`
`UN1TED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PA TENT TRIAL AND APPEAL BOARD
`
`bx parte IMAGE PROCESSING TECHNOLOG1ES, LLC
`Patent Owner and Appellant
`
`Appeal 2019-004305
`Reexamination Contro1 90/014,056
`United States Patent 6 959,293 B2
`Techno1ogy Center 3900
`
`Before JOHN A. JEFFERY JONI Y. CHANG and
`JENNIFER L. MCKEOWN, Admini"ltrative Patent Judges.
`
`JEFFERY, Administrative Patent Judge.
`
`Petitioner LG Ex-1007, 0002
`
`
`
`Appeal 2019-004305
`Reexamination Control 90/014,056
`Patent US 6 959,293 B2
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`DECISION ON APPEAL
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`Appellant appeals under 35 U.S.C. §§ 134 and 306 the Examiner's
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`decision to reject claim 1. 1 We have jurisdiction under 35 U.S.C. §§ 134
`
`and 306, and we heard the appeal on August 1, 2019.
`
`We REVERSE.
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`STATEMENT OF THE CASE
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`This proceeding arose from a request for ex parte reexamination filed
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`on December 15 2017, of United States Patent 6 959.293 "'293 patent.,).
`
`issued to Patrick Pirim, on October 25, 2005.
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`The '293 patent describes a visual perception processor with
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`histogram calculation units that (I) receive data via a single data bus and (2)
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`supply classification infonnation to a tin1e coincidences bus. 111 a prefe1Ted
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`embodiment, the histogram ca1cu1ation units are organized into a matrix.
`
`See generally '293 patent Abstract. Claim 1 is illustrative of the invention
`
`and reproduced below:
`
`1 . A visual perception processor for automatica1.1y
`detecting an event occurring in a multidimensional space
`(i, j) evolving over time with respect to at least one
`digitized parameter in the fonn of a digital signal on a data
`bus_, said digital signal being in the fonn of a succession
`aijT of binary numbers associated with synchronization
`signals enabling to define a given instant (T) of the
`n:mltidimensional space and the position (i, j) in this space.
`the visual perception processor comprising:
`
`the data bus;
`
`L Appellant identifies Image Processing Technologies LLC as the real party
`in interest. App. Br. 5.
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`2
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`Petitioner LG Ex-1007, 0003
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`Appeal 2019-004305
`Reexamination Control 90/014,056
`Patent US 6 959,293 B2
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`a control unit·
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`a time coincidences bus carrying at least a time
`coincidence signal; and
`
`at least two bistogra1n calculation. unjts for the treatment of
`the at least one parameter, the histogram calculation units
`being configured to fonn a histogram representative of the
`parameter as a function of a validation signal and to
`determine by classification a binary classification signal
`resulting from a comparison of the parameter and a
`selection criterion C, wherein the classification signal is
`sent to the time coi11cidences bus, and wherein the
`validation signal is produced from time coincidences
`signals from the time coi11cidence bus so that the
`calculation of the histogram depends on the classification
`signals canied by the time coincidence bus.
`
`RELATED PROCEEDfNGS
`
`This appeal is said to be related to various proceedings, namely: (])
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`two district comt cases one of which is said to be currently pending; and (2)
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`two inter partes review proceedings. App. Br. 5. 2 In one cited inter parte1;_;
`
`review proceedi11g, Sam .. ,·img Hlectronics Co .. Ltd. v. image Proce ·sing
`
`Technologies LLC IPR2017-00336 PTAB May 9, 2018) ("'336 IPR"),
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`another panel of this Board held, among other things, that claim 1 of the
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`'293 patent was not shown to be unpatentable as obvious over Piritn-a
`
`:! Throughout this opinion we refer to: ( l) the Final Office Action mailed
`September 7, 2018 ("Pinal Act."); (2) the Appeal Brief filed January 7
`2019 ("App. Br.")· (3) the Examiner's Answerinailed Febn1ary 12, 2019
`("Ans.'); and (4) the Reply Brief filed April 11 , 2019 ("Reply Br.").
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`3
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`Petitioner LG Ex-1007, 0004
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`Appeal 2019-004305
`Reexamination Control 90/014,056
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`prior art reference at issue here-----combined with varjous other prior art
`
`references that are not at issue here. See '336 IPR, 10-76.
`
`In the other cited inter partes review proceeding, Samsung Electronics
`
`Co., Ltd. v. Image Processing Technologies LLC, IPR2017-01189 (PTAB
`
`Aug. 18, 2017) ('" 1189 IPR"), another panel of this Board denied institution
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`of inter partes review because the Petitioner did not de1nonstrate a
`
`reasonable likelihood that various claims of the '293 patent other than claim
`
`1 were unpatentable as obvious over either Pirim alone, or Pirim combined
`
`with various other prior ait references that are not at issue here. See ' 1 189
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`IPR, 8-27.
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`THE REJECTIONS
`
`The Examiner rejected claim 1 under 35 U.S.C. § 103 as unpatentable
`
`over Pirim (WO 99/36893 A 1; published July 22, 1999) and Howard Jay
`
`Siegel et al., PASM: A Partitionahle SIMD/MIMD System/or Image
`
`Processing and Pattern Recognition, 30 IEEE Trans. on Computers 934-45
`
`(1981) ("Siegel''). Final Act. 9-15.
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`The Examiner rejected claim I under 35 U.S.C. § 103 as unpatentable
`
`over Pirim and Hirota (US 6, 118,895; issued Sept. 12, 2000). Final Act. 15-
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`18.
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`THE OBVIOUSNESS REJECTION OVER PIR.IM AND SIEGEL
`Regardi11g independent claim 1, the Examiner finds that Pirim
`
`discloses, among other things, a visual perception processor with at least two
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`histogram ca]culation units, namely histogram fonnation blocks 24-29 in
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`4
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`Petitioner LG Ex-1007, 0005
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`Figure 12, for treating at least one parameter, namely "SR," "V," ''VL,"
`
`"DI," and "x(m)1," and "y(m)1." Final Act. l 1- 15; Ans. 48-51. According
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`to the Examiner, these units are configured to: (1) form a histogram
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`representative of the parameter as a function of a validation signal; and (2)
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`detennine by classification a binary classification signal resulting from
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`comparing the parameter and a selection criteria, where (a) the classification
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`signal is sent to a time coincidences bus 23, and (b) the validation signal is
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`produced from time coincidences signals from that bus so that the
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`histogram' s calculation depends on the classification signals catTied by the
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`bus. Fina1Act.1 2- 15;Ans.5 l
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`Despite finding that Pirim discloses every element of claim l , the
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`Exruniner nonetheless cites Siegel "to the extent that the Patent Owner ...
`
`argues tliat the portion at 37 in Pirim PCT fails to disclose two histogram
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`calculation units treating the same parameter because the axes are rotated."
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`Final Act. 12-13. According to the Examiner, Siegel teaches parallel
`
`processors that each process and fonn a histogram of the same parameter,
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`and, in light of this teaching, concludes that the claim would 1iave been
`
`obvious. !cl. at 12- 15; Ans. 5 l.
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`Appellant argues, among other things, that not only is the Exatniner's
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`claim construction under 35 U.S.C. § 11 2, paragraph six, erroneous, the
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`claim is patentable over the cited ptior art in any event App. Br. L0-17; see
`
`also Reply Br. 12-13. Appellant also contends that the Examiner not only
`
`improperly interprets the recited two histogratn calculation units, the
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`Examiner's reliance on Pirim is also said to be misplaced because Pirim
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`does not disclose two histogram calculation units configured to form a
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`5
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`Petitioner LG Ex-1007, 0006
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`Appeal 2019-004305
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`histogram of a common parameter, but rather these units are said to process
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`a different parameter-a fact emphasized by the Board in the '336 IPR
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`proceeding. App. Br. 33-44; Reply Br. 14- 16, 24--27. Appellant adds that
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`not only is there no motivation to combine Pirim and Siegel as the Examiner
`
`proposes, the proposed combination is inoperable in any event. App. Br.
`
`48- 57; Reply Br. 18---24, 27-19.
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`ISSUES
`
`(1) Under 35 U.S.C. § 103, has the Exan1iner eITed in rejecting claim
`
`1 by finding that Pirim and Siegel collectively would have taught or
`
`suggested a visual perception processor with at least two histogram
`
`calculation units for treating at least one digitized parameter in the form of a
`
`digital sjgnal on a data bus, where the units are configured to ( 1) form a
`
`histogram representative of the parameter as a function of a validation
`
`signal, and (2) detennine by classification a binary classification signal
`
`resulting from comparing the parameter and a selection criteria, where (a)
`
`the classification signal is sent to a time coincidences bus, and (b) the
`
`validation signal is produced from time coincidences signals from that bus
`
`so that the histogram's calculation depends on the classification signals
`
`carried by the time coincidences bus?
`
`(2) Is the Examiner's combining the teachings of these references
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`supported by articulated reasoning with some rational underpinning to
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`justify the Examiner's obviousness conclusion?
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`6
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`Petitioner LG Ex-1007, 0007
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`Appeal 2019-004305
`Reexamination Control 90/014,056
`Patent US 6,959,293 B2
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`ANALYSIS
`
`As noted previously, the patentability of claim I of the '293 patent
`
`was at issue in the related '336 IPR proceeding. There, another panel of this
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`Board held, among other things, that claim l of the '293 patent was not
`
`shown to be unpatentable as obvious over Pirim-
`
`the very reference at issue
`
`here--but combined with various other prior art references that are not at
`
`issue here. See '336 IPR 10--76.
`
`That is, the earlier panel did not address the particular obviousness
`
`issue here that is based on Pirim combined with either Siegel or Hirota, for
`
`the latter two references were not before the earlier panel in the related IPR
`
`proceedings. Nevertheless, the panel's constn1ction of claim 1 and its
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`findings and conclusions regarding Pirim in the ' 336 fPR are relevant here.
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`1 n the ' 336 IPR, the earlier panel construed "the [ at least two]
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`histogram calculation units being configured to form a histogram
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`representative of the parameter" as recited in claim 1 as "the at least two
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`histogram calculation units being configured to each form a histogram
`
`representative of at least one common parameter." See ' 336 IPR 14
`
`( emphasis in original). In arriving at this constrnction, the earlier panel
`
`noted the 16 polyvalent histogram calculation units la00 to la33 in the '293
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`patent's Figure 32, where each unit has access to various parameters,
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`inc1udin° luminance "L "tone "T " saturation "S " speed "V " and direction
`~
`0
`'
`'
`'
`"D," via bus 510. Id. at 13 (citing '293 patent, col. 21, II. 37---63). As the
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`earlier panel inclicated, each histogram calculation unit can not only be
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`timeshared among different parameters during each frame, but also calculate
`histograms and associated statistics for two or more parameters. See '336
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`7
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`Petitioner LG Ex-1007, 0008
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`IPR 13 (citing '293 patent col. 21, II. 18-36). The panel added that control
`
`unit 513 determines which parameter to process at a given time by one or
`
`several of the histogram calculation units. See '336 IPR 13-14 (citing '293
`
`patent; col. 21 , II. 42-47 .
`
`Notably the panel in the '336 IPR fotmd that Pirim does not disclose
`
`at least two histogram calculation units being configured to each fom1 a
`
`histogram representative of at least one common parameter consistent with
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`the panel's constn1ction. See 336 IPR 46. In reaching this finding the
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`panel emphasized that Pirim's Figure 12 shows each histogram fonnation
`
`block 24 to 29 processing a d[fferent parameter-not the same parameter.
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`Id. That is, the panel found that each histogram formation b1ock 24 to 29
`
`processes a different parameter namely luminance, speed direction, time
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`constant, and x and y positions, respectively, such that no two blocks are
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`configured to process the same parameter as required by claim I. Id. at 47. 3
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`Given these findings, the Examiner's reliance on Pirim is problematic
`
`on this record. Although Pirim' s Figure 12 shows histogram calculation
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`units 24 to 29 that each treat their respective parameters, they are not
`
`configured to each form. a histogram representative of at lea~t one common
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`parameter consistent with the earlier panel's constn1ction noted above. See
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`'336 IPR, at 46-47. Accord App. Br. 46-48· Reply Br. 25-26 (11oting this
`
`:- Notably, the earlier panel's findings in this regard were made despite
`histogram fonnation blocks 25 and 26 both receiving binary validation
`signal "VL" in Pirim s Figm·e 12-the only such blocks receiving that
`signal. See Pirim 23 (noting that binary validation signal ' VL" indicates
`whether the result of the speed and oriented direction is valid).
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`8
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`Petitioner LG Ex-1007, 0009
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`Appeal 201 9-004305
`Reexamination Control 90/014,056
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`point); Ans. 45 (acknowledging that each processing block in Pirim 's Figure
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`12 processes a different parameter).
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`To the extent the Examiner finds that the functionality associated with
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`Pirim's Figures 15A and 158 teaches multiple histogram calculation units
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`configured to treat a common parameter, ostensibly by simultaneously
`
`processing a parameter such as a pixel's x-position as the Examiner seems to
`
`suggest (see Final Act. 12; Ans. 50), such a finding is problematic on this
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`record, for it conflicts with the earlier panel's findings in this regard. As the
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`earlier panel indicated, each histogram fonnation unit in Pirim is configured
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`to fonn a histogram for a different rotated axis-not the same axis. See '336
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`IPR 47-48 (citing Pirim 37; Figs. 15A- B). Given these facts, the earlier
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`panel held that the Petitioner in that case did not show that Pfrim wou1d have
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`taught or suggested plural histogram calcu]ation units configured to fom, a
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`histogram representative of at least one common parameter as claim 1
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`requires. See '336 IPR 48.
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`Apparently recognizing this deficiency, the Examiner nonetheless
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`cites Siegel "to the extent that the Patent Owner ... argues that the portion at
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`37 in Pirim PCT fails to disclose two histogram calcu1ation units treating the
`
`same parameter because the axes are rotated." Final Act. 12- 13. According
`
`to the Examiner, Siegel teaches parallel processors tbat each process and
`
`fonn a histogram of the same parameter, and, in light of this teacbi11g,
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`concludes that the claim would have been obvious. Id. 12- 15; Ans. 51. In
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`reachi11g this conclusion, the Examiner reasons that, in view of Siegel, it
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`would have been obvious to add another undisclosed element, which the
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`Examiner labels '"28a," that would be adjacent and similar to Pirim's
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`9
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`Petitioner LG Ex-1007, 0010
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`histogram fonnation block 28 in Figure 12, so that both blocks would
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`process the same parameter, namely x-position, for different pixel segments.
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`Ans. 50-51. Alternatively, the Examiner reasons that, in light of Siegel, it
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`would have also been obvious for ordinarily skil1ed artisans to simply
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`configure two of Pirim's existing histogram calculation units to treat the
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`same paran1eter to increase processing speed. Ans. 51.
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`This position is problematic on this record. To be sure, para11el
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`processing is a well-known technique that uses 1nultiple processors to
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`execute multiple computer operations simultaneously. See Steven M.
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`Kaplan, WILEY ELECTR1CAL & ELECTRONICS ENOfNEERTNO DICTION AR y 552
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`(2004) (defining "parallel processing"); see also SAP Am. v. JnvestPic, !,LC,
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`898 F.3d 1161, 1170 (Fed. Cir. 2018) (holding that recited parallel
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`processing computer architectures did not add significantly more to the
`
`abstract idea in that case because the parallel processing architectures were
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`no different than those in existing systems).
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`But as Dr. Bovik explains, adding histogram units to Pirim's circuit in
`
`Figure 12 as the Examiner proposes would not increase processing speed
`
`because the histograms would be co1npleted almost instantaneously as the.
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`last piece of data is received in the histogram units. See Alan Conrad Bovik
`Declaration Under 37 C.F.R. § J .132, dated June 26, 2018, iJ 20 (''Bovik
`Deel."). That is, even with multiple histogram units, each unit would still
`
`operate on the same data at the same speed as Dr. Bovil< indicates. Id.
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`We likewise find problematic the Exam111er's proposal to add another
`
`undisclosed element, which the Examiner labels "28a,'' that would be
`
`adjacent and similar to Pirim's histogram fonnation block 28 in Figure 12,
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`10
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`Petitioner LG Ex-1007, 0011
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`so that both blocks would process the same parameter, namely x-position,
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`for different pixel segments. See Ans. 50--51. Notably, this modification
`
`would not accelerate histogram calculation as the Examiner seems to suggest
`
`(see Final Act. 13), but would rather slow it down by, among other things,
`
`combining the units' respective histograms together after receiving the last
`pixel. Bovik Deel. ,r 21. As Dr. Bovik explains, this process would require,
`among other things: ( I) reading each histogram's values out of memory; (2)
`
`adding these values together; and (3) writing them back into memory. Id
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`T hese slowdowns resulting from this requisite histogram aggregation
`
`undercut the Examiner's speed-enhancement rationale for the proposed
`
`combinati011.
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`Also, the Exaniiner's proposed modification would generate
`
`validation signals based on classifications of different pixels-an anomalous
`
`result given the purpose of Pirim 's validation signal, namely to detern1ine
`
`whether a single pixel should be included in a histogram as Dr. Bovik
`indicates. Id. ,r,r 23- 24. To suggest that Dr. Bovik's declaration is somehow
`" incorrect" and based on a ''wrong assumption" as the Examiner asserts
`
`(Ans. 53- 54) ignores the fact that the Exam.iner's proposed combination is
`
`premised on using datajj•·om d[fferent pixel segments to process the same
`
`parameter. See Final Act. 13; Ans. 51. As Appellant indicates, under the
`
`proposed combination, tJ1is data would be unrelated, at least with respect to
`
`its respective Tegions. Reply Br. 27- 29. Therefore~ the proposed
`
`combination-not Pirim itself- would use a classification signal from a
`
`different pixel to decide whether to include a current pixel in a histogram,
`which is an anomalous result at best. See id.; see al.so Bovik Deel. ,r,r 23- 24.
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`11
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`Petitioner LG Ex-1007, 0012
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`Appeal 201 9-004305
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`To fhe extent the Examiner finds otherwise, the evidence on this record does
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`not substantiate such a finding.
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`As Dr. Bovik explains, using the same two classification signals for
`
`each of two histogram calculation units in the present invention is important
`
`because it allows the classification results from the two units to be accounted
`
`for when the data associated with each pixel is evaluated for addition to the
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`two histograms. Bovik Deel. ,i 14. Notably, the claimed invention enables
`
`evaluating data from two different perspectives simultaneously. Id. For
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`example, the claimed invention allows for simultaneously calculating ( l )
`
`one histognun for pixels having, for example, a strong red and weak green
`
`component, and (2) another histogram for pixels having a strong red
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`component and a strong green component. Id.
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`To be sure, the Examiner's maps, among other things, Pirim's binary
`
`validation signal "VL" to the recited "parameter" (see Final Act. 12; Ans.
`
`49)-a signal that is routed to both histogram blocks 25 and 26 as shown in
`
`the partial detail view of Pi.rim's Figure 12 below:
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`12
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`Petitioner LG Ex-1007, 0013
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`constant; (5) x position; and (6) y position that are represented by their
`
`associated histograms from their respective histogram formation blocks.
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`That the earlier panel did not find that this particular validation signal
`
`is a "parameter" as claimed, at least in the sense that it is treated by at least
`
`two histogram calculation units to form a histogram representative of that
`
`parameter as a function of a validation signal, only further underscores tl'lis
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`point. See '336 IPR 46-47. That is, earlier panel found that the only signals
`
`in Pi rim's Figure 12 that conespond to a recited "parameter" are those
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`directed solely to a i-espective histogra1n fonnation block 24 to 29, namely:
`
`( 1) luminance; (2) speed; (3) direction; ( 4) time constant; (5) x position; and
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`(6) y position. See id. The annotated version of Pirim's Figure 12 on page
`
`46 of the '336 IPR decision is telling in this regard, for it labels each of the
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`six signals above clearly and unambiguously, yet does not label the binary
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`validation signal "VL" as shown below.
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`14
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`Petitioner LG Ex-1007, 0015
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`Appeal 2019-004305
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`·t4r~=~~t~~.;~\~~~
`:{i$-·~~~$)
`
`J ~\,~-x~~~~:~::-::
`•:~ f::_::__~;::;:;;:~:~~;:;v ~~~ =~~;::-:;:f:3/
`h:t ~"' ¾':~~~'f>;,~
`
`Pirim's annotated Figure 12 on page 46 of the '336 IPR Board decision
`
`This omission is consistent with the earlier panel's finding that no two
`
`histogram.formaUon blocks are configured to process the same parameter as
`
`required by claim 1. Id. at 47. It follows, then, that tlle binary validation
`
`signal "VL'' is not such a parameter despite its routing to histogram
`
`fom1ation blocks 25 and 26. Therefore, the Examiner's mapping Pirim's
`
`binary validation signal ''VL" to the recited "parameter" (Final Act. 12; Ans.
`
`49) is inconsistent with the earlier paneJ 's findings in this regard and is,
`
`therefore, untenable on this record.
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`15
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`Petitioner LG Ex-1007, 0016
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`Therefore, we are persuaded that the Examiner erred in rejecting
`
`claim 1 as obvious over Pi.rim and Siegel. Because this issue is dispositive
`
`regarding our reversing the Examiner's rejection of this claim, we need not
`
`address Appellant's other associated arguments.
`
`THE OBVIOUSNESS REJECTION OVER PIRIM AND HIROTA
`
`Regarding independent claim 1, the Examiner reiterates the findings
`
`from Pirim and its acknowledged deficiencies but cites Hirota for teaching
`
`using two "histogram calculation units," namely memories 202 and 204 in
`
`fig1u-e 13, to process the same color parameter. Final Act. 16-18.
`
`According to the Exarni11er, it would have been obvious to add another
`
`undisclosed element which the Examiner labels "204a ' that would be
`
`adjacent and sh11ilar to element 204 in Hirota's Figure 13 to process the
`
`pixels' video or luminance data. (cid:157) Final Act. 17· Ans. 56. Alternatively, the
`
`Exantiner concludes that it would have been obvious to use two or more
`
`"copies" of Hirota s system in Figure 13 to fonn two or more histograms of
`
`each parameter. Final Act. 17. In yet another alternative, the Examiner
`
`concludes that it would have been obvious to configure two of Pirim's
`
`existing histogram calculation units to treat the same parameter. Id.
`
`On this record we find these conclusions problematic essentially for
`
`the reasons indicated by Appellant. First it is unclear how or why an
`
`additional undisclosed element similar to memory 204 in Hirota's Figure 13,
`
`4 In response to Appellant's argument (App. Br. 57-61), the Exa1niner
`clarifies that the additional undisclosed element would be added to Hirota's
`Figure 13. See Ans. 56; see also Reply Br. 29-32 (noting this clarification).
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`16
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`Petitioner LG Ex-1007, 0017
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`which the Examiner labels ''204a," would be added adjacent to that memory
`
`in that figure to process the pixels' video or luminance data as the Examiner
`
`proposes. Final Act. 17; Ans. 56. As Appellant indicates (App. Br. 60-61;
`
`Reply Br. 29- 32), the Examiner' s proposal to somehow modify Hirota with
`
`its own teachings to ostensibly arrive atthe clain1ed invention by combining
`
`this modification witll Pi rim is the product of impennissible hindsight and is,
`
`therefore, untenable on this record.
`
`Nor do we find availing the Examiner's conclusion that it would have
`
`been obvious to configure at least two of Pirim's histogram calculation units
`
`to treat one parameter as the Examiner proposes to increase "flexibility"
`
`even assuming, without deciding, that Hirota' s memories 202 and 204 in
`
`Figures 4 and 13 are "histogram calculation units" consistent with the
`
`Examiner's mapping. See Final Act. 16-18. As noted in the Abstract,
`
`Hirota disc1oses a copying machine that detennines automaticalJy a
`
`document type, such as color and black-and-white documents, based on
`
`histograms. Hirota's Figures 4 and 13, which differ only with respect to an
`
`edge detection circuit 220 and AND gate 222 in Figure 13, show a histogram
`
`generator whose memories 202 and 204 each receive a value signal "VH"
`
`that is based on 8-bit R, G, and B input data. See Hirota, col. 7, 11. 20--37;
`
`col. I 6, I. 63-col. 17, 1. 66. In both figures, a comparator 218 compares the
`
`difference between the minimum and maximum R, G, B input data to a
`
`Teference value. Hirota, col. 8. 11. 15-22, col. 17, II. 24-3 1. If the reference
`
`value is lower in Hirota' s Figure 4, the data is written to memory 204.
`
`Hirota, col. 8, 11. 15- 22. But when the reference value is lower in Figure 13,
`
`the data, along with the output from the edge detection circuit, is sent to the
`
`17
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`Petitioner LG Ex-1007, 0018
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`
`
`Appeal 201 9-004305
`Reexamination Control 90/014,056
`Patent US 6,959,293 B2
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`AND gate whose output is sent to memory 204. See Hirota, col. 17, 11. 24--
`
`45.
`
`In either case, two separate components, namely the histogram
`
`memories 202 and 204, each receive a color-based value signal " VH" and, in
`
`that sense, treat the same color-based parameter. But to say that it would
`
`have been obvious to sorr1ehow use two or more "copies" of Hirota's system
`
`in Figure 13 to form two or more histograms of each parameter in Pi1im's
`
`system as the Examiner indicates (Final Act. 17) strains reasonable limits on
`
`this record. To be sure, an obviousness detennination based on teachings
`
`from multiple references does not require an actual, physical substitution of
`
`elements. In re Mautte!, 686 F.3d 1322, 1332 (Fed. Cir. 201 2) (citations
`
`omitted). Nor is the test for obviousness whether a secondary reference's
`
`features can be bodily incorporated into the structure of tbe ptimary
`
`reference. In re Keller, 642 F.2d 413, 425 (CCPA 198 1 ). Rather, the test is
`
`what the combined teachings of the references would have suggested to
`
`those of ordinary skill in the art. Id.
`
`Nevertheless, the Examiner's reasoning in this regard is unclear at
`best. First, it is unclear on this record how "copies" of Hirota' s system in
`
`Figure 13 could or would be used in Pirim' s system to treat the same
`
`parameter which, as noted previously, is designed such that each histogram
`
`fonnation block 24 to 29 treats a different parameter- a point emphasized
`
`by the earlier panel in the '336 IPR. See '336 IPR 46--47. To the extent that
`
`the Examiner concludes that it would been obvious to somehow modify one
`
`or more of Pirim's histogram fonnation b]ocks 1 such as block 24 that enables
`
`forming a histogram for lutninance values based on a received delayed
`
`18
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`Petitioner LG Ex-1007, 0019
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`
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`Appeal 201 9-004305
`Reexamination Control 90/014,056
`Patent US 6,959,293 B2
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`digital video signal "SR," with some sort of dual-melllory arrangelllent that
`
`receives a color-based value signal such as that shown in Hirota's Figures 4
`
`or 13 (see Ans. 63 ), we fail to see how or why such an arrangement could or
`
`would be used in connection with any of Pirim 's histogram fonnation blocks
`
`2A to 29 in Figure 12 that process entirely different parameters, namely
`
`luminance, speed, direction, ti1ne constant, and x and y positions,
`
`respectively. 111 short, no two blocks are configured to process the same
`
`parameter, let alone a color parameter. See Piri1u 25-26; see also '336 IPR
`
`47 (noting these different parameters) . To the extent that the Examiner
`
`concludes that modifying one or more of Pirim's histogram fonnation blocks
`
`24 to 29 to somehow treat a color parameter that is not even contemplated
`
`by Pirim, either by ( 1) i11cluding a dual-memory arrangement such as that in
`
`Hirota in one or more of Pir1m's histogram formation blocks; (2) somehow
`
`modifying two or more those blocks to treat the same parameter; or even (3)
`
`adding another such block to the existing six in Pirin1 (see Ans. 60-61 ),
`
`there is no persuasive evidence on this recm·d to substantiate such a
`
`conclusion.
`
`The Examiner's " increased flexibility" rationale in this regard is, at
`
`best, speculative, even leaving aside the Examiner's somewhat dubious
`
`finding that Pirim.'s image processjng system is ''generic" (Final Act. 17-18)
`
`despite its sole drowsiness detection function as Appellant indicates. See
`
`App. Br. 22-29; Reply Br. 4--5. Accord Bovik Deel. ,i 28 (noting that Pirim
`
`modifies a generic image processing system to detect drowsiness). That is,
`
`the noti011 that that the proposed combinati011 would ostensibly enable
`
`Pirim's "generic" image processing system to be more powerful in other
`
`19
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`Petitioner LG Ex-1007, 0020
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`
`
`Appea12019-004305
`Reexamination Control 90/014,056
`Patent US 6,959,293 B2
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`applications by detecting whether a piece ofpaper is color or black and
`
`white as the Examiner indicates (Final Act. 18; Ans. 62) not onJy is
`
`speculative and unsubstantiated, but runs counter to Pirim's sole purpose-(cid:173)
`
`detecting drowsiness. To the extent that the Examiner concludes that, in
`
`view ofHirota's copying niachine functionality, it would have been obvious
`
`for Pirin1's systeu1 to detect a particular type of document automatically
`
`based on histograms in addition to, or in lieu of, detecting drowsiness-an
`
`entirely different function--such a conclusion is, at best, speculative and
`strains reasonable lim.its on this record. Accord Bovik Deel. ,r,r 25-35
`(noting this point).
`
`To be sure, familiar items may have obvious uses beyond their
`
`primary purposes, and often ordinarily skilled artisans can fit multiple
`
`references' teachings together like puzzle pieces. See KSR Int 'l Co. v.
`
`Teleflex, Inc. , 550 U.S. 398, 420 (2007). But even assuming, without
`
`deciding, that Pilirn's system could be used beyond its primary drowsiness
`
`detection purpose, to suggest that it would be used to detect document types
`
`automatically, as in Hirota's copying machine under the Examiner's
`
`proposed combination, such a conclusion has not been substantiated on this
`
`record apart from mere speculation. In short, the Examiner's proposed
`
`combination of the cited references is not supported by articulated reasoning
`
`with rational underpinning to justify the Examiner's obviousness conclusion.
`
`Therefore, we are persuaded that the Examiner erred in rejecting
`
`claim 1 as obvious over Pirim and Hirota. Because this issue is dispositive
`
`regarding our reversing the Examiner's rejection of this claim, we need not
`
`address Appellant's other associated arguments.
`
`20
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`Petitioner LG Ex-1007, 0021
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`
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`Appeal 201 9-004305
`Reexamination Control 90/014,056
`Patent US 6,959,293 B2
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`CONCLUSION
`
`The Examiner erred in rejecting claim l under 35 U.S.C. ~ 103.
`
`DECISION
`
`The Examiner's decision to reject claim 1 is reversed.
`
`Requests for extensions of time in this ex parte reexamination
`
`proceeding are governed by 37 C.F.R. § l .550(c). See 37 C.F.R. § 41.S0(f).
`
`REVERSED
`
`rvb
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`2 1
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`Petitioner LG Ex-1007, 0022
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`
`
`Appeal 2019-004305
`Reexamination Control 90/014,056
`Patent US 6,959,293 B2
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`PATENT OWNER:
`
`BYRNE POH LLP / IPT
`ll BROADWAY
`SUITE 760
`NEW YORK, NY 10004
`
`THJRD PARTY REQUESTER:
`
`MARC PENSABENE
`O'MELVENY & MYERS LLP
`7 TlMES SQUARE,
`NEW YORK, NY 10036
`
`22
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`Petitioner LG Ex-1007, 0023
`
`
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