Ex Parte Ludwig

Patent Trial and Appeal Board

Jan 24, 2013

10676249 (P.T.A.B. Jan. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte LESTER F. LUDWIG
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Appeal 2010-008330
Application 10/676,249
Technology Center 2800
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Before JOHN A. JEFFERY, BARBARA A. BENOIT, and TRENTON A.
WARD, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

ON REQUEST FOR REHEARING
Appellant requests that we reconsider our decision of October 18,
2012 (“Op.”) where we affirmed the Examiner’s anticipation rejection of
claims 1-102. We have reconsidered our decision in light of Appellant’s
arguments in the Request for Rehearing, but we decline to change the
decision for the following reasons.

Claims 1, 3-23, 25-57, 60-74, 77-79, 81-91, and 93-102
Appellant first emphasizes that claim 1 recites plural processors,
where each processor (1) receives a selected one of plural incoming audio
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signals, and (2) processes a received incoming electrical signal to produce an
audio output signal, the processing performed by variably changing the
incoming signal’s pitch as claimed. Req. 2-3.1 In light of this limitation,
Appellant contends that even if Hasebe’s elements 12-15 and control section
16 could be construed as a single signal processor as allegedly “implied” in
our decision, this “processor” is provided with two incoming audio signals
not a selected one incoming audio signal as claimed. Req. 5. Appellant
adds that Hasebe’s signal processing section 19, which Appellant equates to
the second processor under this “implied” construction, does not variably
change pitch as claimed. Id.
We find these arguments unavailing. First, Appellant’s argument
regarding Hasebe’s elements 12-16 as constituting a single signal processor
that does not receive a selected one incoming audio signal was not
previously raised in the briefs and is therefore waived as untimely. See
37 C.F.R. § 41.52(a)(1) (“Arguments not raised in the briefs before the
Board and evidence not previously relied upon in the brief and any reply
brief(s) are not permitted in the request for rehearing except as permitted by
paragraphs (a)(2) and (a)(3) of this section.”). Although Appellant’s Appeal
Brief quotes the relevant language of claim 1 reciting plural processors and
each processor’s functionality (App. Br. 18-19), Appellant’s corresponding
arguments mainly emphasized Hasebe’s (1) failure to process an incoming
audio signal by variably changing its pitch, and (2) derived control signals
are not audio signals. See App. Br. 18-21; Reply Br. 2-9. In short,
Appellant did not emphasize the particular mapping that Appellant currently

1 Although the Request is not paginated, we nonetheless refer to the pages in
the order in which they appear in the record for clarity.
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proffers in connection with Hasebe and the recited processors, let alone that
one of those processors is provided with two signals as Appellant now
asserts in the Request. Compare Req. 5 with App. Br. 18-21; Reply Br. 2-9.
But even if we were to consider Appellant’s belated arguments based
on an “implied” mapping of Hasebe, they are not commensurate with the
scope of the claim, and, in any event, not germane to our decision. To be
sure, claim 1 requires plural processors, and that each processor (1) receives
a selected one of plural incoming audio signals, and (2) processes a received
incoming electrical signal by variably changing its pitch. But as we
indicated in the decision, we found no error in the Examiner’s position based
on Hasebe’s processing functionality in Figure 3, which we found satisfies
both these requirements. See Op. 5-9. Notably, the Examiner not only finds
that elements 12-15 and 19 have processing capabilities, but also that control
section 16 likewise processes input signals. Ans. 8-9.
Given the various processing functions in Hasebe’s Figure 3, nothing
in claim 1 precludes one such “processor” from including (1) first pitch
detection section 13; (2) control section 16; and (3) signal processing section
19. Nor does the claim preclude another such “processor” from including
(1) second pitch detection section 15; (2) control section 16; and (3) signal
processing section 19. While these “processors” include common elements,
namely the control and signal processing sections, they are nonetheless
distinct in light of their different pitch detection sections that each receive a
different “incoming audio signal” from ADCs 10 and 11, respectively. See
Op. 8 (noting that these signals are direct digital representations of analog
audio signals and therefore constitute “incoming audio electrical signals”).
Appellant’s arguments based on the “implied” mapping of Hasebe to various
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elements (i.e., elements 12-16 or 12-13 as corresponding to a first
“processor” and elements 19 or 14-15 as corresponding to a second
“processor”) (Req. 5) are simply not commensurate with the scope of the
term “processor” which is hardly limited to Appellant’s presumed
mapping—a mapping which is raised for the first time on appeal in any
event.
And as we indicated in our decision, we found no error in the
Examiner’s position that Hasebe processes a received incoming audio signal
by variably changing its pitch—a processing function that is fully met by the
pickups’ detected pitch that is used to determine corresponding data sets that
is ultimately used to generate tones with the correct pitch. See Op. 7-8.
Although only one of the two pitch data sets are used in this process, namely
the one that is deemed correct, Hasebe still effectively changes the pitch of
the received audio signal that is deemed incorrect as we noted in the
decision. See Op. 8 (noting that the second pickup’s pitch data in an
example is effectively “corrected” by Hasebe’s processing functionality).
Appellant’s contention that omitting signal processor output deemed to be
the error component of a “non-agreeable outcome” is not a pitch change
(Req. 5) is unavailing and not commensurate with the scope of the claim.
We also find Appellant’s arguments regarding Hasebe’s envelope detection
sections 12 and 14 and MIDI Converter section 18 as not changing pitch are
irrelevant to our decision which does not rely on those elements, but rather
the processing elements noted above. See Op. 5-9.
Lastly, Appellant’s arguments regarding the distinction between an
audio signal and a control signal in view of their respective content and
intended purposes (Req. 6-8) are unavailing given the scope and breadth of
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the terms. As we noted in our decision, nothing in the claim precludes an
“incoming audio electrical signal” from constituting, among other things, a
digital signal that is derived from analog audio signals. Op. 8-9.
We therefore maintain our decision affirming the Examiner’s rejection
of claims 1, 3-23, 25-57, 60-74, 77-79, 81-91, and 93-102 for the reasons
indicated above and in the decision.

Claims 2, 24, 58, 59, 75, 76, 80, and 92
We are also unpersuaded by Appellant’s arguments regarding claim 2
that recites that at least one processor is controlled by an incoming signal
processing control signal. Req. 8-9. As we noted in our decision, nothing in
the claim precludes the internal control signals that control Hasebe’s signal
processing section 19 which has multiple inputs to that section. Op. 9
(noting this fact). These inputted signals are incoming, at least with respect
to the signal processing section.
We therefore maintain our decision affirming the Examiner’s rejection
of claims 2, 24, 58, 59, 75, 76, 80, and 92 for the reasons indicated above
and in the decision.

CONCLUSION
For the foregoing reasons, we have granted Appellant’s request to the
extent that we have reconsidered our decision, but we deny the request with
respect to making any changes therein.

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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).

REHEARING DENIED

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