Date: August 27, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD. ionroad LTD.

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1 Paper No Date: August 27, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD ionroad LTD., Petitioner, v. MOBILEYE TECHNOLOGIES LTD., Patent Owner. Case IPR Before THOMAS L. GIANNETTI, MICHAEL J. FITZPATRICK, and RAMA G. ELLURU, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION Institution of Inter Partes Review 37 C.F.R

2 I. INTRODUCTION Petitioner, ionroad, Ltd., filed a Petition for inter partes review of claims 1, 13, and 35 of ( the 621 patent ). Paper 2, Pet. The Patent Owner, Mobileye Technologies Ltd., did not file a preliminary response. We have jurisdiction under 35 U.S.C The Board, acting on behalf of the Director, may authorize an inter partes review when the information presented in the petition filed under section 311 and any response filed under section 313 shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition. 35 U.S.C. 314(a); see also 37 C.F.R We determine that the information presented in the Petition satisfies 314(a), and we institute an inter partes review as to claims 1, 13, and 35 of the 621 Patent. A. Related Proceedings Patent Owner asserted the 621 patent in a lawsuit against Petitioner and its affiliates, captioned Mobileye, Inc., et al. v. Picitup Corp., et al., Case No. 1:12-cv (S.D.N.Y.). Pet. 1; Patent Owner Mandatory Notices 3 (Paper 16). Petitioner states that the complaint in that lawsuit was filed on March 16, 2012, but not served until April 2, 2012 exactly one year before Petitioner filed this request for an inter partes review of the 621 Patent. Pet. 1 (citing Ex. 1003). 2

3 B. The Asserted Grounds Petitioner presents the following grounds of unpatentability: References Basis Claims challenged Bhanu (Ex. 1005) , 13, 35 Hanna (Ex. 1006) and 1, 13, Giachetti (Ex. 1007) , 13, 35 Suzuki (Ex. 1008) , 13, 35 Sahli (Ex. 1009) , 13, 35 C. The 621 Patent The 621 Patent relates to estimating ego-motion (i.e., self-motion) of a moving vehicle, which is an important component in autonomous driving and 1 U.S. Patent 4,969,036, issued Nov. 6, U.S. Patent 5,259,040, issued Nov. 2, A. Giachetti, M. Campani, and V. Torre, The Use of Optical Flow for Road Navigation, 14, No. 1 IEEE Transactions On Robotics And Automation (February 1998). 4 T. Suzuki and T. Kanade, Measurement of Vehicle Motion and Orientation using Optical Flow, Proceedings of 1999 IEEE/IEEJ/JSAI International Conference on Intelligent Transportation Systems (1999). (Exhibit 1008 does bear a 1999, copyright date, but it is not clear from the exhibit itself that it is a publication from Proceedings of 1999 IEEE/IEEJ/JSAI International Conference on Intelligent Transportation Systems, as represented by Petitioner. Compare Ex with Pet. 41 (Appendix).) 5 H. Sahli, P. De Muynck, and J. Cornelis, A Kalman Filter-Based Update Scheme for Road Following, IAPR Workshop on Machine Vision Applications 5-9 (Nov , 1996). 3

4 computer vision-based driving assistance. Ex. 1001, col. 1, Figure 1 of the 621 Patent represents an embodiment of the invention and is reproduced below: Fig. 1 illustrates a vehicle having an ego-motion estimation system and moving along a roadway As seen in Figure 1, a vehicle 10 is equipped with an ego-motion estimation system 12 that includes a camera 13 and a processor 14. Id. at col. 2, ll The camera 13 records successive images as the vehicle moves over the roadway 11. Id. at ll The processor 14 uses information that it obtains from the successive images, possibly along with other information, such as information from the vehicle s speedometer (nott separately shown) to determine the ego-motion of the vehicle relative to the roadway. Id. at ll D. The Challenged d Claims All of the challenged claims are independent. The bodies of the claims are similar to one another, but claim 1 is directed to a system, claim 13 is directed to a method, and claim 35 is directed to a computer program product. The challenged claims are reproduced as follows: 4

5 1. An ego-motion determination system for generating an estimate as to the ego-motion of a vehicle moving along a roadway comprising: A. an image receiver configured to receive image information relating to a series of at least two images recorded as the vehicle moves along a roadway; and B. a processor configured to process the image information received by the image receiver to generate an ego-motion estimate of the vehicle relative to the roadway. 13. An ego-motion determination method for generating an estimate as to the ego-motion of a vehicle moving along a roadway comprising the steps of: A. an image information receiving step comprising the step of receiving image information relating to a series of at least two images recorded as the vehicle moves along a roadway; and B. an image information processing step comprising the step of processing the image information received by the image receiver to generate an ego-motion estimate of the vehicle relative to the roadway. 35. A computer program product for use in connection with a computer to provide an ego-motion determination system for generating an estimate as to the ego-motion of a vehicle moving along a roadway, the computer program product comprising a computer readable medium having encoded thereon: A. an image receiver module configured to enable the computer to receive image information relating to a series of at least two images recorded as the vehicle moves along a roadway; and B. a processor module configured to enable the computer to process the image information received by the image receiver module to generate an ego-motion estimate of the vehicle relative to the roadway. 5

6 II. ANALYSIS A. Claim Construction In an inter partes review, [a] claim in an unexpired patent shall be given its broadest reasonable construction in light of the specification of the patent in which it appears. 37 C.F.R (b). That construction must be consistent with the specification, and the claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010). Thus, we give claim terms their ordinary and customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007) ( The ordinary and customary meaning is the meaning that the term would have to a person of ordinary skill in the art in question. ) (internal quotation marks omitted). In applying the broadest reasonable construction, we do not discern that any term of claims 1, 13, and 35 should be interpreted in a manner that departs from its ordinary and customary meaning. Petitioner asserts that the preambles of the challenged claims should not be given patentable weight. Petitioner also proposes express constructions for the terms ego-motion and as the vehicle moves along a roadway, which appear in all three challenged claims. 1. claim preambles Petitioner asserts that the preambles of the challenged claims should not be given patentable weight. Pet. 6 (citing Catalina Marketing International v. CoolSavings.com, Inc., 289 F.3d 801, 810 (Fed. Cir. 2002)). In Catalina Marketing, the Federal Circuit held: 6

7 In general, a preamble limits the invention if it recites essential structure or steps, or if it is necessary to give life, meaning, and vitality to the claim. Conversely, a preamble is not limiting where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention. 289 F.3d at 810 (citations and quotation marks omitted). The preambles of the challenged claims fall into the latter, non-limiting, category. The preamble of claim 1 recites a system for generating an estimate as to the ego-motion of a vehicle ; the preamble of claim 13 recites a method for generating an estimate as to the ego-motion of a vehicle ; and the preamble of claim 35 recites a computer program product... to provide an ego-motion determination system for generating an estimate as to the ego-motion of a vehicle (emphasis added). Based on their language, we determine that the preambles provide a stated purpose, but they do not provide essential structure or steps. Rather, the bodies of the claims define structurally complete inventions. Accordingly, we do not accord patentable weight to the preambles of the challenged claims. 2. ego-motion estimate of the vehicle relative to the roadway Petitioner proposes that the term ego-motion should be construed as one or more components of the self-motion of an observer or camera, for example, with respect to a static environment, or static parts of an environment. Pet. 7. But, the specification repeatedly refers to ego-motion as mere self-motion. Ex. 1001, col. 1, l. 13, l. 21; col. 2, ll

8 Rather than construing the term ego-motion by itself, as Petitioner proposes, we construe the term ego-motion estimate of the vehicle relative to the roadway. In so doing, we note that the specification describes ego-motion estimation in terms of estimating a translational movement component (e.g., as a vehicle moves in a forward direction) as well as a rotational movement component (e.g., as the vehicle turns). Col. 1, ll ; col. 2, l. 60 col. 3, l. 1. Consistent with this disclosure, we determine that the broadest reasonable construction of the term ego-motion estimate of the vehicle relative to the roadway is an estimate of one or more components of the self-motion of a vehicle relative to the roadway. 3. as the vehicle moves along a roadway Claims 1, 13, and 35 recite at least two images recorded as the vehicle moves along a roadway (emphasis added). Petitioner proposes that as the vehicle moves along a roadway should be construed to mean: as the vehicle moves with respect to a roadway. Pet. 8. In so doing, Petitioner argues that it makes no difference with respect to the ego-motion estimation algorithm whether the vehicle is driving on the road or flying over it. Pet. 8. Petitioner relies on testimony of David J. Heeger, Ph.D., ( Heeger Declaration ) in support, but that testimony merely repeats the same conclusory argument that whether the vehicle is flying or driving, it makes no difference. Ex. 1011, 33. Petitioner does not identify any claim construction principle that support its argument, and we are not apprised of any justification for reading along a roadway out of the claims, as Petitioner effectively proposes. The Specification 8

9 also does not support Petitioner s construction. The ordinary and customary meaning of a vehicle moving along a roadway does not encompass an airplane or helicopter flying above the ground. Thus, we reject the proposed construction, and we determine that the term as the vehicle moves along a roadway requires a vehicle that is moving on, and longitudinally with respect to, a road. B. Anticipation by Bhanu Petitioner asserts that the challenged claims are anticipated by Bhanu. Pet In support, Petitioner provides detailed analysis as to how each claim limitation is met by Bhanu. Id. Upon review of that analysis, the Bhanu reference, and the Heeger Declaration, we determine that Petitioner has demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenge to the claims on the ground that they are anticipated by Bhanu. Bhanu is directed to [d]etermining the self-motion in space of an imaging device (e.g., a television camera) by analyzing image sequences obtained through the device. Ex. 1005, Abstract. In particular, Bhanu states that self-motion of an imaging device can be determined by analyzing image sequences obtained through the imaging device. Id. Bhanu further states that its ego-motion detection system is directed to use in an autonomous land vehicle (ALV). Id. at col. 2, l. 45; see also col. 2, ll Claim 1 requires an image receiver configured to receive image information relating to a series of at least two images. Claim 13 similarly requires an image information receiving step comprising the step of receiving image information relating to a series of at least two images. Claim 35 similarly requires 9

10 an image receiver module configured to enable the computer to receive image information relating to a series of at least two images. Bhanu discloses those features, as it discloses obtaining image sequences and pairs of images for computer vision applications. Ex. 1005, Abstract, col. 2, ll , col. 2, ll , ll , col. 25, ll Each of claims 1, 13, and 35 further requires that the images be recorded as the vehicle moves along a roadway. Bhanu discloses this feature, as it discloses an imaging device (e.g., a television camera) for obtaining image sequences (Ex. 1005, Abstract), and further discloses that the imaging device may be used in autonomous land vehicles. Id. at col. 2, ll ; see also col. 2, ll Claim 1 also requires a processor configured to process the image information received by the image receiver to generate an ego-motion estimate of the vehicle relative to the roadway. Claim 13 similarly requires an image information processing step comprising the step of processing the image information received by the image receiver to generate an ego-motion estimate. Claim 35 similarly requires a processor module configured to enable the computer to process the image information received by the image receiver module to generate an ego-motion estimate of the vehicle relative to the roadway. Bhanu discloses those features, as it is discloses transmitting the image sequence to a processor (Ex. 1005, col. 28, l. 1-4; Fig. 37) and calculating velocity and rotation from the image data. Id. at col. 23, ll

11 Petitioner, therefore, has demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenge to the claims on the ground that they are anticipated by Bhanu. C. Anticipation by Hanna Petitioner asserts that the challenged claims are anticipated by Hanna. Pet In support, Petitioner provides detailed analysis as to how each claim limitation purportedly is met by Hanna. Id. Upon review of that analysis, the Hanna reference, and the Heeger Declaration, we determine that Petitioner has not demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenged claims on the ground that they are anticipated by Hanna. Hanna teaches determining the motion of an image sensor through a scene and the structure of the scene from two or more images of the scene. Ex. 1006, col. 1, ll Hanna states that, [f]or navigation, the image sensor motion can be used to estimate the surface orientation of an approaching object like a road or a wall. Id. at col. 2, ll Petitioner s anticipation argument is premised on its proposed claim construction for the term as the vehicle moves along a roadway, which we have rejected. See Pet. 8, 16. More specifically, Petitioner seeks to construe that limitation as encompassing an embodiment of Hanna in which a moving image sensor views the ground below from aboard an aircraft. Pet. 16; Ex. 1006, col. 4, ll In the disclosed embodiment, the image sensor is on an airplane flying above the ground and, thus, not on a vehicle moving along a roadway. Hence, 11

12 Hanna does not disclose at least two images recorded as the vehicle moves along a roadway, as required by the challenged claims. Petitioner, therefore, has not demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenged claims on the ground that they are anticipated by Hanna. D. Obviousness in View of Hanna Petitioner alternatively asserts that the challenged claims are unpatentable under 35 U.S.C. 103 as obvious over Hanna. In support, Petitioner provides detailed analysis as to how the subject matter of each claim is rendered obvious by Hanna. Pet Upon review of that analysis, the Hanna reference, and the Heeger Declaration, we determine that Petitioner has demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenged claims on the ground that they are unpatentable over Hanna. Hanna teaches determining the motion of an image sensor (e.g., a video camera) through a scene and the structure of the scene from two or more images of the scene. Ex. 1006, col. 1, ll. 6-11; col. 4, l. 37. Hanna states that, [f]or navigation, the image sensor motion can be used to estimate the surface orientation of an approaching object like a road or a wall. Id. at col. 2, ll

13 Claim 1, for example, 6 requires an image receiver configured to receive image information relating to a series of at least two images. Hanna discloses this feature, as it discloses an image sensor that acquires two or more images. Ex. 1006, col. 1, ll Claim 1 further requires that the images are recorded as the vehicle moves along a roadway, and a processor configured to process the image information received by the image receiver to generate an ego-motion estimate of the vehicle relative to the roadway (emphasis added). With respect to these limitations, Petitioner notes that Hanna discloses using the invention as part of a vehicle navigation system to analyze image regions like the road ahead or an oncoming object. Pet. 17 (citing Ex. 1006, col. 13, ll. 8-11). Relying on this disclosure, Petitioner asserts that a person of ordinary skill in the art would understand that the Hanna invention could be used in a land vehicle that moves along roadways. Pet. 16; Ex. 1011, 49. We find this argument persuasive because land vehicles, such as automobiles, are a common type of vehicle. Petitioner also asserts that such a person would recognize that the Hanna invention would yield predictable results when implemented in a land vehicle. Pet. 16 (citing KSR Int l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); Ex. 1011, 49). We also find this argument persuasive, as Hanna specifically notes that its invention can be used to navigate a vehicle with respect to the road ahead or an oncoming object. Ex. 1006, col. 13, ll Claim 1 is exemplary because, as discussed above with respect to Petitioner s arguments that the challenged claims are anticipated by Bhanu, claims 13 and 35 include limitations similar to those of claim 1. 13

14 Petitioner, therefore, has demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenged claims on the ground that they are unpatentable over Hanna. E. Anticipation by Giachetti Petitioner asserts that the challenged claims are anticipated by Giachetti. Pet In support, Petitioner provides detailed analysis as to how each claim limitation is met by Giachetti. Id. Upon review of that analysis, the Giachetti reference, and the Heeger Declaration, we determine that Petitioner has demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenge to the claims on the ground that they are anticipated by Giachetti. Giachetti describes how to estimate the ego-motion from image sequences obtained by a TV camera mounted on a moving vehicle. Ex. 1007, p. 37, col. 2. Claim 1, for example, requires an image receiver configured to receive image information relating to a series of at least two images. Giachetti discloses this feature, as it describes acquiring image sequences with a TV camera that can be received and processed by an autonomous vehicle. Ex. 1007, p. 34, col. 1. Claim 1 further requires that the images are recorded as the vehicle moves along a roadway. Giachetti discloses this feature, as it states that the image sequences are acquired by a TV camera mounted on a vehicle while driving along roads. Ex. 1007, p. 34, col. 2. Claim 1 further requires a processor configured to process the image information received by the image receiver to generate an ego-motion estimate of 14

15 the vehicle relative to the roadway. Giachetti discloses computing optical flow from image sequences to obtain the ego-motion estimates. Ex. 1007, p. 34, col. 1. Petitioner asserts that Giachetti inherently discloses a processor for this function because the ego-motion estimates are obtained by autonomous vehicles. Pet ; Ex. 1007, p. 34, col. 1. We find this argument persuasive because the term autonomous vehicle connotes a vehicle that can operate without a human driver, and, in the absence of a human, the calculations must be performed by a processor. Petitioner also points to Dr. Heeger s testimony that, although Giachetti does not mention specifically a processor, it inherently discloses a processor because Giachetti s invention is in the field of software and computer vision. Ex. 1011, 36. We find Petitioner s arguments and Dr. Heeger s testimony persuasive because Giachetti describes its computation of optical flow from image sequences to determine ego-motion in terms of a computer vision algorithm[], which inherently would be performed by a processor See Ex. 1007p. 47, col. 1; see also p. 45, col. 1 (discussing Computer Vision ). Petitioner, therefore, has demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenged claims on the ground that they are anticipated by Giachetti. F. Anticipation by Suzuki Petitioner asserts that the challenged claims are anticipated by Suzuki. Pet Suzuki bears a copyright date of 1999, without indicating the month or day. Ex. 1008, p. 25. The earliest-filed provisional application, according to the face of the 621 Patent, was filed on November 26, Ex. 1001, p

16 Petitioner has not demonstrated that Suzuki was published prior to that date. Accordingly, Petitioner has not met its burden to show that Suzuki is prior art to the challenged claims. See 37 C.F.R (c). Petitioner, therefore, has not demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenge to the claims on the ground that they are anticipated by Suzuki. G. Obviousness in View of Sahli Petitioner asserts that the challenged claims are unpatentable under 35 U.S.C. 103 as obvious over Sahli. Pet In support, Petitioner provides detailed analysis as to how the subject matter of each claim is rendered obvious by Sahli. Id. Upon review of that analysis, the Sahli reference, and the Heeger Declaration, we determine that Petitioner has demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenge to the claims on the ground that they are unpatentable over Sahli. Sahli discloses an approach for vision-based road following by a vehicle, tailored to a well-structured highway environment with lane markers. Ex. 1009, Abstract. Lane markers are detected and used for dynamic update of the lateral position and orientation of the vehicle with respect to the lane markers. Id. Sahli does this through creating and updating a representation of the road boundaries from a sequence of images obtained by a camera. Id. at p. 5, col. 1. The camera is mounted on the vehicle. Id. at p. 5, col. 2. Claim 1 requires an image receiver configured to receive image information relating to a series of at least two images. Sahli discloses this feature, 16

17 as it discloses creating and updating a representation of the road boundaries from a sequence of images. Ex. 1009, p. 5, col. 1. Claim 1 further requires that the images are recorded as the vehicle moves along a roadway. Sahli discloses this feature, as it discloses using a vehiclemounted camera to record a sequence of images for visually navigating a vehicle along a road. Ex. 1009, p. 5, cols Claim 1 further requires a processor configured to process the image information received by the image receiver to generate an ego-motion estimate of the vehicle relative to the roadway. As Petitioner concedes, Sahli does not disclose expressly calculating the ego-motion of the vehicle because it does not disclose calculating the velocity of the vehicle. Pet. 39. Rather, Sahli discloses calculating and tracking the position of the vehicle. Id; Ex. 1009, Abstract. Petitioner, however, asserts that in view of Sahli, it would have been obvious to a person of ordinary skill in the art also to calculate the velocity. Pet. 39; Ex. 1011, Petitioner points out that it was known at the time of the invention how to derive velocity from the change of position over time. Pet. 39; Ex Petitioner also points out that Sahli calculates the position of a vehicle relative to lane markers in order to update the lateral position of the vehicle with respect to the lane markers to prevent the vehicle from departing the road. Pet (citing Ex. 1009, Abstract). Petitioner concludes that it would have been obvious also to calculate the velocity to further that purpose because it would provide guidance as 17

18 to how long it will take the vehicle to depart from the road. Pet. 39; Ex. 1011, 73. We find Petitioner s arguments and the supporting testimony of Dr. Heeger persuasive. More specifically, Petitioner is correct that it was known how to calculate velocity from change in position over time, that Sahli is concerned with maintaining a vehicle on a road, that Sahli calculates the lateral position of the vehicle with respect to the road boundaries in order to update the lateral position when updating is needed, and that knowing how fast the vehicle is drifting laterally, instead of knowing only the current lateral position, would be useful for carrying out the navigational purpose of Sahli. Petitioner, therefore, has demonstrated that there is a reasonable likelihood that it would prevail with respect to the challenge to the claims on the ground that they are unpatentable over Sahli. III. CONCLUSION For the forgoing reasons, we determine that the information presented in the Petition establishes that there is a reasonable likelihood that ionroad would prevail in showing unpatentability of the challenged claims of the ʼ621 patent. The Board has not made a final determination on the patentability of the challenged claims. 18

19 IV. ORDER Accordingly, it is ORDERED that pursuant to 35 U.S.C. 314, an inter partes review is hereby instituted as to claims 1, 13, and 35 of the 621 Patent for the following grounds: 1. Claims 1, 13, and 35 as anticipated by Bhanu; 2. Claims 1, 13, and 35 as obvious over Hanna; 3. Claims 1, 13, and 35 as anticipated by Giachetti; and 4. Claims 1, 13, and 35 as obvious over Sahli; FURTHER ORDERED that no other ground of unpatentability alleged in the petition for any claim is authorized for this inter partes review; FURTHER ORDERED that pursuant to 35 U.S.C. 314(d) and 37 C.F.R. 42.4, notice is hereby given of the institution of a trial; the trial commences on the entry date of this decision; and FURTHER ORDERED that an initial conference call with the Board is scheduled for 1:00 PM ET on September 26, The parties are directed to the Office Trial Practice Guide 7 for guidance in preparing for the initial conference call, and should be prepared to discuss any proposed changes to the Scheduling Order entered herewith and any motions the parties anticipate filing during the trial. 7 Office Patent Trial Practice Guide, 77 Fed. Reg , (Aug. 14, 2012). 19

20 For PETITIONER: Guy Yonay Caleb Pollack For PATENT OWNER: Karen Axt Louis M. Solomon 20