UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`PRIME FOCUS CREATIVE SERVICES CANADA INC.,
`Petitioner,
`
`V.
`
`Legend3D, INC.,
`Patent Owner.
`______________
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`______________
`
`Record of Oral Hearing
`Held: September 14, 2017
`
`
`
`
`
`
`Before LYNNE E. PETTIGREW, CARL M. DEFRANCO, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`PRIME FOCUS CREATIVE SERVICES CANADA INC.,
`Petitioner,
`
`V.
`
`Legend3D, INC.,
`Patent Owner.
`______________
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`______________
`
`Record of Oral Hearing
`Held: September 14, 2017
`
`
`
`
`
`
`Before LYNNE E. PETTIGREW, CARL M. DEFRANCO, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`APPEARANCE:
`
`ON BEHALF OF THE PETITIONER:
`
`JOSHUA GLUCOFT, ESQUIRE
`MICHAEL R. FLEMING, ESQUIRE
`IRELL & MANELLA, LLP
`1800 Avenue of the Stars
`Suite 900
`Los Angeles, CA 90067-4276
`310-277-1010
`
`ON BEHALF OF THE PATENT OWNER:
`(CASE RESTED - NO PARTICIPATION)
`
`
`
`
`The above-entitled matter came on for hearing Thursday, September
`14, 2017, commencing at 9:30 a.m., at the U.S. Patent & Trademark Office,
`600 Dulany Street, Alexandria, Virginia 22314.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`
`P R O C E E D I N G S
` JUDGE PETTIGREW: Please be seated. Good morning,
`everyone. This is a hearing for IPR 201601243, Prime Focus
`Creative Services Canada, Inc., the Legend 3D, Inc. Counsel
`for Patent Owner of Legend 3D notified us earlier this week
`that Patent Owner has decided to rest on its papers and not
`participate in the hearing. Counsel for Petitioner, Prime
`Focus, is in attendance and as indicated in our hearing
`order, Petitioner will have 60 minutes to present its
`arguments.
` Judge Jivani is joining us remotely by video and will
`not have the benefit of the visual cues in the room, so when
`you speak about a demonstrative or an exhibit, please
`identify the particular slide number or exhibit number and
`page. He does have a copy of the demonstratives. Also,
`please be sure to speak into the microphone to ensure that
`Judge Jivani can hear you.
` Before we begin, we have a brief housekeeping item
`regarding the demonstratives. First, we remind counsel that
`demonstratives are not evidence. They are instead aids to
`facilitate the panel's understanding of the parties'
`arguments presented at the hearing. In this case, Patent
`Owner, earlier this week, filed objections to five of Patent
`Owner's -- I'm sorry, Petitioner's demonstratives,
`specifically Slides 26, 27, 35, 37, and 41. The panel has
`reviewed the proposed demonstratives and we agree with the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`3
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`Patent Owner that those particular slides touch on the issue
`of inequitable conduct, which, according to our hearing
`order, the parties are not to address at the hearing. So
`accordingly, Petitioner is not to use those slides in its
`presentation. Again, those are Slides 26, 27, 35, 37 and 41,
`at least as they were numbered in the version that was sent
`to us earlier this week. Counsel, you may begin when ready.
` MR. GLUCOFT: Thank you, Your Honor. Your Honor, I
`have hard copies of the presentation.
` May I approach?
` JUDGE PETTIGREW: Yes, please.
` MR. GLUCOFT: There are actually two copies within
`each binder. One is just connected with a binder clip. The
`other one is in the three-ring itself.
` JUDGE PETTIGREW: Thank you.
` MR. GLUCOFT: Thank you, Your Honor. I would like to
`begin, first, by introducing myself, Joshua Glucoft of Irell
`& Manella, on behalf of Petitioner, Prime Focus, Creative
`Services, Canada. I am joined today by my colleague, Mike
`Fleming, also of Irell & Manella. I will be addressing today
`the invalidity of the '793 patent in the petition, and my
`colleague, Mike, will be addressing the Patent Owner's motion
`to amend. And I would like to reserve 30 minutes of time for
`Mike to address the motion to amend.
` I would like the start this morning on Slide 2, which
`is just a brief overview of the filing dates of the patent
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`4
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`family. And I will assume that the board is familiar with
`the history of the '793 patent challenge today. But one
`thing I wanted to point out is that the '081 patent and
`its divisional '670 patent, today, I am going to be referring
`to those patents as the "Alleged Parents."
` Moving on to Slide 3, we have an overview of the
`petition, which is pretty simple at a high level. The short
`of it is that the challenge '793 patent cannot claim priority
`to the alleged parents, since is it a continuation in part
`that added the entirely new concept of depth to the family.
`And the '793 patent is therefore invalid over the combination
`of the alleged parents, which are prior art, as we will
`demonstrate with prior art Passmore or Sullivan, both of which
`teach the new matter of depth.
` Moving on to Slide 4, is a road map of the petition
`and what I will be presenting today. And we are going to
`start with a claim construction of the term "Depth
`Parameter."
` Moving on to Slide 5 --
` JUDGE JIVANI: In that regard, starting with the claim
`construction of depth parameter, one of the things I have
`struggled with in the papers is the specific construction that
`you seek of the term "Depth Parameter." I note that the
`petition seems to say at page 10, "A depth parameter relates
`to the perceived distance of an object from the camera." But
`the reply and Dr. Forsyth's testimony are quite different
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`5
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`in that regard.
` Are you advancing a specific construction of depth
`parameter?
` MR. GLUCOFT: Yes, we are, Your Honor. And I would
`like to clarify that the statement in the petition that a
`depth parameter relates to perceived depths, that statement
`was not a claim construction. There is a formal claim
`construction that was consistently maintained by our expert.
`We will get to that claim construction. I just want to set a
`little bit of groundwork by discussing with the board the new
`matter that talks about depth, so that Your Honors can better
`understand what exactly a depth parameter is. But just to be
`clear, the term relates -- is just meant to be a descriptive
`term so that the board would -- excuse me, to aid in
`understanding of what exactly a depth parameter is.
` JUDGE JIVANI: So that statement I just read is not
`your proposed construction?
` MR. GLUCOFT: That is correct, Your Honor. We are not
`proposing that the construction of the term "Depth Parameter"
`is a perceived depth; that is not our construction.
` JUDGE PETTIGREW: Did you have a proposed construction
`in the petition.
` MR. GLUCOFT: Not expressly, Your Honor, but there is,
`I believe, an expressed construction of the term "Depth
`Value" and there is a parallel drawn between depth value and
`a depth parameter, including a description of what a depth
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`6
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`parameter is. And then our expert testified about his
`construction and then that construction came through
`expressly in the reply.
` JUDGE JIVANI: And so, Counsel, I know that you want
`to go through, kind of, the depth before getting to depth
`parameter and I'll let you do that, but please do be aware
`that we are quite interested in your specific construction of
`depth parameter. I don't see it, candidly, in the
`petition, and so, please, do, quickly, address that.
` MR. GLUCOFT: Absolutely, Your Honor. So, this
`section, which we will breeze through, does directly address
`that question. And I'd just like to start on Slide 5, by
`noting first that the '793 patent is a continuation in part.
`It says so on the face of the document that it is a CIP, and
`the claim depth parameter is directed to all of this new matter
`that was added to the '793 patent specifically talking about depth.
` Moving on to Slide 6, among other things that were
`added to the '793 patent relative to the alleged parents, are
`29 new figures illustrating the 3D conversion of a man
`holding a crystal ball.
` Moving on to Slide 7, these new figures show the
`foreground objects arranged at various distances in virtual
`3D space, so varying positions along the Z-axis. And depth
`is the distance from the camera origin to the object. So
`this picture is essentially a bird's-eye view, in 3D space,
`of what we see on Slide 6, the picture of the wizard holding
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`7
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`the crystal ball.
` JUDGE JIVANI: Counsel, just to make sure that I
`understand. Your point there is that in this particular
`figure, figure 56, depth is the Z-parameter?
` MR. GLUCOFT: That is correct, Your Honor.
` JUDGE JIVANI: All right.
` MR. GLUCOFT: Moving on to Slide 8. A depth parameter
`corresponds to this depth, this is Z-parameter, this 3D
`position coordinate. Now, the control panel -- oh, again, on
`Slide 8, the control panel in the new figures in the '793
`patent, all of these control panels are new matter, new
`figures and they have a section in them called "Layer Depth"
`by which the Z-coordinate of the crystal ball sphere is set,
`and you see it outlined in red, it says "Translate Z"
`and gives a number. The patent, the '793 patent, refers to
`this positioning of the spherical crystal ball, as the,
`quote, "Depth assigned to the crystal ball."
` JUDGE PETTIGREW: Mr. Glucoft, did you say this in
`your petition, your opening petition, as to what's a depth
`parameter corresponds to?
` MR. GLUCOFT: I --
` JUDGE PETTIGREW: Meaning you mentioned in your
`petition that it corresponds to this 3D position coordinates?
` MR. GLUCOFT: Yes, Your Honor, in the description of a
`Claim 2 deal, specifically, with a depth value, and in
`describing what a depth value is relative to a depth
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`8
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`parameter, we made it clear that a depth value is a distance,
`it's a three-dimensional virtual distance. And a depth
`parameter relates to the depth value as it must proclaim to
`of a challenged pattern.
` JUDGE DEFRANCO: Because as I see as the citation for
`the source of this particular slide, this is the reply, and
`there is no mention of it in the petition.
` MR. GLUCOFT: That is correct, Your Honor, and in the
`petition, at the petition stage, we did not believe that a
`formal claim construction of the term "Depth Parameter" was
`required when a Patent Owner chose to essentially equate
`depth parameter with a perceived depth, then a formal
`claim construction became necessary and we addressed that in
`our reply. But there is support in our original petition for
`what a depth value is and how it relates to a depth
`parameter, among other places, including in our expert
`declaration.
` JUDGE DEFRANCO: So let me tell you, when that
`happens, when you don't propose a claim construction in your
`opening petition, you know, I don't know about my colleagues,
`but I presume that we are going to interpret a particular
`term according to what's plain and ordinary meaning.
`And we're going to give it the broadest reasonable
`interpretation according to that plain and ordinary meaning.
`And I think now in your reply, you are asking us to give you
`a -- give Petitioner a narrower meaning, where you're
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`9
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`proposing a narrower meaning than that plain and ordinary
`meaning.
` What do we do with that? I mean, that's like you're
`sandbagging the Patent Owner on that interpretation.
` MR. GLUCOFT: Your Honor, in no source, be it the
`intrinsic evidence or the extrinsic evidence, will you find
`the definition of depth or a depth parameter to be anything
`that creates a perceived depth. Perception and depth are
`fundamentally different concepts. Those were conflated by
`the Patent Owner. But it is not the broadest reasonable
`construction to assume that or to construe the term "Depth
`Parameter" as a perceived depth perception, it's something
`that occurs in the mind of a human being, depth is not.
` JUDGE JIVANI: Wait, wait, wait, wait. Counsel, your
`petition literally says, quote, "A depth parameter relates to
`the perceived distance of an object from a camera." So I
`don't see how you can then assert that Patent Owner conflated
`perception and depth parameter. That's page 10 of your
`petition.
` I also, before you respond to that, do want to revisit
`your response to Judge DeFranco a moment ago. You told Judge
`DeFranco on this panel that Claim 2 of the petition
`corresponds with a specific construction of depth parameter.
`I don't see that, and I would like us to address that
`after you answer me on the perceived distance.
` You also said that there is a specific construction in
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`10
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`a reply. I struggle to find that as well, so I'd like you to
`address all of those things. Let's start with the statement
`at page 10, "The depth parameter relates to a perceived
`distance of an object."
` MR. GLUCOFT: Absolutely. And, Your Honor, for that
`statement, I have two slides, starting on Slide 69, this is
`in the appendix. And I will give Your Honors just a moment to
`get to Slide 69. There are two slides that address
`this issue. This statement that "A depth parameter relates
`to a perceived distance," it is immediately preceded by a
`statement that color -- "A color parameter relates to the
`visible hue."
` Now everyone agrees that color is composed of
`saturation, luminance, and hue. And Patent Owner has even
`said that "Petitioner acknowledges that color has three
`components." So when we said "A color parameter relates to
`the visible hue," "Relates" is not a claimed construction of
`color. We did not say that color equals hue. We just are
`trying to go illustrate to the Board that these are what the
`concepts are, because in everyday parlance, we don't see
`saturation and luminance, we see hue. We see blue. We see
`green. But it's odd to talk about saturation. So we just
`said "Color relates to hue."
` Then on Slide 70, if you continue on in that same
`sentence, we said "A depth parameter relates to the
`perceived depth of an object." So again, the term "Relates"
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`11
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`does not suggest a claim construction, we were just trying in
`that one statement to illustrate to the Board what exactly
`is going on here. And that these are fundamentally distinct
`concepts, but these are not -- the term "Relates" is just
`meant to be a description. We actually do propose formal
`claim constructions in the petition later on again in
`the reply. We do not use the term "Relates." We say "a
`claim construction for this term is..."
` So I just want to make this one sentence
`clear, "A color parameter relates to hue," it does, but we
`are not defining color as just hue, it's hue, saturation, and
`luminance. And a depth parameter does relate to perceived
`distance but it does not equal perceived distance.
` JUDGE DEFRANCO: Okay. So let me ask one question as
`far as that perceived distance goes: So it relates to a
`perceived distance, that means that depth means at least
`covers perceived distance and whatever else you want, according
`to that statement there?
` MR. GLUCOFT: I'm sorry, Your Honor, I don't follow
`the --
` JUDGE DEFRANCO: When you say "Perceived Distance"
`that gives the term "Depth Parameter" a broader coverage than
`just distance itself. Perceived distance means something
`different than just actual distance.
` You would agree with that, right?
` MR. GLUCOFT: Perceived distance means something
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`12
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`different than distance, yes, I do agree with that. And I
`think I can connect these two concepts if I can turn, please,
`to Slide, I believe it is 15 or so. Just give me one second
`to get there, and you will see these concepts
`connected. Okay. On Slide 11, Your Honors. So let's put
`these concepts together of depth and perceived distance, and
`now we will understand how depth does, in fact, relate to
`perceived distance, and leads to the claim and construction
`of the term "Depth Parameter."
` What we have here is a well-known formula for taking
`the depth of an object, so this depth value, let's say, Your
`Honors are ten feet away from me. We plug it into a
`well-known formula that is shown on the right, and what this
`formula shows on the right of Slide 11, is how much I need
`to shift the pixels and an image that I take of, in this
`example, the board, left or right in order to create two
`complementary imagines, which we call "Stereoscopic Image
`Pairs," as they are known in the art, that you can view with
`3D glasses. That is how you see 3D when you go to the movies.
`You're actually -- each eye is seeing an independent image
`that was created by shifting pixels left or right, according
`to a well-known formula. And the formula says the farther
`something is away from you, the less you shift those pixels
`left and right. So the horizon essentially is static and as
`things move closer, there is more of a disparity between your
`left and right eye. So we take depth value and we turn
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`13
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`that, and we take depth, which is that Z-coordinate circled
`in red on the right, we turn it into pixel displacement left
`or right.
` Now, moving on to Slide 12, which is the only instance
`of the term "Depth Parameter" in the spec. Again, new matter
`added to the '793 patent. It talks about "An anaglyph of the
`final depth enhanced second and last image frame reviewable
`with red/blue 3D glasses. And it's created by the operations
`for applying the depth parameter." So what's happening is
`you set the depth of the object, you set the depth parameter
`of an object, you say that Your Honors are ten feet away from
`me, and you use that in well-known formulas to shift pixels
`left or right in the original 2D image, and you create these
`3D image pairs.
` So yes, you do, in fact, use depth parameters to
`create the perception of depth in a process that both
`Petitioner and Patent Owner do in real life to create 3D
`movies.
` So a depth parameter does, in fact, relate to
`perceived distance because you perform this process for a
`purpose. I set the object, I set the distance of the crystal
`ball for the purpose of turning that image into a pair of 3D
`images that then look 3D. That's the whole purpose of
`this process.
` Now, if we turn back, for example, to Slide 9, there
`is no ambiguity here as to what depth is. We are looking at
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`14
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`new matter in Slide 9, added to the '793 patent, where it
`says, "A depth of 32 feet from the camera capture point and
`a depth of 28 feet from the camera capture point."
`Those are distances from the camera. The new
`matter also includes the sentence "A Z-dimension or depth
`that is front of the background." There is no question as to
`what depth is in the context of the '793 patent. Again, this
`is all new matter.
` JUDGE DEFRANCO: But, Counsel, why is it limited to
`distance, as you're saying? Why is the specification
`limiting the definition of depth parameter to the distance or
`32 feet or however -- whatever metric you want to use. It
`seems like the specification is speaking to something broader
`for depth parameter than just distance. So I won't dispute
`that depth parameter could be distance. What I am disputing
`is that it's limited to distance in the context of the '793
`specification.
` Can't it be something broader to include, you know,
`monoscopic depth cues?
` MR. GLUCOFT: The short answer, Your Honor, is no. In
`the context on the '793 specification, depth means distance.
` JUDGE DEFRANCO: Why? Point me to something that
`limits it, because the plain and ordinary meaning of depth
`parameter would encompass more than just distance.
` You agree with that, right?
` MR. GLUCOFT: The plain and ordinary meaning of depth
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`15
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`parameter would not include more than just distance, Your
`Honor, I do not agree with that.
` JUDGE DEFRANCO: Why did your expert say they define
`perceived depth or Mr. Forsyth or Dr. Forsyth, he defined
`"Perceived Depth as a sense of depth created within a
`viewer." And then he said, "That that includes monoscopic
`depth cues can create a perception of depth." So that, to
`me, is the plain and ordinary meaning, and that is coming
`right from your own expert's mouth.
` MR. GLUCOFT: I apologize, Your Honor. So first, I
`think we can look at Patent Owner's expert. Even Patent
`Owner's expert agrees that depth is referring to distance, a
`hypothetical distance between a camera and an object. So
`even Patent Owner's expert understands that depth is
`distance.
` JUDGE DEFRANCO: Well, Patent Owner's expert is saying
`in the context of a '793 in this particular part. I'm not
`sure what he is referring to as "This particular part," but
`he is putting that into the context of whatever that
`particular part is and answering your question during the
`deposition.
` MR. GLUCOFT: Yes.
` JUDGE DEFRANCO: And so -- but your expert says it
`means "Perceived Depth" means something broader and that's
`the term you used in your opening petition, "Perceived
`Depth."
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`16
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
` MR. GLUCOFT: Are we talking, specifically, Your
`Honor, about the point on page 10 of the petition, where we
`talked about it relates to a perceived depth?
` JUDGE DEFRANCO: Yes.
` MR. GLUCOFT: And again, the first -- relates was not
`intended to be a claim construction, and we talk about perceived
`depth, the purpose of this is to make it more accessible for
`the purposes of understanding. I don't believe that our
`expert offered a claim construction of depth parameter in the
`petition or ever that suggested that the depth parameter was
`as broad as a perceived depth. Perceived depth is something
`important because that's, again, why we go through this
`process of setting the depth. But our expert has always
`maintained what depth is in his original declaration, in his
`deposition, again, it's in the context of even -- excuse me,
`Patent Owner's expert said that in the context of the '793
`patent and this particular part, this answer is not limited
`to just the particular portion of the '793 patent. He said
`"in the context of the '793 and this particular part."
` So I, again, would maintain that we have been
`consistent from petition through reply as to what the meaning
`of a depth parameter is and nobody --
` JUDGE DEFRANCO: Mr. Glucoft, how can you say you've
`been consistent because the petition didn't give an
`interpretation according to what you just said, so therefore,
`we have to presume that it's going by its plain and ordinary
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`17
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`meaning, and the plain and ordinary meaning of depth
`parameter includes not just distance, it includes other depth
`cues, such as light and shadow and shading. I mean, that
`goes back to the days of the master painters. They used, you
`know, light and shades, you would agree, to achieve some sort
`of depth to whatever the painting was that they were
`undertaking?
` MR. GLUCOFT: Your Honor, the perception of depth is
`incredibly complicated. And I don't think for purposes of
`this hearing that we actually even need to get that far
`because --
` JUDGE DEFRANCO: But it's a term that you used.
` MR. GLUCOFT: And, Your Honor, if I could turn, for
`example, to Slide 14, where our expert, in his original
`declaration, submitted along with a petition, explained
`exactly what he understood a depth parameter to be. And this
`also responds to an earlier question raised by Your Honors.
` Dr. Forsyth explained in his declaration, submitted
`with a petition, "If an artist determines that the center of
`a sphere is three feet away, the center, a depth parameter,
`can be used to determine the precise depth values
`associated with all points on the surface of the sphere." So
`if you look again to this new matter on the left, which is
`the control panel, you don't see the sphere, the point of
`each individual sphere being set, that is very cumbersome.
`This Z that you see being set for the sphere in the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`18
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`control panel is just the center of the sphere which Dr.
`Forsyth and the petition maintain was three feet away. Depth
`parameter has always been understood to be a depth. There is
`no intrinsic or extrinsic evidence suggesting that a depth
`parameter is as broad as anything that creates the perception
`of depth. And you know that that can't be the case because
`even Legend's expert said that he cannot create a
`comprehensive list of all known depth parameters. That is
`such an incredibly broad statement, nobody could enable it.
`And that's, I think, the key takeaway, right now, is
`that even if you don't agree with our claim construction, we
`can move on because priority does not attach.
` JUDGE JIVANI: Well, Counsel, let's get back to --
` JUDGE DEFRANCO: What is your claim construction?
`That is what we are fundamentally struggling with.
` MR. GLUCOFT: Yes, Your Honor. And for that, I would
`like to turn to Slide 15, where Dr. Forsyth maintained at his
`deposition that the depth parameter is the root coordinate
`system of a shade -- the depth -- excuse me, of the root
`coordinate system of a shade. All that means is -- the root
`coordinate system of a shade is essentially a control point,
`so it is the center of a sphere, it's the center of a cube,
`and he is saying that a depth parameter is just where the
`center of that sphere is because you don't set the depth of
`each individual point on the sphere, you just set it for the
`center.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`19
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
` JUDGE DEFRANCO: Mr. Glucoft --
` JUDGE JIVANI: Where is that in your petition?
` MR. GLUCOFT: I think that the best example, Your
`Honor, of that is shown on Slide 14, in the petition at page
`23 and 24, when we describe the relationship between a depth
`value and a depth parameter.
` JUDGE JIVANI: So Counsel, what you're relying on in
`Slide 14, this statement from Dr. Forsyth, in paragraph 57 of
`his declaration, is immediately followed by the following
`statement: "In the simplest case, the depth parameter simply
`is the depth value."
` Aren't you just taking the simplest case and
`conflating depth value with depth parameter?
` MR. GLUCOFT: Well, Your Honor, in the case that you
`would like to set the depth of one pixel, which you always
`have the option to do, you want to say that this one speck of
`dust is ten feet away, the root coordinate system of that
`shape, so that the center of that speck of dust is the depth
`value. So it is not like a sphere, where you set the center
`and then you have to work with the radius. You just set
`where is that one speck of dust, so in the very simplest case
`of just a single pixel, the depth value and the depth
`parameter, they are both three feet, for example. But -- and
`--
` JUDGE JIVANI: So you are aware that we apply the
`broadest reasonable definition, correct?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`20
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
` MR. GLUCOFT: Yes, I am, Your Honor.
` JUDGE JIVANI: And in this context, you would you
`agree that depth value of dependent Claim 2 is necessarily
`more narrow than depth parameter of Claim 1, correct?
` MR. GLUCOFT: Yes, Your Honor.
` JUDGE JIVANI: And yet, Slide 14 of your deck that
`you're using here today, paragraph 57 of the petition, both
`seem to conflate depth value with depth parameter.
`Parameter, you just told me, must necessarily be broader than
`value. So what is your construction of depth parameter in
`that context?
` MR. GLUCOFT: Sorry, I believe I misspoke about the
`distinction between depth value and depth parameter. A depth
`parameter also requires the decision as to what a root -- the
`root of the shade is. So for the center for the sphere, for
`example, I can choose to use the center of the sphere. I can
`also choose to use a different point on the sphere to determine
`where all of the other points are. So a depth parameter
`requires an additional step, and I am not certain that a depth
`parameter is necessarily broader than the depth value because
`there is additional information required to set the depth parameter.
`But -- and in the interest of time, Your Honors, I have to
`move on to Slide 19 because even if I am not successful in
`convincing Your Honors of the term, the meaning of the term,
`"Depth Parameter," that does not affect the outcome of the
`petition. And on slide --
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`21
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
` JUDGE DEFRANCO: How can you use it? Why don't you
`lose, if we don't accept your interpretation?
` MR. GLUCOFT: I --
` JUDGE DEFRANCO: Let me repeat.
` Why don't you lose if we don't accept your
`interpretation of depth parameter?
` MR. GLUCOFT: Yes. Thank you, Your Honor.
` So for that, I would like to turn to Slide 21, because
`even if you accept Legend's claim construction of the term
`depth parameter, the claimed depth parameter still is
`directed to new matter and priority does not attach. And
`there is just a couple of slides that will walk you through
`why priority does not attach even if you accept the broader
`construction that depth parameter is anything related to
`depth. And to start, Legend, again, construes the term depth
`parameter, as "a parameter that provides a perceived depth."
`But Legend's opposition only discusses how saturation
`and luminance, which are just two components of color, can be
`used to provide a perceived depth. Legend admits that
`saturation and luminance are only examples of depth
`parameters, and Legend's expert said "that he cannot make an
`exhaustive list of everything that could be a parameter used
`to create perceived depth."
` Moving on to Slide 22. Legend and its expert admits
`that one example of a depth parameter under their
`construction -- so one thing that creates a perceived depth
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`22
`
`
`
`Case IPR2016-01243
`Patent 7,907,793 B1
`
`other than saturation and luminance, is disparity -- which is
`the difference between these two images that you view
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
