Alexander J. Kelly et al.

Patent Trials and Appeals Board

Dec 12, 2019

14876960 - (D) (P.T.A.B. Dec. 12, 2019)

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.
14/876,960 10/07/2015 Alexander J. Kelly GB920150135US1 8523
104079 7590 12/12/2019
IBM CORP - Fishkill Drafting Center
1701 North Street
B/40-3
Endicott, NY 13760
EXAMINER
HUYNH, AN SON PHI
ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
12/12/2019 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):
fdciplaw@us.ibm.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ALEXANDER J. KELLY, ALEXANDER D.S. MIRSKI-FITTON,
EDWIN P.J. MOFFATT, and ROSS B. PAVITT
____________________

Appeal 2018-007119
Application 14/876,960
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, JASON V. MORGAN, and
HUNG H. BUI, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5–11, and 13–20. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant identifies the real party in interest as International Business
Machines Corporation. Appeal Br. 2.
Appeal 2018-007119
Application 14/876,960

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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter (emphasis,
formatting, and bracketed material added):
1. A processor-implemented method for improving accessibility to a
plurality of livestreamed media content, comprising:
[A.] generating, by a processor, a plurality of live-streamed
source media data corresponding to a plurality of user
interactions with a video game program by a broadcasting
user, wherein the plurality of generated live-streamed
source media data is generated by a video game engine;
[B.] rendering a first video stream and a second video stream
from the generated plurality of live-streamed source media
data,
[i.] wherein the first video stream and the second video
stream include, when rendered by the video game
engine, a plurality of visual characteristics, and
[ii.] wherein the first video stream is a colorblind
accessible stream that substitutes a color depicted in
the second video stream with a more distinguishable
color to a person with a colorblindness or dithering in
place of the color, and
[iii.] wherein the second video stream is a non-colorblind
accessible stream that does not modify any of the
plurality of visual characteristics of the generated
plurality of live-streamed source media data; and
[C.] transmitting the rendered first video stream and the
rendered second video stream to a receiving user.
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Application 14/876,960

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REFERENCES2
The prior art relied upon by the Examiner is:
Name Reference Date
Hendricks US 2005/0157217 A1 July 21, 2005
Jones US 2011/0229023 A1 Sept. 22, 2011
Liberman US 2011/0246172 A1 Oct. 6, 2011
Bonta US 2012/0144445 A1 June 7, 2012
Crenshaw US 2014/0066196 A1 Mar. 6, 2014
Yoakum US 2014/0282054 A1 Sept. 18, 2014
Woods US 2014/0344839 A1 Nov. 20, 2014

REJECTIONS
A.
The Examiner rejects claims 1–3, 5–11, and 13–20 under 35 U.S.C.
§ 103 as being unpatentable over the combination of Bonta, Hendricks,
Woods, Liberman, Jones, Crenshaw, and Yoakum. Final Act. 11–20.
We select claim 1 as the representative claim for this rejection.
Appellant does not argue separate patentability for claims 2, 3, 5–11, and
13–20. Except for our ultimate decision, we do not address the § 103
rejection of claims 2, 3, 5–11, and 13–20 further herein.
B.
The Examiner rejects claims 1–3, 5–11, and 13–20 under 35 U.S.C.
§ 112(a) as failing to comply with the written description requirement. Final
Act. 9–10.

2 All citations herein to patent and pre-grant publication references are by
reference to the first named inventor only.
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Application 14/876,960

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Appellant’s Appeal Brief does not present arguments for the 112(a)
written description rejection. Rather, Appellant merely contends that
amendments proposed but not entered would overcome the rejection. See
Reply Br. 2–3. Because the proposed amendments were not entered, the
claims are not before us in a form that Appellant contends renders the
written description rejection moot. Thus, we affirm pro forma the
Examiner’s § 112(a) rejection. Except for our ultimate decision, this
rejection is not discussed further herein.

OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
Appeal Brief and Reply Brief arguments.
Appellant acknowledges in sub-section I.A. (“The Rejections”) that
the § 103 rejection on appeal is based on the combination of Bonta,
Hendricks, Woods, Liberman, Jones, Crenshaw, and Yoakum which is a
new ground of rejection (Final Act. 21) set forth in the Final Action of
November 7, 2017 (id. at 11–20). Appeal Br. 10; see also Reply Br. 2.
However, Appellant’s arguments set forth in sub-sections I.B.–F. (Appeal
Br. 10–21) are directed explicitly to a different rejection (Non-Final Action
of July 6, 2017) not including Yoakum. The non-final rejection that
excludes Yoakum is not before the Board in this appeal.
In simpler situations, the Board may choose to exercise its discretion
to sift through an Appellant’s misdirected arguments and restructure those
arguments to render them applicable to the rejection actually on appeal (e.g.,
the new ground of rejection). However, here, too much speculation would
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be required by the Panel given the length and structural complexity of
Appellant’s arguments in sub-sections I.B.–F. See Appeal Br. 10–22.
Therefore, we decline to exercise that discretion.
Unlike the arguments in sub-sections I.B.–F., Appellant’s argument in
sub-section I.G. is directed to the Examiner’s new ground of rejection. The
argument in sub-section I.G. lists all seven references used in the new
grounds of rejection. We address this argument directly below.
A.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103.
Appellants contend that Examiner’s use of seven prior art
references (i.e., Bonta, Hendricks, Woods, Liberman, Jones,
Crenshaw, and Yaokum) indicates that the “rendering” claim
element of Appellants’ claimed invention is inherently
nonobvious. . . . Appellants contend that “common sense” would
not lend itself to the combination of limitations of Appellants’
claim 1 that would direct itself to a finding of obviousness as
detailed by the Examiner’s use of seven prior art references. An
individual skilled in the art would not see the combination of
such references as being “common sense”. Therefore,
Appellants’ claim 1 is nonobvious. . . . The combination of these
references is tenuous as their combination cannot be seen [as]
common sense to one skilled in the art.
Appeal Br. 21–22 (emphasis added).
Appellant’s arguments are not persuasive because Appellant does not
identify, nor do we discern, any knowledge that the Examiner relied upon
that was gleaned only from Appellant’s disclosure and that was not
otherwise within the level of ordinary skill at the time of the invention.
Thus, the Examiner’s analysis is appropriate so long as a conclusion of
obviousness is based on a reconstruction that “takes into account only
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knowledge which was within the level of ordinary skill at the time the
claimed invention was made and does not include knowledge gleaned only
from [Appellant’s] disclosure, such a reconstruction is proper.” In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Further, Appellant states that their rendering is done “[u]sing common
rendering techniques.” Spec. ¶ 41. Therefore, we see no reasonable basis
for Appellant to now argue that “the ‘rendering’ claim element of
Appellants’ claimed invention is inherently nonobvious.” Appeal Br. 21.
Furthermore, the number of references relied upon by the Examiner in
the obviousness rejection is not pertinent to the analysis. See In re Gorman,
933 F.2d 982, 986 (Fed. Cir. 1991) (affirming obviousness rejection over
thirteen references) (“The criterion . . . is not the number of references, but
what they would have meant to a person of ordinary skill in the field of the
invention.”).

CONCLUSION
The Examiner has not erred in rejecting claims 1–3, 5–11, and 13–20
as failing to comply with the written description requirement under
35 U.S.C. § 112(a).
The Examiner has not erred in rejecting claims 1–3, 5–11, and 13–20
as being unpatentable under 35 U.S.C. § 103.
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Application 14/876,960

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The Examiner’s rejections of claims 1–3, 5–11, and 13–20 as being
unpatentable under 35 U.S.C. § 112(a) is affirmed.
The Examiner’s rejections of claims 1–3, 5–11, and 13–20 as being
unpatentable under 35 U.S.C. § 103 is affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1–3, 5–11,
13–20
112(a) Written Description 1–3, 5–11,
13–20

1–3, 5–11,
13–20
103 Bonta, Hendricks,
Woods, Liberman,
Jones, Crenshaw,
Yoakum
1–3, 5–11,
13–20

Overall
Outcome

1–3, 5–11,
13–20

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED