`571-272-7822
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` Paper No. 33
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` Entered: October 1, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.; AND
`SAMSUNG ELECTRONICS AMERICA, INC.
`Petitioners
`
`v.
`
`IMAGE PROCESSING TECHNOLOGIES, LLC
`Patent Owner
`____________
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`IPR2017-01190
`Patent 6,717,518 B1
`____________
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`
`Before JONI Y. CHANG, MIRIAM L. QUINN, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`McSHANE, Administrative Patent Judge.
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`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`I. INTRODUCTION
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`§ 6. This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons discussed herein, we determine that
`Petitioner has shown, by a preponderance of the evidence, that claim 39
`(“the challenged claim”) of U.S. Patent No. 6,717,518 B1 (Ex. 1001,
`“the ’518 patent”) is unpatentable.
`A. Procedural Background
`Samsung Electronics Co., Ltd. and Samsung Electronics America,
`Inc. (“Petitioner”) filed a Petition requesting inter partes review of claim 39
`of the ’518 patent pursuant to 35 U.S.C. §§ 311–319. Paper 2 (“Pet.”).
`Petitioner also filed the supporting Declaration of Dr. John C. Hart (“Hart
`Declaration”). (Ex. 1002). Image Processing Technologies, LLC (“Patent
`Owner”) filed a Preliminary Response to the Petition. Paper 6 (“Prelim.
`Resp.”). Pursuant to 35 U.S.C. § 314(a), on October 3, 2017, we instituted
`inter partes review on the following grounds:
`whether claim 39 would have been obvious under 35 U.S.C.
`§ 103(a) in view of Eriksson1 and Stringa2;
`whether claim 39 would have been obvious under 35 U.S.C.
`§ 103(a) in view of Ando3 and Suenaga4.
`
`
`1 Martin Eriksson, Eye-Tracking for Detection of Driver Fatigue,
`Proceedings of November 1997 IEEE Conference on Intelligent
`Transportation Systems, 314–319. (Ex. 1005).
`2 Luigi Stringa, Eyes Recognition for Face Recognition, Applied Artificial
`Intelligence—An International Journal, Vol. 7, No. 1, 1993, 365–382. (Ex.
`1006).
`3 U.S. Patent No. 5,008,946 (issued April 16, 1991) (Ex. 1009).
`4 U.S. Patent No. 5,805,720 (issued September 8, 1998) (Ex. 1007).
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`See Paper 11 (“Inst. Dec.” or “Dec.”). Subsequent to institution, Patent
`Owner filed a Patent Owner Response (Paper 15, “PO Resp.”). Petitioner
`filed a Reply (Paper 19, “Pet. Reply”) to the Patent Owner Response.
`On April 24, 2018, the Supreme Court held that a final written
`decision in an inter partes review must decide the patentability of all claims
`challenged in the petition. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1359–60
`(2018) (“SAS”). Pursuant to SAS, on May 3, 2018, we instituted inter partes
`review on the following additional ground:
`whether claim 39 would have been obvious under 35 U.S.C.
`§ 103(a) in view of Ando and Stringa.
`See Paper 24; see also PGS Geophysical AS v. Iancu, 891 F.3d 1354, 1360–
`61 (Fed. Cir. 2018) (reading “the SAS opinion as interpreting the statute to
`require a simple yes-or-no institution choice respecting a petition, embracing
`all challenges included in the petition”); Guidance on the Impact of SAS on
`AIA Trial Proceedings (April 26, 2018) (available at
`https://www.uspto.gov/patents-application-process/patent-trial-and-
`appealboard/trials/guidance-impact-sas-aia-trial) (“[I]f the PTAB institutes a
`trial, the PTAB will institute on all challenges raised in the petition.”). The
`parties were requested to advise the Board if they wished to change the case
`schedule or submit further briefing in light of the institution of the Ando and
`Stringa ground. Paper 24, 1. The parties did not request additional briefing,
`nor was there a request for a change to the schedule. Paper 25, 3.
`An oral hearing was held on June 29, 2018. A transcript of the
`hearing is included in the record. Paper 31 (“Tr.”).
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`B. Related Proceedings
`The parties indicate that a related matter is: Image Processing
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`Technologies LLC v. Samsung Elecs. Co., No. 2:16-cv-00505-JRG (E.D.
`Tex.) (“the district court action”). Pet. 1, Paper 4, 1. The parties also
`indicate that inter partes review petitions have been filed for other patents
`asserted in the district court action. Pet. 1–2; Paper 4, 1.
`C. The ’518 Patent
`The ’518 patent is entitled “Method And Apparatus For Detection Of
`
`Drowsiness,” and was filed as PCT application No. PCT/EP99/00300 on
`January 15, 1999, and issued on April 6, 2004. Ex. 1001, [22], [45], [54],
`[86]. The ’518 patent claims priority to application FR 98 00378, dated
`January 15, 1998 and application PCT/EP98/05383, dated August 25, 1998.
`Id. at [30]. The application entered the U.S. national stage as application
`No. 09/600,390, meeting the requirements under 35 U.S.C. § 371 on
`February 9, 2001. Id. at [21], [86].
`
`The ’518 patent is directed to applying a generic image processing
`system in order to detect a person’s drowsiness. Ex. 1001, 2:1–5, 2:32–40.
`In order to accomplish that, the driver’s blink rate is detected using a video
`camera in a car. Id. at 6:28–57. The system first detects a driver entering
`the vehicle, by use of pixels “moving in a lateral direction away from the
`driver’s door.” Id. at 25:24–39. A driver’s head is detected by identifying
`pixels with selected characteristics, with the pixels loaded in histograms as
`depicted in Figure 24, reproduced below. Id. at 5:64–65, 26:46–49.
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`Figure 24, above, illustrates the detection of the edges of a head using
`histograms. Ex. 1001, 5:64–65. The head edges are detected by looking for
`peaks in the histogram. Id. at 26:49–65. The system then masks portions of
`an image, and continues to analyze only the unmasked portions. Id. at
`26:66–27:10; see also id. at Fig. 25. The system then uses an
`anthropomorphic model to set sub-areas for further analysis. Id. at 27:31–
`38. Figure 26, reproduced below, shows the derivation of a sub-area. See
`id. at 27:31–38.
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`Figure 26, above, depicts masking outside the eyes. Ex. 1001, 6:1–2. The
`’518 patent includes a variety of methods to identify blinking, including use
`of histograms to determine whether eyes are open or closed, as depicted in
`Figure 27, reproduced below. Id. at 27:52–28:14.
`
`
`The system checks for eye movement by methods including analyzing the
`pixels within area Z′ depicted above in Figure 27. Ex. 1001, 27:52–55. The
`peaks of the histogram shown in Figure 27, above, are used to determine
`whether an eye is open or closed. Id. at 28:32–29:10. Characteristics of
`features in a search box, such as, such as “a moving eyelid, a pupil, iris or
`cornea, a shape corresponding to an eye, a shadow corresponding to an eye,
`or any other indicia indicative of an eye,” may also be analyzed. Id. at
`30:56–59.
`
`Claim 39, with added formatting and paragraph annotations, is
`reproduced below.
`
`39. A process of detecting a feature of an eye, the process
`comprising the steps of:
`[a] acquiring an image of the face of the person, the image
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`comprising pixels corresponding to the feature to be detected;
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`[b] identifying a characteristic of the face other than the feature
`to be detected;
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`[c] identifying a portion of the image of the face comprising the
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`feature to be detected using an anthropomorphic model based on
`the location of the identified facial characteristic;
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`[d] selecting pixels of the portion of the image having
`characteristics corresponding to the feature to be detected;
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`[e] forming at least one histogram of the selected pixels;
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`[f] and analyzing the at least one histogram over time to
`identify characteristics of the feature to be detected;
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`[g] said feature being the iris, pupil or cornea.
`Ex. 1001, 36:60–38:4.
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`II. ANALYSIS
`A. The Parties’ Post-Institution Arguments
` In our Decision on Institution, we concluded that the arguments and
`evidence advanced by Petitioner demonstrated a reasonable likelihood that
`claim 39 of the ’518 patent would have been unpatentable under 35 U.S.C.
`§ 103 over Eriksson and Stringa and over Ando and Suenaga. Dec. 7–26.
`We now determine whether Petitioner has established by a preponderance of
`the evidence that claim 39 is unpatentable. We previously instructed Patent
`Owner that “any arguments for patentability not raised and fully briefed in
`the [Patent Owner Response] will be deemed waived.” Paper 12, 3; see also
`37 C.F.R. § 42.23(a) (“Any material fact not specifically denied may be
`considered admitted.”); In re Nuvasive, Inc., 842 F.3d 1376, 1379–82 (Fed.
`Cir. 2016) (holding Patent Owner waived an argument addressed in
`Preliminary Response by not raising the same argument in the Patent Owner
`Response). Additionally, the Board’s Trial Practice Guide states that the
`Patent Owner Response “should identify all the involved claims that are
`believed to be patentable and state the basis for that belief.” Office Patent
`Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
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`With a complete record before us, we note that we have reviewed
`arguments and evidence advanced by Petitioner to support its unpatentability
`contentions where Patent Owner chose not to address certain limitations in
`its Patent Owner Response. In this regard, the record contains persuasive
`arguments and evidence presented by Petitioner regarding the manner in
`which the asserted prior art teaches corresponding limitations of claim 39.
`Based on the preponderance of the evidence before us, we conclude that the
`prior art identified by Petitioner teaches or suggests all of the limitations of
`the reviewed claim.
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`B. Claim Construction
`In an inter partes review, the Board interprets claim terms in an
`unexpired patent according to the broadest reasonable construction in light
`of the specification of the patent in which they appear. 37 C.F.R.
`§ 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46
`(2016) (upholding the use of the broadest reasonable interpretation
`approach). Under that standard, and absent any special definitions, we give
`claim terms their ordinary and customary meaning, as they would be
`understood by one of ordinary skill in the art at the time of the invention.
`In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
`
`“selecting pixels of the portion of the image having characteristics
`corresponding to the feature to be detected; forming at least one histogram
`of the selected pixels” (element 39[d], [e])
`Patent Owner asserts that the construction of claim element 39[d] is
`dispositive of the challenge to claim 39, and the claim language requires
`“selecting and forming a histogram of pixels that have characteristics
`corresponding to the feature to be detected, not merely selecting all the
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`pixels in a particular area and forming a histogram of all the pixels in, for
`example, a rectangular area.” PO Resp. 34.
`Patent Owner refers to the discussion in the Decision on Institution
`related to this claim element, and argues that some portions of the ’518
`patent are contrary to the Board’s view of the claim construction in the
`Decision on Institution, and instead support Patent Owner’s proposed
`construction. PO Resp. 34. Patent Owner refers to Figure 27, with
`associated disclosure, asserting that “histograms that are formed only of
`‘pixels with the selected criteria corresponding to the driver’s eyelids,
`preferably DP=1 with vertical movement.’” Id. at 35 (citing Ex. 1001,
`28:15–18, 28:8–10). Patent Owner also refers to other portions of the ’518
`patent specification, alleging that “[t]he claim interpretation proposed . . .
`follows naturally from and is supported by the teachings of the remainder of
`the patent specification, which teach selecting particular pixels with
`characteristics of a feature such as luminance or movement and then forming
`histograms of only those selected pixels.” Id. at 39–41 (citing Ex. 1001, Ex.
`1001, 30:61–64, Figs. 32, 36).
`Patent Owner contends that the language of the claim, including
`elements 39[c], [d], and [e], requires “identification of an image portion that
`includes the feature to be detected, followed by selection of pixels within
`that image portion that have characteristics that correspond to the feature,
`followed by formation of a histogram of those selected pixels.” PO Resp.
`36. Patent Owner argues its proposed construction is in view of claim
`element 39[c], which uses the term “comprising” to indicate a portion of the
`image that includes more than just the feature to be detected, and contrasts
`this with element 39[d], which does not use that term. Id. at 37.
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`Patent Owner refers to other portions of the ’518 patent alleged to
`provide guidance and “reinforce[] the understanding that selecting pixels
`having characteristics corresponding to a feature means choosing only those
`pixels that have the characteristics of that particular feature.” PO Resp. 37.
`In support, Patent Owner refers to other claims of the ’518 patent, such as
`claim 4, which recites “selecting pixels of the image having characteristics
`corresponding to the facial characteristic,” and its dependent claim 5, which
`recites that the “facial characteristic” is the “nostril” and “the step of
`selecting pixels of the image having characteristics corresponding to the
`facial characteristic” is selecting pixels with “low luminance levels.” Id. at
`37–38 (citing Ex. 1001, 33:10–31). Other independent/dependent claim sets
`12 and 13; 17 and 18; and 22 and 23 are also referred to as examples that
`recite selecting pixels that are moving (while blinking) in order to identify
`an eye. Id. at 38.
`
`Petitioner disputes Patent Owner’s proposed limited construction
`because it would limit element 39[d] to “‘selecting pixels of a portion of the
`image having characteristics corresponding to the feature to be selected’
`[that] precludes selection of pixels that are not of the feature itself.” Pet.
`Reply 6 (quoting Inst. Dec. 16).5 Petitioner asserts that claim terms should
`be given their broadest reasonable interpretation and should be interpreted
`according to their ordinary and customary meaning. Id. at 3–4. Petitioner
`argues that Patent Owner’s arguments ignore the use of “comprising” in the
`preamble, which signals that the entire claim is presumptively open-ended.
`
`5 Petitioner also refers to, and disputes, Patent Owner’s allegation that
`element 39[e] “cannot include ‘forming a histogram of all pixels in . . . a
`rectangular area’ but must include ‘only iris, pupil, or cornea pixels.’” Pet.
`Reply 6 (citing PO Resp. 34, 37).
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`Id. at 6. Petitioner alleges that the term “having” is an open-ended term, and
`nothing in the specification precludes elements 39[d] and 39[e] from
`selecting and forming a histogram of all pixels in a specific area (“portion”)
`identified in element 39[c]. Id. at 7.
`
`Petitioner asserts that the ’518 patent discloses histograms that depict
`pixels other than those for the feature at issue. Pet. Reply 8 (citing Ex. 1001,
`Figs. 27, 32, 33, 34, and 36). Petitioner refers to annotated Figures 27, 32,
`33, 34, and 36, reproduced below.
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`Petitioner refers to annotated Figure 36 as an example and asserts that it
`“shows two histograms of a pupil, and the histograms both include pixels
`that are not pupil pixels (annotated in red).” Pet. Reply 10. Petitioner also
`refers to other examples in the Specification where it alleges that all pixels in
`an area are used for forming a histogram. Id. (citing Ex. 1001, 18:58–
`19:25).
`
`Although we agree with Petitioner that the term “comprising” in the
`preamble signals the entire claim is presumptively open ended and could
`extend to the consideration of additional steps of a claimed process, the
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`individual step element 39[d] stands on its own. Element 36[d] requires
`“selecting pixels of the portion of the image having characteristics
`corresponding to the feature.” Transitional phrases, such as “having,” are
`interpreted in light of the specification to determine whether open or closed
`language is intended. Lampi Corp. v. American Power Prods. Inc., 228 F.3d
`1365, 1376 (Fed. Cir. 2000) (citing Manual of Patent Examining Procedure
`§ 2111.03 (7th ed. rev. 2000).
`
`Turning to the specification, it describes the formation of Figure 36 as
`follows:
`Controller 42 sets the histogram formation units to detect the
`desired criteria. For example, FIG. 36 shows a sample
`histogram of a pupil 432, in which the linear combination units
`and validation units are set to detect pixels with very low
`luminance levels and high gloss that are characteristic of a
`pupil.
`Ex. 1001, 30:59–64.
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`The pixels selected for the formation of the histogram in Figure 36 to
`detect the pupil, the feature of interest, are those having certain luminance
`and gloss levels that “are characteristic” of a pupil. Figure 36 depicts that,
`as described, the histogram includes pixels that are selected based on certain
`characteristics (like luminance levels) corresponding to the feature, but the
`histogram also includes pixels that are not those of the feature (pupil 432)
`itself. Thus, the specification discloses histograms that are formed of
`selected pixels having certain characteristics, however, the selected pixels
`with those characteristics may not end up being part of the feature itself.
`Therefore, the selected pixels are not restricted to those of the feature.
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`We have reviewed the other claims that Patent Owner refers us to (PO
`Resp. 37–39), and do not find that these claims serve to differentiate the
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`interpretation of element 39[d] on the issue of whether the selection of pixels
`having characteristics corresponding to the feature should be restricted to
`pixels that are of the feature itself.
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`Therefore, we do not adopt Patent Owner’s proposed construction of
`element 39[d] because it is too limited. The claim only requires the
`selection of pixels of the portion of the image having characteristics
`corresponding to the feature and then using the selected pixels to form the
`histogram.
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`Accordingly, we determine that the term “selecting pixels of the
`portion of the image having characteristics corresponding to the feature to be
`detected” requires that, as claimed, the selected pixels of the portion of the
`image have characteristics corresponding to the feature be selected, and this
`does not preclude selection of other pixels that have characteristics
`corresponding to the feature, that are not pixels of the feature itself. We also
`determine that we need not further construe the term to resolve the issues
`before us.
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`“histogram”
`Patent Owner proposes that the term “histogram” be construed as “a
`statistical representation of the frequency of occurrence with which values
`of a parameter fall within a series of intervals.” PO Resp. 28. Patent Owner
`asserts that this construction is consistent with the ordinary and customary
`meaning of the term. Id. Petitioner does not dispute Patent Owner’s
`proposed construction. Tr. 34:20–24.
`We adopt Patent Owner’s proposed construction of the term
`“histogram.”
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`“characteristic of the face”/“facial characteristic”
`Patent Owner also proposes claim construction for the terms
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`“characteristic of the face”/“facial characteristic.” PO Resp. 33–34. Patent
`Owner asserts that construing these terms would be relevant to the disputed
`issues for Suenaga and Eriksson. Id. at 32. We do not reach Petitioner’s
`additional challenge under Suenaga, and Patent Owner does not present any
`arguments for Eriksson related to these terms. See id., 45–52. Accordingly,
`we determine that it is not necessary to provide an express interpretation of
`these terms.
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`Other Terms
`We determine that it is not necessary to provide an express
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`interpretation of any other term of the claims. Vivid Techs., Inc. v. Am. Sci.
`& Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)) (“[O]nly those terms
`need be construed that are in controversy, and only to the extent necessary to
`resolve the controversy.”).
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`C.
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`Level of Ordinary Skill in the Art
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`Petitioner’s expert, Dr. Hart, testifies that a person of ordinary skill at
`the time of the ’518 patent invention would have had
`either (1) a Master’s Degree in Electrical Engineering or
`Computer Science or the equivalent plus at least a year of
`experience in the field of image processing, image recognition,
`machine vision, or a related field or (2) a Bachelor’s Degree in
`Electrical Engineering or Computer Science or the equivalent
`plus at least three years of experience in the field of image
`processing, image recognition, machine vision, or a related
`field.
` Additional education could substitute for work
`experience and vice versa.
`Ex. 1002 ¶ 44 (see also Pet. 4).
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`Patent Owner does not provide proposed qualifications for one of
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`ordinary skill in the art. See PO Resp. 1–75.
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`We adopt and apply the assessment of the level of ordinary skill in the
`art articulated by Petitioner to our obviousness analysis in this proceeding.
`In addition, we note that the art of record in this proceeding—namely,
`Eriksson, Stringa, Ando, and Suenaga—is indicative of the level of ordinary
`skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir.
`2001).
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`D. Obviousness of Claim 39 over Eriksson and Stringa
` Petitioner contends that claim 39 is obvious over Eriksson and
`Stringa. Pet. 26–41. To support its contentions, Petitioner provides
`evidence and explanations as to how the prior art teaches each claim
`limitation. Id. Petitioner also relies upon the Hart Declaration (Ex. 1002) to
`support its positions. Patent Owner counters that the prior art does not
`render claim 39 obvious because the prior art fails to teach or suggest some
`limitations of the claim and a person of skill in the art would not have
`combined Eriksson and Stringa in the manner proposed. PO Resp. 45–57.
` Based on the evidence in this entire trial record, we are persuaded by
`Petitioner’s explanations and evidence in support of the obviousness grounds
`asserted under Eriksson and Stringa for claim 39. We begin our discussion
`with a brief summary of the prior art, and then address the evidence,
`analysis, and arguments presented by the parties.
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`1. Eriksson (Ex. 1005)
`Eriksson is directed to “a system that locates and tracks the eyes of a
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`driver” for the “purpose of . . . detect[ing] driver fatigue.” Ex. 1005, 314.6
`Eriksson uses a small camera to “monitor the face of the driver and look for
`eye movements which indicate that the driver is no longer in condition to
`drive.” Id. Eriksson uses four steps for detection: (1) localization of the
`face; (2) computation of the vertical location of the eyes; (3) computation of
`the exact location of the eyes; and (4) estimation of the iris position. Id. at
`315. In the first step, localization of the face, Eriksson uses a “symmetry
`histogram,” shown in Figure 1 below. Id.
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`Figure 1, above, depicts computed symmetry values that form the symmetry
`histogram used to determine the center of a face. Ex. 1005, 315–316. In the
`second step of Eriksson, the vertical location of the eyes is determined using
`an edge detection algorithm to form the histogram depicted in Figure 2. Id.
`at 316.
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`6 The references used herein refer to the page numbers used in the original
`publication.
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`Figure 2, above, depicts an original image, edges detected, and a histogram
`of the detected edges. Ex. 1005, 316. The peaks formed are considered in
`the third step of the process that computes the exact location of the eyes. Id.
`The eyes are located by searching for “intensity-valleys” in the image and
`also using “general constraints, such [as] that both eyes must be located
`‘fairly close’ to the center of the face.” Id. Finally, the position of the iris is
`found by the use of an “eye-template” shown in Figure 3. Id.
`
`
`Figure 3, above, depicts the eye-template that is laid over the image to find
`the position of the iris. Ex. 1005, 316. The template determines that there is
`a good match if there are “many dark pixels in the area inside the inner
`circle, and many bright pixels in the area between the two circles.” Id. at
`316–317. Upon a match, “the inner circle is centered on the iris and the
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`outside circle covers the sclera.” Id. at 317. Eriksson generates a horizontal
`histogram across the pupil. Id. at 318. Figure 5, reproduced below, depicts
`horizonal histograms for open and closed eyes. Id. at 318.
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`The histograms depicted above in Figure 5 are used to determine whether an
`eye is open or closed. Ex. 1005, 318. Measurement of blink rates over time
`can be used to detect drowsy drivers. Id.
`2. Stringa (Ex. 1006)
`Stringa is directed to an image processing normalization algorithm for
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`face recognition. Ex. 1006, 365. Stringa locates the position of eyes “based
`on the exploitation of (a priori) anthropometric information combined with
`the analysis of suitable grey-level distributions, allowing direct localization
`of both eyes.” Id. at 369. Stringa discusses the “grammar” of facial
`structure, where the “human face presents a reasonable symmetry,” with
`“knowledge of the relative position of the main facial features.” Id.
`Stringa’s “guidelines can be derived from anthropometric data
`corresponding to an average face and refined through the analysis of real
`faces.” Id. An algorithm detects a line that connects the eyes, side limits of
`the face, and the nose axis, in order to estimate “the expectation zones of the
`two eyes.” Id. at 376. Stringa searches for the pupil based upon an analysis
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`of horizonal grey-level distribution. Id. at 377. Figure 9, reproduced below,
`depicts the expectation zone for the eyes. Id.
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`Figure 9, above, depicts the computed expection zone for two eyes. Ex.
`1006, 377. Stringa uses an analysis of a horizontal grey-area distribution, an
`then uses a second derivation for pupil identification as depicted in Figure
`10. Id. at 377–378.
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`Figure 10, above, depicts a plot of a second derivation of eye data used to
`locate pupil location. Ex. 1006, 378. Figure 10 shows a peak corresponding
`to the eye’s pupil, with two adjacent peaks of lesser intensity indicating the
`discontinuity represented by the cornea. Id.
`3. Analysis
` A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
`nonobviousness.7 Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
` Petitioner alleges, and we agree, that Eriksson teaches a process of
`detecting a features of an eye by acquiring an image of a person’s face
`comprised of pixels.8 Pet. 29–30 (citing Ex. 1005, 314–316; Ex. 1002
`¶¶ 85–87). Petitioner contends, and we agree, that Eriksson teaches the step
`of “identifying a character of the face other than the feature to be detected”
`recited as element 39[b], its teaching of the identification of the edges of the
`face and the vertical location of the eyes. Id. at 31–32 (citing Ex. 1005 at
`315–316; Ex. 1002 ¶¶ 89–92).
` Petitioner asserts, and we agree, that Stringa teaches element 39[c] by
`its use of the eye-connecting line, the face sides, and the nose axis for
`identification of the expectation zone for eyes. Pet. 34–35 (citing Ex. 1006,
`370, 376–379, Ex. 1002 ¶ 98). Stringa characterizes its approach as the use
`of an anthropomorphic model: “an algorithm is used based on the
`exploitation of (a priori) anthropometric information combined with the
`analysis of suitable grey-level distributions, allowing direct localization of
`the eyes.” Id. at 35 (citing Ex. 1006, 369).
` Petitioner contends, and we agree, that Eriksson teaches the step of
`pixel selection of the feature by selecting pixels from a portion of the image
`identified using the symmetry histogram and the gradient histogram
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`7 Patent Owner does not argue on the record that there are objective indicia
`of nonobviousness.
`8 The Decision on Institution considered Eriksson’s teachings for the all the
`elements of claim 39, except for element 39[c]. Dec. 13–14. Here, we
`similarly consider the prior art, and in light of the determination that the
`evidence is sufficient to demonstrate the teachings of claim 39, as discussed
`below, we need not reach other of Petitioner alternative assertions.
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`(element 39[d]). Pet. 36. For instance, Eriksson teaches selection of pixels
`from the portion of the image identified using the symmetry histogram,
`where it searches for areas within the portion of the symmetry histogram that
`have “intensity valleys” using a “raster-scan algorithm” and information
`from the gradient histogram. Id. (citing Ex. 1002 ¶ 100; Ex. 1005, 316). We
`agree with Petitioner’s argument that by searching for “intensity-valleys,”
`Eriksson uses the fact that pupils are generally darker and in an area more
`shadowed than the rest of the face. Id.; see also Ex. 1002 ¶ 101; Ex. 2003,
`156:13–157:4. Thus, Eriksson selects pixels based on whether they have the
`corresponding characteristic (darker) to the feature to be detected, i.e. the
`pupils. Id.
` Petitioner alleges, and we agree, that Eriksson teaches element 39[e]
`of “forming . . . a histogram of the selected pixels,” with analysis over time,
`to identify the characteristic of the feature, i.e. the pupil. Pet. 37–39 (citing
`Ex. 1002 ¶¶ 102, 103, 106, 108). Petitioner relies on Figure 5 of Eriksson’s
`teaching of the histogram formed. Id. at 37. Petitioner also alleges, and we
`agree, that Eriksson discloses analysis of the histogram and identification of,
`at least, a “pupil,” for the teaching of elements 39[f] and [g]. Id. at 38–40
`(citing Ex. 1005, 318; 1002 ¶¶ 106, 110).
` We agree with Petitioner that the combination of Eriksson and Stringa
`teaches every limitation of claim 39 and credit Dr. Hart’s supporting
`testimony, (Ex. 1002 ¶¶ 83, 85–87, 89–92, 98–99, 100–101, 103–104, 106–
`108), as it is consistent with the prior art disclosures.
` Petitioner asserts that a person of ordinary skill in the art would have
`been motivated to combine Eriksson and Stringa because both references are
`directed to similar systems that operate in a similar manner. Pet. 26.
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`Petitioner alleges that Stringa was cited by, and partially incorporated into,
`Eriksson, and therefore one of ordinary skill in the art would have known
`“that Stringa was a relevant and helpful reference in the field of facial
`recognition.” Id. at 28 (citing Ex. 1005, 315; Ex. 1002 ¶ 82). Petitio