Ex Parte Wu

Patent Trials and Appeals Board

Mar 7, 2019

14124708 - (D) (P.T.A.B. Mar. 7, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/124,708 12/07/2013
147897 7590
Tutunjian & Bitetto, P.C.
401 Broadhollow Road
Suite 402
Melville, NY 11747
03/11/2019
FIRST NAMED INVENTOR
Yu Wen Wu
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
PA110006 7791
EXAMINER
ANYIKIRE, CHIKAODILI E
ART UNIT PAPER NUMBER
2487
NOTIFICATION DATE DELIVERY MODE
03/11/2019 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):
docketing@tb-iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YU WEN WU
Appeal2018-007194
Application 14/124,708
Technology Center 2400
Before JENNIFER S. BISK, LARRY J. HUME, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.
DIRBA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 seeks our review under 35 U.S.C. § 134(a) of the
Examiner's rejection of claims 1-16, which are all claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 This Decision uses the following abbreviations: "Spec." for the original
specification, filed Dec. 7, 2013, as the national stage entry of a PCT
application filed June 7, 2011; "Final Act." for the Final Office Action,
mailed Dec. 19, 2017; "App. Br." for Appellant's Appeal Brief, filed
Mar. 29, 2018; "Ans." for Examiner's Answer, mailed May 29, 2018; and
"Reply Br." for Appellant's Reply Brief, filed July 6, 2018.
2 According to Appellant, the real party in interest is Thomson Licensing.
App. Br. 3.
Appeal2018-007194
Application 14/124,708
BACKGROUND
Appellant's disclosed embodiments and claimed invention relate to
encoding and decoding blocks of digital image data. Spec. 1 :6-8.
Claim 1, reproduced below, is representative of the claimed subject
matter (emphasis added to contested limitation):
1. A method for encoding blocks of an image using intra prediction,
compnsmg:
dividing a block into two portions, wherein a first portion
comprises at least one column or one row, and a second portion
comprises remaining pixels of the block;
encoding pixels of the first portion of the block without
referencing pixels outside the first portion of the block; and
encoding pixels of the second portion of the block using intra
prediction, wherein the intra prediction references said pixels of
the first portion of the block or previously encoded pixels of the
second portion of the block.
App. Br. 16 (Claims App'x) (emphasis added).
THE REJECTIONS
RI. Claims 1-3, 5-10, and 12-16 stand rejected under pre-AIA
35 U.S.C. § I03(a) as obvious over Gaedke (US 2005/0157797 Al,
published July 21, 2005) and Park (US 2010/0290527 Al, published Nov.
18, 2010). Final Act. 3-5.
R2. Claims 4 and 11 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as obvious over Gaedke, Park, and Gordon (US 2004/0258162 Al,
published Dec. 23, 2004). 3 Final Act. 6.
3 The Final Action incorrectly identifies the publication number for the
Gordon reference as US 2004/0219349 (see Final Act. 6), but the Notice of
References Cited (mailed Oct. 23, 2017) identifies the correct publication
number for the Gordon reference as US 2004/0258162 Al. The '349
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Application 14/124,708
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential).
To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 4I.37(c)(l)(iv).
We have considered all of Appellant's arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Rejection RI of Claims 1-3, 5-10, and 12-16
Appellant argues claims 1-3, 5-10, and 12-16 together as a group.
See App. Br. 8-12; Reply Br. 2-3. Therefore, consistent with the provisions
of 37 C.F.R. § 41.37( c )(l)(iv), we limit our discussion to independent
claim 1. Claims 2, 3, 5-10, and 12-16 stand or fall with claim 1.
Claim 1 recites: "encoding pixels of the first portion of the block
without referencing pixels outside the first portion of the block." App.
Br. 16 (Claims App'x). The Examiner pointed to Park for this claim
limitation. Final Act. 3--4 (citing Park ,r,r 38--48). Appellant argues the
limitation is not taught or suggested by Park and presents three arguments in
support. We address each in tum.
publication (Paulson et al.) is not relevant, as it relates to manufacturing a
self-contained imaging assembly for identification card applications.
Appellant does not allege any error regarding the Gordon reference (App.
Br. 13-14), so we consider this to be a harmless typographical error.
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Application 14/124,708
First, Appellant argues "Park fails to show that non-boundary sub-
blocks correspond to the 'first portion of the block' as claimed in claim 1."
App. Br. 10. According to Appellant, Park's non-boundary sub-
macroblocks cannot teach the claim limitation because the non-boundary
sub-macroblocks are not in the output region of the frame. Id. In response,
the Examiner concludes the claim term "block" is a broad term that "is
generic" and includes macro blocks. Ans. 7. From this, the Examiner finds
"Park's use of the term 'sub-macroblock' and the disclosure of boundary and
non-boundary sub-macroblocks are consistent with the use of block [in the
Specification] and each type gives an indication of a first portion and a
second portion." Id.
We are not persuaded by Appellant's argument that Park's non-
boundary sub-blocks fail to teach "the first portion of the block," recited in
claim 1. The Examiner and Appellant agree the claim term "block" includes
macroblocks. Ans. 7; Reply Br. 2. As Appellant notes, Park's macroblock
can include two portions (each called a "sub-macroblock"): a boundary sub-
macroblock and a non-boundary sub-macroblock. Park ,r 39; see id. ,r 110,
Fig. 9 ( cited at App. Br. 10). Accordingly, the Examiner found the non-
boundary sub-macroblock teaches "the first portion of the block." Ans. 7.
Appellant argues Park's non-boundary sub-macroblock is not included in the
output region, but fails to explain the relevance of this fact. See App. Br. 10.
In particular, while Park's non-boundary sub-macroblock is outside the
output region-which means it may not be "actually displayed" after the
image is decoded-this sub-macroblock includes encoded pixels. See Park
,r,r 48, 110, Fig. 9. Appellant does not identify ( and our review of the claim
does not reveal) any limitation in claim 1 that requires the claimed "first
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Application 14/124,708
portion" to be in the output region or actually displayed. Accordingly, we
see no error in the Examiner's finding that a portion of Park's macro block
(i.e., the non-boundary sub-macroblock) teaches the claimed first portion of
a block.
Second, Appellant argues Park discloses "'horizontal prediction,
vertical prediction, and average prediction (DC mode)"' and thus "does not
deviate from the standard H264/ A VC since those 3 modes use pixels in the
neighborhood (as shown and described in Figures 3B, 3C, and 3A and
paragraphs [0058], [0057] and [0065] of Park)." App. Br. 10 (emphasis
removed) ( quoting Park ,r 39).
We are not persuaded of error. Appellant's argument appears to be
that Park's intra prediction modes "use pixels in the neighborhood," so Park
fails to encode "without referencing pixels outside the first portion," as the
claim requires. However, Appellant does not support this contention with
argument or evidence. The paragraphs cited by Appellant4 do not
demonstrate Park's intra prediction modes use neighboring pixels, as the
cited paragraphs are directed to inter prediction partitioning and motion
vectors. Park ,r,r 57-58, 65 (cited by App. Br. 10).
Further, although Appellant contends Park's "average prediction (DC
mode)" does not teach or suggest the disputed limitation (App. Br. 10),
Appellant later explains the invention uses DC mode to perform the disputed
limitation (id. at 11 (In the invention recited in the claims, "[t]he first portion
4 Appellant also cites "Figures 3B, 3C, and 3A ... of Park" (App. Br. 10);
however, Park includes no such figures. Gaedke and Park each include a
Figure 3, but neither of these figures relates to the passages cited by the
Examiner and the Appellant. Accordingly, we conclude Appellant's
reference to these figures was a typographical error.
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Application 14/124,708
is coded using DC mode on at least one first portion pixel.")). The
disclosure of Park is consistent with the Examiner's rejection-Park's
average prediction mode is used when the non-boundary sub-macroblock is
located at a left or top side within the current frame, which indicates pixels
in neighboring blocks are not used. Park ,r 41. We determine the
Examiner's finding regarding the disputed limitation supports a prima facie
case of obviousness, and Appellant has not shown error in the Examiner's
findings or conclusion as to obviousness. See In re Oetiker, 977 F.2d 1443,
1445 (Fed. Cir. 1992) (If an examiner presents a prima facie case, "the
burden of coming forward with evidence or argument shifts to the
applicant.").
Third, Appellant contends the Examiner's rejection is "misplaced"
because "Park's consideration of boundaries is not a consideration or
limiting factor in [Appellant's] invention." App. Br. 12. Appellant further
explains Park "requires the use of boundary and non-boundary sub-
macroblocks" where Appellant's "invention can be applied to any block,
including macroblocks, and does not require any prior identification of
boundary and non-boundary sub-macroblocks and/or other information as
required by the invention of Park." Reply Br. 2.
We are not apprised of error because Appellant does not show the
alleged differences between Park and Appellant's invention undermine the
Examiner's factual findings or conclusion of obviousness. In particular,
Appellant argues Park requires a consideration of boundaries that is not
required when implementing Appellant's invention; however, claim 1 does
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Application 14/124,708
not prohibit the consideration ofboundaries. 5 See In re Self, 671 F.2d 1344,
1348 (CCP A 1982) (rejecting arguments "not based on limitations appearing
in the claims"). Further, Appellant does not argue Park is non-analogous art,
does not include a teach away argument, and does not otherwise explain the
relevance of any differences between the problem addressed by Park and the
problem addressed by the instant application. See KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 420 (2007) (noting a reference need not address the same
problem as the invention); In re Heck, 699 F.2d 1331, 1332-33 (Fed.
Cir. 1983) (noting references can be used for more than what the patentees
described as their own invention). Accordingly, this argument fails to
demonstrate error in the Examiner's findings regarding the disputed
limitation of claim 1.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the cited prior art
combination to teach or suggest the disputed limitation of claim 1, nor do we
find error in the Examiner's resulting legal conclusion of obviousness.
Accordingly, we sustain the Examiner's obviousness rejection of
independent claim 1. As explained above, claims 2, 3, 5-10, and 12-16 fall
with claim 1.
Rejection R2 of Claims 4 and 11
The Examiner rejects claims 4 and 11 over a combination of Gaedke,
Park, and Gordon. Final Act. 6. Claims 4 and 11 depend from independent
claims 1 and 8, respectively, and Appellant relies on the arguments
5 Claim 1 recites a method "comprising" various steps and, accordingly,
does not exclude additional steps. See Multilayer Stretch Cling Film
Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1358 (Fed. Cir. 2016)
( explaining meaning of "comprising" versus "consisting of').
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Application 14/124,708
presented with respect to claim 1. App. Br. 13-14. For the reasons
discussed above, these arguments are not persuasive, and accordingly, we
find Appellant's arguments do not show error in the Examiner's factual
findings or conclusion of obviousness of claims 4 and 11.
CONCLUSIONS
The Examiner did not err with respect to obviousness rejection RI of
claims 1-3, 5-10, and 12-16 under 35 U.S.C. § I03(a), and we sustain that
rejection.
The Examiner did not err with respect to obviousness rejection R2 of
claims 4 and 11 under 35 U.S.C. § I03(a), and we sustain that rejection.
DECISION
We affirm the Examiner's decision rejecting claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.I36(a)(l)(iv). See 37
C.F.R. § 41.50(±).
AFFIRMED
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