Ex Parte Perinkulam et alDownload PDFPatent Trial and Appeal BoardFeb 5, 201511647366 (P.T.A.B. Feb. 5, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte SURYANARAYAN PERINKULAM and MARK ANTHONY SMITH ____________________ Appeal 2012-011026 Application 11/647,366 Technology Center 2400 ____________________ 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.”). Appeal 2012-011026 Application 11/647,366 2 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. Appeal 2012-011026 Application 11/647,366 3 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 Appeal 2012-011026 Application 11/647,366 4 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 Appeal 2012-011026 Application 11/647,366 5 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 lp Copy with citationCopy as parenthetical citation