Ex Parte Unno

Board of Patent Appeals and Interferences

Feb 20, 2009

10085548 (B.P.A.I. Feb. 20, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte TAKAHIRO UNNO
_____________

Appeal 2007-3248
Application 10/085,548
Technology Center 2600
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Decided:1 February 24, 2009
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Before ROBERT E. NAPPI, JOHN A. JEFFERY, and CARLA M.
KRIVAK, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2007-3248
Application 10/085,548

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 6(b) of the final
rejection of claims 1, 2, and 5. Claims 3, 4, and 6 have been allowed.
We reverse the Examiner’s rejections of these claims.

INVENTION
The invention is directed towards a method of speech coding and
decoding/synthesis where frames have been erased or lost. See pages 1
through 4 of Appellant’s Specification. Claim 1 is representative of the
invention and reproduced below:
1. A method for decoding code-excited linear prediction
signals, comprising:
(a) forming an excitation for an erased interval of encoded
code-excited linear prediction signals by a weighted sum of (i) an
adaptive codebook contribution and (ii) a fixed codebook
contribution, wherein said adaptive codebook contribution derives
from an excitation and pitch and first gain of one or more intervals
prior to said erased interval and said fixed codebook contribution
derives from a second gain of at least one of said prior intervals;
(b) wherein said weighted sum has sets of weights depending
upon a periodicity classification of at least one prior interval of
encoded signals, said periodicity classification with at least three
classes; and
(c) filtering said excitation.

REFERENCES

Shoham US 5,699,485 Dec. 16, 1997
Unno US 6,826,527 B1 Nov. 30, 2004

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Appeal 2007-3248
Application 10/085,548

Amir Husain & Vladimir Cuperman, Classification and Spectral
Extrapolation Based Packet Reconstruction for Low-Delay Speech
Coding, Proceedings of the Global Telecommunications Conference.
Vol. 2, 28, Nov. 1994, pp. 848-52 (“Husain”).

REJECTIONS AT ISSUE
The Examiner has rejected claims 1, 2, and 5 under 35 U.S.C.
§ 103(a) as being unpatenable over Shoham and Husain. The Examiner’s
rejection is on pages 4 through 6 of the Answer.2
The Examiner has rejected claim 1 under the judicially created
doctrine of obviousness type double patenting as being unpatenable over
claim 1 of Unno. The Examiner’s rejection is on page 3 of the Answer.

ISSUES
Appellant argues on page 3 of the Brief,3 that the Examiner’s rejection
of claims 1, 2, and 5 under 35 U.S.C. § 103(a) is in error. Appellant argues
that Husain requires knowledge of the periodicity classification of an erased
frame. As such, Appellant argues that Husain is not compatible with
Shoham or the claimed invention, both of which discuss deducing the
classification of erased frames from prior frames.4
Thus, Appellant’s contentions present us with the issue: did the
Examiner err in finding that the combination of Shoham and Husain teaches
decoding a signal where for an erased frame, an excitation is formed and

2 Throughout the opinion we refer to the Answer mailed June 14, 2006.
3 Throughout the opinion, we refer to the Brief, received April. 6, 2006.
4 We note Appellant presents additional arguments not addressed here.
However, as the issues raised by this argument are dispositive of the case,
we only address this argument.
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Application 10/085,548

filtered using a weighted sum, the values of the weights depend upon a
periodicity classification as claimed?
Appellant argues on page 4 of the Brief that the Examiner’s rejection
of claim 1 under the judicially created doctrine of obviousness type double
patenting is in error. Appellant argues that dropping the periodicity
classification of application limitation of claim 1, as asserted by the
Examiner, is not obvious.
Thus, Appellant’s contentions directed to obviousness type double
patenting present us with the issue: did the Examiner err in finding that
substituting the periodicity classification limitation of claim 1 for the muting
limitation in claim 1 of Unno obvious?

FINDINGS OF FACT
1. Shoham teaches a system for use in speech decoders which experience
frame erasure. Abstract.
2. Shoham teaches that during frame erasure, the decoder must obtain an
excitation signal for use in synthesizing a speech signal. The
synthesized signal is classified as voiced (periodic) or unvoiced
(aperiodic). The erased frame is assigned the same periodicity as the
previous frame. Col. 5, l. 61- col. 6, l. 14, col. 33, ll. 43-46.
3. Shoham teaches that if the erased frame is classified periodic only an
adaptive codebook is used and the fixed codebook contribution is
zero. If the erased frame is classified non periodic the adaptive
codebook’s contribution is set to zero and the fixed codebook
contribution is used. Col. 33, l. 45 - col. 34, l. 3.
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Application 10/085,548

4. Husain teaches a method for spectral extrapolation in speech
decoders. The method extrapolates missing frames based upon speech
classification (voiced, unvoiced, transition, and silence). Abstract, p.
848; see also page 849 (paragraph following Figure 2).
5. Husain teaches that the receiver knows the classification of a frame
even if the frame is lost (i.e., the decoder which is performing the
spectral extrapolation of a lost frame knows the classification of the
frame). This is accomplished by transmitting the classification of the
current frame in the prior frame or transmitting the frame
classification using error correction code. Page 849 (paragraph
following Figure 2).

PRINCIPLES OF LAW
In determining whether a double patenting rejection is proper, the first
question to be asked is, are the claims directed to the same invention? If the
claims are directed to the same invention, 35 U.S.C. § 101 forbids the grant
of the second patent. If the claims are not directed to the same invention, the
second analysis question that must be asked is, “[d]oes any claim in the
application define merely an obvious variation of an invention disclosed and
claimed in the patent? In considering the question, the patent disclosure may
not be used as prior art.” In re Vogel, 422 F.2d 438, 441 (CCPA 1970)
(citing In re Boylan 392 F.2d 1017 (CCPA 1968); In re Aldrich, 398 F.2d
855 (CCPA 1968)).

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Application 10/085,548

ANALYSIS
Appellant’s contentions have persuaded us that the Examiner’s
rejection of independent claims 1 and 5 under 35 U.S.C. § 103(a) is in error.
Claim 1 recites forming an excitation for a missing frame using a weighted
sum of contributions from an adaptive codebook and fixed codebook. Claim
1 further recites “wherein said weighted sum has sets of weights depending
upon a periodicity classification of at least one prior interval of encoded
signals, said periodicity classification with at least three classes.” Thus, the
scope of claim 1 includes that the classification of the excitation is
determined by the classification of periodicity for prior frame intervals.
Further, claim 1 recites that there are at least three periodicity classifications.
Independent claim 5 recites limitations directed to similar features.
The Examiner has found that Shoham teaches generating excitations
using the claimed method of weighting contributions from codebooks based
upon classification of past frames, but only recites two classifications.
Answer 4-5. We find that the evidence supports this finding by the
Examiner. Facts 1-3. The Examiner further finds that Husain teaches a
speech decoder which makes use of four classifications and that it would be
obvious to apply the four classifications to Shoham. While we concur with
the Examiner’s finding that Shoham teaches four classifications (Fact 4) we
do not concur with the Examiner that combining this teaching with Shoham
renders the claimed invention obvious. As discussed above, the independent
claims recite that the sets of weights are dependent upon a classification in a
prior interval. Shoham teaches this for the two classifications discussed but
provides no insight how there can be three classifications determined based
upon past frames. Further, while Husain teaches four classifications, Husain
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Appeal 2007-3248
Application 10/085,548

does not teach or suggest that these classifications are determined from past
intervals; rather Husain teaches that they are known. Fact 5. As such, we do
not find that the prior art teaches or suggests all of the limitations of
independent claims 1 and 5. Thus, Appellant has persuaded us that the
Examiner erred in finding that the combination of Shoham and Husain
teaches decoding a signal where for an erased frame an excitation is formed
and filtered using a weighted sum, the values of the weights depend upon a
periodicity classification as claimed. Accordingly, we will not sustain the
Examiner’s rejection of claims 1, 2, and 5 under 35 U.S.C. § 103(a).
Appellant’s contentions have also persuaded us that the Examiner’s
rejection of independent claim 1 under the judicially created doctrine of
obviousness type double patenting is in error. The Examiner has found that
claim 1 of the instant application and claim 1 of Unno are identical with the
exception of limitation (b). In claim 1 of the application under appeal,
limitation (b) recites a weighted sum, and in claim 1 of the patent to Unno
limitation (b) recites “muting an excitation.” Answer 3, 9. Further, in
response to Appellant’s arguments, the Examiner states:
. . .[T]he examiner argues that the step of muting the excitation as
found in claim 1, of USP 6,826,527 could be substituted for step (b) of
the present application because, before the muting step is carried out,
the periodicity classification of the frame has to be found (USP
6,827,527 [sic], col. 2, lines 46-63). Based on the frame
characteristics (including the classification), the excitation- muting
factor is updated (USP 6,827,527 [sic], col. 7, lines 13- 22), where the
muting factor is used to mute the sum of an adaptive codebook
contribution and a fixed codebook contribution (USP 6,827,527 [sic],
col. 8, lines 37-41). Therefore, by merely substituting the muting step
of claim one of USP 6,827,527 [sic], for step (b) of the present
application the claims would become identical.

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Answer, 9-10. Thus, the Examiner’s rationale for the rejection relies upon
the disclosure and the claims of Unno (USP 6,826,527) as prior art. This
rationale is insufficient to show obviousness because in determining
obviousness-type double patenting, the Examiner can not rely upon
disclosure of the patent as prior art. See Vogel, 422 F.2d at 441.
Accordingly, we do not find that the Examiner has shown that claim 1 of the
application under appeal is obvious over claim 1 of Unno. Thus, we will not
sustain the Examiner’s rejection of claim 1 under the judicially created
doctrine of obviousness-type double patenting.

ORDER
The decision of the Examiner is reversed.

REVERSED

ELD

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