GOOGLE INC.Download PDFPatent Trials and Appeals BoardMar 30, 20222020002872 (P.T.A.B. Mar. 30, 2022) Copy Citation 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. 15/671,595 08/08/2017 Ruijie Xu GOGL-1241-B 9167 97818 7590 03/30/2022 Google LLC c/o Young Basile Hanlon & MacFarlane, P.C. 3001 West Big Beaver Rd., Ste. 624 Troy, MI 48084-3107 EXAMINER HAGHANI, SHADAN E ART UNIT PAPER NUMBER 2485 NOTIFICATION DATE DELIVERY MODE 03/30/2022 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): audit@youngbasile.com docketing@youngbasile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RUIJIE XU and DAKE HE ____________________ Appeal 2020-002872 Application 15/671,5951 Technology Center 2400 ____________________ Before JASON J. CHUNG, JAMES W. DEJMEK, and MATTHEW J. McNEILL, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellant2 requests rehearing under 37 C.F.R. § 41.52 of our Decision, mailed December 29, 2021 (“Decision”), in which we affirmed the 1 Although Appellant did not identify any related matters to this Appeal, we are aware of at least Appeal 2020-005168 (Application No. 15/668,745), which has a specification that is nearly identical to the Specification in this matter. We remind Appellant of the duty of candor under 37 C.F.R. § 1.56 and the duty under 37 C.F.R. § 41.37(c)(ii) to identify applications and appeals that are owned by Appellant and that “may be related to, directly affect or be directly affected by or have a bearing on the Board’s decision in the pending appeal.” 2 Throughout this Decision, we use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2019). Appellant identifies Google LLC as the real party in interest. Appeal Br. 3. Appeal 2020-002872 Application 15/671,595 2 Examiner’s decision rejecting claims 1-4, 7-11, 14-17, and 20. Appellant timely filed a Request for Rehearing (“Req. Reh’g”) on February 10, 2022. Appellant’s Request for Rehearing is DENIED. DISCUSSION Except as permitted under 37 C.F.R. § 41.52(a)(2) through (a)(4), requests for rehearing are limited to matters overlooked or misapprehended by the Board in rendering the original decision. See 37 C.F.R. § 41.52. A request for rehearing may not rehash arguments originally made in the Brief. A request for rehearing is not an opportunity to merely express disagreement with a decision. Rather, a request for rehearing “‘must state with particularity the points believed to have been misapprehended or overlooked by the Board”’ and “must specifically recite ‘the points of law or fact which appellant feels were overlooked or misapprehended by the Board.”’ Ex parte Quist, 95 USPQ2d 1140, 1141 (BPAI 2010) (precedential) (quoting MPEP § 1214.03). Claims 1, 2, 9, and 10 Appellant asserts the Board misapprehended or overlooked Appellant’s arguments that one of ordinary skill in the art would not understand Drugeon’s3 frequency selective scan to be a scan order. Req. Reh’g 2-7. Contrary to Appellant’s broad assertions, we disagree that our Decision misapprehended or overlooked Appellant’s arguments. For example, contrary to Appellant’s assertions (see Req. Reh’g 2), we did not rely “entirely on text of Drugeon to support [our construction] of 3 Drugeon et al., US 2011/0206135 A1; Aug. 25, 2011. Appeal 2020-002872 Application 15/671,595 3 ‘scan order.’” Instead, we reviewed Appellant’s Specification and provided a broad but reasonable construction of “scan order,” consistent with the Specification. See Decision 4 (discussing Spec. ¶ 90); see also In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). In particular, we concluded that “a scan order refers to the sequence in which elements within a block of data are traversed for coding.” Decision 4. After properly construing “scan order,” we reviewed Drugeon and found that Drugeon describes “an image coding method of coding an image on block basis comprising transforming a two-dimensional array of pixels values to a current block to be encoded into a two-dimensional array of transform coefficients and ‘determining a scan order for scanning the transform coefficients of the two-dimensional array.’” Decision 5 (quoting Drugeon ¶ 39). Moreover, in the identified paragraph, Drugeon describes “scanning the transform coefficients . . . sequentially.” Drugeon ¶ 39. Further, we identified additional disclosures in which Drugeon uses the term scan order-including a frequency selective scan order-consistent with our construction. See Decision 5-8 (citing Drugeon ¶¶ 39, 44, 47, 61, 85-87, 136-137, 146-155, 174-177, 181-184, Figs. 8, 9, 13, 14). Based on our review of Drugeon, we found that Drugeon distinguishes between a zig-zag scan and a frequency selective scan. See Decision 6-7 (citing Drugeon ¶¶ 146-147, Figs. 8, 9). In addition, our identification of cumulative disclosures in Drugeon does not rely on a combination of distinct embodiments. See Decision 5-8. Thus, contrary to Appellant’s assertions (see Req. Reh’g 3), we did not misapprehend or overlook Appellant’s arguments contending that Drugeon’s frequency selective scan is merely a modified zig-zag scan and does not represent a distinct scan order. See Appeal 2020-002872 Application 15/671,595 4 Decision 8 (expressly finding “Drugeon discloses that the frequency selective scan order is a different scan order from the zig-zag scan order”). To the extent Appellant asserts that the frequency selective scan of Drugeon is more complex and suffers from “a reduction in quality” compared to Appellant’s claimed invention, or that the Board applied “an unreasonably low level of skill in the art” (see Req. Reh’g 4-6), we note that it is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence). Further, to the extent Appellant asserts (see Req. Reh’g 7-8) we misapprehended or overlooked Appellant’s arguments regarding whether “Drugeon discloses that a first group of elements are scanned in a predetermined scan order (e.g., zig-zag scan) and based on the information in the first group, a second scan order is determined,” we disagree. As set forth in the Decision, Drugeon describes selecting a second scan order, different from the first scan order, based on information in a first group of elements. Decision 7 (citing Drugeon ¶¶ 147-155, 174-177). More particularly, we found that, as illustrated in Figure 13 of Drugeon, a first scan order (e.g., a zig-zag scan order) is used to scan a first group of elements and, based on those elements, a second scan order (i.e., a vertical scan order) is selected. Decision 7-8 (citing Drugeon ¶¶ 175-177, Fig. 13). For the reasons discussed supra, we are unpersuaded that we misapprehended or overlooked Appellant’s arguments. Appeal 2020-002872 Application 15/671,595 5 Claim 4 Appellant asserts that our Decision “misapprehended or overlooked” the argument that the number of coefficients in a first group is not equivalent to the shape of the first group of elements. Req. Reh’g 9. More particularly, Appellant argues that an ordinarily skilled artisan would not “interpret a relatively small triangle, such as the triangle formed by the first group shown in FIG. 13 of Drugeon, and a relatively large triangle, such as the triangle formed by the first group shown in FIG. 9 of Drugeon, to be different shapes.” Req. Reh’g 9. Moreover, Appellant asserts the shapes formed in the groups described in Drugeon are “consistently right isosceles triangles.” Req. Reh’g 9. Claim 4 depends from independent claim 1. In describing the first group of elements, claim 1 recites “the first group includes elements forming a triangle in a corner of the block.” (Emphasis added.) Claim 4 recites that “a shape of the first group is selected based on a size of the block.” As broadly recited, claim 4 does not preclude the first group having the shape of a triangle that is based on a size of the block, as described by Drugeon. See Decision 9 (citing Drugeon, Figs. 9, 13). For the reasons discussed supra, we are unpersuaded that we misapprehended or overlooked Appellant’s arguments. Claim 16 Appellant asserts we misapprehended or overlooked the argument that: Drugeon teaches determining whether to enable the frequency selective scan for the whole block based on the coefficients that are “common” to both the zig-zag scan order and the frequency Appeal 2020-002872 Application 15/671,595 6 selective scan, wherein the frequency selective scan is the zig- zag scan order and the additional step of determining that some coefficients are skipped. Req. Reh’g 10. More particularly, Appellant argues “[n]either the Examiner nor the Decision indicate any evidence that Drugeon teaches starting to scan a block using zig-zag, followed by determining whether to enable or disable frequency selective scan, followed by scanning the rest of the block using frequency selective scan.” Req. Reh’g 11. As discussed in the Decision (see, e.g., Decision 5-8) and herein, we find Drugeon’s zig-zag scan and frequency selective scan are different scan orders. Moreover, as we explained in the Decision, “Drugeon describes determining the scan order for the remaining elements in a block based on the sum of the absolute values of the three coefficients (i.e., c1, c2, and c3) in the first group.” Decision 9-10 (citing Drugeon, Fig. 10). More specifically, we found Drugeon describes “if the sum is below a threshold value, then frequency selective scanning is enabled for the remaining elements of the block (the first group was scanned using a zig-zag scan order).” Decision 10 (citing Drugeon ¶¶ 149-150). As illustrated in Figure 10 of Drugeon, the first three coefficients (c1, c2, and c3) are scanned using a zig-zag scan. See Drugeon, Fig. 10. As shown, the scan does not skip a zero coefficient (i.e., c2). See Drugeon, Fig. 10. The sum of the first three coefficients is computed and compared to a threshold. See Drugeon, Fig. 10. If the sum of the first three coefficients is below a threshold, scanning of the remaining elements is performed using the frequency selective scan (i.e., a different scan order than that used to scan the first three coefficients). See Drugeon, Fig. 10. That is, Drugeon describes “determin[ing], based on the elements of the first group, a second scan order, Appeal 2020-002872 Application 15/671,595 7 from a plurality of scan orders, for a second group from the plurality of groups of elements, wherein the plurality of scan orders includes at least one scan order that differs from the fist [sic] scan order with respect to the first group,” as recited in claim 16. For the reasons discussed supra, we are unpersuaded that we misapprehended or overlooked Appellant’s arguments. Claims 7, 14, and 20 Claim 7 requires determining a first count of non-zero elements in a portion of the first group below a main diagonal of the block and at or above an anti-diagonal of the block and determining a second count of non-zero elements in a portion of the first group above a main diagonal of the block and at or above an anti-diagonal of the block. A second scan order is determined based on the first and second counts. In our Decision, we agreed with the Examiner that Fu4 determines whether the values of AC10 (i.e., a portion of the first group below a main diagonal and above an anti-diagonal of the block) and AC01 (i.e., a portion of the first group above a main diagonal and above an anti-diagonal of the block) are non-zero and therefore teaches or reasonably suggests determining the claimed first and second counts of non-zero elements in the identified portions of the first group of elements. Decision 12-13 (citing Fu ¶¶ 103-104); see also Fu, Fig. 1b, ¶ 107 (describing evaluating all of the elements in the first row and first column). Contrary to Appellant’s assertions, we did not misapprehend or overlook the argument regarding whether one of ordinary skill in the art 4 Fu et al., US 2016/0277746 A1; Sept. 22, 2016. Appeal 2020-002872 Application 15/671,595 8 would interpret the recited “portion of the first group” as consisting of a single element (see Req. Reh’g 12). We disagree with Appellant that a count of non-zero elements, as recited in claim 7, precludes determining that only a single coefficient is non-zero. Additionally, as we explained in the Decision, we disagree with Appellant’s argument (see Req. Reh’g 12-13) that the Examiner’s proposed combination of Drugeon and Fu is the result of improper hindsight reasoning. Appellant asserts that “there is no reason to conclude that a person having ordinary skill in the art would interpret the benefit of setting certain coefficients to zero would apply in the proposed combination.” Req. Reh’g 13. Moreover, Appellant argues that simply using a texture direction to determine which coefficients to set to zero without the disclosed amplitude decreasing processing taught by Fu would provide the alleged improvement to compression efficiency. Req. Reh’g 13. As we explained in the Decision, “the Examiner’s proposed combination is not based on information gleaned only from Appellant’s Specification, but is found in Fu’s teaching that using the texture direction to determine which coefficients to set to zero improves compression efficiency without affecting the subjective quality of the image being processed.” Decision 13 (citing Fu ¶¶ 109, 115). Thus, we disagree that the Examiner relied on improper hindsight. In addition, as discussed in the Decision, Drugeon relates to “compressing and decompressing video data with improved coding efficiency.” Decision 5 (quoting Drugeon ¶ 1). Similarly, Fu generally relates to image compression techniques. Fu ¶ 2. In particular, Fu describes performing amplitude decreasing processing on frequency domain or Appeal 2020-002872 Application 15/671,595 9 quantization coefficients of the image to be processed according to the texture direction. Fu ¶¶ 8, 109. Fu teaches the texture direction may be determined by evaluating whether elements in the first row and first column are non-zero elements. See Fu ¶¶ 98-107. We disagree with Appellant that the Examiner’s proposed combination merely relies only on including Fu’s texture direction analysis with Drugeon’s system. As the Examiner notes, “Fu teaches that using the texture direction to determine which quantization coefficients to set to zero.” See Ans. 33. This is part of Fu’s amplitude decreasing processing, which may be incorporated into Drugeon’s system, which may be used to determine a scan order. See, e.g., Drugeon ¶ 92. Accordingly, we find the Examiner has set forth “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). For the reasons discussed supra, we are unpersuaded that we misapprehended or overlooked Appellant’s arguments. Claims 8 and 15 Contrary to Appellant’s assertions (see Req. Reh’g 13-15), we did not misapprehend or overlook Appellant’s argument that “[replacing] the summation from Drugeon with the comparison described in Fu would invalidate the principle of operation of Drugeon.” Rather, the Decision explains that Drugeon’s summation is not replaced by the zero/non-zero comparison of Fu. Decision 14. Rather, the Decision explains, “the Examiner relies on Fu for the limited teaching of the location of the elements Appeal 2020-002872 Application 15/671,595 10 (i.e., in a portion of the first group below a main diagonal of the block and at or above an anti-diagonal).” Decision 14 (citing Ans. 38). In addition, for the example in which Fu identifies only a single location (i.e., element) in a portion of the first group below a main diagonal of the block and at or above an anti-diagonal of the block and a second single location (i.e., element) in a portion of the first group above a main diagonal of the block and at or above an anti-diagonal of the block, we disagree with Appellant that such an application is contrary to Drugeon’s teaching of summing the magnitudes of the identified elements. Moreover, as discussed above, Fu is not limited to analyzing only a single element. See Fu ¶ 107. Appellant advances similar arguments as were presented with respect to claim 7 regarding the proposed combination of Drugeon and Fu. See Req. Reh’g 14-15. For similar reasons, we are unpersuaded the Decision misapprehended or overlooked Appellant’s arguments. For the reasons discussed supra, we are unpersuaded that we misapprehended or overlooked Appellant’s arguments. CONCLUSION We have considered Appellant’s Request, but we maintain our Decision to affirm the Examiner’s decision rejecting claims 1, 2, 4, 9, 10, and 16 under 35 U.S.C. § 102(a)(a)(1) and claims 3, 7, 8, 11, 14, 15, 17, and 20 under 35 U.S.C. § 103. Appeal 2020-002872 Application 15/671,595 11 DECISION SUMMARY Outcome of Decision on Rehearing: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted 1, 2, 4, 9, 10, 16 102 Drugeon 1, 2, 4, 9, 10, 16 3, 11, 17 103 Drugeon, Horn5 3, 11, 17 7, 8, 14, 15, 20 103 Drugeon, Fu 7, 8, 14, 15, 20 Overall Outcome 1-4, 7-11, 14-17, 20 Final Outcome of Appeal after Rehearing: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 9, 10, 16 102 Drugeon 1, 2, 4, 9, 10, 16 3, 11, 17 103 Drugeon, Horn 3, 11, 17 7, 8, 14, 15, 20 103 Drugeon, Fu 7, 8, 14, 15, 20 Overall Outcome 1-4, 7-11, 14-17, 20 TIME PERIOD FOR RESPONSE 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). See 37 C.F.R. § 1.136(a)(1)(iv). 5 Horn et al., US 9,832,475 B1; Nov. 28, 2017. Appeal 2020-002872 Application 15/671,595 12 DENIED Copy with citationCopy as parenthetical citation