Ex Parte Cooper et alDownload PDFPatent Trial and Appeal BoardDec 12, 201411598870 (P.T.A.B. Dec. 12, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/598,870 11/13/2006 J. Carl Cooper PIXL-00304 1765 34051 7590 12/12/2014 Stevens Law Group 1754 Technology Drive Suite #226 San Jose, CA 95110 EXAMINER TRAN, TRANG U ART UNIT PAPER NUMBER 2422 MAIL DATE DELIVERY MODE 12/12/2014 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte J. CARL COOPER, MIRKO DUSAN VOJNOVIC, JIBANANANDA ROY, SAURABH JAIN, and CHRISTOPHER SMITH ____________ Appeal 2012-009511 Application 11/598,870 1 Technology Center 2400 ____________ Before CARL W. WHITEHEAD JR., BRUCE R. WINSOR, and JOHN A. HUDALLA, Administrative Patent Judges. HUDALLA, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1–23 and 25–37. 2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 According to Appellants, the real party in interest is Pixel Instruments, Inc. App. Br. 3. 2 The Examiner has not addressed claim 24 in any of the outstanding rejections, and Applicants make no arguments regarding claim 24. Accordingly, claim 24 is not before us. Appeal 2012-009511 Application 11/598,870 2 THE INVENTION Appellants’ invention is directed to measuring audio video synchronization. Abstract. Claim 1, reproduced below, is illustrative of the claimed subject matter: 3 1. A method for measuring audio video synchronization to produce a non-transitory measurement thereof, said method comprising the steps of: receiving a video portion and an associated audio portion of a combined audio and visual presentation; analyzing the audio portion to identify and filter audio data to reduce audio data related to a speaker's personal voice characteristics to produce a filtered audio signal; analyzing the filtered audio signal to locate the presence of particular phonemes therein; analyzing the video portion to locate the presence of particular visemes therein by analyzing the mouth areas; and analyzing the phonemes and the visemes to determine the relative timing of related phonemes and visemes thereof. Amendment of Nov. 12, 2010, 2. 3 In a paper dated April 1, 2011, Appellants attempted to amend the claims after the Examiner’s Final Office Action. This Amendment was not entered by the Examiner. Adv. Act. of Apr. 21, 2011. Appellants then filed three different versions of a Claims Appendix that was to accompany their Appeal Brief. All three versions are defective in at least one respect, and the most recently filed Claims Appendix incorrectly lists the claims inclusive of the Amendment After the Final Action that was not entered by the Examiner. See 37 C.F.R. § 41.37(c)(2) (2011) (“A brief shall not include any new or non-admitted amendment . . . .”). We consider the pending claims as they stood at the time of the Final Office Action. Ans. 4 (referring to the claims listed in Appellants’ Amendment of Nov. 12, 2010). In addition, page references to the Appeal Brief in this opinion will be made to the paper filed by Appellants on September 28, 2011. Appeal 2012-009511 Application 11/598,870 3 THE EXAMINER’S REJECTIONS 1. Claims 1–4, 17, and 29 stand rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 7, 11 and 15 of US 7,499,104 B2 (issued Mar. 3, 2009, “Cooper ’104”) and US 5,572,261 (issued Nov. 5, 1996, “Cooper ’261”). 4 Ans. 5–6. 2. Claims 1–10, 13–23, and 25–29 stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1–10, 12–22, and 24–28 of copending Application No. 11/598,871 (“the ’871 application”) and Cooper ’261. Ans. 7–10. 3. Claims 1–16 and 29–37 stand rejected under 35 U.S.C. § 101 as being directed to nonstatutory subject matter. Ans. 10–11. 4. Claims 1–5, 8, 9, 14–18, 21, 22, and 26–37 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Cooper ’261. Ans. 12–16. 5. Claims 6, 7, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Cooper ’261. Ans. 17. ISSUES Did the Examiner err in rejecting claims 1–4, 17, and 29 on the ground of nonstatutory obviousness-type double patenting over Cooper ’104 and Cooper ’261? Did the Examiner err in provisionally rejecting claims 1–10, 13–23, and 25–29 on the ground of nonstatutory obviousness-type double patenting over the ’871 application and Cooper ’261? 4 Appellants’ and the Examiner’s papers refer to Cooper ’261 simply as “Cooper” despite the fact that the named inventor on both cited references is Cooper. Appeal 2012-009511 Application 11/598,870 4 Did the Examiner err in rejecting claims 1–16 and 29–37 as being directed to nonstatutory subject matter? Did the Examiner err in finding that Cooper ’261 teaches the limitations “analyzing the video portion to locate the presence of particular visemes therein by analyzing the mouth areas” and “analyzing the video information including mouth shapes”? ANALYSIS Nonstatutory Obviousness-Type Double Patenting Rejections 1 & 2 Regarding the Examiner’s obviousness-type double patenting Rejection 1, Appellants state the following: Since the final scope of the present claims is yet to be determined, Applicant[s] respectfully submit[] that the double patenting rejection is premature. Applicant[s are] willing to consider a terminal disclaimer when the final scope of the claims has been established. App. Br. 40. Appellants do not otherwise address the double patenting rejections. In light of the tentative nature of Appellants’ offer to consider a terminal disclaimer, and the lack of argument by Appellants regarding the merits and substance of the double patenting rejections, we summarily sustain Rejection 1. See MPEP § 1205.02 (2014) (“If a ground of rejection stated by the examiner is not addressed in the appellant’s brief, appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it . . . .”); see also Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to present arguments on a particular issue—or more broadly, on a particular rejection—the Board will Appeal 2012-009511 Application 11/598,870 5 not, as a general matter, unilaterally review those uncontested aspects of the rejection.”). As to the Examiner’s provisional obviousness-type double patenting Rejection 2 in view of the ’871 application, this rejection is moot because USPTO’s electronic database (eDAN) indicates the ’871 application is no longer pending. See ’871 application, Notice of Abandonment (July 3, 2014). Nonstatutory Subject Matter Rejection 3 Appellants’ arguments regarding the Examiner’s Rejection 3 are wholly premised on their After-Final Amendment that was not entered. App. Br. 40–41; see also supra note 3. Appellants do not present any reason why the Examiner erred in rejecting unamended claims 1–16 and 29–37 as being directed to nonstatutory subject matter. We therefore summarily sustain Rejection 3 under 35 U.S.C. § 101. Anticipation Rejection 4 and Obviousness Rejection 5 The Examiner’s anticipation Rejection 4 and obviousness Rejection 5 are both based on Cooper ’261. Ans. 11–17. Although Appellants’ responses to these rejections are again premised on the claims as they existed in the After-Final Amendment that was not entered, App. Br. 41, 44, the substance of Appellants’ arguments relates to limitations that were not amended. We therefore consider Appellants’ arguments. Regarding anticipation Rejection 4, the Examiner finds that Cooper ’261 discloses the limitation “analyzing the video portion to locate the Appeal 2012-009511 Application 11/598,870 6 presence of particular visemes therein by analyzing the mouth areas,” as recited in claim 1. Specifically, the Examiner cites a “pixel type logic circuit” in Cooper ’261 that classifies flesh tone colors in a video to detect various facial features, including the lips and teeth. Ans. 21 (quoting Cooper ’261, col. 7, ll. 26–42; col. 8, ll. 31–54). The Examiner thus concludes that the visemes in Cooper ’261 are these detected “lip shapes.” Ans. 22. In contrast, Appellants contend that the teachings in Cooper ’261 rely “solely on lip motion” rather than on “locat[ing] the presence of visemes,” as recited in claim 1. App. Br. 42–43 (emphasis in original). Yet no limitations in claim 1 require an analysis of static video—or preclude an analysis of moving video—to locate lip shapes or visemes. In addition, Cooper ’261 discloses the same type of video analysis of mouth areas recited in claim 1. Cooper ’261 teaches automatically determining the “location . . . of the mouth or lips” including “the palate, lips, teeth, tongue and various combinations thereof” by “identifying the presence and location of mouth related pixels . . . .” Cooper ’261, col. 2, ll. 45–60. This corresponds to the section in Appellants’ Specification cited by Appellants in support of the video “analyzing” step, which teaches “accurately extract[ing] and examin[ing] the lip region” of a speaker depicted in a video signal to “detect[] closed lips, wide open mouth and all teeth and lips.” Spec. 9, ll. 14–19 (quoted by Appellants at App. Br. 41–42). Accordingly, Appellants’ attempt to distinguish Cooper ’261 on the basis of “lip motion” is not persuasive. Appellants also seek to differentiate the claimed “locat[ing] the presence of particular visemes” from the sections of Cooper ’261 pertaining to locating “lip shapes” that are cited by the Examiner. App. Br. 42–43. Yet Appeal 2012-009511 Application 11/598,870 7 Appellants’ own Specification admits that the analysis of visemes is disclosed in Cooper ’261. In characterizing the prior art, Appellants’ Specification cites Cooper ’261 and states that it “describes the use of actual mouth images in the video signal to predict what syllables are being spoken . . . .” Spec. 2, ll. 21–22 (emphasis added); see also Spec. 3, ll. 22– 23 (Cooper ’261 “describes a mode of operation of detecting the occurrence of mouth sounds in both the lips and audio.”). Correspondingly, Appellants’ Specification equates visemes with “Video MuEvs” (meaning Video Mutual Events), and the analysis of Video MuEvs is said to include syllable recognition. Spec. 14, l. 26–15, l. 14; see also App. Br. 42 (equating viseme and Video MuEv). For these reasons, we agree with the Examiner that Cooper ’261 discloses the limitation “analyzing the video portion to locate the presence of particular visemes therein by analyzing the mouth areas” from claim 1. Accordingly, Appellants have not persuaded us of error in the Examiner’s anticipation Rejection 4 for claim 1; therefore, we sustain this rejection. Appellants have not presented separate arguments directed to anticipation Rejection 4 for claims 2–5, 8, 9, 14–18, 21, 22, and 26–37. We likewise sustain this rejection. In addressing obviousness Rejection 5, Appellants focus on the limitation “analyzing the video information including mouth shapes” in claims 4 and 17 (from which rejected claims ultimately depend) and contend that this limitation is not taught by Cooper ’261. App. Br. 43–45. Yet Appellants simply reiterate their argument that Cooper ’261 relates solely to “[m]otion-based detection of mouth sounds” and attempt to distinguish claims 4 and 17 on the basis that they “focus[] on ‘mouth shapes’ without Appeal 2012-009511 Application 11/598,870 8 regard for time.” Id. 44–45. We agree with the Examiner that claims 4 and 17 do not have a “without regard for time” limitation, Ans. 23; see also Analysis of Rejection 4, supra, so Appellants’ attempt to distinguish analysis of moving images is not persuasive. In addition, for the same reasons stated above, we agree with the Examiner that Cooper ’261 discloses the “analyzing the video information including mouth shapes” limitation in claims 4 and 17. Accordingly, Appellants have not persuaded us of error in the Examiner’s obviousness Rejection 5; therefore, we sustain this rejection. DECISION The Examiner’s obviousness-type double patenting rejection of claims 1–4, 17, and 29 over Cooper ’104 and Cooper ’261 is affirmed. The Examiner’s rejection of claims 1–16 and 29–37 under 35 U.S.C. § 101 is affirmed. The Examiner’s rejection of claims 1–5, 8, 9, 14–18, 21, 22, and 26– 37 under 35 U.S.C. § 102(b) is affirmed. The Examiner’s rejection of claims 6, 7, 19, and 20 under 35 U.S.C. § 103(a) is affirmed. The Examiner’s provisional obviousness-type double patenting rejection of claims 1–10, 13–23, and 25–29 over the ’871 application and Cooper ’261 is moot and is no longer before us. There is no rejection of claims 23–25 before us. Because we have affirmed at least one ground of rejection with respect to each claim before us on appeal, the Examiner’s decision is affirmed. See 37 C.F.R. § 41.50(a)(1). Appeal 2012-009511 Application 11/598,870 9 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2012). AFFIRMED kis Copy with citationCopy as parenthetical citation