Ex Parte Greenfield

Patent Trial and Appeal Board

Feb 26, 2016

12788934 (P.T.A.B. Feb. 26, 2016)

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.
12/788,934 05/27/2010 Jonathan Greenfield 2809.0180000 7662
26111 7590 02/29/2016
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
DANG, HUNG Q
ART UNIT PAPER NUMBER
2484
MAIL DATE DELIVERY MODE
02/29/2016 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 JONATHAN GREENFIELD
____________________

Appeal 2014-000265
Application 12/788,934
Technology Center 2400
____________________

Before ST. JOHN COURTENAY III, CARLA M. KRIVAK, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1–29. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was
conducted on February 16, 2016.
We affirm.

THE INVENTION
The claims are directed to automatic playback overshoot control.
Spec., Title. Claim 1, reproduced below, is representative of the claimed
subject matter:
1. A method for controlling overshoot associated with a
trick mode terminate command used for displaying program
material, comprising:
receiving a trick mode command at an actual position of
the program material;
determining an offset;
displaying a trick mode preview of the program material
displaced from the actual position by the offset;
updating the actual position based on elapsed time;
terminating the trick mode preview according to a trick
mode terminate command; and
displaying, according to the trick mode terminate
command, the program material associated with the updated
actual position.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Jun et al.
Thornberry et al.
US 2002/0178453 A1
US 2011/0262111 A1
Nov. 28, 2002
Oct. 27, 2011
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REJECTIONS1
The Examiner made the following rejections:
Claims 1–9, 14–24, and 29 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Thornberry. Ans. 5–8.
Claims 10–13 and 25–28 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Thornberry and Jun. Ans. 9–11.

APPELLANT’S CONTENTIONS
1) Thornberry fails to qualify as prior art because Appellant conceived the
invention prior to Thornberry’s filing date and diligently constructively
reduced the invention to practice. App. Br. 9–12.
2) Thornberry fails to disclose a system that displays a trick mode preview
of the program material displaced from the actual position by the offset
as required by independent claims 1 and 15. App. Br. 15–18.
3) “Thornberry fails to teach displaying, according to the trick mode
terminate command, the program material associated with the updated
actual position [as required by independent claims 1 and 15].” App. Br.
18–20 (emphasis and formatting omitted).
4) Thornberry fails to teach the non-constant trick mode preview of claims 4
and 19. App. Br. 20–21.

1 Appellant collectively argues the rejection of independent claims 1 and 15
(App. Br. 19) and separately argue dependent claims 4 and 19 (App. Br. 20–
21) under 35 U.S.C. § 102(e). Separate patentability is not argued for
dependent claims 2, 3, 5–14, 16–18, and 20–29. Accordingly, based on
Appellant’s arguments, we decide the appeal of the rejection of claims 1–3,
10–18, and 25–29 under 35 U.S.C. §§ 102(e) and 103(a) based on claim 1
alone, and the appeal of the rejection of claims 4–9 and 19–24 under 35
U.S.C. § 102(e) based on claim 4 alone. See 37 C.F.R. § 41.37(c)(1)(iv).
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ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Final Act. 2–10)
and (2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellant’s Appeal Brief (Ans. 12–16) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
In connection with contention 1 Appellant argues the inventor
declarations are sufficient to show diligence during a first time period of ten
business days during which a draft of the patent application was undergoing
review and editing by the inventor (App. Br. 10–11) and the attorney
declaration is likewise sufficient to show attorney diligence during a
subsequent second time period of eleven business days during which the
attorney preparing the application incorporated the inventor’s changes into
and filed the subject patent application (App. Br. 11–12.) With respect to the
first time period during which the inventor “reviewed the draft multiple
times and ensured that it accurately reflected the invention” and “edited the
draft,” (App. Br. 10), Appellant argues such statements are evidence of
sufficient specific facts to constitute per se diligence during the disputed ten-
day period. App. Br. 11. Appellant further argues reasonable diligence on
the part of the inventor does not require the inventor dedicate attention
exclusively to filing of the application but allowance must be made for the
performance of other tasks that are part of the inventor’s daily job demands.
Id. Appellant similarly argues the second time period during which the
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application was awaiting review by and subsequently revised and filed by
the drafting attorney was reasonable based on the attorney’s declaration that
the time period reflected “obligations and work commitments to other
clients” which were performed in chronological order based on the date
assigned and associated deadlines likewise constituted the exercise of
reasonable diligence. App. Br. 11–12.
The Examiner responds by finding Appellant fails to describe
“activities, which are specific as to dates and facts, shown during the
[disputed time] periods from April 26, 2010 to May 7, 2010, [and] from May
7, 2010 to May 24, 2010.” Ans. 13. In particular, the Examiner concludes
“Applicant’s mere statements that, ‘during the periods the application had
been working on in terms of editing, reviewing etc.’ are . . . not sufficient.”
Id.
The sufficiency of a Rule 131 affidavit or declaration is within the
jurisdiction of the Board because it affects a rejection of the claims. See In
re DeBaun, 687 F.2d 459 (CCPA 1982) (reviewing Board decision involving
Rule 131 declaration). The purpose of filing a Rule 1.131 declaration is to
demonstrate that the applicant invented the subject matter of the rejected
claims prior to the effective date of a reference. 37 C.F.R. § 1.131; In re
Asahi/Am., Inc., 68 F.3d 442, 445 (Fed. Cir. 1995). “Antedating a reference
is a common occurrence, governed by a stable and non-controversial
jurisprudence.” Loral Fairchild Corp. v. Matsushita Elec. Indus. Co., 266
F.3d 1358, 1366 (Fed. Cir. 2001) (Newman, P., concurring). The law is well
settled that a reference may be removed from consideration by submitting an
affidavit (declaration) under 37 C.F.R. § 1.131, antedating the reference, or
by showing that the reference “is a description of the applicant’s own work”
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using an affidavit/declaration under 37 C.F.R. § 1.132. In re Costello, 717
F.2d 1346, 1349 (Fed. Cir. 1983).
37 C.F.R. § 1.131 provides that an applicant may establish invention
of the claimed subject matter before the effective date of the reference and
antedate the reference. The requisite showing of facts is set forth in
§ 1.131(b):
The showing of facts . . . shall be such, in character and weight,
as to establish reduction to practice prior to the effective date of
the reference, or conception of the invention prior to the
effective date of the reference coupled with due diligence from
prior to said date to a subsequent reduction to practice or to the
filing of the application. Original exhibits of drawings or
records, or photocopies thereof, must accompany and form part
of the affidavit or declaration or their absence must be
satisfactorily explained.
Thus, there are three ways in which an applicant can antedate a
reference: (1) actual reduction to practice of the invention prior to the
effective date of the reference; (2) conception of the invention prior to the
effective date of the reference coupled with due diligence from prior to the
reference date to a subsequent actual reduction to practice; or (3) conception
of the invention prior to the effective date of the reference coupled with due
diligence from prior to the reference date to the filing date of the application
(constructive reduction to practice).
In this appeal, the arguments advanced in the Appeal Brief (7–9),
indicate that Appellant is concerned with showing conception of the
invention prior to the effective filing date of the Thornberry publication
coupled with due diligence asserted from prior to the effective filing date of
the Thornberry application publication to the subsequent filing date of
Appellant’s filing date on May 27, 2010 (constructive reduction to practice).
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The requirement for Appellant to present evidence or an explanation is
set forth in 37 C.F.R. § 1.131(b): “Original exhibits of drawings or records,
or photocopies thereof, must accompany and form part of the affidavit or
declaration or their absence must be satisfactorily explained.” Thus, in order
to establish conception of the invention before the critical date, coupled with
due diligence until the date of constructive reduction to practice, the
declaration must be accompanied by original exhibits of drawings or
records, or photocopies thereof, or their absence must be satisfactorily
explained. See id. Assuming, arguendo, that Appellant’s statements in the
Declarations are sufficient to establish conception of the invention prior to
the effective date of the reference (on or before April 26, 2010), Appellant
must also establish due diligence from the time of conception until the date
of constructive reduction of the invention to practice, i.e. the filing date of
May 27, 2010.
During the period in which reasonable diligence must be shown, there
must be continuous exercise of reasonable diligence. In re McIntosh, 230
F.2d 615, 619 (CCPA 1956); see also Burns v. Curtis, 172 F.2d 588, 591
(CCPA 1949) (referring to “reasonably continuous activity”). A party
alleging diligence must account for the entire critical period. Griffith v.
Kanamaru, 816 F.2d 624, 626 (Fed. Cir. 1987); Gould v. Schawlow, 363 F.2d
908, 919 (CCPA 1966). Even a short period of unexplained inactivity is
sufficient to defeat a claim of diligence. Morway v. Bondi, 203 F.2d 742,
749 (CCPA 1953); Ireland v. Smith, 97 F.2d 95, 99–100 (CCPA 1938). In
In re Mulder, 716 F.2d 1542, 1542–46 (Fed. Cir. 1983), the Federal Circuit
affirmed a determination of lack of reasonable diligence, where the evidence
of record was lacking for a two-day critical period. Likewise, in Rieser v.
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Williams, 255 F.2d 419, 424 (CCPA 1958), there was no diligence where no
activity was shown during the first thirteen days of the critical period. A
party alleging diligence must provide corroboration with evidence that is
specific both as to facts and dates. Gould, 363 F.2d at 920; Kendall v.
Searles, 173 F.2d 986, 993 (CCPA 1949). The rule of reason does not
dispense with the need for corroboration of diligence that is specific as to
dates and facts. Gould, 363 F.2d at 920; Kendall, 173 F.2d at 993; see also
Coleman v. Dines, 754 F.2d 353, 360 (Fed. Cir. 1985).
Here, the record shows a gap of thirty-two calendar days, of which
twenty-four were regular working days in the United States and eight were
weekends. The critical period is from the date of conception (declared by
the inventor to be before April 26, 2010) until the date of Appellant’s
constructive reduction to practice (the date of filing of the subject
application on May 27, 2010). Appellant provided a Second Inventor
Declaration attesting to inventor activities between April 26 and May 7,
2010, inclusive (the ten business days of the first time period.)2 Ex. A2. The
Second Inventor Declaration describes activities on April 26, 2010 (receipt
of the draft application,) April 26 – May 7, 2010 (review of application,
editing draft) and May 7, 2010 (providing counsel with comments on the
draft.) An “Attorney Declaration under 37 C.F.R. § 1.132” by an attorney
involved in drafting and filing the application attests to having forwarded a
draft application to the inventor prior to April 26, 2010 and further addresses
activities between May 7 and May 27, 2010 describing working on the

2 A “First Inventor Declaration under 37 C.F.R. § 1.131” only addresses and
includes evidence in support of activities performed by the inventor on April
26 and May 7, 2010, the terminal days of the first time period, but does not
address activities during the intervening days. Ex. A1.
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application during the periods of May 19–21 and May 24–26, 2010 by
sending a revised draft to inventor for review, revising, editing and filing the
application. Ex. A3. The Examiner finds the First and Second Inventor
Declarations inadequate to demonstrate diligence during the first time period
from April 26 to May 7, 2010 and the Attorney Declaration inadequate to
demonstrate diligence during a second time period from May 7 to May 24,
2010 for failure to describe activities which are specific as to dates and facts.
Final Act. 3.
In reviewing the “Second Inventor Declaration under 37 C.F.R.
§ 1.131” (Ex. A2) addressing the time period between April 26 and May 7,
we find the following statements:
4. Below, I describe my activity for working on this invention
from April 26, 2010 to May 7, 2010:
a. As I previously stated in my first declaration, prior to
April 26, 2010 I received an email from Cablevision's
outside patent attorney, Aaron Ward that included a draft
(claims, abstract, and figures) of the '934 application.
b. From April 26, 2010 to May 7, 2010, a time period that
includes 10 business days, I reviewed the draft multiple
times and ensured that it accurately reflected the
invention. I also edited the draft. My review of the
patent application was handled with other projects that I
needed to perform for Cablevision during this period of
time.
c. In addition to reviewing and editing the draft during this
period of time, actively worked on other Cablevision
projects that were my responsibility, including, for
example, development of new products, working on
regulatory matters, keeping up on industry trends, and
other unrelated patent activities.
d. After I read the draft for the last time and I completed my
review, I emailed the draft along with my comments to
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Aaron Ward on May 7, 2010. (See the first declaration,
Exhibit B.)

However, other than generalities, specific facts have not been
provided showing the activities performed by the inventor during the first
time period of ten business days. For instance, there is no indication of
specific days and for how long on each day the inventor reviewed and edited
the draft application, what other projects were worked on during this period,
or identification of the referenced new products, regulatory matters, industry
trends, or unrelated patent activities mentioned in the declarations.
Furthermore, we find no explanation of why these other activities interfered
with or took priority over the review and editing of the application. Because
of this gap during the initial ten working days of the first time period we
cannot conclude there was reasonably continuous activity toward reducing
the invention to practice during the critical period from before April 26,
2010 (declared date of conception) until the date of Appellant’s constructive
reduction to practice (the filing date of Appellant’s application on May 27,
2010).
Appellant urges diligence was established by the Inventor
Declarations. App. Br. 10–11. Appellant further asserts “the inventor’s
actions from April 26, 2010 to May 7, 2010 as presented in the First and
Second Inventor Declaration are per se diligent.” App. Br. 11. However,
even short periods of unexplained activity (Morway, 203 F.2d at 749;
Ireland, 97 F.2d at 99–100), including periods as short as two days (Mulder,
716 F.2d at 1542–46) or 13 days (Rieser, 255 F.2d at 424) are considered by
our reviewing court to be sufficient to defeat a claim of diligence. In
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contrast, Appellant provides no authority in support of their argument that
any particular length of time during which an application is being reviewed
and edited, no matter how short, supports a conclusion of per se diligence.
Furthermore, the issues here lie with the insufficiency of proof. A
party alleging diligence must provide corroboration with evidence that is
specific both as to facts and dates. Gould, 363 F.2d at 920; Kendall, 173
F.2d at 993. The rule of reason does not dispense with the need for
corroboration of diligence that is specific as to dates and facts. Id; see also
Coleman, 754 F.2d at 360. Appellant has not presented sufficient
corroborated facts and dates to account for all activity during at least the ten
working days of the first time period of the overall thirty-two-day critical
period. The statements provided as evidence in the Inventor Declarations
are insufficient as to facts and dates and lack sufficient corroboration to
show reasonably continuous activity during the initial ten working day
period (the first time period) to support a finding of reasonable diligence
over the entirety of the critical period from before April 26, 2010 (declared
date of conception) until the date of Appellant’s constructive reduction to
practice (the filing date of Appellant’s application 12/788,934 on May 27,
2010).
For example, Appellant provides no supporting evidence of inventor
activity during the intervening time period between April 26 and May 7,
2010 of the first time period such as mark-ups of the draft, time and
attendance records, work product or emails relating to any of the activities
alleged to have been performed.
Correspondingly, we find there is no satisfactory explanation in the
record regarding the absence of such supporting evidence. See 37 C.F.R.
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§ 1.131(b)(“Original exhibits of drawings or records, or photocopies thereof,
must accompany and form part of the affidavit or declaration or their
absence must be satisfactorily explained.”)(Emphasis added). Instead, the
record before us only includes the Inventor’s uncorroborated statements that
he reviewed and edited the application and attended to other business
matters during these ten business days. Ex. A2. See Gould, 363 F.2d at 920.
For the reasons discussed supra, we agree with the Examiner that
Thornberry is available as prior art under 35 U.S.C. § 102(e) “at least
because Appellant failed to show diligence.” Ans. 12. Because our finding
that Appellant has presented inadequate proof of continuous reasonable
diligence during the first time period is dispositive of whether Appellant is
entitled to the benefit of priority antedating the Thornberry reference, we
need not and do not address whether Appellant has shown reasonably
continuous activity during the second time period from May 7 to May 24,
2010. Accordingly, we reach the merits of the art rejections under §§102
and 103, infra.

Anticipation Rejection of Claim 1 over Thornberry
In connection with contention 2, Appellant makes two arguments: (1)
Thornberry does not disclose a trick mode preview of programing that is
displaced by an offset (App. Br. 16); and (2) Thornberry’s high speed display
of programming is of an actual position, not the claimed offset trick mode
preview displaced from the actual position by an offset. App. Br. 16–18. In
connection with the first argument, Appellant takes the position Thornberry
generates a time offset from a starting time 403, not displaced from the
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actual position in the program that received the fast forward command. App.
Br. 16.
The Examiner responds that the disputed “actual position” is
interpreted as “a position where a current frame is outputted” as disclosed by
Thornberry and the disputed “trick command mode” is disclosed by
Thornberry’s fast forward command. Ans. 14. The Examiner finds
Thornberry’s calculation of time offset TO1 discloses determining an offset.
Id. Thus, the Examiner finds Thornberry’s high-speed presentation of
selected video frame 410 at frame count 1 that is displaced from start time
403 by time offset TO1 discloses the disputed limitation of a trick mode
preview of programming that is displaced from the actual position by an
offset. Ans. 14–15.
Appellant’s first argument is unpersuasive of Examiner error.
Appellant fails to provide persuasive evidence or line of reasoning
explaining why the Examiner’s mapping of the disputed claim limitation to
Thornberry’s disclosure is erroneous. For example, Appellant fails to
explain why Thornberry’s start time 403 is different from and fails to
disclose the disputed actual position or why Thornberry’s sixteen frame-
increment, equivalent to a 0.64 second time period offset between starting
time 403 and frame count TO1, fails to disclose a trick mode preview of the
program materials displaced from the actual position by an offset. At most,
Appellant argues start time 403 is not equivalent to an actual position but
fails to explain why.
In connection with the second argument, Appellant additionally argues
“[u]nlike Thornberry that only teaches a single position at which selected
frames 410 are outputted for display, claim 1 recites two positions — the
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actual position and the trick mode preview that differ by an offset.” App. Br.
17. The Examiner responds by finding Thornberry discloses two display
positions, “both an actual position and the position from which the high-
speed presentation is started, which is displayed from the actual position by
the offset.” Ans. 15.
Again, Appellant’s argument is unpersuasive of Examiner error.
Appellant’s argument that claim 1 requires the actual position be the position
in the program material at which the trick mode is received, not the current
position in the fast forward display (App. Br. 18), fails to address the
Examiner’s finding that starting time 403, when the high-speed presentation
is started, is equivalent to the actual position. Ans. 15. Appellants further
argument “[w]hen the trick mode command is received, a trick mode
preview and not the actual position is displayed” is not commensurate in
scope with the claims and, therefore, unpersuasive. App. Br. 17 (emphasis
added). In particular, claim 1 does not recite any timing or causal
relationship between the step of receiving a trick mode command and the
step of displaying a trick mode preview that would require display of a trick
mode preview when a trick mode command is received.3 Furthermore, claim
1 does not exclude displaying program material at the actual position when
the trick mode command is received. Therefore, Thornberry’s high speed
presentation of a selected video frame 410 at frame count =1 discloses the
disputed limitation of displaying a trick mode preview of the program

3 “[A]lthough a method claim necessarily recites the steps of the method in a
particular order, as a general rule the claim is not limited to performance of
the steps in the order recited, unless the claim explicitly or implicitly
requires a specific order.” Baldwin Graphic Systems, Inc. v. Siebert, Inc.,
512 F.3d 1338, 1345 (Fed. Cir. 2008).
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material displaced from the actual position (Thornberry’s starting time 403)
by the offset (Thornberry’s TO1).
In connection with contention 3, Appellant argues:
Thornberry, does not disclose how the actual position is updated
according to the trick mode terminate command, or at which
position in the video file or at which video frame the normal
presentation rate begins. (See Id.) At most, Thornberry only
teaches the “remaining video frames 401” displayed at “the
normal presentation rate.”
App. Br. 19. In response the Examiner finds Thornberry’s play command
terminates the high-speed presentation (i.e., “trick mode”) and returns a
display operation to a normal presentation rate. Ans. 16. The Examiner
further finds “at the time of the play command is issued, the updated actual
position would be the position of the frame corresponding to ‘frame count =
N’.” Ans. 15–16.
Again Appellant’s argument is unpersuasive of Examiner error.
During high-speed presentation Thornberry displays selected video frames
410 at consecutive frame counts 1, 2, . . . N corresponding to respective time
offsets TO1, TO2, . . . TON. Thornberry, Fig. 4, ¶¶ 33–34. Each time offset
corresponds to a predetermined frame count. Id. When the user issues a
play command 402B, operation returns to the normal presentation rate at
frame count = N as depicted in Figure 4, “during which each of the
remaining video frames 401 are displayed.” Thornberry ¶ 34. That is,
Thornberry’s high speed presentation starting time 403 is updated by a
succession of time offsets “as long as the fast-forward command 402A is in
effect,” i.e., until a user play command 402B causes a return to the normal
presentation rate. Id. Thus, Thornberry discloses updating the actual
position based on elapsed time, i.e., “as long as the fast-forward command
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402A is in effect.” Id.; see also Ans. 15. Furthermore, because, upon return
to the normal presentation rate, each of the remaining frames are displayed,
Thornberry discloses displaying, according to the trick mode terminate
command, the program material associated with the updated actual position
as required by independent claims 1 and 15.
For the reasons discussed supra, Appellant’s contentions 1–3 are
unpersuasive of Examiner error. Accordingly we sustain the rejection of
independent claims 1 and 15 under 35 U.S.C. § 102(e) as being anticipated
by Thornberry, together with the rejection of dependent claims 2, 3, 14,
16–18, and 29, also rejected under §102, which are not separately argued.

Anticipation Rejection of Claims 4–9 and 19–24
In connection with contention 4 Appellant argues Thornberry’s time
offsets TO1, TO2, . . . TON are not non-constant as required by claim 4
because “the rate of display of video frames 410 remains constant
throughout the fast forward.” App. Br. 20–21. The Examiner finds
Clearly shown in Fig. 4 of Thornberry and described in at least
[0034], during the high speed presentation, the offset transitions
from TO1 to TO2 to TO3 . . . to TON with TO1 is the initial offset
and TON is the final offset. Clearly TO1 is less than TON.
Therefore, Thornberry clearly teaches the non-constant trick
mode preview as recited [by claim 4.]
Ans. 16.
We agree with the Examiner. Although Appellant correctly argues
“the rate of display of video frames 410 remains constant throughout the fast
forward,” (App. Br. 20–21), this argument is unpersuasive because it is not
commensurate in scope with claim 4. In particular, claim 4 only requires
“displaying a non-constant trick mode preview such that the offset
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transitions from an initial offset value to a final offset value during display
of the non-constant trick mode preview, wherein the initial offset value is
less than the final offset value.” App. Br. 23 (Claim 4).
That is, according to claim 4, display of a non-constant trick mode
preview is satisfied “such that” the value of the offset varies from an initial
to a larger, final value. There is no recitation of a limitation involving a
“rate.” Instead, as found by the Examiner, Thornberry’s offsets start with a
value of TO1 of 640 msec, transitioning to TO2 with a value of 1280 msec,
TO3 having a value of 1320 msec, and, finally, to TON having a value of 640
msec × N. Ans. 16; Thornberry ¶ 34. Therefore, under a broad but
reasonable interpretation, Thornberry discloses the disputed limitation of
claim 4 even if, as argued by Appellant, Thornberry discloses only a constant
video frame display rate.
For the reasons discussed supra Appellant’s contention 4 is
unpersuasive of Examiner error. Accordingly, we sustain the rejection of
dependent claims 4 and 19 under 35 U.S.C. § 102(e) as being anticipated by
Thornberry together with the rejection of dependent claims 5–9 and 20–24,
not separately argued.

Rejection of Claims 10–13 and 25–28 under §103
Because these claims are not separately argued, we sustain the
rejection of dependent claims 10–13 and 25–28 under 35 U.S.C. § 103(a)
over Thornberry and Jun, for the same reasons discussed above regarding
independent claims 1 and 15.

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DECISION
The Examiner’s decision to reject claims 1–29 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