TRW Automotive U.S. LLCv.Magna Electronics Inc.

Patent Trial and Appeal Board

Aug 27, 2014

12640425 (P.T.A.B. Aug. 27, 2014)

Trials@uspto.gov Paper 18
Tel: 571-272-7822 Entered: August 27, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
TRW AUTOMOTIVE US LLC,
Petitioner,
v.
MAGNA ELECTRONICS, INC.,
Patent Owner.
_______________

Case IPR2014-00258
Patent 7,994,462 B2
_______________

Before JUSTIN T. ARBES, BENJAMIN D. M. WOOD, and
NEIL T. POWELL, Administrative Patent Judges.

WOOD, Administrative Patent Judge.

DECISION
Petitioner’s Request for Rehearing
37 C.F.R. § 42.71

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I. INTRODUCTION
TRW Automotive US LLC (“TRW”) filed a request for rehearing
(Paper 17) (“Reh’g Req.”) of our decision, dated June 26, 2014 (Paper 16)
(“Dec.”) denying institution of an inter partes review of U.S. Patent No.
7,994,462 B2 (“the ’462 patent”). Reh’g Req. 1. TRW requests that we
reconsider our determination not to institute an inter partes review on the
following grounds: (1) claims 1, 3, 5-7, 10, 15, 19, 23, 26, and 27 as
anticipated by Kenue;
1
(2) claims 1, 3, 5-8, 10, 15, 19, 21, 23, 26, and 27 as
obvious over Yanagawa,
2
Bottesch,
3
and Wilson-Jones;
4
(3) claim 11 as
obvious over AURORA
5
and either Kenue or the combination of Yanagawa,
Bottesch and Wilson-Jones; (4) claims 12 and 13 as obvious over Zheng
6

and either Kenue or the combination of Yanagawa, Bottesch and Wilson-
Jones; (5) claims 16 and 17 as obvious over Vellacott
7
and either Kenue or
the combination of Yanagawa, Bottesch and Wilson-Jones; and (6) claim 9
as obvious over the combination of Yanagawa, Bottesch, Wilson-Jones and

1
U.S. Patent No. 4,970,653 to Kenue, Ex. 1004.
2
JP S62-121837 to Yanagawa et al., Ex. 1005.
3
U.S. Patent No. 5,166,681 to Bottesch, Ex. 1006.
4
EP0640903A1 to Wilson-Jones et al., Ex. 1007.
5
Mai Chen, AURORA: A Vision-Based Roadway Departure Warning
System, 1995 IEEE/RSJ Int’l Conf. on Intelligent Robots and Systems
(Aug. 9, 1995), Ex. 1009.
6
Yon-Jian Zheng, et al., An Adaptive System for Traffic Sign Recognition,
INTELLIGENT VEHICLES ’94 SYMPOSIUM (Oct. 24-26, 1994), Ex. 1010.
7
Oliver Vellacott, CMOS in Camera, IEE REVIEW (May 1994), Ex. 1008.
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Tadashi.
8
Id. For the reasons stated below, TRW’s Rehearing Request is
denied.
II. STANDARD OF REVIEW
Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition,
a panel will review the decision for an abuse of discretion.” An abuse of
discretion occurs when a “decision was based on an erroneous conclusion of
law or clearly erroneous factual findings, or . . . a clear error of judgment.”
PPG Indus. Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567
(Fed. Cir. 1988) (citations omitted). The request must identify, specifically,
all matters the party believes the Board misapprehended or overlooked.
37 C.F.R. § 42.71(d).
III. DISCUSSION
A. Claims 1, 3, 5-7, 10, 15, 19, 23, 26, and 27—Anticipation by
Kenue
1. Claims 1, 3, 5-7, 10, 15, and 19
In its Petition, TRW alleged that Kenue anticipates claims 1, 3, 5-7,
10, 15, and 19. Pet. 12-21. Claim 1 is independent, and claims 3, 5-7, 10,
15, and 19 depend, either directly or indirectly, from claim 1. Claim 1 is
drawn to an “image sensing system” that “identifies objects . . . via
processing of . . . captured image data,” and “wherein said image processing
comprises pattern recognition . . . based at least in part on at least one of (i)
shape, (ii) reflectivity, (iii) luminance and (iv) spectral characteristic.”
Ex. 1002, 12:57-13:11. Claim 1 further recites “wherein said pattern
recognition is enhanced by comparing image data of objects over successive

8
JP HEI4-127280 to Tadashi, Ex. 1011.
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frames of captured image data” (hereinafter, the “enhanced-pattern-
recognition limitation”). Id., 13:12-14. TRW alleged in the Petition that
Kenue discloses image processing algorithms that use pattern recognition
“based at least in part on at least one of shape and luminance.” Pet. 14.
TRW further alleged that Kenue discloses the enhanced-pattern-recognition
limitation, relying on the following passages from Kenue:
[The] algorithms . . . dynamically define the search area for lane
markers based on the lane boundaries of the previous frame,
and provide estimates of the position of missing markers on the
basis of current frame and previous frame information. . . .
Moreover, the search area changes with marker position MP,
and increases in size if the marker was not found in the search
of the previous frame. . . . After the centroid of each marker is
calculated[,] . . . if the markers are not found where expected . .
. based on the previously detected lane geometry, the marker
locations from the previous frame are used.
Pet. 16 (quoting Ex. 1004, 2:44-48, 4:27-29, 5:15-18).
We denied institution as to this ground because we were not
persuaded that Kenue discloses the enhanced-pattern-recognition limitation.
Dec. 13. We stated that “neither TRW nor [its declarant] Dr. Miller explains
sufficiently how these passages correspond to the limitation at issue. . . . [I]t
is not self-evident how the quoted passages relate to ‘enhanc[ing] pattern
recognition,’ based on ‘at least one of shape and luminance.’” Id.
TRW contends that this determination was erroneous.
Reh’g Req. 6-8. First, TRW asserts that “[t]he Board incorrectly requires
the enhancement to be based on ‘at least one of shape and luminance.” Id. at
7. TRW misunderstands our analysis. The required enhancement must be to
“said” pattern recognition. We based our analysis on TRW’s assertion that
Kenue teaches pattern recognition “based at least in part on at least one of
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shape and luminance.” Pet. 14 (emphasis added). Therefore, the “said”
pattern recognition that TRW had to show was “enhanced” must be based at
least in part on at least one of shape and luminance. TRW did not attempt to
connect Kenue’s alleged pattern recognition with the passages from Kenue
that allegedly teach enhancing pattern recognition. In fact, TRW provided
no analysis at all on this point. Accordingly, TRW has not persuaded us that
we erred in this regard.
Second, TRW alleges that “[t]he cited portion of Kenue nonetheless
describes enhancing pattern recognition based on shape,” and explains why
this is so. Reh’g Req. 8. TRW does not explain, however, why it failed to
provide this analysis in its Petition. A rehearing request under 37 C.F.R.
§ 42.71(d) is not an opportunity to submit new arguments that could have
been submitted in the petition. Accordingly, we decline to consider this new
argument.
2. Claims 23, 26, and 27
In its Petition, TRW alleged that Kenue anticipates claims 23, 26, and
27. Pet. 42-48. Claim 23 is independent, and claims 26 and 27 depend from
claim 23. Claim 23 recites, inter alia, “wherein objects are at least one of
(a) qualified and (b) disqualified based, at least in part, on object motion in
said field of view of said imaging sensor” (hereinafter, the “qualified-
disqualified limitation”). Ex. 1002, 14:59-61. TRW relied on two separate
excerpts from Kenue as disclosing this limitation. Pet 18-20 (citing
Ex. 1004, 5:14-22, 3:10-21). The first excerpt reads:
After the centroid of each marker is calculated[,] . . . if the
markers are not found where expected . . . based on the
previously detected lane geometry, the marker locations from
the previous frame are used. . . . The determination of expected
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marker position . . . involves comparing the position of each
marker centroid with that of the previous frame. If the change
is more than nine pixels, a flag is set.
Ex. 1004, 5:14-22. In its Petition TRW characterized this passage as
teaching that “objects are qualified based at least in part on object motion in
said field of view of the imaging sensor.” Pet. 46 (emphasis added). The
second excerpt reads:
FIG. 3 illustrates the presence of a vehicle 30 or other obstacle
in the roadway of FIG. 2. If the other vehicle is close, say,
within 50 feet of the trailing vehicle, it tends to obscure the lane
markers 24 to such an extent that there is insufficient
information to determine the boundaries. In that case an
obstacle warning is given and no further image processing is
done on that frame. When the obstacle 30 is more than 50 feet
away the image is processed but the obstacle is effectively
erased from the image by removing horizontal and vertical
lines, thereby making subsequent processing steps simpler.
Ex. 1004, 3:10-21. In its Petition TRW characterized this excerpt as
teaching that “objects are disqualified based in part on object motion in said
field of view of the imaging sensor.” Pet. 46 (emphasis added).
In our Decision, we observed that the above language from Kenue
“does not, on its face, correspond to the qualified-disqualified limitation.”
Dec. 11. We noted, for example, that “it is unclear from the first excerpt
how lane markers are ‘qualified,’ i.e., determined to be objects of interest.
Rather, it would seem that Kenue’s system predetermines lane markers to be
of interest, as it is specifically designed to detect them.” Id. at 11-12. As for
the second excerpt, we stated that “it is unclear how it describes
disqualifying an object, i.e., determining it to be not of interest, based on
object motion.” Id. at 12. We observed that, “[i]nstead, it appears to
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describe issuing a warning to the driver based on object position (within 50
feet of the vehicle), rather than object motion.” Id. Because we were not
persuaded that TRW was reasonably likely to prevail in showing that Kenue
teaches the qualified-disqualified limitation in claim 23, we declined to
institute an inter partes review of claims 23, 26 and 27 as anticipated by
Kenue. Id.
TRW asserts in its Rehearing Request that our determination not to
institute inter partes review of these claims constitutes an abuse of
discretion. Reh’g Req. 3. First, in discussing whether the first excerpt from
Kenue corresponds to the qualified-disqualified limitation, TRW alleges that
we “incorrectly impute[d] into the qualified-disqualified limitation the
requirement that the imaging system cannot be designed to detect the object
that is being qualified/disqualified.” Id. at 3–4. We disagree. Our comment
that “it would seem that Kenue’s system predetermines lane markers to be of
interest, as it is specifically designed to detect them,” points out that
qualifying an object as an object of interest likely means something beyond
simply detecting the object. It is undisputed that Kenue’s system detects
lane markers. But TRW did not explain how Kenue’s system qualifies lane
markers as objects of interest, or address whether there is any difference
between qualifying lane markers as objects of interest and simply detecting
them. Ultimately, the problem with TRW’s analysis was its failure to offer
any explanation why the first excerpt discloses qualifying an object as an
object of interest. See Dec. 11-12 (“it is unclear from the first excerpt how
lane markers are ‘qualified,’ i.e., determined to be objects of interest”).
TRW next argues that we “fail[ed] to recognize the significance” of
the first excerpt. Reh’g Req. 3. In describing the first excerpt, TRW alleges
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that (1) “a change in pixels connotes object motion between successive
frames;” (2) the first excerpt from Kenue describes “qualifying/disqualifying
because ‘a flag is set;’” and (3) “the flag being set here disqualifies the
associated centroid as a lane marker when the centroid moves more than
nine pixels between successive frames.” Id. at 4. This analysis does not
persuade us that we abused our discretion in denying institution on the
asserted ground. TRW impermissibly presents this analysis for the first time
in its Rehearing Request, rather than in its Petition. As above, we decline to
consider it. Further, even if we did, we would not consider it persuasive.
First, it is inconsistent with TRW’s position in the Petition. TRW argues
that the first Kenue excerpt discloses disqualifying an object as an object of
interest, whereas, in its Petition, TRW contended that it discloses qualifying
an object. See Pet. 46 (contending that the first excerpt “shows that objects
are qualified based at least in part on object motion in said field of view of
the imaging sensor”). Second, TRW’s allegations lack evidentiary support.
TRW does not identify sufficient record evidence supporting its contention
that “a change in pixels connotes object motion between successive frames,”
or that “[t]he flag being set disqualifies the associated centroid as a lane
marker.” Reh’g Req. 4.
Finally, TRW argues that we “fail[ed] to recognize the significance of
the second [excerpt] of Kenue.” Id. at 5. TRW argues that the reference to a
“trailing vehicle” in the second excerpt “clearly connotes motion” instead of
position. Id. Again, TRW did not make this allegation in the Petition, and
therefore it is too late for TRW to raise it for the first time in its Rehearing
Request. Even if we were to consider it, we would deem it to be
unsupported attorney argument, which is entitled to little weight. Moreover,
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we disagree with the allegation. “Trailing” simply means that the vehicle is
behind the other vehicle, i.e., it connotes position, not motion. TRW
apparently infers from the second excerpt that a detected obstacle is erased
from the image – i.e., disqualified – only when the obstacle starts out within
50 feet from the trailing vehicle, and then pulls away from the trailing
vehicle until the distance between the vehicle and the obstacle “grows” to
more than 50 feet. Id. at 5-6. This inference is unwarranted. Rather, Kenue
states that “the obstacle is effectively erased from the image” when “the
obstacle is more than 50 feet away,” indicating that the action of erasing the
obstacle from the image is based on the obstacle’s position rather than its
motion. See Dec. 12.
B. Claims 1, 3, 5-9, 10, 15, 19, 21, 23, 26, and 27—Obvious over
Yanagawa, Bottesch, Wilson-Jones, and Tadashi (Claim 9)
In its Petition, TRW contended that claims 1, 3, 5-8, 10, 15, 19, 21,
23, 26, and 27 are unpatentable under 35 U.S.C. § 103 as obvious over
Yanagawa, Bottesch, and Wilson-Jones. Pet. 21-36, 49-59. TRW further
contended that claim 9 is unpatentable under 35 U.S.C. § 103 as obvious
over these references plus Tadashi. Id. at 59-60. According to TRW,
Yanagawa discloses all of the limitations of the above claims except that it
does not expressly disclose “a two-dimensional array of light sensing
photosensor elements.” Pet. 23-36. TRW therefore relied on Bottesch as
teaching this limitation. Id. at 23 (citing Ex. 1006, 2:40-45, 4:10-13, 6:57-
60). TRW asserted that “to include in the camera 11 of Yanagawa . . . a
two-dimensional array of photosensor elements as shown in Bottesch . . . is,
under KSR, merely a simple substitution of one known element for another
to obtain predictable results.” Id. at 24. TRW further asserted that “those
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skilled in the art would consider it obvious to try to include such a two-
dimensional array in the camera 11 of Yanagawa . . . as this selection
involves choosing from a finite number of identified, predictable solutions,
with a reasonable expectation of success.” Id. (citing MPEP § 2141;
Ex. 1012 ¶ 38). In our Decision, we determined that “TRW’s analysis falls
short, as it is based on ‘mere conclusory statements’ that cannot support an
obviousness rejection.” Dec. 15 (citing KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 418 (2007)). We noted that TRW did not support either its
“simple substitution” or “obvious to try” rationales with explanation or
evidence. Id. For example, TRW did not explain why the alleged
combination would have been a simple substitution achieving predictable
results, or why selecting Bottesch’s array, as opposed to any other, would
have been a choice from a finite number of solutions with a reasonable
expectation of success. Id. We further noted that Dr. Miller’s testimony did
not elaborate on TRW’s position because it simply repeated TRW’s
conclusory statements verbatim. Id.
In its Rehearing Request, TRW asserts that we “fatally erred in failing
to appreciate the significance of the Expert declaration and TRW’s
submission.” Reh’g Req. 9. TRW contends that Meyer I.P. Ltd. v. Bodum,
Inc., 690 F.3d 1354, 1374-76 (Fed. Cir. 2012), compels us to accept Dr.
Miller’s opinion supporting TRW’s simple-substitution and obvious-to-try
rationales. In Meyer, TRW argues, “the Federal Circuit held that a District
Court abused its discretion by holding that an expert declaration was
insufficient.” Reh’g Req. 9. According to TRW, Dr. Miller’s declaration “is
at least as in depth as the Expert declaration in the Meyer case, and therefore
must also be found to be sufficient.” Id. at 11. We disagree. In Meyer, the
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issue was whether an expert report complied with Rule 26(a) of the Federal
Rules of Civil Procedure. Meyer, 690 F.3d at 1375. Meyer does not restrict
the Board’s well-established discretion to give little weight to conclusory,
unsupported expert testimony. See 37 C.F.R. § 42.65(a); Rohm and Haas
Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed. Cir. 1997).
TRW also asserts that in In re Lackey, “the Federal Circuit upheld an
obvious[ness] rejection based on the Examiner (and Board) stating mere
simple substitution as the only motivation to combine.” Reh’g Dec. 10
(citing In re Lackey, 371 F. App’x 80, 82 (Fed. Cir. 2010) (unpublished)).
But this mischaracterizes the Lackey decision. There, the Examiner did not
simply “stat[e] mere simple substitution,” but supported that rationale with
record evidence. See Lackey, 371 F. App’x at 81 (affirming rejection of
claim to an air admittance valve made of metal based in part on Kohn
reference, which teaches that plumbing fixtures may be made out of a
variety of metals). In contrast, TRW supported its obviousness rationales
only with the conclusory testimony of Dr. Miller.
C. Claims 11-13, 16, and 17
TRW asserts that we abused our discretion in not instituting inter
partes review of claims 11-13, 16 and 17 as obvious over the combination of
Aurora (claim 11), Zheng (claims 12 and 13), or Vellacott (claims 16 and
17) with either (a) Kenue or (b) the Yanagawa-Bottesch-Wilson-Jones
combination. Reh’g Req. 14-15. Claims 11-13, 16, and 17 depend, either
directly or indirectly, from claim 1. As discussed above, we are not
persuaded that we erred in determining that TRW is not reasonably likely to
show that (1) Kenue teaches all of the limitations of claim 1, and (2) claim 1
would have been obvious over the combination of Yanagawa, Bottesch, and
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Wilson-Jones. Further, TRW does not rely on Aurora, Zheng, or Vellacott
to cure the deficiencies noted in the proposed grounds based on either Kenue
or the Yanagawa-Bottesch-Wilson-Jones combination. Accordingly, and for
at least the reasons discussed above, we are not persuaded that we erred in
not instituting review of claims 11-13, 16 and 17.
IV. ORDER
For the foregoing reasons, it is
ORDERED that TRW’s Request for Rehearing is denied.

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PETITIONER:

Josh Snider
Timothy Sendek
A. Justin Poplin
LATHROP & GAGE LLP
patent@lathropgage.com
tsendek@lathropgage.com
jpoplin@lathropgage.com

PATENT OWNER:

Timothy A. Flory
Terence J. Linn
GARDNER, LINN, BURKHART & FLORY, LLP
Flory@glbf.com
linn@glbf.com

David K.S. Cornwell
STERNE, KESSLER, GOLDSTEIN & FOX PLLC
Davidc-PTAB@skgf.com