shownseparately and formsits
`
`own histogram. See, e.g., Figs. 4 and 32 and accompanying text. This is not an attempt to
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`rewrite the claim as the Examiners contend in the Final Rejection at Page 26; instead, the
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`construction is consistent with the specification, and does not impose a construction on the
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`specification beyond whatis disclosed (which the Examiners’ construction does — see next
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`paragraph).
`
`[29]
`
`The Final Rejection at page 27 contends that Claim 1 could be interpreted as ‘the histogram
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`calculation units [together], being [collectively] configured,” to form a histogram according to
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`the specification as indicated above. In other words, that bus 11] provides classification for all
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`the present HCUs, but because there is a single [singular] “parameter” and the classification
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`signal results from comparison of “the parameter,” a validation signal is producedfrom
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`amongthe time coincidences bus signals and that the “the histogram calculation units [both]
`
`being configured,” form only a single histogram.’
`
`[30]
`
`This interpretation, however,is clearly incorrect. One reasonthisis true is becauseit
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`ignoresthe limitation of “at least two histogram calculation units” (plural).
`
`In the
`
`interpretation proposed by the Examiners, the two histogram units would compute a single (i.e.,
`
`the same) histogram and thus must share the same histogram memory. In this case, the two
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`histogram units necessarily would haveto use the sameclassification signal, and accordingly
`
`the same validation signal in order to function as described in the specification. That, however,
`
`effectively results in a single histogram computation unit, i.e., two units that jointly use the
`
`same inputs, operation, and results are not two histogram units as required by the plain
`
`language of the claim. There is no such unit disclosed in the specification.
`
`[31]
`
`This is further demonstrated by the claim term “classification signals” which must be
`
`interpreted as plural within the “at least two histogram calculation units” claim term. This
`
`result can be seen from direct inspection of the claim language: “at least two histogram
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`calculation units ...the histogram calculation units being configured to ... determine by
`
`classification a binary classification signal resulting from a comparison of the parameter and a
`
`selection criterion C, wherein the classification signalis sent to the time coincidences bus, ...
`
`the calculation of the histogram dependson the classification signals carried by the time
`
`coincidence bus.”
`
`[32]
`
`The Final Rejection alleges that its interpretation is supported by the ’293 patent at 21:5-11.
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`However, the opposite is actually true. See, for example, 21:3-6 where the specification teaches
`
`that “FIG. 40 illustrates a functional block diagram of multiple histogram calculation units la
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`(e.g., from FIG. 31a).” FIG. 31a comprises “histogram calculation unit 1” (the ’293 patentat
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`21:20-23, 21:34-35). Importantly, all the embodiments of the “histogram calculation unit 1”
`
`(e.g., in FIGs 1,3,4, 25 of the '293) have their own analysis memory 100 that stores the
`
`histogram (8:62-64) and its own classifier 101 (9:26-35). In all the embodiments, each
`
`histogram unit computesits own validation signal (see also the disclosure at column 17 of the
`
`*293 Patent of several embodiments of the coincidence block that generate the signal). Thus,
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`the specification does not disclose and actually teaches away from the operation suggested by
`
`the Examiners. Accordingly, this renders the Examiners’ proposed construction unsupported
`
`by the specification and by the intrinsic record as a whole.
`
`[33]
`
`The disclosed embodiments operate consistently with Patent Owner's position, which
`
`accurately reflects the plain language of the disclosure. In contrast, the Examiners’ position
`
`conflicts with the plain language of the disclosure as established above. The Board should
`
`construe the claims in accordance with the plain language of the claim in light of the disclosure
`
`of the patent. See Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015) “A
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`construction that ... does not reasonably reflect the plain language and disclosure will not pass
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`muster.”); see also In re Smith Int’l Inc., 871 F.3d 1375 (Fed. Cir. 2017) (broadest reasonable
`
`interpretation in light of specification is “an interpretation that corresponds with what and how
`
`the inventor describes his invention in the specification,i.e., an interpretation that is “consistent
`
`with the specification.’”); see also In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.
`
`Cir. 2004) and MPEP § 2111.
`
`[34]
`
`For all the reasons above, the claim language “the histogram calculation units being
`
`configured to form a histogram representative of the parameter as a function of a validation
`
`signal and to determine by classification a binary classification” should be interpreted as “the
`
`histogram calculation units each being configured...”
`
`VI.B.4 “a histogra