Image Processing Technologies, LLC v. Samsung Electronics Co., Ltd. et al

Filing 174

MEMORANDUM OPINION AND ORDER -. Signed by Judge Rodney Gilstrap on 6/21/2017. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
IMAGE PROCESSING
TECHNOLOGIES, LLC,
Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD.;
SAMSUNG ELECTRONICS AMERICA,
INC.
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§

CASE NO. 2:16-CV-505

MEMORANDUM OPINION AND ORDER
Before the Court is the opening claim construction brief of Plaintiff Image Processing
Technologies, LLC (“Plaintiff”) (Dkt. No. 133, filed on April 14, 2017), the response of
Defendants Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (“Defendant”)
(Dkt. No. 138, filed on April 28, 2017), and the reply of Plaintiff (Dkt. No. 148, filed on May 5,
2017). The Court held a claim construction hearing on June 2, 2017. Having considered the
arguments and evidence presented by the parties at the hearing and in their claim construction
briefing, the Court issues this Claim Construction Order.

1

Table of Contents
I. BACKGROUND ....................................................................................................................... 3
II. LEGAL PRINCIPLES ........................................................................................................... 7
III. CONSTRUCTION OF AGREED TERMS ........................................................................ 9
IV. CONSTRUCTION OF DISPUTED TERMS ................................................................... 10
A. “histogram” ......................................................................................................................... 10
B. “time coincidence” terms .................................................................................................... 13
C. Claim 3 of the ʼ293 patent .................................................................................................. 18
1.

“values typical of a sequence of each of these registers” ............................................ 21

2.
“wherein the test unit is provided for calculating and storing statistical data
processes, after receiving the data aijT corresponding to the space at an instant T, a
content of the analysis memory in order to update the output memory of the analysis
output unit” ........................................................................................................................... 24
D. “configured to determine the data in the histogram that satisfy a selected criterion” ........ 27
E. “automatic” classification terms ......................................................................................... 31
F. “domain” and “class” .......................................................................................................... 36
G. “forming at least one histogram…” .................................................................................... 40
H. “said at least one histogram referring to classes defining said target” ............................... 43
I. “identifying…” terms ......................................................................................................... 46
J. “generating …” terms ......................................................................................................... 50
K. “displaying an outline associated with the target” .............................................................. 52
L. “wherein forming the at least one histogram further comprises determining X minima
and maxima and Y minima and maxima of boundaries of the target” ............................... 55
M. “…the outline…” terms [claims 26 and 27 of the ʼ445 patent] .......................................... 59
N. “successively increasing the size of a selected area until the boundary of the target is
found” ................................................................................................................................. 63
O. “analyzing the at least one histogram over time” ............................................................... 67
V. CONCLUSION...................................................................................................................... 69

2

I. BACKGROUND
Plaintiff brings suit alleging infringement of United States Patent Nos. 6,717,518 (“the
ʼ518 patent”), 6,959,293 (“the ʼ293 patent”), 7,650,015 (“the ʼ015 patent”), 8,805,001 (“the ʼ001
patent”), 8,983,134 (“the ʼ134 patent”), and 8,989,445 (“the ʼ445 patent”) (collectively the
“patents-in-suit”) by the Defendant.
The ʼ015, ʼ001, ʼ134, and ʼ445 patents are related and share the specification, and are
generally referred to collectively as “the ʼ015 patent family.” In particular, the ʼ001 patent is a
continuation of the application leading to the ʼ015 patent, the ʼ134 patent is a continuation of the
application leading to the ʼ001 patent, and the ʼ445 patent is a continuation of a continuation of
the application leading to the ʼ001 patent. Each of the patents in the ʼ015 patent family is entitled
“Image Processing Method.” The application leading to the ʼ015 patent was filed on February 20,
2007, is based on a series of earlier U.S. patent applications with an earliest priority date of
September 13, 1999, which itself claims priority to an earlier filed PCT application filed on July
22, 1997, which itself claims priority to a French application filed on July 26, 1996. The ʼ015
patent issued on January 19, 2010. The application leading to the ʼ001 patent was filed on
November 17, 2009 and issued on August 12, 2014. The application leading to the ʼ134 patent
was filed on March 17, 2014 and issued on March 17, 2015. The application leading to the ʼ445
patent was filed on August 13, 2014 and issued on March 24, 2015. In general, the ʼ015 patent
family is directed to an image processing method and apparatus for face and/or object detecting
and tracking using histograms of the image. The Abstract of the ʼ015 patent states:
A method and apparatus for localizing an area in relative movement and for
determining the speed and direction thereof in real time is disclosed. Each pixel of
an image is smoothed using its own time constant. A binary value corresponding to
the existence of a significant variation in the amplitude of the smoothed pixel from
the prior frame, and the amplitude of the variation, are determined, and the time

3

constant for the pixel is updated. For each particular pixel, two matrices are formed
that include a subset of the pixels spatially related to the particular pixel. The first
matrix contains the binary values of the subset of pixels. The second matrix
contains the amplitude of the variation of the subset of pixels. In the first matrix, it
is determined whether the pixels along an oriented direction relative to the
particular pixel have binary values representative of significant variation, and, for
such pixels, it is determined in the second matrix whether the amplitude of these
pixels varies in a known manner indicating movement in the oriented direction. In
each of several domains, histogram of the values in the first and second matrices
falling in such domain is formed. Using the histograms, it is determined whether
there is an area having the characteristics of the particular domain. The domains
include luminance, hue, saturation, speed (V), oriented direction (D1), time
constant (CO), first axis (x(m)), and second axis (y(m)).
Asserted claim 6 of the ʼ015 patent is shown below:
A process of tracking a target in an input signal implemented using a system
comprising an image processing system, the input signal comprising a succession
of frames, each frame comprising a succession of pixels, the target comprising
pixels in one or more of a plurality of classes in one or more of a plurality of
domains, the process performed by said system comprising, on a frame-by-frame
basis: forming at least one histogram of the pixels in the one or more of a plurality
of classes in the one or more of a plurality of domains, said at least one histogram
referring to classes defining said target, identifying the target from said at least one
histogram, drawing a tracking box around the target, and centering the tracking box
relative to an optical axis of the frame.
The application leading to the ʼ293 patent was filed on February 23, 2001, claims priority
to a French patent application filed on February 24, 2000, and issued on October 25, 2005. The
ʼ293 patent is entitled “Method and Device for Automatic Visual Perception.” In general, the ʼ293
patent is directed to detecting/analyzing an event by the formation of a histogram. The Abstract
of the ʼ293 patent states:
A visual perception processor comprises histogram calculation units, which
receive the data DATA(A), DATA(B), . . . DATA(E) via a single data bus and
supplying classification information to a single time coincidences bus. In a
preferred embodiment the histogram calculation units are organized into a matrix.
Claim 1 of the ʼ293 patent is shown below:

4

A visual perception processor for automatically detecting an event
occurring in a multidimensional space (i, j) evolving over time with respect to at
least one digitized parameter in the form of a digital signal on a data bus, said digital
signal being in the form of a succession aijT of binary numbers associated with
synchronization signals enabling to define a given instant (T) of the
multidimensional space and the position (i, j) in this space, the visual perception
processor comprising:
the data bus;
a control unit
a time coincidences bus carrying at least a time coincidence signal; and
at least two histogram calculation units for the treatment of the at least one
parameter,
the histogram calculation units being configured to form a histogram
representative of the parameter as a function of a validation signal and to determine
by classification a binary classification signal resulting from a comparison of the
parameter and a selection criterion C, wherein the classification signal is sent to the
time coincidences bus, and wherein the validation signal is produced from time
coincidences signals from the time coincidence bus so that the calculation of the
histogram depends on the classification signals carried by the time coincidence bus.
The application leading to the ʼ518 patent was filed on February 9, 2001, is based on an
earlier filed PCT application filed on January 15, 1999, which itself claims priority to a French
application filed on January 15, 1998. The ʼ518 patent issued on April 6, 2004. The ʼ518 patent
is entitled “Method and Device for Automatic Visual Perception.” In general, the ʼ518 patent is
directed to detecting the drowsiness of a person based on analyzing the person’s face. The Abstract
of the ʼ518 patent states:
In a process of detecting a person falling asleep, an image of the face of the
person is acquired. Pixels of the image having characteristics corresponding to an
eye of the person are selected and a histogram is formed of the selected pixels. The
histogram is analyzed over time to identify each opening and closing of the eye,
and characteristics indicative of the person falling asleep are determined. A subarea of the image including the eye may be determined by identifying the head or a
facial characteristic of the person, and then identifying the sub-area using an
anthropomorphic model. To determine openings and closings of the eyes,
histograms of shadowed pixels of the eye are analyzed to determine the width and

5

height of the shadowing, or histograms of movement corresponding to blinking are
analyzed. An apparatus for detecting a person falling asleep includes a sensor for
acquiring an image of the face of the person, a controller, and a histogram formation
unit for forming a histogram on pixels having selected characteristics. Also
disclosed is a rear-view mirror assembly incorporating the apparatus.
Claim 1 of the ʼ518 patent is shown below:
1. A process of detecting a person falling asleep, the process comprising:
acquiring an image of the face of the person;
identifying a sub-area of the image comprising at least one eye of the
person, including:
identifying the head of the person in the image; and
identifying the sub-area of the image using an anthropomorphic model;
selecting pixels within the sub-area of the image having characteristics
corresponding to characteristics of the at least one eye of the person;
forming at least one histogram of the selected pixels;
analyzing the at least one histogram over time to identify each opening and
closing of the eye; and
determining from the opening and closing information of the eye,
characteristics indicative of a person falling asleep.
The U.S. Patent & Trademark Office (“USPTO”) instituted Inter Partes Review (“IPR)
proceedings on five of the six patents-in-suit on May 25, 2017. See, e.g., Dkt. No. 153 (Notice of
Activity in Related IPR Proceedings). Some of the claim terms disputed between the parties are
generally discussed in these grants. Id.

6

II. LEGAL PRINCIPLES
This Court’s claim construction analysis is guided by the Federal Circuit’s decision in
Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips, the court
reiterated that “the claims of a patent define the invention to which the patentee is entitled the right
to exclude.” 415 F.3d at 1312 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys.,
Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). “The construction that stays true to the claim language
and most naturally aligns with the patent’s description of the invention will be, in the end, the
correct construction.” Id. at 1316 (quoting Renishaw PLC v. Marposs Societa' per Azioni, 158
F.3d 1243, 1250 (Fed. Cir. 1998)).
In claim construction, patent claims are generally given their ordinary and customary
meaning, which “is the meaning that the term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effective filing date of the patent application.”
Id. at 1312-13. This principle of patent law flows naturally from the recognition that inventors are
usually persons who are skilled in the field of the invention and that patents are addressed to, and
intended to be read by, others skilled in the particular art. Id.
Despite the importance of claim terms, Phillips made clear that “the person of ordinary
skill in the art is deemed to read the claim term not only in the context of the particular claim in
which the disputed term appears, but in the context of the entire patent, including the
specification.” Id. The written description set forth in the specification, for example, “may act as
a sort of dictionary, which explains the invention and may define terms used in the claims.”
Markman, 52 F.3d at 979. Thus, as the Phillips court emphasized, the specification is “the primary
basis for construing the claims.” Phillips, 415 F.3d at 1314–17.

However, it is the claims, not

the specification, which set forth the limits of the patentee’s invention. Otherwise, “there would

7

be no need for claims.” SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985)
(en banc).
The prosecution history also plays an important role in claim interpretation as intrinsic
evidence that is relevant to the determination of how the inventor understood the invention and
whether the inventor limited the invention during prosecution by narrowing the scope of the
claims. Phillips, 415 F.3d at 1314–17; see also Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d
1340, 1350 (Fed. Cir. 2004) (noting that “a patentee’s statements during prosecution, whether
relied on by the examiner or not, are relevant to claim interpretation”). In this sense, the
prosecution history helps to demonstrate how the inventor and the United States Patent and
Trademark Office (“PTO”) understood the patent. Id. at 1317. Because the prosecution history,
however, “represents an ongoing negotiation between the PTO and the applicant,” it may
sometimes lack the clarity of the specification and thus be less useful in claim construction. Id.
Courts are also permitted to rely on extrinsic evidence, such as “expert and inventor
testimony, dictionaries, and learned treatises,” id. (quoting Markman, 52 F.3d at 980), but Phillips
rejected any claim construction approach that sacrifices the intrinsic record in favor of extrinsic
evidence. Id. at 1319. Instead, the court assigned extrinsic evidence, such as dictionaries, a role
subordinate to the intrinsic record. In doing so, the court emphasized that claim construction issues
are not resolved by any magic formula or particular sequence of steps. Id. at 1323–25. Rather,
Phillips held that a court must attach the appropriate weight to the sources offered in support of a
proposed claim construction, bearing in mind the general rule that the claims measure the scope of
the patent grant. “In cases where . . . subsidiary facts are in dispute, courts will need to make
subsidiary factual findings about [the] extrinsic evidence.

These are the ‘evidentiary

underpinnings’ of claim construction [discussed] in Markman, and this subsidiary factfinding must

8

be reviewed for clear error on appeal.” Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841
(2015).
The Supreme Court of the United States has “read [35 U.S.C.] § 112, ¶ 2 to require that a
patent’s claims, viewed in light of the specification and prosecution history, inform those skilled
in the art about the scope of the invention with reasonable certainty.” Nautilus, Inc. v. Biosig
Instruments, Inc., 134 S. Ct. 2120, 2129 (2014). “A determination of claim indefiniteness is a
legal conclusion that is drawn from the court’s performance of its duty as the construer of patent
claims.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005)
(citations and internal quotation marks omitted), abrogated on other grounds by Nautilus, 134
S. Ct. 2120.

III. CONSTRUCTION OF AGREED TERMS
The parties have agreed to the following meanings for the following terms. See, e.g., Dkt.
No. 150 (Joint Claim Construction Chart.); Dkt. No. 155 (Joint Notice).
TERM
“parameter” (ʼ293 patent)

AGREED CONSTRUCTION
“a numerical characteristic [numerical
characteristics]”
“a value resulting from determining whether a
pixel meets a selected classification criterion
for a domain”
The parties have agreed for purposes of this
litigation that the preamble is limiting
“calculating new x and y coordinates of the
center point of the outline”
“mathematical representation specifying the
spatial relationship of human facial features”

“classification value” (ʼ445 patent)
“tracking a target” (ʼ445 patent; ʼ001 patent,
ʼ015 patent, ʼ134 patent)
“moving a center point of the outline” (ʼ445
patent, claim 6)
“anthropomorphic model” (ʼ518 patent)

Accordingly, the Court adopts the constructions agreed to by the parties as listed above.

9

IV. CONSTRUCTION OF DISPUTED TERMS
The parties’ positions and the Court’s analysis as to the disputed terms are presented below.
A. “histogram”
Plaintiff’s
Proposed Construction
“a statistical representation of the frequency
of occurrence of values of a ‘parameter’”

Defendant’s
Proposed Construction
“a statistical representation of the frequency of
occurrence with which values of a parameter
fall within defined intervals of the range of
values of the parameter”

The disputed term “histogram” appears in claims in each of the patents-in-suit.
(1) The Parties’ Positions
Plaintiff argues that the claim language and specification of the patents refers to calculating
a histogram for/of a “parameter.” See, e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction
Brief, at pages 2-3. Plaintiff argues that Defendant’s construction would exclude embodiments
that use non-continuous digital data. Id. at 3.

Plaintiff also argue that nothing in the claim

language or the specification requires the intervals of the histogram to be “defined.” Id. Plaintiff
argues that the specification makes clear that the intervals can be adapted in real-time, and
therefore are not necessarily “defined.” Id.
Defendant argues that the intrinsic evidence and textbooks on statistical methods confirm
Defendant’s proposal. See, e.g., Dkt. No. 138, Defendant’s Responsive Claim Construction Brief,
at page 2.

According to Defendant, Plaintiff’s construction would cover any statistical

representation, including bar charts, scatter plots, and essentially any mechanisms that counts the
occurrence of something. Id. Based on various extrinsic textbooks and dictionaries, Defendant
argues that to form a histogram the intervals are defined within a range of values. Id. at 3.
Defendant argues that the requirement that the range of values be divided into defined intervals is

10

what distinguishes histograms from other data representations. Id. at 3-4. Defendant argues that
the specification supports its arguments, in that every parameter disclosed in the specifications
takes on a range of values that is divided into defined intervals for forming the histogram. Id. at
4-5.
In its Reply, Plaintiff argues that a “range of values” is incorrect because it could exclude
binary parameters disclosed in the specification. See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim
Construction Brief, at page 5. Plaintiff argues that by requiring a “histogram” to have “defined”
intervals, Defendant’s construction would improperly exclude adapting intervals in real-time and
using variable-width intervals. Id. Plaintiff admits that a histogram has “intervals,” but argues
that the intrinsic evidence does not require those intervals to be “defined.” Id. Plaintiff argues
that its construction would not encompass bar charts or scatter plots. Id. at 5-6.
(2) Analysis
Both parties agree that the “histogram” term needs to be construed. Both parties agree that
the term means “a statistical representation of the frequency of occurrence of values of a
parameter,” but disagree as to whether something “more” (as argued by the Defendant) is needed
to accurately define the term “histogram.” In particular, the parties dispute whether a histogram
is merely any statistical representation, or more specifically, a statistical representation formed by
dividing a parameter’s range of values into defined intervals and counting how often the value of
that parameter falls within each defined interval.
The “histogram” term appears in all of the patents-in-suit. The parties’ arguments focus
on the claim language, the specification, and extrinsic evidence.
Claim 1 of the ʼ293 patent is representative, and is reproduced below in relevant part:

11

at least two histogram calculation units for the treatment of the at least one
parameter,
the histogram calculation units being configured to form a histogram
representative of the parameter as a function of a validation signal and to determine
by classification a binary classification signal resulting from a comparison of the
parameter and a selection criterion C, wherein the classification signal is sent to the
time coincidences bus, and wherein the validation signal is produced from time
coincidences signals from the time coincidence bus so that the calculation of the
histogram depends on the classification signals carried by the time coincidence bus.
(emphasis added.) As a whole, the claims do not provide much (if any) guidance as to the parties’
dispute.
Plaintiff does not rely on any technical dictionaries for its proposed construction.
Defendant relies on numerous technical sources that support its proposed constructions. Those
extrinsic sources generally require a histogram to be divided into intervals that are plotted along a
horizontal axis and a vertical axis with the frequency of occurrence of values for that interval.
Both parties cite to different portions of the specifications that allegedly support their
constructions. On balance, the Court is not persuaded by the Defendant’s specification citations
that the histogram must be “defined intervals” of the “range of values of the parameter.” The Court
is not convinced that the plain meaning of the “histogram” term requires such a construction.
Further, the Court is not convinced that the language is appropriate or necessary based on the
intrinsic record. To the extent Defendant’s construction is based around an embodiment of the
specification, the Federal Circuit has consistently held that “particular embodiments appearing in
the written description will not be used to limit claim language that has broader effect.”
Innova/Pure Water, 381 F.3d at 1117.
On balance, the Court finds that Plaintiff’s construction is too broad and would cover
statistical representations that are not typically considered a histogram. Regarding the “intervals”

12

word as proposed by Defendant, the Court finds that there is no dispute that a “histogram” has
“intervals.” Indeed, Plaintiff admits that a histogram has “intervals,” but argues that the intrinsic
evidence does not require those intervals to be “defined.” (See Plaintiff’s Reply, Dkt. No. 148 at
page 5.) While the inherent meaning of the term “histogram” clearly supports some type of
“interval” for the parameter values, the Court rejects the “defined” intervals language proposed by
the Defendant. Instead, the Court finds that the phrase “series of intervals” is appropriate based
on the intrinsic and extrinsic evidence. Further, the Court is not convinced that the Defendant’s
proposed limitation that the intervals be in a “range of values” is a necessary or warranted
limitation to the disputed term.
The Court hereby construes “histogram” to mean “a statistical representation of the
frequency of occurrence with which values of a parameter fall within a series of intervals.”

B. “time coincidence” terms
Disputed Term
“wherein the validation signal is
produced from time coincidences
signals from the time coincidence
bus so that the calculation of the
histogram depends on the
classification signals carried by the
time coincidence bus”
(ʼ293 patent, claim 1)
“time coincidences unit” /
“coincidence unit”

Plaintiff’s
Proposed
Construction
Plain and ordinary
meaning

Plain and ordinary
meaning

(ʼ293 patent, claim 3; claims 18, 22)

13

Defendant’s
Proposed Construction
“wherein the validation signal
is produced when two or more
classification signals satisfy
stored conditions at the same
time”

“unit that generates an enable
signal when the outputs of two
or more classification units
satisfy stored conditions at the
same time”

“enabling the calculating step when
classified data satisfies
predetermined time coincidence
criteria”

Plain and ordinary
meaning

“enabling the calculating step
when the classified data
satisfies two or more stored
conditions at the same time”

(ʼ293 patent, claim 29)
The disputed “time coincidence” terms appear in claims 1, 3, 18, 22, and 29 of the ʼ293
patent.
(1) The Parties’ Positions
Plaintiff argues that the phrases are easily understood in the context of the surrounding
claim language and do not require construction. See, e.g., Dkt. No. 133, Plaintiff’s Opening Claim
Construction Brief, at pages 5, 7, 8. The terms are not limited to “two or more classification units,”
“stored conditions,” or the “same time” as proposed by the Defendant, as those additional
limitations do not appear in the claim. Id. at 6-8.
Defendant argues that the “coincidence” terms represent a key feature of the claimed
system – the use of two or more classification signals to determine whether to include a particular
pixel in the histogram. See, e.g., Dkt. No. 138, Defendant’s Responsive Claim Construction Brief,
at pages 7-9. Defendant argues that the specification consistently describes the coincidences unit
as receiving inputs from multiple classifiers and evaluating them at the same time. Id. at 7-8.
Defendant argues that the very purpose of the “coincidence unit” is to evaluate coincidences
between the multiple classifiers in the system at the same time to construct the logical validation
signal “out” described above. Id. at 8. Defendant argues that the word “coincidence” means
“taking place at the same time. Id. Defendant argues that the claims support its construction
because they recite plural classification signals compared to “criteria” (plural) in the coincidences
unit. Id. Defendant argues that the coincidence unit’s only function is to evaluate multiple

14

classification outputs to create a validation signal controlling whether a pixel should be added to
the histogram. Id. at 9.
In its Reply, Plaintiff argues that Defendant’s constructions add impermissible additional
limitations to the claims. See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction Brief, at
page 6. Plaintiff argues that Defendant’s construction excludes multiple embodiments from the
specification. Id. Plaintiff argues that coincidence does not require coincidence at the same time
but instead refers to coincidence for each frame or pixel, and thus exact temporal equivalence is
not required. Id.

(2) Analysis
The disputed terms “time coincidences unit” and “coincidence unit” (by themselves)
appear in claims 3, 18, and 22 of the ’293 patent. As detailed later in this opinion (see sections C
and D below), however, because other terms are found to be indefinite in claims 3, 18, and 22, the
Court declines to expressly construe the “time coincidences unit” and “coincidence unit” terms on
their own, as such a construction is unnecessary in light of the indefinite findings for those claims.
Nevertheless, disputes remain regarding the other “time coincidence” terms appearing in claims 1
and 29 of the ’293 patent.
The parties’ disputes as to these terms are generally the same and are grouped and argued
by the parties together. In general, the parties dispute whether the term has a plain and ordinary
meaning or whether a specific construction is necessary that restricts the “time coincidence”
signals to satisfying stored conditions at the same time.
The disputed terms fall within claims 1 and 29 of the ʼ293 patent, reproduced below in
relevant part:

15

[claim 1, excerpt ] … the histogram calculation units being configured to form a
histogram representative of the parameter as a function of a validation signal and
to determine by classification a binary classification signal resulting from a
comparison of the parameter and a selection criterion C, wherein the classification
signal is sent to the time coincidences bus, and wherein the validation signal is
produced from time coincidences signals from the time coincidence bus so that
the calculation of the histogram depends on the classification signals carried
by the time coincidence bus.

[claim 29] A method of analyzing parameters associated with an event by an
electronic device, comprising:
a) receiving data representative of one or more parameters of the event
being detected;
b) calculating, for a given instant of time, a statistical distribution, defined
as a histogram, of a selected parameter of the event being detected;
c) classifying the data by comparing its value to classification criteria stored
in a classification memory;
d) enabling the calculating step when classified data satisfies
predetermined time coincidence criteria; and
e) automatically updating, for each instant of time, the classification criteria
stored in the classification memory based on statistical information associated with
the histogram.
(emphasis added.)
Based on the claim language, the Court is not convinced that Defendant’s constructions are
necessary or appropriate. Regarding claim 29, nothing in the claim requires “predetermined time
coincidence criteria” to mean “two or more stored conditions at the same time,” as proposed by
Defendant. Regarding claim 1, Defendant’s construction is effectively a rewrite of the claim
language and substitutes the phrase “from time coincidences signals from the time coincidence bus
so that the calculation of the histogram depends on the classification signals carried by the time

16

coincidence bus” with “two or more classification signals satisfy stored conditions at the same
time.”
The ʼ293 patent specification discusses the “time coincidences unit”:
Time coincidences unit 102 is connected to the bus 111, and includes at
least one register 102 r and receives, for each pixel, the output values (inE, . . . ,
inB, inA) of the classifiers 101 of the various histogram calculation units 1
connected to the bus 111.
This time coincidences unit 102 compares the values thus received to those
contained in its register 102 r and transmits, on its output 102 s, for each pixel, an
enabling signal equal to 1 when there is a coincidence between the register values
equal to 1 and the corresponding data received from the bus 111, and a zero value
in the reverse case, which corresponds to the following Boolean function:
out=({overscore (in0)}+Rego).({overscore (in1)}+Reg1) . . . ({overscore
(inn)}+Regn)(ino+inl+ . . . inn)
(ʼ293 patent, col. 9, ll. 37-50.) One of the embodiments in the specification teaches that the “time
coincidences block 102 comprises a single register contain[ing] a single time coincidences value
making up the time coincidences criterion R.” (Id. at col. 16, ll. 55-58.) Thus, the specification
appears to reject the limitation of “two or more stored conditions” as proposed by Defendant. To
the extent Defendant’s construction is based on an embodiment of the specification, the Federal
Circuit has consistently held that “particular embodiments appearing in the written description will
not be used to limit claim language that has broader effect.” Innova/Pure Water, 381 F.3d at 1117.
On balance, the Court rejects Defendant’s arguments. The Court is not convinced that
Defendant’s constructions are necessary or appropriate based on the intrinsic record. The Court
finds that the terms have no meaning other than their plain and ordinary meaning and that the
surrounding claim language provides sufficient meaning to the words in the claim terms. Because
this resolves the dispute between the parties, the Court finds that the terms require no further
construction. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997)

17

(“Claim construction is a matter of resolution of disputed meanings and technical scope, to clarify
and when necessary to explain what the patentee covered by the claims, for use in the
determination of infringement. It is not an obligatory exercise in redundancy.”); see also O2 Micro
Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[D]istrict courts
are not (and should not be) required to construe every limitation present in a patent’s asserted
claims.”) (citing U.S. Surgical, 103 F.3d at 1568).
The Court hereby construes “wherein the validation signal is produced from time
coincidences signals from the time coincidence bus so that the calculation of the histogram
depends on the classification signals carried by the time coincidence bus” of claim 1 of the ʼ293
patent to have its plain and ordinary meaning.
The Court hereby construes “enabling the calculating step when classified data satisfies
predetermined time coincidence criteria” of claim 29 of the ʼ293 patent to have its plain and
ordinary meaning.

C. Claim 3 of the ʼ293 patent
Various terms are disputed within claim 3 of the ʼ293 patent. The disputed terms include
the following:


“learning multiplexer”



“values typical of a sequence of each of these registers”



“the data DAT(A), DATA(B), …, DATA(E)”



“the parameter DATA(A)” / “parameters other than DATA(A)”



“the single time coincidences bus”

18



“all the individual time coincidences signals”



“wherein a counter of each address in the memory corresponds to the value d of aijT
at a given instant”



“wherein the test unit is provided for calculating and storing statistical data
processes, after receiving the data aijT corresponding to the space at an instant T, a
content of the analysis memory in order to update the output memory of the analysis
output unit”

For most of these disputed terms, the Defendant argues that they are indefinite. In response
Plaintiff effectively argues for a plain and ordinary meaning. Since the Court finds that at least
two of the disputed terms are indefinite, the Court does not construe the remainder of these terms,
as the construction of additional terms is not necessary in light of the overall indefinite finding for
claim 3 of the ʼ293 patent. Accordingly, the below analysis only focuses on the following two
terms of claim 2 of the ʼ293 patent: “values typical of a sequence of each of these registers” and
“wherein the test unit is provided for…” As discussed below, the Court finds that both of these
terms are indefinite; thus, the Court finds claim 3 of the ʼ293 patent to be indefinite.
Claim 3 of the ʼ293 patent is produced in its entirety, with the two disputed terms discussed
herein emphasized:
3. A visual perception processor, comprising:
data bus;
a time coincidences bus; and
two or more histogram calculation units that receive the data
DATA(A), DATA(B), . . . DATA(E) via the data bus and supply
classification information to the single time coincidences bus,

19

wherein at least one of said two or more histogram calculation unit
processes data aijT associated with pixels forming together a
multidimensional space (i, j) evolving over time and represented at a
succession of instants (T), wherein said data reaches said at least one
calculation unit in the form of a digital signal DATA(A) in the form of a
succession aijT of binary numbers of n bits associated with synchronization
signals enabling to define the given instant (T) of the multidimensional
space and the position (i, j) of the pixels in this space, to which the signal
aijT received at a given instant (T) is associated, said unit comprising:
an analysis memory including a memory with addresses, each
address associated with possible values of the numbers of n bits of the signal
DATA(A) and whose writing process is controlled by a WRITE signal;
a classifier unit comprising a memory intended for receiving a
selection criterion C of the parameter DATA(A), said classifier unit
receiving the signal DATA(A) at the input and outputting a binary output
signal having a value that depends on a result of the comparison of the signal
DATA(A) with the selection criterion C;
a time coincidences unit that receives the output signal from the
classifier unit and, from outside the histogram calculation unit, individual
binary enabling signals affecting parameters other than DATA(A), wherein
said time coincidences unit outputs a positive global enabling signal when
all the individual time coincidences signals are positive;
a test unit;
an analysis output unit including output memory;
an address multiplexer;
an incrementation enabling unit; and
a learning multiplexer;
wherein a counter of each address in the memory corresponds to the
value d of aijT at a given instant, which is incremented by one unit when
the time coincidences unit outputs a positive global enabling signal;
wherein the test unit is provided for calculating and storing
statistical data processes, after receiving the data aijT corresponding to
the space at an instant T, a content of the analysis memory in order to
update the output memory of the analysis output unit, wherein the
output memory is deleted before a beginning of each frame for a space
at an instant T by an initialization signal;

20

wherein the learning multiplexer is configured to receive an external
command signal and initiate an operation according to a learning mode in
which registers of the classifier unit and of the time coincidences unit are
deleted when starting to process a frame, wherein the analysis output unit
supplies values typical of a sequence of each of these registers.
(emphasis added.)
1.

“values typical of a sequence of each of these registers”

Plaintiff argues that the disputed term “values typical of a sequence of each of these
registers” has its plain and ordinary meaning and Defendant argues that the term is indefinite.
(1) The Parties’ Positions
Plaintiff argues that the term has its plain meaning and does not need construction. See,
e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction Brief, at page 13. Plaintiff argues that
based on surrounding claim language the disputed claim term is referring to values typical of the
“classifier unit” and the “time coincidences unit” registers. Id. at 13. Plaintiff argues that the term
must refer to representative values derived from the analysis output unit, and that would be
commonly used by one of the two registers referred to. Id. One of skill in the art would understand
“typical” to mean representative or commonly used in the context of claim 3, and the Plaintiff
relies on a dictionary definition and its expert for support. Id.
Defendant argues that neither the claim nor the specification provides any guidance for
determining what is a “typical” value for any register or what is meant by a “sequence of each of
these registers.” See, e.g., Dkt. No. 138, Defendant’s Responsive Claim Construction Brief, at
page 16. Defendant argues that “typical” is a term of degree, and without guidance, it is impossible
for one of ordinary skill to determine what values of these registers would be typical, as opposed
to atypical, and therefore, to determine the scope of this claim. Id. Defendant relies on its expert
for support of its indefinite position. Id.

21

In its Reply, Plaintiff argues that this limitation is not indefinite because a person of skill
in the art would understand it to refer to representative values derived from the analysis output unit
and being supplied to the classifier unit and coincidences unit registers. See, e.g., Dkt. No. 148,
Plaintiff’s Reply Claim Construction Brief, at page 2. Plaintiff argues that Defendant’s argument
that the claim provides no guidance as to what is “typical” ignores the earlier claim language
reciting that the analysis output unit stores “statistical data processes” based on the “data aijT.”
Id. These statistical data processes, e.g., RMAX, are “typical” or representative of a sequence of
each of the registers. Id.
(2) Analysis
The Court agrees with the Defendant that this term is indefinite.
The relevant portions of claim 3 of the ʼ293 patent are reproduced below:
an analysis output unit including output memory;
….
wherein the learning multiplexer is configured to receive an external
command signal and initiate an operation according to a learning mode in which
registers of the classifier unit and of the time coincidences unit are deleted when
starting to process a frame, wherein the analysis output unit supplies values
typical of a sequence of each of these registers.
(emphasis added.) The “analysis output unit” supplies values “typical of a sequence of each of
these registers” of the classifier unit.
The Defendant argues that the phrase “typical of a sequence of each of these registers” is
unclear and is indefinite. In particular, Defendant argues that there is no guidance in the
specification or the claims for determining what is a “typical” value for any register or what is
meant by a “sequence of each of these registers.” In response, Plaintiff argues that the disputed

22

phrase simply has its plain and ordinary meaning. Neither of the parties has provided any
meaningful citation to the specification as to what is meant by this phrase.
The Court is not persuaded by the Plaintiff’s arguments. While the dictionary definition
of “typical” may be “representative” or “commonly used,” such a construction for this term – by
itself – is not helpful and provides no further clarity to the term or the dispute between the parties.
Additionally, the Court finds that the claim language is unclear as to what is meant by
“typical” as well as “a sequence of each of these registers.” What values are typical? What values
are atypical? The specification fails to provide guidance or meaning to this term. The claims do
not help, nor do the Plaintiff’s arguments or construction provide any guidance. In particular,
Plaintiff’s “plain meaning” construction does not help and provides no further clarity to the term
or the dispute between the parties. Plaintiff merely states that one of skill in the art would not be
confused by the disputed claim term and refers back to the claim language as a whole. Further, the
Plaintiff’s expert fails to provide any reasonable construction for this term, and fails to provide
any reasonable scope of the claimed invention.
Accordingly, the Court finds that this term is indefinite and rejects Plaintiff’s arguments to
the contrary. Specifically, the Court finds that one of skill in the art would not understand with
“reasonable certainty” the scope of the invention and the bounds of the claim based upon at least
this disputed term. The Court finds that one of ordinary skill cannot reasonably determine the
scope of this claim. Therefore, pursuant to the Supreme Court’s holding in Nautilus, the Court
agrees with Defendant’s arguments that the claim when “read in light of the specification
delineating the patent, and the prosecution history, fail[s] to inform, with reasonable certainty,
those skilled in the art about the scope of the invention.”

23

The Court hereby finds the term “values typical of a sequence of each of these registers”
of claim 3 of the ʼ293 patent to be indefinite.

2.
“wherein the test unit is provided for calculating and storing statistical data
processes, after receiving the data aijT corresponding to the space at an instant T, a
content of the analysis memory in order to update the output memory of the analysis
output unit”
Plaintiff argues that the disputed term “wherein the test unit is provided for calculating and
storing statistical data processes, after receiving the data aijT corresponding to the space at an
instant T, a content of the analysis memory in order to update the output memory of the analysis
output” has its plain and ordinary meaning and Defendant argues that the term is indefinite.
(1) The Parties’ Positions
Plaintiff argues that the term has its plain meaning and does not need construction. See,
e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction Brief, at page 12. Plaintiff argues that
as the claim language states, the “test unit” calculates “statistical data” after receiving “data aijT”
from “the content of the analysis memory,” it then stores this statistical data in the “output
memory” of the “analysis output unit.” Id. at 12. Figure 3 exemplifies the claimed structure. Id.
Plaintiff relies on its expert stating that a person of skill in the art would understand this claim
language with reasonable certainty based on the language of claim 3 as a whole. Id.
Defendant argues that the phrase “a content of the analysis memory in order to update the
output memory of the analysis output unit” cannot be interpreted. See, e.g., Dkt. No. 138,
Defendant’s Responsive Claim Construction Brief, at page 18-19. Defendant argues that this
phrase is not grammatically correct in the context of this limitation and appears to be, at least,
missing a verb, rendering it meaningless and rendering claim 3 indefinite. Id. Defendant also

24

argues that at best Figures 3 and 4 of the specification show that data addresses the analysis
memory but does not store the analysis memory, which is in contrast to Plaintiff’s apparent position
that the test unit receives the data. Id. Defendant relies on its expert for support of its indefinite
position. Id.
In its Reply, Plaintiff argues that this limitation is not indefinite because a person of skill
in the art would understand that the “test unit” calculates “statistical data” after receiving “data
aijT from “the content of the analysis memory” in order to update the “analysis output unit.”
See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction Brief, at page 2. Plaintiff argues that
whether the memory stores the literal aijT value or increments a memory address corresponding
to the value of aijT is irrelevant to a POSA’s understanding of the claim. Id.

(2) Analysis
The Court agrees with the Defendant that this term is indefinite.
The relevant portion of claim 3 of the ʼ293 patent is reproduced below:
a test unit;
…
wherein the test unit is provided for calculating and storing statistical
data processes, after receiving the data aijT corresponding to the space
at an instant T, a content of the analysis memory in order to update the
output memory of the analysis output unit, wherein the output memory
is deleted before a beginning of each frame for a space at an instant T
by an initialization signal;
(emphasis added.) On its face, the Court agrees with the Defendant that there are grammar issues
for this disputed phrase and it is unclear what portions of the disputed term are modifying other

25

portions of the phrase. In response, Plaintiff argues that the disputed phrase simply has its plain
and ordinary meaning.
The Court is not persuaded by Plaintiff’s arguments. Rather than interpret any portion of
the disputed claim term, the Plaintiff effectively recites the claim language in its “clear”
understanding of the meaning of the claim term, ignores any apparent grammar issues, and then
dismisses as “irrelevant” whether the memory stores the aijT value or increments a memory address
corresponding to that value. See, e.g., Dkt. No. 148 at 2.
The Court finds that various portions of the disputed claim term are unclear. The phrase
appears to be, at the least, missing a verb, and Plaintiff’s plain meaning construction does not help
because it provides no further clarity to the term or the dispute between the parties. Rather than
providing a construction for the term, Plaintiff merely states that one of skill in the art would not
be confused by the disputed claim term and references the claim language as a whole and the
apparent intent of the claim language. Further, the Plaintiff’s expert fails to provide any reasonable
construction for this term, and fails to provide any reasonable scope of the claimed invention.
Therefore, the Court finds that this term is indefinite and rejects Plaintiff’s arguments to
the contrary. The Court finds that one of skill in the art would not understand with “reasonable
certainty” the scope of the invention and the bounds of the claim based upon at least this disputed
term. Further, the Court finds that one of ordinary skill cannot reasonably determine the scope of
this claim. Accordingly, pursuant to the Supreme Court’s holding in Nautilus, the Court agrees
with Defendant’s arguments that the claim when “read in light of the specification delineating the
patent, and the prosecution history, fail[s] to inform, with reasonable certainty, those skilled in the
art about the scope of the invention.”

26

The Court hereby finds the term “wherein the test unit is provided for calculating and
storing statistical data processes, after receiving the data aijT corresponding to the space at an
instant T, a content of the analysis memory in order to update the output memory of the analysis
output” of claim 3 of the ʼ293 patent to be indefinite.

D. “configured to determine the data in the histogram that satisfy a selected
criterion”
Plaintiff’s
Proposed Construction
“configured to determine the data to be
included in the histogram based on
satisfying a selected criterion”

Defendant’s
Proposed Construction
Indefinite
Alternatively, plain meaning

The disputed term “configured to determine the data in the histogram that satisfy a selected
criterion” appears in claims 18 and 22 of the ʼ293 patent.
(1) The Parties’ Positions
Plaintiff argues that claims 18 and 22, taken as a whole, make clear that the above phrase
recites the function of classification for determining the content of the histogram. See, e.g., Dkt.
No. 133, Plaintiff’s Opening Claim Construction Brief, at page 14. Plaintiff argues that the
surrounding claim language recites an “input portal” which is coupled to the “classification unit”
which outputs to the “coincidence unit” which generates an enable signal for the “histogram unit”
which generates the histogram. Id. Thus, Plaintiff argues, the order of operations is clear. Id.
Plaintiff also argues that in the context of the claim as a whole, this term must refer to determining
the parameter data from the input portal to be included in the histogram based on a selected
criterion.

27

Defendant argues that according to the claim language, data is added to the histogram based
on the classification’s unit output, but that the claim requires the output to be based on data already
in the histogram. See, e.g., Dkt. No. 138, Defendant’s Responsive Claim Construction Brief, at
page 14. Defendant argues that this claim language is nonsensical because the classification unit
cannot evaluate data “in the histogram” given that another limitation requires that the result of this
calculation is used to create the histogram in the first place. Id. Defendant argues that the term is
indefinite and Plaintiff’s “fix” is to rewrite the claims. Id. Defendant argues that the claims may
not be redrafted to cure drafting errors. Id. If the term is not indefinite, Defendant argues that the
term simply should be given its plain meaning and not be rewritten. Id. at 14-15.
In its Reply, Plaintiff argues that this limitation is not indefinite because a person of skill
in the art would understand that it describes the function of a classification unit—determining
which data to be included in histogram calculation—consistent with the surrounding claim
language and all embodiments of classification units in the specification. See, e.g., Dkt. No. 148,
Plaintiff’s Reply Claim Construction Brief, at page 3.
(2) Analysis
The parties dispute whether the claim should be rewritten to insert the phrase “to be
included” in the disputed term to otherwise avoid a nonsensical result. Both parties seem to agree
that the claim as written is nonsensical. Thus, Defendant argues that the claim is either indefinite
or has its plain meaning (which would in effect be a nonsensical claim). Plaintiff argues that the
language “to be included” is not a rewrite because one of skill in the art reading the claim would
necessarily understand the term “in” to mean “to be included in.”
The disputed term is located within claims 18 and 22 of the ʼ293 patent. Claim 18 is
reproduced below in relevant part

28

a classification unit coupled to the input portal and the histogram unit, and
configured to determine the data in the histogram that satisfy a selected
criterion, and to generate an output accordingly, the classification unit supplying
the output to the transfer bus;
(emphasis added.) Similar claim language appears in claim 22. In the limitations recited in the
claim, the “histogram unit” calculates a histogram for the selected parameter, the “classification
unit” determines the data in the histogram that satisfy a selected criterion, and the “coincidence
unit” receives output from the classification unit and generates an enable signal for the histogram
unit. In other words, in one portion of the claim, data is added to the histogram based on the
classification unit’s output, but in another portion of the claim the output from the classification
unit is based on data already in the histogram.
Based on the claim language as written, both parties recognize that there is a problem with
the claim language. The parties differ on what, if anything, the Court can do to fix the problem.
Plaintiff suggests to rewrite the disputed claim term to make it allegedly consistent with an
embodiment in the specification.
The Court agrees with the Defendant that the claim language is nonsensical because the
classification unit cannot evaluate data “in the histogram” given that another limitation requires
that the result of this calculation is used to create the histogram in the first place. The Court rejects
Plaintiff’s argument that the phrase “to be included” is not a re-write of the claim, or that the
meaning of the term is clear based on the “claim as a whole.” The Court finds that the claim
language is unclear as to what is meant by “the data in the histogram.” Does the classifier unit
determine the data in the histogram as expressly required in the claims? Or does the classifier unit
determine the data “to be included” in the histogram? Does the admitted “problem” with the claim
reside within the disputed term, or does it reside in a separate portion of the claim?

29

The Federal Circuit “has repeatedly held that courts may not redraft claims to cure a
drafting error made by the patentee, whether to make them operable or to sustain their validity.”
Lucent Technologies, Inc. v. Gateway, Inc., 525 F.3d 1200, 1215 (Fed. Cir. 2008). A finding by
this Court to add the phrase “to be included” in the claim substantively changes the meaning of
the claim; indeed, Plaintiff asks for such a substantive change only to make the claim make sense.
Such a change is effectively a claim rewrite and is not a simple typographical correction or an
interpretation of the claim as a whole. In effect, Plaintiff admits that the claims as written are
nonsensical and thus indefinite. The Court declines Plaintiff’s request to insert the “to be included”
language in the claim to avoid an indefinite finding.
Therefore, the Court finds that one of skill in the art would not understand with “reasonable
certainty” the scope of the invention and the bounds of the claims based upon this disputed term.
Indeed, even the Plaintiff effectively admits that the claims as written are nonsensical.
Accordingly, pursuant to the Supreme Court’s holding in Nautilus, the Court agrees with
Defendant’s arguments that the claims when “read in light of the specification delineating the
patent, and the prosecution history, fail[s] to inform, with reasonable certainty, those skilled in the
art about the scope of the invention.” The Court rejects Plaintiff’s arguments to the contrary.
The Court hereby finds the term “configured to determine the data in the histogram that
satisfy a selected criterion” of claims 18 and 22 of the ʼ293 patent to be indefinite.

30

E. “automatic” classification terms
Plaintiff’s
Proposed Construction
“wherein classification is
“wherein classification for
performed automatically by the histogram being
processing statistical
calculated is performed
information associated with using criteria that are
the calculated histogram”
updated, as the histogram is
being calculated, using data
(ʼ293 patent, claim 18)
characterizing the
distribution of parameter
values contained in the
histogram”
“automatically updating,
Plain and ordinary meaning
for each instant of time, the
classification criteria stored Each instant of time refers to
in the classification
each given instant of time
memory based on statistical
information associated with
the histogram”
Disputed Term

Defendant’s
Proposed Construction
“wherein classification is
performed using criteria that
are updated without human
intervention after the histogram
has been calculated using data
characterizing the distribution
of parameter values contained
in the calculated histogram”
“for each given instant of time,
updating classification criteria
stored in memory without
human intervention using data
characterizing the distribution
of parameter values contained
in the histogram calculated for
that instant of time”

(ʼ293 patent, claim 29)
The disputed term “wherein classification is performed automatically by processing
statistical information associated with the calculated histogram” appears in claim 18 of the ʼ293
patent. Because another disputed term of claim 18 (“configured to determine …,” discussed in
section D above) is found to be indefinite, the Court declines to construe this separate term in claim
18 as such a construction is not necessary.
The disputed term “automatically updating, for each instant of time, the classification
criteria stored in the classification memory based on statistical information associated with the
histogram” appears in claim 29 of the ʼ293 patent. This term is analyzed and construed as detailed
below.
(1) The Parties’ Positions

31

Plaintiff argues that the phrases are easily understood to refer to updating the criteria used
for classification as the histogram is being calculated. See, e.g., Dkt. No. 133, Plaintiff’s Opening
Claim Construction Brief, at pages 15-17. Plaintiff argues that its construction clarifies that these
updates are performed as the histogram is being calculated so that the classification criteria may
change as the histogram is formed, which may be referred to loosely as “real-time” updating of
the classification criteria.

Id.

Plaintiff argues that its construction is consistent with the

specification, which describes that statistical information is calculated and stored in memory in
parallel with the formation of the histogram. Id. at 16-17. Plaintiff argues that the phrase “without
human intervention,” as proposed by Defendant, is not found in the specification or claims and
adds no further clarity to the disputed term. Id. at 17. Regarding claim 29, Plaintiff argues that
the limitation “for each instant of time” refers to the antecedent “given instant of time” of step (b)
of claim 29. Id. at 18. Plaintiff argues that the classification criteria are updated as the histogram
is being calculated using data characterizing the distribution of parameter values contained in the
histogram. Id. at 18. In other words, Plaintiff argues that the classification criteria are updated as
the histogram is calculated. Id. Plaintiff argues that a “given instant of time” refers to a frame of
pixels for a particular time. Id.
Defendant argues that the parties’ primary dispute is whether the criteria are updated after
a histogram has been calculated or “as the histogram is being calculated.” See, e.g., Dkt. No. 138,
Defendant’s Responsive Claim Construction Brief, at page 10. Defendant argues that Plaintiff’s
construction seeks to broaden the claims’ scope beyond what the claim language and the
specification support to include updating classification criteria in the middle of calculating a
histogram. Id. Regarding claim 29, Defendant argues that a histogram is calculated for each
frame, and classification criteria are updated for each frame, i.e., once per histogram. Id. at 11.

32

Defendant argues that classification criteria are not updated while the histogram is being calculated
but, rather, after the histogram calculation is complete such that the new classification criteria can
be used to process the next frame. Id. Defendant argues that the specification shows that real time
updating of the classifier happens after the histogram and the statistical data have been calculated.
Id. at 12. Defendant also argues for a construction of automatically to distinguish it from a user
manually setting a register. Id.
In its Reply, Plaintiff argues that the dispute is whether the classification criteria updates
while processing a single frame or only for a subsequent frame. See, e.g., Dkt. No. 148, Plaintiff’s
Reply Claim Construction Brief, at page 7. Regarding claim 29, Plaintiff argues that Defendant’s
construction is wrong because “updating only once per frame” cannot be correct because it is
contrary to claim step (b), which can occur several times per frame despite being “for a given
instant of time.” Id. at 7. Plaintiff argues that step (b) is performed each time step (d) enables the
calculating step to build the histogram up. Id.
(2) Analysis
For the “automatically updating” term in claim 29 of the ʼ293 patent, the parties agree that
each instant of time refers to each given instant of time. A primary dispute is whether the criteria
are updated after a histogram has been calculated (Defendant) or as the histogram is being
calculated (Plaintiff).
Claim 29 of the ʼ293 patent is reproduced below:
A method of analyzing parameters associated with an event by an electronic device,
comprising:
a) receiving data representative of one or more parameters of the event
being detected;

33

b) calculating, for a given instant of time, a statistical distribution, defined
as a histogram, of a selected parameter of the event being detected;
c) classifying the data by comparing its value to classification criteria stored
in a classification memory;
d) enabling the calculating step when classified data satisfies predetermined
time coincidence criteria; and
e) automatically updating, for each instant of time, the classification
criteria stored in the classification memory based on statistical information
associated with the histogram.
(emphasis added.)
The specification describes that the statistical information for a histogram of a specific
frame and parameter is calculated in parallel with the formation of the histogram. See, e.g., ʼ293
patent, col. 9, l. 51 – col. 10, l. 14. The specification also discloses that the memory of the classifier
is updated automatically in real-time and the classification is performed using the statistical
information of the histogram. See, e.g., ʼ293 patent, col. 11, ll. 14-52, col. 12, ll. 16-42. The Court
generally agrees with Plaintiff’s arguments that the specification discusses real-time updating.
On balance, the Court rejects Defendant’s arguments. The Court is not convinced that
Defendant’s constructions are necessary or appropriate based on the intrinsic record. To the extent
Defendant’s construction is based around an embodiment of the specification, the Federal Circuit
has consistently held that “particular embodiments appearing in the written description will not be
used to limit claim language that has broader effect.” Innova/Pure Water, 381 F.3d at 1117.
Further, the Court finds that Defendant’s construction is essentially a rewrite of the disputed claim
language.
The Court finds that the terms have no meaning other than their plain and ordinary meaning
and that the surrounding claim language provides sufficient meaning to the words in the claim
terms. The Court declines to adopt Defendant’s construction for the term “automatically” as

34

meaning “without human intervention,” as that phrase is unduly restrictive and potentially
ambiguous – at some point human intervention must be required.

A plain and ordinary

construction for the term “automatic” is appropriate and sufficient. Since this resolves the dispute
between the parties, the Court finds that the terms require no further construction. See U.S.
Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim construction is a
matter of resolution of disputed meanings and technical scope, to clarify and when necessary to
explain what the patentee covered by the claims, for use in the determination of infringement. It
is not an obligatory exercise in redundancy.”); see also O2 Micro Int’l Ltd. v. Beyond Innovation
Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[D]istrict courts are not (and should not be)
required to construe every limitation present in a patent’s asserted claims.”) (citing U.S. Surgical,
103 F.3d at 1568).
However, because the parties are in agreement that “each instant of time” refers to “each
given instant of time,” and the Court agrees with such a finding, the Court finds that such a
limitation should be included in the Court’s construction.
The Court hereby construes “automatically updating, for each instant of time, the
classification criteria stored in the classification memory based on statistical information
associated with the histogram” of claim 29 of the ʼ293 patent to mean “automatically updating,
for each given instant of time, the classification criteria stored in the classification memory
based on statistical information associated with the histogram.”

35

F. “domain” and “class”
Disputed Term
“domain”
(ʼ001 patent, claims 1, 8; ʼ015
patent, claim 6; ʼ134 patent, claim
1)
“class”

Plaintiff’s
Proposed
Construction
“the complete set of
values for a parameter”

Defendant’s
Proposed Construction
“the complete set of values
for a property of a pixel”

“a selected subset of
values of a parameter”

“a range of values in a
domain”

(ʼ001 patent, claims 1, 8; ʼ015
patent, claim 6; ʼ134 patent, claim
1)
The disputed terms “domain” and “class” appear in at least claims 1 and 8 of the ʼ001
patent, claim 6 of the ʼ015 patent, and claim 1 of the ʼ134 patent.
(1) The Parties’ Positions
Regarding the term “domain,” Plaintiff argues that the specification provides examples of
domains in relation to a “parameter” that are not limited to being a “property of a pixel” as
proposed by the Defendant. See, e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction Brief,
at page 19. In particular, Plaintiff argues that “speed” and “oriented direction” are not “properties
of a pixel” but rather are examples of a domain. Id. These other domains are not properties of a
pixel per se but are based on surrounding pixels and data from previous frames. Id. Regarding
the term “class,” Plaintiff argues that the specification describes classes as being selected from
within domains, and thus classes are subsets of domains. Id. at 20. The specification does not
teach that classes are necessarily a “range of values,” as Defendant proposes. Id.
Defendant argues that a “domain” defines a particular pixel property. See, e.g., Dkt. No.
138, Defendant’s Responsive Claim Construction Brief, at page 19. Defendant argues that the
specification describes the domains for each pixel, including for speed and direction, which

36

contradicts Plaintiff’s arguments that the domains are not properties of a pixel. Id. Regarding
classes, Defendant argues that the specification describes a domain as being divided into classes,
with each class representing a defined range of values within a domain. Id. at 20. Defendant
argues that Plaintiff’s use of the term “parameter” is not based on the claims and introduces
ambiguities to the claim language. Id. Defendant argues that Plaintiff’s use of the term “selected”
would apply to disconnected subsets and confuses the term “classifier unit” with a “class,” which
is simply ranges of values in the domain and not selected subsets. Id.
In its Reply, Plaintiff argues that the specification uses the term “parameter” consistent
with the concept of a “domain.” See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction
Brief, at page 8. Plaintiff argues that Defendant’s construction excludes properties associated with
pixels that are described as domains in the specification, such as speed and direction, but these
domains are calculated based on matrices of pixels and not a single pixel. Id. Regarding “class,”
Plaintiff argues the term “subset” can apply to discontinuous values (such as 3 and 5) and the term
“range” would require a successive plurality of values (such as 3, 4, and 5); however, the claim
refers to classes within domains and therefore a class cannot constitute the whole domain. Id.
Plaintiff argues that Defendant’s construction impermissibly limits the claims to a single
embodiment and excludes other disclosed class embodiments. Id.
(2) Analysis
While the parties agree that the “domain” term is the “complete set of values for”
[something], the parties disagree as to what is that “something.” The parties’ primary dispute as
to the “class” term is whether it is simply a “selected subset” of the domain or is a “range of values”
of the domain.
As a representative example, claim 1 of the ʼ134 patent is recited below in its entirety:

37

A process of tracking a target in an input signal implemented using a system
comprising an image processing system, the input signal comprising a succession
of frames, each frame comprising a succession of pixels, the target comprising
pixels in one or more of a plurality of classes in one or more of a plurality of
domains, the process performed by said system comprising, on a frame-by-frame
basis:
forming at least one histogram of the pixels in the one or more of a plurality of
classes in the one or more of a plurality of domains, said at least one histogram
referring to classes defining said target; and
identifying the target in said at least one histogram itself,
wherein forming the at least one histogram further comprises determining X
minima and maxima and Y minima and maxima of boundaries of the target.
(emphasis added). Other claims that contain the disputed terms are similar. The claim language
is clear that the one or more plurality of domains is formed of and/or made of one or more of a
plurality of classes. In other words, the classes are expressly claimed as being part of the domains.
The term “parameter” is not used in the claims, nor is the term “range.”
The Abstract of the ʼ015 patent1 states that the domains may include “luminance, hue,
saturation, speed (V), oriented direction (D1), time constant (CO), first axis (x(m)), and second
axis (y(m)).” The ʼ015 patent specification has numerous other instances where it provides similar
and exemplary domains. See, e.g., ʼ015 patent, col. 3, ll. 54-57; col. 5, ll. 34-38. The ʼ015 patent
states that the “[s]patial processing unit 17 generates the following output signals for each pixel:
i) a signal V representing the displacement speed for the pixel . . . ii) a signal representing the
direction of displacement of the pixel . . .” Id. at col. 15, ll. 27-30. Thus, for each pixel the unit
may generate a speed signal and a direction signal. Id. However, the specification does not
expressly state that the generated signals or classes are “properties of a pixel.”
In general, because each of the patents in the ʼ015 patent family share the same substantive patent
specification, the Court will only reference the ʼ015 patent specification for convenience purposes
when dealing with any disputed terms related to the ʼ015 patent family.
1

38

In one example, the specification states that the system may “select for processing only
data points in any selected classes within any selected domains.” ʼ015 patent, col. 19, ll. 8-10.
For example, the system may be used to detect data points having speed, direction, and luminance.
Id. at col. 19, ll. 10-12. Figure 14a shows an example of the successive classes C1, C2, …Cn, each
representing a particular velocity for a hypothetical velocity histogram. Id. at col. 20, ll. 47-50.
Thus, Figure 14a shows an example of classes in a velocity domain. Id.
Regarding the term “domain,” the Court rejects Plaintiff’s inclusion of the word
“parameter.” While the “parameter” term has an agreed upon meaning for the ʼ293 patent, the
parties have not agreed to that term for the other patents. During the claim construction hearing,
Plaintiff’s counsel suggested that it would offer a meaning for this term during trial. The Court
finds that the inclusion of this “parameter” term, which is not found in the claims, is not supported
for the domain term and it is unclear what the “parameter” term means in this context. The Court
rejects Plaintiff’s arguments to the contrary. However, the Court rejects Defendant’s construction
because it is not clear that the domains must be properties of a pixel per se and not merely
associated with the properties of a pixel. For example, “speed” and “oriented direction” are
provided as exemplary domains in the specification, but the Court is not convinced that they are
properties of a pixel by itself or in isolation as opposed to being related to a surrounding group of
pixels or data from previous frames. Thus, the Court finds Defendant’s construction as potentially
being too narrow. Consistent with the specification, the Court finds that the term “domain” is
associated with the properties of a pixel, which would include all of the exemplary domains listed
in the specification. In its briefing, Plaintiff appears to agree with the construction of “properties
associated with pixels.” See, e.g., Dkt. No. 148, Reply Brief at page 8. The Court finds that the
most appropriate construction of the “domain” term is that it is properties associated with a pixel

39

and not necessarily properties of the pixel per se. The Court rejects Defendant’s arguments to the
contrary.
Regarding the term “class,” both parties seem to agree that such term constitutes part of
the values of the domain, but differ as to what part of the domain it is referring. Indeed, while
Plaintiff admits that “classes are subsets of domains” (see, e.g., Plaintiff’s Opening Brief at page
20), Plaintiff’s construction changes the word “domain” to “parameter.” For the some reasons as
stated above, the Court rejects Plaintiff’s unwarranted inclusion of the term “parameter” for the
term class. However, the Court rejects Defendant’s inclusion of the word “range.” The Court is
not convinced that the “range” limitation is appropriate or necessary. To the extent there is any
support in the specification for Defendant’s construction, the Court finds that any such support is
merely an embodiment in the specification that should not be used to limit the claim language that
has broader affect. See, e.g., Innova/Pure Water, 381 F.3d at 1117. Instead, as apparently agreed
upon by the parties, a “class” is simply a “subset” of a “domain,” as supported by the claims and
the specification.
The Court hereby construes “domain” to mean “the complete set of values for a property
associated with a pixel.”
The Court hereby construes “class” to mean “a subset of values in a domain.”

G. “forming at least one histogram…”
Plaintiff’s
Proposed Construction
“forming at least one histogram of the pixels
in two or more classes that are in two or
more domains”

Defendant’s
Proposed Construction
“forming at least one ‘histogram’ of the pixels
in at least one ‘class’ selected from multiple
‘classes’ in at least one of multiple ‘domains’”

40

The disputed term “forming at least one histogram of the pixels in the one or more of a
plurality of classes in the one or more of a plurality of domains” appears in at least claims 1 and 8
of the ʼ001 patent, claim 6 of the ʼ015 patent, and claim 1 of the ʼ134 patent.
(1) The Parties’ Positions
Plaintiff argues that the meaning of this limitation is clear on its face because “one or more”
of a “plurality” means there must be at least one “plurality,” i.e., two, while not excluding the
possibility of more than one, i.e., multiple, pluralities. See, e.g., Dkt. No. 133, Plaintiff’s Opening
Claim Construction Brief, at page 21. Plaintiff argues that its construction is supported by the
specification. Id. Plaintiff argues that the Defendant’s construction of the phrase would render
the “plurality” term to be superfluous. Id.
Defendant argues that the only dispute regarding this term is whether “one or more” means
“at least one,” as demanded by the plain language itself, or should be rewritten to mean “two or
more.” See, e.g., Dkt. No. 138, Defendant’s Responsive Claim Construction Brief, at page 21.
Defendant argues that the specification can consider pixels in only one class or in multiple classes.
Id. Defendant argues that there is no basis to rewrite the claims as attempted by Plaintiff. Id.
Defendant argues that its construction does not read out “pluralities” but gives meaning to all
terms. Id. at 21-22.
In its Reply, Plaintiff argues that its construction is the natural reading of the claim
language. See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction Brief, at pages 8-9.
Plaintiff argues that the specification teaches that two or more domains are required. Id.
(2) Analysis
The parties’ primary dispute is whether the term “one or more” means “at least one”
(proposed by Defendant) or “two or more” as proposed by Plaintiff.

41

As a representative example, claim 1 of the ʼ134 patent is recited below in its entirety:
A process of tracking a target in an input signal implemented using a system
comprising an image processing system, the input signal comprising a succession
of frames, each frame comprising a succession of pixels, the target comprising
pixels in one or more of a plurality of classes in one or more of a plurality of
domains, the process performed by said system comprising, on a frame-by-frame
basis:
forming at least one histogram of the pixels in the one or more of a
plurality of classes in the one or more of a plurality of domains, said at least one
histogram referring to classes defining said target; and
identifying the target in said at least one histogram itself,
wherein forming the at least one histogram further comprises determining
X minima and maxima and Y minima and maxima of boundaries of the target.
(emphasis added). Other claims that contain the disputed term are similar. The claim recites that
the target comprises “pixels in one or more of a plurality of classes in one or more of a plurality
of domains.” The claim further requires forming at least one histogram of “the” pixels in “the”
one or more of a plurality of classes in “the” one or more of a plurality of domains. In other words,
it is clear that the recited “the one or more of a plurality of classes” of the disputed term is referring
to at least one class from a plurality of (or multiple) classes, and does not require “two or more
classes” as suggested by the Plaintiff. The same analysis applies for the “domains” term.
The specification supports forming a histogram of at least one class or two or more classes.
For example, the ʼ015 patent states that “[f]or example, with respect to speed, which is preferably
a value in the range of 0-7, classifier 25b may be set to consider only data within a particular speed
category or categories, e.g., speed 1, speeds 3 or 5, speed 3-6, etc.” See, e.g., ʼ015 patent, col. 18,
ll. 13-16. In other words, the classifier can consider pixels in just one class as well as in more than
one class. See id.

42

Overall, the Court agrees with the construction and arguments advanced by the Defendant.
The Court reject’s Plaintiff’s argument that Defendant’s construction would render the term
“plurality” superfluous. The Court rejects Plaintiff’s attempt to change the claim language from
“one or more of the plurality of classes” to “at least two classes.” The Court finds that Defendant’s
construction gives effect to all the words of the disputed claim term.
The Court hereby construes “forming at least one histogram of the pixels in the one or more
of a plurality of classes in the one or more of a plurality of domains” to mean “forming at least
one histogram of the pixels in at least one class selected from multiple classes in at least one
of multiple domains.”

H. “said at least one histogram referring to classes defining said target”
Plaintiff’s
Proposed Construction
“at least one histogram being formed of
pixels in at least two classes that define said
target”

Defendant’s
Proposed Construction
“the at least one ‘histogram’ includes data
values for pixels meeting classification criteria
matching characteristics of the target”

The disputed term “said at least one histogram referring to classes defining said target”
appears in at least claims 1 and 8 of the ʼ001 patent, claim 6 of the ʼ015 patent, and claim 1 of the
ʼ134 patent.
(1) The Parties’ Positions
Plaintiff argues that the dispute is whether this phrase requires “two or more classes.” See,
e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction Brief, at page 22. Plaintiff argues that
“classes” is a plural term and clearly requires at least two classes. Id. Defendant’s construction
would read out the requirement for multiple classes. Id.

43

Defendant argues that the specification never uses or explains the phrase “referring to
classes” or “defining the target.”

See, e.g., Dkt. No. 138, Defendant’s Responsive Claim

Construction Brief, at page 22. Defendant argues that the specification teaches that an object in
an image may be tracked based upon its characteristics. Id. Defendant argues that Plaintiff’s
construction would exclude preferred embodiment and does not define the phrase “define the
target.” Id.
In its Reply, Plaintiff argues that the phrase “classes” requires Plaintiff’s construction.
See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction Brief, at page 9. Plaintiff also argues
that its construction is supported by Figure 11 in the specification. Id.
(2) Analysis
The parties dispute the embedded phrases “referring to classes” and “defining said target”
of the disputed term. As a representative example, claim 1 of the ʼ134 patent is recited below in
its entirety:
A process of tracking a target in an input signal implemented using a system
comprising an image processing system, the input signal comprising a succession
of frames, each frame comprising a succession of pixels, the target comprising
pixels in one or more of a plurality of classes in one or more of a plurality of
domains, the process performed by said system comprising, on a frame-by-frame
basis:
forming at least one histogram of the pixels in the one or more of a plurality
of classes in the one or more of a plurality of domains, said at least one histogram
referring to classes defining said target; and
identifying the target in said at least one histogram itself,
wherein forming the at least one histogram further comprises determining
X minima and maxima and Y minima and maxima of boundaries of the target.
(emphasis added). Other claims that contain the disputed term are similar. The language of the
claim recites that the target comprises “pixels in one or more of a plurality of classes in one or

44

more of a plurality of domains.” The claim language further requires forming at least one
histogram of “the” pixels in “the” one or more of a plurality of classes in “the” one or more of a
plurality of domains. The disputed claim language then simply requires the at least one histogram
to refer to the previously claimed classes. In other words, the “classes” recited in the disputed
term are simply those “one or more classes” previously recited.
The parties focus largely on the claim language and little on the specification. Overall, the
Court finds that the parties’ citations and/or arguments relating to the specification are not
particularly helpful.
The Court rejects Plaintiff’s attempt to change the claim language from “one or more of
the plurality of classes” to “at least two classes.” While the “classes” term is recited is plural, that
does not require “at least two” classes as suggested by the Plaintiff. Rather, it is merely a reference
to the previously recited “plurality of classes,” and it is clear that the claim language only requires
the target and histogram to be formed of “one or more” of the plurality of classes, as required by
the claim language and as determined by the Court from the prior disputed term “forming …” as
detailed in section G above.
The Court also rejects Defendant’s construction. The Court is not convinced that the phrase
“referring to classes defining said target” requires “including data values for pixels meeting
classification criteria matching characteristics of the target.” Defendant’s construction is not
supported by the claim language, and the Court is not convinced that Defendant’s construction is
warranted, much less required by the specification or the claims.
Consistent with the Plaintiff’s construction, the Court finds that the “referring” word
simply means that the histogram is formed of pixels. The Court finds that the remaining phrase
“defining said target” does not need a construction. This is a phrase that is easily understood by

45

the jury, and it does not appear to have any meaning other than its plain and ordinary meaning.
Because this resolves the dispute between the parties, no additional construction is needed. See
U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim construction
is a matter of resolution of disputed meanings and technical scope, to clarify and when necessary
to explain what the patentee covered by the claims, for use in the determination of infringement.
It is not an obligatory exercise in redundancy.”); see also O2 Micro Int’l Ltd. v. Beyond Innovation
Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[D]istrict courts are not (and should not be)
required to construe every limitation present in a patent’s asserted claims.”) (citing U.S. Surgical,
103 F.3d at 1568).
The Court hereby construes “forming at least one histogram of the pixels in the one or more
of a plurality of classes in the one or more of a plurality of domains” to mean “at least one
histogram being formed of pixels in the one or more classes that define said target.”

I. “identifying…” terms

“identifying the target in said at least
one histogram itself”

Plaintiff’s
Proposed
Construction
Plain and ordinary
meaning

(ʼ001 patent, claims 1, 8; ʼ134 patent,
claim 1)
“identify[ing] [a/the] target from the
[said at least one] histogram”

Plain and ordinary
meaning

Disputed Term

(ʼ445 patent, claims 1, 24; ʼ015
patent, claim 6)

46

Defendant’s
Proposed Construction
“identifying pixels in the
‘histogram’ meeting
classification criteria of the
target”
“identify[ing] pixels in the
histogram meeting
classification criteria of [a/the]
target”

“identifying multiple targets
associated with the multiple
histograms”

Plain and ordinary
meaning

“identifying pixels in the
multiple histograms meeting
classification criteria of
multiple targets”

(ʼ445 patent, claim 9)
The disputed “identifying” terms appear in claims 1 and 8 of the ʼ001 patent, claims 1, 9,
and 24 of the ʼ445 patent, and claim 6 of the ʼ015 patent.
(1) The Parties’ Positions
Plaintiff argues that the disputed phrases are easily understood based on the claim
language. See, e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction Brief, at page 23.
Plaintiff argues that Defendant’s constructions includes limitations not found in the claims. Id.
Plaintiff argues that the specification describes identifying objects and not pixels, and Defendant’s
construction is contrary to the specification. Id. Plaintiff also argues that Defendant ignores the
prosecution history, in which patentee added the term “itself” in one of the claims during
prosecution. Id. at 24.
Defendant argues that, consistent with the specification, a histogram is formed and those
pixels in the histogram that comprise the target are identified. See, e.g., Dkt. No. 138, Defendant’s
Responsive Claim Construction Brief, at page 25. Defendant argues that the patentee’s inclusion
of the word “itself” during prosecution was only to clarify what was already recited in the claim
language and not an additional limitation. Id. at 26.
In its Reply, Plaintiff argues that it disagrees with Defendant’s constructions. See, e.g.,
Dkt. No. 148, Plaintiff’s Reply Claim Construction Brief, at page 9.

(2) Analysis

47

The parties dispute whether “identifying” needs clarification and what is the meaning of
the term based on the specification.
As a representative example, claim 1 of the ʼ134 patent is recited below in its entirety:
A process of tracking a target in an input signal implemented using a system
comprising an image processing system, the input signal comprising a succession
of frames, each frame comprising a succession of pixels, the target comprising
pixels in one or more of a plurality of classes in one or more of a plurality of
domains, the process performed by said system comprising, on a frame-by-frame
basis:
forming at least one histogram of the pixels in the one or more of a plurality of
classes in the one or more of a plurality of domains, said at least one histogram
referring to classes defining said target; and
identifying the target in said at least one histogram itself,
wherein forming the at least one histogram further comprises determining X
minima and maxima and Y minima and maxima of boundaries of the target.
(emphasis added). Other claims that contain the disputed term are similar. The claim only refers
to “identifying the target.” The claim language does not require “identifying pixels in the
histogram meeting classification criteria” as proposed by Defendant.
There are numerous references to the “identifying” term in the specification. In some
instances, the specification describes identifying objects (see, e.g., ʼ015 patent, col. 16, ll. 44-47),
while in some instances it describes identifying pixels (see, e.g., ʼ015 patent, col. 21, ll. 60-63).
The Court is not convinced that the specification requires identifying pixels in the histogram that
meet certain classification criteria. At best, Defendant’s citation to the specification is a limitation
to an embodiment of the specification. However, the Federal Circuit has consistently held that
“particular embodiments appearing in the written description will not be used to limit claim
language that has broader effect.” Innova/Pure Water, 381 F.3d at 1117.

48

The Court finds that the “identifying” terms have no meaning other than their plain and
ordinary meaning. The Court rejects Defendant’s arguments to the contrary, which insert claim
limitations for which there is not clear support. Since this resolves the dispute between the parties,
the Court finds that the term requires no further construction. See U.S. Surgical Corp. v. Ethicon,
Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim construction is a matter of resolution of
disputed meanings and technical scope, to clarify and when necessary to explain what the patentee
covered by the claims, for use in the determination of infringement. It is not an obligatory exercise
in redundancy.”); see also O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
1362 (Fed. Cir. 2008) (“[D]istrict courts are not (and should not be) required to construe every
limitation present in a patent’s asserted claims.”) (citing U.S. Surgical, 103 F.3d at 1568).
The Court hereby construes “identifying the target in said at least one histogram itself” of
claims 1 and 8 of the ʼ001 patent and claim 1 of the ʼ134 patent to have its plain and ordinary
meaning.
The Court hereby construes “identify[ing] [a/the] target from the [said at least one]
histogram” of claims 1 and 24 of the ʼ445 patent and claim 6 of the ʼ015 patent to have its plain
and ordinary meaning.
The Court hereby construes “identifying multiple targets associated with the multiple
histograms” of claim 9 of the ʼ445 patent to have its plain and ordinary meaning.

49

J. “generating …” terms
Disputed Term
“generat[e/ing] [a/the]
histogram based on
classification values of [a/the]
plurality of pixels”

Plaintiff’s
Proposed Construction
“generating a histogram for
two or more pixels that meet
two or more selected
classification criteria”

(ʼ445 patent, claims 1, 9, 14,
24)
“generating multiple histograms “generating multiple
based on classification values of histograms, each for two or
multiple pluralities of pixels”
more pixels that meet two or
more selected classification
(ʼ445 patent, claim 9)
criteria”

Defendant’s
Proposed Construction
“generat[e/ing] a
‘histogram’ of two or more
pixels that have specified
‘classification values’”

“generating multiple
‘histograms,’ each of two
or more pixels that have
specified ‘classification
values’”

The disputed “generating” terms appear in claims 1, 9, 14, and 24 of the ʼ445 patent.
(1) The Parties’ Positions
Plaintiff argues that the claim language requires that the recited pixels meet two or more
selected classification criteria. See, e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction
Brief, at page 26. Plaintiff argues that the specification repeatedly describes using two or more
classification criteria in classifying pixels to generate histograms. Id.
Defendant argues that the parties agree to the term “classification values” and that the claim
plainly requires that the histogram be created for pixels, where each pixel has at least one
classification value, and two or more pixels have classification values (plural). See, e.g., Dkt. No.
138, Defendant’s Responsive Claim Construction Brief, at page 23-24. Defendant argues that the
specification fully supports this construction, describing examples in which the classifier output is
determined by only one selected criterion. Id. at 24. Defendant argues that Plaintiff improperly
rewrites the claim in terms of classification criteria, which are inputs to the classifier to which the
pixel data is compared, and then relies on the claimed “values” being plural to deduce that there

50

must be multiple classification criteria input to the classifier. Id. Defendant argues that nowhere
does the claim language require that each pixel “meet two or more selected classification criteria”
as Plaintiff’s construction requires. Id.
(2) Analysis
The disputed term includes the underlying term “classification values.” The parties have
agreed that “classification value” means “a value resulting from determining whether a pixel meets
a selected classification criterion for a domain.” See, e.g., Dkt. No. 150 (Joint Claim Construction
Chart.) The parties’ primary dispute is whether the generating term is based on meeting specified
classification values (Defendant) or two or more selected classification criteria (Plaintiff).
The relevant claim language from the ʼ445 patent is reproduced below:
[claim 1] generating a histogram based on classification values of a
plurality of pixels in a second frame of the input signal subsequent to the first
frame
[claim 9] generating the histogram based on classification values of the
plurality of pixels in the first frame includes generating multiple histograms
based on classification values of multiple pluralities of pixels
(emphasis added).

The claim language itself references “classification values” and not

“classification criteria.” The claim language does not require that each pixel meet two or more
selected classification criteria.
Defendant relies on portions of the specification where the classifier output is determined
by only one selected criterion. See e.g., ʼ445 patent, col. 18, ll. 24-27. Plaintiff relies on other
portions of the specification that require two or more selected classification criteria. See, e.g., ʼ445
patent, col. 19, ll. 14-21; col. 21, ll. 14-26.
On balance, the Court finds Defendant’s proposed construction most consistent with the
intrinsic evidence. The Court is not convinced that “classification values” – which is an agreed

51

upon term – should be replaced by “two or more selected classification criteria” as proposed by
Plaintiff. The Court finds that the plural “classification values” relates to the “plurality” of pixels,
not that each pixel must have a plurality of classification values. Thus, consistent with the claim
language, the claim plainly requires that the histogram be created for pixels, wherein each pixel
has at least one classification value, and two or more pixels (e.g., the plurality) have classification
values. The Court rejects Plaintiff’s arguments to the contrary. However, the Court is not
convinced that the word “specified” in Defendant’s construction is necessary or appropriate.
The Court hereby construes “generat[e/ing] [a/the] histogram based on classification values
of [a/the] plurality of pixels” of claims 1, 9, 14, and 24 the ʼ445 patent to mean “generat[e/ing] a
histogram of two or more pixels that have classification values.”
The Court hereby construes “generating multiple histograms based on classification values
of multiple pluralities of pixels” of claim 9 of the ʼ445 patent to mean “generating multiple
histograms, each of two or more pixels that have classification values.”

K. “displaying an outline associated with the target”
Plaintiff’s
Proposed Construction
“displaying an outline that overlaps a
boundary of the target”

Defendant’s
Proposed Construction
Plain and ordinary meaning

The disputed term “displaying an outline associated with the target” appears in at least
claims 4, 9, and 25 of the ʼ445 patent.
(1) The Parties’ Positions
Plaintiff argues that the claim language, in light of the specification, requires that the
outline overlap with the boundary. See, e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction

52

Brief, at page 26. Plaintiff argues that a person of skill in the art would understand the term
“outline” to refer to targeting boxes.” Id. at 26-27. Plaintiff argues that the outline must overlap
the boundary of the target and not completely surround the target. Id. at 27.
Defendant argues that the term “outline” is not a special term of art and would be familiar
to a lay juror as a contour that defines or bounds the target. See, e.g., Dkt. No. 138, Defendant’s
Responsive Claim Construction Brief, at page 28. The Defendant argues that the specification
never describes an “outline,” and even if the outline is similar to the disclosed “targeting box” that
this targeting box is not constrained to overlap a boundary of the target. Id. Rather, the targeting
box can be enlarged and reduced in size as appropriate to maintain a track of the target. Id.
Defendant argues that Plaintiff’s construction would exclude the only embodiment. Id.
In its Reply, Plaintiff argues that Defendant’s citation to the specification is not helpful.
See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction Brief, at page 9.
(2) Analysis
The parties’ primary dispute revolves around the phrase “associated with.” Defendant
argues that it has its plain and ordinary meaning, while Plaintiff argues that the phrase means “that
overlaps a boundary of.”
The disputed term “displaying an outline associated with the target” appears in at least
claims 4, 9, and 25 of the ʼ445 patent. Claim 4 is recited below:
The process of claim 1, further comprising displaying an outline
associated with the target at a display location based on the target location.
(emphasis added.) The claim does not require the terms “overlap” or “boundary” as proposed by
the Plaintiff. The plain meaning of “associated with” implies some type of connection or relation,
and does not imply or require the narrow language “overlaps a boundary.”

53

Regarding the specification, the term “outline” is never used in the specification of the ʼ445
patent. Instead, the specification teaches of a “targeting box” that may be used for “bounding the
target” or “surrounding the target.” See, e.g., ʼ445 patent, col. 25, ll. 19-37. However, the
specification also mentions that the box may be “larger than the target” and still be “bounded.”
See, e.g., id. at col. 24, ll. 47-62. The box may constantly be enlarged and reduced as appropriate
to maintain a track of the target. Id. at col. 25, ll. 1-4. In one example, the specification mentions
that the box may overlap the boundary of the target. Id. at col. 24, ll. 37-40.
The Court rejects Plaintiff’s argument that the outline must overlap the boundary of the
target and not completely surround the target. The claim language recites the word “associated
with” and does not require overlapping the boundary. While the “associated with” language may
include overlapping the boundary, the plain meaning of the term clearly is not limited to
overlapping the boundary. Had the patentee wanted to use different words (which it did in the
specification), it could have easily done so in the claims. At best, Plaintiff’s reliance on the
specification is a limitation to an embodiment of the specification. However, the Federal Circuit
has consistently held that “particular embodiments appearing in the written description will not be
used to limit claim language that has broader effect.” Innova/Pure Water, 381 F.3d at 1117.
The Court finds that the term “associated with” has no meaning other than its plain and
ordinary meaning. Similarly, the Court finds the phrase “displaying an outline associated with the
target” to have no meaning other than its plain and ordinary meaning. The Court rejects Plaintiff’s
arguments to the contrary. Because this resolves the dispute between the parties, the Court finds
that the term requires no further construction. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d
1554, 1568 (Fed. Cir. 1997) (“Claim construction is a matter of resolution of disputed meanings
and technical scope, to clarify and when necessary to explain what the patentee covered by the

54

claims, for use in the determination of infringement.

It is not an obligatory exercise in

redundancy.”); see also O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362
(Fed. Cir. 2008) (“[D]istrict courts are not (and should not be) required to construe every limitation
present in a patent’s asserted claims.”) (citing U.S. Surgical, 103 F.3d at 1568).
The Court hereby construes “displaying an outline associated with the target” to have its
plain and ordinary meaning.

L. “wherein forming the at least one histogram further comprises determining X
minima and maxima and Y minima and maxima of boundaries of the target”
Plaintiff’s
Proposed Construction
“wherein forming the at least one histogram
further includes forming the histogram
based on determined X minima and maxima
and Y minima and maxima of boundaries of
the target”

Defendant’s
Proposed Construction
“wherein forming the at least one ‘histogram’
includes determining the minimum and
maximum x and y coordinates of the target
from ‘histograms’ of x and y coordinates of
the target”

The disputed term “wherein forming the at least one histogram further comprises
determining X minima and maxima and Y minima and maxima of boundaries of the target”
appears in claim 1 of the ʼ134 patent.
(1) The Parties’ Positions
Plaintiff argues that the dispute is whether the term is limited to a particular means of
“forming” or not. See, e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction Brief, at pages
24-25. Plaintiff argues that the language of claim 1 does not limit how the X and Y extrema
boundaries of the target are determined, and the specification describes methods of determining
the X and Y extrema not based on x and y histograms. Id. Plaintiff argues that, based on the

55

specification, the boundaries may be manually set or that the x and y extrema of the target may not
necessarily correspond to the extrema of the histograms of the target. Id.
Defendant argues that Plaintiff’s construction rearranges the words of the claim to read the
“determining” requirement out of the claim. See, e.g., Dkt. No. 138, Defendant’s Responsive
Claim Construction Brief, at page 26. Defendant argues that the patent describes only one way of
determining the X and Y extent (i.e., location or position) of a target, and that is by enabling the
formation of X and Y histograms. Id. at 27. Defendant argues that the patent does not describe or
enable any other way to determine X minima and maxima, and that the claims cannot enlarge what
is patented beyond what the inventor has described as the invention. Id.
In its Reply, Plaintiff argues that the claim does not require any particular way of
determining the x and y boundaries of the target. See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim
Construction Brief, at page 9. Plaintiff argues that Defendant imports a limitation to the claims
from an embodiment of the specification. Id.

(2) Analysis
The parties’ primary dispute as to this term is whether the “forming” step requires a
particular way of determining the x and y boundaries, such as from a histogram as proposed by
Defendant.
Claim 1 of the ʼ134 patent is recited below in its entirety:
A process of tracking a target in an input signal implemented using a system
comprising an image processing system, the input signal comprising a succession
of frames, each frame comprising a succession of pixels, the target comprising
pixels in one or more of a plurality of classes in one or more of a plurality of
domains, the process performed by said system comprising, on a frame-by-frame
basis:

56

forming at least one histogram of the pixels in the one or more of a plurality of
classes in the one or more of a plurality of domains, said at least one histogram
referring to classes defining said target; and
identifying the target in said at least one histogram itself,
wherein forming the at least one histogram further comprises determining X
minima and maxima and Y minima and maxima of boundaries of the target.
(emphasis added).

The claim language refers to forming the “at least one histogram” by the

“determining …” step. The determining step in the claim language does not require determining
the x and y boundaries from a histogram, it only simply requires determining the x and y
boundaries of the target.
Both parties rely on portions of the specification that supposedly support their arguments.
In particular, the Defendant relies on portions of the specification that determine the X and Y
extent of a target by enabling the formation of X and Y histograms. See, e.g., ʼ134 patent, col. 20,
ll. 55-59; col. 21, ll. 53-60. Defendant argues that there is no other described way on determining
the extrema of the target, and thus the claim language must necessarily be limited to the
specification.
On balance, the Court rejects Defendant’s argument that the disputed term is limited to the
portion of the specification relied upon by the Defendant. While the disputed term may include
determining the extrema based on x and y histograms, the plain language of the claim does not
necessarily limit the determining step as suggested by the Defendant. The Federal Circuit has
consistently held that “particular embodiments appearing in the written description will not be
used to limit claim language that has broader effect.” Innova/Pure Water, 381 F.3d at 1117. Even
where a patent describes only a single embodiment, absent a “clear intention to limit the claim
scope,” it is improper to limit the scope of otherwise broad claim language by resorting to a patent’s

57

specification. Id.; see also Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir.
2004) (citing numerous cases rejecting the contention that the claims of the patent must be
construed as being limited to the single embodiment disclosed and stating that claims are to be
given their broadest meaning unless there is a clear disclaimer or disavowal); Comark Commc’ns,
Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1988) (“Although the specification may aid
the court in interpreting the meaning of disputed claim language, particular embodiments and
examples appearing in the specification will not generally be read into the claims.”); Phillips, 415
F.3d at 1323.
However, the Court also rejects Plaintiff’s construction as it changes the term
“determining” to “forming” and then inserts the phrase “determined.” The Court is not convinced
that such a substitution and/or insertion of words is correct.
Since this resolves the dispute between the parties, the Court finds that the term has its
plain and ordinary meaning. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.
Cir. 1997) (“Claim construction is a matter of resolution of disputed meanings and technical scope,
to clarify and when necessary to explain what the patentee covered by the claims, for use in the
determination of infringement. It is not an obligatory exercise in redundancy.”); see also O2 Micro
Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[D]istrict courts
are not (and should not be) required to construe every limitation present in a patent’s asserted
claims.”) (citing U.S. Surgical, 103 F.3d at 1568). However, while the Court finds that this term
has its plain and ordinary meaning, a construction may nevertheless be helpful for the jury.
The Court hereby construes “wherein forming the at least one histogram further comprises
determining X minima and maxima and Y minima and maxima of boundaries of the target” to

58

mean “wherein forming the at least one histogram includes determining the minimum and
maximum x and minimum and maximum y coordinates of the boundaries of the target.”

M. “…the outline…” terms [claims 26 and 27 of the ʼ445 patent]
Disputed Term
“adjust a size of the outline based on
the histogram based on the first
frame and the histogram based on
the second frame”
(ʼ445 patent, claim 26)
“move a center point of the outline”
(ʼ445 patent, claim 27)

Plaintiff’s
Proposed Construction

Defendant’s
Proposed
Construction
Plain and ordinary meaning Indefinite

“calculate new x and y
coordinates of the center
point of the outline”

Indefinite

The disputed term “adjust a size of the outline based on the histogram based on the first
frame and the histogram based on the second frame” term appears in claim 26 of the ʼ445 patent.
The disputed term “move a center point of the outline” term appears in claim 27 of the ʼ445
patent.
(1) The Parties’ Positions
Plaintiff argues that a person of skill in the art would understand the above limitations with
reasonable certainty in light of the surrounding claim language and specification, including
understanding “the outline” in the context of the “targeting box” that is taught in the specification.
See, e.g., Dkt. No. 133, Plaintiff’s Opening Claim Construction Brief, at pages 27-28. Regarding
the “move …” term, Plaintiff argues that the specification shows as the object moves from frame
to frame, the center of the outline is calculated and is shown as moving. Id.

Plaintiff argues

that the specification discloses locating the x and y coordinate center of a targeting box. Id. at 29.

59

Defendant argues that these terms are indefinite because they lack antecedent basis and fail
“to inform, with reasonable certainty, those skilled in the art about the scope of the invention.”
See, e.g., Dkt. No. 138, Defendant’s Responsive Claim Construction Brief, at page 29. Defendant
argues that claims 26 and 27 of the ʼ445 patent both depend from claim 24 and recite adjusting or
moving “the outline.” Id. However, claim 24 nowhere mentions an outline, which is mentioned
by claim 25 which depends from claim 24. Id. But neither claim 26 nor 27 depends from claim
25; instead, each depends directly from claim 24. Id. Defendant argues that it would be improper
or the Court to rewrite these claims to fix this dependency error. Id.
In its Reply, Plaintiff argues that these limitations are not indefinite because a person of
skill in the art would realize that the “outline” is referring to a “targeting box” as described in the
specification. See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction Brief, at pages 3-4.
(2) Analysis
It is clear that there is an antecedent issue to the term “the outline” in both of dependent
claims 26 and 27 of the ʼ445 patent. As it is written, both dependent claims 26 and 27 depend
upon independent claim 24, but independent claim 24 does not recite the term “the outline.” Thus,
Defendant argues that dependent claims 26 and 27 are indefinite.
Dependent claims 26 and 27 both recite the term “the outline,” but independent claim 24
(from which dependent claims 26 and 27 depend) does not use the term the “outline.” However,
dependent claim 25 does recite an “outline” term and is dependent upon independent claim 24.
Claims 25, 26, and 27 are recited below:
25. The image processing system of claim 24, further comprising a display, and
wherein the processing system is further configured to display an outline
associated with the target at a display location based on the target location.

60

26. The image processing system of claim 24, wherein the processing system is
further configured to adjust a size of the outline based on the histogram based on
the first frame and the histogram based on the second frame.
27. The image processing system of claim 24, wherein the processing system is
further configured to move a center point of the outline based on the histogram
based on the first frame and the histogram based on the second frame.
(emphasis added). It is clear to the Court that there is a typographical error for dependent claims
26 and 27. In particular, it is clear that dependent claims 26 and 27 should have been dependent
upon dependent claim 25, not independent claim 24 (which does not recite any “outline” term).
This is consistent with dependent claims 4, 5, and 6 of the ʼ445 patent, recited below:
4. The process of claim 1, further comprising displaying an outline associated with
the target at a display location based on the target location.
5. The process of claim 4, wherein displaying the outline includes adjusting a size
of the outline.
6. The process of claim 4, wherein displaying the outline includes moving a center
point of the outline.
(emphasis added). For dependent claims 5 and 6, the antecedent basis for “the outline” is clearly
recited in dependent claim 4; similar to independent claim 24, independent claim 1 does not cite
the term “outline.” Likewise, it is clear to the Court that the antecedent basis for the “outline” in
dependent claims 26 and 27 is found in dependent claim 25. Without such a clarification, the
dependent claims 26 and 27 would be indefinite, as there is no “outline” recited in independent
claim 24.
The Court rejects Plaintiff’s arguments that “the outline” term in dependent claim 26
simply has its plain and ordinary meaning without further resolution as to “the outline” issue.
Further, the Court rejects Plaintiff’s arguments that “the outline” term in dependent claim 26 is
referring to a “targeting box” limitation found in independent claim 24. First, the term “targeting
box” is never used in claim 24; instead, the claim simply recites “target” or “target location.”

61

Claims 26 and 27 clearly reference “the outline.” Second, the term “outline” is never used in the
specification. The Court rejects Plaintiff’s argument as contrary to the claims. While Plaintiff’s
proposed construction for the disputed term in claim 27 may be correct by itself (and is similar to
the parties’ agreed upon construction for the similar term in claim 6 of the ʼ445 patent), such a
construction does not resolve the issue of “the outline” term and its lack of antecedent basis.
The Court finds that this antecedent issue as to claims 26 and 27 is clearly a typographical
error. The issue is whether this Court has the ability to fix a typographical error. The Court is
mindful that it generally cannot redraft claims to cure a drafting error made by the patentee. See,
e.g., Lucent Technologies, Inc. v. Gateway, Inc., 525 F.3d 1200, 1215, (Fed. Cir. 2008). However,
the Court is also mindful that it is generally able to correct an obvious drafting error in a patent.
See, e.g., CBT Flint Partners, LLC v. Return Path, Inc., 654 F.3d 1353, 1358 (Fed. Cir. 2011).
The Federal Circuit has held that “[a] district court can correct a patent only if (1) the correction is
not subject to reasonable debate based on consideration of the claim language and the specification
and (2) the prosecution history does not suggest a different interpretation of the claims.” Id. at
1358, citing Novo Industries L.P. v. Micro Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003). A
finding by this Court that claims 26 and 27 should have recited their dependency on claim 25
instead of claim 24, similar to claims 4-6, does not require guesswork and is not a substantive
correction to the claims. See id. The Court finds that there is no reasonable debate as to such a
finding.2
The Court hereby finds the term “adjust a size of the outline based on the histogram based
on the first frame and the histogram based on the second frame” of claim 26 of the ʼ445 patent to

2

The Court assumes that the Plaintiff will file a certificate of correction at the USPTO in the near future correcting
such a typographical error, thereby rendering this issue moot at that time.

62

have its plain and ordinary meaning and to be dependent upon claim 25 of the ʼ445 patent.
Because this resolves the dispute between the parties, the Court finds that the term does not require
further construction. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir.
1997) (“Claim construction is a matter of resolution of disputed meanings and technical scope, to
clarify and when necessary to explain what the patentee covered by the claims, for use in the
determination of infringement. It is not an obligatory exercise in redundancy.”); see also O2 Micro
Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[D]istrict courts
are not (and should not be) required to construe every limitation present in a patent’s asserted
claims.”) (citing U.S. Surgical, 103 F.3d at 1568).
Consistent with the parties’ agreed upon construction for the similar disputed phrase in
claim 6 of the ʼ445 patent (See Dkt. No. 150 at 11), the Court hereby finds the term “move a center
point of the outline” of claim 27 of the ʼ445 patent to mean “calculate new x and y coordinates
of the center point of the outline” and to be dependent upon claim 25 of the ʼ445 patent.

N. “successively increasing the size of a selected area until the boundary of the target
is found”
Plaintiff’s
Proposed Construction
Plain and ordinary meaning

Defendant’s
Proposed Construction
Indefinite

The disputed term “successively increasing the size of a selected area until the boundary
of the target is found” appears in claims 7 and 8 of the ʼ001 patent and claim 4 of the ʼ134 patent.
(1) The Parties’ Positions

63

Plaintiff argues that a person of skill in the art would understand this claim term with
reasonable certainty in light of the surrounding claim language and the specification. See, e.g.,
Dkt. No. 133, Plaintiff’s Opening Claim Construction Brief, at page 25.
Defendant argues that “the boundary of the target” lacks antecedent basis for each of these
claims. See, e.g., Dkt. No. 138, Defendant’s Responsive Claim Construction Brief, at page 29.
Claim 4 depends on claim 1, and claim 1 recites “boundaries” of the target (e.g., x and y minimum
and maximum); Defendant argues that it is unclear which boundaries it is referring to and how
much the selected area must increase to infringe. Id. Regarding claims 7 and 8, there is no
recitation of “boundary” or “boundaries,” which makes these claims even more ambiguous. Id.
Defendant argues these terms are unclear, and a plain and ordinary meaning does not help. Id.
In its Reply, Plaintiff argues that a person of skill in the art would realize what the
“boundary” of the target means. See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction
Brief, at page 4. Plaintiff argues that a person of skill in the art would realize that one may refer
to portions of the boundary of a target as “boundaries.” Id.

(2) Analysis
The parties’ dispute is primarily related to the phrase “the boundary” of the disputed term,
and in particular the lack of antecedent basis of the term and/or the confusion relating to whether
it means some or all of the “boundaries” of the target. Plaintiff argues that it simply has its plain
and ordinary meaning, while Defendant argues that it is indefinite.
The phrase appears in claims 7 and 8 of the ʼ001 patent and claim 4 of the ʼ134 patent.
Those claims, in relevant part, are recited below.

64

[dependent claim 7 of the ʼ001 patent]
The process according to claim 1,
wherein forming the at least one histogram further comprises successively
increasing the size of a selected area until the boundary of the target is found.
[independent claim 8 of the ʼ001 patent] ….wherein forming the at least one
histogram further comprises successively increasing the size of a selected area until
the boundary of the target is found.
[dependent claim 4 of the ʼ134 patent]
The process according to claim 1,
wherein forming the at least one histogram further comprises successively
increasing the size of a selected area until the boundary of the target is found.
(emphasis added). Adding confusion to this issue, claim 1 of the ʼ134 patent, to which claim 4 is
dependent on, recites “boundaries” of the target: “wherein forming the at least one histogram
further comprises determining X minima and maxima and Y minima and maxima of boundaries
of the target.” (emphasis added.)
The claim language is unclear as to what is meant by “the boundary” of the target. Does
the target have a single boundary? Does the target have a single boundary in each direction? Does
the target have a plurality of boundaries (such as four boundaries as implied by claim 1 of the ʼ134
patent)? The claims do not help, nor do the Plaintiff’s arguments or construction provide any
guidance. For claim 4 of the ʼ134 patent, it is unclear which of the referenced four boundaries of
the target is referred to by the phrase “the boundary” in claim 4 and by how much the “selected
area” must be increased in order to infringe this claim. Should the selected area be increased in
only one direction, or should it be increased in each direction of the target? Again, the claims do
not provide guidance. For claims 7 and 8 of the ʼ001 patent, there is simply no antecedent basis
at all for “the boundary.”
Plaintiff’s “plain meaning” construction does not help and does not address the lack of
antecedent issue or the meaning of “boundary.” Rather, Plaintiff merely states that one of skill in
the art would not be confused by the references to the “boundary” of the target. Indeed, Plaintiff’s

65

arguments make this issue even less clear, for in its Reply Brief (Dkt. No. 148 at page 4) it then
argues that “portions of the boundary of a target” may be referred to as “boundaries.” In general,
Defendant’s expert opines in a declaration that a target has four boundaries (min and max X and
Y boundaries), and that one of skill in the art would not be able to determine which of these four
boundaries is referred to by the phrase “the boundary” and by how much the “selected area” must
be increased and whether only one boundary must be increased or all four boundaries increased.
See Dkt. No. 138-7 at paragraphs 82-85. Plaintiff’s technical expert opines in a declaration that a
boundary is a “characteristic of a target,” and can refer to a “directional boundary” as well as to
the “entire boundary” of a closed shape, and that a target does not have four distinct boundaries in
the context of the claims. See Dkt. No. 148-1 at paragraphs 15-16. The Court finds that Plaintiff’s
expert has failed to provide either a reasonable construction for this term or a reasonable scope of
the invention.
The Court finds that one of skill in the art would not understand with “reasonable certainty”
the scope of the invention and the bounds of the claims based upon these disputed terms.
Accordingly, pursuant to the Supreme Court’s holding in Nautilus, the Court agrees with
Defendant’s arguments that the claims when “read in light of the specification delineating the
patent, and the prosecution history, fail[s] to inform, with reasonable certainty, those skilled in the
art about the scope of the invention.” The Court rejects Plaintiff’s arguments to the contrary.
The Court hereby finds the term “successively increasing the size of a selected area until
the boundary of the target is found” of claims 7 and 8 of the ʼ001 patent and claim 4 of the ʼ134
patent to be indefinite.

66

O. “analyzing the at least one histogram over time”
Plaintiff’s
Proposed Construction
“analyzing the at least one histogram as the
histogram is computed based on new
images”

Defendant’s
Proposed Construction
Plain and ordinary meaning

The disputed term “analyzing the at least one histogram over time” appears in claim 39 of
the ʼ518 patent.
(1) The Parties’ Positions
Plaintiff argues that the meaning is clear from the specification, which makes it clear that
the at least one histogram is analyzed as it is computed based on new images. See, e.g., Dkt. No.
133, Plaintiff’s Opening Claim Construction Brief, at page 30.
Defendant argues that Plaintiff’s construction and its briefing are inconsistent with each
other and with the specification.

See, e.g., Dkt. No. 138, Defendant’s Responsive Claim

Construction Brief, at page 30. Defendant argues that analyzing “as the histogram is computed”
(as required by Plaintiff’s construction) cannot also be analyzing the histogram “over time” as the
claim requires.

Id.

Defendant argues that such a construction is inconsistent with the

specification’s disclosure that the histogram is cleared between frames and thus does not exist
across multiple frames. Id.
In its Reply, Plaintiff argues that the parties agree that a histogram is computed anew for
each frame, i.e. “over time.” See, e.g., Dkt. No. 148, Plaintiff’s Reply Claim Construction Brief,
at page 10. Plaintiff argues that the at least one histogram is analyzed as it is computed in each
frame based on new images to determine, for example, blink length. Id.
(2) Analysis

67

The parties’ dispute as to this term centers on the phrase “over time.” Defendant argues
that this term simply has its plain and ordinary meaning, and the Plaintiff argues that it means “as
the histogram is computed based on new images.”
Claim 39 of the ʼ518 patent is reproduced below in its entirety.
A process of detecting a feature of an eye, the process comprising the steps of:
acquiring an image of the face of the person, the image comprising pixels
corresponding to the feature to be detected;
identifying a characteristic of the face other than the feature to be detected;
identifying a portion of the image of the face comprising the feature to be
detected using an anthropomorphic model based on the location of the identified
facial characteristic;
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; and
analyzing the at least one histogram over time to identify characteristics
of the feature to be detected;
said feature being the iris, pupil or cornea.
(emphasis added.) The disputed claim language is straightforward. The claim requires forming at
least one histogram and analyzing the at least one histogram “over time.” The claim does not
require the “over time” limitation to be “as the histogram is computed based on new images” as
suggested by the Plaintiff.
The phrase “over time” is repeatedly used in the ʼ518 patent specification. See, e.g., col.
3, ll. 18, 30-32, 45; col. 4, l. 38; col. 27, ll. 24-28; col. 28, ll. 42-65. There is no suggestion that it
means anything other than its plain and ordinary meaning. Overall, there is nothing in the
specification that specifically construes and/or limits the phrase “over time,” nor is there any
intrinsic evidence that requires Plaintiff’s construction. Overall, the Court finds that the Plaintiff’s

68

citations and/or arguments relating to the specification are not helpful and not particularly relevant
to the parties’ dispute.
The Court finds that the term “over time” has no meaning other than its plain and ordinary
meaning. The Court rejects Plaintiff’s arguments to the contrary. Since this resolves the dispute
between the parties, the Court finds that the term requires no further construction. See U.S.
Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim construction is a
matter of resolution of disputed meanings and technical scope, to clarify and when necessary to
explain what the patentee covered by the claims, for use in the determination of infringement. It
is not an obligatory exercise in redundancy.”); see also O2 Micro Int’l Ltd. v. Beyond Innovation
Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[D]istrict courts are not (and should not be)
required to construe every limitation present in a patent’s asserted claims.”) (citing U.S. Surgical,
103 F.3d at 1568).
The Court hereby finds the term “analyzing the at least one histogram over time” of claim
39 of the ʼ518 patent to have its plain and ordinary meaning.

V. CONCLUSION
The Court adopts the above constructions set forth in this opinion for the disputed terms of
the patents-in-suit. The parties are ordered that they may not refer, directly or indirectly, to each
other’s claim construction positions in the presence of the jury. Likewise, the parties are ordered
to refrain from mentioning any portion of this opinion, other than the actual definitions adopted by
the Court, in the presence of the jury. Any reference to claim construction proceedings is limited
to informing the jury of the definitions adopted by the Court.

69

Within thirty (30) days of the issuance of this Memorandum Opinion and Order, the parties
.
are hereby ORDERED, in good faith, to mediate this case with the mediator appointed herein. As
a part of such mediation, each party shall personally appear by counsel and by at least one corporate
officer possessing sufficient authority and control to unilaterally make binding decisions for the
corporation adequate to address any good faith offer or counteroffer of settlement that might arise
during such mediation. Failure to do so shall be deemed by the Court as a failure to mediate in
good faith and may subject that party to such sanctions as the Court deems appropriate.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 21st day of June, 2017.

____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

70