Ex Parte Gao et al

Patent Trial and Appeal Board

Aug 22, 2018

13539055 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/539,055 06/29/2012 Wen Gao
89394 7590 08/24/2018
Futurewei Technologies, Inc.
c/o Conley Rose, P.C.
5601 Granite Parkway
Suite 500
Plano, TX 75024
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.
4194-44901 1064
EXAMINER
ADROVEL, WILLIAM
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
08/24/2018 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):
dallaspatents@dfw.conleyrose.com
uspatent@huawei.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WEN GAO, GREGORY COOK,
MINGYUAN YANG, and HAOPING YU
Appeal2018-000515
Application 13/539 ,055 1
Technology Center 2400
Before JOSEPH L. DIXON, LARRY J. HUME, and
LINZY T. McCARTNEY, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1--40, which are all claims pending in the application.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Futurewei
Technologies, Inc. Br. 3.
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Application 13/539,055
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed embodiments and claimed invention relate to
lossless coding and associated signaling methods for compound video.
Spec. 1 (Title).
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphases added to contested prior art limitations):
1. An apparatus used in video encoding comprising:
a memory; and
a processor operably coupled to the memory and
configured to:
receive a video frame carrying instructions
identifying regions of the video frame as one of
lossless and lossy when the video frame is
received;
select at least one region in the video frame;
bypass a quantization step in encoding of the
at least one region when the at least one region
selected is lossless;
for a current block in the at least one region,
generate a prediction block;
subtract the current block by the prediction
block to generate a residual block; and
2 Our decision relies upon Appellants' Appeal Brief ("Br.," filed
Apr. 28, 2017); Examiner's Answer ("Ans.," mailed Sept. 28, 2017); Final
Office Action ("Final Act.," mailed Nov. 4, 2016); and the original
Specification ("Spec.," filed June 29, 2012). We note Appellants did not file
a Reply Brief in response to the factual findings and legal conclusions in the
Examiner's Answer.
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selectively bypass a transform step in
encoding of the residual block,
wherein regions of text and graphics are coded using a
lossless mode and regions of natural-view content are coded in
a lossy mode.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Schmit et al. ("Schmit") US 2010/0166055 Al July 1, 2010
Han US 2011/0150072 Al June 23, 2011
Marpe et al. ("Marpe") US 2013/0027230 Al Jan. 31, 2013
Ding, Wenpeng et al., Enable Efficient Compound Image
Compression in H.264/AVC Intra Coding, IEEE Int'l Conf. on
Image Processing, XP031157930, pp. 337-340, Sept. 2007,
(hereinafter "Ding").
Rejections on Appeal
RI. Claims 1, 2, 13-16, 27-29, and 36 stand rejected under 35
U.S.C. § I03(a) as being unpatentable over the combination of Han, Schmit,
and Ding. Final Act. 7.
R2. Claims 3-12, 17-26, 30-35, and 37--40 stand rejected under 35
U.S.C. § I03(a) as being unpatentable over the combination of Han, Schmit,
Ding, and Marpe. Final Act. 13.
CLAIM GROUPING
Based on Appellants' arguments (Br. 6-8), we decide the appeal of
obviousness Rejection RI of claims 1, 2, 13-16, 27-29, and 36 on the basis
of representative claim 1.
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Remaining claims 3-12, 17-26, 30-35, and 37--40 in Rejection R2,
not argued separately, stand or fall with the respective independent claim
from which they depend. 3
ISSUE
Appellants argue (Br. 6-8) the Examiner's rejection of claim 1 under
35 U.S.C. § 103(a) as being obvious over the combination of Han, Schmit,
and Ding is in error. These contentions present us with the following issue:
Did the Examiner err in combining the cited prior art in the manner
suggested to teach or suggest " [ a ]n apparatus used in video encoding,"
wherein, inter alia, "regions of text and graphics are coded using a lossless
mode and regions of natural-view content are coded in a lossy mode," as
recited in claim 1?
ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. To the extent Appellants have not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 4I.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claim 1 and,
unless otherwise noted, we incorporate by reference herein and adopt as our
3 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 4I.37(c)(l)(iv).
In addition, when Appellants do not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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own: ( 1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken, and (2) the reasons and rebuttals set forth in
the Examiner's Answer in response to Appellants' arguments. We highlight
and address specific findings and arguments regarding claim 1 for emphasis
as follows.
Appellants contend the Examiner erred in combining the prior art of
Han and Schmit with Ding in the manner suggested because Ding allegedly
renders Schmit unsatisfactory for its intended purpose and changes the
principle of operation of Schmit. See generally Br. 6-8. Appellants
specifically contend:
Br. 8.
[T]he Examiner is attempting to combine references that
disclose encoding schemes that are, relatively speaking, apples
and oranges:
Schmit Ding
lossy-text/ graphics lossy-faces
lossless-faces lossless-text/ graphics
If Schmit is modified to utilize the lossy coding mode of
Ding for faces as suggested by the Examiner, then Schmit will
no longer provide the highest quality type of encoding, lossless
encoding, for faces as advocated by Schmit. In other words,
Schmit will no longer provide "an improved quality video coder
for videoconferencing" applications as required by Schmit in
,r 16. Indeed, the most important feature of the video coding,
namely faces, will be encoded using a lower quality coding
mode instead of a higher quality coding mode if Schmit is
modified as suggested by the Examiner. Consequently, the
combining Han and Schmit with Ding renders Schmit
unsatisfactory for its intended purpose and changes the
principle of operation of Schmit, which is improper. Therefore,
the obviousness rejection of claims 1--40 should be withdrawn.
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An argument that the system is rendered " [unsuitable] for its intended
purpose" is a "teach[] away" argument. In re Gordon, 733 F.2d 900, 902
(Fed. Cir. 1984) (The court concluded that in effect, "French teaches away
from the board's proposed modification" because "if the French apparatus
were turned upside down, it would be rendered inoperable for its intended
purpose"). The Federal Circuit has held "[a] reference may be said to teach
away when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant." In re
Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d
551, 553 (Fed. Cir. 1994)).
In contrast to the holding in Gordon, and in response to Appellants'
argument, the Examiner finds, and we agree, "Schmidt's [sic] invention is
not limited to solely detecting faces. Schmidt [sic] can be optimized to
detect any detectable object type and is therefore not limited to face
detection in the manner described by Appellant in [their] arguments."
Ans. 5 (citing Schmit ,r 36).
Moreover, "[a]ll of the disclosures in a reference must be evaluated
for what they fairly teach one of ordinary skill in the art." In re Boe, 355
F.2d 961,965 (CCPA 1966). "[I]n a section 103 inquiry, 'the fact that a
specific [embodiment] is taught to be preferred is not controlling, since all
disclosures of the prior art, including unpreferred embodiments, must be
considered."' Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed.
Cir. 1989) (quoting In re Lamberti, 545 F.2d 747,750 (CCPA 1976)).
Further, inKSR, the Court stated "[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
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no more than yield predictable results." KSR Int'! Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill .... [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
Id. at 417.
In addition, Appellants have provided no evidence that combining
teachings of Han, Schmit, and Ding was "uniquely challenging or difficult
for one of ordinary skill in the art," Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007), nor have Appellants presented
evidence that this incorporation yielded more than expected results.
Rather, as in KSR, we find Appellants' invention is simply a
combination of known teachings that realize a predictable result. The
Supreme Court has determined the conclusion of obviousness can be based
on the interrelated teachings of multiple patents, the effects of demands
known to the design community or present in the marketplace, and the
background knowledge possessed by a person having ordinary skill in the
art. KSR, 550 U.S. at 418. The skilled artisan would "be able to fit the
teachings of multiple patents together like pieces of a puzzle" since the
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skilled artisan is "a person of ordinary creativity, not an automaton." Id. at
420-21.
In this case, with respect to the coding scheme chosen to be used in
encoding video of the claimed "natural-view content," e.g., faces, we find a
person with skill in the art could choose between one of two general
encoding approaches at issue in this Appeal - lossy or lossless - because
each technique has known relative advantages and disadvantages, depending
on the particular application and design goals.
We again note Appellants have not responded to the Examiner's
factual findings and legal conclusions in the Answer by filing a Reply Brief.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the cited prior art
combination to teach or suggest the limitations of claim 1, nor do we find
error in the Examiner's resulting legal conclusion of obviousness. Therefore,
we sustain the Examiner's obviousness rejection of independent claim 1, and
grouped claims 2, 13-16, 27-29, and 36, which fall therewith. See Claim
Grouping, supra.
In view of the lack of any substantive or separate arguments directed
to obviousness Rejection R2 of claims 3-12, 17-26, 30-35, and 37--40 under
§ 103, we also sustain the Examiner's rejection of these claims. Arguments
not made are waived. 4
4 Appellants do not address Rejection R2 in their Appeal Brief.
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CONCLUSION
The Examiner did not err with respect to obviousness Rejections RI
and R2 of claims 1--40 under 35 U.S.C. § I03(a) over the cited prior art
combinations of record, and we sustain the rejections.
DECISION
We sustain the Examiner's decision rejecting claims 1--40.
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). See 37
C.F.R. § 4I.50(f).
AFFIRMED
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