Valeo, Inc.v.Magna Electronics Inc.

Patent Trial and Appeal Board

Dec 21, 2015

12979497 (P.T.A.B. Dec. 21, 2015)

Trials@uspto.gov Paper 49
Tel: 571-272-7822 Entered: December 21, 2015
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

VALEO NORTH AMERICA, INC.; VALEO S.A.;
VALEO GmbH; VALEO SCHALTER UND SENSOREN GmbH;
and CONNAUGHT ELECTRONICS LTD.,
Petitioner,

v.

MAGNA ELECTRONICS, INC.,
Patent Owner.
____________

Case IPR2014-01208
Patent 7,991,522 B2
____________

Before JAMESON LEE, PHILLIP J. KAUFFMAN, and
MATTHEW R. CLEMENTS, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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I. INTRODUCTION
A. PROCEDURAL HISTORY
Valeo, North America, Inc., Valeo S.A., Valeo GmbH, Valeo Schalter
und Sensoren GmbH, and Connaught Electronics Ltd. (collectively,
“Petitioner”) filed a Petition (Paper 1, “Pet.”) to institute an inter partes
review of claims 2–5, 7, 11, 12, 16–26, 28, 32–35, 37, 40, and 44–46 of U.S.
Patent No. 7,991,522 B2 (Ex. 1001, “the ’522 patent”). Patent Owner,
Magna Electronics, Inc., filed a timely Preliminary Response (Paper 6,
“Prelim. Resp.”).
In the December 23, 2014, Decision to Institute (Paper 13, “Dec.”),
we instituted trial on claims 2, 3, 5, 7, 11, 12, 18, 19, 21–26, 28, 32–35, 37,
40, and 44–46 on the following grounds:
(1) claims 2, 3, 5, 7, 11, 12, 28, 32–35, 37, 40, and 44–46 as
unpatentable under 35 U.S.C. § 103(a) over Nissan1 and Hitachi2;
(2) claims 18, 21, 22,3 25, and 26 as unpatentable under 35 U.S.C.
§ 103(a) over Nissan, Hitachi, and Gutta4; and
(3) claims 19, 23, and 24 as unpatentable under 35 U.S.C. § 103(a)
over Nissan, Hitachi, and Broggi.5

1 Ex. 1002, JP 2004-1658 (pub. Jan. 8, 2004). We refer to the English
translation at Exhibit 1003 throughout.
2 Ex. 1013, JP 2002˗74339 (pub. Mar. 15, 2002).
3 Petitioner proposed a ground of unpatentability against claim 22 based on
Nissan, Hitachi, and either Gutta or Breed. See Pet. 56–59. We instituted on
the alternative based on Gutta. See Dec. 27–29. Here, we list each of the
claims subject to Nissan, Hitachi, and Gutta together.
4 Ex. 1005, U.S. 6,424,273 B1 (iss. July 23, 2002).
5 Ex. 1006, Alberto Broggi et al., Multi-Resolution Vehicle Detection Using
Artificial Vision, 2004 IEEE INTELLIGENT VEHICLES SYMP. 310–314.
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Subsequently, Patent Owner filed a Patent Owner Response (Paper 31,
“PO Resp.”), and Petitioner filed a Reply (Paper 33, “Pet. Reply”).
Patent Owner did not file a motion to amend.
Patent Owner filed a motion to exclude certain evidence which is
discussed in section III below.
Oral hearing was held on Thursday, October 1, 2015, and a transcript
of the oral hearing is included in the record.6 Paper 48 (“Tr.”).
For the reasons that follow, we determine that Petitioner has shown by
a preponderance of the evidence that claims 2, 3, 5, 7, 11, 12, 18, 19, 21–26,
28, 32–35, 37, 40, and 44–46 of the ’522 patent are unpatentable.

B. RELATED PROCEEDINGS
The parties indicate that Patent Owner asserted the ’522 patent against
Petitioner in Magna Electronics Inc. v. Valeo, Inc., No. 2:13-cv-11376-DRG
(filed on Mar. 28, 2013) (E.D. Mich.). Pet. 3; Paper 5, 2.
The ’522 patent was the subject of IPR2014-00221. In a Final Written
Decision dated May 28, 2015, we determined that claims 1, 6, 8–10, 13–15,
27, 29–31, 36, 38, 39, 41–43, and 47–50 are unpatentable as obvious over
Nissan and Hitachi. Valeo North America, Inc., et al. v. Magna Electronics,
Inc. (PTAB May 28, 2015) (Paper 58). On July 30, 2015, Patent Owner
filed a notice of appeal. Id. at Paper 59.

6 The hearing was held with the hearing for IPR2014-01204.
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C. THE ’522 PATENT
The ’522 patent relates generally to vision or imaging systems for
vehicles and, more particularly, to imaging systems that are operable to
determine if a vehicle or object of interest is adjacent to, forward of, or
rearward of the subject vehicle to assist the driver in changing lanes or
parking the vehicle. Ex. 1001, col. 1, ll. 18–23. The prior art included many
lane change aid/side object detection/lane departure warning devices or
systems, and the like, that are operable to detect a vehicle, or other object,
that is present next to, ahead of, or rearward of the equipped vehicle or in a
lane adjacent to the equipped vehicle. Id. at col. 1, ll. 29–33. Such known
systems statistically analyze all of the pixels in a pixelated image. Id. at col.
1, ll. 48–51. However, because such systems continuously analyze every
pixel for every frame captured, they require expensive processing controls
and computationally expensive software to continuously handle and process
substantially all of the data. Id. at col. 1, ll. 60–67. In addition, prior art
warning systems may result in a warning for many intended maneuvers. Id.
at col. 2, ll. 19–24. As a result, the driver may begin to ignore the warnings.
Id. at col. 2, ll. 25–27.
To address these issues, the ’522 patent discloses an object detection
system operable to detect and/or identify a vehicle or other object of interest
at the side, front, or rear of the vehicle equipped with the object detection
system. Id. at ll. 35–44. The system uses an edge detection algorithm to
detect edges of objects in the captured images. Id. at ll. 44–51. The system
processes a subset of image data that is representative of a target zone or
area of interest within the field of view where a vehicle or object is likely to
be present. Id. at ll. 51–55. The system processes the detected edges within
the subset of image data to determine whether they are part of a vehicle. Id.
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at ll. 55–59. The system utilizes various filtering mechanisms to
substantially eliminate or substantially ignore edges or pixels that are not or
cannot be indicative of a vehicle or significant object to reduce the
processing requirements and to reduce the possibility of false positive
signals. Id. at ll. 60–65.
Figure 1 is reproduced below.

Figure 1 depicts an overhead view of a vehicle incorporating the object
detection system of the present invention. Id. at col. 4, ll. 7–8. Lane change
assist or aid system 10 is positioned at vehicle 12 (such as at exterior
rearview mirror 12a) and is operable to capture an image of a scene
occurring sidewardly and rearwardly at or along one or both sides of vehicle
12. Id. at ll. 47–51. Lane change assist system 10 comprises image capture
device or sensor or camera 14, which captures an image of the scene
occurring toward a respective side of the vehicle 12, and control 16, which
processes the captured image to determine whether another vehicle 18 is
present at the side of vehicle 12. Id. at ll. 51–57. Control 16 may be further
operable to activate a warning indicator or display or signal device to alert
the driver of vehicle 12 that another vehicle is present at the side of vehicle
12. Id. at ll. 57–60.
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Figure 2 is reproduced below.

Figure 2 is a representation of a captured image of a side area of a vehicle, as
captured by an imaging sensor. Id. at col. 4, ll. 9–11. In order to verify that
the camera or imaging sensor is mounted at the vehicle (such as at an
exterior portion of the vehicle) within a desired tolerance limit so as to
provide the desired field of view, the camera may detect the side of vehicle
(30) and/or front door handle (32a) or rear door handle (32b) of the vehicle,
and the control may confirm that they are in the expected location in the
captured images. Id. at col. 6, ll. 11–19. If the control determines that the
camera is not aligned or aimed at the desired location (such as by
determining that the vehicle edge and/or door handle/handles are not at the
expected location), the control may adjust the image and/or image
processing to account for any such misalignment of the camera. Id. at ll. 19–
24. For example, the degree of misalignment may be calculated, and the
image processing may be adjusted or shifted and/or rotated to position the
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reference structure at the appropriate location in the captured images. Id. at
ll. 24–28.
Figures 3A–C are reproduced below:

Figures 3A–C are schematics of the captured image of Figure 2, showing
adjustments that may be made to the image processing to account for
misalignment of the image sensor. Id. at col. 4, ll. 12–14. As shown in
Figures 3A–C, the actual or detected vehicle edges may be misaligned or
separated from the expected vehicle edges, such that the image processing
may be adjusted to shift the captured image data accordingly to
accommodate such misalignment of the camera. Id. at col. 6, ll. 42–47.
Based on the results of the image processing techniques, data or information
of the yaw, pitch, and roll may be used to set the polygon coordinates and H
depression pixel calibration parameters, so that the expected vehicle edges
are substantially aligned with the actual or detected vehicle edges. Id. at ll.
47–52.

II. THE CHALLENGED CLAIMS
A. ILLUSTRATIVE CLAIMS
Independent Claim 1 (not challenged) and its dependent claim 2 are
illustrative and are reproduced below:
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1. An imaging system for a vehicle, said imaging system
comprising:
an imaging array sensor comprising a plurality of photo-
sensing pixels, wherein said imaging array sensor is disposed at
an exterior rearview mirror assembly at a side of a vehicle
equipped with said imaging system;
wherein, when said imaging array sensor is disposed at
the exterior rearview mirror assembly, said imaging array
sensor has a field of view exterior of the equipped vehicle, and
wherein said imaging array sensor is operable to capture an
image exterior of the equipped vehicle;
a control for processing said captured image;
wherein said control is operable to determine that said
imaging array sensor is misaligned when said imaging array
sensor is disposed at the exterior rearview mirror assembly at
the side of the equipped vehicle; and
wherein said control, responsive to a determination of
misalignment of said imaging array sensor, is operable to at
least partially compensate for the determined misalignment of
said imaging array sensor.

2. The imaging system of claim 1, wherein said imaging array
sensor is disposed at least partially within the exterior rearview
mirror assembly at the side of the equipped vehicle.

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B. CLAIM CONSTRUCTION
In the Decision to Institute we did not explicitly construe any claim
term. Dec. 10. Neither party provides explicit claim constructions. All
claim terms are given the broadest reasonable construction. See 37 C.F.R.
§ 42.100(b); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed.
Cir. 2015). Our analysis necessitates construction of certain terms in claims
19 and 24, and our construction is discussed in the patentability analysis
below.

III. MOTION TO EXCLUDE
A. INTRODUCTION
As mentioned above, Patent Owner filed a Motion to Exclude certain
exhibits. Paper 35 (“Mot.”). Petitioner filed an Opposition to the Motion
(Paper 43, “Opp.”), and Patent Owner filed a Reply to the Opposition (Paper
45, “Opp. Reply”).7 For the following reasons, Patent Owner’s motion is
denied.8

7 Petitioner’s Opposition to Patent Owner’s Motion to Exclude (Paper 39)
was expunged as late and was subsequently re-filed. See Paper 40
(expunging Paper 39); Paper 42 (permitting re-filing).
8 As detailed below, we expunge Exhibit 1033 as Patent Owner requests;
however, because we expunge rather than exclude this evidence, we do not
consider the Motion to Exclude to be granted in part.
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B. PROCEDURE9
Patent Owner’s Motion to Exclude Evidence addresses the following
exhibits:
Title Exhibit
Number
Broggi Ex. 1006
First Frahm Declaration Ex. 1010
First Grenier Declaration10 Ex. 1024
Second Grenier Declaration11 Ex. 1028
Butler Declaration Ex. 1029
Second Frahm Declaration Ex. 1034
Broggi Declaration Ex. 1033
Before addressing the admissibility of each exhibit, we detail the four
sets of objections involved as well as a related Motion to Submit
Supplemental Information. The exhibits at issue were submitted with
papers, as supplemental evidence, and as supplemental information as
detailed below.
1. First Set of Objections
The Decision to Institute was entered on December 23, 2014, and
Patent Owner’s first set of objections was timely served on January 8, 2015.
See Dec. 1; Ex. 2018, 6. Patent Owner objected to Exhibit 1006 and to
paragraph 115 of the first Frahm Declaration (Ex. 1010). See Ex. 2018, 1,

9 Prior to May 19, 2015, objections were required to be served, and after
this date objections are required to be filed. See Amendments to the Rules of
Practice for Trial Before the Patent Trial and Appeal Board, 80 Fed. Reg.
28,561–28566 (May 19, 2015); 37 C.F.R. § 42.64.
10 Dated June 30, 2014.
11 Dated July 25, 2014.
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4–5. Each of these exhibits was submitted with the Petition. Original
Exhibit 1006 included both “Broggi”12 and the first Grenier Declaration.
In response, Petitioner timely served as supplemental evidence the
Butler Declaration and the second Grenier Declaration.13 See Ex. 1035, 3.
Subsequently, Petitioner filed Broggi as corrected Exhibit 1006, and
filed the first Grenier Declaration as Exhibit 1024.14 See Paper 15 (order
permitting re-filing), Paper 16 (Petitioner’s notice).
Consequently, Patent Owner’s first set of objections covers: Broggi
(corrected Ex. 100615), the first Frahm Declaration (Ex.1010), and the first
Grenier Declaration (Ex. 1024).
2. Second Set of Objections
On January 27, 2015, Patent Owner objected to the second Grenier
Declaration and the Butler Declaration. See Ex. 2019; Mot. 1–2. At this
time, these Declarations were supplemental evidence, not evidence. Our
rules permit objection to evidence, but not to supplemental evidence. See 37
C.F.R. § 42.64. Consequently, Patent Owner did not make an effective
objection to the second Grenier Declaration or the Butler Declaration.

12 By “Broggi” we mean the article titled Multi-Resolution Vehicle
Detection Using Artificial Vision identified above.
13 Petitioner’s response to Patent Owner’s objections refers to the
Declaration of Mr. Butler and the Declaration of Mr. Grenier as Exhibits
1024 and 1025, respectively. See Ex. 1035, 3. However, at that point the
Declarations were served, but not filed. As will be explained later, these
Declarations eventually became Exhibits 1029 and 1028, respectively. See
e.g., Mot. 1.
14 The file contains both the original (filed July 25, 2014) and corrected
version (filed Feb. 2, 2015) of Exhibit 1006.
15 From this point forward, reference to Exhibit 1006 means the corrected
version unless stated otherwise.
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In response, Petitioner took three actions.
a) Served Documents
Petitioner served a response to Patent Owner’s objections which
included documents labeled as Exhibits 1030–1033.16 See Ex. 1036, 2
(Petitioner’s response); Ex. 2015 (e-mail from Petitioner to Patent Owner
serving supplemental evidence). These documents were intended to be
supplemental evidence; however, because Patent Owner’s objections were
not effective, these documents are not supplemental evidence.
b) Filed Broggi Declaration
After serving the Broggi Declaration as described above, Petitioner
also filed it as Exhibit 1033. See Paper 20 (Petitioner’s notice of filing Ex.
1033). This Declaration was not filed with one of Petitioner’s papers. 37
C.F.R. § 42.6(c) (requiring that exhibits be filed with the first document in
which it is cited). Consequently, although the Broggi Declaration was filed,
it is not evidence.
c) Sought to File Supplemental Information
Petitioner also filed a Motion to File Supplemental Information under
37 C.F.R. § 123(a)(1), seeking to file Exhibits 1028–1032. Paper 18. Patent
Owner filed an opposition and Petitioner filed a reply. Papers 21, 22,
respectively.

16 At this time, despite being labeled as exhibits, these documents were
served, but not filed. The documents were filed as explained in the
following two paragraphs. The Broggi Declaration was one of these
documents.
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(1) Exhibits 1028 and 1029
We granted Petitioner’s motion to submit supplemental information
with regard to the second Grenier Declaration (Ex. 1028) and the Butler
Declaration (Ex. 1029).17 Paper 23, 4–6.
(2) Exhibits 1030–1032
We expunged Exhibits 1030–1032 because these exhibits were not
authorized to be submitted with the Motion to Submit Supplemental
Information. Id. at 2–3.18
3. Third Set of Objections
Patent Owner objected to Exhibits 1030–1032. See Ex. 2020. As
Patent Owner recognizes, this set of objections is no longer relevant because
we expunged Exhibits 1030–1032. See Mot. 2.
4. Fourth Set of Objections
Patent Owner timely objected to paragraphs 3 and 4 of the second
Frahm Declaration (Ex. 1034).19 See Paper 34. Petitioner did not submit

17 At this point these Declarations became evidence.
18 Our Decision also addressed the Broggi Declaration (Ex. 1033), but
explicitly took “no action” with regard to it. Id. at 3. As guidance to the
parties, and not as a determination of any kind, we stated that “supplemental
evidence, as opposed to supplemental information, may be relied on only to
support the admissibility of evidence, and not to support any argument on
the merits.” Id. (citing a sample Board case for guidance). It remains true
that supplemental evidence may be relied upon to support admissibility
arguments but not arguments on the merits. As explained above, though,
Exhibit 1033 is not supplemental evidence because the objection to which it
was served in response was not proper.
19 The second Frahm Declaration was filed with Petitioner’s Reply on July
23, 2015, and the fourth set of objections was filed on July 30, 2015. See
Papers 33, 34. Patent Owner objected to other evidence as well, but that

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supplemental evidence in response to this set of objections. See Mot. 2; see
generally Opp. (making no mention of any evidence served in response to
these objections).
5. Summary
In the first and fourth sets of objections, Patent Owner effectively
objected to: Broggi (corrected Ex. 1006), the first Frahm Declaration
(Ex.1010), the first Grenier Declaration (Ex. 1024), and paragraphs 3 and 4
of the second Frahm Declaration (Ex. 1034).
Patent Owner’s second set of objections, regarding what became the
second Grenier Declaration (Ex. 1028) and the Butler Declaration (Ex.
1029), was not effective because, at the time Patent Owner objected, those
documents were supplemental evidence, not evidence, and our rules provide
for objections only to evidence. Because Patent Owner did not timely object
to these Declarations after they became evidence,20 Patent Owner did not
preserve its right to move to exclude these Declarations. We, therefore, deny
Patent Owner’s Motion to Exclude as to these Declarations.
Finally, with respect to Patent Owner’s third set of objections, it is no
longer relevant as explained above.

C. ANALYSIS
Patent Owner preserved the first and fourth sets of objections by filing
its Motion to Exclude Exhibits 1006, 1010, 1024 and 1034. See Mot. 1–2;
37 C.F.R. § 42.64(c). With the exceptions noted below, Patent Owner’s

other evidence is not the subject of this Motion to Exclude and need not be
addressed here.
20 These documents became evidence on March 18, 2015. Paper 23.
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motion identifies and explains the objections. Mot. 1–13; 37 C.F.R.
§ 42.64(c). Patent Owner seeks to expunge (vice exclude) the Broggi
Declaration (Ex. 1033) because it was not timely served in response to
Patent Owner’s first set of objections. See id. at 12; Opp. Reply 1–2.; Ex.
1036, 2; Ex. 2015; 37 C.F.R. § 42.64(b)(2). As the moving party, Patent
Owner bears the burden of proof. See 37 C.F.R. § 42.20(c). We address first
Exhibit 1033 and then the remaining exhibits in reverse chronological order
of their filing.
1. Broggi Declaration (Ex. 1033)
As explained above, the Broggi Declaration is not supplemental
evidence because the objection to which it was served in response was not
proper. Because the Broggi Declaration is not evidence, supplemental
evidence, or supplemental information, we expunge it.
2. Second Frahm Declaration (Ex. 1034)
As explained above, the second Frahm Declaration was submitted
with Petitioner’s Reply, and was effectively objected to in Patent Owner’s
fourth set of objections.
a) Admissibility
Patent Owner seeks to exclude paragraphs 3 and 4 of the second
Frahm Declaration. Mot. 11. Specifically, Petitioner contends that these
paragraphs are irrelevant under Federal Rule of Evidence (FRE) 402 because
Dr. Frahm did not attend the June 2004 symposium.21 Id.; Opp. Reply 5; see
also Paper 34 (Patent Owner’s fourth set of objections based in part on FRE
402).

21 Here, and throughout, we take this as an assertion that the evidence at
issue is not relevant as defined by FRE 401 and are therefore is inadmissible
under FRE 402.
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The premise of Patent Owner’s argument is that evidence that is not
based on personal knowledge is not relevant. Personal knowledge is not a
necessary condition of relevance. Rather, evidence is relevant if it has any
tendency to make a fact more or less probable than it would be without the
evidence and the fact is of consequence in determining this case. See FRE
401 (emphasis added).
Further, Patent Owner contends that Dr. Frahm’s testimony is not
based on personal knowledge in that he did not attend the symposium in
question. However, Dr. Frahm’s testimony does not allege attendance at the
symposium. In the paragraphs at issue, Dr. Frahm testifies that he has:
regularly attended Institute of Electrical and Electronics Engineers (IEEE)
conferences, chaired a conference having IEEE published proceedings, and
observed IEEE publication practices. Ex. 1034 ¶ 3; see also Ex. 1024 ¶ 1
(IEEE abbreviation). Dr. Frahm’s observation is that IEEE’s practice is that
the date of the conference is the publication date of the article or paper
involved. Id. In light of this, Dr. Frahm concludes that Broggi was
published and publically accessible at the June 2004 Symposium as is
indicated on the face of the document. Ex. 1034. ¶ 4; Ex. 1006. In light of
this, Patent Owner’s contention that Dr. Frahm’s testimony should be
excluded because it lacks personal knowledge is not persuasive.
The second Frahm Declaration is relevant in that it makes publication
of Broggi (Ex. 1006) at the Symposium, a fact of consequence in this
proceeding, more probable than without this evidence.
Consequently, Patent Owner has not persuaded us that paragraphs 3
and 4 of the second Frahm Declaration are inadmissible under FRE 402.
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b) Limitation on Use
Although we do not exclude the second Frahm Declaration, for the
reasons that follow, it may not be considered with regard to the admissibility
of Broggi (Ex. 1006).
Patent Owner’s first set of objections objected to Broggi (Ex. 1006),
and that was Petitioner’s opportunity to submit evidence in support of the
admissibility of Broggi. Petitioner’s Reply may respond only to arguments
raised in Patent Owner’s Response. 37 C.F.R. § 42.23(a). Patent Owner’s
Response may not properly argue the admissibility of Broggi (Ex. 1006)
because such an argument may be raised only in a motion to exclude. See
37 C.F.R. § 42.64. For that reason, arguments and evidence supporting the
admissibility of Broggi (Ex. 1006) are not proper in Petitioner’s Reply.
Despite this, paragraphs 3 and 4 of the second Frahm Declaration
properly respond to the argument in Patent Owner’s Response regarding the
sufficiency of proof that Broggi is prior art under 35 U.S.C. § 102(a).
Whether Broggi is a “printed publication” is a separate issue from its
admissibility under the Federal Rules of Evidence. See Opp. 10–11; PO
Resp. 14.
c) Conclusion
Accordingly, we deny Patent Owner’s Motion to Exclude paragraphs
3 and 4 of the second Declaration of Dr. Frahm (Ex. 1034).
We consider the Declaration of Dr. Frahm regarding the determination
of whether Broggi is prior art under 35 U.S.C. § 102(a), but not regarding
the determination of whether Broggi (Ex. 1006) should be excluded.
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3. First Grenier Declaration (Ex. 1024)
As explained above, the first Grenier Declaration was submitted with
the Petition, and was effectively objected to in Patent Owner’s first set of
objections.
Patent Owner contends that the first Grenier Declaration is irrelevant
under Federal Rule of Evidence (“FRE”) 401, and is inadmissible hearsay
under FRE 802. Mot. 6–7; Opp. Reply 4–5; see also Ex. 2016, 4–5
(objecting based on FREs 401 and 802).
a) Relevance
Patent Owner contends that the first Grenier Declaration provides “no
evidence of publication whatsoever.” Mot. 6. Rather, according to Patent
Owner, presentation at the June 2004 symposium is not a publication and
likewise, registration with the U.S. Copyright Office is not a publication. Id.
Similarly, Patent Owner contends that the Declaration only provides that:
“(1) Broggi was published in ‘Intelligent Vehicles Symposium, 2004 IEEE’;
and (2) the date of the conference was 14-17 June 2004.” Opp. Reply at 4.
The premise of Patent Owner’s argument is that evidence must
establish a fact sufficiently in order to be relevant. Such argument is not
proper in a motion to exclude, which is for challenging the admissibility of
evidence, not for challenging its sufficiency. See Office Patent Trial Practice
Guide, 77 Fed. Reg. 48,756, 48,767 (August 14, 2012) (stating that a motion
to exclude may not be used to challenge the sufficiency of the evidence to
prove a particular fact).
Further, we disagree with Patent Owner’s characterization that the
Declaration provides “no evidence whatsoever” of publication. See Mot. 6.
To the contrary, for example, Mr. Grenier states that “[c]opies of the
conference proceedings were made available to attendees of the conference.”
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Ex. 1024 ¶ 6. This evidence is relevant in that it tends to make publication
of Broggi at the conference more probable than if this evidence was not
considered.
Patent Owner has not persuaded us that the first Greneier Declaration
is inadmissible under FRE 402.
b) Hearsay
Patent Owner contends that the first Grenier Declaration fails to
establish a publication date based on the IEEE records. Mot. 6–7. This
argument, like the prior argument, is unpersuasive because it is directed to
the sufficiency of the evidence rather than to its admissibility. Further,
contrary to Patent Owner’s contention, the records attached to the first
Grenier Declaration indicate that the article titled “Multi-resolution vehicle
detection using artificial vision” by Broggi, et al. was:

Ex. 1024, 3.
Patent Owner has not persuaded us that the first Grenier Declaration is
inadmissible under FRE 802.
c) Conclusion
Accordingly, we deny Patent Owner’s Motion to Exclude the first
Grenier Declaration (Ex. 1024).
We consider the first Grenier Declaration on the merits and with
regard to the admissibility of Broggi (Ex. 1006).
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4. First Frahm Declaration (Ex. 1010)
As explained above, the first Frahm Declaration was submitted with
the Petition.
Patent Owner argues that paragraph 115 of the first Frahm Declaration
is irrelevant under FRE 402 and should be excluded. Mot. 5; Opp. Reply 3–
4; see also Ex. 2018, 3–4 (objecting based on FRE 402).22 Specifically,
Patent Owner asserts that this paragraph is irrelevant because Dr. Frahm did
not attend the symposium and therefore cannot know that an actual
publication took place. Id.; Opp. Reply 3–4.
The paragraph at issue follows:
115. Broggi (Pet. Ex. 1006) is a publication that dates back to
June 14-17, 2004 and was presented at the 2004 IEEE
Intelligent Vehicles Symposium. I understand that Broggi is
prior art to the ’522 patent at least under § 102(a) because it
published within one year before the earliest filing date of the
’522 patent.
Ex. 1010 ¶ 115. Our analysis here parallels that of the second Frahm
Declaration above.
Specifically, we agree with Petitioner that Dr. Frahm need not have
personal knowledge in order for this evidence to be relevant.23 Opp. 5–6.
Personal knowledge is not a necessary condition of relevance. The proper
inquiry is whether the evidence has any tendency to make a fact more or less

22 Patent Owner also objected under FRE 901, but did not preserve that
objection by including it in the Motion to Exclude. See Ex. 2016, 3–4; 37
C.F.R. § 42.64(c).
23 Petitioner’s citation to EMC Corp., et al. v. PersonalWeb Tech., LLC,
IPR2013-00082, slip op. at 60 (P.T.A.B., May 15, 2014) (Paper 83) is not
helpful to our determination here because there the Board dealt with
authentication while here we deal with relevance. See Opp. Reply 3–4
(pointing out this distinction).
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probable than it would be without the evidence and the fact is of
consequence in determining this case. See FRE 401.
Further, Patent Owner contends that Dr. Frahm’s testimony is not
based on personal knowledge in that he did not attend the symposium in
question. However, Dr. Frahm’s testimony does not allege attendance at the
symposium.
Dr. Frahm’s statement that Broggi was presented at the June 2014
conference tends to make it more probable that Broggi was presented at the
conference. This is true even though Dr. Frahm was not in attendance at the
symposium.
Patent Owner has not persuaded us that the first Frahm Declaration is
inadmissible under FRE 402. Accordingly, we deny Patent Owner’s Motion
to Exclude paragraph 115 of the first Declaration of Dr. Frahm (Ex. 1010).
We consider paragraph 115 of the first Frahm Declaration on the
merits and with regard to the admissibility of Broggi (Ex. 1006).
5. Broggi (Ex. 1006)
As explained above, Broggi (Ex. 1006) was submitted with the
Petition.
Patent Owner contends that Broggi is irrelevant under Federal Rule of
Evidence (“FRE”) 402, and not authenticated under FRE 901. Mot. 3; Opp.
Reply 2–3; Ex. 2018 (objecting under FREs 402 and 901).
a) Relevance
Regarding relevance, Petitioner contends that Petitioner has failed to
establish that Broggi was published or made publically accessible prior to
the December 23, 2004, priority date of the ’522 patent. Mot. 3. Patent
Owner elaborates that because Broggi has not been shown to be prior art, it
is not relevant to the proceeding. Id. at 4. According to Patent Owner,
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consideration of Broggi would severely prejudice Patent Owner. Id.; Opp.
Reply 2.
As an initial matter, Patent Owner’s contention that consideration of
Broggi would “severely prejudice” Patent Owner, implies that Broggi should
be excluded under FRE 403. To the extent that Patent Owner is making such
an assertion, it is unpersuasive. Patent Owner did not object to Broggi based
on FRE 403, and consequently cannot properly make a motion on that basis.
See Ex. 2018, 2–3. Further, Patent Owner does not explain cogently how the
probative value of Broggi is outweighed by one of the enumerated dangers
of FRE 403.
Here, as with other exhibits, Patent Owner’s argument is unpersuasive
in that it challenges the sufficiency of the evidence rather than the
admissibility.
Turning to the exhibit in question, the upper left hand corner of the
first page states: “2004 IEEE Intelligent Vehicles Symposium, University of
Parma, Parma, Italy, June 14–17, 2004,” and the lower left hand corner
indicates “© 2004 IEEE.” Ex. 1006, 1.
Broggi tends to make Petitioner’s contention that Broggi is prior art
more probably than it would be without this evidence. See Pet. 8.
Pattent Owner has not persuaded us that Broggi is inadmissible under
FRE 402.
b) Authentication
Patent Owner’s objection regarding authentication follows:
Magna further objects to the totality of Exhibit 1006 under FRE
901. This exhibit is referred to by Valeo as “Broggi,” but
includes the attached Declaration of Gerard P. Grenier which is
not part of the Broggi article. Valeo’s exhibit list does not
address this issue, and confuses the record by implying that the
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Grenier Declaration is somehow part and parcel of Broggi,
when it is demonstrably not.
Ex. 2018, 3.
Patent Owner objects to the Broggi article and the first Grenier
Declaration being filed as a single exhibit. As explained above, this
objection has been resolved because corrected Exhibit 1006 does not include
the first Grenier Declaration (now Exhibit 1024).
In the Motion to Exclude Evidence, Patent Owner asserts that Broggi
(Ex. 1006) is not properly authenticated under FRE 901 because Dr. Frahm’s
statement is insufficient to authenticate Broggi. Mot. 4–5. Patent Owner did
not object to Broggi (Ex. 1006) on this basis, and therefore we do not
consider such an argument in Patent Owner’s Motion to Exclude Evidence.
c) Other Exhibits
As stated above, the first and second Frahm Declarations (Exs. 1010,
1034) and the first Grenier Declaration (Ex. 1024) may be considered
regarding the admissibility of Broggi (Ex. 1006). To the extent that Patent
Owner challenges the authenticity of Broggi (Ex. 1006), each of these
exhibits contains information consistent with Broggi, and consequently these
exhibits tend to show that Broggi is what Petitioner contends it to be. See
Ex. 1010 ¶ 115; Ex. 1034 ¶¶ 3, 4; Ex. 1024 ¶¶ 1–9, page 3.
d) Conclusion
Accordingly, we deny Patent Owner’s Motion to Exclude Broggi (Ex.
1006).

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IV. PRELIMINARY ISSUES
A. BROGGI (EX. 1006) AS PRIOR ART
1. Introduction
In an inter partes review, a ground of unpatentability cannot be based
upon a public use or a sale; rather, the ground must be based upon prior art
in the form of a patent or a printed publication. 35 U.S.C. § 311(b);
35 U.S.C. § 102. The determination of whether a particular reference
qualifies as a prior art printed publication “involves a case-by-case inquiry
into the facts and circumstances surrounding the reference’s disclosure to
members of the public.” In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir.
2004). Neither distribution nor indexing is a necessary condition for being a
“printed publication;” rather, the key inquiry is whether or not a reference
has been made “publically accessible.” Id. at 1348.
The parties do not dispute that the critical date of the ’522 patent is
December 23, 2004. Ex. 1001, 1.
2. Petitioner’s Evidence
Petitioner argues that Broggi is prior art under 35 U.S.C. § 102(a)
because it was published at the IEEE Intelligent Vehicles Symposium at the
University of Parma, in Parma Italy, on June 14–17, 2004. Pet. 8; Ex. 1006.
As explained above, Broggi (Ex. 1006) is an article24 by Alberto
Broggi et al., titled “Multi-Resolution Vehicle Detection using Artificial
Vision.” Ex. 1006, 1. The top of the first page of the Article includes the
following information:

24 We sometimes refer to Broggi (Ex. 1006) as “the Article.”
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2004 IEEE Intelligent Vehicles Symposium
University of Parma
Parma, Italy June 14–17, 2004
Ex. 1006, 1. This information suggests that the Article was available at the
Symposium.
The first page of Broggi includes the annotation “© 2004 IEEE.” We
acknowledge that a copyright date alone is not sufficient to establish public
accessibility. See In re Lister, 583 F.3d 1307. We also acknowledge that this
copyright was not registered until January 4, 2005, after the critical date of
the ’522 patent. See Ex. 1028 ¶ 9b. Despite this, the copyright date of 2004
is consistent with the contention that Broggi was presented at the
Symposium.
Notably, Broggi is not marked with any limitations regarding
dissemination.
In his first Declaration, Dr. Frahm states, “Broggi (Pet. Ex. 1006) is a
publication that dates back to June 14-17, 2004 and was presented at the
2004 IEEE Intelligent Vehicles Symposium.” Ex. 1010 ¶ 115.
Dr. Frahm elaborates in his second Declaration, stating:
3. As a person who regularly reviews scholarly articles,
including IEEE publications such as the Broggi article, and as
someone who regularly attends IEEE conferences, I believe that
Broggi published when the document indicates on its face that
it was published (i.e., in June 14-17, 2004). Having chaired a
conference with IEEE published proceedings, I have firsthand
knowledge of IEEE’s general publication practices. Further, all
IEEE conferences that I have attended, the papers presented
were made publicly available at the conference. The common
practice of IEEE is that the date of the conference is the
publication date of the articles/papers presented. Dr. Turk has
failed to provide any evidence that this is not the case in the
instant proceeding, where the Broggi article was presented at an
IEEE symposium on June 14-17, 2004. I have organized IEEE
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based proceedings, and as a general practice, IEEE sets
deadlines for the specific purpose of making articles publicly
available at the time of the conference.
Ex. 1034 ¶ 3.
In light of this, Dr. Frahm’s opinion that IEEE articles, such as Broggi,
are published as indicated on the face of the article is supported by an
underlying factual basis. See Pet. Resp. 4–5; Ex. 1034 ¶ 3.
In his second Declaration, Mr. Grenier states that he is the Senior
Director of Publishing Technologies for IEEE. Ex. 1024 ¶ 1. Mr. Grenier,
as a neutral and uncompensated third party, confirms certain information
regarding Broggi. Id. ¶¶ 2, 4–5. In particular, Mr. Grenier provides the
following information:
6. The Article was published by IEEE as part of the conference
proceedings on the date of the conference. Copies of the
conference proceedings were made available to attendees of the
conference. The Article is currently available for public
download from the IEEE digital library, IEEE Xplore
(www.ieeexplore.ieee.org).
9. IEEE's records confirm the following:
a) "Multi-Resolution Vehicle Detection using Artificial Vision"
was published and presented at the 2004 IEEE Intelligent
Vehicles Symposium which occurred June 14–17, 2004.
Ex. 1028 ¶¶ 6, 9 (emphasis added).25
Attached to the second Grenier Declaration are true and correct copies
of the Article, and an Abstract of the Article. Ex. 1028, ¶¶ 3, 4–8
(respectively). The attached Article is the same as Exhibit 1006. As noted
above, the Abstract includes the following annotations

25 Portions of the second Grenier Declaration not included in the first
Grenier Declaration are underlined. Cf. Ex. 1024 to Ex. 1028.
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Id. at 3.
Mr. Butler explains that he is the Office Manager of the Internet
Archive. Ex. 1029 ¶ 1. Mr. Butler explains that the Internet Archive’s
“Wayback Machine” archives files by URL (website address) at various
dates, and visitors may recall these archived files by available dates. Id. ¶ 3.
If visitors click on a link on an archived page, the Wayback Machine will
serve the archived file with the closest available date to the page upon which
the link appeared and was clicked. Id.
Attached to the Butler Declaration26 is a download of the website
“http://www.ce.unipr.it/people/broggi/publications/” archived on April 10,
2004.27 No entry corresponding to the Broggi Article was available at that
time. A download of the same website archived on October 12, 2004,
includes the following entry:

See Ex. 1029, 16 (Broggi annotation is the first entry), 16–28 (entire
download). This abstract shows an article title, authors, Symposium name,

26 Mr. Butler certifies that the attached printouts are true and accurate copies
of Internet Archive records. Ex. 1029 ¶ 6.
27 See Ex. 1029 ¶ 5 (explaining download date format and that the URL
footer is the web page downloaded from), 3–15 (copy of downloaded
information).
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page numbers, date, and location all consistent with Broggi (Ex. 1006). Id.
at 16.
The Butler Declaration and attached records indicate that the Broggi
Article referenced was posted to a public website between April 10, 2004,
and October 12, 2004, and may be accessed by selecting the link at the
bottom of the entry. Id.
3. Patent Owner Arguments
Patent Owner argues that Petitioner has failed to satisfy its burden that
Broggi is prior art. PO Resp. 11–20. In support of this argument, Patent
Owner cites a case for the proposition that a party seeking to invalidate a
patent must do so by clear and convincing evidence. PO Resp. 12–13 (citing
Norian Corp. v. Stryker Corp., 363 F.3d 1321, 1326 (Fed. Cir. 2004)). In an
inter partes review a Petitioner must prove unpatentability by a
preponderance of the evidence, not by clear and convincing evidence. See
35 U.S.C. §316(e).
We further analyze Patent Owner’s arguments by exhibit.
a) Broggi (Ex. 1006)
Patent Owner contends that Broggi provides “no definitive evidence
to support that the paper was published at or prior to the conference.” PO
Resp. 13 (Citing the Turk Declaration (Ex. 2016) ¶¶ 30–31). Dr. Turk
echoes this contention. Ex. 2016 ¶¶ 30–31. Dr. Turk elaborates that
academic conferences sometimes provide the manuscripts of presented
papers months after the actual conference dates, or sometimes drafts are
made available with an indication that the finished paper will be provided in
the future. Id. ¶ 31.
At best, Patent Owner’s argument presents no contradictory evidence
and makes the conclusory assertion that the information on the first page of
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Broggi is not definitive. Patent Owner argues as if Broggi (Ex. 1006) itself
must definitively establish that it is prior art as a printed publication. Such is
not the case. Petitioner relies upon other evidence as well, and Patent
Owner’s contention here does not address the evidence as a whole. Further,
Dr. Turk mentions that there are possibilities other than publication at the
conference, such as, subsequent publication or publication of a draft, but
Dr. Turk does not provide the facts or data underlying that opinion. See 42
C.F.R. § 42.65(a). For example, Dr. Turk does not state that he frequently
attends such conferences or has otherwise obtained experience or knowledge
supporting his assertion.
b) First and Second Frahm Declarations (Exs. 1010, 1034)
To a degree, Patent Owner argues admissibility rather than addressing
the sufficiency of the evidence. See, e.g., PO Resp. 14 (contending that
Petitioner “attempts to authenticate” Broggi’s publication, and that
Dr. Frahm lacks personal knowledge). As explained above, admissibility is
properly challenged in a Motion to Exclude Evidence and the Patent
Owner’s response is the proper vehicle to challenge the sufficiency of
evidence.
Although the first Frahm Declaration does not establish the basis of
Dr. Frahm’s opinion that Broggi was published as Petitioner contends,
Dr. Frahm’s second Declaration does so. See Ex. 1010 ¶ 115; Ex. 1034
¶¶ 3–4. Specifically, as explained above, Dr. Frahm’s second Declaration
establishes that Dr. Frahm has personal knowledge of IEEE publication
procedures. Based upon this knowledge, Dr. Frahm opines that Broggi was
published as indicated.
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c) First and Second Grenier Declarations (Exs. 1024, 1028)
Regarding the first Grenier Declaration, Patent Owner contends that it
does not provide “any evidence” that the Article was published as Petitioner
contends. PO Resp. 15–16. Patent Owner highlights that Mr. Grenier did
not attend the Symposium and therefore did not personally observe such
things as: how many people attended, the qualifications of attendees,
whether the Article was available, or when it was first available for public
download. Id. (citing various portions of the Deposition of Mr. Grenier at
Ex. 2017). Patent Owner adds that “presentation’ is not synonymous with
“publication” and that the first Grenier Declaration does not provide
evidence of “publication.”28 PO Resp. 15 (citing Ex. 2017, 11:17–19).
Regarding the second Grenier Declaration, Patent Owner contends
that the second Grenier Declaration does not remedy the shortcomings of the
first, similarly stating that the attached printout provides “no evidence
whatsoever.” PO Resp. 17. Patent Owner adds that Mr. Grenier’s statement
is “unsupported by any IEEE record,” and has “no tendency” to make the
publication date of Broggi more probably. Id. at 17–18.
Patent Owner’s arguments are not persuasive for several reasons.
First, Patent Owner again argues admissibility rather than addressing the
sufficiency of the evidence. See, e.g., PO Resp. 17–18 (arguing that
Mr. Grenier’s statement is “unsupported by any IEEE record,” (suggestive of
hearsay) and has “no tendency” to make the publication date of Broggi more
probably (suggestive of relevance)). Second, Patent Owner’s

28 Patent Owner also argues that the copyright registration date of January 4,
2005, is after the critical date of the ’522 patent. Id. at 16. Petitioner does
not rely upon the copyright registration as proof of public accessibility, and
for that reason this argument is inapposite. See Pet. 8.
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characterization of the Declarations as not providing “any evidence” and “no
evidence whatsoever” are contradicted by our analysis above that the
Declarations are relevant. See id. at 15–17. Such an extreme
characterization is both inaccurate and does persuasively address the merits
of the evidence.
Third, Patent Owner’s assertion that Mr. Grenier’s Declarations are
not based on personal observation are not persuasive because Mr. Grenier
does not profess to have knowledge based on personal attendance at the
Symposium. Rather, Mr. Grenier provides information as an IEEE
representative familiar with IEEE records. See Ex. 1024 ¶¶ 1–2; Ex. 1028
¶¶ 1–2. Mr. Grenier’s lack of personal attendance at the Symposium does
not cast any doubt on the veracity of Mr. Grenier’s Declarations.
Fourth, Patent Owner’s contention that presentation is not
synonymous with publication and that the first Grenier Declaration does not
provide evidence of publication is unpersuasive. PO Resp. 15 (citing Ex.
2017, 11:17–19). The cited portion of the Deposition of Mr. Grenier
indicates only that Mr. Grenier did not personally attend the symposium.
This contention is unconvincing for the reasons given above. Further,
contrary to Patent Owner’s contention, the Declarations do provide evidence
of publication. Specifically, the first Grenier Declaration explicitly states
that the Article was “published by IEEE,” and the second Declaration goes
on to add that it was published “as part of the conference proceedings on the
date of the conference.” See Ex. 1024 ¶ 6; Ex. 1028 ¶ 6.
Fifth, we disagree with Patent Owner’s characterization that
Mr. Grenier does not know if copies of the Broggi Article were available at
the Symposium. PO Resp. 15 (citing Ex. 2017, 12:3–7). This evidence
must be considered in the context of the Deposition, and the Declarations.
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In Mr. Grenier’s Deposition, Patent Owner asks a series of questions
regarding Mr. Grenier’s personal attendance at, and observation of, the
Symposium. See Ex. 2017, 11:17–12:11. In this context, Mr. Grenier’s
reply that he does not know if copies were available at the Symposium
means that he did not view such an event. Mr. Grenier’s first Declaration
supports this interpretation, stating that copies of the conference proceedings
were made available to attendees of the conference. Ex. 1024 ¶ 6. In his
second Declaration, Mr. Grenier clarifies by adding that the Article was
published as part of the conference proceedings on the date of the
conference. Ex. 1028 ¶ 6. In light of this, we determine that although
Mr. Grenier did not observe that copies of the Article were available to
attendees at the conference, he knows that such availability is indicated by
IEEE records.
d) Butler Declaration
Patent Owner makes numerous arguments regarding the Butler
Declaration.
Two of Patent Owner’s arguments relate to the admissibility of the
Butler Declaration. See, e.g., PO Resp. 18 (“the Butler Declaration fails to
authenticate”), 19 (“the Butler Declaration has no probative value”). Such
arguments belong in a Motion to Exclude and not in Patent Owner’s
Response. Also repeated here is Patent Owner’s assertion that the
Declaration “fails to present any evidence.” Id. at 19 (emphasis Patent
Owner’s). As explained before, such a characterization is both inaccurate,
and does not persuasively address the merits of the evidence.
Patent Owner argues that neither the Declaration itself, nor the
attached webpages establish that Broggi was accessible from the webpage
shown at page 16 of Exhibit 1029. PO Resp. 18. According to Patent
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Owner, the most that is shown is that the text on page 16 of Exhibit 1029
was available on October 12, 2004. For the reasons that follow, we disagree.
As explained above, the Declaration shows that an abstract of an
article having the same title, authors, Symposium name, page numbers, date,
and location as Broggi (Ex. 1006) was posted to a public website between
April 4, 2004, and October 12, 2004. We add that, significantly, the
Wayback Machine archives are public and Patent Owner could have
submitted evidence to the contrary in the Patent Owner’s Response if they so
desired.29 See Ex. 1029 ¶ 2 (noting that the archives give free access to the
general public).
Patent Owner argues that we should give no weight to the Butler
Declaration because Petitioner fails to state the relevance of this evidence as
required by 37 C.F.R. § 42.104(b)(5). PO Resp. 19. This rule applies to the
Petition and is not relevant to Exhibit 1029, which was not submitted with
the Petition. See 37 C.F.R. § 42.104 (titled “Content of the Petition”).
Further, Petitioner explained the relevance of this Exhibit. See Ex. 1035, 3
(Petitioner’s response to Patent Owner’s first set of objections); Paper 18
(Petitioner’s Motion to submit Supplemental information); Pet. Reply 6–8.
Patent Owner contends that changing from alleging a June 2004
publication date to an October 2004 publication date prejudices Patent
Owner because under 35 U.S.C. § 102(a) a Patent Owner may antedate a
reference. PO Resp. 20. Petitioner does not allege that the October 2004
date is the publication date; rather, Petitioner contends that availablility on-

29 The second Grenier Declaration was served on January 20, 2015, and the
Patent Owner’s Response was filed on April 23, 2015. See Ex. 1035, 5;
Paper 25, 1 (changing due date of Patent Owner response);
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line in October 2004 is corroboration of, or further evidence of, availability
in June 2004. Tr. 17–18 (“certainly we are not trying to shift the publication
date”); see also Tr. 31–33 (more detailed explanation). For that reason,
Patent Owner’s argument is not persuasive. Further, we agree with
Petitioner that availability on-line no later than October 2004 is consistent
with publication of Broggi at the Symposium. See Pet. Reply 6–8.
4. Summary
Broggi is a printed article titled “Multi-Resolution Vehicle Detection
using Artificial Vision.” The first page makes reference to the 2004 IEEE
Intelligent Vehicles Symposium held at the University of Parma in Parma
Italy on June 14–17, 2004, and includes a copyright date of 2004 that is
consistent with this information. Broggi is not marked with any limitations
regarding dissemination.
Dr. Frahm, as a person who has chaired an IEEE conference and
regularly attended IEEE conferences, states that it is his experience that
IEEE papers, such as Broggi, that are presented are made publically
available at that conference as is indicated on the face of the paper.
Although he did not attend the Symposium, the Senior Director of
Publishing Technologies for IEEE, Mr. Grenier, states that IEEE records
indicate that Broggi was published and presented as part of the proceedings
on the date of the Symposium.
The Office Manager of the Internet Archive, Mr. Butler, provides
records that indicate that Broggi was posted to a public website no later than
October 12, 2004.
All of this information is consistent with Petitioner’s contention that
Broggi was publically accessible at the Symposium.
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Patent Owner argues that Petitioner’s showing is deficient; however,
as discussed above, these arguments are not persuasive. Further, Patent
Owner does not present evidence that persuasively casts doubt on
Petitioner’s showing. Patent Owner’s expert, Dr. Turk, likewise opines that
Petitioner’s showing is not definitive. In contrast to Dr. Frahm’s opinion,
Dr. Turk does not provide the underlying facts or data that led to his opinion.
We determine that a preponderance of the evidence shows that Broggi
(Ex. 1006) was sufficiently accessible to the public interested in the art by
being available to attendees of the IEEE Intelligent Vehicles Symposium at
the University of Parma, in Parma, Italy, on June 14–17, 2004.
Consequently, Broggi is prior art under 35 U.S.C. § 102(a) because it was
accessible to the public interested in the art before the critical date of the
’522 patent.

B. LEVEL OF SKILL IN THE ART
Patent Owner argues that Petitioner fails to resolve the level of
ordinary skill in the art, and for that reason Petitioner’s obviousness analysis
is fatally deficient. PO Resp. 20–22.
Petitioner’s expert, Dr. Frahm, provided testimony regarding the level
of skill in the art. See Ex. 1010 ¶¶ 43–48. Although the level of skill in the
art is not discussed in the Petition, Dr. Frahm acknowledged that
obviousness is viewed from the perspective of a person of ordinary skill in
the art, and applied that standard to his evaluations. Id. ¶¶ 28–29. That is,
Dr. Frahm’s evaluations of the grounds of unpatentability based on
obviousness is based on the perspective of a person of ordinary skill in the
art at the time of the claimed invention, and this analysis is cited and
explained in the Petition.
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Patent Owner’s contention is unpersuasive, in part, because it does not
address the merits of the level of skill in the art provided. The significance
of the level of ordinary skill in the art is the role it plays in an obviousness
analysis. See Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); Okajima
v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he level of skill in
the art is a prism or lens through which a judge, jury, or the Board views the
prior art and the claimed invention.”); Ryko Mfg. Co. v. Nu-Star, Inc., 950
F.2d 714, 718 (Fed. Cir. 1991) (“The importance of resolving the level of
ordinary skill in the art lies in the necessity of maintaining objectivity in the
obviousness inquiry.”). Patent Owner’s assertion fails to address how the
level of skill in the art impacted the obviousness analysis.

C. 35 U.S.C. § 325(d)
Patent Owner argues, in a footnote, that although the Board exercised
its discretion not to deny the Petition under 35 U.S.C. § 325(d), the Board
may still deny the Petition on that basis now.30 PO Resp. 27 n.6. Patent
Owner emphasizes that the Petition’s combination of Nissan and Hitachi is
at least substantially the same as the ground based upon Nissan in a prior
petition. Id.
Patent Owner’s Preliminary Response argued that we should deny the
Petition based on 35 U.S.C. § 325(d). See Prelim. Resp. 2, 7–12. We
considered this argument and declined to exercise our discretion to deny the
Petition. See Dec. 12–15. Patent Owner’s current argument adds nothing to

30 We presume the second citation, which is to “§ 315(d)” is a typographical
error and “§ 325(d)” was intended.
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the previous argument and does not persuade us that we should now deny
the Petition on that basis.

D. OVERALL ARGUMENTS
Before addressing the grounds of unpatentability more specifically,
we address two general arguments by Patent Owner. See PO Resp. 22–29.
1. Claimed Features
Patent Owner argues that Petitioner “fails to adequately explain how
the asserted references and portions quoted in its claim charts disclose the
claimed features.” PO Resp. 23. In particular, Patent Owner contends that
the Petition does not identify how the challenged claims are unpatentable or
identify portions of the evidence that support the challenge (citing 37 C.F.R.
§§ 42.104(b)(4)–(b)(5)). Id. Further, according to Patent Owner, the
Petition: exceeds page limits, improperly incorporates by reference, and
includes claim charts that either do not explain sufficiently or improperly
contain argument. Id. at 24–26.
To a substantial extent, Patent Owner really is making an untimely
request for reconsideration of our Institution Decision. See Dec., passim; 37
C.F.R. § 42.71(d). Patent Owner elected not to file such a request, and may
not do so now. Id.
We consider Patent Owner’s argument to the extent it suggests that
Petitioner has not demonstrated unpatentability by a preponderance of the
evidence. Patent Owner argues against the Petition as a whole and provides
but one supporting example. See PO Resp. 23–26. Such generalities are not
persuasive. The sole example relates to the ground of unpatentability
against claim 2 based on Hitachi and Nissan, and we analyze this contention
in Section V.A. below.
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2. Reasons for Combining the References
Regarding the rationale for combining Nissan with Hitachi, Patent
Owner argues that the Petition improperly incorporates by reference the
rationale from a related case. PO Resp. 26–27. Neither our Institution
Decision nor this decision relies upon the rationale from the related case.
See Dec. 15–16.
Patent Owner goes on to contend that the rationale offered in the
Petition is conclusory, does not set forth any obviousness rationale, and is
not properly supported by the Declaration of Dr. Frahm because the Petition
does not explain this evidence. PO Resp. 28. Patent Owner addresses only
the Petition and not the Petitioner’s Reply. We analyze the rationale for this
ground of unpatentability, in light of all of the evidence, in Section V.A.
below.

V. PATENTABILITY
A. INTRODUCTION
A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
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(3) the level of ordinary skill in the art; and (4) objective evidence of
nonobviousness.31 Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
We consider Patent Owner to have admitted those aspects of these
grounds of unpatentability that are uncontested by Patent Owner and are
material facts. See 37 C.F.R. §§ 42.23(a) (in an opposition, any material fact
not specifically denied may be considered admitted), 42.120(a) (the patent
owner response is an opposition).
We address each of the three asserted grounds of unpatentability in
turn.

B. NISSAN AND HITACHI
Petitioner contends that claims 2, 3, 5, 7, 11, 12, 28, 32–35, 37, 40,
and 44–46 are unpatentable as obvious over Nissan and Hitachi. Pet. 20–38.
For the reasons explained below, Petitioner has established this assertion by
a preponderance of the evidence.
1. Nissan
Nissan describes a vehicle-mounted camera optical axis misalignment
detection system. Ex. 1003, Title. Vehicle-mounted system 30 of the second
embodiment captures an image of a position, which is a blind spot for the
driver at the front left of the car (near the left fender) with vehicle-mounted
camera 2, in response to an instruction input by the passenger of the car, and
displays this image to display 3, thereby providing the driver with driving
support when, for example, making a left turn. Id. ¶ 32. Vehicle-mounted
camera 2 is built in to a left-hand door mirror of the car. Id. Vehicle-

31 The level of ordinary skill in the art was discussed earlier. Patent Owner
does not present evidence of secondary considerations.
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mounted camera 2 is mounted on the car such that a left turn signal provided
to the side of the car is visible, so as to capture images including the left turn
signal. Id. Data ROM 8 stores an image showing where the turn signal
ought to be observed in images captured by vehicle-mounted camera 2 when
vehicle-mounted camera 2 is in an ideal state, mounted in a correct position
and with no optical axis misalignment occurring. Id. ¶ 34. CPU 6 of control
unit 5 executes an optical axis misalignment detection program to determine
periodically whether optical axis misalignment has occurred in vehicle-
mounted camera 2. Id. ¶ 41. Turn signal position detection unit 33
performs a process to detect the position where the turn signal is displayed in
the actual image of the left front of the car. Id. ¶ 44. Turn signal
misalignment evaluation unit 34 compares the position where the left turn
signal ought to be observed as shown in the template image stored in data
ROM 8 against the position of the left turn signal in the actual image as
detected by turn signal position detection unit 33, and judges, based on the
degree of misalignment therebetween, whether optical axis misalignment has
occurred in vehicle-mounted camera 2. Id. ¶ 45. This process is depicted in
Figure 8, reproduced below.
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Figure 8 is a view for describing a method for detecting positional
misalignment between a position of a left turn signal in an actual image and
a position of the left turn signal in a template image in a vehicle-mounted
system of the first embodiment. Id. at 18. As depicted in Figure 8, (a)
shows the image captured when the left turn signal is on, (b) shows the
image captured when the left turn signal is off, (c) shows the difference
between the two captured images, and (d) shows an image indicating where
the left turn signal ought to be observed. Id. When optical axis
misalignment is detected in vehicle-mounted camera 2, control unit 5 drives
an actuator (camera position adjusting means capable of adjusting the
direction of the optical axis of vehicle mounted camera 2) according to the
detected amount of optical axis misalignment in vehicle-mounted camera 2.
Id. ¶ 52. Specifically, control unit 5 continuously monitors scores D1 and
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D2, which represent the degree of misalignment, and drives the actuator
such that both of these scores are substantially zero. Id.
2. Hitachi (Exhibit 1013)
Hitachi describes an image capture apparatus for recognizing a
vehicle driving environment. Ex. 1013 ¶ 1.
Figure 2 is reproduced below:

Figure 2 shows an embodiment of the automotive image capture
apparatus according to Hitachi being used as a driving environment
recognition apparatus. Id. ¶ 18. Marks 3 disposed on the left and right of
hood MB of the automobile M. Id. ¶ 18, Fig. 2. Field of view AE represents
the image capture visual field of camera 1, and marks 3 are disposed at two
locations on the left and right of the hood of the automobile. Id. ¶ 19. When
the initial mark position X of mark 3 is not identical to the current mark
position Y (steps S4, S5) and correction is within the correctable range (step
S9), a correction is calculated (step S10), and image data is corrected (step
S11). Id. ¶¶ 32–48, Figs. 4, 5.
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3. Petitioner’s Contentions
Petitioner specifically alleges where each element of the claims is
found in the prior art with citations by exhibit number to the specific portion
of the evidence that supports the challenge. Pet. 20–38. Petitioner explains
that a person of ordinary skill in the art would have been motivated to
replace Nissan’s physical correction for camera position misalignment with
Hitachi’s image processing technique. Pet. 22 (Ex. 1010 ¶¶ 166–178); see
also Pet. 23–38 (citations to and explanations of the references).
4. Patent Owner Arguments
Patent Owner makes two arguments regarding this ground of
unpatentability. First, Patent Owner contends that for compensating for
misalignment as required by claim 2, the claim chart quotes a portion of the
reference but does not explain adequately how this quote corresponds to the
limitation at issue. PO Resp. 23–26. Second, Patent Owner contends that
Petitioner’s proffered rationale is insufficient. Id. at 28.
a) Claim 2 - Compensating for Misalignment
Claim 2 depends from independent claim 1 (not challenged) and
includes the limitation, “wherein said control . . . is operable to at least
partially compensate for the determined misalignment of said imaging array
sensor.”
Petitioner explains that Nissan discloses a vehicle imaging system that
includes an imaging array sensor. Pet. 22–25. Petitioner explains that
Nissan’s device uses physical adjustment with actuators to correct image
misalignment. Id. at 22–23. Petitioner explains that Hitachi discloses
correction of misalignment by adjusting image data or image processing, and
quotes the following passage from Hitachi:
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[W]hen the image data correction amount is calculated in Step
S10, that result is assessed in Step S14 as to whether or not it is
only a case of translational displacement, as shown in Fig. 7(a).
If the result is Yes, instead of image data correction, the used
image area A1 and the initial mark 3A position X are changed,
as shown in Fig. 7(b).
Id. at 22, 24 (quoting Ex. 1013 ¶ 54)(emphasis added).
This explanation and quote with emphasis, demonstrates how Hitachi
discloses a device operable to at least partially compensate for the
determined misalignment using an image sensor. Patent Owner’s argument
does not persuade us otherwise.
b) Sufficiency of Stated Rationale
Nissan discloses a vehicle imaging system that includes an imaging
array sensor that uses physical adjustment with actuators to correct image
misalignment, and Hitachi discloses correction of misalignment by adjusting
image data or image processing. See Pet. 22–25. Petitioner proposes to
modify Nissan by adjusting image data or image processing as taught by
Hitachi. Id. at 22. Specifically, Petitioner contends:
[One] skilled in the art would have been motivated to modify
Nissan to include functionality of Hitachi in order to correct (or
otherwise account for) the detected misalignment by adjusting
the image processing, where such misalignment adjustment
would be more cost efficient and less error prone.
Pet. 22 (citing Ex. 1010 ¶¶ 166–178).
Patent Owner contends that Petitioner “does not set forth any
obviousness rationale to support its conclusory statement,” and further
contends that the cited portion of the Declaration of Dr. Frahm should be
disregarded because it is not adequately explained in the Petition. PO Resp.
28.
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Initially, we disagree with Patent Owner’s characterization that
Petitioner “does not set forth any obviousness rationale.” See PO Resp. 28
(emphasis added). To the contrary, Petitioner contends that modifying
Nissan would reduce cost and errors. See Pet. 22. Patent Owner’s
contention does not address cogently the merits of Petitioner’s proffered
rationale.
Regarding the citation to a portion of the Declaration, generally, the
Board considers declaration evidence commensurate with its discussion in
the Petition. See, e.g., Dominion Dealer Solutions, LLC. v. Autoalert, Inc.,
Case IPR2013-00225, slip op. at 3 (PTAB Oct. 10, 2013) (Paper 15); see
also 37 C.F.R. 42.104(b)(5) (requiring a petition to identify: the exhibit
number of supporting evidence, specific portions of the evidence that
support the challenge, and the relevance of that evidence). Petitioner
identifies specific portions (paragraphs 166–178) by exhibit number (1010).
See Pet. 22. Further, Petitioner explains the relevance of that evidence.
Specifically, the Petition contends that the modification would reduce cost
and errors and cites to a portion of Dr. Frahm’s Declaration, indicating the
Declaration contains supporting details. Indeed, the Declaration states that
in Dr. Frahm’s opinion, a person of ordinary skill in the art would recognize
that correction via Hitachi’s method rather than Nissan’s would remove the
higher production cost of actuators, and avoid the mechanical failure of
actuators (i.e., reduce cost and errors). See Pet. 22; Ex. 1010 ¶¶ 170–172.
We are persuaded that the reason provided by Petitioner is based upon
a rational underpinning.
5. Petitioner’s Preclusion Argument
Petitioner contends that the Office affords a preclusive effect to its
own findings in subsequent proceedings before the Office. Pet. Reply 12–13
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n.3 (citing Manual of Patent Examining Procedure (“MPEP”) § 2308.03
ESTOPPLE WITHIN THE OFFICE).
The MPEP provides guidance to Examiners regarding practices and
procedures relative to prosecution of patent applications before the Office.
See MPEP, Foreword, (9th ed. July 2015). The MPEP may provide important
interpretations of laws and rules, as provided by the Commissioner and the
Director. Nevertheless, the guidance in the MPEP is not binding on the
Board in its interpretation of the law as part of an adjudication in the same
manner as statutes or the rules found in title 37 of the Code of Federal
Regulations. Id. Accordingly, Petitioner’s contention is not persuasive.32
6. Conclusion
Petitioner has demonstrated by a preponderance of the evidence that
claims 2, 3, 5, 7, 11, 12, 28, 32–35, 37, 40, and 44–46 are unpatentable as
obvious over Nissan and Hitachi.

C. NISSAN, HITACHI, AND BROGGI
Petitioner asserts that claims 19, 23, and 24 are unpatentable over
Nissan, Hitachi, and Broggi. Pet. 49–53. For reasons explained below,
Petitioner has established this assertion by a preponderance of the evidence
for claims 19 and 23, but not for claim 24.

32 Even if MPEP guidance applied to inter partes reviews, section 2308.03
would not apply here because the determination on the rationale issue in
IPR2014-00221 differs from the determination in the case at hand in at least
two respects: one, the subject matter of the challenged claims differs, and
two, the supporting Declaration in each case differs. Cf. IPR2014-00221,
Valeo North America, Inc., et al. v. Magna Electronics, Inc. (PTAB May 28,
2015), slip op. at 11 (Paper 58) to Dec. 29; Cf. Ex. 1010 ¶¶ 190–198 of
IPR2014-00221 to Ex. 1010 ¶¶ 166–176.
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Nissan and Hitachi are discussed above.
1. Broggi
Broggi describes a vehicle detection system using a single camera.
Ex. 1006, Abstract. The system is based on the search for areas with high
vertical symmetry in multi-resolution images. Id. Symmetry is computed
using different sized boxes centered on all the columns of the interest areas.
Id. All the columns with high symmetry are analyzed to get the width of
detected objects. Id. Horizontal edges are examined to find the base of the
vehicle in the individuated area. Id. The aim is to find horizontal lines
located below an area with sufficient amount of edges. Id. The algorithm
deletes all the bounding boxes which are too large, too small, or too far from
the camera in order to decrease the number of false positives. Id. All the
results found in different interest areas are mixed together and the
overlapping bounding boxes are localized and managed in order to delete
false positives. Id.
An interesting column is defined as having a high symmetry in: (i) the
image that contains the result of Sobel binarization; or (ii) the image that
contains the AND between symmetry of horizontal and vertical edges. Id. at
313.33 A columnwise histogram is then used to locate candidate columns.
Id. In correspondence to these columns the vertical edges symmetry is
checked to obtain the expected vehicle width. Id. More specifically, if a
high value of symmetry is present for small widths too, it means that the
algorithm has detected a small object; in this case the column is discarded.
Id.
Figure 5 is reproduced below:

33 We refer to the native numbering of this Exhibit.
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Figure 5 shows an example of discarding a column in which the
leftmost peak is discarded because it presents a high symmetry value also for
small widths. Id. In contrast, the rightmost peak presents an appreciable
symmetry value only for widths above a certain size. Id.
2. Claim 19
Claim 19 depends from independent claim 1, and recites “wherein
said control is operable to distinguish between an object in the field of view
of said imaging array sensor and a shadow of an object.” Ex. 1001, 18:4–6.
Claim 19 uses the claim phrase “an object” twice. Consequently, the
claimed objects may be different objects. If the claim drafter intended the
first use of the term “object” to be antecedent basis for the second use, the
second use would have recited, either “the object” or “said object.”
Therefore, the claimed shadow need not be the shadow of the first object
recited.
Petitioner relies upon the analysis of Nissan and Hitachi of the ground
of unpatentability above. Pet. 50–51 (citing section VII.A. of the Petition at
18–38).34 Petitioner contends that Broggi discloses analyzing images to
determine the presence of shadows. Id. at 51–52 (citing Ex. 1006, 312).
Petitioner contends that it would have been obvious to employ shadow
detection as disclosed by Broggi in the combined Nissan and Hitachi system
in order to filter out shadows of objects from the identification of objects of

34 The ground of unpatentability of claims 23 and 24 also relies upon section
VII.A.
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interest to lower the false positive detection rate. Id. at 50 (citing Ex. 1010
¶¶ 224–227).
Patent Owner presents two arguments in support of claim 19: one,
that Broggi does not disclose distinguishing between an object and a shadow
as claimed, and, two, that a person of ordinary skill would not have made the
proposed combination.
a) Distinguishing Object from Shadow
Petitioner explains that Broggi discloses analyzing captured images to
determine the presence of shadows. Pet. 50–52 (citing Ex. 1010 ¶¶ 224–
227). Indeed, Broggi discloses that
The shadow under the car is searched for in order to find the
box base. It is defined as a horizontal edge, but since other
shadows, like bridges’ ones, could be present on the road as
well, and the algorithm looks for a high concentration of edges
above the horizontal edge; if no base can be detected, the
column is discarded.
Ex. 1006 at p. 312.
Patent Owner contends that this disclosure does not correspond to
distinguishing between an object and a shadow of an object as claimed.
According to Patent Owner, if there was a non-shadow horizontal edge and a
high concentration of edges above this non-shadow horizontal edge, the
algorithm would have found the box even though there was no shadow. PO
Resp. 31 (citing Ex. 2016 ¶ 39). Even if we accept, for the sake of
argument, Patent Owner’s contention as correct, it demonstrates, at most,
that Broggi’s technique can find a bounding box even when no shadow is
present. See Ex. 1006, 312. That capability does not demonstrate that
Broggi’s device is incapable of distinguishing an object from a shadow.
Patent Owner contends that if Broggi can distinguish a shadow from
an object, then the bounding box would be placed at the base of the object
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(vehicle detected) rather than at the bottom of the car’s shadow. PO Resp.
31. In support of this argument, Patent Owner contends that each of Figures
10(a)–(d) depict the box base at the bottom of the car’s shadow. That is,
Patent Owner characterizes Figures 10(a)–(d) as depicting improperly
positioned bounding boxes in that the boxes are positioned at the bottom of
the shadow rather than at the base of the object. We disagree with this
characterization for the reasons that follow.
In Figures 10(a), 10(b), and 10(d), shadows extend from each detected
vehicle towards the right side of the Figure. In Figure 10(c) the detected
vehicle is so distant from the camera that the shadow of that vehicle cannot
be reliably discerned. In light of this, none of the Figures in question depict
a shadow between the detected vehicle and the camera. Broggi defines a
shadow as a horizontal edge, and therefore shadows to the side of the vehicle
(vertical edges) are by definition not shadows. See Ex. 1006, 312 (III.D.
BOUNDING BASES GENERATION). Accordingly, Patent Owner’s
characterization that the bounding boxes are placed at the bottom of the
detected vehicle’s shadow rather than at the base of the vehicle is inaccurate.
Supporting our interpretation, Broggi describes that Figures 10(a)–(d) depict
vehicles detected (i.e., as indicated by bounding box placement) “with good
precision.” Ex. 1006, 313 (IV. DISCUSSION OF RESULTS AND CONCLUSIONS).
Consequently, Patent Owner’s contention that the bounding boxes are
improperly positioned is not persuasive.
Patent Owner contends that Figures 11(b) and 11(d) illustrate that
Broggi does not distinguish between an object and a shadow as claimed. PO
Resp 31–32 (citing Ex. 2016 ¶¶ 40–43). The premise of Patent Owner’s
argument is that claim 19 requires distinguishing an object from a shadow
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with 100% accuracy. Such an argument is unpersuasive because it is not
commensurate in scope in that claim 19 contains no such limitation.
Further, Broggi discloses that Figure 11(b) illustrates an error in
detecting the base of the vehicle caused by the presence of a black bumper,
and Figure 11(d) depicts a false positive caused by a bridge shadow. Ex.
1006, 313. Broggi’s acknowledgment that the system can at times produce
errors does not cast doubt on our determination that Broggi distinguishes an
object from a shadow of an object.
We are persuaded by Petitioner’s contentions. As Petitioner correctly
asserts, Broggi states that “[t]he shadow under the car is searched for.” Pet.
50–52 (citing Ex. 1006, 312). Searching for a shadow under a car
necessarily entails distinguishing between an object in the field of view of
the image sensor and a shadow of an object as claimed.
b) Sufficiency of Stated Rationale35
Petitioner contends that it would have been obvious to combine the
teachings of Nissan, Hitachi, and Broggi, in part, because the references are
all in the area of vehicle vision systems and relate to capturing images of
vehicle’s surroundings to aid a driver with various vehicle-related functions.
Pet. 49–50. Petitioner explains that false positives, such as those caused by
shadows of objects, were a well-known problem, and elaborates that it
would have been entirely predictable to a person of ordinary
skill in the art having the benefit of the disclosure of Nissan and
Broggi, to employ shadow detection disclosed in Broggi into
the vision system of Nissan in order to filter out shadows of
objects from the identification of objects of interest to lower the
false positive detection rate.

35 Our analysis here focuses on the reasons for further modification of the
Nissan and Hitachi combination in view of Broggi.
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Id. (citing Ex. 1010 ¶¶ 224–227).
Patent Owner argues that a person of ordinary skill in the art would
not have combined Broggi with Nissan and Hitachi because Broggi does not
remove shadows to reduce false positives. PO Resp. 42–45 (citing Ex. 2016
¶¶ 66–70).
Patent Owner’s argument is not supported by the reference. As
discussed above, Broggi discloses searching for the shadow (defined as a
horizontal edge) under a vehicle in order to find the box base. Because other
shadows, such as that from a bridge, could be present the algorithm looks for
a high concentration of edges above the horizontal edge, and if no base can
be detected, the column is discarded. See Ex. 1006, 312 (III.D. BOUNDING
BASES GENERATION). Consequently, discarding columns where no base is
associated with a shadow is a technique of reducing false positives. See Pet.
Reply 17; Ex. 1034 ¶¶ 10–11 (referencing Ex. 1010 ¶¶ 224–22736).
c) Conclusion
We are persuaded Petitioner has demonstrated by a preponderance of
the evidence that claim 19 is unpatentable as obvious over Nissan, Hitachi,
and Broggi.
3. Claim 23
Claim 23 depends from independent claim 1 and recites, “wherein
said control applies an edge detection algorithm to process data of said
captured image.” Petitioner contends that:
With respect to claim 23, the Nissan system includes
functionality to display, to the driver, the distance between the
vehicle and objects external to the vehicle. Broggi teaches edge
based object detection. In order to limit the cognitive load on

36 This portion of Ex. 1010 was cited to and explained in the Petition at 50.
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the drive[r], one skilled in the art would have recognized that it
was obvious to combine modify the Nissan system to
incorporate the object detection of Broggi such that only
distances between objects of interest and the vehicle would be
displayed to the driver.
Pet. 50–52 (citing Ex. 1010 ¶¶ 228–232).37 In context, Petitioner proposes
to replace Nissan’s display of distance to all objects with Broggi’s display of
distance to detected objects. The cited portion of Dr. Frahm’s Declaration
explains that Broggi uses object detection to determine the distance to
objects of interest.
Patent Owner does not challenge Petitioner’s assertions regarding
Broggi. Rather, Patent Owner argues that Petitioner presupposes that Nissan
displays distances to irrelevant objects, but there is no indication this is
accurate. PO Resp. 45. Patent Owner elaborates that addition of actual
distances as proposed by Petitioner would increase, rather than decrease
driver cognitive load. Id. at 45–46 (citing Ex. 2016 ¶¶ 72–73).
Contrary to Patent Owner’s assertion, Nissan does indicate the
distance to all objects. Specifically, Nissan discloses that when the car’s
gear is shifted into reverse position, distance indicators are overlaid on the
actual image of the area behind the car captured by vehicle-mounted camera
2 as displayed on display 3. Ex. 1003 ¶ 17; Fig. 1; Pet. 50–51; see also Ex.
1010 ¶ 100, 299 (explaining this feature of Nissan).
We agree with Petitioner that if Nissan’s technique for display of the
distance to all images is replaced by display of distance to detected objects
(objects of interest) as disclosed by Broggi, driver cognitive load would be
reduced.

37 This ground also relies upon section VII.A. of the Petition.
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We are persuaded Petitioner has demonstrated by a preponderance of
the evidence that claim 23 is unpatentable as obvious over Nissan, Hitachi,
and Broggi.
4. Claim 24
Claim 24 depends from claim 23, and recites,
wherein an algorithmically executed filtering mechanism at
least substantially ignores detected edges that are not indicative
of a significant object in order to at least one of (a) reduce
processing requirement and (b) reduce false signals.
Petitioner contends that Broggi reduces processing requirements by
utilizing three different interest areas. Pet. 51 (citing Ex. 1006, 311).
Regarding aspect (a) of claim 24, Petitioner adds that Broggi focuses
computation on “interesting columns” which are likely to contain interesting
objects, and teaches to ignore small objects. Id. at 52–53 (citing Ex. 1006,
312). Regarding aspect (b) of claim 24, Petitioner adds that Broggi filters
false positives. Pet. 53 (citing Ex. 1006, 312). Petitioner reasons that
it would be entirely predictable for one of ordinary skill in the
art to employ regions of interest (or called areas of interest in
Broggi) to ignore edges that are not indicative of objects of
interest and/or to reduce false signals, to reduce processing
requirements of Nissan’s system.
Id. at 51 (citing Ex. 1010 ¶¶ 233–237). We explain how Broggi operates and
then analyze Petitioner’s contentions.
Broggi discloses a four part algorithm: (1) vertical symmetry
computation, (2) interesting column identification, (3) bounding boxes
generation, and (4) position and size filtering. Ex. 1006 ¶ III.38 The

38 At times we cite to paragraph numbers instead of page numbers of this
Exhibit to be more specific.
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algorithm considers three interest areas in order to speed up execution
(reduce processing requirements). Id. ¶ III.A.
In step 1 (vertical symmetry computation), Broggi attempts to find all
vertical and horizontal edges using a Sobel operator, then three images are
built, symmetry for every column of the images is computed, and from
horizontal and vertical edges symmetry images, a new image is created. Id.
¶ III.B.
In step 2 (interesting column identification), Broggi searches with the
new image for interesting columns (columns with high symmetry in one of
two respects). Id. ¶ III.B.–C. Then a columnwise histogram is used to
locate candidate columns and the vertical edge symmetry of these candidate
columns is checked. Id. ¶ III.C. In this check, small widths having high
values of symmetry, which correspond to small objects, are discarded. Id.
In step 3 (bounding boxes generation), the width of a bounding box is
determined for each peak in vertical edges symmetry image that survives the
filters of step 2. Id. ¶ III.D. The box base is located based upon the
horizontal edge of the shadow under the car. Id.
In step 4 (position and size filtering), because not all the boxes
detected boxes in step 3 are correct, the boxes are filtered, to include
application of a filter that removes boxes that are too small and probably do
not identify a vehicle. Id. ¶ III.E.
Claim 24 requires ignoring detected edges that have a specified
characteristic (those not indicative of a significant object). Petitioner’s
contention is flawed both with regard to what is ignored (detected edges),
and with regard to the specified characteristic. We address these issues in
turn.
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First, in light of our explanation above, Broggi does not ignore
detected edges; rather, Broggi ignores vertical edge symmetry of candidate
columns (see step 2). Broggi detects edges, but this process is separate from
ignoring (discarding) small objects. Specifically, the detected edges are used
to create images, within these images symmetry for every column of these
images in computed, from this a new image is created, within this new
image columns having high symmetry are identified, a columnwise
histogram is used to locate candidate columns, and then based on vertical
edge symmetry of these candidate columns, small widths are ignored.
Petitioner does not explain persuasively how ignoring small widths as
indicated from vertical edge symmetry of candidate columns corresponds to
ignoring detected edges as claimed. See Pet. 51–53; Ex. 1010 ¶¶ 233–237.
Second, regarding the specified characteristic, Petitioner contends that
a small object, as indicated by a small width having high vertical edge
symmetry, corresponds to something not indicative of a significant object as
claimed. Petitioner does not explain persuasively how a small object
corresponds to a significant object as claimed. See Pet. 51–53; Ex. 1010 ¶¶
233–237. Further, the disclosures of the ’522 patent and Broggi undermine
such an interpretation. Specifically, the ’522 patent describes that the system
utilizes various filtering mechanisms to substantially ignore edges that
cannot be indicative of “a vehicle or a significant object.” See Ex. 1001,
2:60–65. In this context, a significant object is an object other than a
vehicle. The significance is that objects other than vehicles can be
significant, that is, the ’522 patent seeks to identify objects other than
vehicles. In contrast, Broggi is only concerned with detecting vehicles. See
Ex. 1006, Abstract (“[t]his paper describes a vehicle detection system”), ¶ II.
(“[t]he goal is to detect all vehicles in the scene”), ¶ III.E. (boxes that are too
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large or too small probably do not identify a vehicle and are discarded).
Consequently, a small object as disclosed by Broggi does not correspond to
an object that is not significant as claimed.
Beyond these shortcomings, Petitioner’s rationale also is deficient.
Petitioner reasons that a person of ordinary skill in the art would have
modified Nissan and Hitachi to include three teachings from Broggi (i.e.,
processing by interest areas, ignoring edges that are not indicative of objects
of interest, and reducing false signals) in order to “reduce processing
requirements of Nissan’s system.” Pet. 51. Broggi discloses that use of
interest areas reduces processing requirements. Ex. 1006, ¶ III.A. However,
Petitioner does not identify, nor does Broggi disclose, that ignoring edges or
reducing false positives reduces processing requirements. See id. ¶¶ III.C.,
E. Consequently these aspects of the proposed modification lack a rational
underpinning.
Petitioner has not demonstrated by a preponderance of the evidence
that claim 24 is unpatentable as obvious over Nissan, Hitachi, and Broggi.

D. NISSAN, HITACHI, AND GUTTA
Petitioner asserts that claims 18, 21, 22, 25, and 26 are unpatentable
over Nissan, Hitachi, and Gutta. Pet. 38–43, 56–59. For reasons explained
below, Petitioner has established this assertion by a preponderance of the
evidence.
1. Gutta
Gutta describes a vehicular vision system to aid a driver of a vehicle
to determine whether it is safe to change lanes. Ex. 1002, Abstract.
Figure 2 is reproduced below.
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Figure 2 depicts an overhead view of cameras on a vehicle having the
vehicular vision system of Gutta. Id. at 2:20–22.
Vehicular system 10 includes first and second side image cameras 12
and 14, rear image camera 16, distance determiner 18, and object identifier
20. Id. at 2:29–32. First and second side image cameras 12 and 14 are
placed preferably on, e.g., passenger side and driver side front portions of
the vehicle, respectively, such that rearward and sideward fields of view 12’
and 14’ are obtained for both sides of vehicle 1. Id. at 2:55–60. Rear image
camera 16 is placed preferably on rear portion 30 of vehicle 1 with its field
of view oriented such that a rearward view from vehicle 1 is obtained. Id. at
3:1–3. Rear image camera 16 preferably has a field of view that results in
only very small areas 32 and 34 behind the vehicle not being visible to either
rear image camera 16 or first and second side image cameras 12 and 14. Id.
at 3:3–7. Images generated by cameras 12, 14, and 16 are provided to image
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processor 22, which processes the image signals generated by the cameras
and provides processed image signals to display 24 for viewing by the
driver, to distance determiner 18, and to object identifier 20. Id. at 3:14–19,
23–27. Object identifier 20 identifies the type of objects observed by the
camera, preferably by the well-known methods of extraction and
classification. Id. at 3:34–40, 51–56. The identification may be as simple as
saying that the object is a car, bus, motorcycle, sport utility, minivan, or
truck. Id. at 3:56–58.
Figure 3 is reproduced below.

Figure 3 is an exemplary display according to Gutta. Id. at 2:23–24. As
depicted in Figure 3, display device 24 displays a composite image that
includes: (1) visual representations 36, 38, and 40 of the fields of view 12’,
14’, and 16’ of cameras 12, 14, and 16, respectively; (2) notations 42 as to
each type of object identified; and (3) indications 44 of the distance between
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the object and vehicle 1. Id. at 4:24–32. Based on the information provided
by the cameras, object identifier, and distance determiner, the system can
provide the driver with an indication that it is now safe to change lanes to the
left or right in response to the driver activating the turn signal. Id. at 5:22–
27.
2. Petitioner’s Contentions
Petitioner specifically alleges where each element of the claims is
found in the prior art with citations by exhibit number to the specific portion
of the evidence that supports the challenge.39 Pet. 38–43, 56–59. Petitioner
asserts that a person of ordinary skill in the art “would have been motivated
to combine the teachings of Nissan, Hitachi, and Gutta, given that the
references are all in the area of vehicle vision systems and relate to capturing
images of a vehicle’s surroundings to aid a driver with various vehicle-
related functions.” Pet. 39; see also id. at 56–57 (similar contention for
claim 22). With regard to the additional modification over Gutta, Petitioner
states that it would have been obvious to add Gutta’s object detection system
to Nissan in order to limit cognitive load on the driver. Id. at 40 (citing Ex.
1010 ¶¶ 179–195), 57–58 (citing Ex. 1010 ¶¶ 249–258).
3. Claims 18 and 21
Claim 18 depends from claim 1 and recites, “wherein said control
processes said captured image to detect an object exterior the equipped
vehicle.” Ex. 1001, 18:4–6. Similarly, claim 21 depends from claim 1 and
recites, “wherein said control is operable to alert the driver of the equipped

39 Petitioner also relies upon the analysis of Nissan and Hitachi in section
VII.A. of the Petition.
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vehicle that an object is detected exterior to the equipped vehicle.” Id. at
18:13–15.
Patent Owner contends that this analysis is based upon an inaccurate
portrayal of Nissan. PO Resp. 47–48 (citing Ex. 2016 ¶ 76). Specifically,
Patent Owner contends that Petitioner’s statement that “Nissan requires the
use of object detection” is inaccurate in that Nissan portrays distances via
distance indicators overlaid on the image of the area behind the vehicle. Id.
at 48 (citing Ex. 1003 ¶¶ 17, 23).
We agree with Patent Owner that it is inaccurate to state that Nissan’s
system “requires the use of object detection.” See Pet. 40. As discussed
above, Nissan portrays distances via distance indicators overlaid on the
image of the area behind the vehicle. Ex. 1003 ¶¶ 17, 22–23. However, this
inaccuracy does not illustrate that Petitioner’s obviousness reasoning is
flawed. Nissan’s system utilizes distance indicators overlaid on the image of
the area behind the vehicle in order to convey the distance to all objects
viewed to the driver. Ex. 1003 ¶¶ 17, 22–23. Petitioner proposes to replace
Nissan’s technique with Gutta’s system that conveys the distances only to
objects of interest (as opposed to all objects), in order to reduce cognitive
load on the driver. Pet. 40. Even though Nissan does not require object
detection, the meaning conveyed by the proposed ground of unpatentability
is not changed. Petitioner proposes to replace Nissan’s technique that
provides the distance to all objects with Gutta’s technique that provides
distance to objects of interest.
4. Claims 22, 25, and 26
Claim 22 depends from independent claim 1 and recites,
wherein said control is operable to alert the driver of the
equipped vehicle that an object is detected at the side of the
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equipped vehicle in response to at least one of (a) the driver of
the equipped vehicle actuating a turn signal toward the side of
the equipped vehicle at which the object is detected, and (b) the
driver of the equipped vehicle steering the equipped vehicle
toward the side of the equipped vehicle at which the object is
detected.
Petitioner contends that Gutta discloses a control operable to alert the
driver that an object is detected at the side of the vehicle when a turn signal
is activated toward the detected object. Pet. 58–59 (citing Ex. 1005, 2:22–
31). Petitioner reasons that it would have been obvious to further modify the
combination of Nissan and Hitachi to take the motion direction of the car
into account so that only potentially hazardous objects would be identified as
disclosed by Gutta. Pet. 57–58 (citing Ex. 1010 ¶¶ 249–258). As discussed
above, Gutta describes a vehicular vision system having the capability to
alert the driver that an object is detected at the side of the vehicle the turn
signal is activated towards by indicating to the driver it is safe to change
lanes.
Claim 25 depends from claim 1, and recites
wherein said imaging array sensor has a field of view at least
partially sideward of the equipped vehicle, said imaging system
comprising a side object detection system for detecting an
object at a side of the equipped vehicle.
Petitioner contends that Gutta discloses taking images with a field of
view exterior to the side of the vehicle and using the information provided
by the object identifier to determine whether it is safe to change lanes and to
alert the driver if it is not safe to change lanes. Pet. 42 (citing Ex. 1005,
2:22–31; Fig. 2). As discussed above, Gutta discloses this capability.
Claim 26 depends from claim 1 and recites, “wherein said imaging
array sensor comprises a CMOS imaging array sensor.”
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Petitioner contends that Gutta incorporates Schofield by reference and
Schofield discusses use of CMOS arrays of photo-sensing pixels. Pet. 42–
43 (citing Ex. 1005 at 3:19–22; Ex. 1010, Att. G at p. 1, lines 10–1140).
Indeed, the cited portions of the references indicate that Gutta incorporates
Scofield’s cameras, and that Schofield discloses CMOS imaging arrays.
Patent Owner makes no additional arguments with regard to claims
22, 25, and 26.
5. Conclusion
Petitioner has demonstrated by a preponderance of the evidence that
claims 18, 21, 22, 25, and 26 are unpatentable as obvious over Nissan,
Hitachi, and Gutta.

VI. ORDER
For the reasons given, it is:
ORDERED that claims 2, 3, 5, 7, 11, 12, 18, 19, 21–23, 25, 26, 28,
32–35, 37, 40, and 44–46 of U.S. Patent No. 7,991,522 B2 have been shown
by a preponderance of the evidence to be unpatentable;
FURTHER ORDERED that claim 24 of U.S. Patent No. 7,991,522 B2
has not been shown by a preponderance of the evidence to be unpatentable;
FURTHER ORDERED that Patent Owner’s Motion to Exclude is
denied;
FURTHER ORDERED that Exhibit 1033 is to be expunged; and

40 This refers to the native page number of the exhibit, exhibit page numbers
were not added.
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FURTHER ORDERED that, because this is a Final Written Decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

For PETITIONER:
Tammy J. Terry
Seema Mehta
Aly Z. Dossa
Peter C. Schechter
OSHA LIANG LLP
terry@oshaliang.com
mehta@oshaliang.com
dossa@oshaliang.com
schechter@oshaliang.com

For PATENT OWNER:
Timothy A. Flory, Esq.
Terence J. Linn
GARDNER, LINN, BURKHART, & FLORY, LLP
flory@glbf.com
linn@glbf.com

David K.S. Cornwell
Salvador M. Bezos
STERNE, KESSLER, GOLDSTEIN & FOX PLLC
davidc-PTAB@skgf.com
sbezos-PTAB@skgf.com