Ex Parte Demircin et alDownload PDFPatent Trial and Appeal BoardAug 11, 201511479077 (P.T.A.B. Aug. 11, 2015) 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. 11/479,077 06/30/2006 M. U. Demircin SLA 1948 (7146.0368) 7924 55648 7590 08/11/2015 CHERNOFF VILHAUER MCCLUNG & STENZEL, LLP 601 SW Second Ave., Suite 1600 PORTLAND, OR 97204 EXAMINER SENFI, BEHROOZ M ART UNIT PAPER NUMBER 2482 MAIL DATE DELIVERY MODE 08/11/2015 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 M. U. DEMIRCIN and PETRUS J.L. VAN BEEK ____________________ Appeal 2013-003386 Application 11/479,077 Technology Center 2400 ____________________ Before JASON V. MORGAN, JON M. JURGOVAN, and DANIEL J. GALLIGAN, Administrative Patent Judges. JURGOVAN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellants1 filed a Request for Rehearing under 37 C.F.R. § 41.52 on July 20, 2015, following our Decision on Appeal mailed May 20, 2015. We have jurisdiction under 35 U.S.C. § 6(b). In our Decision on Appeal, we affirmed the Examiner’s rejection of claims 14–17, 19, 20, and 27, reversed the rejections of claims 1–13 and 21– 26, and entered new grounds of rejection for claims 1–13 and 21–26. We have reconsidered our Decision on Appeal in light of Appellants’ comments in the Request. We grant Appellants request to reverse the 1 Appellants state the real party in interest is Sharp Laboratories of America, Inc. App. Br. 2. Appeal 2013-003386 Application 11/479,077 2 Examiner’s rejection of claims 14–17, 19, 20, and 27, and we enter a new ground of rejection against claims 14–17, 19, 20, and 27. In addition, we enter a new ground of rejection against claims 3–8, 14–20, and 27. We decline to change our prior opinion concerning the rejection for claims 1–13 and 21–26 for the following reasons.2 ANALYSIS ALLEGED ERROR IN AFFIRMING REJECTION OF CLAIMS 14–17, 19, 20, AND 27 Appellants argue because we reversed the rejection of claim 1 in our Decision on Appeal, the rejection of claims 14–17, 19, 20, and 27 should have been reversed as well. Req. Reh’g 5. We hereby grant Appellants’ request to reverse the rejection of claims 14–17, 19, 20, and 27, and afford them an opportunity to respond to new grounds of rejection set forth below. We grant Appellants’ request because paragraphs 391–394 and 401 of the reference Jayant that the Examiner relied upon to teach the limitations of claim 14 were cited for the first time in the Answer. Furthermore, the new paragraphs were cited for the limited purpose of teaching “mean square error.” Ans. 9. Upon reconsideration, because the Examiner’s rejection based on the newly cited paragraphs of Jayant did not apply the teachings to the entire limitation of claim 14, we agree to provide Appellants another opportunity to respond to the rejection, and therefore, we grant Appellants’ request. 2 Our Decision on Rehearing refers to the Request for Rehearing filed July 20, 2015 (“Req. Reh’g”), the Decision on Appeal mailed May 20, 2015 (“Dec. on App.”), the Reply Brief filed Jan. 7, 2013 (“Reply Br.”), the Examiner’s Answer mailed Nov. 8, 2012 (“Ans.”), the Appeal Brief filed Aug. 31, 2012 (“App. Br.”), and the Final Office Action filed Aug. 13, 2012 (“Final Act.”). Appeal 2013-003386 Application 11/479,077 3 NEW GROUND OF REJECTION FOR CLAIMS 14–17, 19, 20, AND 27 We enter a new ground of rejection under 35 U.S.C. § 103(a) against claims 14–17, 19, 20, and 27 based on Mishra, Jayant, Wang I, and Wang II pursuant to our authority under 37 C.F.R. § 41.50(b) for the reasons stated in our prior affirmance in our Decision on Appeal. Also, claim 14 depends from claims 1 and 3, which stand rejected 35 U.S.C. § 103(a) for the reasons set forth in our Decision on Appeal. See Dec. on App. 5–7. Those reasons apply to claim 14 as well due to its dependency from claims 1 and 3. Claims 15–17, 19, 20, and 27 are dependent from claim 14, and are rejected due to their dependency from claim 14. NEW GROUND OF REJECTION FOR CLAIMS 3–8, 14–20, AND 27 We enter a new ground of rejection against claim 3 under 35 U.S.C. § 112(d), which provides “a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed.” Emphasis added. In relevant part, claim 1 recites “(c) wherein said encoding includes allocating bits for a plurality of frames of said video based upon . . . a rate distortion model.” Claim 3 recites “wherein said allocation is based upon said rate distortion model.” As the limitation of claim 3 is redundant to its corresponding limitation in claim 1, claim 3 does not further limit claim 1. Thus, it is an improper dependent claim under 35 U.S.C. § 112(d) and is rejected for this reason. Claims 4–8, 14–20, and 27 are likewise rejected due to their dependency from claim 3. ALLEGED IMPROPRIETY OF NEW GROUNDS OF REJECTION OF CLAIMS 1–13 AND 21–26 IN DECISION ON APPEAL Appeal 2013-003386 Application 11/479,077 4 Unable to Discern Rejection Argument Appellants argue they cannot reasonably discern from the Board’s new rejection in the Decision on Appeal whether claim 1 is being read upon (1) the overall procedure in Jayant of taking bits from GOPs [group of pictures or frames] with below average distortion and reallocating them to GOPs with above average distortion; (2) the initial procedure of collecting bits in a bit pool by siphoning such bits from GOPs with below average distortion; (3) the subsequent procedure of distributing bits from the bit pool among GOPs with above average distortion; or (4) all or some combination of the foregoing three options. Req. Reh’g 7. We note that Appellants’ indication of these options is evidence they reasonably can discern the Board’s reading of claim 1. The limitations of claim 1 are taught by Jayant’s inter-GOP case of item (1) in which bits are taken from one or more frames of a GOP, thereby increasing distortion of those frames, and allocating those bits to one or more frames of another GOP, thereby reducing distortion of one or more frames in that other GOP. Options (2) and (3) taken together are the same as option (1). Modeling Argument Appellants argue Jayant measures actual distortion rather than models it. Req. Reh’g 11. We disagree. Paragraph 386 of Jayant describes “rate and distortion models” and its heuristic approach to re-allocating bits for encoding frames of GOPs by taking them from GOPs with below average distortion and providing them to GOPs with above average distortion. That actual measurements of distortion are used in Jayant’s heuristic approach does not mean that no modeling is involved. It is well known that many kinds of modeling utilize actual measurements to correct the model’s inaccuracies. This is true in Jayant, in which actual distortion measurements Appeal 2013-003386 Application 11/479,077 5 are used to correct the initial allocation of bits to the GOPs, by reallocating the bits according to Jayant’s algorithm. See Jayant ¶¶ 386–403. Jayant’s equations in paragraphs 391, 392, 394, 400, and 402 model how bits should be taken from one GOP and re-allocated to another in order to equalize distortion among GOPs. Because rate distortion is directly related to the number of bits allocated to a GOP in order to encode its frames, under broadest reasonable interpretation, we find that Jayant’s equations model rate distortion as claimed. We further note that Appellants’ Specification states that rate distortion models existed at the time of the invention (Spec. ¶ 121), and that any type of compression rate distortion model, defined in the general sense, may be used in Appellants’ invention (Spec. ¶ 77). Thus, Appellants’ Specification contemplates a broad interpretation of “rate distortion model,” with which our interpretation is consistent. Accordingly, we do not find Appellants’ argument persuasive. Linear Function Argument Appellants argue that Jayant’s equations relating distortion in one frame to bits allocated to another frame, which is in some fashion linear, does not properly address the claim limitation at issue, which requires modeling of distortion in one frame as a linear function of a change in bits allocated to another frame. Req. Reh’g 7. We disagree with Appellants’ argument. As noted, the equations at Jayant paragraphs 391, 392, 394, 400, and 402 are linear, and are used to re-allocate bits from frames of GOPs experiencing less than average distortion, to frames experiencing more than average distortion. Thus, under the broadest reasonable interpretation, because rate distortion is directly related to the number of bits used to Appeal 2013-003386 Application 11/479,077 6 encode the frames of the GOPs, we are not persuaded by Appellants’ arguments. Frames versus GOPs Argument Appellants argue re-allocating bits from one GOP to another is not the same as reallocating bits from one frame to another. Req. Reh’g 8–9. We disagree. GOPs are composed of frames, so re-allocating bits from one GOP to another necessarily involves re-allocating bits from a frame of one GOP to a frame of the other. Moreover, Wang II describes allocation of bits assigned to a GOP to frames according to their complexity measures (Wang II col. 9, ll. 26–61), using linear equations (see, e.g., Wang II col. 11, ll. 15–35, equation (3)). Thus, because the claimed features are taught by the cited references, we are not persuaded by Appellants’ arguments. CONCLUSION We grant Appellants request to reverse the Examiner’s rejection of claims 14–17, 19, 20, and 27. We enter a new ground of rejection against claims 14–17, 19, 20, and 27 under 35 U.S.C § 103(a) based on Mishra, Jayant, Wang I, and Wang II under the reasoning set forth in our Decision on Appeal. We enter a new ground of rejection against claims 3–8, 14–20, and 27 under 35 U.S.C. § 112(d). We decline to change our prior opinion concerning the rejection for claims 1–13 and 21–26 under 35 U.S.C. § 103(a) based on Mishra, Jayant, Wang I, and Wang II. 37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Appeal 2013-003386 Application 11/479,077 7 37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new grounds of rejection to avoid termination of proceedings as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the Examiner, in which event the proceeding will be remanded to the Examiner. (2) Request rehearing. Request that the proceeding be reheard under 37 C.F.R. § 41.52 by the Board upon the same Record. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(f). GRANTED-IN-PART 37 C.F.R. § 41.50(b) aj Copy with citationCopy as parenthetical citation