Case 2:21-cv-00040-JRG Document 145 Filed 12/03/21 Page 1 of 35 PageID #: 5704
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
`
`
`
`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
`
`JURY TRIAL DEMANDED
`
`§
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
`
`Defendants.
`
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
`
`SAMSUNG DEFENDANTS’ MOTION FOR
`SUMMARY JUDGMENT OF INVALIDITY UNDER § 101
`
`
`
`
`
`
`
`

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`Case 2:21-cv-00040-JRG Document 145 Filed 12/03/21 Page 2 of 35 PageID #: 5705
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`TABLE OF CONTENTS
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`
`Page
`INTRODUCTION ............................................................................................................. 1
`STATEMENT OF ISSUES TO BE DECIDED BY THE COURT .................................. 1
`STATEMENT OF UNDISPUTED MATERIAL FACTS ................................................ 1
`LEGAL STANDARDS ..................................................................................................... 4
`ARGUMENT ..................................................................................................................... 5
`A.
`The Asserted Claims of the ’079 Patent Are Patent Ineligible Under § 101 ......... 5
`1.
`The Asserted Claims of the ’079 Patent Are Directed to the
`Abstract Idea of Observing and Determining a Gesture ............................ 5
`The Asserted Claims of the ’079 Patent Do Not Recite an
`Inventive Concept .................................................................................... 10
`The Asserted Claims of the ’949 Patent Are Patent Ineligible Under § 101 ....... 11
`1.
`The Asserted Claims of the ’949 Patent Are Directed to the
`Abstract Idea of Capturing an Image Based on an Observed
`Gesture ..................................................................................................... 11
`The Asserted Claims of the ’949 Patent Do Not Recite an
`Inventive Concept .................................................................................... 15
`The Asserted Claims of the ’431 Patent Are Patent Ineligible Under § 101 ....... 16
`1.
`The Asserted Claims of the ’431 Patent Are Directed to the
`Abstract Idea of Taking Action Based on an Observed Movement
`or Position ................................................................................................ 16
`The Asserted Claims of the ’431 Patent Do Not Recite an
`Inventive Concept .................................................................................... 22
`The Asserted Claims of the ’924 Patent Are Patent Ineligible Under § 101 ....... 23
`1.
`The Asserted Claims of the ’924 Patent Are Directed to the
`Abstract Idea of Taking Action Based on an Observation ...................... 23
`The Asserted Claims of the ’924 Patent Do Not Recite an
`Inventive Concept .................................................................................... 29
`CONCLUSION ................................................................................................................ 30
`
`I.
`II.
`III.
`IV.
`V.
`
`VI.
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`
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`B.
`
`C.
`
`D.
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`2.
`
`2.
`
`2.
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`2.
`
`-i-
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`

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`Case 2:21-cv-00040-JRG Document 145 Filed 12/03/21 Page 3 of 35 PageID #: 5706
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`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`Cases
`
`Alice Corp. v. CLS Bank Int’l,
`573 U.S. 208 (2014) .....................................................................................................1, 4, 5, 20
`
`Celotex Corp. v. Catrett,
`477 U.S. 317 (1986) ...................................................................................................................4
`
`ChargePoint, Inc. v. SemaConnect, Inc.,
`920 F.3d 759 (Fed. Cir. 2019)............................................................................................20, 27
`
`Customedia Techs., LLC v. Dish Network Corp.,
`951 F. 3d 1359 (Fed. Cir. 2020).................................................................................................5
`
`Elec. Power Grp., LLC v. Alstom S.A.,
`830 F.3d 1350 (Fed. Cir. 2016)................................................................................6, 12, 17, 24
`
`Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd.,
`955 F.3d 1317 (Fed. Cir. 2020)........................................................................................ passim
`
`PersonalWeb Techs. LLC v. Google LLC,
`8 F. 4th 1310 (Fed. Cir. 2021) ...................................................................................................5
`
`SAP Am., Inc. v. InvestPic, LLC,
`898 F.3d 1161 (Fed. Cir. 2018)............................................................................................5, 12
`
`In re TLI Commc’ns LLC Patent Litig.,
`823 F.3d 607 (Fed. Cir. 2016).......................................................................................... passim
`
`Yu v. Apple Inc.,
`1 F.4th 1040 (Fed. Cir. 2021) ..................................................................................9, 14, 20, 28
`
`Statutes
`
`35 U.S.C. § 101 ...................................................................................................................... passim
`
`Other Authorities
`
`Fed. R. Civ. P. 56(a) ........................................................................................................................4
`
`-ii-
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`Case 2:21-cv-00040-JRG Document 145 Filed 12/03/21 Page 4 of 35 PageID #: 5707
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`
`I.
`
`INTRODUCTION
`
`Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (“Defendants”)
`
`move for summary judgment of invalidity under 35 U.S.C. § 101 of the asserted claims of U.S.
`
`Patent Nos. 8,553,079 (“’079 Patent”), 8,878,949 (“’949 Patent”), 7,933,431 (“’431 Patent”), and
`
`8,194,924 (“’924 Patent”) (collectively, “Patents-in-Suit”). The claims of all four patents reflect
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`attempts to capture the abstract concepts of analyzing images to determine information such as a
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`gesture performed, which is then used by three of the four patents to perform some function of the
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`device—the ’079 Patent claims do nothing with the result of the image analysis. The claims recite
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`generic computer components, such as a camera and processor, that merely perform basic routine
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`functions for implementing these abstract concepts, the type of results-oriented, “apply it”-on-a-
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`computer claims the Supreme Court held in Alice are patent ineligible.
`
`None of the Patents-in-Suit purport to improve any technology and their claims do not
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`recite any specific technological solutions, but instead use functionally recited, generic computer
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`technology as a tool to implement the abstract concepts. The claims thus recite well-understood,
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`routine, conventional activities previously known to the industry and do not recite an inventive
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`concept. Accordingly, the claims should be held invalid as patent ineligible under § 101.
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`II.
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`STATEMENT OF ISSUES TO BE DECIDED BY THE COURT
`
`Whether the asserted claims of the Patents-in-Suit are invalid under 35 U.S.C § 101.
`
`III.
`
`STATEMENT OF UNDISPUTED MATERIAL FACTS
`
`88:17.
`
`1.
`
`2.
`
`Controlling a device using gestures was known by November 1998. Ex. 3 at 87:21-
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`The ’079 Patent discloses that the claimed “computer apparatus” can be a laptop.
`
`’079 Patent at FIGS. 1-3, 1:63-2:2, 2:39-5:21.
`
`3.
`
`Using LEDs as a light source was conventional by November 1998. Ex. 5, ¶ 338.
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`-1-
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`4.
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`It was well-known that cameras and light sources could be fixed relative to a
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`keypad, including in conventional laptops. Ex. 5, ¶ 338.
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`5.
`
`The ’949 Patent discloses that its goal is to replace the conventional role of a
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`photographer with a system that can take a picture when the subject is in a particular pose or
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`performing a particular gesture. ’949 Patent at 7:57-8:9.
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`6.
`
`The ’949 Patent discloses there were already known cases “where the camera taking
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`the picture actually determines some variable in the picture and uses it for the process of obtaining
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`the picture.” ’949 Patent at 1:24-30.
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`7.
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`The ’949 Patent discloses that “point and shoot capability also based on the age
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`classification of the individuals whose picture is desired” was known. ’949 Patent at 1:36-43.
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`8.
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`The ’949 Patent alleges that there was no known picture taking reference based on
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`object position and orientation with respect to the camera. ’949 Patent at 1:44-46.
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`9.
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`The ’949 Patent discloses using known photogrammetric techniques to obtain
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`features of objects such as edges of arms. ’949 Patent at 3:20-23.
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`10.
`
`The ’949 Patent discloses using known or conventional machine vision techniques
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`to determine a gesture. ’949 Patent at 6:29-33, 10:40-44.
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`11.
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`The ’949 Patent discloses that its invention utilizes “commonplace” cameras. ’949
`
`Patent at 1:50-62.
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`12.
`
`The ’431 and ’924 Patents disclose that a handheld device can be controlled to
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`transmit an image of a recognized object of interest over a mobile phone link. ’431 Patent at 12:65-
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`13:7; ’924 Patent at 13:1-19.
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`13.
`
`The ’431 and ’924 Patents disclose that “the invention” is about analyzing the
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`output of one or more cameras “to typically provide data concerning the location of parts of, or
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`objects held by, a person or persons” and to “provide various position and orientation related
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`functions of use” with “the basic task of generating, storing and/or transmitting a TV image.” ’431
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`Patent at 2:20-23, 11:54-61; ’924 Patent at 2:20-23, 11:57-64.
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`14.
`
`The ’431 and ’924 Patents propose to add functionality to existing handheld
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`devices. ’431 Patent at 11:62-67; ’924 Patent at 11:65-12:3.
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`15.
`
`The ’431 and ’924 Patents describe analyzing camera images for controlling a
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`device in the context of large-screen TVs, automobiles, games, household work, and robot control
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`systems. ’431 Patent at 3:23-33, 13:46-14:9, 14:10-17:2, 17:3-20:41, 20:42-22:7, 22:9-23:3,
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`23:52-25:35, 25:36-38; ’924 Patent at 3:27-37, 13:48-14:13, 14:14-17:25, 17:26-20:41, 20:52-
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`22:7, 22:9-23:2, 23:51-25:36; 25:37-39.
`
`16.
`
`The ’431 and ’924 Patents describe analyzing a camera image to determine position
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`or movement information as “well known” and “known” in the art. ’431 Patent at 4:20-28, 6:66-
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`7:2; ’924 Patent at 4:24-32, 7:3-5.
`
`17.
`
`The ’924 Patent describes controlling a device based on the output of a camera as
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`known in the art. ’924 Patent at 13:39-43, 26:6-10.
`
`18.
`
`Handheld devices with two cameras having non-overlapping fields of view, one
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`oriented to view a user and the other oriented to view an object other than the user, were known
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`by November 1998. Ex. 3 at 93:10-95:16.
`
`19.
`
`During prosecution of the ’431 Patent’s parent, the applicant stated that techniques
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`for determining an object’s position or movement from a camera image were “well known” in the
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`art at the time, were known since 1980, and that there were “many such methods” known to those
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`of ordinary skill in the art at the time the invention was made. Ex. 7 at 1-3.
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`20.
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`Transmitting and displaying data was a routine function of handheld devices, such
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`as mobile phones, known at the time of the invention of the ’431 and ’924 Patents. ’431 Patent at
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`12:65-13:7; ’924 Patent at 13:1-11; Ex. 12 at 454:9-13; Ex. 5 ¶¶ 158, 332, 335.
`
`21.
`
`The named inventor of the Patents-in-Suit, Dr. Timothy Pryor, did not invent a
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`mobile phone. Ex. 12 at 454:9-13.
`
`22.
`
`Cellular phones were conventional at the time of the invention of the ’431 and ’924
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`Patents. Ex. 5 ¶¶ 332, 335.
`
`23.
`
`Sensing light, capturing images or pictures, and capturing video at a frame rate,
`
`such as 30 frames per second or more, were well-known, routine, and conventional operations of
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`cameras at the time of the invention of the ’431 and ’924 Patents. Ex. 5 ¶¶ 332, 335.
`
`24.
`
`It was conventional for computers to transmit information to other devices,
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`including transmitting data over the internet, at the time of the invention of the ’431 and ’924
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`Patents. Ex. 5, ¶¶ 332, 335.
`
`25.
`
`Displays were conventional components of handheld devices at the time of the
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`invention of the Patents-in-Suit. Ex. 5, ¶¶ 158, 332, 335.
`
`IV.
`
`LEGAL STANDARDS
`
`Summary judgment should be granted if “there is no genuine dispute as to any material
`
`fact.” Fed. R. Civ. P. 56(a). Summary judgment is warranted if a party “fails to make a showing
`
`sufficient to establish the existence of an element essential to that party’s case, and on which that
`
`party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
`
`The Supreme Court has held that “[l]aws of nature, natural phenomena, and abstract ideas
`
`are not patentable” under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216
`
`(2014). Under the Supreme Court’s two-step framework for determining patent eligibility, the
`
`court must first determine whether the claims are directed to a patent-ineligible concept, such as
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`an abstract idea, and then whether they contain an inventive concept sufficient to transform the
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`claimed abstract idea into a patent-eligible application. Id. at 217, 221.
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`Step one “often turns on whether the claims focus on the specific asserted improvement in
`
`computer capabilities or instead on a process that qualifies as an abstract idea for which computers
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`are invoked merely as a tool.” Customedia Techs., LLC v. Dish Network Corp., 951 F. 3d 1359,
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`1365 (Fed. Cir. 2020). Step one requires evaluating “the ‘focus of the claimed advance over the
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`prior art’ to determine if the claim’s ‘character as a whole’ is directed to excluded subject matter.”
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`PersonalWeb Techs. LLC v. Google LLC, 8 F. 4th 1310, 1315 (Fed. Cir. 2021) (citation omitted).
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`At step two, the abstract idea cannot itself provide the inventive concept, as “[a] claim for
`
`a new abstract idea is still an abstract idea.” Id. at 1318 (citation omitted) (emphasis in original).
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`Claims that “merely ‘automate or otherwise make more efficient traditional . . . methods’” do not
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`recite an inventive concept and are therefore patent ineligible. Id. at 1319 (citation omitted). The
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`mere fact “that the techniques claimed are ‘groundbreaking, innovative, or even brilliant’ . . . is
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`not enough for patent eligibility.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir.
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`2018) (citation omitted). “Nor is it enough for subject-matter eligibility that claimed techniques
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`be novel and nonobvious in light of prior art, passing muster under 35 U.S.C. §§ 102 and 103.”
`
`Id.
`
`V.
`
`ARGUMENT
`A.
`
`The Asserted Claims of the ’079 Patent Are Patent Ineligible Under § 101
`1.
`
`The Asserted Claims of the ’079 Patent Are Directed to the Abstract
`Idea of Observing and Determining a Gesture
`
`The asserted claims of the ’079 Patent (Claims 1-6, 8-9, 11, 14-15, 19, 21-25, 30) are
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`directed to the abstract idea of observing and determining a gesture.
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`-5-
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`Claim 11 of the ’079 Patent recites a computer apparatus with a camera for observing a
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`gesture performed, a light source for illuminating the gesture, and a processor for determining the
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`gesture based on the camera output. For purposes of infringement, GTP’s expert has alleged that
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`the light source may be a display. Ex. 1 (Occhiogrosso Rpt. Ex. SAMSUNG-079) at 29.
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`Claim 11 of the ’079 Patent amounts to nothing more than obtaining and analyzing images
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`to determine a gesture performed within the context of a generic computer environment. Such
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`data collection and analysis is abstract. Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
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`1353-54 (Fed. Cir. 2016) (“The advance [the claims] purport to make is a process of gathering and
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`analyzing information of a specified content, then displaying the results, and not any particular
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`assertedly inventive technology for performing those functions. They are therefore directed to an
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`abstract idea.”). People have determined gestures, including in images and video, throughout
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`history. The ’079 Patent claims are results-oriented and at a high level of generality, claiming a
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`generic computer apparatus with a camera, light source (e.g., a display, according to GTP), and
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`processor for performing the gesture determination, and they fail to provide any technological
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`detail. See id. at 1356 (“Indeed, the essentially result-focused, functional character of claim
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`language has been a frequent feature of claims held ineligible under § 101, especially in the area
`
`of using generic computer and network technology to carry out economic transactions.”). The
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`claims “do not ‘have the specificity required to transform a claim from one claiming only a result
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`to one claiming a way of achieving it.’” Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd., 955
`
`F.3d 1317, 1328 (Fed. Cir. 2020) (citation omitted). The claims are drafted functionally and are
`
`silent as to how the processor uses the camera to determine a gesture.
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`The claims of the ’079 Patent are no less abstract than those held patent ineligible in In re
`
`TLI. The claims there recited a “digital pick up unit” (i.e., a digital camera) in a “telephone unit,”
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`-6-
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`such as a “cellular telephone,” for capturing an image that is then transmitted to a server for
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`classification and storage, and were found to be directed to the abstract idea of “classifying and
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`storing digital images in an organized manner.” In re TLI Commc’ns LLC Patent Litig., 823 F.3d
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`607, 610-13 (Fed. Cir. 2016). Despite reciting “concrete, tangible components such as ‘a telephone
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`unit’ and a ‘server,’” the court in In re TLI held the “specification makes clear that the recited
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`physical components merely provide a generic environment in which to carry out the abstract
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`idea.” Id. at 611. The court found “the specification’s emphasis that the present invention ‘relates
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`to a method for recording, communicating and administering [a] digital image’ underscores that
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`[the claim] is directed to an abstract concept.” Id. (citation omitted).
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`The court in In re TLI further found the claims were “not directed to a specific improvement
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`in computer functionality” but were “directed to the use of conventional or generic technology in
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`a nascent but well-known environment, without any claim that the invention reflects an inventive
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`solution to any problem presented by combining the two.” Id. at 611-12. Specifically, “the
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`problem facing the inventor was not how to combine a camera with a cellular telephone, how to
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`transmit images via a cellular network, or even how to append classification information to that
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`data,” nor “was the problem related to the structure of the server that stores the organized digital
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`images.” Id. at 612. The specification did “not describe a new telephone, a new server, or a new
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`physical combination of the two” and “fail[ed] to provide any technical details for the tangible
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`components, but instead predominately describe[d] the system and methods in purely functional
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`terms.” Id. The “telephone unit” was described as having “the standard features of a telephone
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`unit” with the addition of a digital image pick up unit that operates as a known digital photo
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`camera, and the specification noted it was known that cellular telephones could transmit images,
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`thus showing that “the telephone unit itself is merely a conduit for the abstract idea of classifying
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`an image and storing the image based on its classification.” Id. The server was similarly described
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`“in terms of performing generic computer functions such as storing, receiving, and extracting
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`data,” further showing that “the focus of the patentee and of the claims was not on an improved
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`telephone unit or an improved server.” Id. at 612-13. The mere fact that “the claims limit the
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`abstract idea to a particular environment—a mobile telephone system—[did] not make the claims
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`any less abstract for the step 1 analysis.” Id. at 613; see also Ericsson, 955 F.3d at 1327.
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`The ’079 Patent does not even recite a telephone unit or a handheld device, but instead
`
`recites a generic “computer apparatus.” According to GTP, the claims only require a computer
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`with a display, a camera, and a processor for performing their basic functions of emitting light,
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`obtaining images, and processing an image, respectively. The problem facing the inventor was
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`not how to invent a new computer apparatus, as the patent discloses that the computer apparatus
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`can simply be a laptop. Ex. 2 (’079 Patent) at FIGS. 1-3, 1:63-2:2, 2:39-5:21. Nor was the problem
`
`facing the inventor how to determine a gesture from camera images, as the patent is devoid of such
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`detail. This aligns with the admission of GTP’s technical expert that computers that could detect
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`gestures from camera images already existed; namely,
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`
`
` Ex. 3 (Occhiogrosso Day
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`2 Tr.) at 87:21-88:17. It is also consistent with the admissions in the similar ’949 Patent by the
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`same inventor, which discloses using “known machine vision techniques” or “conventional 2D
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`machine vision type image processing (e.g. [sic] ‘Vision Bloks’ software from Integral Vision
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`Corp.)” to determine a gesture.1 Ex. 4 (’949 Patent) at 6:29-33, 10:40-44.
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`The inventor simply sought to implement the abstract concept of detecting a gesture from
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`an image in a generic computer apparatus environment comprising a camera, light source, and
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`
`1 All emphasis is added unless otherwise stated.
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`Case 2:21-cv-00040-JRG Document 145 Filed 12/03/21 Page 12 of 35 PageID #: 5715
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`processor. The claims of the ’079 Patent “are not directed to a specific improvement to computer
`
`functionality,” but rather “they are directed to the use of conventional or generic technology in a
`
`nascent but well-known environment, without any claim that the invention reflects an inventive
`
`solution to any problem presented by combining the two.” In re TLI, 823 F.3d at 612. The
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`hardware recited “is merely a conduit for the abstract idea” of determining a gesture from images.
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`Id.; see also Yu v. Apple Inc., 1 F.4th 1040, 1042-43, 1045 (Fed. Cir. 2021) (finding claim for an
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`“improved digital camera” to be patent-ineligible under § 101 where claimed hardware was merely
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`a “conduit” for the abstract idea of taking two pictures and using one to enhance the other). As
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`such, the focus of the claims is not on an improved computer apparatus, but instead on the abstract
`
`idea of determining a gesture from images.
`
`Claim 11 of the ’079 Patent is representative. Claim 1 is essentially a method of using the
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`apparatus recited in Claim 11. Claim 21 is a method that is mostly the same as Claim 1, but the
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`work volume is above the camera instead of the light source and the gesture is limited to hand and
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`finger gestures, which do not change the focus of the claims from the abstract idea of determining
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`a gesture. The remaining claims depend from Claims 1, 11, or 21. These claims merely recite
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`conventional components, such as LEDs for the light source (Claims 2-3, 14-15, 22-23)—GTP
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`points to a conventional display for infringement—or fixing the camera and light source relative
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`to a keypad as is the case with conventional laptops (Claims 9, 30), or they further describe the
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`abstract idea, including the type of gesture detected (Claims 5, 19, 25), information determined
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`(Claims 6, 8), or that sequential camera images are analyzed to determine the gesture (Claims 4,
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`24). Ex. 5 ¶¶ 158, 338. These additional limitations recited in dependent claims do not shift the
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`focus of the claims away from the abstract idea of determining a gesture from images.
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`Accordingly, the asserted claims of the ’079 Patent are directed to an abstract idea.
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`2.
`
`The Asserted Claims of the ’079 Patent Do Not Recite an Inventive
`Concept
`
`Apart from the abstract idea, Claim 11 of the ’079 Patent contains nothing more than a
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`generic computer apparatus that includes a camera, light source (e.g., a display, according to GTP)
`
`and processor. The patent does not purport to invent a new computer apparatus, but uses existing
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`laptops. ’079 Patent at FIGS. 1-3, 1:63-2:2, 2:39-5:21; see also Ex. 5 (Stevenson Op. Rpt.) ¶¶ 337-
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`39. Just as the “camera phone” alleged to be “a core feature of the invention” in In re TLI was
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`insufficient to confer patent eligibility because it “behave[d] as expected” in that it “operates as a
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`digital photo camera of the type which is known,” 823 F.3d at 614, the camera claimed in the ’079
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`Patent operates as a conventional camera that captures an image. See, e.g., ’079 Patent at Claims
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`4, 24. And as explained above for step one, the generic processor analyzes the image using known
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`computer vision techniques to implement the abstract idea of determining the gesture performed.
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`Ex. 3 at 87:21-88:17; ’949 Patent at 6:29-33, 10:40-44.
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`The other independent claims and the dependent claims similarly fail to recite any inventive
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`concept. Claim 1 recites a method that essentially corresponds to using the apparatus recited in
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`Claim 11, and therefore lacks an inventive concept for the same reasons. Claim 21 is a method
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`that is mostly the same as Claim 1, but the work volume is above the camera instead of the light
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`source and the gesture is limited to hand and finger gestures, neither of which provide an inventive
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`concept. The patent ascribes no significance to the former but states that any camera location is
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`usable so long as it points at the work volume, Ex. at 2:39-53, and the latter is just a restatement
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`of the abstract idea. Claims 2-3, 14-15, and 22-23 recite using conventional LEDs as the light
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`source, which according to GTP can be an LED display. Ex. 5 ¶¶ 158, 338. Claims 9 and 30
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`require fixing the camera and light source relative to a keypad, as with conventional laptops. Id.
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`Claims 5, 19, and 25 specify the type of gesture detected, Claims 6 and 8 specify additional
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`information that is determined, and Claims 4 and 24 describe analyzing sequential camera images
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`to determine the gesture. All of these amount to nothing more than the abstract idea of analyzing
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`an image to determine a gesture and therefore not an inventive concept. The additional limitations
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`recited in the dependent claims do not shift the focus of the claims away from the abstract idea of
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`determining a gesture from images.
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`In sum, the ’079 Patent claims recite generic components that, as an ordered combination,
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`act as a tool in performing their basic functions of capturing an image and analyzing data to carry
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`out the abstract idea of observing and determining a gesture, serving as a generic environment for
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`the abstract idea rather than an inventive concept. Thus, Claims 1-6, 8-9, 11, 14-15, 19, 21-25,
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`and 30 of the ’079 Patent are patent ineligible under § 101.
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`B.
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`The Asserted Claims of the ’949 Patent Are Patent Ineligible Under § 101
`1.
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`The Asserted Claims of the ’949 Patent Are Directed to the Abstract
`Idea of Capturing an Image Based on an Observed Gesture
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`The asserted claims of the ’949 Patent (Claims 13-14, 16, 18) are directed to the abstract
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`idea of capturing an image based on an observed gesture.
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`Claim 13 of the ’949 Patent recites an “image capture device” with a sensor and digital
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`camera in a forward facing portion of the device housing, and a processing unit that detects a
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`gesture performed based on the output of the sensor and subsequently captures an image using the
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`digital camera. For purposes of infringement, GTP’s expert has alleged the claim only requires a
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`camera and a processor because a single camera and the sensor within it can satisfy both the digital
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`camera and the sensor limitations of Claim 13. Ex. 6 (Occhiogrosso Rpt. Ex. SAMSUNG-949) at
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`3; Ex. 10 (Occhiogrosso Day 1 Tr.) at 99:13-18, 100:12-15.
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`Thus, Claim 13 of the ’949 Patent amounts to nothing more than analyzing images to
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`determine a gesture and subsequently capturing an image within the generic environment of an
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`-11-
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`Case 2:21-cv-00040-JRG Document 145 Filed 12/03/21 Page 15 of 35 PageID #: 5718
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`image capture device. Such data collection and analysis is abstract. Elec. Power, 830 F.3d at
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`1353-54. The ’949 Patent claims are results-oriented and at a high level of generality, claiming a
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`generic image capture device with a camera, a sensor (GTP says the sensor can be the camera’s
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`sensor), and a processor for performing the abstract image analysis and control functions, and they
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`fail to provide any technological detail. See id. at 1356. The claims “do not ‘have the specificity
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`required to transform a claim from one claiming only a result to one claiming a way of achieving
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`it.’” Ericsson, 955 F.3d at 1328 (citation omitted). The claims are drafted functionally and are
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`silent as to how the processor analyzes the camera output to determine a gesture. They only make
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`a generic functional recitation that the processor uses the camera to determine a gesture.
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`As with the ’079 Patent, the claims of the ’949 Patent are no less abstract than those held
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`patent ineligible in In re TLI. See In re TLI, 823 F.3d at 610-13. As in In re TLI, the problem
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`facing the inventor of the ’949 Patent was not how to invent a new image capture device or how
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`to determine a gesture from camera images. The ’949 Patent does not purport to create a new
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`image capture device or new technology, but states that its goal is just to replace the conventional
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`role of a photographer with a system that can take a picture when the subject is in a particular pose
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`or performing a particular gesture. ’949 Patent at 7:57-8:9. The patent admits that there were
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`already known cases “where the camera taking the picture actually determines some variable in
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`the picture and uses it for the process of obtaining the picture.” ’949 Patent at 1:24-30. One such
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`known example described in the patent concerns “point and shoot capability also based on the age
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`classification of the individuals whose picture is desired.” ’949 Patent at 1:36-43. The patent only
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`purports to have invented using the position or orientation of an object for taking a picture. ’949
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`Patent at 1:44-46. But limiting the information used does not change the abstract nature of the
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`data analysis. See SAP, 898 F.3d at 1167 (“‘Information as such is an intangible,’ hence abstract,
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`and ‘collecting information, including when limited to a particular content (which does not change
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`its character as information), [i]s within the realm of abstract ideas.’”).
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`Further, the patent does not propose any new technology for determining the position or
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`orientation of an object, but rather utilizes admittedly known and conventional techniques. For
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`example, the patent states “[w]ith two or more cameras, such 3D data may also be obtained using
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`other features of objects such as edges of arms and the likely [sic] using known photogrammetric
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`techniques.” ’949 Patent at 3:20-23. The patent also discloses an embodiment where a picture is
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`taken when the hand of a man moves towards the head of a woman, and “[t]o obtain the data, one
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`can look for hand or head indications in the image using known machine vision techniques . . . .”
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`’949 Patent at 6:29-33. And the patent further discloses that “conventional 2D machine vision
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`type image processing (e.g. [sic] ‘Vision Bloks’ software from Integral Vision Corp.) can