Patent Avoids Invalidation Due to Error in Reference
Mystery of inconsistent data solved by looking at priority application

LG Electronics sought to invalidate Immervision’s patent for capturing and displaying digital panoramic images, so it filed for inter partes review (IPR) before the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO).

Immervision’s patent sought to capture an initial digital panoramic image using an objective lens having a non-linear image point distribution function that expands certain zones of the image and compresses other zones of the image. LG found a reference with a table of optical parameters that, when analyzed by its expert, had features of Immervision’s invention. After presenting the reference to the PTAB, the PTAB instituted the IPR.

Immervision’s expert looked at the data in the table and analyzed it in a similar way as LG’s expert. But then he noticed the results were inconsistent with the remainder of the description of the embodiment, and he knew there was an error. Further sleuthing revealed that the table’s data was accidentally copied from another embodiment, and that the actual data was not carried over from the reference’s priority application when it was converted from a Japanese patent application to a United States application. Faced with this evidence, the PTAB declined to invalidate Immervision’s patent.

A divided panel of the Federal Circuit affirmed the PTAB. Judge Stoll, joined by Judge Cunningham, reaffirmed that errant information cannot be said to disclose subject matter where it is an obvious error of a typographical or similar nature that would be apparent to one of ordinary skill in the art who would mentally disregard the errant information as a misprint or mentally substitute it for the correct information.

The majority further held that there is no requirement that a person of ordinary skill immediately recognize the error, although the amount of time it takes a skilled artisan to detect an error may be relevant to whether an error is, in fact, an apparent. Thus, that Immervision's expert took time to crunch the numbers in the embodiment and investigate how the error arose did not detract from the nature of the error when viewed under the totality of the circumstances. On this point, Judge Newman, in dissent, appears to have disagreed, as she found relevant that discovery of the error did not occur “until an expert witness conducted a dozen hours of experimentation and calculation.”