UNITED STATES PATENT AND TRADEMARK OFFICE
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`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
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`APPLE INC.
`Petitioner
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`v.
`
`IMMERVISION, INC.
`Patent Owner
`
`_________________
`
`Case IPR2023-00471
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`Patent No. 6,844,990
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`_________________
`
`
`
`
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`PATENT OWNER’S SUR-REPLY TO PETITIONER’S REPLY
`
`
`
`
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`APPLE INC.
`Petitioner
`
`v.
`
`IMMERVISION, INC.
`Patent Owner
`
`_________________
`
`Case IPR2023-00471
`
`Patent No. 6,844,990
`
`_________________
`
`
`
`
`
`PATENT OWNER’S SUR-REPLY TO PETITIONER’S REPLY
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`
`
`
`
`Case No. IPR2023-00471
`
`
`
`
`Docket No.: 688266-140IPR
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`TABLE OF CONTENTS
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`1.
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`2.
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`B.
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`C.
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`page
`INTRODUCTION ........................................................................................... 1
`I.
`II. ARGUMENT ................................................................................................... 3
`Petitioner’s Rebuttals Contradict its Own Prior Briefings and
`A.
`Provide Little Support for its Strained Reading of Shiota ......................... 3
`The Reply Plays Revisionist History with the Previous
`Importance of Shiota’s Paragraphs [0024] and [0026] to
`Petitioner’s Arguments .......................................................................... 3
`Petitioner Cobbles Together Disparate and Unrelated Portions
`of the Record to Salvage its Failed Interpretation of Shiota ................. 5
`The ‘990 Patent’s Image Transformation Algorithm Differs
`from Shiota in At Least One Critical Aspect ............................................. 9
`The Reply Contains No Separate Arguments Related to the
`Challenged Dependent Claims ................................................................. 13
`III. CONCLUSION .............................................................................................. 14
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`Case No. IPR2023-00471
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`Docket No.: 688266-140IPR
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`TABLE OF AUTHORITIES
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`Cases
`Google LLC v. Nobots LLC,
`IPR2022-00940, Paper No. 38 (PTAB Nov. 29, 2023) ...................................... 12
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) .......................................................................... 12
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` Page(s)
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`ii
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`Case No. IPR2023-00471
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`Docket No.: 688266-140IPR
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`Exhibit
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`or
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`EXHIBIT LIST
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`2001|Declaration of James F. Munro
`2002|Excerpt from Tinku Acharya & Ajoy K. Ray, Image Processing
`Principles and Applications (2005)
`(pp. 23-25
`2003|EV76C560 CMOSImageSensor Datasheet from e2v Semiconductors
`SAS (2011
`2004|Excerpt from Michael P. Keating, Geometric, Physical, and Visual
`Optics (2° Ed. 2002)
`(pp. 347-350
`2005|U.S. Patent Application Publication No. 2004/0201764
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`2006|February 15, 2024 Deposition Transcript of David Kessler, Ph.D.
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`ill
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`Case No. IPR2023-00471
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`I.
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`INTRODUCTION
`Petitioner’s case for unpatentability of the challenged ‘990 Patent claims
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`Docket No.: 688266-140IPR
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`depends upon the PTAB adopting its reading of “magnification adjustment” in
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`Shiota’s paragraph [0023]. To obtain institution, Petitioner unequivocally relied
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`on paragraphs [0024]-[0026] for its interpretation of paragraph [0023]. The Reply
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`now disavows Petitioner’s earlier arguments upon recognizing the error – that
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`paragraphs [0024]-[0026] do not support its position – leaving Petitioner
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`scrambling for evidence. At the very least, Petitioner’s sudden souring on
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`paragraphs [0024]-[0026] strains the credibility of the arguments set forth in the
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`Petition and in Dr. Kessler’s original declaration on whether Shiota teaches the
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`claimed feature of “displaying the obtained panoramic image by correcting the
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`non-linearity of the initial image, performed by retrieving image points on the
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`obtained image…using at least…a size L of the obtained image.”
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`To fill this gap, Petitioner alleges that Patent Owner takes Dr. Kessler’s
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`analysis out of context. In reality, Petitioner improperly isolates paragraph [0023]
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`from the rest of Shiota’s disclosure, despite language that would cause a POSA to
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`further consider Shiota’s remaining disclosure. Petitioner also introduces evidence
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`showing normalization is common in optics. But not all of Petitioner’s evidence
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`relates to image size, and none of the new evidence shows using image size in the
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`manner Petitioner seeks to bestow upon Shiota’s “magnification adjustment.”
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`Moreover, Petitioner’s rationale is explicitly attenuated. Petitioner argues
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`magnification is necessary to account for image sensor size, but then repeatedly
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`argues magnification equates to image size “by extension.” This is illogical since
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`Dr. Kessler acknowledges image size and sensor size are not coextensive with one
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`another.
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`Petitioner also tries to compare Shiota’s teachings with the ‘990 Patent’s
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`described algorithm but leaves out a critical difference. The ‘990 Patent algorithm
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`shows an example of how to use the image size to retrieve image points in the
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`obtained image. In contrast, and as acknowledged by Dr. Kessler, the final
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`coordinates derived by the algorithm recited in Shiota remain normalized. Thus,
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`Shiota’s algorithm does not support Petitioner’s interpretation of paragraph [0023].
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`Nor does the belated reference to Baker’s “edge detection,” which also fails to
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`teach the operations recited in claim 27.
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`Patent Owner therefore requests the PTAB find claims 2, 4, 27, 29, and 30
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`of the ‘990 Patent not unpatentable.
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`2
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`Case No. IPR2023-00471
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`II. ARGUMENT
`A.
`Petitioner’s Rebuttals Contradict its Own Prior Briefings and
`Provide Little Support for its Strained Reading of Shiota
`1.
`The Reply Plays Revisionist History with the Previous
`Importance of Shiota’s Paragraphs [0024] and [0026] to
`Petitioner’s Arguments
`Petitioner’s pre-institution arguments attached great significance to
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`paragraphs [0024]-[0026] for understanding “magnification adjustment” in
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`paragraph [0023]:
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`As the Petition explains, the ’990’s prosecution did not
`reference ¶ 23 of Shiota (shown below; annotated), which
`provides that (1) image size (referred to as image circle
`diameter) differs according to the image pickup device’s size,
`and (2) the image transformation operations assume the image’s
`size as 1 and perform “magnification adjustment” in “actual[]
`use” where the image and image pickup device may have
`different sizes. Petition, 50-51, 77-78. Petitioner highlights the
`significance of this unrecognized disclosure, offering expert
`testimony explaining how a POSITA reading this disclosure
`in the context of ¶¶ 24-26 (describing that the parameters for
`image transformation are “obtained from” the “magnification
`of the image”) would have understood that the ¶ 23 reference
`to “magnification adjustment” during image transformation
`accounts for the image pickup device’s actual size (i.e., image
`disk)—and by extension, the image’s actual size. Petition, 50-
`51, 77-78; APPLE-1003, ¶¶205-207.
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`Pet. Reply to POPR (Paper No. 8) at 1-2 (emphasis added); see also id. at p. 3
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`(explaining the Examiner did not “actually consider or rely upon the Petition’s
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`disclosures in ¶ 23 of Shiota for the above-recited claim 27 feature, and that she
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`similarly did not consider related disclosures in ¶¶ 24-26 for this same
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`feature”)(emphasis added). Realizing the correlation actually undermines its
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`interpretation of Shiota, Petitioner seeks to walk back Dr. Kessler’s testimony
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`about the interplay of paragraphs [0024]-[0026] and “magnification adjustment” in
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`paragraph [0023]. Reply at 13-14. Petitioner and Dr. Kessler now contend they
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`cited those passages just for “summary teachings of Shiota’s overall image
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`transformation process.” Id. at 13; Ex. 1023 at ¶¶ 64-65.
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`But Dr. Kessler’s attempt to retroactively rewrite his earlier declaration fails.
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`Discussing Shiota’s paragraph [0023], Dr. Kessler’s new declaration repeatedly
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`emphasizes the importance of Shiota’s “magnification adjustment” statement and
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`its equivalence with “scaling.” See e.g., Ex. 1023 at ¶¶ 60-63. Paragraph 205 in
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`his original declaration, not coincidentally, specifically highlighted “scale factor”
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`and “magnification of the image” from Shiota’s paragraphs [0024] and [0026]
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`when discussing paragraph [0023]’s “magnification adjustment” feature. Ex. 1003
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`at ¶ 205 (“[s]ee also APPLE-1012, [0025]-[0026] (explaining that necessary
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`parameters for the image transformation operations include, e.g., the magnification
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`of the image), [0024] (using ‘the scale factor (zoom ratio) as the size of the plane
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`image…)”) (emphasis added); POR at 16-17.
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`Petitioner’s and Dr. Kessler’s backpedaling is predictable since they now
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`admit, as they must, that Mr. Munro accurately describes “scale factor” and
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`“magnification of the image” in paragraphs [0024] and [0026] as relating to the
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`final image display. Reply at 13; Ex. 1023 at ¶ 66; Ex. 2001 at ¶¶ 53-56; POR at
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`17-19. Mr. Munro credibly interprets “magnification adjustment” at the end of
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`paragraph [0023] within Shiota’s overall context as referring to selecting portions
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`for display, not correcting image distortion using the fisheye image size. See Ex.
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`2001 at ¶¶ 50-58; POR at 17-19. Petitioner and Dr. Kessler, meanwhile, misread
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`paragraphs [0024]-[0026] so poorly that the Reply now minimizes the significance
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`of these paragraphs’ context that Petitioner previously deemed critical for
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`institution. The PTAB should therefore credit Mr. Munro’s finding that Shiota
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`does not teach or suggest retrieving image points on the obtained image using a
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`size L of the obtained image.
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`2.
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`Petitioner Cobbles Together Disparate and Unrelated
`Portions of the Record to Salvage its Failed Interpretation
`of Shiota
`Petitioner asserts Patent Owner’s response mischaracterizes Dr. Kessler’s
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`testimony – that he didn’t rely solely on “magnification adjustment,” but included
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`surrounding context of “the image circle diameter varies according to the size of
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`the image pickup device” and that “a normalized radius of 1 is assumed.” Reply at
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`7-8.
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`Petitioner ignores that “magnification” is the key to its entire argument.
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`Without it, the remaining cited language from Shiota’s paragraph [0023] merely
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`describes normalization. Ex. 1012 at ¶ [0023]. Mr. Munro explained that
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`“magnification” would be an odd term to use in paragraph [0023] if Shiota
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`intended Petitioner’s interpretation. See e.g., Ex. 2001 at ¶¶ 51-52; POR at 15-16.
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`Mr. Munro pointed out that magnification in optics typically connotes a
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`dimensionless number (Ex. 2001 at ¶ 52; POR at 15-16) – a fact Petitioner has not
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`disputed (Reply at 8-13). Dr. Kessler admits that the calculation in Shiota’s
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`algorithm to obtain the final p1, q1 coordinates relies entirely upon normalized (or
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`otherwise dimensionless) values – meaning p1, q1 are themselves
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`normalized/dimensionless. Ex. 2006 at 57:21-58:7, 69:5-6, 70:3-71:6; see also Ex.
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`2001 at ¶ 44. It would be unusual for a POSA to understand Shiota to suggest
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`using image size for obtaining coordinates when the stated algorithm outputs
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`dimensionless coordinates and “magnification” is also typically considered
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`dimensionless. Ex. 2001 at ¶ 52; POR at 15-16. This is why Mr. Munro
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`concluded the POSA would review Shiota in more detail to better understand the
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`meaning behind “magnification adjustment.” Id. at ¶¶ 53-56; POR at 17-19.
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`Paragraph [0023] leads into the image transformation summary, which uses “scale
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`factor” and “magnification,” lending further context to “magnification
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`adjustment.” Id.
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`Petitioner’s arguments that normalization is “well known and common in
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`optics” (Reply at 9-11) are also unavailing. Patent Owner agrees that
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`normalization occurs often in optics – but not all normalization relates to image
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`size. Dr. Kessler admits some of Petitioner’s newly cited references are only used
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`to show normalization generally, while none of the new evidence shows using an
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`image size in the manner suggested by claim 27. For example, normalizing a focal
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`length is not the same as normalizing image height, rendering exhibits 1024 and
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`1027, which deal with focal length, irrelevant to the ‘990 Patent claims. Ex. 2006
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`at 32:19-34:14; Ex. 1024 at 2:6-8; Ex. 1027 at 320. As another example, Dr.
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`Kessler cited aberration curves in Smith as showing normalization of a “full field”
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`(Ex. 1023 at ¶ 57), but the curves relate to fields of view, not image height. Ex.
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`2006 at 42:15-45:10; Ex. 1026 at 53, 199. In any event, Petitioner never highlights
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`a single instance where Smith uses image height (or “GIH”) to reverse any
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`normalization. Reply at 10-11. Dr. Kessler also asserts that Fisher shows a
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`normalized image height but admits that no algorithm is used for displaying the
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`image – a second “reverse” lens with characteristics for mechanically correcting
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`the distortion is placed on a projector. Ex. 2006 at 38:15-39:10; Ex. 2001 at ¶¶ 46-
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`47; Ex. 1009 at 3:43-53; POR at 12.
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`Relying on this general evidence of normalization, Petitioner attributes Mr.
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`Munro as providing the missing link to their interpretation of Shiota. Reply at 10-
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`11. However, outside of the ‘990 Patent’s described algorithm, Mr. Munro never
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`testified that one needs to use the actual image size to “scale up” a normalized
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`value. See e.g., Ex. 1025 at 20:2-24:10, 25:8-26:21, 37:4-39:13, 50:21-51:15.
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`Petitioner’s argument that the “magnification adjustment” is performed to
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`account “for the actual size of the image pickup device—and by extension, the
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`actual size of the image—as part of the image transformation” (Reply at 5, 12) is
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`also an unsupported leap. Shiota never states that the magnification adjustment
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`“accounts for the actual size of the image pickup device.” Ex. 1012 at ¶ [0023].
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`Petitioner then must take the additional step of linking the image size “by
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`extension.” While Shiota notes that sensor size may relate to image size, this is
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`nothing more than a rationale to normalize coordinates. Id.; Ex. 2001 at ¶ 58; POR
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`at 15-16, FN3. A POSA recognizes that image sensor size is not the same as
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`image size. Ex. 2001 at ¶ 58; POR at 15-16, FN3. For example, Mr. Munro
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`explained “underfilling,” where the entire image disk can appear on a rectangular
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`image sensor and leave parts of the sensor unused, and “overfilling,” where the
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`image size is bigger than the entire image sensor. Id.
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`Petitioner attempted to discredit this testimony by pointing to an error in Mr.
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`Munro’s description of the ‘990 Patent’s Fig. 2, in turn implying that only
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`configurations where the sensor diagonal is essentially identical to the image circle
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`diameter matter. Reply at 20-21, FN2. But Dr. Kessler admits that in the relevant
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`applications, an image will exist at an image plane regardless of whether an image
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`sensor is present (Ex. 2006 at 8:11-9:21), i.e., an image will not grow or shrink
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`even if a larger or smaller sensor is substituted. Dr. Kessler further admits that
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`applications exist for which underfilling is useful and that the very reference he is
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`seeking to modify, Baker, underfills a rectangular sensor with a full image disk,
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`leaving unused pixels.1 Ex. 2006 at 17:5-18:6, 23:11-17, 27:6-28:5; Ex. 1006 at
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`15:54-59, Fig. 4. Contrary to Petitioner’s alleged causal link, even if one is
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`performing an operation to “account” for the size of an image sensor, the image
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`disk size is not necessarily implicated.
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`B.
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`The ‘990 Patent’s Image Transformation Algorithm Differs from
`Shiota in At Least One Critical Aspect
`Petitioner criticizes the Patent Owner Response because “the image
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`correction techniques described in the ‘990 Patent’s specification” are allegedly
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`“commensurate with” Shiota’s teachings. Reply at 14-22. However, Petitioner
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`glosses over a key distinction between the ‘990 Patent disclosure and Shiota – that
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`1 Dr. Kessler admitted another example nearly identical to the ‘990 Patent’s Fig. 2
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`represented an instance of sensor underfilling with a panoramic image. Ex. 2006 at
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`19:6-20:8, 21:9-23:3.
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`the ‘990 Patent algorithm expressly accounts for the image size L while Shiota’s
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`algorithm concludes without ever incorporating this feature.
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`The ‘990 Patent algorithm begins by calculating Cartesian coordinates Ex,
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`Ey, Ez from a point E(i, j) of a display window DW using angles θ0 and φ0
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`corresponding to a viewing direction of the display window DW related to a
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`hemisphere’s center O. Ex. 1001 at 13:31-14:35; POR at 6-7. This determination
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`also includes express use of a selected “Zoom” parameter representing an
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`enlargement of the image sector presented in the display window DW (e.g., Ey =
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`j*cos(φ0) – Zoom*sin(φ0)). Ex. 1001 at 14:6-20, 37-48; Ex. 2001 at ¶ 54; POR at
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`6-7, 18. By the end of the algorithm, Cartesian coordinates pu, pv on the image
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`disk are obtained by multiplying each of two derived coordinates U, V by the
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`distribution function Fd(α) and the size L of the image disk. Ex. 1001 at 13:31-
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`14:35; Ex. 2001 at ¶ 50; POR at 7.
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`Shiota’s algorithm starts by finding coordinates X1, Y1, Z1 of a point P on
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`the display window using points X0, Y0, Z0 indicative of the origin of the display
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`window, the u, v coordinates of the point P in the display window plane, and
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`change amounts (∂ux, ∂vx, ∂uy, ∂vy, ∂uz, ∂vz). Ex. 1012 at ¶¶ [0028]-[0029]; Ex.
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`2001 at ¶ 43; POR at 11, 18-19. The points X0, Y0, Z0 and change amounts relate
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`to the user-selected alterations to magnification in the display window, which Mr.
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`Munro understands “magnification” and “scale factor” to mean in Shiota’s
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`paragraphs [0023]-[0026]. Ex. 1012 at ¶¶ [0023]-[0026]; Ex. 2001 at ¶¶ 53-56;
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`POR at 18-19. The algorithm concludes by obtaining “second projection
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`coordinates (p1, q1) on the image pickup face” using coefficient k2 and coordinates
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`X2, Y2 from point P' on the hemisphere. Ex. 1012 at ¶¶ [0033]-[0042]; Ex. 2001 at
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`¶ 44; POR at 10; Ex. 2006 at 64:2-5, 67:4-7. As Dr. Kessler admits, k2, X2, and Y2
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`are all normalized (or dimensionless), meaning p1 and q1, are normalized as well.
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`Ex. 2006 at 57:21-58:7, 69:5-6, 70:3-71:6; Ex. 2001 at ¶ 44. Shiota’s p1 and q1 do
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`not incorporate the image size at all, nor does Shiota’s algorithm show or describe
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`any further operations performed on either p1 or q1. Ex. 1012 at ¶¶ [0041]-[0042].
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`The ‘990 Patent uses the image size to retrieve image points and includes
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`that value in the example algorithm. Shiota’s algorithm contains no such variable
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`and, therefore, does not support Petitioner’s interpretation of “magnification.”
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`This alone undermines Petitioner’s claim that the ‘990 Patent and Shiota teachings
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`are commensurate. Moreover, Mr. Munro’s understanding of paragraphs [0023]-
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`[0026] is tied to the origin coordinates (X0, Y0, Z0) and change amounts explicitly
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`recited in Shiota’s algorithm, while Dr. Kessler’s interpretation has no corollary in
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`any of the listed equations.
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`Petitioner also introduces a new argument further tying the alleged
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`obviousness to Baker’s disclosure of “edge detection.” Reply at 20-21. To the
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`extent Petitioner is using this teaching from Baker to read on a claim element for
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`which Shiota was previously relied,2 or to change the rationale to combine the two
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`references, such use is improper. See e.g., Intelligent Bio-Sys., Inc. v. Illumina
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`Cambridge Ltd., 821 F.3d 1359, 1369–70 (Fed. Cir. 2016) (upholding PTAB
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`exclusion of reply brief for relying on a new rationale to combine references);
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`Google LLC v. Nobots LLC, IPR2022-00940, Paper No. 38 (PTAB Nov. 29, 2023)
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`(finding improper reply where Petitioner relied on background or common
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`knowledge instead of the originally cited reference); Consolidated Trial Practice
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`Guide (Nov. 2019) at 73 (“Petitioner may not submit new evidence or argument in
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`reply that it could have presented earlier, e.g. to make out a prima facie case of
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`unpatentability”).
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`Regardless, Petitioner exaggerates the relevance of this disclosure. Baker
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`itself only teaches “edge detection” for ignoring certain pixels when constructing
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`abutting sub-images and generally in “associated processes during the course of
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`manipulation.” Ex. 1006 at 15:54-59, 16:5-18. There is no suggestion in Baker to
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`retrieve image points using an image size determined through edge detection. Mr.
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`2 Dr. Kessler’s testimony implies some new possible reliance on “edge detection”
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`to suggest Baker was already using image size in transformation algorithms (Ex.
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`2006 at 24:16-25:18), even though the Petition relied solely on Shiota to teach this
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`claim element (see e.g., Petition at 22-27, 50-51).
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`Munro’s testimony adds nothing further as he merely confirmed that edge
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`detection “could be used to detect the extent of the image from the optical [axis],”
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`not that it was used for such purpose in Baker or any other prior art reference of
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`record. Ex. 1025 at 49:5-50:15 (emphasis added). Despite Petitioner’s belated
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`attempt to overstate the evidence, edge detection’s general existence provides no
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`further clarity to Shiota’s disclosure. Petitioner has failed to demonstrate the
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`alleged “commensurate” nature of Shiota’s teachings (alone or in combination with
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`Baker) with the ‘990 Patent’s specification.
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`C. The Reply Contains No Separate Arguments Related to the
`Challenged Dependent Claims
`Petitioner offers no additional arguments or evidence in connection with
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`claims 2, 4, 29, or 30 to remedy the deficiencies in its analysis of claim 27. Reply
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`at 23. Accordingly, claims 2, 4, 29, and 30 should be found to be patentable over
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`the asserted obviousness grounds due at least to their dependence on claim 27.
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`Case No. IPR2023-00471
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`III. CONCLUSION
`For at least the reasons recited above and in the October 10, 2023 Patent
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`Docket No.: 688266-140IPR
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`Owner Response, Patent Owner requests that the PTAB find the challenged claims
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`not unpatentable.
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`Date: February 27, 2024
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`Respectfully submitted,
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`
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`By:
`
`
`/Stephen E. Murray/
`Stephen E. Murray, Reg. No. 63,206
`Keith A. Jones, Reg. No. 67,781
`PANITCH SCHWARZE BELISARIO & NADEL LLP
`Two Commerce Square
`2001 Market Street, Suite 2800
`Philadelphia, Pennsylvania 19103
`(215) 965-1330
`(215) 965-1331 (Fax)
`smurray@panitchlaw.com (E-Mail)
`kjones@panitchlaw.com (E-Mail)
`
`John D. Simmons, Reg. No. 52,225
`Dennis J. Butler, Reg. No. 51,519
`PANITCH SCHWARZE BELISARIO & NADEL LLP
`Wells Fargo Tower
`2200 Concord Pike, Suite 201
`Wilmington, DE 19803
`(302) 394-6030
`(302) 394-6031 (Fax)
`jsimmons@panitchlaw.com (E-mail)
`dbutler@panitchlaw.com (E-mail)
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`14
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`Case No. IPR2023-00471
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`Docket No.: 688266-140IPR
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`CERTIFICATE OF WORD COUNT
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`Pursuant to 37 C.F.R. §§ 42.24(c)(4) and 42.24(d), the undersigned certifies
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`that, according to the “Word Count” tool in Microsoft Word, which was used to
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`prepare this paper, the number of words in this Patent Owner’s Sur-Reply to
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`Petitioner’s Reply is 2,873.
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`/Stephen E. Murray/
`Stephen E. Murray
`Registration No. 63,206
`Attorney for ImmerVision, Inc.
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`Case No. IPR2023-00471
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`Docket No.: 688266-140IPR
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`CERTIFICATE OF SERVICE UNDER 37 CFR § 42.6(e)
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`I hereby certify that true copies of the foregoing PATENT OWNER’S SUR-
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`REPLY TO PETITIONER’S REPLY and accompanying exhibits have been served
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`in their entireties this 27th day of February 2024, by electronic mail on Petitioner’s
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`lead and back-up counsel, as follows:
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`W. Karl Renner
`Karan Jhurani
`David Holt
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`IPR50095-0114IP1@fr.com
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`/Stephen E. Murray/
`Stephen E. Murray
`Registration No. 63,206
`Attorney for ImmerVision, Inc.
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