Ex Parte Perinkulam et al

Patent Trial and Appeal Board

Feb 5, 2015

11647366 (P.T.A.B. Feb. 5, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SURYANARAYAN PERINKULAM and MARK
ANTHONY SMITH
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Appeal 2012-011026
Application 11/647,366
Technology Center 2400
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Before JOHNNY A. KUMAR, CATHERINE SHIANG, and
JON M. JURGOVAN, Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from a rejection of
claims 1 and 5. We have jurisdiction under 35 U.S.C. § 6(b). Claims 2 and
6 were cancelled. Claims 3, 4, and 7–10 stand allowed.
We affirm.2

1 The Real Party in Interest is Alcatel-Lucent.
2 Our Decision refers to the Appeal Brief filed March 7, 2012 (“App. Br.”),
the Examiner’s Answer mailed June 8, 2012 (“Ans.”), the Reply Brief filed
July 21, 2012 (“Reply Br.”), and the Specification filed December 29, 2006
(“Spec.”).
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CLAIMED SUBJECT MATTER
The claims are directed to methods and systems for computing an
error rate associated with lost macro-blocks in an MPEG-2 video stream.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A method for determining a total error rate of timed interval of an
MPEG-2 video stream comprising:
operating a device capable of capturing network packet
transmissions to determine a number of lost macro-blocks per video
frame type;
operating the device to determine a number of total macro-
blocks transmitted in a video stream in the timed interval; and
operating the device to compute a total rate ( ) from the
determined number of lost macro-blocks and total macro-blocks,
wherein the total rate is given by:
∑ ∈ , , .
Claim 5 is a device claim analogous to method claim 1.

REJECTION
Claims 1 and 5 were rejected under 35 U.S.C. § 103(a) based on
Wang3.

ANALYSIS
Appellants’ Specification discloses that MPEG-2 video streams
typically include many types of frames, including I-frames, P-frames, and B-

3 US 2008/0089414 A1 published April 17, 2008.
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frames (Spec. 1). Appellants’ claims are directed to summing lost blocks for
each of the I-frames, P-frames, and B-frames over a time interval to
determine a total loss rate for macro-blocks of an MPEG-2 video stream.
The Examiner finds Wang teaches determination of total loss rates of
macro-blocks for I-frames and P-frames (see Ans. 5–6 citing Wang Fig. 1 -
element 100 ¶¶ 3, 13, 34–36, and 45). Acknowledging Wang does not
disclose computation of macro-block loss rate for B-frames, the Examiner
nonetheless finds claims 1 and 5 obvious over Wang (id.). The Examiner
reasons that it is well known in the art that a total loss rate is equal to the
amount of lost data divided by the total amount of data sent, and that it
would have been obvious to a person of ordinary skill in the art to calculate
total loss rate of macro-blocks to include B-frames in addition to I-frames
and P-frames as taught by Wang, in order to give a complete picture of the
true data loss (Ans. 6).
Appellants argue that the Examiner is relying solely on “common
knowledge” in the art to teach determination of macro-block loss rate for an
MPEG-2 video stream according to the equation in claims 1 and 5:
∑ ∈ , , .
(App. Br. 3–5; Reply Br. 1–2). Appellants contend the Examiner’s reliance
on “common knowledge” without evidentiary support contravenes In re
Zurko, 258 F.3d at 1379, 1385 (Fed. Cir. 2001).
In the Answer, the Examiner clearly sets forth the rationale for his
rejection of claims 1 and 5, as previously noted, together with the teachings
of Wang and the prior art generally which support it. Appellants do not
show the Examiner erred in his findings, or that they lack “some articulated
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reasoning with some rational underpinning to support the legal conclusion of
obviousness.” See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007)(“KSR”)(citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
Specifically, in the rejection, the Examiner relied in part on a fact
asserted to be well-known, namely, that total loss rate is equal to the amount
of lost data divided by the total amount of data sent. In traversing an
Examiner’s finding that a fact is well known in the art, the Appellants are
required to point out specifically the supposed error’s in the Examiner’s
finding, including why the fact is not considered to be common knowledge
or well-known in the art. See 37 C.F.R. § 1.111(b). In other words, apart
from alleging that there is no support in the record for the Examiner’s
assertions, Appellants do not explain why the noticed facts are not
considered to be common knowledge or well-known in the art to constitute
an adequate traversal as required by MPEP § 2144.03(C).
Furthermore, following In re Zurko, 258 F.3d 1379 (Fed. Cir. 2001),
the principal case on which Appellants’ rely, the Court of Appeals for the
Federal Circuit (“Federal Circuit”) held that consideration of “common
knowledge” is not only permitted, but is required in the application of its
“teaching, suggestion, or motivation” (“TSM”) test for obviousness. See
KSR at 421–22 (citing DyStar Textilfarben GmbH & Co. Deutschland KG v.
C.H. Patrick Co., 464 F.3d 1356, 1367 (Fed. Cir. 2006), cert. denied, 551
U.S. 1113 (2007)). The U.S. Supreme Court declined to opine on the
Federal Circuit’s holding in the Dystar case in articulating the proper
approach to obviousness in the KSR case (id.). Nonetheless, this Federal
Circuit precedent remains in effect as law. Therefore, the Examiner’s
reliance upon “common knowledge” or “well-known art” does not
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necessitate the conclusion the Examiner erred in the rejection.
Merely stating a claim limitation and arguing the prior art fails to
disclose it is ineffective to show error in a rejection. See 37 C.F.R. §
41.37(c)(1)(iv). In this case, Appellants argue the prior art does not disclose
the recited equation, without further explanation (see App. Br. 3-4).
Appellants must explain why the recited equation is not disclosed by the
cited art to convince us the Examiner erred in the rejection. As they have
not done so here, we sustain the Examiner’s rejection.

DECISION
For the above reasons, the Examiner’s rejection of claims 1 and 5 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

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