Ex Parte Reznik

Patent Trial and Appeal Board

Jan 14, 2013

10826469 (P.T.A.B. Jan. 14, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte YURIY A. REZNIK
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Appeal 2010-006864
Application 10/826,469
Technology Center 2600
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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 As a result, the objection is withdrawn.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
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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.”).
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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.
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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
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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
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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
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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).
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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

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