U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________________________________
`
`
`
`
`LG ELECTRONICS INC. and LG ELECTRONICS USA, INC.,
`Petitioners
`
`v.
`
`IMAGE PROCESSING TECHNOLOGIES, LLC,
`Patent Owner.
`
`
`
`
`PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 6,959,293
`
`
`
`
`

`

`
`
`TABLE OF CONTENTS
`
`
`I.
`INTRODUCTION .......................................................................................... 1
`II. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8 .................................. 1
`III.
`FEE AUTHORIZATION ............................................................................... 3
`IV. GROUNDS FOR STANDING ....................................................................... 3
`V.
`PRECISE RELIEF REQUESTED ................................................................. 3
`VI. THE CHALLENGED PATENT .................................................................... 5
`VII. THE PRIOR ART ........................................................................................... 7
`A. Overview of Pirim ................................................................................ 7
`1.
`Pirim’s Generic Image Processing System ................................ 7
`2.
`Incorporated Documents .......................................................... 12
`Overview of Bolle .............................................................................. 17
`B.
`VIII. LEVEL OF ORDINARY SKILL IN THE ART .......................................... 20
`IX. PRIORITY DATE ........................................................................................ 20
`X.
`CLAIM CONSTRUCTION ......................................................................... 20
`A.
`“histogram” ........................................................................................ 20
`B.
`“the [at least two] histogram calculation units being configured
`to form a histogram representative of the parameter” ........................ 21
`“wherein the validation signal is produced from time
`coincidences signals …so that the calculation of the histogram
`depends on the classification signals carried by the time
`coincidence bus” ................................................................................. 21
`XI. THE BOARD SHOULD NOT DENY INSTITUTION UNDER
`§325(D) ......................................................................................................... 22
`A.
`Part 1 ................................................................................................... 23
`B.
`Part 2 ................................................................................................... 26
`XII. SPECIFIC EXPLANATION OF GROUNDS ............................................. 29
`A. Grounds 1 and 2: Claim 1 is anticipated and/or rendered
`obvious by Pirim ................................................................................ 29
`
`C.
`
`
`
`
`
`i
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`
`

`

`TABLE OF CONTENTS
`(continued)
`
`Page
`
`
`
`1.
`
`Pirim discloses two anticipatory embodiments (Ground
`1), or, at a minimum, two embodiments that each render
`Claim 1 obvious (Ground 2) .................................................... 29
`Claim 1 ..................................................................................... 30
`2.
`Ground 3: Claim 1 is rendered obvious by Pirim+Bolle ................... 56
`1. Motivations to Combine .......................................................... 56
`2.
`Claim 1 ..................................................................................... 63
`XIII. GENERAL PLASTICS HEAVILY FAVORS INSTITUTION .................... 75
`XIV. FINTIV HEAVILY FAVORS INSTITUTION ............................................ 77
`XV. CONCLUSION ............................................................................................. 79
`
`
`
`B.
`
`
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`
`
`ii
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`
`LIST OF EXHIBITS
`
`Ex-1001
`Ex-1002
`Ex-1003
`Ex-1004
`
`Ex-1005
`
`Ex-1006
`
`Ex-1007
`
`Ex-1008
`
`Ex-1009
`
`Ex-1010
`
`Ex-1011
`
`Ex-1012
`
`Ex-1013
`
`Ex-1014
`
`Ex-1015
`
`U.S. Patent No. 6,959,293
`Declaration of Dr. Jeffrey Rodriguez
`Curriculum Vitae of Dr. Jeffrey Rodriguez
`Prosecution History of U.S. Patent No. 6,959,293
`Samsung Elecs. Co., Ltd. v. Image Processing Technologies LLC,
`Case No. IPR2017-00336, Paper 38 (May 9, 2018)
`Samsung Electronics Co., Ltd. v. Image Processing Techs. LLC,
`Case IPR2017-01189, Paper 9 (P.T.A.B. August 18, 2017)
`(Institution Decision).
`Ex parte Image Processing Techs, LLC, Reexamination Control
`No. 90/014,056 (P.T.A.B. Aug. 29, 2019) (Decision on Appeal).
`Ex parte Image Processing Techs, LLC, Reexamination Control
`No. 90/014,056 (U.S.P.T.O. June 26, 2018) (Declaration of Alan
`Bovik).
`Image Processing Techs. LLC v. LG Electronics Inc., No. 2:22-cv-
`00077 (E.D. Tex. July 5, 2022) (Patent Owner’s “Disclosure of
`Asserted Claims and Infringement Contentions”)
`Image Processing Techs., LLC v. Samsung Electronics Co., Ltd.,
`No. 2:20-cv-00050, Dkt. 192 (E.D. Tex. June 26, 2020) (Order re
`prosecution history estoppel)
`Image Processing Techs., LLC v. Samsung Electronics Co., Ltd.,
`No. 2:16-cv-505, Dkt. 174 (E.D. Tex. June 21, 2017) (Claim
`Construction Order)
`Image Processing Techs., LLC v. Samsung Electronics Co., Ltd.,
`No. 2:16-cv-505, Dkt. 306 (E.D. Tex. Oct. 25, 2017) (Order
`Staying Case)
`Image Processing Techs., LLC v. LG Electronics Inc., No. 22-cv-
`00077, Dkt. 174 (E.D. Tex. Aug. 9, 2022) (Docket Control Order)
`Statistics for Federal District Courts
`Image Processing Techs., LLC v. Samsung Electronics Co., Ltd.,
`No. 2:16-cv-505, Dkt. 296 (E.D. Tex. Oct. 13, 2017) (Patent
`Owner sur-reply opposing stay motion)
`
`iii
`
`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`
`Image Processing Techs., LLC v. LG Electronics Inc., No. 22-cv-
`00077, Dkt. 1 (E.D. Tex. Mar. 11, 2022) (Complaint filed by Patent
`Owner against Petitioners)
`Reserved
`WIPO Patent Publication WO 99/36893 (“Pirim”) [cites to Ex-
`1018 refer to the original page number at the bottom center of the
`page]
`U.S. Patent No. 5,546,475 (“Bolle”)
`Letter from Petitioner to Patent Owner including Fintiv Stipulation
`PCT/EP98/05383 (document incorporated by reference in Pirim)
`Annotated Claim 1 of the ’293 Patent
`European Patent Office File history for Pirim (including
`PCT/EP98/05383)
`Translation of PCT/FR97/01354 (document incorporated by
`reference in Pirim)
`Original, French version of PCT/FR97/01354, translation, and
`supporting affidavit
`European Patent Office regulations from June, 1997
`History of PCT Regulations
`Certified WIPO file history for Pirim
`
`Ex-1016
`
`Ex-1017
`
`Ex-1018
`
`Ex-1019
`Ex-1020
`Ex-1021
`Ex-1022
`
`Ex-1023
`
`Ex-1024
`
`Ex-1025
`
`Ex-1026
`Ex-1027
`Ex-1028
`
`
`
`iv
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`
`I.
`
`INTRODUCTION
`LG Electronics Inc. and LG Electronics USA, Inc. (collectively,
`
`“Petitioners”) request inter partes review (“IPR”) of Claim 1 of U.S. Patent No.
`
`6,959,293 (the “’293 Patent”) (Ex-1001), currently assigned to Image Processing
`
`Technologies, LLC (“Patent Owner”). The grounds set forth in this petition are
`
`reasonably likely to prevail, and the challenged claim should be cancelled.
`
`II. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8
`Real Parties-in-Interest:
`
`Petitioners LG Electronics Inc. and LG Electronics USA, Inc. are the real
`
`parties-in-interest. LG Electronics USA, Inc. is a wholly owned subsidiary of LG
`
`Electronics Inc. No other parties directed, controlled, or funded this Inter Partes
`
`Review proceeding (IPR).
`
`Related Matters:
`
`The ’293 Patent was previously disputed in the following proceedings:
`
`• Image Processing Technologies, LLC v. Samsung Electronics Co.,
`
`Ltd., No. 2-20-cv-00050 (E.D. Tex.)
`
`• Samsung Electronics Co., Ltd. v. Image Processing Technologies,
`
`LLC, IPR No. 2017-01189 (PTAB)
`
`• Samsung Electronics Co., Ltd. et al v. Image Processing
`
`Technologies, LLC, IPR No. 2017-00336 (PTAB)
`
`1
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`• Image Processing Technologies, LLC v. Samsung Electronics Co.,
`
`Ltd., No. 2-16-cv-00505 (E.D. Tex.)
`
`• Image Processing Technologies, LLC v. Canon Inc., No. 2-10-cv-
`
`03867 (E.D.N.Y.)
`
`• Ex parte Image Processing Technologies, LLC, Reexamination
`
`Control No. 90/014,056 (USPTO)
`
`Lead and Back-Up Counsel:
`• Lead Counsel: Benjamin Haber (Reg. No. 67,129), O’Melveny & Myers
`
`LLP, 400 S. Hope Street, 18th Floor, Los Angeles, CA 90071.
`
`(Telephone: 213-430-6000; Fax: 213-430-6407; Email:
`
`bhaber@omm.com)
`
`• First Backup Counsel: Clarence A. Rowland (Reg. No. 73,775),
`
`O’Melveny & Myers LLP, 400 S. Hope Street, 18th Floor, Los Angeles,
`
`CA 90071. (Telephone: 213-430-6000; Fax: 213-430-6407; Email:
`
`crowland@omm.com)
`
`• Backup Counsel: William M. Fink (Reg. No. 72,332), O’Melveny &
`
`Myers LLP, 1625 I Street NW, Washington, D.C. 20006 (Telephone:
`
`(202) 383-5300; Email: tfink@omm.com)
`
`Service Information:
`
`2
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`Petitioner consents to electronic service by email to LGIPT@omm.com.
`
`Please address all postal and hand-delivery correspondence to lead counsel
`
`Benjamin Haber at O’Melveny & Myers LLP, 400 S. Hope Street, 18th Floor, Los
`
`Angeles, CA 90071, with courtesy copies to the following email addresses:
`
`crowland@omm.com, dalmeling@omm.com, moboyle@omm.com,
`
`bhaber@omm.com, tfink@omm.com.
`
`III. FEE AUTHORIZATION
`Pursuant to 37 C.F.R. § 42.15(a) and § 42.103(a), the PTO is authorized to
`
`charge $41,500 (or other fees required) to Account No. 50-0639.
`
`IV. GROUNDS FOR STANDING
`Petitioner certifies that the ’293 Patent is available for IPR, this Petition is
`
`timely filed, and Petitioner is not barred or estopped from requesting this IPR.
`
`V.
`
`PRECISE RELIEF REQUESTED
`Petitioner respectfully requests cancellation of Claim 1 of the ’293 Patent
`
`under 35 U.S.C. §§102 and 103 based on the following grounds.
`
`Grounds 1 and 2: Claim 1 is anticipated by (Ground 1) and/or rendered
`
`obvious by (Ground 2) WIPO International Publication No. WO 99/36893
`
`(“Pirim,” Ex-1018); and
`
`Ground 3: Claim 1 is rendered obvious by Pirim in combination with U.S.
`
`Patent No. 5,546,475 (“Bolle,” Ex-1019).
`
`3
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`During the original prosecution, Pirim was of record, but the examiner did
`
`not use it in any rejections. See Ex-1001; Ex-1004. Additionally, a document
`
`incorporated by reference into Pirim (PCT Application Serial No.
`
`PCT/EP98/05383 (Ex-1023 at 312–377 and Ex-1021), discussed further in Part
`
`VII.A.2, below) was of record, but similarly was not used in any rejections. Nor
`
`did the examiner (or applicant) note Pirim’s incorporation of this document, or
`
`consider the import of this incorporation on the materiality of Pirim.
`
`A prior petitioner argued in two IPRs and an EPR that Pirim rendered Claim
`
`1 obvious based on single-reference obviousness and based on its combination
`
`with other references. Ex-1005, 10; Ex-1006, 8; Ex-1007, 4. However, as
`
`explained further in Parts XI and XII.A, the single reference obviousness argument
`
`presented here is materially different from the prior grounds based on Pirim.
`
`Ground 2 relies on the disclosure of both Pirim and PCT/EP98/05383, which Pirim
`
`incorporates. Thus, the disclosure of Pirim’s incorporated documents (including
`
`PCT/EP98/05383) are presented for the first time in this Petition.
`
`Pirim and its incorporated documents have never been considered for
`
`anticipation. Bolle was not identified during prosecution and has not been used in
`
`prior IPR or EPR proceedings. See id.
`
`There is no basis to deny the petition under Section 325(d), as explained
`
`below.
`
`4
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`
`VI. THE CHALLENGED PATENT
`The ’293 Patent is directed to “methods and devices for processing image
`
`signals using ...histogram calculation units.” Id., 1:6–14. Histograms are a
`
`statistical tool commonly used in image processing. Ex-1002, ¶¶25–31, 33–34.
`
`The ’293 Patent claims a device for “detecting an event” that could be “aural
`
`and/or visual phenomena” using “two histogram calculation units.” Id., Claims 1,
`
`18, 22. The histogram is formed using a histogram block shown in Figure 3:
`
`Ex-1001, Fig. 3, 8:37–43.1 The histogram block includes a “memory 100” (red)
`
`
`
`
`1 All coloring, highlighting, and annotations in figures, as well as all bold and italic
`emphasis applied to text, in this Petition is added unless otherwise indicated.
`
`5
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`

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`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`for storing a histogram, which is a “conventional ...digital memory” with
`
`“addresses ...equal to the number of possible levels for the values of the parameter
`
`A that must be discriminated,” where each address “stores at least number of pixels
`
`contained in a frame (i.e., in an image).” Id., 8:37–52.
`
`“Classifier unit 101 includes a register 101r capable of storing certain
`
`possible level values ...for the levels of parameter A” so that it can “sort[] the
`
`pixels, and provide, on its output 101s, a value 1 when the parameter A associated
`
`with the said pixel has a level corresponding to that contained in the register 101r
`
`and the zero value conversely.” Id., 9:27–35. The classifier outputs a
`
`classification signal to the time coincidences bus 111 (yellow). Id., 9:35–41.
`
`The ’293 Patent contemplates that multiple histogram blocks could be used,
`
`each evaluating a different parameter for classification. See id., Fig. 3 (showing
`
`time coincidences unit 102 receiving classification inputs inE, ...inC, inB, inA from
`
`histogram units E, ...C, B, and A); 9:36–50. All of the classification signals can be
`
`output to a common time coincidence bus 111 (yellow in Figure 3, above), so that
`
`all time coincidence units (purple) can consider the results of the classifications.
`
`Id.
`
`The time coincidences unit 102 (purple) “compares the values” received
`
`from various classifiers to values programmed into its “register 102r” and
`
`“transmits on its output 102s, for each pixel, an enabling signal equal to 1 when
`
`6
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`there is a coincidence between the register values equal to 1 and the corresponding
`
`data received from the bus 111, and a zero value in the reverse case.” Id., 9:36–50.
`
`If the time coincidences unit outputs an enabling signal equal to 1, the memory
`
`(red) is incremented by 1 at a memory address corresponding to the value aij of the
`
`parameter. Id., 8:53–64.
`
`VII. THE PRIOR ART
`A. Overview of Pirim
`1.
`Pirim’s Generic Image Processing System
`International Publication Number WO 99/36893 (“Pirim”) identifies an
`
`international publication date of July 22, 1999, designates the United States, and
`
`published in English. Ex-1018, 1. Thus, it is prior art under at least pre-AIA 35
`
`U.S.C. §102(a), §102(b), and §102(e), and §119 (“no patent shall be granted …for
`
`an invention which had been …described in a printed publication in any country
`
`more than one year before the date of the actual filing of the application in this
`
`country.”). The inventor, Patrick Pirim, is also an inventor of the ’293 Patent
`
`(although Pirim has a different inventive entity, as it names an additional inventor).
`
`See Ex-1018; Ex-1001.
`
`Pirim’s disclosure overlaps heavily with the ’293 Patent, and Pirim and was
`
`used as a reference in two prior IPRs and an EPR. See generally, Ex-1005, Ex-
`
`1006, Ex-1007. The Board found that Pirim does not teach two histogram units
`
`7
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`

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`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`configured to form histograms representative of a “common parameter.” Id. This
`
`Petition relies on the disclosures of Pirim, including PCT/EP98/05383, which is a
`
`document incorporated by reference (Grounds 1 and 2), and Pirim in combination
`
`with Bolle (Ground 3), to disclose and teach that concept. The incorporated
`
`documents were not previously discussed by the Patent Office or prior petitioners.
`
`Pirim discloses a “generic image processing system” that includes “a video
`
`camera” that “monitors a scene.” Ex-1018, 10. The video camera signal, S(PI) is
`
`shown in Figure 11 below entering Pirim’s system on the left. Figure 11 includes
`
`“histogram processor 22a” (also less frequently referred to as a “Histogram
`
`Formation Unit”) which is shown in a magnified detail view in Figure 12. Id., 24–
`
`25.
`
`8
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`
`
`
`Ex-1018, Figs. 11 and 12. Figure 12 is a generalized, configurable histogram
`
`processor 22a, and it shows six histogram blocks (elements 24–29) for parameters
`
`including luminance SR, velocity or speed V, direction of displacement DI, time
`
`constant CO, x position, and y position. Id., 7, 12, 14, 16, 25. “The function of
`
`each histogram…block is to enable a histogram to be formed for the domain
`
`associated with that block.” Id., 25.
`
`Pirim’s embodiments disclose specific configurations for histogram
`
`processor 22a (Figure 12) that modify Figure 12 to include histogram units for the
`
`shown parameters and other parameters. Id., 47, 53 (disclosing using parameters
`
`including “CO, DP, velocity, direction, luminance, hue, and saturation”). Thus,
`
`9
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`Figure 12 is not fixed—it is highly configurable, and Pirim discloses numerous
`
`possible configurations. Id., 42–57 (disclosing various configurations for detecting
`
`a driver entering a vehicle and detecting drowsiness); Ex-1021, 33–34 (disclosing
`
`various configurations for detecting vehicles, a person’s head, a ground target, and
`
`performers on a stage); Ex-1001, 10:36–40 (admitting “extrapolation to any
`
`number of [histogram] units is evident”). Further, in incorporated document
`
`PCT/EP98/05383, Pirim discloses using two copies of Figure 12 (which appears in
`
`PCT/EP98/05383 labeled as Figure 11) to track (A) multiple targets or (B) a single
`
`target in the event one of the processors loses tracking. Ex-1018, 10; Ex-1021,
`
`37:7–21.
`
`Each histogram block forms a histogram using the circuitry shown in Figure
`
`14 (which is essentially the same as the histogram unit shown in Figure 3 of the
`
`’293 Patent):
`
`10
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`
`
`
`Ex-1018, Fig. 14. Pirim explains that Figure 14 shows an example “histogram
`
`…block” that can be connected to other histogram blocks, each of which is
`
`“identical to the others and functions in the same manner.” Id., 26.
`
`For clarity, this Petition refers to element 22a as a “histogram
`
`processor” and refers to an individual one of the histogram blocks, elements
`
`24–29, as a “histogram block.”
`
`The operation of the various components of the histogram block are
`
`materially the same as in the ’293 Patent and not repeated here. Compare Ex-
`
`1001, 7:54–64, 8:37–52, 9:27–50, Fig. 3 with Ex-1018, 24–29, Figs. 2, 4, 11, 12,
`
`14. The ’293 Patent adopts new terminology to refer to some of the preexisting
`
`components. In the ’293 Patent, the applicant switched to referring to the
`
`validation unit as a “time coincidences unit.” Ex-1001, 9:36–41, Fig. 3. And the
`
`11
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`’293 Patent interchangeably refers to the output of the classifier (which is the input
`
`to the validation unit) as either a classification signal or as a time coincidences
`
`signal. Id., 2:22–28, 21:9, 9:27–41, Fig. 3, Claim 1.
`
`Pirim explains that generally the purpose of the classifier is to select for
`
`pixels that meet a specified criteria. Ex-1018, 27–29. For example, if a given
`
`histogram unit is processing the speed parameter, the classifier could be
`
`programmed to output a signal of “1” if the pixel had a speed value in the desired
`
`range, and “0” otherwise. Id. Other histogram units similarly classify other
`
`parameters such as hue, luminance, direction, etc. Id. The resulting classification
`
`signals are transferred to the validation unit of each other histogram unit via bus
`
`23. Id. The validation unit of each histogram unit can then check whether each
`
`parameter from each classifier (for the given pixel) meets all of the specified
`
`speed, hue, luminance, direction, etc. criteria. Id. If all of those criteria are met,
`
`then the validation unit outputs a value of “1,” which enables incrementation. Id.
`
`2.
`Incorporated Documents
`Incorporation by reference requires “the host document” to “identify with
`
`detailed particularity what specific material it incorporates and clearly indicate
`
`where that material is found in the various documents,” and is judged using the
`
`“standard of” a POSITA. Paice LLC v. Ford Motor Co., 881 F.3d 894, 906–07
`
`(Fed. Cir. 2018) (cites/quotes omitted). In Paice, the host document stated:
`
`12
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`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`This application discloses a number of improvements over
`and enhancements to the hybrid vehicles disclosed in the
`inventor’s U.S. Pat. No. 5,343,970 (the “’970 patent”)
`[Severinsky], which is incorporated herein by this
`reference. Where differences are not mentioned, it is to
`be understood that the specifics of the vehicle design
`shown in the ’970 patent are applicable to the vehicles
`shown herein as well.
`
`Id. The Federal Circuit found the entirety of the Severinsky document was
`
`incorporated by reference:
`
`is broad and
`this passage
`The first sentence of
`unambiguous. It states that Severinsky “is,” without
`qualification, incorporated into the ’817 application “by
`this reference”—i.e., the reference contained in the
`sentence.
` The sentence
`identifies with detailed
`particularity the specific material subject to incorporation
`(Severinsky, and not just particular portions thereof) and
`where that material can be found (U.S. Patent No.
`5,343,970). Such language is plainly sufficient to
`incorporate Severinsky in its entirety.
`
`Id., 907. The Federal Circuit did not limit the incorporation to “the hybrid
`
`vehicles,” nor did it limit the incorporation based on the discussion of “differences
`
`not mentioned….” Id.
`
`Here, Pirim states:
`
`The present invention discloses an application of the
`generic image processing system disclosed in commonly-
`owned PCT Application Serial Nos. PCT/FR97/01354
`and PCT/EP98/05383, the contents of which are
`incorporated herein by reference for detection of various
`criteria associated with the human eye, and especially to
`detection that a driver is falling asleep while driving a
`vehicle.
`
`13
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`

`

`U.S. Patent No. 6,959,293
`Petition for Inter Partes Review
`
`
`Ex-1018, 10. As in Paice, Pirim’s incorporation is unambiguous: the “contents” of
`
`the two applications, identified clearly and particularly by number, are
`
`incorporated by reference, without limitation. Similar to Paice, Pirim does not
`
`state that the incorporated material is limited to the some sub-part or sub-
`
`component of the “generic image processing system” disclosed in those
`
`applications. Rather, Pirim unambiguously incorporates the “contents” of the
`
`applications. The clause “for detection of various criteria…” also does not limit
`
`the incorporation by reference—it simply states the reason the “contents” of the
`
`two documents are being incorporated (the reason being for use in a new
`
`application—drowsy driving). PCT/EP98/05383 does not discuss detecting a
`
`“human eye” or a “driver falling asleep.” Thus, the “for detection…” clause is not
`
`a reference to any particular subpart of that document, much less a statement
`
`limiting which “contents” are being incorporated. Instead, this clause simply states
`
`the reason the drafter incorporated the documents.
`
`PCT/EP98/05383 was publicly available through WIPO and the EPO at the
`
`time Pirim published (it was a priority document). Ex-1028 at 196–262 (WIPO
`
`file history marking Pirim as received on April 15, 1999); Ex-1027 at 111 (Rule
`
`17.2(c), effective 1999, requiring WIPO to “furnish a copy of the priority
`
`document upon request” to the public); Ex-1023, 312–377 (EPO file history
`
`showing PCT/EP98/05383); Ex-1026, Article 128(4) (allowing public access to
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`EPO file histories), Article 150(3).
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`The other incorporated document, PCT/FR97/01354, was publicly available
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`because it published in 1998. Ex-1024; Ex-1025.
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`An incorporated document is viewed “as if it were explicitly contained” in
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`the host document. Paice, 881 F.3d at 906. One of the incorporated documents
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`discloses numerous exemplary applications for using Pirim’s histogram processor
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`22a, including tracking a “person” in a videoconference, tracking a target on the
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`ground from a helicopter, weapons targeting, or tracking any general single target
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`or multiple targets. Ex-1021, 29, 32, 34, 36–37. In one of Pirim’s incorporated
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`embodiments, Figure 20 shows multiple targets, such as potential targets for a
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`“weapons targeting system[].” Id., 34.
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`Id., 34:21–27, Figs. 20 and 23. Pirim explains the details of configuring the
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`processor to track a single target, such as target 218, as shown in Figure 23. Id.,
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`34–36.
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`Id., Fig. 23.
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`Pirim then discloses material that meets the “common parameter”
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`construction. Pirim explains that “while the invention has been described with
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`respect to tracking a single target, it is foreseen that multiple targets may be
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`tracked, each with user defined classification criteria, by replicating the various
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`elements of the invention.” Id., 37. Similarly, for a “single target,” the system
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`could be configured by “replicating” histogram processor 22a, meaning the system
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`would use “two histogram formation processors of the type shown in Fig. 11”
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`(which is renumbered to be Figure 12 in Pirim). Id. With two histogram
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`processors, a second processor could be used to “continue to track a target if, for
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`example, the target stopped and the track based upon velocity and direction was
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`lost, since the target could still by tracked by” alternative criteria, such as “color.”
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`Id. The second histogram processor 22a includes histogram blocks that process the
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`same parameters as the first processor 22a, meaning there are at least two
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`U.S. Patent No. 6,959,293
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`histogram blocks that form histograms representative of a common parameter. For
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`example, there would be two histogram blocks for the x-position parameter, two
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`for the y-position parameter, etc. See Ex-1018, Fig. 12.
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`B. Overview of Bolle
`United States Patent No. 5,546,475 (“Bolle”) issued on August 13, 1996,
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`and qualifies as prior art under at least pre-AIA 35 U.S.C. § 102(b).
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`Bolle describes an “image processing” system for “recognizing (i.e.,
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`identifying, classifying, grading, and verifying) objects using computerized optical
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`scanning devices.” Ex-1019, 1:6–10. It explains that “[i]mage processing systems
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`...for recognizing objects ...use histograms to perform this recognition. One
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`common histogram method either develops a gray scale histogram or a color
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`histogram from a (color) image containing an object. These histograms are then
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`compared directly to histograms of reference images.” Id., 1:14–22.
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`Bolle uses a video camera to capture produce, such as apples or grapes,
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`going through a checkout process in a grocery store:
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`Id., Fig. 1.
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`In Figure 14, Bolle discloses making two hue histograms, one of the grapes
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`1420 and one of the leaves 1410:
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`Id., Fig. 14. Prior to creating histograms 1450 and 1455, Bolle’s apparatus uses a
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`segmentation algorithm to determine which pixels correspond to grapes and which
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`correspond to leaves. Id., 19:16–27. The segmentation algorithm works by
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`creating one histogram of the entire object and looking for two distinct peaks (i.e.,
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`the grapes would be lighter and the leaves would be darker). Id. After
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`segmentation, the pixels corresponding to the grapes are accumulated into
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`histogram 1455 and the pixels corresponding to the leaves are accumulated into
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`U.S. Patent No. 6,959,293
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`histogram 1450. Id. The grapes and leaves can then be identified by comparing
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`their histograms to reference histograms for grapes and leaves. Id., 19:28–38.
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`VIII. LEVEL OF ORDINARY SKILL IN THE ART
`A person of ordinary skill in the art (“POSITA”) at the time of the alleged
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`invention of the ’293 Patent would have had either (1) a master’s degree in
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`Electrical Engineering or Computer Engineering or the equivalent plus at least a
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`year of experience in the field of image processing, image recognition, machine
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`vision, or a related field or (2) a Bachelor’s Degree in Electrical Engineering or
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`Computer Engineering or the equivalent plus at least three years of experience in
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`the field of image processing, image recognition, machine vision, or a related field.
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`Ex-1002, ¶24.
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`IX. PRIORITY DATE
`The ’293 Patent purports to claim priority to a filing date of February, 23,
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`2001 and a foreign application dated February 24, 2000. Ex-1001, Certificate of
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`Correction.
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`X. CLAIM CONSTRUCTION
`Certain terms of the ’293 Patent were previously construed; further claim
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`construction is not required for this IPR.
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`A.
`“histogram”
`In a prior district court proceeding, a district court construed the term
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`“histogram” to mean “a statistical representation of the frequency of occurrence
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`with which values of a parameter fall within a series of intervals.” Ex-1011, 13.
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`The specific construction of “histogram,” is irrelevant here, because the prior art
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`expressly discloses histograms.
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`B.
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`“the [at least two] histogram calculation units being configured to
`form a histogram representative of the parameter”
`In a prior IPR, the PTAB adopted a construction for this term proposed by
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`the Patent Owner (which the prior petitioner took no position on). The PTAB
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`construed the term “the [at least two] histogram calculation units being configured
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`to form a histogram representative of the parameter” to mean “the [at least two]
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`histogram calculation units being configured to form a histogram representative of
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`at least one common parameter.” Ex-1005, 12–14 (emphasis original).
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`Petitioner reserves the right to dispute this construction in other proceedings,
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`including to the extent the claim is argued to require a “common” parameter.
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`However, there is no need to address that dispute here, where the prior art discloses
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`Claim 1 even under the Board’s narrow “common parameter” construction, applied
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`by Petitioner here for purposes of this proceeding only.
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`C.
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`“wherein the validation signal is produced from time coincidences
`signals …so that the calculation of the histogram depends on the
`classification signals carried by the time coincidence bus”
`In a prior district court proceeding, the court rejected a defendant’s proposal
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`that this term should be construed to mean “wherein the validation signal is
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`produced when two or more classification signals satisfy stored conditions at the
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`same time.” Ex. 1011, 12–18. The court construed the term to have its “plain and
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`ordinary meaning,” reasoning that the specification “rejects the limitation of ‘two
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`or more stored conditions’” because it teaches one embodiment wherein the “time
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`coincidences block 102 comprises a single register contain[ing] a single time
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`coincidences value....” Id., 17 (citing Ex-1001, 16:55–58). Regardless, this
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`dispute, and the specific construction of this term, is irrelevant here because the
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`prior art teaches this term under the district court’s construction.
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`XI. THE BOARD SHOULD NOT DENY INSTITUTION UNDER §325(D)
`Under Section 325(d), the Board applies the two-part framework set forth in
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`Advanced Bionics, LLC v. MED-EL Elektromedizinische Geräte GmbH, IPR2019-
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`01469, Paper 6 at 8 (P