Avigilon Fortress Corporation

Patent Trials and Appeals Board

Jul 1, 2020

IPR2019-00311 (P.T.A.B. Jul. 1, 2020)

Trials@uspto.gov Paper 47
571-272-7822 Entered: July 1, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

CANON INC., CANON U.S.A., INC., and
AXIS COMMUNICATIONS AB,
Petitioner,

v.

AVIGILON FORTRESS CORPORATION,
Patent Owner.
____________

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Before GEORGIANNA W. BRADEN, KIMBERLY McGRAW, and
JESSICA C. KAISER, Administrative Patent Judges.

McGRAW, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining No Challenged Claims Unpatentable
35 U.S.C. § 318(a)

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I. INTRODUCTION
In this inter partes review, instituted pursuant to 35 U.S.C. § 314,
Canon Inc., Canon U.S.A., Inc., and Axis Communications AB (collectively
“Petitioner”) challenge claims 1–41 of U.S. Patent No. 7,932,923 B2 & C1
(Ex. 1001, “the ’923 patent”), owned by Avigilon Fortress Corporation
(“Patent Owner”). This Final Written Decision is entered pursuant to
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the reasons discussed below,
Petitioner has not shown by a preponderance of the evidence that claims 1–
41 of the ’923 patent are unpatentable.
A. Procedural History
Petitioner filed a Petition for inter partes review of claims 1–41 of
the ’923 patent. Paper 1 (“Pet.”). Patent Owner filed a Preliminary
Response. Paper 9. Petitioner then filed an authorized Reply to address
Patent Owner’s arguments that the asserted references are not printed
publications (Paper 11), to which Patent Owner filed an authorized Sur-reply
(Paper 12). Applying the standard set forth in 35 U.S.C. § 314(a), which
requires demonstration of a reasonable likelihood that Petitioner would
prevail with respect to at least one challenged claim, we instituted an inter
partes review of the challenged claims. Paper 13 (“Inst. Dec.”).
Following institution, Patent Owner filed a Patent Owner Response
(Paper 27, “PO Resp.”), Petitioner filed a Reply (Paper 31, “Pet. Reply”),
and Patent Owner filed a Sur-reply (Paper 38, “PO Sur-reply”). An oral
hearing was held on April 8, 2020, and a copy of the hearing transcript has
been entered into the record. Paper 46 (“Tr.”).
B. Related Matters
Concurrent with the instant Petition, Petitioner filed another petition
for inter partes review of the ’923 patent in IPR2019-00314. Canon Inc. et
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al. v. Avigilon Fortress Corp., IPR2019-00314, Paper 1 (PTAB Nov. 12,
2018). We issue a final written decision in IPR2019-00314 concurrently
with this Decision.
Petitioner also has filed several petitions challenging patents related to
the ’923 patent.1 For example, Petitioner filed petitions in IPR2018-00138
and IPR2018-00140 challenging claims of related U.S. Patent No. 8,564,661
B2 (“the ’661 patent”). In both of these proceedings, we determined that
Petitioner had shown by a preponderance of the evidence that each of the
challenged claims of the ’661 patent are unpatentable. Axis Commc’ns AB et
al. v. Avigilon Fortress Corp., IPR2018-00138, Paper 25 (PTAB
May 30, 2019); Axis Commc’ns AB et al. v. Avigilon Fortress Corp.,
IPR2018-00140, Paper 25 (PTAB May 30, 2019).
Petitioner also filed petitions in IPR2019-00235 and IPR2019-00236
challenging claims of related U.S. Patent No. 7,868,912 B2. We denied
institution of both of these proceedings. See Canon Inc. et al. v. Avigilon
Fortress Corp., IPR2019-00235, Paper 19 (PTAB June 4, 2019) (stating that
Petitioner did not show the asserted reference qualified as a prior art printed
publication); Canon Inc. et al. v. Avigilon Fortress Corp., IPR2019-00236,
Paper 12 (PTAB June 4, 2019) (exercising discretion under 35 U.S.C.
§ 325(d) to decline institution).
C. The ’923 Patent (Ex. 1001)
The ’923 patent, titled “Video Surveillance System Employing Video
Primitives,” is generally directed to methods, devices, and computer
readable storage media for video surveillance. See Ex. 1001, codes (54),

1 Petitioner states the ’923 patent and U.S. Patent Nos. 8,564,661 B2
and 7,868,912 B2 are related as each claim priority to U.S. Application
No. 09/694,712. Pet. 8.
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(57), Reexamination Certificate 1:29–4:28. In one embodiment, the
disclosed video surveillance system operates by (1) obtaining source video,
(2) extracting “video primitives” from the video, (3) archiving the video
primitives, (4) extracting “event occurrences” from the video primitives
using “event discriminators,” and (5) undertaking a response, as appropriate.
Id. at Fig. 4, 4:30–31, 11:63–65. “Video primitive” refers to an “observable
attribute” of an object viewed in a video feed, such as the size, shape,
position, speed, color, and texture of the object. Id. at 7:6–12. The ’923
patent explains that event discriminators are used to filter the video
primitives to determine if any event occurrences occurred. Id. at 10:66–
11:1. For example, an event discriminator can look for a “wrong way” event
as defined by a person traveling the “wrong way” into an area between
9:00 a.m. and 5:00 p.m. Id. at 11:1–4. The event discriminator checks the
video primitives and determines if any video primitives with the following
properties exist: a timestamp between 9:00 a.m. and 5:00 p.m., a
classification of “person” or “group of people,” a “position inside the area,”
and a “wrong direction of motion.” Id. at 11:4–9.
D. Illustrative Claims
Petitioner challenges claims 1–41 of the ’923 patent. Claims 1, 8, 9,
20, 22, 29, and 30 are independent. Claim 1 is representative and is
reproduced below.
1. A method comprising:
[a] detecting an object in a video from a single camera;
[b] detecting a plurality of attributes of the object by analyzing the
video from said single camera, the plurality of attributes
including at least one of a physical attribute and a temporal
attribute, each attribute representing a characteristic of the
detected object;
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[c] selecting a new user rule after detecting the plurality of
attributes;
[d1] after detecting the plurality of attributes and after selecting the
new user rule, identifying an event of the object that is not one
of the detected attributes of the object by applying the new
user rule to the plurality of detected attributes,
[d2] wherein the applying the new user rule to the plurality of
detected attributes comprises applying the new user rule to
only the plurality of detected attributes;
[e] wherein the plurality of attributes that are detected are
independent of which event is identified,
[f] wherein the step of identifying the event of the object identifies
the event without reprocessing the video, and
[g] wherein the event of the object refers to the object engaged in
an activity.
Ex. 1001, Reexamination Certificate, 1:34–55 (matter in brackets added for
clarity; matter in italics indicates additions made to the claim during the
reexamination proceeding).
E. Asserted Challenges to Patentability
Petitioner asserts that claims 1–41 are unpatentable based on the
following challenges (Pet. 3):
Claim(s) Challenged 35 U.S.C. § Reference(s)
1–41 102(b)2 Kellogg3
1–41 103 Kellogg, Brill4

2 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
(2011) (“AIA”), amended 35 U.S.C. §§ 102 and 103. Because the
challenged claims of the ’923 patent have an effective filing date before the
effective date of the applicable AIA amendments, we refer to the pre-AIA
versions of §§ 102 and 103.
3 Christopher James Kellogg, Visual Memory (May 1993) (B.S. and M.S.
thesis, Massachusetts Institute of Technology, Department of Electrical
Engineering and Computer Science) (Ex. 1003, “Kellogg”).
4 Frank Z. Brill et al., Event Recognition and Reliability Improvements for
the Autonomous Video Surveillance System, in Proceedings of a Workshop
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F. Testimonial Evidence
In support of its unpatentability contentions, Petitioner relies on a
declaration by John R. Grindon, D.Sc. (Ex. 1005). Patent Owner cross-
examined Dr. Grindon via deposition. See Ex. 2018. In support of its Patent
Owner Response, Patent Owner relies on a declaration by Alan Bovik, Ph.D.
(Ex. 2019). Petitioner cross-examined Dr. Bovik via deposition.
See Ex. 1056.
II. DISCUSSION
A. Legal Principles
To prevail on its challenge to Patent Owner’s claims, Petitioner must
demonstrate by a preponderance of the evidence that the claims are
unpatentable. 35 U.S.C. § 316(e) (2012); 37 C.F.R. § 42.1(d) (2018). The
petitioner “has the burden from the onset to show with particularity why the
patent it challenges is unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815
F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring
inter partes review petitions to identify “with particularity . . . the evidence
that supports the grounds for the challenge to each claim”)). This burden
never shifts to Patent Owner. See Dynamic Drinkware, LLC v. Nat’l
Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) (citing Tech. Licensing
Corp. v. Videotek, Inc., 545 F.3d 1316, 1326–27 (Fed. Cir. 2008))
(discussing the burden of proof in inter partes review).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co., 814 F.2d 628, 631 (Fed.

held in Monterey California, Nov. 20–23, 1998, pp. 267–283 (Ex. 1004,
“Brill”).
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Cir. 1987). In order to anticipate a claimed invention, a prior art reference
must disclose all of the claim limitations “arranged or combined in the same
way as in the claim.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359,
1370 (Fed. Cir. 2008); see also Dayco Prods., Inc. v. Total Containment,
Inc., 329 F.3d 1358, 1368 (Fed. Cir. 2003) (stating that the “dispositive
question regarding anticipation [i]s whether one skilled in the art would
reasonably understand or infer from the [prior art reference’s] teaching that
every claim element was disclosed in that single reference”) (first alteration
in original) (emphasis omitted).
A claim is unpatentable for obviousness under 35 U.S.C. § 103(a) if
the differences between the claimed subject matter and the prior art are
“such that the subject matter, as a whole, would have been obvious at the
time the invention was made to a person having ordinary skill in the art to
which said subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 406 (2007). The question of obviousness is resolved on the basis of
underlying factual determinations, including (1) the scope and content of the
prior art; (2) any differences between the claimed subject matter and the
prior art; (3) the level of skill in the art; and (4) when in evidence, objective
indicia of non-obviousness (i.e., secondary considerations). Graham v. John
Deere Co., 383 U.S. 1, 17–18 (1966).
B. Level of Ordinary Skill in the Art
In determining whether an invention would have been obvious at the
time it was made, we consider the level of ordinary skill in the pertinent art
at the time of the invention. Graham, 383 U.S. at 17. Before institution, the
parties provided slightly different definitions of the level of skill in the art.
See Pet. 8–9 (citing Ex. 1005 ¶¶ 76–80); Prelim. Resp. 7. In our Decision on
Institution, we adopted Petitioner’s proposed definition of a person of
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ordinary skill in the art as someone having (i) a Bachelor of Science degree
in electrical engineering, computer engineering, or computer science, with
approximately two years of experience or research related to video
processing and/or surveillance systems, or (ii) equivalent training and work
experience in computer engineering and video processing and/or
surveillance systems. Inst. Dec. 8 (citing Pet. 8–9; Ex. 1005 ¶¶ 76–80).
Neither party disputes our definition of the level of ordinary skill in
the art from the Institution Decision. We see no reason to change our
definition based on the complete record and, thus, maintain our definition for
the purposes of this Decision. We further note that our analysis would be
the same under either party’s definition.
C. Claim Construction
In an inter partes review filed before November 13, 2018, such as
here, we construe claim terms in an unexpired patent according to their
broadest reasonable construction in light of the specification of the patent in
which they appear. 37 C.F.R. § 42.100(b) (2018);5 Cuozzo Speed Techs.,
LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of the
broadest reasonable interpretation standard as the claim interpretation
standard to be applied in inter partes reviews).
Consistent with the broadest reasonable construction, claim terms are
presumed to have their ordinary and customary meaning as understood by a
person of ordinary skill in the art in the context of the entire patent

5 The 2018 amendment to this rule does not apply here because the Petition
was filed before November 13, 2018. See Changes to the Claim
Construction Standard for Interpreting Claims in Trial Proceedings Before
the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018)
(now codified at 37 C.F.R. pt. 42 (2019)) (amending 37 C.F.R. § 42.100(b)
effective November 13, 2018).
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disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
2007). An inventor may provide a meaning for a term that is different from
its ordinary meaning by defining the term in the specification with
reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994).
The parties propose constructions for a number of claim terms. See
Pet. 9–23; PO Resp. 5–15; Pet. Reply 4–10; PO Sur-reply 5–9. We need
only construe claim terms that are in controversy, and only to the extent
necessary to resolve the controversy. Nidec Motor Corp. v. Zhongshan
Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid
Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
To the extent we find it necessary to address the meaning of any claim term,
we do so below in the context of our unpatentability analysis.
D. Asserted Anticipation of Claims 1–41 by Kellogg
Petitioner contends that claims 1–41 are unpatentable under 35 U.S.C.
§ 102(b) as anticipated by Kellogg. Pet. 34–43. In response, Patent Owner
argues Petitioner fails to show that Kellogg discloses all the limitations of
the challenged claims. PO Resp. 15–38. For the reasons explained below,
Petitioner has not established by a preponderance of the evidence that
Kellogg anticipates claims 1–41 of the ’923 patent.
1. Overview of Kellogg
Kellogg is a master’s thesis titled “Visual Memory” with the stated
goals of designing a “visual memory architecture” and implementing a
“visual memory prototype to support a real-time scene monitoring
prototype.” Ex. 1003, 1, 10. Kellogg explains that visual memory supports
computer vision applications “by efficiently storing and retrieving
spatiotemporal information. It is a unique combination of databases, spatial
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representation and indexing, and temporal representation and indexing.”
Id. at 9. Chapter 3 of Kellogg presents a design for a visual memory system.
See id. at 18–67. Chapter 4 describes a prototype of a visual memory system
that implements the design of chapter 3. See id. at 68–80. In this prototype,
image processing using video cameras tracks objects and stores information
about them in the visual memory. Id. at 68. Using a graphical query
interface, users can specify queries to the visual memory and view the result
in various ways. Id. Chapter 5 describes tests that were conducted to
analyze the prototype’s performance. See id. at 81–87.
2. Petitioner’s Contentions
We begin our analysis by summarizing Petitioner’s anticipation
arguments, focusing on Petitioner’s contentions for method claim 1, which is
representative of the other independent claims. Petitioner contends that
Kellogg discloses each limitation recited in method claim 1. Pet. 34–43.
Petitioner asserts that Kellogg discloses the limitations of claim element
1[a], which require detecting an object in a video from a single camera, as
Kellogg discloses the real-time processing of CCD camera images and
software that tracks people walking in its field of view. See Pet. 35–36
(citing Ex. 1003, 21, 30–31, 50, 68–69, 79, Figs. 3–5, 4–9); Ex. 1005
¶¶ 195–196. Petitioner also asserts that Kellogg discloses the “detecting a
plurality of attributes” limitations of claim element 1[b], as it teaches
detecting various physical and temporal attributes that represent
characteristics of an object, such as the height of a person (physical attribute)
or the time intervals an object is present (temporal attribute). See id. at 37
(citing Ex. 1003, 24, 63, 25, 74, 36–41; Ex. 1005 ¶¶ 202–207).
Petitioner further contends that Kellogg discloses the “selecting a new
user rule” limitations of claim element 1[c] because Kellogg discloses “a
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tasking mechanism to allow users to create ad hoc queries using a set of
attributes, i.e., selecting a new user rule.” Pet. 38 (citing Ex. 1005 ¶¶ 209–
210, 215–216). In particular, Petitioner points to Kellogg’s “Approach
Query,” which “tracks all objects that came within 3 units of a given object
on its trajectory during a certain set of valid times,” as an example of a “new
user rule” disclosed in Kellogg. See id. at 38–39 (citing Ex. 1003, 62–63;
Ex. 1005 ¶¶ 209–216 (emphasis omitted)).
Petitioner also asserts that Kellogg’s “Approach Query” satisfies the
limitations of claim element 1[d1] that require, inter alia, “identifying an
event of the object that is not one of the detected attributes of the object by
applying the new user rule to the plurality of detected attributes,” because
the query applies at least two different attributes from the plurality of
detected attributes. Id. at 39 (citing Ex. 1003, 62–63; Ex. 1005 ¶ 218).
Petitioner further contends that Kellogg also satisfies the limitations of claim
element 1[d1] that require applying the new user rule after detecting
attributes and creating the query because “Kellogg’s system was designed to
record basic attributes so that a search can later be created based on any
arbitrary subset of the recorded attributes.” Id. at 39–40 (citing Ex. 1003,
53–54, 78; Ex. 1005 ¶ 220).
Petitioner further asserts the limitations of claim element 1[d2] that
recite “applying the new user rule to the plurality of detected attributes
comprises applying the new user rule to only the plurality of detected
attributes” require that “the prior art have the ability to search only the
attributes themselves.” Pet. 40 (citing Ex. 1005 ¶ 221; Pet. 19–21).
Petitioner argues Kellogg discloses this limitation because Kellogg discloses
that the attribute data can be stored in a “bucket index” and therefore,
“Kellogg can search only the attributes themselves and does not require
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traversing a tree structure of abstractions to search the detected attributes.”
Id. (citing Ex. 1003, 83; Ex. 1005 ¶ 222).
Petitioner also contends that the attributes queried in Kellogg’s
Approach Query are “independent of which event is identified,” as required
by claim element 1[e], because the attributes are pre-collected. Id. at 40–42
(citing Ex. 1003, 62–63; Ex. 1005 ¶¶ 223–225, 227). Petitioner further notes
that Kellogg “discloses that the queries are forensic in nature, where ‘[a]
large amount of [stored] information could be established prior to
application execution.’” Id. at 42 (alterations in original) (emphasis omitted)
(quoting Ex. 1003, 9) (citing Ex. 1003, 19).
In addition, Petitioner contends that because Kellogg searches stored
attributes in its database, Kellogg performs the “identifying” step “without
reprocessing the video,” as required by claim element 1[f]. See Pet. 42
(citing Ex. 1003, 53–54, 77, 79; Ex, 1005 ¶¶ 228–229). Finally, Petitioner
asserts that Kellogg’s Approach Query satisfies the limitations of claim
element 1[g] (“wherein the event of the object refers to the object engaged in
an activity”) because the Approach Query identifies an Approach Event,
which refers to an object (persons p, q) engaged in activity (the action of
moving along a certain trajectory). See Pet. 42 (citing Ex. 1003, 62–63;
Ex. 1005 ¶ 230; Ex. 1001, 3:31–33).
3. Analysis
In our Institution Decision, we determined that Petitioner made an
adequate showing for institution purposes that Kellogg discloses each
limitation of claim 1. See Inst. Dec. 21. Nevertheless, on the complete
record now before us as discussed in detail below, we find that a
preponderance of the evidence does not establish that Kellogg discloses
“wherein the applying the new user rule to the plurality of detected attributes
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comprises applying the new user rule to only the detected attributes,” as
recited in independent claim 1, element [d2], as well as in independent
claims 8, 9, 22, and 29, and similarly recited in independent claims 20 and
30 (hereinafter the “only” limitations). Accordingly, because Petitioner’s
anticipation analysis relies on Kellogg for teaching the claimed “only”
limitations, we determine that Petitioner has not shown by a preponderance
of the evidence that independent claims 1, 8, 9, 20, 22, and 30, or the claims
that depend therefrom, are anticipated by Kellogg.
As described above, Petitioner contends the “Approach Query” is a
“new user rule.” See Pet. 38–39 (stating that the creation of ad hoc queries
using a set of attributes, such as the “Approach Query,” discloses selecting a
“new user rule”). Dr. Grindon explains that the Approach Query “specifies
a combination of a set of physical and temporal attributes together with
object classification attributes for identifying an ‘Approach Event’ between
person p and persons q by searching for any persons q that came within a
certain distance of person p at a given time period.” Ex. 1005 ¶ 212 (citing
Ex. 1003, 62–63). According to Dr. Grindon, the Approach Query “searches
the centroid of the two objects and their trajectories, and the distance
between the moving centroids.” Id. Dr. Grindon further states that the
Approach Query “also searches for trajectories within certain periods, e.g.,
time-1 and time-2.” Id. In addition, the Approach Query “also applies the
object classification attribute, i.e., person, for both objects.” Id. Dr.
Grindon opines that the event being identified by the Approach Query “is
not just one of the detected attributes, but rather a collection or a set of
attributes.” Id. ¶ 218.
Petitioner also contends that the “only” limitations require “that the
prior art have the ability to search only the attributes themselves.” See
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Pet. 40 (citing Ex. 1005 ¶ 221; Pet. 19–21); see also id. at 47, 52, 60
(referring to analysis of claim 1 to show unpatentability of independent
claims 8, 9, 20, 22, and 30). Petitioner asserts that Kellogg can search only
the attributes themselves and does not require traversing a tree structure of
abstractions to search the detected attributes because Kellogg discloses that
the attribute data can be stored in a “bucket index.” Id. (citing Ex. 1003, 83;
Ex. 1005 ¶ 222). Petitioner asserts that a “bucket index simply maintains a
list of all the objects stored in the visual memory” and “answers a query by
retrieving all the objects in its list and checking them against the query
specification,” thus demonstrating that the system can search only the
attributes themselves. Id. (citing Ex. 1003, 83; Ex. 1005 ¶ 222).
Patent Owner asserts Kellogg does not apply “the new user rule to
only the plurality of detected attributes” because Kellogg’s prototype visual
memory system does not use the bucket index, but rather performs its
queries on “spatial indices” (i.e., “fixed grid” and “bucket PR quadtree”) and
on “temporal indices,” such as the “temporal segment tree.” See PO
Resp. 27–31 (citing Ex. 1003, 72–77, Figs. 4–3, 4–4, 4–5); see also
Ex. 1003, 67 (describing a spatiotemporal query in which “the indexing
mechanism finds the temporal description in the temporal indices, retrieves
the corresponding versions of the spatial indices, finds the spatial description
in them, and retrieves the corresponding spatiotemporal object versions”).
Patent Owner contends that these indices “are not optional in Kellogg” and
that they are the only way the queries are described as operating. Id. at 27
(citing Ex. 1003, 54, 64). Patent Owner asserts that because the indices used
by Kellogg have a tree-structure hierarchy, Kellogg’s queries on these
indices “quer[y] object-oriented abstractions” and, therefore, do not apply
the new user rule to only the plurality of detected attributes, as required by
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the claims. See PO Resp. 27–31. Patent Owner further asserts that the
bucket index “is not described in Kellogg’s implementation of the visual
memory” but is only used “to analyze the performance of the two
implemented spatial indices.” See PO Resp. 31 (citing Ex. 1003, § 4 (titled
“Implementation”), 84).
Petitioner replies that Kellogg’s “fixed grid” and “PR quadtree”
indices are irrelevant because Petitioner does not rely on these features of
Kellogg. Pet. Reply 16 (citing Pet. 40; Ex. 1005 ¶¶ 221–222); see also
Tr. 15:6–7 (stating that “what [Petitioner] rel[ies] on to show that Kellogg is
searching only the attributes is this bucket index that’s disclosed in
Kellogg”). Petitioner further states that even though Kellogg’s bucket index
is not in Kellogg’s implementation section, Kellogg actually “built and
tested the bucket index.” Pet. Reply 17 (citing Ex. 1003, 83); see also id. at
16 (stating that the bucket index “answers a query by retrieving all the
objects in its list and checking them against the query specification” (citing
Ex. 1003, 83)).
Based on the complete record, we determine that Petitioner has not
shown sufficiently that Kellogg discloses the ‘only’ limitations of
independent claims 1, 8, 9, 20, 22, 29, and 30, because Petitioner has failed
to demonstrate sufficiently that Kellogg discloses performing the Approach
Query on the bucket list, which is the basis of Petitioner’s showing for these
limitations. Petitioner points to Kellogg’s disclosure of using a bucket index
to test the performance of Kellogg’s spatial indices using a spatial query and
to test the performance of Kellogg’s temporal indices using a temporal
query, but Petitioner has not shown sufficiently that Kellogg discloses
performing the “Approach Query,” which is a spatiotemporal query, on the
bucket list index. See Pet. 40 (citing Ex. 1003, 83; Ex. 2005 ¶ 222). Nor has
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Petitioner shown that a person skilled in the art would have understood that
Kellogg’s bucket list index could have supported a spatiotemporal query.
See id.
Significantly, Kellogg draws a distinction between (1) “Spatial
Queries” (Ex. 1003, 54–57 (§ 3.7.2)), (2) “Temporal Queries” (id. at 57–59
(§ 3.7.3)) and (3) “Spatiotemporal Queries” (id. at 59–63 (§ 3.7.4)). A
spatiotemporal query “specifies a spatiotemporal object and a temporal
object, and how objects must intersect with these to satisfy the query.” Id.
at 59; see also id. at 68 (stating that the visual memory prototype specifies “a
variety of queries, including spatial, temporal, and spatiotemporal”). Id.
at 68. Kellogg states that its “query mechanism is tailored to the spatial and
temporal representations,” and describes the query mechanism and the types
of queries supported by its visual memory. Id. at 53. Indeed, Kellogg states
that the “interaction of space and time makes spatiotemporal indexing a
complex problem.” Ex. 1003, 66.
Neither of Kellogg’s tests involving the bucket list to demonstrate
query performance appear to test a spatiotemporal query. See Ex. 1003, 82–
87. The first test, as shown in Figure 5–4, is titled “Spatial query
performance.” Id. at 86. This test shows “the performance for spatial
indices with a 10-unit by 10-unit query square” by comparing query
performance on (1) the spatial quadtree index, (2) the spatial grid index, and
(3) the bucket list index. See id. at 83–86. The second test, shown in
Figure 5–5, titled “Temporal query performance,” shows the “performance
for temporal indices with a query interval of 10 seconds” by comparing
query performance on (1) the temporal B+ tree index, (2) the temporal
Segment tree index, and (3) the bucket list index. See id. at 83–85, 87.
Thus, while Kellogg discloses performing a spatial query and a temporal
IPR2019-00311
Patent 7,932,923 B2 & C1
17
query on the bucket list index, there is no disclosure of performing a
spatiotemporal query, such as the Approach Query, on the bucket list index.
In sum, Petitioner does not provide sufficient argument or evidence that
Kellogg performed, or otherwise discloses, performing the Approach Query,
or any spatiotemporal query, on a bucket list. Nor has Petitioner presented
sufficient argument or evidence that a bucket index could support a
spatiotemporal query.
Therefore, for the foregoing reasons, based on the complete record,
Petitioner has not shown sufficiently that Kellogg discloses the “only”
limitations, i.e., “wherein the applying the new user rule to the plurality of
detected attributes comprises applying the new user rule to only the detected
attributes,” as recited in independent claim 1, element [d2], as well as in
independent claims 8, 9, 22, and 29, and similarly recited in independent
claims 20 and 30. Accordingly, we determine that Petitioner has not shown
by a preponderance of the evidence that independent claims 1, 8, 9, 20, 22,
and 30, or the claims that depend therefrom, are anticipated by Kellogg.
E. Asserted Obviousness of Claims 1–41 over Kellogg and Brill
Petitioner contends that claims 1–41 are unpatentable under 35 U.S.C.
§ 103(a) as obvious over the combined teachings of Kellogg and Brill.
Pet. 62–75. Petitioner does not rely on Brill to teach the “only” limitations
not disclosed by Kellogg as described above. Id. Nor does Petitioner
provide any argument that these limitations would have been obvious to one
of ordinary skill in the art. Id. Accordingly, Petitioner has not shown by a
preponderance of the evidence that the combination of Kellogg and Brill
teaches or suggests each of the limitations of claims 1–41. Accordingly,
Petitioner has not shown by a preponderance of the evidence that claims 1–
41 would have been obvious over Kellogg and Brill.
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Patent 7,932,923 B2 & C1
18
III. CONCLUSION
For the foregoing reasons, we determine that Petitioner has not shown
by a preponderance of the evidence that claims 1–41 are unpatentable.

IV. ORDER
Accordingly, it is
ORDERED that claims 1–41 of U.S. Patent No. 7,932,923 B2 & C1
have not been shown to be unpatentable; and
FURTHER ORDERED that, because this is a final written decision,
parties to this proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

Claims 35 U.S.C. § Reference(s)
Claims
Shown
Unpatentable
Claims
Not Shown
Unpatentable
1–41 102(b) Kellogg 1–41
1–41 103(a) Kellogg, Brill 1–41
Overall Outcome 1–41
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Patent 7,932,923 B2 & C1
19
FOR PETITIONER:
Joseph Calvaruso
Richard Martinelli
ORRICK, HERRINGTON & SUTCLIFFE LLP
jvcptabdocket@orrick.com
rfmptabdocket@orrick.com

C. Gregory Gramenopoulos
FINNEGAN, HENDERSON, FARABOW, GARRETT
& DUNNER LLP
gramenoc@finnegan.com

FOR PATENT OWNER:
Eugene Goryunov
Michael Dokhanchy
KIRKLAND & ELLIS LLP
Eugene.goryunov.ipr@haynesboone.com
Reza.dokhanchy@kirkland.com