Hao Ran Gu

Patent Trials and Appeals Board

Aug 28, 2019

13178127 - (D) (P.T.A.B. Aug. 28, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/178,127 07/07/2011 Hao Ran Gu ATI-100314-US-NP 7819
25310 7590 08/28/2019
VOLPE AND KOENIG, P.C.
DEPT. AMD
30 SOUTH 17TH STREET -18TH FLOOR
PHILADELPHIA, PA 19103
EXAMINER
TRAN, KIM THANH THI
ART UNIT PAPER NUMBER
2612
NOTIFICATION DATE DELIVERY MODE
08/28/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
eoffice@volpe-koenig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HAO RAN GU
____________________

Appeal 2018-000502
Application 13/178,127
Technology Center 2600
____________________

Before ALLEN R. MACDONALD, MICHAEL J. STRAUSS, and
DAVID J. CUTITTA II, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL1

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–11, 13–26, and 29–31. Appellant has cancelled claims 12, 27, and
28. App. Br. 28, 33. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant indicates the real party in interest is ATI Technologies ULC.
App. Br. 3.
Appeal 2018-000502
Application 13/178,127

2
Arguments Not Considered
To the extent that Appellant presented new arguments at the hearing
held on August 15, 2019, we do not consider those new arguments. See
37 C.F.R. § 41.37(c)(1)(iv) (2017)(“Except as provided for in §§ 41.41,
41.47 and 41.52, any arguments or authorities not included in the appeal
brief will be refused consideration by the Board for purposes of the present
appeal.”).
Illustrative Claim
Illustrative claim 1 under appeal reads as follows (emphasis and
bracketed material added):
1. A method for processing of an image, comprising:
[A.] obtaining, by an image processor, the image;
[B.] determining, by the image processor, available resources of the
image processor[;]
[C.] identifying, by the image processor, a first portion of the image;
[D.] identifying, by the image processor, a second portion of the
image that is not in the first portion;
[E.] selecting, by the image processor, a first algorithm to be used for
processing the first portion based on the available resources of
the image processor;
[F.] selecting, by the image processor, a second algorithm to be used
for processing the second information portion2 based on the
available resources of the image processor;

2 For purposes of this appeal, we read “the second information portion” as
–the second portion–. Otherwise, the “the second information portion” lacks
antecedent basis in claim 1.
Appeal 2018-000502
Application 13/178,127

3
[G.] applying, by the image processor, the first algorithm to the first
portion to generate a first processed image; and applying, by the
image processor, the second algorithm to the second portion to
generate a second processed image; and
[H.] wherein the second algorithm requires less speed or fewer
computational resources relative to the first algorithm.

References3
Watanabe et al. US 2005/0286741 A1 Dec. 29, 2005
Ruggiero US 2006/0018563 A1 Jan. 26, 2006

Rejections4
A.
The Examiner rejected claims 1, 3, 5, 7, 9–11, 13, 15, 17, 19, 21, 22,
25, and 26 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Watanabe and Ruggiero. Final Act. 3–8.5
Appellant does not present separate arguments for claims 1, 3, 5, 7, 9–
11, 13, 15, 17, 19, 21, 22, 25, and 26. We select claim 1 as representative.
Except for our ultimate decision, we do not address the § 103(a) rejection of
claims 3, 5, 7, 9–11, 13, 15, 17, 19, 21, 22, 25, and 26 further herein.

3 All citations herein to these references are by reference to the first named
inventor only.
4 All citations herein to the “Final Action” are to a Final Action mailed on
December 2, 2016.
5 Although claim 28 is listed as rejected in the heading at page 3 of the Final
Action, no § 103(a) rejection of claim 28 appears in the analysis set forth in
the Final Action. Also, Appellant lists claim 28 as cancelled. App. Br. 4.
Therefore, claim 28 is not before us.
Appeal 2018-000502
Application 13/178,127

4

B.
The Examiner rejects claims 2, 4, 6, 8, 14, 16, 18, 20, 23, and 29–31
under 35 U.S.C. § 103(a) as being unpatentable over Watanabe and
Ruggiero in various combinations with other references. Final Act. 8–12.
Appellant’s Appeal Brief does not present arguments for these claims.
Thus, the rejections of these claims turn on our decision as to claim 1.
Except for our ultimate decision, we do not discuss the § 103(a) rejections of
these claims further herein.

Issue on Appeal
Did the Examiner err in rejecting claim 1 as being obvious?

ANALYSIS6
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant. We
concur with the conclusions reached by the Examiner. We highlight the
following points.

A. Claim 1 – Arguments A.i. and A.iii.7
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a).
The cited references fail to teach, suggest or disclose a
method that includes “selecting, by the image processor, a first

6 All Manual of Patent Examining Procedure (MPEP) citations herein are to
MPEP Rev. 08.2017, January 2018.
7 No argument is designated as “A.ii.” in Appellant’s Appeal Brief.
Appeal 2018-000502
Application 13/178,127

5
algorithm to be used for processing the first portion based on the
available resources of the image processor” as recited in [step E]
of the present claim[ 1].
App. Br. 16 (Appellant’s emphasis omitted; Panel emphasis added).
Particularly, Appellant contends:
Watanabe teaches a method of scaling up the coefficients
associated with a region of interest using the MAXSHIFT
method to reduce the code amount. The reference is completely
silent with regard to performing any form of scaling that is based
on the available resources of the system performing the scaling.
As a result, Watanabe does not teach “selecting, by the image
processor, a first algorithm to be used for processing the first
portion based on the available resources of the image processor”
as recited in the present claims.
App. Br. 17–18. Appellant also argues:
The cited references fail to teach, suggest or disclose a
method that includes “selecting, by the image processor, a
second algorithm to be used for processing the second
information portion based on the available resources of the
image processor” as recited in [step F] in the present claim[ 1].
App. Br. 22 (Appellant’s emphasis omitted; Panel emphasis added).
In response, the Examiner determines,
The [claim] term “available resource” is very broad concept that
should be anything that use to process data.
Ans. 4. The Examiner further determines that the data processing includes:
Watanabe further teaches the image quality setting unit 22
adjusts the code amount of non-ROI region, so that the total code
amount of the entire moving images can be suppressed below a
predetermined capacity while the image quality of an object
marked by a user is kept at a user-intended level (Watanabe, see
pars. [0088]-[0090]).
Ans. 8 (emphasis added).
Appeal 2018-000502
Application 13/178,127

6
In reply, the Appellant further argues:
The Appellant does not dispute that various resources may be
available to an image processor. However, the Examiner has not
pointed to any disclosure or suggestion in Watanabe (or any other
reference) that an image processor determines “available
resources of the image processor,” as recited in claim 1.
Reply Brief 4.
We are not persuaded by Appellant’s argument. We agree with the
Examiner that in Watanabe the code amount ([88], see also “allotted code
amount” at [15] and [21]) is an available resource, the amount of which is
the basis for adjusting the MAXSHIFT algorithm parameters ([63–66]).

B. Claim 1 – Additional Arguments
Appellant furthermore argues the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because:
[T]o the extent that the Examiner is taking judicial notice that
“determining . . . available resources of the image processor”
would be obvious or is arguing that such feature is inherent in
Watanabe, Appellants would point out that, not only is such a
feature not obvious from Watanabe, it would be superfluous. In
Watanabe, the same MAXSHIFT algorithm is applied to an
image regardless of the availability of the “ROI setting unit,
quantization unit and coded data generator.” Therefore, there
would be no reason to determine the availability of the resources
in Watanabe.
Reply Br. 5 (Appellant’s emphasis omitted; Panel emphasis added).
[S]ince Watanabe uses the same algorithm each time,
performing a selection step is completely superfluous. As a
result, Watanabe does not teach a method that includes
“selecting, by the image processor, a first algorithm to be used
for processing the first portion based on the available resources
of the image processor” as recited in the present claims.
Appeal 2018-000502
Application 13/178,127

7
Reply Br. 6 (emphasis added).
The present claims are specifically directed to a method that
selects a different algorithm for encoding the image based on the
available resources of the image processor. Watanabe does not
teach a method that includes "selecting, by the image processor,
a first algorithm to be used for processing the first portion based
on the available resources of the image processor" as recited in
the present claims.
Reply Br. 7 (Appellant’s emphasis omitted; Panel emphasis added).
We are not persuaded by Appellant’s arguments. First, contrary to
Appellant’s postulation of official notice by the Examiner, we find no such
official notice taken by the Examiner.
Second, the argued limitation “different” is not recited in claim 1 (or
any other claim). Rather, claim 1 explicitly recites a limitation which only
differentiates the first and second algorithms in that the second algorithm
“requires less speed or fewer computational resources.” We do not find
where Appellant disputes that the region-of-interest (ROI) and non-ROI
region-of-interest (non-ROI) versions of Watanabe’s MAXSHIFT
algorithms (based on parameter adjustments) meet this less speed or fewer
computational resources claim requirement.
Third, even if we were to construe claim 1 to require totally distinct
first and second algorithms,8 we determine that Watanabe’s use of
MAXSHIFT algorithms with different parameters is suggestive of such
totally distinct algorithms and adjusting the algorithms. Further, although
not relied on by the Examiner, we note that Watanabe explicitly teaches that
either the ROI or non-ROI processing may be adjusted and that the basis of

8 “The first and second algorithms may be distinct from one another.”
Spec. [33].
Appeal 2018-000502
Application 13/178,127

8
the adjustment is not limited to the allotted code amount. Rather, it can be
based on the “state of the [image decoding] apparatus,” e.g., “a battery
remaining amount or reproduction speed.” Watanabe [123–124].

CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1–11, 13–26, and
29–31 as being unpatentable under 35 U.S.C. § 103(a).
(2) Claims 1–11, 13–26, and 29–31 are not patentable.

DECISION
The Examiner’s rejections of claims 1–11, 13–26, and 29–31 are
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