Amazon Technologies, Inc.

Patent Trials and Appeals Board

Mar 30, 2022

2021000970 (P.T.A.B. Mar. 30, 2022)

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. 15/916,616 03/09/2018 Patrick G. McCuller 170104-1723 1467 71247 7590 03/30/2022 Client 170101 c/o THOMAS HORSTEMEYER, LLP 3200 WINDY HILL RD SE SUITE 1600E ATLANTA, GA 30339 EXAMINER LUO, KATE H ART UNIT PAPER NUMBER OPQA 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): docketing@thip.law uspatents@tkhr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PATRICK G. MCCULLER Appeal 2021-000970 Application 15/916,616 Technology Center 2400 ____________________ Before ALLEN R. MacDONALD, BRADLEY W. BAUMEISTER, and JASON V. MORGAN, Administrative Patent Judges. Opinion for the Board filed by Administrative Patent Judge MacDONALD. Opinion Concurring filed by Administrative Patent Judge BAUMEISTER. 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, 2, 4, 7-9, 11, 12, 15-17, 19, and 21- 23. Appeal Br. 4; Ans. 4. The rejection of claims 3, 6, 10, 14, and 18 has been withdrawn. Ans. 3. Claims 5, 13, and 20 have been cancelled. Appeal Br. 42-45. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant states “[t]he real party in interest is Amazon Technologies, Inc.” Appeal Br. 2. Appeal 2021-000970 Application 15/916,616 2 CLAIMED SUBJECT MATTER Claims 1 and 21 are illustrative of the claimed subject matter (emphasis, formatting, and bracketed material added): 1. A system, comprising: [A.] one or more processors; and [B.] memory to store computer-executable instructions that, if executed, cause the one or more processors to: [i.] predict that a user attention would be drawn away from a first portion of a first video frame to a second portion of the first video frame due to a rate of change of objects portrayed in the second portion relative to at least one previous video frame; [ii.] encode the first portion of the first video frame at a lower quality level than the second portion of the first video frame in response to predicting that the user attention would be drawn away from the first portion to the second portion; and [iii.] display the first and second encoded portions in a second video frame. 21. The system of claim 1, wherein the computer-executable instructions, if executed, further cause the one or more processors to predict that the rate of change of objects portrayed in the second portion of the first video frame is likely to interfere with a user perception of the first portion of the first video frame. REFERENCES2 The Examiner relies on the following references: Name Reference Date Brown US 2005/0185823 A1 Aug. 25, 2005 Cheok US 2010/0124274 A1 May 20, 2010 2 All citations herein are by reference to the first named inventor only. Appeal 2021-000970 Application 15/916,616 3 REJECTIONS The Examiner rejects claims 1, 2, 4, 7-9, 11, 12, 15-17, 19, and 21- 23, under 35 U.S.C. § 103 as being unpatentable over the combination of Cheok and Brown. Final Act. 3-11. Appellant presents patentability arguments for claims 1 and 21. Appeal Br. 5-12, 16-18. To the extent that Appellant discusses claims 2, 4, 7-9, 11, 12, 15-17, 19, 22, and 23, Appellant merely repeats (or references) the arguments directed to claims 1 and 21. Appeal Br. 18-24, 27-35, 37-39. Such a repeated (or referenced) argument is not an argument for “separate patentability.” Thus, Appellant does not present separate arguments for claims 2, 4, 7-9, 11, 12, 15-17, 19, 22, and 23. We select claims 1 and 21 as representative. Except for our ultimate decision, we do not address the merits of the § 103 rejection of claims 2, 4, 7-9, 11, 12, 15-17, 19, 22, and 23 further herein. OPINION We have reviewed the Examiner’s rejections in light of Appellant’s Appeal Brief and Reply Brief arguments. We highlight the following points. A. Appellant raises the following argument in contending that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103. Although the Office Action (pp. 4-5) points to paragraph [0022] of Appellant’s Specification in an attempt to address the deficiencies of Cheok and Brown, paragraph [0022] does not state that “predict that a user attention would be drawn away from a first portion of a first video frame to a second portion of the first video frame” means “detect whether a rapid change is present in one or more frames of the video signal,” as alleged by the Office Action (pp. 4-5). Appeal 2021-000970 Application 15/916,616 4 [0022] In addition, the encoding adjustment application 116 may be executed to detect whether a rapid change is present in one or more frames of the video signal that is to be encoded. Such a rapid change may be predicted to draw the attention of the user to a region of the video frame where the rapid change is occurring, thereby inducing a saccade. In one embodiment, the encoding adjustment application 116 may compare frames of the video signal to previous frames of the video signal to ascertain whether a rapid change is present. In another embodiment, the encoding adjustment application 116 may be able to correlate frames of the video signal to a profile of the application 118 that indicates whether a rapid change is anticipated. In yet another embodiment, the encoding adjustment application 116 may obtain event indications from the application 118 that notify the encoding adjustment application 116 that a rapid change is anticipated. [] As shown above, the encoding adjustment application 116 may be executed to “detect whether a rapid change is present in one or more frames of the video signal that is to be encoded.” However, paragraph [0022] further states that “[s]uch a rapid change may be predicted to draw the attention of the user to a region of the video frame where the rapid change is occurring, thereby inducing a saccade,” before going onto describing multiple embodiments showing how a rapid change is predicted. Accordingly, Appellant asserts that “predict that a user attention would be drawn away from a first portion of a first video frame to a second portion of the first video frame” does not mean “detect whether a rapid change is present in one or more frames of the video signal.” Appeal Br. 6-7 (Appellant’s emphasis omitted; Panel’s emphasis added). Furthermore, claim 1 recites “predict that a user attention would be drawn away” and not “detect that a user attention would be drawn away.” As one of ordinary skill in the art can appreciate, “predict” and “detect” are distinct terms, and MPEP Appeal 2021-000970 Application 15/916,616 5 § 2111 states that, under the broadest reasonable interpretation, “the meaning given to a claim term must be consistent with the ordinary and customary meaning of the term (unless the term has been given a special definition in the specification), and must be consistent with the use of the claim term in the specification and drawings.” Appeal Br. 8. Paragraph [0022] of Appellant’s specification states: [reproduced supra] Based on the reproduced portion above, Appellant respectfully submits that paragraph [0022] lists at least two examples on “how to predict that a user attention would be drawn away when a rapid change is occurring,” which the Examiner’s Answer (p. 17) alleges that paragraph [0022] does not. For one, paragraph [0022] states “[i]n another embodiment, the encoding adjustment application 116 may be able to correlate frames of the video signal to a profile of the application 118 that indicates whether a rapid change is anticipated.” Following directly after, paragraph [0022] also states “[i]n yet another embodiment, the encoding adjustment application 116 may obtain event indications from the application 118 that notify the encoding adjustment application 116 that a rapid change is anticipated.” Reply Br. 5. We are unpersuaded by Appellant’s argument. Appellant “submits that paragraph [0022] lists at least two examples on ‘how to predict that a user attention would be drawn away when a rapid change is occurring,’ which the Examiner’s Answer (p. 17) alleges that paragraph [0022] does not.” Reply Br. 5. Appellant is mistaken in asserting that “the Examiner’s Answer (p. 17) alleges that paragraph [0022] does not.” Rather, the Answer agrees with Appellant to the extent that “the rest of paragraph describes multiple embodiments showing how a rapid change is predicted by comparing or correlating frame changes of the video signal.” Ans. 17. Appeal 2021-000970 Application 15/916,616 6 Where Appellant and Examiner disagree is as follows: The Examiner interprets paragraph [0022] as describing three embodiments of “predicting,” whereas Appellant appears to be arguing that only the second and third embodiments of the Specification’s three disclosed embodiments entail “predicting.” We do not find Appellant’s argument to be persuasive because the first embodiment (“ascertain whether a rapid change is present”) of paragraph [0022] constitutes an acknowledgement by Appellant that the first embodiment of paragraph [0022] describes a “predicting” embodiment. We conclude that an artisan reading paragraph [0022] of the Specification would understand that Appellant is broadening the normal usage of “predicting” to include all three embodiments (not just the latter two “anticipating” embodiments). The patent law “allows the inventor to be his own lexicographer.” Autogiro Co. of America v. United States, 384 F.2d 391, 397 (Ct. Cl. 1967). To ascertain the true meaning of disputed claim language, resort should be made to the claims at issue, the specification, and the prosecution history. See, e.g., Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569-71, (Fed. Cir. 1983). We conclude that based on Appellant’s broadening of the term “predicted” to include “ascertain whether a rapid change is present” (Spec. ¶ 22), the Examiner does not err in reading “predicting” to include “detecting.” We note that Appellant is not precluded from amending claim 1 to limit it to the argued “a rapid change is anticipated” embodiments of paragraph [0022] of the Specification. Appeal 2021-000970 Application 15/916,616 7 B. Also, Appellant raises the following argument in contending that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103. As a distinct and independent basis of patentability, Appellant respectfully requests that the rejection of claim 1 be overturned because the combination of the references is the result of impermissible hindsight. . . . Although the Office Action provides a motivation for combining Cheok and Brown, neither reference discusses the “predict[ing]” nor “user attention” element, much less those elements as motivating factors. To force the mapping of the references to the claims, the Office Action appears to be relying on the language of Appellant’s specification to guide the way. Thus, the Office Action appears to use Appellant’s disclosure as a roadmap in an attempt to locate missing claim elements, which clearly are not found in the cited references. The use of Appellant’s specification in this manner constitutes the impermissible use of hindsight. Appeal Br. 10-11 (emphasis added). [T]he allegation by the Examiner’s Answer (pp. 17-18) that “predict that a user attention would be drawn away from a first portion of a first video frame to a second portion of the first video frame” means “predict or detect a rapid change from a first portion of a first video frame to a second portion of the first video frame” appears to improperly import limitations from the specification into the claims. Reply Br. 7 (emphasis added). We are unpersuaded by Appellant’s argument. Our reviewing court has repeatedly warned against confusing improperly importing limitations into a claim with properly interpreting the meaning of a claim term in light of the specification. Appeal 2021-000970 Application 15/916,616 8 Appellant’s disclosure may be used to determine the proper meaning of the terms used in the claims. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979-80 (Fed. Cir. 1995) (en banc). “[I]nterpreting what is meant by a word in a claim ‘is not to be confused with adding an extraneous limitation appearing in the specification, which is improper.’” In re Cruciferous Sprout Litigation, 301 F.3d 1343, 1348 (Fed. Cir. 2002) (quoting Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1053, (Fed. Cir. 1989)) (emphasis in original). It is entirely proper to use the specification to interpret what the patentee meant by a word or phrase in the claim. But this is not to be confused with adding an extraneous limitation appearing in the specification, which is improper. E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430 (Fed. Cir. 1988) (citation omitted). Contrary to Appellant’s argument, for the reasons in Section A supra, we conclude that the Examiner is properly interpreting the meaning of “predicting” in light of the Specification, and is not importing limitations into the claim. C. Further, Appellant raises the following argument in contending that the Examiner erred in rejecting claim 21 under 35 U.S.C. § 103. Appellant respectfully submits that the combination of cited references fails to show or suggest at least “predict that the rate of change of objects portrayed in the second portion of the first video frame is likely to interfere with a user perception of the first portion of the first video frame,” as recited in claim 21. Appeal Br. 16 (emphasis added). Appeal 2021-000970 Application 15/916,616 9 Cheok fails to disclose “predict[ing] the rate of change of objects,” especially in relation to interfering with a “user perception,” as recited in claim 21. Indeed, Cheok is silent as to “user perception,” and is discussing drawing attention in relation to a video compression technique that has no bearing on “interfer[ing] with a user perception,” as recited in claim 21. . . . Appellant asserts that detecting of “occurrence of high speed movement of objects and the occurrence of sudden changes in movement of objects,” as taught by Brown, fails to show or suggest “predict [] the rate of change of objects portrayed in the second portion of the of the first video frame,” as recited in claim 21. As discussed above in connection with Appellant’s arguments for claim 1, Appellant asserts that merely “detecting the occurrence of events,” as taught by Brown, fails to show or suggest “predict[ing] [] the rate of change of objects.” In fact, Brown does not discuss “predict[ing]” or “user attention” at all, especially “predict[ing]” in relation to “user attention.” Reply Br. 13-15 (Appellant’s emphasis omitted; Panel’s emphasis added). We are unpersuaded by Appellant’s argument. We agree with the Examiner that Cheok meets the “user perception” claim limitation. Final Act. 10. Cheok is directed to “human recognition” (Cheok ¶ 3) where: [I]t is desirable to have a technique of coding objects in the surveillance scene so that a region-of-interest (ROI) can be compressed at higher quality relative to other regions that are visually less-important such as the scene background. . . . In one or more embodiments, a method and apparatus for encoding surveillance video where one or more regions of interest are identified and the encoding parameter values associated with those regions are specified in accordance with intermediate outputs of a video analytics process. Such analytics-modulated video compression allows the coding process to adapt dynamically based on the content of the surveillance images. In this manner, the fidelity of the region of Appeal 2021-000970 Application 15/916,616 10 interest (ROI) is increased relative to that of a background region such that the coding efficiency is improved, including instances when no target objects appear in the scene. Cheok ¶¶ 4-5 (emphasis added). We conclude that an artisan would understand Cheok’s region of interest to be a region that is visually important to a user, i.e., important to the user’s perception of the region. D. For these reasons, we conclude the Examiner does not err in rejecting claim 1 as being unpatentable over the combination of Cheok and Brown. CONCLUSION The Examiner does not err in rejecting claims 1, 2, 4, 7-9, 11, 12, 15- 17, 19, and 21-23 as being unpatentable under 35 U.S.C. § 103. The Examiner’s rejection of claims 1, 2, 4, 7-9, 11, 12, 15-17, 19, and 21-23 as being unpatentable under 35 U.S.C. § 103 is affirmed. Appeal 2021-000970 Application 15/916,616 11 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 7-9, 11, 12, 15- 17, 19, 21- 23 103 Cheok, Brown 1, 2, 4, 7-9, 11, 12, 15- 17, 19, 21- 23 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 BAUMEISTER, Administrative Patent Judge, concurring. I agree with the Majority’s analysis and conclusions. I write separately because I think an alternative characterization of the disputed claim language provides a clearer basis for disposing of the appeal. As the Majority correctly determines, Appellant’s Specification sets forth three exemplary ways in which a rapid change may be predicted to draw the attention of the user to a region: (1) “compare frames of the video signal to previous frames of the video signal to ascertain whether a rapid change is present”; (2) “correlate frames of the video signal to a profile of the application 118 that indicates whether a rapid change is anticipated”; and (3) “obtain event indications from the application 118 that notify the encoding adjustment application 116 that a rapid change is anticipated.” None of these examples sets forth that “predicting,” as presently claimed, entails any additional affirmative action beyond the affirmatively disclosed underlying acts of comparing frames of the video signal, correlating frames, or obtaining even indications.” Spec. ¶ 22. Nor does Appellant provide persuasive evidence that “predicting” entails any affirmative action beyond these underlying acts. See generally Appeal Br.; Reply Br. As such, I understand the claim language, “predict that a user attention would be drawn away from a first portion of a first video frame to a second portion of the first video frame,” to merely constitute a recitation of the intended reason for performing the recited affirmative action of “detecting a rate of change of objects portrayed in the second portion Appeal 2021-000970 Application 15/916,616 2 relative to at least one previous video frame.” That is, I understand the disputed limitation of claim 1 as only setting forth an affirmative action of detecting a rate of change of the portrayed objects. The additional language of predicting that a user’s attention would be drawn away constitutes an intangible subjective reason for detecting the rate of change. In my view, then, prior art would render claim 1 unpatentable so long as it teaches or suggests a system that includes a one or more processors and a memory, as recited by limitations [A] and [B], and further causes the one or more processors to compare a rate of change of objects, as recited in limitation [B.1], and then performs the additional limitations of steps [B.2] and [B.3]. The additional claim language of step [B.1], “predict that a user attention would be drawn away from a first portion of a first video frame to a second portion of the first video frame,” does not serve to further distinguish claim 1 over any such prior art.