Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 18
`Entered: August 27, 2014
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`TRW AUTOMOTIVE US LLC,
`Petitioner,
`
`v.
`
`MAGNA ELECTRONICS, INC.,
`Patent Owner.
`_______________
`
`Case IPR2014-00258
`Patent 7,994,462 B2
`_______________
`
`
`Before JUSTIN T. ARBES, BENJAMIN D. M. WOOD, and
`NEIL T. POWELL, Administrative Patent Judges.
`
`WOOD, Administrative Patent Judge.
`
`
`
`DECISION
`Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`Paper 18
`Entered: August 27, 2014
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`TRW AUTOMOTIVE US LLC,
`Petitioner,
`
`v.
`
`MAGNA ELECTRONICS, INC.,
`Patent Owner.
`_______________
`
`Case IPR2014-00258
`Patent 7,994,462 B2
`_______________
`
`
`Before JUSTIN T. ARBES, BENJAMIN D. M. WOOD, and
`NEIL T. POWELL, Administrative Patent Judges.
`
`WOOD, Administrative Patent Judge.
`
`
`
`DECISION
`Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`
`
`IPR2014-00258
`Patent 7,994,462 B2
`
`
`I.
`
`INTRODUCTION
`
`TRW Automotive US LLC (“TRW”) filed a request for rehearing
`
`(Paper 17) (“Reh’g Req.”) of our decision, dated June 26, 2014 (Paper 16)
`
`(“Dec.”) denying institution of an inter partes review of U.S. Patent No.
`
`7,994,462 B2 (“the ’462 patent”). Reh’g Req. 1. TRW requests that we
`
`reconsider our determination not to institute an inter partes review on the
`
`following grounds: (1) claims 1, 3, 5-7, 10, 15, 19, 23, 26, and 27 as
`
`anticipated by Kenue;1 (2) claims 1, 3, 5-8, 10, 15, 19, 21, 23, 26, and 27 as
`
`obvious over Yanagawa,2 Bottesch,3 and Wilson-Jones;4 (3) claim 11 as
`
`obvious over AURORA5 and either Kenue or the combination of Yanagawa,
`
`Bottesch and Wilson-Jones; (4) claims 12 and 13 as obvious over Zheng6
`
`and either Kenue or the combination of Yanagawa, Bottesch and Wilson-
`
`Jones; (5) claims 16 and 17 as obvious over Vellacott7 and either Kenue or
`
`the combination of Yanagawa, Bottesch and Wilson-Jones; and (6) claim 9
`
`as obvious over the combination of Yanagawa, Bottesch, Wilson-Jones and
`
`
`1 U.S. Patent No. 4,970,653 to Kenue, Ex. 1004.
`2 JP S62-121837 to Yanagawa et al., Ex. 1005.
`3 U.S. Patent No. 5,166,681 to Bottesch, Ex. 1006.
`4 EP0640903A1 to Wilson-Jones et al., Ex. 1007.
`5 Mai Chen, AURORA: A Vision-Based Roadway Departure Warning
`System, 1995 IEEE/RSJ Int’l Conf. on Intelligent Robots and Systems
`(Aug. 9, 1995), Ex. 1009.
`6 Yon-Jian Zheng, et al., An Adaptive System for Traffic Sign Recognition,
`INTELLIGENT VEHICLES ’94 SYMPOSIUM (Oct. 24-26, 1994), Ex. 1010.
`7 Oliver Vellacott, CMOS in Camera, IEE REVIEW (May 1994), Ex. 1008.
`
` 2
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`IPR2014-00258
`Patent 7,994,462 B2
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`Tadashi.8 Id. For the reasons stated below, TRW’s Rehearing Request is
`
`denied.
`
`II.
`
`STANDARD OF REVIEW
`
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition,
`
`a panel will review the decision for an abuse of discretion.” An abuse of
`
`discretion occurs when a “decision was based on an erroneous conclusion of
`
`law or clearly erroneous factual findings, or . . . a clear error of judgment.”
`
`PPG Indus. Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567
`
`(Fed. Cir. 1988) (citations omitted). The request must identify, specifically,
`
`all matters the party believes the Board misapprehended or overlooked.
`
`37 C.F.R. § 42.71(d).
`
`III. DISCUSSION
`
`A.
`
`Claims 1, 3, 5-7, 10, 15, 19, 23, 26, and 27—Anticipation by
`Kenue
`
`1.
`
`Claims 1, 3, 5-7, 10, 15, and 19
`
`In its Petition, TRW alleged that Kenue anticipates claims 1, 3, 5-7,
`
`10, 15, and 19. Pet. 12-21. Claim 1 is independent, and claims 3, 5-7, 10,
`
`15, and 19 depend, either directly or indirectly, from claim 1. Claim 1 is
`
`drawn to an “image sensing system” that “identifies objects . . . via
`
`processing of . . . captured image data,” and “wherein said image processing
`
`comprises pattern recognition . . . based at least in part on at least one of (i)
`
`shape, (ii) reflectivity, (iii) luminance and (iv) spectral characteristic.”
`
`Ex. 1002, 12:57-13:11. Claim 1 further recites “wherein said pattern
`
`recognition is enhanced by comparing image data of objects over successive
`
`
`8 JP HEI4-127280 to Tadashi, Ex. 1011.
`
` 3
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`IPR2014-00258
`Patent 7,994,462 B2
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`frames of captured image data” (hereinafter, the “enhanced-pattern-
`
`recognition limitation”). Id., 13:12-14. TRW alleged in the Petition that
`
`Kenue discloses image processing algorithms that use pattern recognition
`
`“based at least in part on at least one of shape and luminance.” Pet. 14.
`
`TRW further alleged that Kenue discloses the enhanced-pattern-recognition
`
`limitation, relying on the following passages from Kenue:
`
`[The] algorithms . . . dynamically define the search area for lane
`markers based on the lane boundaries of the previous frame,
`and provide estimates of the position of missing markers on the
`basis of current frame and previous frame information. . . .
`Moreover, the search area changes with marker position MP,
`and increases in size if the marker was not found in the search
`of the previous frame. . . . After the centroid of each marker is
`calculated[,] . . . if the markers are not found where expected . .
`. based on the previously detected lane geometry, the marker
`locations from the previous frame are used.
`
`Pet. 16 (quoting Ex. 1004, 2:44-48, 4:27-29, 5:15-18).
`
`We denied institution as to this ground because we were not
`
`persuaded that Kenue discloses the enhanced-pattern-recognition limitation.
`
`Dec. 13. We stated that “neither TRW nor [its declarant] Dr. Miller explains
`
`sufficiently how these passages correspond to the limitation at issue. . . . [I]t
`
`is not self-evident how the quoted passages relate to ‘enhanc[ing] pattern
`
`recognition,’ based on ‘at least one of shape and luminance.’” Id.
`
`TRW contends that this determination was erroneous.
`
`Reh’g Req. 6-8. First, TRW asserts that “[t]he Board incorrectly requires
`
`the enhancement to be based on ‘at least one of shape and luminance.” Id. at
`
`7. TRW misunderstands our analysis. The required enhancement must be to
`
`“said” pattern recognition. We based our analysis on TRW’s assertion that
`
`Kenue teaches pattern recognition “based at least in part on at least one of
`
` 4
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`IPR2014-00258
`Patent 7,994,462 B2
`
`shape and luminance.” Pet. 14 (emphasis added). Therefore, the “said”
`
`pattern recognition that TRW had to show was “enhanced” must be based at
`
`least in part on at least one of shape and luminance. TRW did not attempt to
`
`connect Kenue’s alleged pattern recognition with the passages from Kenue
`
`that allegedly teach enhancing pattern recognition. In fact, TRW provided
`
`no analysis at all on this point. Accordingly, TRW has not persuaded us that
`
`we erred in this regard.
`
`Second, TRW alleges that “[t]he cited portion of Kenue nonetheless
`
`describes enhancing pattern recognition based on shape,” and explains why
`
`this is so. Reh’g Req. 8. TRW does not explain, however, why it failed to
`
`provide this analysis in its Petition. A rehearing request under 37 C.F.R.
`
`§ 42.71(d) is not an opportunity to submit new arguments that could have
`
`been submitted in the petition. Accordingly, we decline to consider this new
`
`argument.
`
`2.
`
`Claims 23, 26, and 27
`
`In its Petition, TRW alleged that Kenue anticipates claims 23, 26, and
`
`27. Pet. 42-48. Claim 23 is independent, and claims 26 and 27 depend from
`
`claim 23. Claim 23 recites, inter alia, “wherein objects are at least one of
`
`(a) qualified and (b) disqualified based, at least in part, on object motion in
`
`said field of view of said imaging sensor” (hereinafter, the “qualified-
`
`disqualified limitation”). Ex. 1002, 14:59-61. TRW relied on two separate
`
`excerpts from Kenue as disclosing this limitation. Pet 18-20 (citing
`
`Ex. 1004, 5:14-22, 3:10-21). The first excerpt reads:
`
`After the centroid of each marker is calculated[,] . . . if the
`markers are not found where expected . . . based on the
`previously detected lane geometry, the marker locations from
`the previous frame are used. . . . The determination of expected
`
` 5
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`IPR2014-00258
`Patent 7,994,462 B2
`
`
`marker position . . . involves comparing the position of each
`marker centroid with that of the previous frame. If the change
`is more than nine pixels, a flag is set.
`
`Ex. 1004, 5:14-22. In its Petition TRW characterized this passage as
`
`teaching that “objects are qualified based at least in part on object motion in
`
`said field of view of the imaging sensor.” Pet. 46 (emphasis added). The
`
`second excerpt reads:
`
`FIG. 3 illustrates the presence of a vehicle 30 or other obstacle
`in the roadway of FIG. 2. If the other vehicle is close, say,
`within 50 feet of the trailing vehicle, it tends to obscure the lane
`markers 24 to such an extent that there is insufficient
`information to determine the boundaries. In that case an
`obstacle warning is given and no further image processing is
`done on that frame. When the obstacle 30 is more than 50 feet
`away the image is processed but the obstacle is effectively
`erased from the image by removing horizontal and vertical
`lines, thereby making subsequent processing steps simpler.
`
`Ex. 1004, 3:10-21. In its Petition TRW characterized this excerpt as
`
`teaching that “objects are disqualified based in part on object motion in said
`
`field of view of the imaging sensor.” Pet. 46 (emphasis added).
`
`In our Decision, we observed that the above language from Kenue
`
`“does not, on its face, correspond to the qualified-disqualified limitation.”
`
`Dec. 11. We noted, for example, that “it is unclear from the first excerpt
`
`how lane markers are ‘qualified,’ i.e., determined to be objects of interest.
`
`Rather, it would seem that Kenue’s system predetermines lane markers to be
`
`of interest, as it is specifically designed to detect them.” Id. at 11-12. As for
`
`the second excerpt, we stated that “it is unclear how it describes
`
`disqualifying an object, i.e., determining it to be not of interest, based on
`
`object motion.” Id. at 12. We observed that, “[i]nstead, it appears to
`
` 6
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`IPR2014-00258
`Patent 7,994,462 B2
`
`describe issuing a warning to the driver based on object position (within 50
`
`feet of the vehicle), rather than object motion.” Id. Because we were not
`
`persuaded that TRW was reasonably likely to prevail in showing that Kenue
`
`teaches the qualified-disqualified limitation in claim 23, we declined to
`
`institute an inter partes review of claims 23, 26 and 27 as anticipated by
`
`Kenue. Id.
`
`TRW asserts in its Rehearing Request that our determination not to
`
`institute inter partes review of these claims constitutes an abuse of
`
`discretion. Reh’g Req. 3. First, in discussing whether the first excerpt from
`
`Kenue corresponds to the qualified-disqualified limitation, TRW alleges that
`
`we “incorrectly impute[d] into the qualified-disqualified limitation the
`
`requirement that the imaging system cannot be designed to detect the object
`
`that is being qualified/disqualified.” Id. at 3–4. We disagree. Our comment
`
`that “it would seem that Kenue’s system predetermines lane markers to be of
`
`interest, as it is specifically designed to detect them,” points out that
`
`qualifying an object as an object of interest likely means something beyond
`
`simply detecting the object. It is undisputed that Kenue’s system detects
`
`lane markers. But TRW did not explain how Kenue’s system qualifies lane
`
`markers as objects of interest, or address whether there is any difference
`
`between qualifying lane markers as objects of interest and simply detecting
`
`them. Ultimately, the problem with TRW’s analysis was its failure to offer
`
`any explanation why the first excerpt discloses qualifying an object as an
`
`object of interest. See Dec. 11-12 (“it is unclear from the first excerpt how
`
`lane markers are ‘qualified,’ i.e., determined to be objects of interest”).
`
`TRW next argues that we “fail[ed] to recognize the significance” of
`
`the first excerpt. Reh’g Req. 3. In describing the first excerpt, TRW alleges
`
` 7
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`IPR2014-00258
`Patent 7,994,462 B2
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`that (1) “a change in pixels connotes object motion between successive
`
`frames;” (2) the first excerpt from Kenue describes “qualifying/disqualifying
`
`because ‘a flag is set;’” and (3) “the flag being set here disqualifies the
`
`associated centroid as a lane marker when the centroid moves more than
`
`nine pixels between successive frames.” Id. at 4. This analysis does not
`
`persuade us that we abused our discretion in denying institution on the
`
`asserted ground. TRW impermissibly presents this analysis for the first time
`
`in its Rehearing Request, rather than in its Petition. As above, we decline to
`
`consider it. Further, even if we did, we would not consider it persuasive.
`
`First, it is inconsistent with TRW’s position in the Petition. TRW argues
`
`that the first Kenue excerpt discloses disqualifying an object as an object of
`
`interest, whereas, in its Petition, TRW contended that it discloses qualifying
`
`an object. See Pet. 46 (contending that the first excerpt “shows that objects
`
`are qualified based at least in part on object motion in said field of view of
`
`the imaging sensor”). Second, TRW’s allegations lack evidentiary support.
`
`TRW does not identify sufficient record evidence supporting its contention
`
`that “a change in pixels connotes object motion between successive frames,”
`
`or that “[t]he flag being set disqualifies the associated centroid as a lane
`
`marker.” Reh’g Req. 4.
`
`Finally, TRW argues that we “fail[ed] to recognize the significance of
`
`the second [excerpt] of Kenue.” Id. at 5. TRW argues that the reference to a
`
`“trailing vehicle” in the second excerpt “clearly connotes motion” instead of
`
`position. Id. Again, TRW did not make this allegation in the Petition, and
`
`therefore it is too late for TRW to raise it for the first time in its Rehearing
`
`Request. Even if we were to consider it, we would deem it to be
`
`unsupported attorney argument, which is entitled to little weight. Moreover,
`
` 8
`
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`IPR2014-00258
`Patent 7,994,462 B2
`
`we disagree with the allegation. “Trailing” simply means that the vehicle is
`
`behind the other vehicle, i.e., it connotes position, not motion. TRW
`
`apparently infers from the second excerpt that a detected obstacle is erased
`
`from the image – i.e., disqualified – only when the obstacle starts out within
`
`50 feet from the trailing vehicle, and then pulls away from the trailing
`
`vehicle until the distance between the vehicle and the obstacle “grows” to
`
`more than 50 feet. Id. at 5-6. This inference is unwarranted. Rather, Kenue
`
`states that “the obstacle is effectively erased from the image” when “the
`
`obstacle is more than 50 feet away,” indicating that the action of erasing the
`
`obstacle from the image is based on the obstacle’s position rather than its
`
`motion. See Dec. 12.
`
`B.
`
`Claims 1, 3, 5-9, 10, 15, 19, 21, 23, 26, and 27—Obvious over
`Yanagawa, Bottesch, Wilson-Jones, and Tadashi (Claim 9)
`
`In its Petition, TRW contended that claims 1, 3, 5-8, 10, 15, 19, 21,
`
`23, 26, and 27 are unpatentable under 35 U.S.C. § 103 as obvious over
`
`Yanagawa, Bottesch, and Wilson-Jones. Pet. 21-36, 49-59. TRW further
`
`contended that claim 9 is unpatentable under 35 U.S.C. § 103 as obvious
`
`over these references plus Tadashi. Id. at 59-60. According to TRW,
`
`Yanagawa discloses all of the limitations of the above claims except that it
`
`does not expressly disclose “a two-dimensional array of light sensing
`
`photosensor elements.” Pet. 23-36. TRW therefore relied on Bottesch as
`
`teaching this limitation. Id. at 23 (citing Ex. 1006, 2:40-45, 4:10-13, 6:57-
`
`60). TRW asserted that “to include in the camera 11 of Yanagawa . . . a
`
`two-dimensional array of photosensor elements as shown in Bottesch . . . is,
`
`under KSR, merely a simple substitution of one known element for another
`
`to obtain predictable results.” Id. at 24. TRW further asserted that “those
`
` 9
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`IPR2014-00258
`Patent 7,994,462 B2
`
`skilled in the art would consider it obvious to try to include such a two-
`
`dimensional array in the camera 11 of Yanagawa . . . as this selection
`
`involves choosing from a finite number of identified, predictable solutions,
`
`with a reasonable expectation of success.” Id. (citing MPEP § 2141;
`
`Ex. 1012 ¶ 38). In our Decision, we determined that “TRW’s analysis falls
`
`short, as it is based on ‘mere conclusory statements’ that cannot support an
`
`obviousness rejection.” Dec. 15 (citing KSR Int’l Co. v. Teleflex, Inc., 550
`
`U.S. 398, 418 (2007)). We noted that TRW did not support either its
`
`“simple substitution” or “obvious to try” rationales with explanation or
`
`evidence. Id. For example, TRW did not explain why the alleged
`
`combination would have been a simple substitution achieving predictable
`
`results, or why selecting Bottesch’s array, as opposed to any other, would
`
`have been a choice from a finite number of solutions with a reasonable
`
`expectation of success. Id. We further noted that Dr. Miller’s testimony did
`
`not elaborate on TRW’s position because it simply repeated TRW’s
`
`conclusory statements verbatim. Id.
`
`In its Rehearing Request, TRW asserts that we “fatally erred in failing
`
`to appreciate the significance of the Expert declaration and TRW’s
`
`submission.” Reh’g Req. 9. TRW contends that Meyer I.P. Ltd. v. Bodum,
`
`Inc., 690 F.3d 1354, 1374-76 (Fed. Cir. 2012), compels us to accept Dr.
`
`Miller’s opinion supporting TRW’s simple-substitution and obvious-to-try
`
`rationales. In Meyer, TRW argues, “the Federal Circuit held that a District
`
`Court abused its discretion by holding that an expert declaration was
`
`insufficient.” Reh’g Req. 9. According to TRW, Dr. Miller’s declaration “is
`
`at least as in depth as the Expert declaration in the Meyer case, and therefore
`
`must also be found to be sufficient.” Id. at 11. We disagree. In Meyer, the
`
`
`
`
`10
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`IPR2014-00258
`Patent 7,994,462 B2
`
`issue was whether an expert report complied with Rule 26(a) of the Federal
`
`Rules of Civil Procedure. Meyer, 690 F.3d at 1375. Meyer does not restrict
`
`the Board’s well-established discretion to give little weight to conclusory,
`
`unsupported expert testimony. See 37 C.F.R. § 42.65(a); Rohm and Haas
`
`Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed. Cir. 1997).
`
`TRW also asserts that in In re Lackey, “the Federal Circuit upheld an
`
`obvious[ness] rejection based on the Examiner (and Board) stating mere
`
`simple substitution as the only motivation to combine.” Reh’g Dec. 10
`
`(citing In re Lackey, 371 F. App’x 80, 82 (Fed. Cir. 2010) (unpublished)).
`
`But this mischaracterizes the Lackey decision. There, the Examiner did not
`
`simply “stat[e] mere simple substitution,” but supported that rationale with
`
`record evidence. See Lackey, 371 F. App’x at 81 (affirming rejection of
`
`claim to an air admittance valve made of metal based in part on Kohn
`
`reference, which teaches that plumbing fixtures may be made out of a
`
`variety of metals). In contrast, TRW supported its obviousness rationales
`
`only with the conclusory testimony of Dr. Miller.
`
`C.
`
`Claims 11-13, 16, and 17
`
`TRW asserts that we abused our discretion in not instituting inter
`
`partes review of claims 11-13, 16 and 17 as obvious over the combination of
`
`Aurora (claim 11), Zheng (claims 12 and 13), or Vellacott (claims 16 and
`
`17) with either (a) Kenue or (b) the Yanagawa-Bottesch-Wilson-Jones
`
`combination. Reh’g Req. 14-15. Claims 11-13, 16, and 17 depend, either
`
`directly or indirectly, from claim 1. As discussed above, we are not
`
`persuaded that we erred in determining that TRW is not reasonably likely to
`
`show that (1) Kenue teaches all of the limitations of claim 1, and (2) claim 1
`
`would have been obvious over the combination of Yanagawa, Bottesch, and
`
`
`
`
`11
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`IPR2014-00258
`Patent 7,994,462 B2
`
`Wilson-Jones. Further, TRW does not rely on Aurora, Zheng, or Vellacott
`
`to cure the deficiencies noted in the proposed grounds based on either Kenue
`
`or the Yanagawa-Bottesch-Wilson-Jones combination. Accordingly, and for
`
`at least the reasons discussed above, we are not persuaded that we erred in
`
`not instituting review of claims 11-13, 16 and 17.
`
`IV. ORDER
`
`For the foregoing reasons, it is
`
`ORDERED that TRW’s Request for Rehearing is denied.
`
`
`
`
`12
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`IPR2014-00258
`Patent 7,994,462 B2
`
`
`PETITIONER:
`
`Josh Snider
`Timothy Sendek
`A. Justin Poplin
`LATHROP & GAGE LLP
`patent@lathropgage.com
`tsendek@lathropgage.com
`jpoplin@lathropgage.com
`
`
`PATENT OWNER:
`
`Timothy A. Flory
`Terence J. Linn
`GARDNER, LINN, BURKHART & FLORY, LLP
`Flory@glbf.com
`linn@glbf.com
`
`David K.S. Cornwell
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`Davidc-PTAB@skgf.com
`
`
`
`
`13
`
`
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