Ex Parte Bruls et al

Board of Patent Appeals and Interferences

Jun 28, 2012

10621003 (B.P.A.I. Jun. 28, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WILHELMUS HENDRIKUS ALFONSUS BRULS,
FREDERIK JAN BRUIJN, GERARD DE HAAN,
DZEVDET BURAZEROVIC, and
GERARDUS JOHANNES MARIA VERVOORT
____________

Appeal 2009-015017
Application 10/621,003
Technology Center 2400
____________

Before JOSEPH L. DIXON, CARL W. WHITEHEAD, JR. and
ANDREW J. DILLON, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-015017
Application 10/621,003

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims1-21. Appeal Brief 2. We have jurisdiction under 35 U.S.C. § 6(b)
(2002). We affirm in part.

Introduction
The invention is directed to “processing of video data for efficient
transmission.” Appeal Brief 3.
.
Exemplary Claim
Exemplary independent claim 1 under appeal reads as follows:
1. A method of encoding a video picture, the method
comprising:
for a segment of the video picture determining if the
segment can be reconstructed from at least another video
picture based on motion-compensated interpolation applied to
the other video picture;
if the segment cannot be reconstructed, encoding the
segment; and otherwise skipping the segment.

Appeal 2009-015017
Application 10/621,003

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Rejections on Appeal1
Claims 17 and 18 stand rejected under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. Answer 3 and 4.
Claims 1-21 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Hosono (U.S. Patent Number 5,796,438; issued August 18,
1998). Answer 5-7.

Issues on Appeal
1. Are claims 17 and 18 directed to non-statutory subject matter?
2. Does Hosono fail to teach determining if a segment of a video can
be reconstructed based on motion-compensated interpolation?
3. Does Hosono fail to teach skipping the segment if it can be
reconstructed by motion-compensated interpolation?

ANALYSIS
35 U.S.C. §101 rejection
Appellants argue that the 35 U.S.C. § 101 rejection is erroneous
because both claims 17 and 18 specifically recite: “Computer readable
medium that includes control software . . .” and the Examiner’s assertion
that “the claim does not define a computer-readable medium or memory and
is thus non-statutory” is incorrect. Appeal Brief 8. The Examiner contends

1 The Examiner withdrew the 35 U.S.C. § 101 rejection of claim 19.
Answer 7. However, the Examiner’s attention is directed to the portion of
this decision that addresses the 35 U.S.C. § 101 rejection of claims 17 and
18.

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that “includes control software for install on an electronic device” does not
specify how the instructions are associated with the medium or the nature of
the instructions. Answer 7-8.
The Manual of Patent Examining Procedure (M.P.E.P.) states:
Descriptive material can be characterized as either
“functional descriptive material” or “nonfunctional
descriptive material.” In this context, “functional
descriptive material” consists of data structures and
computer programs which impart functionality when
employed as a computer component. (The definition of
“data structure” is “a physical or logical relationship
among data elements, designed to support specific data
manipulation functions.” The New IEEE Standard
Dictionary of Electrical and Electronics Terms 308 (5th
ed. 1993).) “Nonfunctional descriptive material” includes
but is not limited to music, literary works, and a
compilation or mere arrangement of data.
Both types of “descriptive material” are
nonstatutory when claimed as descriptive material per se,
33 F.3d at 1360, 31 USPQ2d at 1759. When functional
descriptive material is recorded on some computer-
readable medium, it becomes structurally and functionally
interrelated to the medium and will be statutory in most
cases since use of technology permits the function of the
descriptive material to be realized. Compare In re Lowry,
32 F.3d 1579, 1583-84, 32 USPQ2d 1031, 1035 (Fed. Cir.
1994)(discussing patentable weight of data structure
limitations in the context of a statutory claim to a data
structure stored on a computer readable medium that
increases computer efficiency) and > In re < Warmerdam,
33 F.3d * > 1354, < 1360-61, 31 USPQ2d * > 1754, <
1759 (claim to computer having a specific data structure
stored in memory held statutory product-by-process claim)
with Warmerdam, 33 F.3d at 1361, 31 USPQ2d at 1760
(claim to a data structure per se held nonstatutory).
M.P.E.P. § 2106.01.
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Both claims 17 and 18 cite a “c]omputer readable medium that
includes software for installing on an electronic device.” However,
Appellants have not identified any written support for the “computer
readable medium” (Appeal Brief 7) and from our review, we find no such
support in the Specification or the original filed claims. Thus, reading
claims 17 and 18 in light of the Specification, the recited “computer readable
medium” encompasses transitory propagated signals. According to USPTO
guidelines, such claims must be amended to recite solely statutory subject
matter. See David J. Kappos, Subject Matter Eligibility of Computer
Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010).
Since Appellants do not provide support for the claimed “medium,”
the claims are directed to nonstatutory subject matter as the Examiner
indicated because they are broad being directed to a transitory signal. When
the broadest reasonable interpretation of a claim covers a signal per se, the
claim must be rejected under 35 U.S.C. § 101 as covering non-statutory
subject matter. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007)
(transitory embodiments are not directed to statutory subject matter).

35. U.S.C. §102 rejection
Appellants argue that “Hosono fails to teach determining if a segment
of a video picture can be reconstructed based on motion-compensated
interpolation, and Hosono fails to teach skipping the segment if it can be
reconstructed by motion-compensated interpolation.” Appeal Brief 9.
The Examiner relies upon Hosono’s Figure 9, column 8, lines 30-40
and column 5, lines 54-59 to show that Hosono teaches motion-compensated
interpolation and segment skipping. Answer 5. Appellants contend
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Hosono’s cited passage (column 8, lines 30-40) does not address
interpolation, does not teach determining whether a picture can be
reconstructed based on interpolation and does not teach skipping the
encoding if it can be reconstructed based upon interpolation. Appeal Brief
10.
Appellants argue that in Hosono’s cited passage (column 8, lines 30-
40): “if any differences exist between two images, the differences are
encoded and transmitted. Contrarily, in the Appellants’ invention, if the
differences are determinable by interpolation, so that the image can be
reconstructed based on the interpolation, the image is skipped, and neither
the image nor the differences is transmitted.” Reply Brief 3.
We agree and find Appellants’ arguments to be persuasive in
reference to the passage (column 8, lines 30-40) of Hosono cited by the
Examiner. However, the Examiner relied upon Hosono’s column 5, lines
54-59 passage to address the “skipping the segment” limitation and not the
column 8, lines 30-40 passage as Appellants contend. Answer 5; Appeal
Brief 10. Wherein Hosono discloses in column 5, lines 54-59:
In such case, the picture type is necessarily a B-picture
since the vector is also stored as a skip macroblock. Since
the MPEG standard provides that the motion vector needs
to be “0” for the skip macroblock of the P-picture, the skip
macro-block of the B-picture is employed.

We find that Hosono’s passage at column 5, lines 54-59 does not
address the deficiency of Hosono’s column 8, lines 30-40 passage noted
above and therefore we do not sustain the Examiner’s rejection of claim 1
and independent claims 5 and 18 that recite similar limitations pertains to
skipping a segment.
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Independent claims 17 and 19 do not recited limitations pertaining to
skipping a segment. However Appellants further argue:
In the Examiner’s Answer, the Examiner notes that
Hosono discloses interpolation at FIGs. 5A and 5B. This
is correct, but this interpolation is not related to an
interpolation between images. Hosono’s performs line-
based or pixel-based interpolation to create the
aforementioned averaged picture that is shifted by a half
pixel. Of particular note, both the original picture and the
averaged picture are sent to the MPEG decoder (i.e.
neither are “missing”):

“Referring to the example of FIGS. 2A and 2B1,
the original picture data (reference picture data) of
FIG. 2a is first fed to the decoder portion
(configuration downstream of the bitstream buffer
201) of the MPEG decoder and restored so as to be
stored in the frame memory. An averaging bit
stream having a motion vector of shifting the pixel
position by 0.5 only in the vertical direction is
routed to the decoder. The averaging bitstream is
pre - formed and stored in the averaged bitstream
storage area 305 of the ROM 304. In the decoder,
decoding in accordance with the MPEG rule is
carried out by the original picture data restored
and stored in the frame memory and by the
averaging bitstream vertically shifting the vector
by 0.5. Thus the decoder outputs vertically
averaged interpolated picture data as shown in
FIG. 2B.” (Hosono, column 5, lines 17-31).
Reply Brief 4.
We find Appellants’ arguments to be persuasive and we do not sustain
the Examiner rejections of claims 17 and 19 because Hosono fails to
disclose interpolation between images as claimed by Appellants.

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DECISION
The rejection of claims 17 and 18 under the 35 U.S.C. § 101 is
affirmed.
The rejection of claims 1-21 under 35 U.S.C. § 102 is reversed.

AFFIRMED IN PART

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