Paper No. 39
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`APPLE INC.,
`Petitioner,
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`v.
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`COREPHOTONICS, LTD.,
`Patent Owner.
`____________
`
`Case No. IPR2018-01140
`U.S. Patent No. 9,402,032
`____________
`
`
`PATENT OWNER’S PETITION FOR REVIEW BY THE DIRECTOR
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`
`
`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`COREPHOTONICS, LTD.,
`Patent Owner.
`____________
`
`Case No. IPR2018-01140
`U.S. Patent No. 9,402,032
`____________
`
`
`PATENT OWNER’S PETITION FOR REVIEW BY THE DIRECTOR
`
`
`
`Case No. IPR2018-01140
`U.S. Patent No. 9,402,032
`
`TABLE OF CONTENTS
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`THE BOARD ERRONEOUSLY MODIFIED THE OGINO
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`BACKGROUND ............................................................................ 1
`I.
`II.
`REFERENCE TO FIND ANTICIPATION ........................................ 4
`III. THE BOARD APPLIED NOTHING BUT HINDSIGHT IN
`COMBINING OGINO AND CHEN ................................................. 8
`IV. THE BOARD IMPROPERLY FAILED TO CONSIDER ALL
`FOR CLAIMS 14 AND 15 ............................................................. 13
`V.
`BOARD’S FINAL WRITTEN DECISION ...................................... 14
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`RELEVANT ELEMENTS OF THE PURPORTED MODIFICATION
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`THE DIRECTOR SHOULD REVIEW AND REVERSE THE
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`i
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`Case No. IPR2018-01140
`U.S. Patent No. 9,402,032
`TABLE OF AUTHORITIES
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`Cases
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`Chemours Co. FC, LLC v. Daikin Indus., Ltd.,
`4 F.4th 1370 (Fed. Cir. 2021) ............................................................................. 13
`
`Enplas Display Device Corp. v. Seoul Semiconductor Co., Ltd.,
`909 F.3d 398 (Fed. Cir. 2018) .............................................................................. 4
`
`In re Chudik,
`851 F.3d 1365 (Fed. Cir. 2017) ............................................................................ 4
`
`In re Stepan Co.,
`868 F.3d 1342 (Fed. Cir. 2017) ............................................................................ 9
`
`Procter & Gamble Co. v. Teva Phar. USA, Inc.,
`566 F.3d 989 (Fed. Cir. 2009) .............................................................................. 9
`
`Sirona Dental Sys. GmbH v. Institut Straumann AG,
`892 F.3d 1349 (Fed. Cir. 2018). ........................................................................... 4
`
`United States v. Arthrex, Inc.,
`141 S.Ct. 1970 (2021) ............................................................................... 1, 4, 15
`
`Statutes
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`
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`5 U.S.C. §§ 3345, et seq. ........................................................................................ 15
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`
`
`ii
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`Case No. IPR2018-01140
`U.S. Patent No. 9,402,032
`Patent Owner Corephotonics Ltd.. (“Corephotonics”) respectfully requests re-
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`view by the Director of the Final Written Decision issued by the Board in this matter.
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`Pursuant to the Supreme Court’s recent decision in United States v. Arthrex, Inc.,
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`141 S.Ct. 1970 (2021), such review must be conducted by a principal officer
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`properly appointed by the President and confirmed through advice and consent of
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`the Senate. This matter has been remanded to the Patent and Trademark Office for
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`purposes of requesting such review. Corephotonics submits that the Board’s Final
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`Written Decision in this matter must be reviewed and rejected because it impermis-
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`sibly relied on modification of a prior art reference in finding anticipation as to chal-
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`lenged claims 1 and 13, and it failed to perform the proper analysis of the motivation
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`to combine teachings of two references in finding obviousness as to challenged
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`claims 14 and 15. These actions by the Board require that its Final Written Decision
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`of unpatentability be reversed.
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`I.
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`BACKGROUND
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`The ’032 patent at issue in this proceeding involves innovative camera technol-
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`ogy for optical zoom lenses that can fit inside a small mobile device (like a mobile
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`phone) and provide better performance than prior art lenses. The ’032 patent partic-
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`ularly involves claims directed to fixed focal-length telephoto lens assemblies that
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`have a small total track length (TTL), which influences how thick the mobile device
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`must be to accommodate the lens, and a higher effective focal length (EFL), which
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`1
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`U.S. Patent No. 9,402,032
`allows the camera to capture images of distant objects at higher resolution. To
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`achieve such a lens, the ’032 patent teaches the use of multiple individual lens ele-
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`ments with particular design rules for their shape, thickness, individual lens focal
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`length, and material properties. These individual lens elements are combined into an
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`overall lens assembly. Exemplary Figure 3A from the ’032 patent (reproduced below)
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`shows such a lens assembly with light passing from left to right toward an image
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`sensor in the figure. As shown in Figure 3A, the lens assembly also includes a rec-
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`tangular element labeled 312, which is a cover glass over the image sensor. This
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`cover glass serves the important function of protecting the sensitive surface of the
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`sensor, and also filters out damaging infrared light before it reaches the sensor.
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`The Petition here challenged independent claim 1, and claims 13-15, all of
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`which depend on claim 1. Among other elements, claim 1 required a lens assembly
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`with a ration of TTL to EFL of less than 1.0 (i.e., the Effective Focal Length must
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`be greater than the Total Track Length of the lens assembly). Dependent claim 14
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`and 15 added a requirement that the second lens element (from the left in the figure
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`above) be a “meniscus lens” having a convex object-side (the side closer to the object
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`being photographed as opposed to the sensor on which the image is captured). Me-
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`niscus lenses have one convex side and one concave side. Claim 15 also added the
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`requirement that the lens assembly also have a low F number (F#). The F# is a meas-
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`ure of the aperture of the lens assembly relative to its focal length, the lower the F#,
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`the more light enters the lens, which can allow, for example, taking photographs in
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`lower light environments.
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`The Board’s Final Written Decision here found that claims 1 and 13 are antici-
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`pated by the Ogino prior art reference, and that claims 14 and 15 are obvious over
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`the combination of Ogino and the Chen II prior art reference. With respect to its
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`finding of anticipation, the Board relied on Ogino’s “example 6.” For the claim re-
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`quirement of a ration TTL/EFL of less than 1.0, the Board relied on modifying
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`Ogino’s example 6 to remove a cover glass element and move the image sensor to a
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`different location in a way that would reduce the TTL of the lens to purportedly
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`satisfy this claim element. With respect to claims 14 and 15, the Board found that a
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`skilled artisan would have been motivated to modify the shape of the second lens
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`3
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`U.S. Patent No. 9,402,032
`element of Ogino into a meniscus shape based on the Chen II reference.
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`Corephotonics appealed the Final Written Decision to the Federal Circuit. After
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`oral argument on the appeal, but before any decision was issued, the Federal Circuit
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`remanded this matter in light of the Supreme Court’s decision in United States v.
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`Arthrex, Inc., 141 S.Ct. 1970 (2021) for the purpose of seeking Director review.
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`Corephotonics now seeks director review to correct the significant errors committed
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`by the Board.
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`II. THE BOARD ERRONEOUSLY MODIFIED THE OGINO
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`REFERENCE TO FIND ANTICIPATION
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`The only petition ground challenging claims 1 and 13 was an anticipation
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`ground. Thus, the Board was not permitted to consider an alternative obviousness
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`ground for those claims. See Sirona Dental Sys. GmbH v. Institut Straumann AG,
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`892 F.3d 1349, 1356 (Fed. Cir. 2018). Anticipation requires that “a single reference
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`disclose each and every element of the claimed invention.” Enplas Display Device
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`Corp. v. Seoul Semiconductor Co., Ltd., 909 F.3d 398, 405 (Fed. Cir. 2018). The
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`elements must also be arranged in the prior art reference as claimed in the subject
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`patent. Id. Prior art that must be modified to disclose the elements of a claimed in-
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`vention cannot anticipate that claimed invention. Id.; In re Chudik, 851 F.3d 1365,
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`1374 (Fed. Cir. 2017).
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`All challenged claims of the ’032 patent required a lens assembly with a ratio
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`U.S. Patent No. 9,402,032
`of TTL/EFL of less than 1.0. The Board applied the broadest reasonable construction
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`standard and applied a construction of the TTL to be “the length of the optical axis
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`spacing between the object-side surface of the first lens element and one of: an elec-
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`tronic sensor, a film sensor, and an image plane corresponding to either the electronic
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`sensor or a film sensor.” The Board relied on Example 6 of Ogino as the allegedly
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`anticipating example in the Ogino reference. FWD at 23. Example 6 (reproduced at
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`FWD p. 7) is shown below:
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`
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`Under the Board’s construction, the TTL of this example must be calculated
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`from the left edge of the first lens element (R2) to the image plane (R14). Ogino
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`provides a table with the distances (including the spacings between lenses) that make
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`up that distance in Table 11 (reproduced at FWD p. 22):
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`5
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`U.S. Patent No. 9,402,032
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`To compute the distance from the first lens element to the image plane (as re-
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`quired by the Board’s construction), one must sum the figures in the “Di” column
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`for values 2-13. The sum of those values is 4.489 mm. The effective focal length of
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`the Ogino Example 6 lens assembly is shown in Table 11. No party contested that
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`this value is 4.428. Thus, the Ogino example 6 ratio of TTL/EFL (applying the
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`Board’s construction) is 4.489/4.428. This yields a ratio of 1.014 – greater than 1.0
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`and thus outside the range claimed in the challenged claims of the ’032 patent. Apple
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`and its expert conceded that the Total Track Length shown in Ogino’s example 6 is
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`4.489.
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`To reach its conclusion of anticipation, the Board relied on modifying Ogino’s
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`example 6. In particular, the Board relied on a reference in Ogino that suggested that
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`if the cover glass were removed and a coating were applied to one of the lens ele-
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`ments, one could theoretically change the total lens length. Ogino does not disclose
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`6
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`any actual examples of this. Its example 6 is only illustrated showing a TTL that is
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`greater than the EFL. The Board concluded that it could simply use the value of “TL”
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`in Ogino’s table 11 instead of the summed total track length reflected in that table.
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`But the “TL” figure in Ogino’s table 11 is not a value within the Board’s construction.
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`Rather, it is identified as a theoretical value using an “air converted value” for the
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`back focal length instead of the actual value of the disclosed lens assembly. Ex. 1005
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`(Ogino) at 14:50-53. Ogino did not suggest that the “TL” value was an actual meas-
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`urement of the TTL (as defined by the Board) of the lens assembly in Example 6.
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`The Board made the leap that it could simply modify Example 6 of Ogino to 1)
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`remove the cover glass element (CG) of Ogino’s example; 2) move the image
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`plane/sensor of Ogino’s example some unspecified distance closer to the back plane
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`of the fifth lens element (L5); and 3) add an unspecified coating of an unspecified
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`thickness to lens element L5. The Board concluded, without proper evidentiary sup-
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`port, that the Effective focal length of Ogino’s example 6 would remain unchanged
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`by all of these modifications, but that the Total Track Length (under the Board’s
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`construction) would be reduced to 4.387. Ogino contained no such teaching. Further,
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`neither Apple, nor its proffered expert, provided an actual calculation of the various
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`values of EFL and TTL based on modifying Ogino’s example 6 in this manner. Ap-
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`ple’s expert input the various elements of Example 6 as they actually appear in Ogino
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`into lens design software and concluded that the effective focal length of the example
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`was 4.428 and that the total track length was 4.489. See, e.g., Ex. 1003 at 69. Apple’s
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`expert never input the parameters of the modified version of Ogino’s example 6 into
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`such software to determine what the parameters of that lens would be, and Ogino
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`also does not provide them because it does not teach or disclose the modified lens
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`assembly on which the Board relied.
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`The Board improperly exceeded its authority by relying on a modification of
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`Ogino. As discussed above, such modifications might be permissible in an obvious-
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`ness analysis (provided with an adequate showing to support the motivation for such
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`a modification), but they are forbidden in an anticipation analysis. Here, the Board
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`modified Ogino’s Example 6 based on Ogino’s discussion of a theoretical measure-
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`ment used in the reference that was not consistent with the Board’s construction of
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`Total Track Length. It does not matter if that discussion of a different theoretical
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`calculation in Ogino would or would not provide a motivation to modify Example 6.
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`Such a modification (whether motivated or not) is impermissible in an anticipation
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`analysis and the Board exceeded its authority in making that modification.
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`III. THE BOARD APPLIED NOTHING BUT HINDSIGHT IN
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`COMBINING OGINO AND CHEN
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`Governing Federal Circuit precedent is clear that modifications to prior art in
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`order to find a claim obvious must be supported by evidence justifying the actual
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`modification. See generally In re Stepan Co., 868 F.3d 1342, n. 1 (Fed. Cir. 2017);
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`Procter & Gamble Co. v. Teva Phar. USA, Inc., 566 F.3d 989, 995 (Fed. Cir. 2009).
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`It is critical that the Board make a particularly searching inquiry for a real motivation
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`to combine or modify in the context of obviousness analysis. Without it, the analysis
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`devolves into little more than a hunt in the prior art for various references that do not
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`teach the actual invention of a challenged claim, but only discreet elements of that
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`invention, or different inventions that came before. Such material could be found for
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`every patented invention, as such inventions are always combining existing elements
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`in new ways to form new inventions.
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`The motivation to modify or combine inquiry is the most susceptible to imper-
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`missible use of hindsight because often the new solution of a patented invention may
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`seem obvious after it has been disclosed. But, of course, the correct inquiry is
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`whether it was obvious to persons skilled in the art before it was disclosed in the
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`challenged patent. In considering an obviousness challenge, the Board must always
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`acknowledge that the invention was clearly not so obvious that another artisan actu-
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`ally made the combination of elements that is claimed because such an actual com-
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`bination would be anticipating. Presumptively, obviousness contentions should
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`always be regarded with skepticism that can only be overcome by a factual showing
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`based in evidence, not merely assertions of a paid expert, that a person skilled in the
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`art would actually be motivated to make the combination or modification needed to
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`get from the prior art reference to the challenged invention. The actual evidence must
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`show that the skilled artisan would have been motivated to make the particular
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`changes or combinations needed to yield the invention of the challenged claim, not
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`merely that making such changes or combinations were generally possible, or not
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`explicitly excluded.
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`Here, the Board went far, far beyond that line in finding that a person skilled in
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`the art would combine the Chen II reference with Ogino to make a very particular
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`modification (simply to meet an element of the challenged claims) and would choose
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`that one particular modification, which would then require modifying numerous
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`other aspects of Ogino. The Board failed to conduct the rigorous inquiry required of
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`it, particularly where the Chen II reference could have just as easily led to any one
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`of thousands or even millions of possible different modifications of Ogino.
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`Claim 14 of the ’032 patent includes the requirement that the second lens ele-
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`ment be a meniscus lens with a convex object-side surface. Meniscus lenses are con-
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`vex on one side and concave on the other. Thus, the image side of the second lens
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`element must be concave.
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`It was undisputed that the second lens element disclosed in Ogino’s example 6
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`was not a meniscus lens. Rather it was biconcave – concave on both sides. FWD at
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`32. Petitioner argued that Chen II disclosed a lens assembly where the second lens
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`element was a meniscus lens, and that a person skilled in the art would have been
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`motivated to substitute such a lens for the second lens element in Ogino in order to
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`reduce an optical phenomenon known as vignetting. FWD at 33-34.
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`The Board failed to explain why a person skilled in the art would make this
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`modification in light of numerous teachings to the contrary and without actually ad-
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`dressing other key claim requirements. First, Ogino itself made clear that in all em-
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`bodiments of its disclosure, the second lens element should be biconcave, as opposed
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`to permitting the possibility to modify the shape of other lens elements. See, e.g., Ex.
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`1005 at 13:5-11, 13:32-33, 13:64-65. Ogino specifically taught that this biconcave
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`shape was needed to “appropriately suppress occurrence of a high-order spherical
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`aberration while satisfactorily correcting a chromatic aberration, and it is also pos-
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`sible to appropriately reduce the total length.” Ex. 1005 at 7:37-43.
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`The Board’s stated rationale for switching the second lens element of Ogino for
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`a meniscus-shaped lens was to reduce vignetting. But the Board points to no actual
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`evidence in the art that would have suggested that such a switch would, in fact, re-
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`duce vignetting. The Board relies solely on the after-the-fact analysis of Apple’s ex-
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`pert to conclude that because that switch did reduce vignetting, a person skilled in
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`the art at the time would have been motivated to make the change. This analysis flips
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`the obviousness inquiry on its head. The Board must rely only on evidence that a
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`person skilled in the art at the time of the invention would have been motivated to
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`make this specific modification. The Board points to nothing in the art that would
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`have even suggested that the second lens switch would have been advantageous in
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`U.S. Patent No. 9,402,032
`reducing vignetting. Nothing in the Chen II reference, or in any of the cited art sug-
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`gested that using a meniscus lens could help to reduce vignetting. Even if that were
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`a desirable outcome, the Board pointed to no evidence that a person skilled in the art
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`would have known of that advantage. Instead, the Board relied solely on Apple’s
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`after-the-fact hindsight analysis that because making the change resulted in an im-
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`provement, a person skilled in the art would have made the change earlier. This is
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`the epitome of hindsight analysis. Further, the Board did not even rely on substituting
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`the actual second lens of Chen II into Ogino or any of its particular characteristics.
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`Rather, the modification was merely to utilize the general shape of a meniscus. Every
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`other change to the second lens was made based not on Chen, but in order to meet
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`other aspects of the elements of the challenged claims, such as the total track length
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`and effective focal length.
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`The Board improperly placed a burden on Corephotonics to show that the
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`Ogino reference met some elevated standard of teaching away from the proposed
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`combination and modification. FWD at 35. This was inappropriate and exceeded the
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`Board’s authority. It must look for the motivation to combine references in actual
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`evidence in the record. Teachings that lean against the combination (such as those
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`present here) should further heighten the skepticism of the Board in considering ob-
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`viousness. Instead, the Board appears to have simply assumed the motivation to
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`combine without any teaching that suggests it would have been considered by a
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`skilled artisan, and ignored all evidence that cast doubt on the purported motivation.
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`Even under the deferential standard of review applied by the Federal Circuit, the
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`Court has reversed such findings by the Board for failure to adequately consider the
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`motivation to combine or modify. See Chemours Co. FC, LLC v. Daikin Indus., Ltd.,
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`4 F.4th 1370, 1376-77 (Fed. Cir. 2021).
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`IV. THE BOARD IMPROPERLY FAILED TO CONSIDER ALL
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`RELEVANT ELEMENTS OF THE PURPORTED
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`MODIFICATION FOR CLAIMS 14 AND 15
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`Even if the Board had been correct in finding a motivation to combine Chen II
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`and Ogino in order to modify the second lens element of the Ogino example, the
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`Board failed to even address another critical element of this modification. In ad-
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`dressing claims 14 and 15, the Board found that the second lens element of Ogino
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`could be modified to have different properties than disclosed in Ogino. Of course,
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`the combination must also meet all of the elements of claim 1 from which claims 14
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`and 15 depend. Claim 1 required that the second lens element have a “negative re-
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`fractive power.” The Board only discusses this element at pages 27-28 of the FWD,
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`and there only with respect to the lens element as actually taught in Ogino. The Board
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`fails to make any finding that the modified second lens element on which it relies
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`for claims 14 and 15 would meet this further requirement of claim 1. Thus, the Board
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`failed to actually consider all elements of the challenged claim for purposes of the
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`combination relied on in claims 14 and 15. This error is separately fatal to the
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`Board’s analysis of these claims.
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`V. THE DIRECTOR SHOULD REVIEW AND REVERSE THE
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`BOARD’S FINAL WRITTEN DECISION
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`As discussed above, the Board improperly modified a prior art reference to find
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`anticipation, failed to properly consider Petitioner’s obviousness challenge without
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`improper reliance on hindsight, and failed to even address a key element of the pur-
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`ported obviousness combination. Further, in performing its analysis, the Board ap-
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`pears to have simply assumed the conclusion of obviousness, and then improperly
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`shifted the burden of persuasion to Patent Owner to rebut that assumption.
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`All of these were errors. More importantly, they were errors that the Director
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`should remedy. The Board’s analysis reflects an improperly uncritical examination
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`of the assertions of a Petitioner, and result-oriented reasoning. In anticipation anal-
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`yses, the Board must not modify the reference to reach the challenged claim. For
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`obviousness, finding the individual elements of a challenged claim in disparate
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`places in the universe of prior art is relatively easy for every invention. It is always
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`easy, in hindsight, to suggest a modification to a reference would meet an element
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`of a challenged claim. But to avoid improper hindsight analysis, and to properly
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`apply the presumption that this agency actually performed its duty when examining
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`a subject patent in the first instance, the Board must be more rigorous in requiring a
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`real and proper showing of obviousness based on real evidence, and not merely the
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`hindsight say-so of experts paid by Petitioners.
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`While it is true that cases not reviewed by the Director can be appealed to the
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`Federal Circuit, that Court must apply a deferential standard to the findings made by
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`the Board. Only the Director can review the entirety of the Board’s analysis de novo
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`and evaluate whether the Board is utilizing the appropriate level of rigor when con-
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`sidering the multitude of obviousness assertions that Petitioners advance before the
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`PTAB.
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`Finally, Corephotonics respectfully submits that, consistent with the Supreme
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`Court’s holding, the review requested herein must be conducted by a properly ap-
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`pointed principle officer appointed by the President. Because Andrew Hirshfeld is
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`not an appointed principle officer, he may not conduct the requested review without
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`creating the same Constitutional infirmity held to exist in United States v. Arthrex,
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`141 S.Ct. 1970 (2021).1
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`1 While the Supreme Court suggested in Arthrex that such reviews could be con-
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`ducted by the “Acting Director,” (Arthrex, 141 S.Ct. at 1987), there is no Acting
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`Director at present within the meaning of the Federal Vacancies Reform Act of
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`1998. 5 U.S.C. §§ 3345, et seq.
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`Dated: August 25, 2021
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`
`
` /Neil A. Rubin/
`Neil A. Rubin (Reg. No. 67,030)
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, CA 90025
`Telephone: 310-826-7474
`
`Attorney for Patent Owner,
`COREPHOTONICS, LTD.
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`U.S. Patent No. 9,402,032
`CERTIFICATE OF SERVICE
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`I hereby certify that “Patent Owner’s Petition for Review by the Director” was
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`served on August 25, 2021 by email sent to:
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`Michael S. Parsons
`Andrew S. Ehmke
`Jordan Maucotel
`Jamie H. McDole
`HAYNES AND BOONE, LLP
`2323 Victory Ave. Suite 700
`Dallas, TX 75219
`Telephone: 214-651-5000
`Email: michael.parsons.ipr@haynesboone.com
`Email: andy.ehmke.ipr@haynesboone.com
`Email: jordan.maucotel.ipr@haynesboone.com
`Email: jamie.mcdole@haynesboone.com
`
`David W. O’Brien
`HAYNES AND BOONE, LLP
`600 Congress Ave. Suite 1300
`Austin, TX 78701
`Telephone: 512-867-8400
`Email: david.obrien.ipr@haynesboone.com
`
` /Neil A. Rubin/
`
`
`
`
`17
`
`
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