Ex Parte Fang et alDownload PDFPatent Trial and Appeal BoardAug 9, 201613009083 (P.T.A.B. Aug. 9, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/009,083 01119/2011 23696 7590 08/11/2016 QUALCOMM INCORPORATED 5775 MOREHOUSE DR. SAN DIEGO, CA 92121 FIRST NAMED INVENTOR Xin Fang 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 101914 1078 EXAMINER LE,PETERD ART UNIT PAPER NUMBER 2488 NOTIFICATION DATE DELIVERY MODE 08/11/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): us-docketing@qualcomm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte XIN FANG, WEI SHI, and GERALD PAUL MICHALAK Appeal2014-009445 Application 13/009,083 Technology Center 2400 Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and MICHAEL M. BARRY, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-009445 Application 13/009,083 STATE~vfENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-26, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION The claims are directed to dynamic video switching. Spec., Title. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A dynamic codec allocation method, comprising: receiving a plurality of datastreams; determining a respective codec loading factor for each datastream in the plurality of datastreams; assigning the datastreams to a hardware codec, in order by the respective codec loading factor and starting with the highest respective codec loading factor, until the hardware codec is loaded to substantially maximum capacity; and assigning the remaining datastreams to a software codec, if the hardware codec is loaded to substantially maximum capacity. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Nishimaki US 2010/0325638 Al Dec. 23, 2010 Chiang, "Hardware/Software Real-Time Relocatable Task Scheduling and Placement in Dynamically Partial Reconfigurable Systems," Thesis Submitted to Institute of Computer Science and Information Engineering College of Engineering National Chung Cheng University for the Degree of Master in Computer Science and Information Engineering (June 2007) 2 Appeal2014-009445 Application 13/009,083 REJECTIONS The Examiner rejected claims 1-26 under 35 U.S.C. § 103(a) as being unpatentable over Nishimaki and Chiang. Final Act. 5-15; Ans. 2-13. APPELLANTS' CONTENTIONS 1. "Nishimaki's [description] of mapping specific types of MPEG-2 and MPEG-4 encoding and decoding to a respective type of codec necessary to perform the respective encoding and decoding fails to explicitly describe a codec loading factor of a datastream and assigning datastreams to codecs in order by the datastreams' respective codec loading factor [as required by claim 1.]" App. Br. 12. 2. Neither Nishimaki nor Chiang describe assigning datastreams having a lower respective codec loading factor to a software codec if a hardware codec is loaded to substantially maximum capacity with datastreams having a higher respective codec loading factor as required by claim 1. App. Br. 13-17. 3. "[Because] the applied references fail to describe all elements of the claims[, they] ... fail to enable one skilled in the art to make and use the claimed apparatus and methods." App. Br. 17. ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments that the Examiner has erred. We disagree with Appellants' conclusions. We adopt as our own (1) the findings and reasons set forth by 3 Appeal2014-009445 Application 13/009,083 the Examiner in the action from which this appeal is taken (Final Act. 2-15) and (2) the reasons set forth by the Examiner in the Examiner's Answer in response to Appellants' Appeal Brief (Ans. 2-20) and concur with the conclusions reached by the Examiner. We highlight the following for emphasis. In connection with contention 1, Appellants argue the rejection of claim 1 is improper because Nishimaki fails to inherently describe the disputed limitation of a codec loading factor of a datastream and assigning datastreams to codecs in order by the datastreams' respective codec loading factor. App. Br. 12. According to Appellants, Nishimaki merely discloses mapping specific types of MPEG-2 and MPEG-4 encoding and decoding to a respective type of codec necessary to perform the respective encoding and decoding, not a codec loading factor or assignment of the datastream in a particular order. App. Br. 9. The Examiner responds by finding Nishimaki 's identification of MPEG-2 and MPEG-4 video types teaches the disputed loading factor and selective assignment to combinations of hardware and software encoders and decoders teaches assignment of datastreams to codecs in order by the respective codec loading factor (e.g., MPEG-2/MPEG-4 decoding or encoding). Ans. 18. Appellants' contention 1 is unpersuasive of Examiner error. Appellants' argument that Nishimaki fails to inherently describe the disputed limitation (App. Br. 12) is unpersuasive because there is neither an ipsissimis verbis test for a reference to disclose a claimed element nor an inherency requirement to find that the prior art teaches or suggests a limitation under 35 U.S.C. §103(a). Appellants further fail to provide persuasive evidence or a line of reasoning explaining why Nishimaki's Function ID identifying 4 Appeal2014-009445 Application 13/009,083 ~vfPEG-2 encoding, ~vfPEG-2 decoding, ~vfPEG-4 encoding, and ~vfPEG-4 decoding fails to teach or suggest determining a respective codec loading factor for each datastream. See, e.g., Nishimaki i-f 52. For example, Appellants fail to provide evidence in support of an interpretation of the disputed codec loading factor that distinguishes that claim element over the types of MPEG encoding and decoding recognized by Nishimaki. In contrast, Appellants' Specification discloses "codec loading factor can ... be based on datastream ... entropy coding type, as well as video profile and level values." Spec. i-f 52. Thus, in the absence of persuasive evidence or argument to the contrary, and consistent with the Examiner's findings (see, e.g., Ans. 16-1 7), we conclude a reasonable interpretation of the disputed codec loading factor consistent with the Specification includes and is taught by Nishimaki's MPEG encoding and decoding types. Furthermore, because Nishimaki discloses assigning MPEG streams to hardware and software codecs (i.e., encoders and decoders) based on (i.e., in order by) the respective codec loading factor (i.e., whether MPEG-2 or MPEG-4 and whether for encoding or decoding) starting with MPEG-4 encoding requiring a hardware codec (see Nishimaki Table 1 ), Nishimaki further teaches or suggests the disputed assignment requirement argued by Appellants in connection with contention 1 (see App. Br. 13.) Accordingly, Appellants' contention 1 is unpersuasive of Examiner error. In connection with contention 2 Appellants argue the prior art of Nishimaki and Chiang "fails to describe assigning datastreams having a lower respective codec loading factor to a software codec if a hardware codec is loaded to substantially maximum capacity with datastreams having a higher respective codec loading factor, as claimed." App. Br. 14. In 5 Appeal2014-009445 Application 13/009,083 response the Examiner finds Chiang discloses assigning remaining datastreams to a software codec if there is insufficient system power for a hardware codec, i.e., the hardware codec is loaded to substantially maximum capacity. Final Act. 4. We find Appellants' argument unpersuasive of Examiner error. The disputed limitation of Claim 1 requires "assigning the remaining datastreams to a software codec, if the hardware codec is loaded to substantially maximum capacity." That is, there is no requirement to assign datastreams to a software codec only if the hardware codec is at maximum capacity, but at least if loaded to maximum capacity. Therefore, there is no restriction in the claim precluding assigning datastreams to a software codec if the hardware codec is not at maximum capacity. Because both Nishimaki and Chiang disclose software and hardware codecs used for encoding and decoding, we find each teaches or suggests use of both, i.e., a software codec in addition to a hardware codec, including in the event (i.e., "if') the hardware codec is loaded to substantially maximum capacity as claimed. Furthermore, absent evidence or a persuasive line of reasoning to the contrary, we find one skilled in the art at the time of the invention would have recognized the advantage of employing additional resources (i.e., a software codec) to process data if alternative resources (e.g., a hardware codec) we unavailable because those resources were loaded to substantially maximum capacity. Therefore, Appellants' contention 2 is unpersuasive of Examiner error. Appellants' contention 3, although guised in the cloak of a failure of the references to provide an enabling disclosure (App. Br. 17), is instead argued on the basis the prior art fails to teach or suggest the claimed 6 Appeal2014-009445 Application 13/009,083 invention, argument that we find unpersuasive for the reasons discussed supra. Furthermore, we note in passing, the cited Therasense opinion 1 was subsequently vacated. 2 Accordingly, Appellants' contention 3 is unpersuasive of Examiner error. For the reasons supra we sustain the rejection of independent claim 1 and, for the same reasons, independent claims 7, 13, and 19 under 35 U.S.C. § 103(a) over Nishimaki and Chiang together with the rejection of dependent claims 2---6, 8-12, 14--18, and 20-26, which are not separately argued DECISION The Examiner's decision to reject claims 1-26 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)(l )(iv). AFFIRMED 1 Therasense, Inc. v. Becton, Dickinson and Co., 593 F.3d 1289, 1297 (Fed. Cir. 2010). 2 See Therasense, Inc. v. Becton, Dickinson and Co., 374 F. App'x 35, 36 (Fed. Cir. 2010). 7 Copy with citationCopy as parenthetical citation