`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Petition for Inter Partes Review
`
`Attorney Docket No.: 351912-
`23.913-A
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`Customer No.: 26379
`
`Petitioner: Toshiba Corporation
`
`Real Parties In Interest: Toshiba
`Corporation; Toshiba America
`Information Systems, Inc.
`
`
`
`
`
`
`
`
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`DECLARATION OF LAMBERTUS HESSELINK, PH.D., IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW
`
`In re patent of Wild:
`
`U.S. Patent No. RE42,913
`
`Issued: November 15, 2011
`
`Title: OPTICAL DETECTION
`SYSTEM
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`
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`TABLE OF CONTENTS
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`Page
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`
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`I. 
`II. 
`
`Qualifications and Professional Experience ................................................... 2 
`Background Of The ’913 Patent ..................................................................... 4 
`A. 
`Background Of Optics .......................................................................... 4 
`B. 
`’913 Patent ............................................................................................ 7 
`III.  Claim Construction ....................................................................................... 12 
`A. 
`Level of Ordinary Skill in the Art ...................................................... 13 
`B. 
`“Focal Plane” ...................................................................................... 13 
`C. 
`“Retroreflection” ................................................................................ 14 
`D. 
`“Optical System” ................................................................................ 14 
`E. 
`“An Optical System Having Retroreflective Characteristics” ........... 15 
`F. 
`“Optical Gain” .................................................................................... 15 
`G.  Optical Gain In A Lens/Surface Retroreflector ................................. 19 
`IV.  Overview of the Prior Art ............................................................................. 21 
`A.  U.S. Patent 3,506,839 (“Ando”) ......................................................... 21 
`V.  Anticipation of ’913 Claims by Ando .......................................................... 24 
`A. 
`Claim 48 ............................................................................................. 24 
`B. 
`Claim 49 ............................................................................................. 30 
`C. 
`Claim 50 ............................................................................................. 31 
`D. 
`Claim 51 ............................................................................................. 31 
`E. 
`Claim 52 ............................................................................................. 37 
`F. 
`Claim 53 ............................................................................................. 37 
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`U.S. Patent No. RE42,913
`Hesselink Declaration
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`
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`I, Lambertus Hesselink, do hereby declare:
`
`1.
`
`I am making this declaration at the request of Petitioner Toshiba
`
`Corporation (“Toshiba”) in the matter of Inter Partes Review of U.S. Patent No.
`
`RE42,913 (the “’913 patent”) to Wild et al. in view of U.S Patent No. 3,506,839
`
`(“Ando”).
`
`2.
`
`I am being compensated for my work in this matter. My
`
`compensation in no way depends upon the outcome of this proceeding.
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`3.
`
`In the preparation of this declaration, I have studied:
`
`a.
`
`b.
`
`c.
`
`d.
`
`Exhibit TSST-1001, U.S. Patent No. RE42,913
`
`TOSH-1002, Prosecution File History for U.S. Patent No.
`
`RE42,913
`
`TOSH-1003, U.S. Patent No. 6,603,134
`
`TOSH-1004, Prosecution File History for U.S. Patent No.
`
`6,603,134
`
`e.
`
`TOSH-1005, Patent Owner’s Preliminary Response in
`
`IPR2014-302
`
`f.
`
`g.
`
`TOSH-1006, Decision Denying Institution in IPR2014-302
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`TOSH-1007, U.S Patent No. 3,506,839 (“Ando”)
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`U.S. Patent No. RE42,913
`Hesselink Declaration
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`4.
`
`In forming the opinions expressed below, I have considered the
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`documents listed above and my knowledge and experience based upon my work in
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`this area as described below.
`
`I.
`
`Qualifications and Professional Experience
`5. My qualifications are set forth in my curriculum vitae, a copy of
`
`which is attached to this declaration.
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`6.
`
`I am currently a Professor of Electrical Engineering in the Department
`
`of Electrical Engineering at Stanford University, and by courtesy in the
`
`Departments of Applied Physics and Aeronautics and Astronautics. My current
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`mailing address is: CIS-X Room 325, Stanford University, Stanford, CA 94305.
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`7. With regards to my educational background, in 1970 I received a
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`Bachelor of Science degree in Mechanical Engineering from the Twente Institute
`
`of Technology in Enschede, Netherlands, and a Bachelor of Science degree in
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`Applied Physics from the same institution in 1971. The following year, I received
`
`my Master of Science degree in Mechanical Engineering from California Institute
`
`of Technology. In 1974, I obtained an Applied Mechanics engineering degree
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`from the Twente Institute of Technology, and then I subsequently continued my
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`studies at the California Institute of Technology and, in 1977, earned my doctorate
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`degree in Applied Mechanics and Physics/Applied Physics.
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`U.S. Patent No. RE42,913
`Hesselink Declaration
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`8. My expertise is in ultra-high density optical data storage, and optical
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`information systems generally, as well as optical communication components,
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`nano photonics, optics, and optical interconnects. In addition to being an assistant,
`
`associate, or full Professor performing research in these fields for over 30 years, I
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`have delivered over 290 invited presentations on these topics at scientific meetings,
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`and have published over 500 papers in scientific journals and authored 15 book
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`chapters. I also have more than 100 patents and pending patent applications
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`worldwide. Details of these accomplishments can be found in my current
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`curriculum vitae attached as Exhibit A to this report.
`
`9.
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`I have had an intimate knowledge of the technology in the area of
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`optical systems since at least 1978. In connection with my professional activities,
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`I am familiar with the various standards for optical media and technologies
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`adopted by the industry, including the DVD Forum and DVD+RW Alliance
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`standards. I also have studied and am familiar with the concepts utilized in the
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`purported inventions claimed in the ’913 patent.
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`10.
`
`I have reviewed the ’913 patent and its parent patent (U.S. 6,603,134
`
`– “the ’134 patent”), their prosecution histories, and pertinent art from the field as
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`discussed herein. I have considered these materials in forming the opinions
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`expressed in this declaration, and also have drawn upon my wealth of experience
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`U.S. Patent No. RE42,913
`Hesselink Declaration
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`as a person of ordinary skill in the art of electrical engineering, physics, optics and
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`photonics technologies, and related technologies.
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`11. With a broad knowledge of optics, optical systems and devices,
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`optical storage systems, a solid grounding in the specific technologies employed in
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`CDS, DVDs, and Blu-ray systems, a historical perspective based on active
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`personal participation in the optical disc industry, and experience with the patent
`
`process, I believe that I am qualified to provide an accurate assessment of the
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`technical issues in this case.
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`II. Background Of The ’913 Patent
`12. First, I will address the following certain general principles of optics,
`
`which are helpful to understand my opinions set forth in this report.
`
`A. Background Of Optics
`13. Reflection: Reflection is a term of art, meaning reversal of the
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`direction of propagation of an optical ray or wave after interaction with a reflecting
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`surface. The direction of propagation is determined by the geometrical optics law
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`of reflection stating that the angle of incidence is equal to the angle of reflection.
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`The angle of incidence is determined to be the angle between the incoming ray
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`direction and the surface normal. The angle of reflection is the angle between the
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`angle of the reflected way direction and the surface normal. The amplitude of the
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`reflected ray depends on the polarization state of the incoming ray, and the indices
`
`of refraction of the reflecting and incident media.
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`14. Retroreflection: A retroreflector is a device that reflects radiation (for
`
`example light) so that the paths of the reflected rays are parallel to those of the
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`incident rays. A classic example of a retroreflector is a cornercube, which reflects
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`incident rays of radiation in such a manner that the reflected rays are parallel to the
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`incident rays for all angles of incidence within the field of view of the corner cube.
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`A second example is a combination of a focusing lens and a flat plate reflector
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`placed exactly in the back focal plane of the lens. A ray parallel to the optical axis
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`of the lens is reflected such that the reflected ray is parallel to the incident ray onto
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`the lens, assuming for the moment that there are no lens aberrations; lens
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`aberrations generally will produce a reflected ray that is not strictly parallel to the
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`incoming ray, except for rays coinciding with the optical axis, thereby not acting as
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`a retroreflector.
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`15. Brightness and Flux Density: Specific intensity or spectral brightness
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`is a concept used to describe the light coming from a source. The specific intensity
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`or spectral brightness is defined to be:
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`
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`16.
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`If a source is discrete, meaning that it subtends a well-defined solid
`
`angle, the spectral power received by a detector of unit projected area is called the
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`source flux density Sν. given by:
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`So integrating over the solid angle subtended by the source yields for the flux
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`density the result:
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`
`
`
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`17. The flux density depends on the spectral intensity over the source
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`angular size and the solid angle perceived by the detector. The flux density is
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`typically used if the angular extent of the object is much smaller than the resolving
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`power of the detector or imaging system.
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`18.
`
`In the case of light reflected or transmitted by an object or medium,
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`the same definitions apply, but it is important to note that the surface may modify
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`the light characteristics of the incident light in specific ways, including due to
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`surface roughness, scattering and other phenomena related to light-matter
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`interaction.
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`19. Numerical Aperture: The numerical aperture NA = n sin (where n
`
`is the index of refraction of the medium in which the light is propagating, and is
`
`the half angle of the maximum cone angle of light that exits or enters the lens.
`
`B.
`’913 Patent
`20. The ’913 patent describes an apparatus for detecting particular types
`
`of optical systems. Specifically, the patent describes detecting optical systems
`
`comprising a lens and a surface with some degree of reflectivity disposed
`
`substantially in the focal plane of the lens. (TOSH-1001, Abstract.) The ’913
`
`patent purports to have “discovered” that such optical systems involving a surface
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`exhibiting any degree of reflectivity, no matter how small operate as
`
`retroreflectors. (TOSH-1001, 1:20-23; 1:46-52.) According to the ’913 patent,
`
`examples of such optical systems include military surveillance equipment, such as
`
`“binoculars, telescopes, periscopes, range finders, cameras and the like.” (TOSH-
`
`1001, 1:60-63; Abstract.) As such, the inventors of the ’913 patent believed that
`
`the purported invention “has great applicability in military optical system
`
`applications for detecting the presence of an enemy employing surveillance
`
`equipment and for neutralizing this surveillance capability.” (TOSH-1001,
`
`Abstract.)
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`21. The ’913 patent defines the term “retroreflector” as “a reflector
`
`wherein incident rays of radiant energy and reflected rays are parallel for any angle
`
`of incidence within the field-of-view.” (TOSH-1001, 1:23-26.) This principle is
`
`illustrated in Figures 1 and 2 reproduced below.
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`
`
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`22. Figure 1 depicts an optical system comprising a lens 20 and a
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`reflective surface 22. (TOSH-1001, 3:4-8.) Reflective surface 22 is disposed in
`
`the focal plane 24 of lens 20. (TOSH-1001, 3:4-8.) Figure 1 further depicts rays
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`26 and 28 of radiant energy directed toward the optical system by a radiation
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`source (not shown). (TOSH-1001, 3:8-11.) Rays incident on the optical system
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`(rays 26 and 28) are refracted by the lens and focused at the focal point 32 of the
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`lens, which lies on reflective surface 22. (TOSH-1001, 3:14-16.) The rays reflect
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`off of reflective surface 22 and are again refracted by lens 20, emerging as
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`retroreflected rays 26R and 28R. (TOSH-1001, 3:16-21.) As depicted in Figure 1,
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`retroreflected rays 26R and 28R are parallel to the rays incident to the optical
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`system, i.e. rays 26 and 28. (TOSH-1001, 3:21-25.)
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`23. Figure 2 illustrates substantially the same optical system with a lens
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`20A and a reflective surface (22A) positioned substantially in the focal plane
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`(24A) of the lens. (TOSH-1001, 3:26-30). However, in Figure 2, radiant energy is
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`directed at the optical system at a different angle of incidence (i.e. not parallel to
`
`the optical axis 30A as in Fig. 1). (TOSH-1001, 3:26-30). As illustrated in Figure
`
`2, incident rays 34 and 36 are refracted by lens 20A and reflected off mirror 22A.
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`(TOSH-1001, 3:30-37). Some of these reflected rays, such as ray 34R, miss the
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`lens. (TOSH-1001, 3:30-40). However, as illustrated in Figure 2, reflected rays
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`that pass through the lens, such as ray 36R, are parallel to the incident rays 34 and
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`36. Together, Figures 1 and 2 illustrate the principle of retroreflection as described
`
`in the ’913 patent, i.e. rays incident on the optical system are parallel to rays
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`reflected by the optical system for any angle of incidence within the field of view.
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`(TOSH-1001, 3:4-40, 1:20-29.) According to the ’913 patent, “any optical
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`U.S. Patent No. RE42,913
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`instrument which includes a focusing lens and a surface having some degree of
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`reflectivity, no matter how small, positioned near the focal point of the lens, act as
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`a retroreflector.” (TOSH-1001, 1:46-49.)
`
`24. The ’913 patent notes that one characteristic of a retroreflector is that
`
`radiant energy “impinging thereon is reflected in a very narrow beam.” (TOSH-
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`1001, 1:26-28; see also 4:20-21 (“It is a characteristic of a retroreflector to return
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`the retroreflected energy or rays in a very narrow beam”).) As such, there is an
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`“actual increase in the radiant flux density of the retroreflected beam due to the
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`narrowing thereof.” (TOSH-1001, 4:4-9.) The ’913 patent defines this increase in
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`radiant flux density as “optical gain.” (TOSH-1001, 4:9-10.)
`
`25. The ’913 patent further explains that the “optical gain” increase in
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`radiant flux density is measured in comparison to a standard or reference known as
`
`a Lambertian radiator. (TOSH-1001, 4:42-48.) For instance, the ’913 patent
`
`states: “In order to obtain a measure of the optical gain, we must compare the
`
`retroreflector to a standard or reference. This reference has been taken to be a
`
`diffuse surface known in the art as a Lambertian radiator.” (TOSH-1001, 4:42-45.)
`
`26. A Lambertian radiator is known in the art as a diffuse surface which
`
`reflects radiant energy in all directions. Because radiant energy is reflected in all
`
`directions, the radiant energy returned to the source by a Lambertian radiator has a
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`relatively low radiant flux density. In contrast, a retroreflector reflects radiant
`
`energy with a relatively high radiant flux density, because radiant energy is
`
`reflected in the “form of a narrow, substantially collimated beam” as stated in the
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`’913 patent. (TOSH-1001, 4:4-9.) The figures below graphically illustrate
`
`reflected light by a retroreflector versus Lambertian surface scattering:
`
`
`
`
`
`
`
`
`
`
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`27. Optical gain is achieved by a retroreflector because the solid angle
`
`captured by the lens is much greater than without the lens for far away distances.
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`In other words, reflected light from the surface in a retroreflector is captured and
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`collimated by the lens, thus narrowing the light relative to light scattered by a
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`Lambertian surface without any lens. With just a Lambertian surface as a standard,
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`there is no lens to narrow the reflected beam of light, and as such, the radiant flux
`
`density of the light from the Lambertian surface, without the aid of a lens to
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`narrow the light, is lower than that in the case of a lens-plus-surface retroreflector.
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`The ’913 patent explains that the invention is designed to detect retroreflectors that
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`U.S. Patent No. RE42,913
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`are typically disposed in a background that produces background radiation in a
`
`Lambertian manner. (TOSH-1001, 5:1-3) Accordingly, a retroreflector can be
`
`detected based upon its relatively high radiant flux density, i.e. optical gain.
`
`(TOSH-1001, 5:3-7.)
`
`28. The ’913 Patent contains 6 claims, including two independent claims.
`
`Independent claim 48 is a method claim for detecting characteristics of an object
`
`within an optical system comprising a lens and a reflective surface substantially in
`
`the focal plane of the lens, based upon retroreflected radiant energy. Independent
`
`claim 51 is similar to claim 1 but recites an apparatus instead of a method.
`
`III. Claim Construction
`29.
`It is my understanding that in order to properly evaluate the ’913
`
`Patent, the terms of the claims must first be interpreted. It is also my
`
`understanding that the claims are to be given their broadest reasonable construction
`
`in light of the specification. It is my further understanding that claim terms are
`
`given their ordinary and accustomed meaning as would be understood by one of
`
`ordinary skill in the art, unless the inventor, as a lexicographer, has set forth a
`
`special meaning for a term.
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`30.
`
`In order to construe the claims, I have reviewed the entirety of the
`
`’913 patent, as well as its prosecution history and the prosecution history of the
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`’134 patent.
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`U.S. Patent No. RE42,913
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`31.
`
`In my opinion, the inventors of the ’913 patent did not act as a
`
`lexicographer and did not provide any special meanings for any of the claim terms,
`
`except for the claim term “optical gain.”
`
`A. Level of Ordinary Skill in the Art
`32. With respect to the technologies disclosed and claimed in the ’913
`
`patent, one of ordinary skill in the art would have had either (1) a Bachelor of
`
`Science degree in Physics, Optics, Electrical Engineering, or a related field with
`
`coursework in Optics or Photonics and at least one year of additional experience in
`
`Optics technology, Photonics technology, or related technologies, either in
`
`industry, academia, or research, or (2) a Master’s degree in Physics, Optics,
`
`Electrical Engineering, or a related field with coursework in Optics or Photonics.
`
`B.
`“Focal Plane”
`33. Both independent claims 48 and 51 recite the term “focal plane.” I
`
`understand that in IPR2014-00302, the Patent Owner argued in its preliminary
`
`response that the term “focal plane” should be construed as “a plane through the
`
`focus perpendicular to the axis of an optical element.” (TOSH-1005, at 9.) In its
`
`Decision denying institution, the Board agreed this was the broadest reasonable
`
`construction consistent with the ordinary and customary meaning of the term and
`
`with the specification of the ’913 patent. (TOSH-1006, at 8.) My opinions herein
`
`apply this construction.
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`U.S. Patent No. RE42,913
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`C.
`34.
`
`“Retroreflection”
`
`I understand that in IPR2014-00302, the Patent Owner argued in its
`
`preliminary response that the term “retroreflection” should be construed as
`
`“reflection of an incident ray in a manner such that the reflected ray is parallel to
`
`the incident ray for any angle of incidence.” (TOSH-1005, at 10.) In its Decision
`
`denying institution, the Board agreed this was the broadest reasonable construction
`
`consistent with the specification of the ’913 patent. (TOSH-1006, at 8.) My
`
`opinions herein apply this construction, with the caveat that one skilled in the art
`
`would understand that, as expressly stated in the ’913 patent, this is true for any
`
`angle of incidence “within the field-of-view” of the retroreflector. (TOSH-1001,
`
`1:23-26.)
`
`D.
`35.
`
`“Optical System”
`
`I understand that in IPR2014-00302, the Patent Owner argued in its
`
`preliminary response that the term “optical system” should be construed as “a
`
`collection of optical elements including at least a lens and a reflective surface.”
`
`(TOSH-1005, at 11-12.) In its Decision denying institution, the Board agreed this
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`was the broadest reasonable construction consistent with the specification of the
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`’913 patent. (TOSH-1006, at 9.) My opinions herein apply this construction.
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`E.
`36.
`
`“An Optical System Having Retroreflective Characteristics”
`
`I understand that in IPR2014-00302, the Patent Owner argued in its
`
`preliminary response that the term “an optical system having retroreflective
`
`characteristics” should be construed as “an optical system as defined above having
`
`a focusing element and reflective surface that is located substantially in the focal
`
`plane of the focusing element, wherein the system is configured so that a ray
`
`incident on the focusing element and focused on the reflective surface is reflected
`
`along a path parallel to the incident ray for any angle of incidence.” (TOSH-1005,
`
`at 12.) In its Decision denying institution, the Board agreed this was the broadest
`
`reasonable construction consistent with the specification of the ’913 patent.
`
`(TOSH-1006, at 9.) My opinions herein apply this construction, with the caveat
`
`that one skilled in the art would understand that, as expressly stated in the ’913
`
`patent, this is true for any angle of incidence “within the field-of-view” of the
`
`retroreflector. (TOSH-1001, 1:23-26.)
`
`F.
`37.
`
`“Optical Gain”
`
`I understand that in IPR2014-00302, the PTAB adopted Patent
`
`Owner’s construction of “optical gain,” i.e. “a change in radiant flux density of
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`reflected radiant energy.” (TOSH-1006, at 8-9.) In my opinion, I believe this
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`construction is not correct. I believe that this term should be construed to mean
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`U.S. Patent No. RE42,913
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`“an actual increase in the radiant flux density of the retroreflected beam due to the
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`narrowing thereof” for the following reasons.
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`38. First, the inventor of the ’913 patent acted as a lexicographer and
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`provided a special meaning for the term “optical gain,” explicitly defining the term
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`as follows:
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`“The rays retroreflected by the optical systems depicted in FIGS. 1 to
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`4 are in the form of a narrow, substantially collimated beam having a
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`high radiant flux density. It is to be noted that there is an actual
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`increase in the radiant flux density of the retroreflected beam due
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`to the narrowing thereof. This increase in radiant flux density is
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`herein termed optical gain.” (TOSH-1001, 4:4-9.)
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`My proposed construction above is identical to the explicit definition of the phrase
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`provided in the patent specification.
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`39. Second, my proposed construction is consistent with the use of the
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`term throughout the specification. For example, the ’913 patent explains that
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`optical gain is measured by comparing the radiant flux density of the retroreflector
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`with a Lambertian radiator: “In order to obtain a measure of the optical gain we
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`must compare the retroreflector to a standard or a reference. This reference has
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`been taken to be a diffuse surface known in the art as a Lambertian radiator.”
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`(TOSH-1001, 4:42-45.)
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`40. As discussed above, a Lambertian radiator is well known to be a
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`diffuse surface which reflects radiant energy in all directions. Because radiant
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`energy is reflected in all directions, the radiant energy returned toward the source
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`by a Lambertian radiator has a relatively low radiant flux density. In contrast, a
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`retroreflector reflects radiant energy with a relatively high radiant flux density,
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`because radiant energy is reflected in the “form of a narrow, substantially
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`collimated beam.” (TOSH-1001, 4:4-9.) Thus, relative to a Lambertian radiator,
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`a retroreflector has “an actual increase in the radiant flux density of the
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`retroreflected beam due to the narrowing thereof,” consistent with my proposed
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`construction.
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`41. The ’913 patent further explains the concept of optical gain with
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`reference to an example which compares the radiant flux density increase of the
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`retroreflector in comparison to a Lambertian radiator. The patent explains that the
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`solid angle into which incident radiant energy is retroreflected is determined by the
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`square of the angular resolution of the retroreflector. (TOSH-1001, 4:25-28.)
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`Thus, for a retroreflector with angular resolution of 10-4 radians, the solid angle
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`into which energy is retroreflected is 10-8 steradians. (TOSH-1001, 4:25-28.) And,
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`assuming a radiant energy source with radiant flux of 104 watts, the radiant
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`intensity of the retroreflector is 1012 watts/steradian. (TOSH-1001, 4:34-40.) In
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`contrast, a Lambertian radiator reflects radiant energy into a solid angle of 3.14 (π)
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`steradians. (TOSH-1001, 4:45-48.) Assuming the same radiant energy source
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`with a radiant flux of 104 watts, the radiant intensity of the Lambertian radiator is
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`only 3.14x103 watts/steradian. (TOSH-1001, 4:45-52.)
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`42. The ’913 patent teaches that “optical gain” is calculated by comparing
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`the radiant flux density of the retroreflector with that of the Lambertian radiator:
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`(TOSH-1001, 4:54-60.) Again, the ’913 patent teaches that relative to a
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`Lambertian radiator, a retroreflector in this example has “an actual increase in the
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`radiant flux density of the retroreflected beam due to the narrowing thereof” on the
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`order of 314,000,000 times, consistent with my proposed construction.
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`43. Finally, my proposed construction is consistent with the plain
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`meaning of the term “gain” as it is used in the art. One of ordinary skill in the art
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`would understand that the word “gain” means an increase, i.e., a positive change.
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`In contrast, one of ordinary skill in the art would understand that a decrease, i.e.,
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`negative change, is a “loss”-- the opposite of a gain. My proposed construction
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`properly limits an “optical gain” to an “actual increase” in radiant flux density, and
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`is therefore consistent with the plain meaning of the term and its use in the art.
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`The PTAB’s prior construction incorrectly encompasses both positive changes
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`(i.e., “gains”) and negative changes (i.e., “losses”) in radiant flux density, thus
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`effectively rewriting “gain” into “change.” I do not see any basis to rewrite “gain”
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`into “change.”
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`G. Optical Gain In A Lens/Surface Retroreflector
`44.
`I understand that in arguing its construction of optical gain, the Patent
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`Owner argued in its Preliminary Response in the 2014-00302 IPR that
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`retroreflected radiant energy “does not necessarily or inherently exhibit an optical
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`gain.” (TOSH-1005, at 10-11.) In my opinion, given the term “optical gain” as
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`explicitly defined, explained and calculated in the ’913 patent, this is not true in the
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`case of a retroreflector having a reflective surface in the focal plane of a lens and
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`incoming light that is collimated (assuming no significant vignetting). Rather,
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`“optical gain” is an inherent property of such a retroreflector, for the following
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`reasons.
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`45. According to the ’913 patent, it is a “characteristic of a
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`retroreflector… that the energy impinging thereon is reflected in a very narrow
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`beam.” (TOSH-1001, 1:26-28) In contrast, a Lambertian radiator by definition
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`radiates energy diffusely. (TOSH-1001, 4:43-45.) Thus, the solid angle into
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`which any retroreflector reflects collimated incoming energy will always be
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`smaller than the solid angle into which a Lambertian radiator reflects that same
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`energy, due to the retroreflector’s narrowing of the retroreflected beam. And,
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`therefore, the radiant flux density of the energy reflected by any such retroreflector
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`will always be greater than that of a Lambertian radiator. Therefore, “optical gain”
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`as defined by the ’913 patent is an inherent, necessary result from a retroreflector
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`having a lens and a surface disposed in the focal plane of that lens for collimated
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`incoming light.
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`46. To further illustrate this fact, consider one of the least efficient (i.e.
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`lowest optical gain) lens-plus-surface retroreflectors, which would be one where
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`the surface in the focal plane of the lens is a Lambertian surface. Even a
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`Lambertian surface exhibits “some degree of reflectivity, no matter how small,”
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`and therefore would retroreflect at least some light if placed in the focal plane of a
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`lens given the definitions and teachings of the ’913 patent. (TOSH-1001, 4:4-9.)
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`In this case, optical gain is measured by removing the lens, and comparing the
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`radiant flux density of the returning light with that before the lens was removed.
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`The two cases are illustrated below:
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`47.
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`It is evident that at any distance beyond the location of the lens, the
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`radiant flux density of the reflected light with the lens present will always be
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`greater than that without the lens, because without the lens, less light will be
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`directed into the same solid angle (see green highlighted rays in the figures above).
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`(TOSH-1001, 4:4-9.) Therefore, a retroreflector with a lens and a surface disposed
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`in the focal plane of the lens will always retroreflect incoming collimated light
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`with an “optical gain” as that term is defined by the ’913 patent. (TOSH-1001,
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`4:4-9.)
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`IV. Overview of the Prior Art
`A. U.S. Patent 3,506,839 (“Ando”)
`48. Ando describes an optical probe for profiling the surface of an object
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`without contact. (TOSH-1007, 1:15-19.) The Ando system detects and determines
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`wh