Ex Parte Erhart et al

Patent Trial and Appeal Board

Mar 27, 2013

10900560 (P.T.A.B. Mar. 27, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/900,560 07/28/2004 George W. Erhart AVYA.50US01 7774
109149 7590 03/27/2013
Cochran Freund & Young/ AVAYA, Inc.
2026 Caribou Drive
Suite 201
Fort Collins, CO 80525
EXAMINER
BLAIR, KILE O
ART UNIT PAPER NUMBER
2651
MAIL DATE DELIVERY MODE
03/27/2013 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 GEORGE W. ERHART, VALENTINE C. MATULA, and
DAVID SKIBA
____________________

Appeal 2010-009010
Application 10/900,5601
Technology Center 2600
____________________

Before JOSEPH F. RUGGIERO, MARC S. HOFF, and
JOHN A. EVANS, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of
claims 1-6, 8-18, and 20-25.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 The real party in interest is Avaya Technology LLC.
2 Claims 7 and 19 have been cancelled.
Appeal 2010-009010
Application 10/900,560

2
Appellants’ invention is a method and apparatus for priority based
audio mixing. The invention modifies at least one audio characteristic (e.g.,
volume, pitch, speed) of one or more audio streams to convey a relative
priority of the audio streams, prior to mixing audio streams. Relative priority
may be based, for example, on an analysis of the content of one or more of
the audio streams (Spec. 1-2).
Claim 1 is exemplary of the claims on appeal:
1. A method for mixing a plurality of audio streams, comprising:
adjusting an audio characteristic of one or more of said plurality
of audio streams based on a priority of at least one of said plurality of audio
streams, wherein said priority is dynamically determined by an application
priority module based on an analysis of a current content of said at least one
of said plurality of audio streams; and
mixing said plurality of audio streams.

The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Radenkovic US 2003/0182001 A1 Sep. 25, 2003
Knappe US 2004/0052218 A1 Mar. 18, 2004

Claims 1-4, 8-16, and 20-25 stand rejected under 35 U.S.C. § 102(a)
as being anticipated by Knappe.
Claims 5 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Knappe in view of Radenkovic.
Claims 6 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Knappe.
Throughout this decision, we make reference to the Appeal Brief
(“App. Br.,” filed Apr. 7, 2010), the Reply Brief (“Reply Br., filed Nov. 2,
2009), and the Examiner’s Answer (“Ans.,” mailed June 3, 2010) for their
respective details.
Appeal 2010-009010
Application 10/900,560

3
ISSUES
Appellants argue that Knappe does not teach the assignment of
priority based on current content of an audio stream (App. Br. 11).
Appellants assert that in Knappe, priority can be assigned “‘in advance,’”
rather than dynamically, and based on each individual’s status, rather than
based on the current content of the audio stream (App. Br. 11-12).
Appellants’ contentions present us with the following issue:
1. Does Knappe teach that priority of an audio stream is dynamically
determined?
2. Does Knappe teach that priority of an audio stream is determined
based on analysis of a current content of at least one of a plurality of audio
streams?
PRINCIPLES OF LAW
“A rejection for anticipation under section 102 requires that each and
every limitation of the claimed invention be disclosed in a single prior art
reference.” See In re Buszard, 504 F.3d 1364, 1366 (Fed. Cir. 2007)
(quoting In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir. 1994)).

ANALYSIS
CLAIMS 1-4, 8-16, AND 20-25
We are unpersuaded by Appellants’ arguments that Knappe fails to
teach dynamic determination of priority and that Knappe fails to teach
priority determination based on an analysis of current content of an audio
stream (App. Br. 11-12).
We agree with the Examiner’s finding (Ans. 4, 10) that Knappe
teaches that “the system detects an increase in the signal strength received
Appeal 2010-009010
Application 10/900,560

4
from the moderator, and diminishes the transmission of participant voice
streams in an amount proportional to the increase in the moderator’s signal
strength” (¶ [0061]). We agree with the Examiner that the cited section of
Knappe indicates dynamic determination of priority (“as the tone/loudness
of the moderators changes the priority of each participant stream changes,”
Ans. 4). We further agree that Knappe thus teaches priority determination
based on analysis of the current content (i.e., the amplitude) of an audio
stream (Ans. 4).
We are not persuaded by Appellants’ further argument that construing
the amplitude of the audio stream as corresponding to the claimed “audio
characteristic” as well as the claimed “‘current content”” is impermissible
(Reply Br. 7). We do not find any language in the claims that precludes such
an interpretation. Similarly unpersuasive is the argument that the Examiner’s
construction of “‘current content’” is contrary to the standard meaning of the
term “‘content’” (Reply Br. 8), urged as being synonymous with
“information.” The claim phrase to be construed is “current content of . . .
[an] audio stream,” rather than the mere term “content.” The urged definition
may be applicable to internet transmission of digital information, but is
inapplicable to an audio stream.
Last, we observe that Appellants’ argument that Knappe “teaches
away” from the claimed invention (App. Br. 11) is not an argument that is
applicable to a rejection for anticipation under 35 U.S.C. § 102.
We find that Knappe teaches all the limitations of representative claim
1. Thus, we will sustain the Examiner’s § 102 rejection of claims 1-4, 8-16,
and 20-25.

Appeal 2010-009010
Application 10/900,560

5
CLAIMS 5, 6, 17, AND 18
Claims 5 and 6 depend from claim 1. Claims 17 and 18 depend from
claim 13. We will sustain the rejection of claims 1 and 13, as explained
supra. Appellants present no separate argument directed to the patentability
of claims 5, 6, 17, and 18. Accordingly, we will sustain the Examiner’s §
103 rejection of claims 5, 6, 17, and 18, for the reasons given with respect to
the rejection of claims 1 and 13.

CONCLUSIONS
1. Knappe teaches that priority of an audio stream is dynamically
determined.
2. Knappe teaches that priority of an audio stream is determined
based on analysis of a current content of at least one of a plurality of audio
streams.
ORDER
The Examiner’s rejection of claims 1-6, 8-18, and 20-25 is affirmed.
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).

AFFIRMED

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