Ex Parte Wilson

Board of Patent Appeals and Interferences

Sep 22, 2009

10684167 (B.P.A.I. Sep. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte ANDREW T. WILSON
_____________

Appeal 2009-0036161
Application 10/684,167
Technology Center 2800
______________

Decided: September 22, 2009
_______________

Before JOHN C. MARTIN, JOSEPH F. RUGGIERO, and
ROBERT E. NAPPI, Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is Intel Corporation. Br. 1.
Appeal 2009-003616
Application 10/684,167

2

STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 and 3-30. Claims 1, 3-10, and 16-26 have been
canceled,2 leaving only claims 11-15 and 27-30 for our consideration.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

A. Appellant’s invention
Appellant’s invention relates generally to portable digital audio play-
out devices and more particularly concerns the so-called ‘swarm’ or ad-hoc
networking of physically proximate portable hand-held MIDI music devices
for real-time peer-to-peer musical jamming or music-sharing. Specification
1:12-17.
Appellant’s Figure 4 is reproduced below.

2 “Supplemental Amendment After Final Rejection,” filed March 27, 2007.
Appeal 2009-003616
Application 10/684,167

3

Figure 4 a system block diagram of a network of plural pocket music
synthesizers in accordance with an embodiment of Appellant’s invention.
Specification 3:1-2.
Appeal 2009-003616
Application 10/684,167

4
Plural instances of apparatus 10' are provided in a physically separate
but also physically proximate configuration so as to permit communication
therebetween either wirelessly (e.g., via Bluetooth) or by wired interfaces.
Id. at 6:25-31.
Two different topologies are disclosed. Id. at 8:25-27. In the first
topology, only one instance of apparatus 10' is configured as a master that
acquires a musical data stream from one or more other instances of apparatus
10'. Id. at 8:28-30. The other instances of apparatus 10' would be
configured as slave controllers capable of synthesizing one or more voices
and contributing the same via the network to the one instance of apparatus
10' that is configured as a master controller. Id. at 9:3-6. The master and
slave roles for various instances of apparatus 10' in this topology are subject
to change, i.e., a slave may negotiate with the designated master to yield
master control to the slave, either between musical jam sessions or even
during a given musical jam session. Id. at 9:7-10. Thus, in this first
topology each instance of apparatus 10' can include a mixer, with only the
mixer in the master being active at any particular time.
In the second topology, on the other hand, the mixers in a plurality of
apparatus 10' are active at the same time. That is, in the second topology
every instance of apparatus 10' is capable of receiving synthesized audio
scores from one or more (e.g., every) other apparatus 10'. Id. at 9:11-12. As
a result, each jam session participant can hear his or her own contribution
mixed in real time with the external source, e.g., a downloaded score or
audio score contributions from one or more other contributors. Id. at 10:3-6.
Appeal 2009-003616
Application 10/684,167

5
Figure 5 is reproduced below.

Figure 5 is “a detailed schematic diagram of a master and a slave
music synthesizer within the network of Fig. 4.” Id. at 3:3-4.
In Figure 5, only master version 38 is depicted as including (1) an
audio score input mechanism 48 for wirelessly receiving an audio score from
an external source and (2) an audio score mixing mechanism 50 for mixing a
received-and-inputted audio score with a locally synthesized audio score
from synthesis mechanism 44 to produce an outplayable audio score having
components of both the synthesized and the received-and-inputted audio
Appeal 2009-003616
Application 10/684,167

6
score for outplay by an outplay mechanism 46. However, the Specification
explains that, in one embodiment, each of slave versions 40a, 40b, . . . 40i a
likewise includes an audio score input mechanism 48 and an audio score
mixing mechanism 50. Id. at 11:1-10.

B. The claims
The independent claims are claims 11 and 27, which read as follows:
11. A system of music devices operatively coupled
together, the system comprising:
plural apparatus in physical proximity with each other
and capable of at least one-way communication therebetween of
an audio score,
at least two such apparatus comprising:
an audio score synthesis mechanism including a
playing mechanism for playing the synthesized audio score;
an audio score mixing mechanism coupled with
said synthesis mechanism for mixing plural audio scores to
produce another audio score having components of each of the
plural audio scores; and
an audio score input mechanism coupled with said
mixing mechanism to provide one or more input audio scores
thereto for mixing with the synthesized and outplayed played
audio score,
said synthesis mechanism, said mixing mechanism and
said input mechanism being operable in real time to create a
Appeal 2009-003616
Application 10/684,167

7
playable audio score having components of plural audio scores
produced by said plural proximate apparatus.

27. A musical system comprising:
a wireless network; and
plural portable musical apparatus in physically separated
proximity with each other and capable of two-way
communication therebetween of an audio score over said
wireless network, each musical apparatus including:
an audio score synthesis mechanism; an audio
playing mechanism coupled with said network; an audio input
mechanism coupled with said network; and
an audio score mixing mechanism coupled with
said synthesis mechanism, said input mechanism and said
playing mechanism, said mixing mechanism configured to mix
a first audio score from said synthesis mechanism with a second
audio score from said input mechanism to produce in real time a
playable audio score having components of each of the first and
second audio scores.
Claims App., Br. 6-8.

C. The references and rejection
The Examiner relies on the following references:

Sitrick US 6,084,168 Jul. 4, 2000
Ito US 2003/0121401 A1 Jul. 3, 2003

Claims 11-15 and 27-30 stand rejected under 35 U.S.C. § 103(a) for
obviousness over Ito in view of Sitrick.
Appeal 2009-003616
Application 10/684,167

8

ISSUE
Appellant has the burden on appeal to show reversible error by the
Examiner in maintaining the rejection. See In re Kahn, 441 F.3d 977, 985-
86 (Fed. Cir. 2006) (“On appeal to the Board, an applicant can overcome a
rejection by showing insufficient evidence of prima facie obviousness or by
rebutting the prima facie case with evidence of secondary indicia of
nonobviousness.” (citation omitted)).
The dispositive issue is whether the Examiner and Appellant correctly
found that Ito’s system does not include plural musical apparatus each
containing a mixing mechanism.

ANALYSIS
Ito discloses a system that employs a mixer apparatus for wirelessly
receiving and mixing audio signals or “audio signal producing signals” from
a plurality of music apparatus, thereby avoiding the need for cable
connections. Ito at ¶ 0006.
Appeal 2009-003616
Application 10/684,167

9
Ito’s Figure 1 is reproduced below.

Figure 1 is a block diagram illustrating a network according to one of
Ito’s embodiments. Id. at ¶ 0021. This network is constituted with a
plurality of music apparatus 10 to 30 and a mixer apparatus 40 respectively
capable of wireless communication with these music apparatus 10 to 30. Id.
at ¶ 0027.
Figure 2 is reproduced below.
Appeal 2009-003616
Application 10/684,167

10

Figure 2 is a functional block diagram illustrating the network of
Figure 1 in further detail. Id. at ¶ 0022.
Appeal 2009-003616
Application 10/684,167

11
Figure 2 shows a single mixer apparatus (40) having a Bluetooth
module 41 that receives the MIDI data, digital music tone signals, and digital
audio signals respectively transmitted wirelessly from music apparatus 10,
20, and 30. Id. at ¶ 0035. The received MIDI data, digital music tone
signals, and digital audio signals are respectively applied to tone generator
circuit 42a, decoder 43a, and decoder 43b, respectively. Id. Mixer
apparatus 40 additionally includes a MIDI generator 47 (e.g., a keyboard)
that outputs MIDI data independently with no relation to the outside music
apparatus 10 to 30 and a tone generator circuit 42b that produces and outputs
digital music tone signals (i.e., one type of audio signals) on the basis of the
aforesaid generated MIDI data. Id. at ¶¶ 0038, 0050.
In mixer apparatus 40, the outputs of tone generator circuit 42a,
decoder 43a, decoder 43b, and tone generator circuit 42b are respectively
coupled via characteristics control circuits 44a-44d and level setting circuits
45a-45d to additive synthesis circuits 46a-46d for playing on a sound
system 53. Id. at 0035-39. Mixer apparatus 40 further includes additive
synthesis circuits 54a to 54d, of which the output of final stage 54a is
encoded (compressed) by encoder 55 and respectively output to music
apparatus 10 to 30 via Bluetooth module 41. Id. at ¶ 0040.
Presumably because Ito’s Figure 2 shows a single mixer apparatus
(40), Appellant and the Examiner appear to agree, incorrectly in our view,
that Ito fails to disclose a system including plural musical apparatus each
containing an audio score mixing mechanism. See Answer 4 (“Ito does not
explicitly disclose at least two such apparatus having an audio score mixing
Appeal 2009-003616
Application 10/684,167

12
mechanism . . . .”); Br. 3 (“The Ito reference discloses a system in which
only one apparatus on the network has a mixer.”). We conclude that
although claim 27 clearly requires plural musical apparatus, each including a
mixing mechanism, claim 11 does not. Instead, it recites “at least two such
apparatus comprising,” which is broad enough to read on two apparatus that
collectively include the recited components, such as Ito’s musical instrument
10 and mixer apparatus 40. We are therefore affirming the rejection of claim
11 and its dependent claims 12-15, which are not separately argued, on the
ground that Ito discloses the claimed subject matter. Furthermore, for the
reasons given below, the rejection of claims 11-15 would be affirmed even
assuming “at least two such apparatus comprising” must be interpreted to
mean “at least two such apparatus each comprising.”
The Examiner’s and Appellant’s position that that Ito fails to disclose
a system including plural apparatus each containing an audio score mixing
mechanism overlooks Ito’s Figure 3, which is reproduced below.
Appeal 2009-003616
Application 10/684,167

13

Figure 3 is a block diagram illustrating an embodiment of a music
apparatus (electronic musical instrument) and a mixer apparatus of Figures 1
and 2. Id. at ¶ 0023. Ito explains that each of musical instruments 10, 20,
and 30 and mixer apparatus 40 can be implemented with apparatus like that
depicted in Figure 3 (id. at ¶ 0041), which includes, inter alia, a mixing
circuit 82 that is receives input audio signals from: (1) a musical keyboard
61 (via bus 60); (2) other music apparatus 78 (via MIDI interface 76 and bus
60); (3) “other music apparatus” 84 (via audio input circuit 83); and
(d) “other Bluetooth modules” 79 (via Bluetooth module 77 and bus 60). Id.
at ¶¶ 0042-46. Bluetooth modules 79 are incorporated in other music
apparatus such as electronic musical instruments, sequencers, and
microphone apparatus. Id. at ¶ 0044. The output of mixing circuit 82 is
Appeal 2009-003616
Application 10/684,167

14
connected to D/A converter 85, which converts the digital audio signals
from the mixing circuit into analog audio signals for output to sound system
86. Id. at ¶ 0047.
The relationship between the Figure 3 apparatus and each of music
apparatus 10 to 30 is described in paragraphs 0048-49, while the relationship
between the Figure 3 apparatus and mixer apparatus 40 is described in
paragraph 0050. Ito explains that “Bluetooth modules 11, 21, 31, 41 of
apparatus 10 to 40 are set in advance so that music apparatus 10 to 30 may
function as slaves and mixer apparatus 40 may function as a master.” Id. at
¶ 0053 (bolding omitted; italics added). Furthermore, after explaining how
to set the conditions for transmitting and receiving signals between music
apparatus 10 to 30 and mixer apparatus 40 (id. at ¶¶ 0054-59), which
includes steps S10, S11, S20, S21, S30, S31, S40, S41 of Figure 4, Ito
explains that because the communication condition is set through those
steps, “even if the combination of mixer apparatus 40 with plural music
apparatus 10 to 30 is changed, one can meet the change speedily.” Id. at ¶
0078.
For the foregoing reasons, it is clear that each one of Ito’s music
apparatus 10 to 30 and mixer apparatus 40 contains a mixing circuit 82
(Fig. 3). Appellant has not demonstrated that the foregoing disclosure in Ito
fails to satisfy the claim 27 language that is specifically argued by Appellant
(i.e., “plural portable musical apparatus in physically separated proximity
with each other and capable of two-way communication therebetween of an
audio score over said wireless network, each musical apparatus including: .
Appeal 2009-003616
Application 10/684,167

15
. . an audio score mixing mechanism”). Br. 3. Regarding Appellant’s
argument that “[i]ncluding a mixing mechanism in each of the musical
apparatus . . . makes possible a real-time peer-to-peer musical jam session, a
real-time peer-to-peer ‘swarm,’ or an ad-hoc musical jam session
(specification, page 6, lines 19-20 and page 7, lines 10-12)” (Br. 4), to the
extent Appellant is arguing that claims 11 and 27 requires such a capability,”
we are unpersuaded because Appellant has not demonstrated that the argued
claim language requires such a capability.
For the foregoing reasons, we are affirming the rejection of
independent claims 11 and 27 for obviousness over Ito in view of Sitrick
without reaching the merits of Examiner’s reliance on Sitrick. See In re
Boyer, 363 F.2d 455, 458 n.2 (CCPA 1966) (in sustaining multiple reference
rejection under 35 U.S.C. § 103(a), the Board may rely on one reference
alone without designating the affirmance as a new ground of rejection)
(citation omitted). For the same reasons, we are affirming the rejection of
dependent claims 12-15 and 28-30, which are not separately argued. In re
Nielson, 816 F.2d 1567, 1572 (Fed. Cir. 1987).

DECISION
The rejection of claims 11-15 and 27-30 under 35 U.S.C. § 103(a) for
obviousness over Ito in view of Sitrick 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. See 37 C.F.R.
§ 1.136(a)(1)(iv).
Appeal 2009-003616
Application 10/684,167

16
AFFIRMED

ELD

MARGER JOHNSON & MCCOLLOM, P.C. - INTEL
210 SW MORRISON STREET, SUITE 400
PORTLAND, OR 97204