Ex Parte Ludwig

Patent Trial and Appeal Board

Oct 16, 2012

10683915 (P.T.A.B. Oct. 16, 2012)

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 2010-006457
Application 10/683,915
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.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 25-62. Claims 1-24 and 63-118 have been withdrawn
from consideration. App. Br. 6. We have jurisdiction under 35 U.S.C.
§ 6(b). We reverse.

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STATEMENT OF THE CASE
Appellant’s invention integrates video and electronic music by
capturing video images during live performances to produce musical
instrument digital interface (MIDI) signals. See generally Abstract. Claim
25 is illustrative with key disputed limitations emphasized:
25. A system for extracting and generating control signals from at
least one video signal said system comprising:
a first image processing element for receiving a first incoming video
signal, wherein said first image processing element detects at least one
image-related component within an image represented by said first incoming
video signal; and
a processor for processing said at least one image-related component
to generate at least one outgoing control signal comprising a [sic] at least
one of a MIDI continuous controller message and a MIDI note message, the
outgoing control signal being generated responsive to content in the image
represented by said first incoming video signal.

RELATED APPEALS
This appeal is said to be related to ten other appeals. App. Br. 4; Ans.
2.1 Seven of these appeals (09/812,400, 10/676,926, 10/702,415,
10/680,591, 10/703,023, 10/702,262, and 11/040,163) have been decided.
See Ex parte Ludwig, No. 2009-002201, 2009 WL 3793386 (BPAI 2009),
(non-precedential) (reversing Examiner’s anticipation and obviousness
rejections); Ex parte Ludwig, No. 2009-006844, 2010 WL 4917799 (BPAI
2010) (non-precedential) (same); Ex parte Ludwig, No. 2009-008141, 2011
WL 486163 (BPAI 2011) (non-precedential) (reversing Examiner’s
obviousness rejections); Ex parte Ludwig, No. 2009-008916, 2011 WL

1 One of these listed applications is the present application. See App. Br. 4
(including Application 10/683,915).
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794287 (BPAI 2011) (non-precedential) (affirming Examiner’s obviousness
rejection in part); Ex parte Ludwig, No. 2009-009356, 2011 WL 1211179
(BPAI 2011) (non-precedential) (affirming Examiner’s anticipation and
obviousness rejections in part); Ex parte Ludwig, No. 2009-010281, 2011
WL 1806460 (BPAI 2011) (non-precedential) (reversing Examiner’s
anticipation rejection); Ex parte Ludwig, No. 2010-009424, 2011 WL
5325639 (BPAI 2011) (non-precedential) (affirming Examiner’s
obviousness rejections).

THE REJECTIONS
1. The Examiner rejected claims 25-27, 29-35, 37, 39-46, 48-54, and
62 under 35 U.S.C. § 102(b) as anticipated by Kimpara (US 5,310,962; May
10, 1994). Ans. 3-6.2
2. The Examiner rejected claims 28, 36, 38, 47, and 55-61 under 35
U.S.C. § 103(a) as unpatentable over Kimpara and Toriumi (US 6,062,868;
May 16, 2000 (filed Oct. 18, 1996)). Ans. 6-8.

THE ANTICIPATION REJECTION
The Examiner finds that Kimpara discloses every recited feature of
independent claim 25 including a processor that generates at least one
outgoing control signal comprising MIDI continuous controller and/or note

2 Throughout this opinion, we refer to (1) the Appeal Brief filed June 11,
2009; (2) the Examiner’s Answer mailed October 1, 2009; and (3) the Reply
Brief filed December 1, 2009.
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messages which are said to read on Kimpara’s tempo control signal. Ans. 3-
4, 8-9.
Appellant argues that since Kimpara’s tempo control signal is distinct
from the recited continuous controller and note messages under the MIDI
standard message format in the Brief’s Evidence Appendix, Kimpara does
not generate the recited outgoing control signal. App. Br. 14-19; Reply Br.
3-7.

ISSUE
Under § 102, has the Examiner erred in rejecting claim 25 by finding
that Kimpara discloses a processor for processing an image-related
component to generate at least one outgoing control signal comprising at
least one MIDI continuous controller message and/or MIDI note message?

ANALYSIS
We begin by noting that it is undisputed that Kimpara’s CPU 4
generates MIDI tempo control signals or data responsive to detected image
content. See Kimpara, col. 3, l. 30–col. 4, l. 47; Figs. 1-3(c). This appeal,
then, turns on one question: Is this tempo control signal a MIDI continuous
controller or MIDI note message?
According to Appellant, Kimpara’s tempo control signal is not a
MIDI note message since it provides no information about specific notes as
is the case with the MIDI “Note On” and “Note Off” messages defined in
the MIDI specification in the Brief’s Evidence Appendix. App. Br. 14-15,
38-41 (Ev. App’x); Reply Br. 4-6. Rather, Kimpara’s tempo control signal
is said to be a “Timing Clock” message that is sent 24 times for each quarter
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note per the MIDI standard. App. Br. 14-15; Reply Br. 4-5. Appellant adds
that Kimpara’s tempo control signal is not a MIDI continuous controller
message since it does not provide a value relating to the current position of a
user control as defined by the “Control Change” message in the MIDI
specification. App. Br. 15-17; Reply Br. 5-7.
The Examiner, however, contends that Kimpara’s tempo control
signal directly relates to note distribution, and therefore directly affects note
output by controlling the rate at which notes are produced. Ans. 8. To the
extent that the Examiner contends that Kimpara’s tempo control signal is a
MIDI note message, we disagree. First, as noted above, Kimpara’s tempo
control signal is a MIDI signal that is referenced to a fixed temporal standard
to establish tempo and therefore comports with the MIDI “Timing Clock”
message—not the particular MIDI “Note On” and “Note Off” messages
noted above. But even if Kimpara’s tempo control signal was not so limited,
tempo does not necessarily affect note output to control note rates as the
Examiner contends. Rather, a particular MIDI note pattern can be
performed at the same rate regardless of the tempo: the notes and their
respective durations could remain constant even if they were no longer
synchronized with the beat at a different tempo—a musically unorthodox
scenario to be sure. But this possibility nonetheless undermines the
Examiner’s inherency position that requires that Kimpara’s tempo control
signal necessarily affects note output—which it does not.
To be sure, it is possible to perform or generate musical tones “by the
satisfactory tempo” with Kimpara’s system. Kimpara, col. 5, ll. 12-15
(emphasis added). But to say that this limited teaching means that
Kimpara’s tempo control signal is necessarily a MIDI note signal as claimed
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is untenable on this record. Although this passage arguably suggests using
tempo control signals to generate a MIDI note message in accordance with
the corresponding tempo either manually or automatically, we cannot say
that the tempo control signal itself is a MIDI note message under the
Examiner’s position. To the extent that this feature would have been
obvious over Kimpara, however, is a question that is not before us: nor will
we speculate in that regard here in the first instance on appeal.
The Examiner’s contention (Ans. 8-9) that Kimpara’s tempo control
signal is a MIDI continuous controller message is likewise unavailing.
Although a user control can be used to control tempo—a possibility that
Appellant acknowledges (Reply Br. 5)—we cannot say, nor has the
Examiner shown, that this necessarily corresponds to the “Control Change”
message under the MIDI specification which defines a MIDI continuous
controller message.3,4 In any event, that associated controllers, such as
pedals and levers, can be used to control tempo as the Examiner contends

3 Although Appellant cites Wikipedia in connection with MIDI continuous
controller messages (App. Br. 15 n.1)—a non-peer-reviewed source of
dubious reliability (see, e.g., Ex parte Three-Dimensional Media Group,
Ltd., No. 2009-004087, 2010 WL 3017280 (BPAI 2010) (non-precedential),
at *17 see also Bing Shun Li v. Holder, 2010 WL 4368469 (5th Cir. 2010)
(unpublished), at *2 (noting Wikipedia’s unreliability and citing Badasa v.
Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008))—the content and
authenticity of the cited MIDI specification in the Evidence Appendix are
undisputed.
4 We note in passing that while the Evidence Appendix includes a summary
of MIDI messages in Table 1, it does not include the “Summary of Control
Change Messages” in Table 3. See App. Br. 38 (Ev. App’x) (referring to
Tables 2-4 for other aspects of the MIDI specification).
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(Ans. 8) is unavailing here given the Examiner’s permissive language in this
regard,5 for anticipation requires that Kimpara’s tempo control signal is
necessarily a MIDI continuous controller message—which it is not. Again,
to the extent that this feature would have been obvious over Kimpara is a
question not before us: nor will we speculate in that regard here in the first
instance on appeal.
We are therefore persuaded that the Examiner erred in rejecting
(1) independent claim 25; (2) independent claim 44 which recites
commensurate limitations; and (3) dependent claims 26, 27, 29-35, 37, 39-
43, 45, 46, 48-54, and 62 for similar reasons.

THE OBVIOUSNESS REJECTION
Since the Examiner has not shown that Toriumi cures the deficiencies
noted above regarding the independent claims, we will not sustain the
obviousness rejection of claims 28, 36, 38, 47, and 55-61 (Ans. 6-8) for
similar reasons.

5 See also Ans. 8 (“Both [pedals and levers] can be used to control tempo,
wherein this is normally how tempo is controlled.”); Ans. 9 (“[T]empo
would clearly fall under the defined MIDI Controllers which usually relates
to a knob control.”); Id. (“[T]empo is normally controlled by some type of
knob which . . . categorizes the tempo as a continuous controller element.”)
(emphases added).
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CONCLUSION
The Examiner erred in rejecting (1) claims 25-27, 29-35, 37, 39-46,
48-54, and 62 under § 102, and (2) claims 28, 36, 38, 47, and 55-61 under
§ 103.

ORDER
The Examiner’s decision rejecting claims 25-62 is reversed.

REVERSED

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