Ex Parte You

Patent Trial and Appeal Board

Nov 6, 2013

11558917 (P.T.A.B. Nov. 6, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte YULI YOU
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Appeal 2011-0028831
Application 11/558,917
Technology Center 2600
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Before JEAN R. HOMERE, MICHAEL J. STRAUSS, and
LARRY J. HUME, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 The Real Party in Interest is Digital Rise Technology Co., Ltd. (App. Br.
2.)
Appeal 2011-002883
Application 11/558,917

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1-9 and 14-26. Claims 10-13 have been canceled.
(App. Br. 2.) We have jurisdiction under 35 U.S.C. § 6(b).
We reverse, and enter a new ground of rejection against claims 1-9,
21, and 22.
Appellant’s Invention
Appellant invented a method and system for selecting a window
function to process an audio signal including a frame containing a transient.2
(Spec. 4, [0015].) In particular, upon detecting the transient within a
received audio data frame (12), a transient detector (14) segments the frame
into a plurality of equal-sized data blocks, each containing 256 samples. A
brief window function having a 32-sample long rising portion and a 32
sample long falling portion (Fig. 8) is subsequently selected, and applied to
each of the blocks to thereby process the audio data contained therein. (Spec.
[0017]-[0019], [0045].)
Illustrative Claim
Independent claim 1 further illustrates the invention. It reads as
follows:
1. A computer-readable storage medium storing computer-
executable process steps for processing frame-based audio data,
said process steps comprising:
(a) obtaining a frame of audio data, an indication that a
transient occurs within the frame, and a location of the
transient within the frame;

2 Defined in Examiner’s Answer as “a short-duration signal that represents a
non-harmonic attack phase.” (Answer 10.)
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(b) setting a block size of 256 samples for the frame
based on the indication of the transient, thereby
effectively defining a plurality of equal-sized blocks
within the frame;
(c) selecting a brief window function for a block within
the frame that includes the transient; and
(d) processing the frame of audio data by applying the
brief window function as selected in step (c),
wherein the brief window function includes a rising
portion followed by a substantially constant portion followed
by a falling portion, and
wherein the rising portion and the falling portion of the
brief window function are each 32 samples long.

Prior Art Relied Upon
Edler US 5,214,742 May 25, 1993

Chakravarthy US 2004/0196913 A1 Oct. 7, 2004

Harris, On the Use of Windows for Harmonic Analysis with the
Discrete Fourier Transform, Proceedings of the IEEE, Vol. 66, No. 1,
January (1978)

Rejection on Appeal
The Examiner rejects claims 1-9 and 14-26 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Chakravarthy, Edler, and
Harris.
ANALYSIS
We consider Appellant’s arguments seriatim as they are presented in
the Appeal Brief, pages 6-24, and the Reply Brief, pages 2-24.

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Application 11/558,917

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Dispositive Issue: Under 35 U.S.C. § 103, did the Examiner err in
finding that the combination of Chakravarthy, Edler, and Harris teaches or
suggests applying a selected brief window function to a block size of 256
samples within a frame containing a transient, wherein the selected window
includes a 32-sample long rising portion and a 32-sample long falling
portion, as recited in claim 1?

Appellant argues that the proposed combination of references does not
teach or suggest the disputed limitations emphasized above. (App. Br. 6-18;
Reply Br. 2-22.) According to Appellant, while both Edler and Harris
disclose window functions having a nonzero rising and falling portions, the
cited portions do not teach or suggest individual lengths of 32 samples. (Id.)
In particular, Appellant argues that because Harris’s disclosure of α is
merely a parameter that determines the width of a cosine lobe in a generated
cosine-tapered window, Harris does not remedy the admitted deficiencies of
the Chakravarthy-Edler combination. (App. Br. 11-12.)
In response, the Examiner finds that because Harris teaches the shape
of a cosine taper window improves from 25% to 75% (wider to narrower) as
the value of α increases, one of ordinary skill would have found it obvious to
try different α values to thereby generate a window having the optimal width
of 40% (i.e., rising/falling portions 32 samples long). (Answer 36-38.) In
particular, the Examiner concludes
It would have been obvious for one of ordinary skill in the art at the
time of [the] invention to try a finite number of identified, predictable
experiments of 99 different degree[s] of partial overlap cosine taper
window functions with a reasonable expectation of success. Such
experimentation would lead to selecting the cosine taper window
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according to the optimum audio quality, wherein the rising portion
and the falling portion are each 32 samples long.

(Id. 37-38.)

Based upon our review of the record before us, we find error with the
Examiner’s obviousness rejection regarding claim 1. We note at the outset
that there is no material dispute that the Chakravarthy-Edler combination
does not teach or suggest the disputed limitation. Therefore, the pivotal
issue before us turns on whether Harris’s disclosure of using different α
values for a cosine tapered window teaches or suggests a window function
having rising/falling portions of 32 samples each. We answer this inquiry in
the negative. While we agree with the Examiner that it would have been
within the skill of the ordinary artisan to routinely experiment with various
values of α between 22% to 50% in order to discover a workable or optimal
range,3 we are unable to verify on this record the Examiner’s finding that
the 32 samples long rising/falling portions claim recitation implies a cosine
tapered window having an optimal width of 40% or a window function
having an α value overlapping the stated range. (Answer 6, 46.)

3 It has been held that “[D]iscovery of an optimum value of a result effective
variable in a known process is ordinarily within the skill of the art.” Pfizer,
Inc. v. Apotex, Inc., 480 F.3d 1348, 1368 (Fed. Cir. 2007) (quoting Boesch,
617 F.2d 272, 276 (CCPA 1980). “[I]t is not inventive to discover the
optimum or workable ranges by routine experimentation.” Pfizer, 480 F.3d
at 1368 (quoting In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) and In
re Aller, 220 F.2d 454, 456 (CCPA 1955)). See also In re Luck, 476 F.2d
650, 653-54 (CCPA 1973) (holding that the use of routine testing to identify
optimum amounts of silane to be employed in a lamp coating, without
establishing a critical upper limit or demonstrating any unexpected result,
lies within the ambit of the ordinary skill in the art).
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Albeit the Examiner provides various equations as an attempt to
answer Appellant’s challenge on that very point, we echo Appellant’s
argument that such findings are speculative, at best, as they are not derived
from the record, and are thereby not supported by a preponderance of the
evidence. (See App. Br. 12-17.) Further, while Harris discloses non-zero
rising/falling portions of a window, as well as refining the width of the
window based upon different α values pp. 66-67, we find nothing in the
cited portions of Harris relied upon by the Examiner to suggest that the
refinement of the width affects the length of the window in terms of the
number of samples. We therefore conclude that, while the Examiner’s
obvious to try theory is persuasive,4 we agree with Appellant that the
underlining facts in support thereof (Answer 46) are, at best speculative
(Reply Br. 21), on this record.
Because Appellant has shown at least one error in the Examiner’s
rejection, we need not reach Appellant’s remaining arguments regarding
claim 1, as well as the other claims in this appeal, which also recite the
disputed limitations. It follows Appellant has shown error in the Examiner’s
obviousness rejection as set forth above.

4 KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007)(When there is a
design need or market pressure to solve a problem and there are a finite
number of identified, predictable solutions, a person of ordinary skill has
good reason to pursue the known options within his or her technical grasp.
If this leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that instance the fact
that a combination was obvious to try might show that it was obvious under
§103.)
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Application 11/558,917

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New Ground of Rejection
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claims
1-9, 21, and 22 under 35 U.S.C. § 101 as being directed to nonstatutory
subject matter.
Claims 1-9, 21, and 22 recite a computer-readable storage medium.
However, Appellant’s Specification does not define computer-readable
storage medium to exclude transitory media. Consequently, the claimed
medium encompasses transitory media, which is not patent eligible. See Ex
parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential).

DECISION
We reverse the Examiner’s rejection of claims 1-9, and 14-26 as set
forth above. We have entered a new ground of rejection against claims 1-9,
21 and 22 under 35 U.S.C. § 101 as being drawn to non-patentable subject
matter.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
REVERSED
37 C.F.R. § 41.50(b)

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