Ex Parte ReznikDownload PDFPatent Trial and Appeal BoardJan 14, 201310826469 (P.T.A.B. Jan. 14, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte YURIY A. REZNIK ____________________ Appeal 2010-006864 Application 10/826,469 Technology Center 2600 ____________________ Before ALLEN R. MacDONALD, ROBERT E. NAPPI, and HUNG H. BUI, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection of claims 1-31.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Real Party in Interest is RealNetworks, Inc. 2 Claims 19, 26, and 29 were objected to because of informalities as per Final Office Action dated September 17, 2008. Subsequently, claims 19, 26, and 29 were amended. As a result, the objection is withdrawn. Appeal 2010-006864 Application 10/826,469 2 I. STATEMENT OF THE CASE3 Appellant’s Invention Appellant’s invention relates to digital audio data compression in which audio data is partitioned into units (blocks/sub-blocks), a prediction filter is applied to each unit of audio data for compression, and a distribution of residual data generated from the prediction filter is employed with statistical measures in order to reduce the amount of data having to be transmitted to a recipient. See Appellant’s Spec. ¶0002 and Abstract. Claims on Appeal Claims 1, 19, 26, and 29 are independent. Claim 1 is representative of the invention, as reproduced below with disputed limitations emphasized: 1. A method comprising: applying a prediction filter to a unit of audio signal data; determining a distribution substantially representative of residual data generated as part of said applying of a prediction filter to the unit of audio signal data, wherein determining a distribution comprises determining a plurality of statistical measures, including at least one of a skewness of the distribution, and a kurtosis of the distribution; and transmitting in substance the unit of audio signal data to a recipient, utilizing the determined distribution to 3 Our decision refers to Appellant’s Appeal Brief filed November 11, 2009 (“App. Br.”); Reply Brief filed March 26, 2010 (“Reply Br.”); Examiner’s Answer mailed January 27, 2010; and the original Specification filed April 16, 2004 (“Spec.”). Appeal 2010-006864 Application 10/826,469 3 assist in reducing the amount of data having to be transmitted. Evidence Considered The prior art relied upon by the Examiner in rejecting the claims on appeal is: Loh U.S. 3,694,813 Sep. 26, 1972 Kim U.S. 6,094,636 Jul. 25, 2000 Nadon U.S. 2002/0094535 A1 Jul. 18, 2002 Robinson T, "SHORTEN: Simple lossless and near-lossless waveform compression", Technical report CUED/F-INFENG/TR.156, Cambridge University, UK. (December 1994), pp. 1-16. Hasegawa-Johnson et al. "Speech Coding: Fundamentals and Applications", Handbook of Telecommunications, (2003), pp. 1-33. Examiner’s Rejections (1) Claims 1-4, 7-15, and 19-31 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Robinson's Technical Report, "SHORTEN: Simple lossless and near-lossless waveform compression" (hereinafter “Robinson”) in view of Nadon. Ans. 4-18 and 21-26. (2) Claims 5-6 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Robinson, Nadon and further in view of Hasegawa- Johnson's, "Speech Coding: Fundamentals and Applications" December 2003 (hereinafter “Johnson”). Ans. 18-19. (3) Claims 16 and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Robinson, Nadon and Kim. Ans. 19-20. (4) Claim 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Robinson, Nadon and Loh. Ans. 20-21. Appeal 2010-006864 Application 10/826,469 4 II. ISSUE The dispositive issue on appeal is whether the Examiner has erred in rejecting claims 1-4, 7-15, and 19-31 under 35 U.S.C. §103(a) as being unpatentable over Robinson and Nadon. App. Br. 18-22. In particular, the issue turns on whether: (1) Nadon is non-analogous art and, as such, cannot be combined with Robinson (App. Br. 18-20); (2) Robinson and Nadon can be combined if Nadon is non- analogous art (App. Br. 20-22); and (3) Robinson and Nadon teach away from the combination (App. Br. 22-23). III. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions as to all rejections. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. We also concur with the conclusions reached by the Examiner and further highlight and address specific findings and arguments for emphasis as follows. With respect to the §103(a) rejection of claims 1-4, 7-15, and 19-31, Appellant makes three arguments: (1) Nadon is non-analogous art; (2) there is no reason or motivation to combine Robinson and Nadon because Appeal 2010-006864 Application 10/826,469 5 Robinson and Nadon are non-analogous art; and (3) Robinson and Nadon teach away from each other and the combination. App. Br. 23-24. However, we find none of Appellant’s arguments persuasive. First, as correctly found by the Examiner, Nadon discloses a method of modeling residual data as a normal distribution by way of statistical measurements of skewness or kurtosis. Ans. 22. "To qualify as analogous art ... we do not believe that a prior art reference need be reasonably pertinent to each and every problem with which an inventor is involved; reasonable pertinence to a single such problem suffices." Ex parte Gaechter, 65 U.S.P.Q.2d 1690, 1692 (BPAI 2002). Here, Nadon is analogous art and can be properly used in the proffered combination because Nadon addresses the same problem of modeling residual data as a Gaussian (Normal) distribution and measuring statistical properties of residual data as addressed by Robinson. Moreover, as a secondary reference, Nadon is merely cited as evidence to support the Examiner’s finding that skewness and kurtosis are “standard statistical measurements of a distribution.” Ans. 5; also see ¶0057 of Nadon. As such, we agree with the Examiner’s finding that standard statistic measurement can be applied to any data regardless whether data are obtained from speech signals, as from Robinson, or from genomic samples, as from Nadon. Ans. 23. Second, regarding the combinability of Nadon with Robinson, we agree with the Examiner’s finding that both Robinson and Nadon address the problem of modeling residual data as a Gaussian distribution and measuring statistical properties of residual data. Ans. 24. We find Nadon’s skewness/kurtosis as standard statistical measures that would have been readily combinable with Robinson. We are of the view that such familiar Appeal 2010-006864 Application 10/826,469 6 elements would have been combinable by an artisan possessing ordinary skill, creativity, and common sense using known methods in a manner that would have yielded predictable results. Thus, we conclude that an artisan would have found Nadon readily combinable with Robinson according to the same rationale. We note that Appellant has not rebutted the Examiner’s legal conclusion of obviousness by showing that the claimed combination of familiar elements produces any new function. Moreover, Appellant has not provided any factual evidence as to why Nadon cannot be combined with Robinson. Accordingly, we find Appellant’s argument unpersuasive that the cited references have been improperly combined by the Examiner. Third, a reference that “teaches away” does not per se preclude a prima facie case of obviousness, but rather the “teaching away” of the reference is simply a factor to be considered in determining non- obviousness. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (citing United States v. Adams, 383 U.S. 39, 52 (1966)). Here, Appellant’s “teaching away” argument is misplaced. As previously discussed supra, both Robinson and Nadon address the problem of modeling residual data as a Gaussian distribution and measuring statistical properties of residual data. Ans. 24. Moreover, Appellant’s arguments that Robinson and Nadon teach away from Appellant’s invention and there is no motivation to combine Robinson and Nadon are also unpersuasive. Appellant has merely presented conclusory statements and has not cited to any persuasive evidence of record to support their argument. It is well settled that mere lawyer’s arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d Appeal 2010-006864 Application 10/826,469 7 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Lastly, we note that Appellant has raised several new arguments against the §103 rejection of claims 1-4, 7-15, and 19-31 over Robinson and Nadon in the Reply Brief.4 Specifically, Appellant belatedly disputes the Examiner’s factual findings regarding Robinson, and raises various arguments based on the belated premise that Robinson does not disclose several limitations in independent claim 1, and similarly recited in independent claims 19, 26, and 29, including, for example: (1) specific “unit of audio data”; (2) “determining a distribution substantially representative of residual data generated as part of said applying of a prediction filter to the unit of audio signal data”; and (3) “utilizing the determined distribution to assist in reducing the amount of data having to be transmitted.” Reply Br. 6- 10. However, these arguments are deemed waived. Appellant has not explained why, nor is it apparent that, these arguments were necessitated by a new point in the Examiner Answer or any other circumstance constituting “good cause” for its belated presentation. See Ex parte Borden, 93 U.S.P.Q.2d 1473, 1473-74 (BPAI 2010) (“informative”) (absent a showing of good cause, the Board is not required to address argument in Reply Brief that could have been presented in the principal Appeal Brief). For the reasons set forth above, Appellant has not persuaded us of error in the Examiner’s rejection of claims 1-4, 7-15, and 19-31 under 35 U.S.C. §103(a) as being unpatentable over Robinson and Nadon. 4 See e.g., Reply Brief 6-10 (filed March 26, 2010). Appeal 2010-006864 Application 10/826,469 8 With respect to the §103 rejections of claims 5-6, and 16-18, Appellant presents no arguments for patentability of these claims separately from independent claim 1. App. Br. 23-24. Therefore, we also sustain the Examiner’s rejections of claims 5-6, and 16-18 under 35 USC § 103(a) as being unpatentable over Robinson, Nadon, Johnson, Kim and Loh for the same reasons discussed with respect to the rejection of independent claim 1. V. CONCLUSION On the record before us, we conclude that the Examiner has not erred in rejecting claims 1-31 under 35 U.S.C. §103(a). VI. ORDER As such, we affirm the Examiner’s final rejection of claims 1-31 under 35 U.S.C. §103(a). 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) (2011). AFFIRMED tj Copy with citationCopy as parenthetical citation