Ex Parte Kirn

Board of Patent Appeals and Interferences

May 14, 2009

11108243 (B.P.A.I. May. 14, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LARRY KIRN
____________

Appeal 2009-1422
Application 11/108,243
Technology Center 2800
____________

Decided:1 May 14, 2009
____________

Before JOHN A. JEFFERY, KARL D. EASTHOM, and
ELENI MANTIS MERCADER, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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Application 11/108,243

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-5 (Br. 1).2 We have jurisdiction under 35 U.S.C. §
6(b).
We affirm.
According to Appellant, the invention minimizes “distortion artifacts”
(Spec. 2:1) or “mitigate[s] pulsewidth distortions” (Spec. 3:24) caused by
varying sample rates. In Appellant’s Figure 1, and in the disclosure in
general, it appears that the average power, voltage, or current for each of
three pulse traces having pulses of equal amplitude and unequal sample rates
is equal (provided that the duty cycle of each of the different pulse traces is
equal).3 It also appears that Appellant’s invention corrects for different
pulse/sample rates that differ by a factor N by multiplying the pulse
amplitude of a pulse trace having a varied pulse rate by an inverse factor N.
The factor N, though unspecified in the disclosure, appears to be the ratio of
a varied pulse rate (i.e., the rate of trace 102 or 103) to an unvaried pulse rate
(i.e., the rate of trace 101). (See generally Fig. 1; Spec. 1:23 to 3:27).
Exemplary claim 1 follows:
1. A method of reducing artifacts in a sampled system,
comprising the steps of:

2 Appellant’s Brief (filed May 22, 2007) (“Br.”) and the Examiner’s Answer
(mailed Aug. 21, 2007) (“Ans.”) detail the parties’ positions.
3 Appellant’s disclosure states: “the integrals of traces 101, 102, and 103 are
the same (within drawing tolerances) while the sampling periods are
markedly different.” (Spec. 3:22-24). This is not correct. The integral of a
longer pulse (i.e., the area under a pulse) is larger than that of a shorter
pulse, assuming equal pulse amplitudes. However, the average of each trace
101, 102, and 103 appears to be equal – the average equals the integral of a
pulse trace divided by its period.
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modulating the sampling period of a sampled system
with a factor N; and
correcting the data stream of the sampling system with
the same factor N, thereby minimizing distortion artifacts
induced by sample frequency modulation.

The Examiner relies on the following prior art references:

Anne US 6,744,812 B2 Jun. 1, 2004
(filed Dec. 6, 2002)
Porter US 6,903,699 B2 Jun. 7, 2005
(filed Oct. 7, 2002)

The Examiner rejected claim 1 as anticipated under 35 U.S.C. §
102(b) based on Anne.4
The Examiner rejected claims 2-5 as obvious under 35 U.S.C. §
103(a) based on Anne and Porter.

ISSUES
Did Appellant demonstrate that the Examiner erred in finding that
Anne teaches “modulating the sampling period” and “minimizing distortion
artifacts induced by sample frequency modulation” as recited in claim 1?
Did Appellant demonstrate that the Examiner erred in finding that
Anne and Porter collectively teach avoiding heterodyning as set forth in
claim 2?

4 Based on the respective filing dates of Anne and the instant application,
Anne does not qualify as prior art under 35 USC 102(b), but rather qualifies
as prior art under 35 USC 102(e). Appellant has waived any argument based
on the Examiner’s recitation of the improper statutory category which in any
case constitutes harmless error.
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Did Appellant demonstrate that the Examiner erred in finding that
Anne and Porter collectively teach a data stream representative of voltage as
set forth in claim 3?

FINDINGS OF FACT (FF)
Appellant’s Disclosure
1. Appellant discloses varying the sampling period/rate/frequency of
pulse traces. It is not clear if the variance is intentional or undesired. (Fig. 1;
Spec. 2:8-17; see also infra FF 2, 3).
2. Appellant refers to the variance of sampled pulse
periods/rates/frequencies in numerous manners, including, inter alia:
“variable-frequency sampling rate” (Spec. 1:20), “modulating the sampling
period” (id. at 1:23), “sample frequency modulation” (id. at 2:1-2),
“different output sample rates” (id. at 2:9), “sampling rate deviances” (id. at
3:25), “sampling frequency variances” (id. at 3:26), and “markedly
different” “sampling periods” (id. at 3:23-24). (See also Fig. 1).
3. Appellant describes a need to “operate at minimal distortion with
variable-frequency sampling rate” (Spec. 1:19-20). Appellant characterizes
the invention as “minimizing distortion artifacts induced by sample
frequency modulation” (id. at 2:1-2). Appellant concludes: “The present
invention can therefore be seen to mitigate pulsewidth distortions induced by
sampling rate deviances” (id. at 3:24-25).
4. Appellant’s disclosure states: “Implicit in the above technique is at
least a one-period delay from receipt of a new data stream value, so as to
avoid heterodyning with the incoming stream” (id. at 2:2-3).
Anne
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5. Anne discloses a network modem, capable of communicating over
a standard telephone line, comprising a digital signal processor (DSP)
implementing a plurality of modulation/demodulation techniques such as
pulse position modulation, quadrature phase shift keying (QPSK), and
quadrature amplitude modulation (QAM) (col. 3, l. 57 to col. 4, l. 1).
6. One embodiment of Anne’s DSP includes data pumps, each
operating at a distinct sampling frequencies, and which manage processing
for the DSP, including modulation/demodulation, and DSL and phone line
communications (col. 5, ll. 27-31; Fig. 5). This DSP embodiment, depicted
in Figure 5 of Anne, includes a decimator 532 and interpolator 536, which
transmit and receive, respectively, through digital filters 516, 530, and 524,
samples at different rates matching the distinct sample rates of the three
separate data pumps (500, 504, and 508) in the DSP (col. 20, ll. 48-61; Fig.
5).
7. Anne’s decimator 532 changes the network 20 MHz input
sampling rate to different values of either 8 kHz, 424 kHz, or 4 MHz to
match respectively to the sampling rates for the three data pumps: V.90
(500), DSL (504), and Phone Line Network (508). (Fig. 5; col. 21, ll. 43-
60).
8. Anne’s interpolator 536 generally performs the opposite function
of the decimator 532. It changes the sampling rate input from the pump
values of 8 kHz, 424 kHz, and 4 MHz to 20 MHz at the output of the
interpolator. (Fig. 5; col. 21, l. 61 to col. 22, l. 12).
9. Anne’s interpolator inserts samples in order to create a stream of
20 kHz samples from the lower frequency (i.e., 8 kHz, 424 kHz, 4 MHz)
samples. One technique involves smooth curve fitting by interpolating and
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inserting samples between the 4 kHz samples (representing samples of
audio/voice signals). (Col. 20, ll. 31-34; col. 22, ll. 1-9).
10. Anne describes the samples as representing voltage values of an
analog waveform, which, when transmitted, become samples of pulsed
digital data imposed on a carrier waveform, which the system demodulates
back into digital data. (See, e.g., col. 9, ll. 31-37; col. 10, ll. 46-54; col. 11, l.
43 to col. 12, ll. 5; col. 17, ll. 20-49; col. 20, ll. 5-17). For example, Anne
states: “Each sample represents the voltage value of the symbol waveform at
a discrete moment in time” (col. 10, ll. 46-48).
11. Anne discloses that pulses (in a pulse position modulation
scheme) that vary greatly with respect to one another in amplitude are
“bursty” and create noise problems (col. 2, l. 66 to col. 3, l. 9).
12. Anne’s DSP reduces intersymbol interference (ISI) and performs
echo cancellation and noise reduction. It also performs filtering, accurate
synchronization, and correlation processing. (Col. 4, ll. 5-31; col. 22, ll. 24-
35).
13. Anne’s DSP addresses syncing problems due the inherent phase
shift between transmit and receive clocks and the drift in clock oscillators.
A PPL (phase locked loop) in the DSP synchronizes the received signal with
a timing carrier signal, so that the signal can be separated from the data.
(Col. 4, ll. 13-46; col. 22, ll. 30-35, col. 12, l. 37 to col. 13, l. 9; Figs. 3A to
3C). As such, Anne’s system “eliminat[es] problems with symbol
synchronization during demodulation” (col. 5, ll. 48-49).
14. Anne discloses delaying pulses relative to other pulses in a pulse
delay modulation scheme (col. 2, ll. 21-25).

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Porter
15. Porter discloses a wireless communication device coupled to an
electric meter that transmits “voltage, current, power, energy usage . . . , and
meter billing information.” (Abstract; col. 4, ll. 57-64). “Those skilled in
the art will realize that the present invention is not limited to the types of
data mentioned herein . . .” (col. 4, l. 66 to col. 5, l. 1).

PRINCIPLES OF LAW
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Under § 102, anticipation is established when a single prior art
reference discloses expressly or under the principles of inherency each and
every limitation of the claimed invention. Atlas Powder Co. v. IRECO Inc.,
190 F.3d 1342, 1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79
(Fed. Cir. 1994).
Under § 103, KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 415-417
(2007), after outlining certain principles underlying the demonstration of
obviousness, stated:
“[T]here must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness” . .
. . [H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim,
for a court can take account of the inferences and creative steps
that a person of ordinary skill in the art would employ.

Id. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
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If the Examiner makes such a demonstration, the burden then shifts to
Appellant to overcome the prima facie case with arguments and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See Oetiker, 977 F.2d at 1445.
During examination of a patent application, the PTO “is obligated to
give claims their broadest reasonable interpretation during examination.” In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004).
“[T]he words of a claim ‘are generally given their ordinary and customary
meaning.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005)
(en banc) (citations omitted). “‘[C]laims must be construed so as to be
consistent with the specification, of which they are a part.’” Id. at 1316
(citation omitted). However,
[t]hough understanding the claim language may be aided by the
explanations contained in the written description, it is important
not to import into a claim limitations that are not a part of the
claim. For example, a particular embodiment appearing in the
written description may not be read into a claim when the claim
language is broader than the embodiment.
SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir.
2004).
“It is the applicants’ burden to precisely define the invention, not the
PTO’s.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (“The problem
in this case is that the appellants failed to make their intended meaning
explicitly clear.”).

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ANALYSIS
Appellant argues5 (Br. 4) that the Examiner erred (Ans. 4) in finding
that Anne anticipates claim 1, contending that Anne fails to disclose 1)
“modulating the sampling period” and 2) “reduc[ing] distortion artifacts
induced by the sampling frequency modulation.”
With respect to modulating the sample period, the Examiner found
(Ans. 3, 5) that Appellant’s system and Anne’s system modulate the
sampling period or sampling rate by changing it. As the Examiner found,
changing the sampling frequency f changes its period f=1/T.6 Appellant
fails to rebut the finding of this well-known relationship.
Anne’s decimator changes the sampling frequency (FF 7), and
therefore, its inverse, i.e., the period (FF 7; supra n.4). Appellant does not
dispute the change in frequency or rate, stating (Br. 4) “the decimator
‘adjusts the incoming sampling rate.’” It follows from the known inverse
relationship between frequency and time that changing the rate changes the
period. The finding is consistent with, and supported by, Appellant’s use of
different terms to describe the same phenomenon: “variable-frequency
sampling rate,” “modulating the sampling period,” “sample frequency
modulation,” “different output sample rates,” “sampling rate deviances,”

5 Appellant’s arguments with respect to the objections under 37 CFR 1.111
(Br. 2-3) are petitionable matters, not appealable matters, and are therefore
not before us. See MPEP § 706.01 (“[T]he Board will not hear or decide
issues pertaining to objections and formal matters which are not properly
before the Board.”); see also MPEP § 1201 (“The Board will not ordinarily
hear a question that should be decided by the Director on petition . . . .”).
6 Final Office Action 3 (mailed Jan. 22, 2007) (“The sampling rate and the
sampling frequency are the same thing. The sampling period (T) is the
reciprocal of the frequency (f) (f=1/t). If the reference adjusts the sampling
rate, it also adjusts the sampling period.”).
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“sampling frequency variances,” and “markedly different” “sampling
periods” (FF 2). Therefore, Appellant’s arguments (Br. 2-4), which reduce
to the unsupported assertion that “changing” the sampling frequency or rate
does not constitute “modulating” the sampling period, fail to demonstrate
error.
Appellant’s related assertion that “modulation” requires imposing a
signal onto another (Br. 4) also fails to demonstrate error for the same reason
– modulation here equates to altering the sampling rate. In other words, the
Examiner’s claim construction, consistent with Appellant’s disclosure as the
Examiner explained (Ans. 5), follows the Phillips (quoted supra)
guidelines.7 Moreover, even under Appellant’s more restrictive argued
definition, Anne’s DSP also performs “classic . . . modulation,” even if the
decimator does not (see Ans. 5), by imposing digital pulse signals onto
carrier signals at varied sample sampling rates (FF 5-8, 10). Accordingly,
Appellant has not demonstrated that the Examiner erred in finding that
Anne’s system “modulate[s] the sampling period of a sampled system with a
factor N” as recited in claim 1.
Appellant’s assertion (Br. 4) that Anne’s interpolator does not “reduce
distortion artifacts induced by sampling frequency modulation” does not
address the Examiner’s reasonable finding (Ans. 3) that Anne discloses the
disputed artifact limitation at column 4, lines 8-15. At the cited passage,
Anne discloses, inter alia, reducing intersymbol interference (ISI), filtering,
accurate synching, noise reduction, and correlation processing (see FF 12).

7 See supra the “Statement of the Case” section hereby designated as further
factual findings, and our discussion of modulation.
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Therefore, Appellant fails to demonstrate error with respect to this limitation
also.
While claim 1 recites “minimizing distortion artifacts” as noted above,
Appellant argues that Anne does not disclose reducing the artifacts.
Appellant’s disclosure, and lack of clear argument rebutting the Examiner’s
findings, implies that “minimizing distortion artifacts induced by sample
frequency modulation” is equivalent to “mitigating pulsewidth distortions”
(see FF 3). “It is the applicants’ burden to precisely define the invention, not
the PTO’s.” Morris, 127 F.3d at 1056 (“The problem in this case is that the
appellants failed to make their intended meaning explicitly clear.”).
Since Anne’s interpolator changes the sampling frequency according
to the DSP (FF 5, 6, 8), and the DSP mitigates the distortions (FF 12, 13) as
indicated supra, Anne reasonably meets the disputed clause, “correcting the
data stream of the sampling system with the same factor N, thereby
minimizing distortion artifacts induced by sample frequency modulation.”
In other words, contrary to Appellant’s implication,8 the interpolator itself
does not need to “correct” the data stream because the term “comprising” in
claim 1 does not preclude Anne’s DSP from meeting the clauses recited.
Anne’s DSP interpolator corrects, by changing sampling frequencies,
the data stream by the same factor N (e.g. 8 kHz to 20 MHz) as the
decimator (20 MHz to 8 kHz), and the DSP reduces distortion, “thereby”
minimizing distortion artifacts (FF 6-13). Filtering, synching, correlating,
and delaying pulses also reasonably minimizes such distortions as found
supra (FF 12, 13) and as discussed more fully infra.

8 See Br. 5 (asserting that the interpolator merely inserts samples back into
the data stream).
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That is, Anne teaches that transmitter and receiver clocks invariably
deviate, requiring synchronization (FF 13). It follows that such undesired
deviation varies the sample frequency rate (see also, e.g., n.4; FF 1-3).
Since Anne’s DSP “eliminat[es] problems with symbol synchronization”
(FF 13), including ISI (see FF 12-14), “induced by,” inter alia, such
deviating sampling frequencies,9 the DSP reasonably “minimiz[es] distortion
artifacts induced by sample frequency modulation” as required by claim 1.
The interpolator also minimizes pulse distortion (artifacts), caused by
sampling, by inserting more samples, thereby creating smooth curve fitting
between the samples and reducing “bursty” noise (see FF 9-11). Therefore,
Appellant has failed to demonstrate that the Examiner erred in finding that
Anne anticipates claim 1.
Appellant also fails to address (see Br. 5) the Examiner’s supported
finding (Ans. 4, FF 14), with respect to claim 2, that Anne’s system avoids
“heterodyning” by “including [a] delay between data values.” Appellant’s
disclosure also indicates that delaying pulses inherently avoids heterodyning
(see FF 4). Therefore, Appellant also has failed to demonstrate that the
Examiner erred in rejecting claim 2 as obvious based on Anne and Porter.
With respect to claims 3-5, Appellant argues the claims as a group.
Accordingly, pursuant to 37 C.F.R. § 41.37(c)(1)(vii), we select claim 3 as
representative. Claim 3 requires the data stream to represent voltage.
Anne’s data stream represents voltage (FF 10). Therefore, the Examiner’s
finding (Ans. 4) with respect to claims 3-5 and Porter’s teaching of data

9 Intersymbol distortion occurs in digital pulse (i.e., sampled) systems which
require synchronization, ultimately, to prevent the pulses from overlapping
or otherwise interfering with one another (see FF 10-14).
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representative of “voltage,” “current,” and “power” data collection as well
known, is cumulative (FF 15) to Anne’s teaching.
Appellant’s assertion (Br. 5) that Appellant’s problem is not related to
Porter’s electrical consumption data lacks merit for additional reasons.
Appellant’s problem is not related to any one specific data type either (see
supra the “Statement of the Case” section and n.5). Porter generally teaches
that such data is related (FF 15) and the same findings are implicit in Anne
(FF 10). Data representing voltage implicitly also represents power and
current. The different data types also constitute non-functional descriptive
material.10 Finally, “the claimed subject matter” does not “involve more
than the simple substitution of one known element for another.” See KSR,
550 U.S. at 417 (quoted supra). Therefore, Appellant has failed to
demonstrate that the Examiner erred in rejecting claims 3-5 as obvious based
on Anne and Porter.
Accordingly, we will sustain the Examiner’s rejections of claims 1-5
for the reasons outlined above.

10 Non-functional descriptive material cannot render patentable an otherwise
unpatentable product or process. In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir.
2004). See also Ex parte Curry, 84 USPQ2d 1272, 1275 (BPAI 2005)
(Informative Opinion) (aff’d, Rule 36, Fed. Cir., slip op. 06-1003, June
2006) (“Common situations involving non-functional descriptive material
[include] . . . a computer that differs from the prior art solely with respect to
nonfunctional descriptive material that cannot alter how the machine
functions (i.e., the descriptive material does not reconfigure the computer) . .
. .”).
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CONCLUSION
Appellant did not demonstrate that the Examiner erred in finding that
1) Anne teaches “modulating the sampling period” and “minimizing
distortion artifacts induced by sample frequency modulation” as recited in
claim 1; and 2) Anne and Porter collectively teach a) avoiding heterodyning
as set forth in claim 2, and b) a data stream representative of voltage as set
forth in claim 3.

DECISION
We affirm the Examiner's decision rejecting claims 1-5.
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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