Ex Parte Levy

Board of Patent Appeals and Interferences

Sep 28, 2011

10602549 (B.P.A.I. Sep. 28, 2011)

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.
10/602,549 06/23/2003 Kenneth L. Levy P0837 2418
23735 7590 09/29/2011
DIGIMARC CORPORATION
9405 SW GEMINI DRIVE
BEAVERTON, OR 97008
EXAMINER
NUNEZ, JORDANY
ART UNIT PAPER NUMBER
2171
MAIL DATE DELIVERY MODE
09/29/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KENNETH L. LEVY
____________

Appeal 2009-010447
Application 10/602,549
Technology Center 2100
____________

Before JOHN A. JEFFERY, CAROLYN D. THOMAS,
and DENISE M. POTHIER, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner‟s
rejection of claims 1-16, 23, 25, 27-30, 33,
1
and 35-40. Claims 17-22, 24,
26, 31, 32, and 34 have been canceled. App. Br. 3. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm-in-part. We also enter a new ground of
rejection for claim 33 pursuant to 37 C.F.R. § 41.50(b).

1
Appellant refers to claim 22 as both pending and canceled. See App. Br. 3.
We presume that the reference to claim 22 as being pending and finally
rejected was a typographical error and assume that Appellant intended to
refer to claim 33 for purposes of this decision.
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2
STATEMENT OF THE CASE
Appellant‟s invention relates to a technique of steganographically
hiding identification data embedded in a video so that the embedded data is
visually imperceptible during real-time viewing. See generally Spec.
¶ 0012. Claim 40 is reproduced below with the key disputed limitations
emphasized:
40. A detecting method comprising:
obtaining content, the content including auxiliary data embedded
therein, the embedding being accomplished through modifications of
portions of the content, the modifications occurring prior to obtaining
the content, the modifications being humanly perceptible if examined
in a finite segment or frame of the content, but provided in the content
so as to be humanly imperceptible when examined as the content is
rendered or projected in real-time;
averaging a plurality of content portions; and
detecting the auxiliary data from data representing averaged
content portions, the auxiliary data being relatively more detectable
from the data representing averaged content portions compared to
individual portions including the auxiliary data.

The Examiner relies on the following as evidence of unpatentability:
Schumann US 6,950,532 B1 Sept. 27, 2005
(filed Apr. 24, 2001)

THE REJECTION
The Examiner rejected claims 1-16, 23, 25, 27-30, 33, and 35-40
under 35 U.S.C. § 102(e) as anticipated by Schumann. Ans. 2-9.
2

2
Throughout this opinion, we refer to (1) the Appeal Brief filed August 6,
2008; (2) the Examiner‟s Answer mailed February 20, 2009; and (3) the
Reply Brief filed April 16, 2009.

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Claim 40
THE CONTENTIONS
Regarding independent claim 40, the Examiner finds that Schumann
discloses averaging content portions by inserting spacing marks into
generated images. Ans. 8, 10. In particular, the Examiner states that
Schumann‟s mark spacing also discloses averaging content portions because
the marks, on average, coincide with the shutter or optical sensor timing of a
video recording device. See id.
Appellant provides a customary definition for “average,” and argues
that Schumann fails to disclose averaging content portions based on this
conventional meaning. App. Br. 7-9; Reply Br. 3.

ISSUE
Under § 102, has the Examiner erred in rejecting claim 40 by finding
that Schumann discloses averaging content portions?

FINDINGS OF FACT (FF)
1. Appellant discusses a detection technique that involves averaging
many frames in a video sequence so that unchanging identification data will
accumulate while other frame content will cancel each other out during
averaging. See Spec. ¶¶ 0046-47.
2. Schumann discloses a disruption effect that includes inserting
spaced marks into a generated image and the marks are spaced to coincide
with the spacing of the image elements on the image sensing devices‟ optical
sensors. Schumann, col. 6, ll. 17-21.

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ANALYSIS
We begin by construing the key disputed limitation of claim 40 which
calls for, in pertinent part, averaging content portions or, more specifically,
the term “average” within this phrase. While Appellant‟s disclosure does
not define “average,” Appellant discusses a technique that involves
averaging many frames so that certain identification data accumulates while
other content cancels each other out during the process. See FF 1. This
implies averaging is used to represent data that repeats within many frames.
Also, “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) (internal citations omitted). Appellant has provided a customary
meaning of the term, “average,” to include a single value, such as mean that
represents a set of values. See App. Br. 8. Thus, we find that the broadest
reasonable construction of the term, “averaging,” in light of the disclosure
and how an ordinary skilled artisan would understand this term, includes the
act of accumulating and cancelling content portions to arrive at a value
representing the content portions. See In re Am. Acad. of Sci. Tech Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations omitted).
Schumann discloses a disruption effect that includes inserting spaced
marks into a generated image and the marks are spaced to coincide with the
spacing of the image elements on the image sensing devices‟ optical sensors.
FF 2. The Examiner relies on this description to disclose averaging the
content portions, and states that on average the marks will be spaced to
coincide with the image elements on an image sensing device‟s sensors. See
Ans. 10. We find the Examiner‟s interpretation does match the reasonably
broad construction of averaging content portions. First, the phrase, “on
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average,” is noticeably absent from Schumann. See FF 2. Second,
Schumann does not disclose accumulating these marks (e.g., content
portions) to arrive at a value that represents the content portions. See id. We
therefore find that Schumann does not disclose averaging content portions
given its broadest reasonable construction.
For the foregoing reasons, Appellant has persuaded us of error in the
anticipation rejection of independent claim 40.

Claims 1, 4, 6, 7, 9, 11, 14, and 15
Regarding representative independent claim 1, the Examiner finds that
Schumann discloses carrying identification data (e.g., writing effects,
security information, and disruptive content) in the first and second frames
prior to distribution or projection. Ans. 2-3, 13. Additionally, the Examiner
explains that this content can be imperceptible to a viewer by spacing the
marks into the generated image and also points to the discussion of Figure
20 (i.e., column 16) to demonstrate this imperceptibility. See Ans. 13.
Appellant contends that Schumann does not embed identification data
in the first and second frames prior to distribution or projection so as to be
generally imperceptible upon real-time rendering of a video. App. Br. 12-
13; Reply Br. 5-6. Appellant argues that the disruption directives and
control information in Schumann control the introduction of anomalies in
the film and are not the projected anomalies themselves that are visually
perceptible upon examination but generally imperceptible upon real-time
rendering. App. Br. 12-13. Appellant also asserts that the projected
anomalies are projected onto the video screen during projection and not
contained in the projected frame or video itself. App. Br. 13.
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ISSUE
Under § 102, has the Examiner erred in rejecting claim 1 by finding
that Schumann discloses embedding identification data in a first and second
video frame, wherein the identification data is visually perceptible upon
examination of the second frame but generally imperceptible when rendered
in real-time?

ADDITIONAL FINDINGS OF FACT (FF)
3. Schumann discloses that the content may include identifying
information or watermarks. Schumann, col. 6, ll. 61-63.
4. Schumann discloses disruption patterns may include a visible
message, such as “COPY,” using the techniques disclosed in Schumann.
See Schumann, col. 7, ll. 30-34.
5. Schumann discloses an example of disruption text on an image
that is inserted in the frames per a pattern designed to cause a disruptive
effect. A sequence of disruption frames 2000 may have character disruption
text inserted in frames per a pattern, including the text “COPY” 2010
3
in the
same location in the frame. The “C” and “P” in the text have a dark
background. The “O” and “Y” in the text have a white background.
Projecting the frames, a first resultant image 2030 is what the image
recording device (IRD) might detect, which includes the text, “COPY”; a
second resultant image 2040 is what a person might see, which does not
include the text, “COPY.” Schumann, col. 16, ll. 8-15; Fig. 20.

3
Reference number 2010 is not described in Schumann but shown in Figure
20.
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6. Schumann discloses this invention is intended to create effects
that may be invisible to humans. The disruptive techniques are invisible to
the human eye but visible to an IRD. Schumann, col. 5, ll. 11-23
7. Schumann states that images may be generated at reduced
intensity so that the human eye may not detect them. Schumann, col. 6, ll.
31-33.
8. Appellant states that information or data within a window of a
video frame that identifies the video is visually perceptible when viewing an
individual frame. Spec. ¶ 0026; Fig. 1.

ANALYSIS
Based on the record before us, we find no error in the Examiner‟s
anticipation rejection of representative claim 1 which calls for, in pertinent
part, embedding the identification data in the first and second frame so that
the identification data is visually perceptible upon examination of the second
frame, but generally imperceptible when rendered in real time. Notably,
claim 1 recites embedding identification data into a first and second frame
prior to projection, but does not require that the video frame be the same
frames that contain the film or the film‟s content. Even so, Schumann
discloses that the content may include identifying information, such as
watermarks. FF 3. Because watermarks involve marking the content or the
frames themselves, Schumann discloses a technique that embeds watermarks
or identification data in the content‟s frames themselves. See id. Thus,
despite Appellant‟s argument that the projected anomalies are introduced
only during projection (see App. Br. 13), Schumann discloses that content or
frames are embedded with identification data prior to projection as recited.
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Additionally, Schumann discloses the disruption pattern may include
a visible message, such as “COPY,” using the techniques disclosed in
Schumann. See FF 4. One such technique is watermarking. See FF 33.
Schumann discloses another technique involving disruption text on an image
that is inserted in the frames per a pattern designed to cause a disruptive
effect. FF 5. This insertion occurs prior to the projection. See id. Thus,
Schumann discloses yet another method of embedded identification data
(e.g., “COPY”) in a first and second frame prior to projection of the video as
recited. Schumann further demonstrates that the resultant image in real time
(e.g., 2040) of what the person may see using these disruption techniques.
FF 5. The image (e.g., 2040) does not include the disruption text (see id.)
and, thus, is generally imperceptible upon real-time rendering of the video as
recited. Moreover, Schumann discloses this invention is intended to create
effects that may be invisible to humans (see FF 6) or are generated so that
the human eye may not detect them (see FF 7).
Also, consistent with Appellant‟s description (see FF 8), these
watermarked or disruption-patterned frames when viewed on a frame-by-
frame basis would be visually perceptible upon examination. Thus,
Schumann discloses embedding identification data in frames such that the
data is visually perceptible upon examination of a frame and generally
imperceptible upon real-time rendering of the video as recited in claim 1.
For the foregoing reasons, Appellant has not persuaded us of error in
the anticipation rejection of: independent claim 1 and claims 4, 6, 7, 9, 11,
14, and 15 not separately argued with particularity (App. Br. 11-13).

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Claims 2 and 8
Regarding claims 2 and 8, the Examiner finds that Schumann‟s
discussion of spaced marks into the generated image and reduced intensity
disclose selecting the second frame so that the repetition of embedded data is
imperceptible to both the human conscious and unconscious mind when
rendered. Ans. 3-4, 13-14.
For both claims 2 and 8, Appellant argues that this portion of
Schumann does not disclose repeating an embedded identification data so
that the data is imperceptible to the human conscious or unconscious mind
when rendered. App. Br. 14-15; Reply Br. 6. Particularly, Appellant
contends that reducing the intensity of an image is not repeating the
embedded identification data. See id.

ISSUES
Under § 102, has the Examiner erred by finding that Schumann
discloses:
(a) repeating an embedded identification data so that the data is
imperceptible to the human conscious mind when rendered in rejecting
claim 2?
(b) repeating an embedded identification data so that the data is
imperceptible to the human unconscious mind in rejecting claim 8?

ANALYSIS
As we noted above regarding claim 1, we disagree with Appellant that
Schumann does not disclose repeating an embedded identification data so
that the data is imperceptible to the human conscious mind when rendered as
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recited in claim 2. That is, Schumann discloses an embodiment where the
frames and, thus, the second frame is selected so that the repetition of the
identification data (e.g., “COPY”) is imperceptible to the human conscious
mind when rendered (e.g., resultant image 2040). See FF 5. Additionally,
Schumann discloses the objective of the invention is to create effects that
may be invisible to the human when viewing the content, but are viewable
after recorded. FF 6. Thus, Schumann discloses repeating embedded
identification data such that the data is imperceptible to the human conscious
mind as recited.
Claim 8 depends from claim 2. We refer to our above discussion.
That is, if data is imperceptible to a conscious mind, the data will be equally
imperceptible to an unconscious
4
human mind (e.g., a person that is asleep).
We therefore will sustain the rejection of claims 2 and 8.

Claims 3 and 10
Regarding representative claim 3, the Examiner finds that Schumann
discloses the embedded identification data in the same frame location for the
first and second frame. Ans. 3, 15. Appellant argues that the cited portion
by the Examiner does not discuss embedded identification data in the same
frame location of the first and second frames. App. Br. 15-16.

4
Appellant describes in the Specification repeating windows in a video
sequence so that the information data is obscured from human sub-conscious
detection. See Spec. ¶ 0044. However, claim 8 does not recite this
sub-conscious limitation.
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ISSUE
Under § 102, has the Examiner erred in rejecting claim 3 by finding
that Schumann discloses the embedded identification data in the same frame
location for the first and second frame?

ANALYSIS
Based on the record before us, we find no error in the Examiner‟s
anticipation rejection of representative claim 3 which calls for, in pertinent
part, the embedded identification data in the same frame location for the first
and second frame. We once again refer to our discussion of claim 1.
Schumann discloses an embodiment (e.g., Figure 20) where the frames and,
thus, the second frame have identification data (e.g., COPY) in the same
frame location for each frame (see frames 2000). See FF 5. Thus,
Schumann discloses the embedded identification data in the same frame
location for the first and second frame as recited. For the foregoing reasons,
Appellant has not persuaded us of error in the anticipation rejection of claim
3 and claim 10 not separately argued with particularity (App. Br. 7-22).

Claim 5
Regarding claim 5, the Examiner finds that Schumann discloses
providing device-aided character recognition of the first or second frames to
detect the identification data by providing an IRD that records the
identification data. Ans. 5, 16. Appellant argues that the cited portion by
the Examiner discusses text, but not a device that recognizes the text. App.
Br. 17; Reply Br. 6. Appellant also contends an IRD does not have
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device-aided character recognition capabilities, such as OCR. See App. Br.
18.

ISSUE
Under § 102, has the Examiner erred in rejecting claim 5 by finding
that Schumann discloses providing a device-aided character recognition of
the first or second frames to detect the identification data?

ANALYSIS
Based on the record before us, we find no error in the Examiner‟s
anticipation rejection of representative claim 5 which calls for, in pertinent
part, providing device-aided character recognition of the first or second
frames to detect the identification data. We disagree with Appellant that the
IRD cannot provide “device-aided character recognition” of the frames to
detect the identification data. Schumann provides an example of what the
IRD might record or resultant image 2030. FF 5. Image 2030 includes the
identification data or text, “COPY,” and, thus, the IRD detects the
identification data by recording the data. See id. By detecting this text, this
IRD assists in recognizing the characters that make up the text, “COPY,” in
each frame. Thus, as broadly as recited, this IRD aids in recognizing or
detecting characters in the first and second frame or provides device-aided
character recognition of the first or second frames to detect identification
data. We will therefore sustain in the anticipation rejection of claim 5.

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Claims 12 and 13
Representative claim 12 depends from claim 11 and recites the
identification data are identifiers embedded to be spatially located in a
separate frame location with respect to each other. The Examiner finds that
Schumann discloses this recitation. Ans. 5, 17. Appellant argues that the
cited portion by the Examiner fails to discuss identifiers embedded spatially
at separate frame locations with respect to each other. App. Br. 18-19;
Reply Br. 7.

ISSUE
Under § 102, has the Examiner erred in rejecting claim 12 by finding
that Schumann discloses identification data comprises identifiers embedded
to be spatially located in a separate frame location with respect to each
other?

ANALYSIS
Based on the record before us, we find no error in the Examiner‟s
anticipation rejection of representative claim 12 which calls for, in pertinent
part, identification data are identifiers embedded to be spatially located in
separate frame location with respect to each other. Schumann discloses that
the frames include text or the word, “COPY.” See FF 5. Moreover, this text
has varying backgrounds for each letter. See id. That is, the “C” and “P”
have a dark background, while “O” and “Y” have a white background. See
id. Thus, each of these letters is an identifier, and the identification data
comprises identifiers (e.g., “C,” “O,” “P,” and “Y” with associated
backgrounds). See id. Moreover, each of these identifiers is embedded into
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the frame and spatially located in separate frame locations with respect to
each other. See id. Schumann therefore discloses that the identification data
are identifiers embedded to be spatially located in a separate frame location
with respect to each other as recited in claim 12.
For the foregoing reasons, Appellant has not persuaded us of error in
the anticipation rejection of claim 12 and claim 13 not separately argued
with particularity (App. Br. 7-22).

Claim 16
Claim 16 recites a detection method for the video embedded
according to claim 1 and further recites averaging video frames including the
first and second video frames recited in claim 1. This averaging step is
commensurate in scope with the averaging step in claim 40. For the reasons
discussed in connection with claim 40, Appellant has persuaded us of error
in the anticipation rejection of independent claim 16, and we refer to our
previous discussion.

Claims 23 and 25
Representative independent claim 23 recites a method of marking
content with auxiliary data, the data is embedded in the content prior to
distribution or projection so as to be humanly perceptible if examined in
finite segments but humanly imperceptible when examined in real time.
Citing to various passages in columns six through eight and sixteen,
the Examiner finds that Schumann discloses these recitations. Ans. 5, 17-18.
Appellant repeats the arguments made for claim 1 that the disruptive
content is not included in the projected content. App. Br. 19-20. The issues
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are, thus, similar to that in connection with claim 1, and we refer to our
above discussion in connection with claim 1. Specifically, we disagree that
all disruptive content in Schumann is only projected and not embedded
within the frames of content. Notably, claim 23 does not limit what type of
content the auxiliary data is embedded within, but just recites “content.”
Appellant also asserts that a quoted passage from Schumann fails to
disclose both the embedded auxiliary content is humanly perceptible if
examined in a finite segment or frame, but humanly imperceptible when
examined and rendered in real time. See App. Br. 19-20. Rather, Appellant
concludes that Schumann teaches away from having both features. See App.
Br. 20. Not only are teaching away arguments irrelevant to anticipation,
5
we
also disagree for the reasons discussed above in connection with claim 1.
For the foregoing reasons, Appellant has not persuaded us of error in
the anticipation rejection of claim 23 and claim 25 not separately argued
with particularity (App. Br. 7-22).

Claims 27-30 and 35-39
Regarding representative independent claims 27 and 37, the Examiner
finds Schumann discloses the limitations in these claims. Ans. 6, 8.
Appellant refers back to the arguments presented for claim 23. App. Br. 21-
22. We refer to our previous discussion of claim 23 in sustaining these
claims. For the foregoing reasons, Appellant has not persuaded us of error
in the anticipation rejection of independent claims 27 and 37 and claims 28-

5
Leggett & Platt, Inc. v. VUTEk, Inc., 537 F.3d 1349, 1356 (Fed. Cir. 2008)
(citation omitted).
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30, 35, 36, 38, and 39 not separately argued with particularity (App. Br. 7-
22).

Claim 33
Claim 33 recites a detector to detect the data according to claim 28,
wherein the detector averages video frames so that the provided data
becomes consciously perceptible. Claim 28, which depends from claim 27,
recites a method of steganographically hiding data in media content. The
limitation of the detector that averages video frames is commensurate in
scope with an averaging limitation in claim 40. For the reasons discussed in
connection with claim 40, Appellant has persuaded us of error in the
anticipation rejection of independent claim 33, and we refer to our previous
discussion.

New Ground of Rejection Under 37 C.F.R. § 41.50(b)
Under 37 C.F.R. § 41.50(b), we enter a new ground of rejection under
35 U.S.C. § 112, second paragraph for claim 33 as being indefinite.
Claim 33 recites, in its entirety, “[a] detector to detect the data
provided according to claim 28, wherein the detector averages a plurality of
the video frames so that the provided data becomes consciously perceptible.”
Claim 28 is a method claim and depends from claim 27, which is also a
method claim. Thus, claim 33 recites a detector in its preamble that detects
provided data according to various method steps reciting in claim 28 and
also recites a method step of averaging video frames so that the data
becomes consciously perceptible. In essence, claim 33 is a hybrid claim to
both an apparatus (i.e., a detector) and a method of using the apparatus (e.g.,
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to average frames). However, reciting both an apparatus and the method of
using the apparatus renders a claim indefinite under § 112, second
paragraph. See Rembrandt Data Tech., L.P. v. AOL, LLC, 641 F.3d 1331,
1339 (Fed. Cir. 2011).
Also, even if claim 33 is viewed as an apparatus claim, then the claim
recites only intended use and functional limitations. Claim 33 recites a
detector in its preamble with no corresponding structure in the body of claim
to detect the data or to average the frames as recited. Appellant maps claim
33 to Paragraphs 0041 and 0046-48. See App. Br. 4. Paragraph 0041
discusses averaging techniques but does not describe any structure to
perform this function. See Spec. ¶ 0041. Similarly, Paragraphs 0046-48
describes only a detector but no more structure for detecting data and
averaging the frames. See Spec. ¶¶ 0046-48. Figures 1-4 also do not show
any components that perform the functions of detecting data or averaging the
frames. See Spec. Figs. 1-4. Thus, there is an inadequate disclosure of what
structure performs the functions in claim 33, and an ordinary skilled artisan
would not be able to determine the boundaries or the scope of claim 33.
We therefore find that claim 33 is indefinite under 35 U.S.C. § 112,
second paragraph.

CONCLUSION
Under § 102, the Examiner (1) did not err in rejecting claims 1-15, 23,
25, 27-30, and 35-39, (2) but erred in rejecting claims 16, 33, and 40.

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DECISION
The Examiner‟s decision rejecting claims 1-16, 23, 25, 27-30, 33, and
35-40 is affirmed-in-part.
We have also entered a new ground of rejection under 37 C.F.R.
§ 41.50(b) for claim 33.
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides that “[a] new ground of
rejection . . . shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to
the examiner. . . .

(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .

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-IN-PART
37 C.F.R. § 41.50(b)

ELD