Ex Parte Duwenhorst et al

Patent Trial and Appeal Board

Jun 21, 2016

12122629 (P.T.A.B. Jun. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/122,629 05/16/2008
121363 7590 06/23/2016
Shook, Hardy & Bacon L.L.P.
(Adobe Systems Incorporated)
Intellectual Property Department
2555 Grand Blvd
Kansas City, MO 64108
FIRST NAMED INVENTOR
Sven Duwenhorst
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.
P83 2/ ADBS .208548 9257
EXAMINER
LERNER, MARTIN
ART UNIT PAPER NUMBER
2657
NOTIFICATION DATE DELIVERY MODE
06/23/2016 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
kspringer@shb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SVEN DUWENHORST and HOLGER CLASSEN
Appeal2014-007531
Application 12/122,629
Technology Center 2600
Before 1\1ICHi1~EL J. STRii~USS, JOHN F. HORVii~TH, and
AMBER L. HAGY, Administrative Patent Judges.
PER CURIUM
DECISION ON APPEAL
Appeal2014-007531
Application 12/122,629
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1---6, 8, 10, 13-18, 22, 25-30, 32, 34, and 37. Claims 11, 12, 23, 24, 35, 36,
and 38 are objected to but would be allowable if rewritten in independent
form. Claims 7, 9, 19, 21, 31, and 33 are canceled. We have jurisdiction
over the rejected claims under 35 U.S.C. § 6(b ).
We affirm.
THE INVENTION
The claims are directed to leveling audio signals. Spec., Title. Claim
1, reproduced below with a disputed limitation emphasized in italics, is
representative of the claimed subject matter:
1. A computer-implemented method comprising:
receiving digital audio data;
dividing the audio data into first audio data and second
audio data;
segmenting a first portion of the first audio data into a
plurality of discrete time partitions according to one or more
partitioning parameters;
detecting, by data processing apparatus, a plurality of root
mean square (RMS) values for the audio data of the plurality of
discrete time partitions, wherein the plurality of RMS values
include a distinct RMS value for the audio data of each respective
time partition;
storing the plurality of RMS values for the audio data of
the plurality of discrete time partitions in a first data structure;
sorting the plurality of RMS values according to a sorting
criteria, wherein the sorted RMS values are stored in a second
data structure;
selecting, from the sorted RMS values stored in the second
data structure, an RMS value that is not the highest of the RMS
values stored in the second data structure;
using the selected RMS value to determine a gam
adjustment for at least a portion of the second audio data
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Application 12/122,629
corresponding to a first time partition of the first portion of the
first audio data;
modifying the portion of the second audio data according
to the gain adjustment; and
outputting the modified second audio data.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Schmidt
Yoon
Gupta
us 5,832,444
us 5,900,006
US 6,766,176 Bl
REJECTIONS
Nov. 3, 1998
May 4, 1999
July 20, 2004
The Examiner made the following rejections1:
Claims 1, 2, 4, 5, 8, 10, 13, 14, 16, 17, 20, 22, 25, 26, 28, 29, 32, 34,
and 37 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Schmidt and Yoon. Final Act. 3-10.
Claims 3, 6, 15, 18, 27, and 30 stand rejected under 35 U.S.C.
§ 103 (a) as being unpatentable over Schmidt, Yoon, and Gupta. Final Act.
10-11.
APPELLANTS' CONTENTIONS
1. Schmidt fails to disclose the disputed limitation of claim 1. Br. 15-
16.
2. The rejection is improper because combining Yoon with Schmidt
would change a principle of operation in Schmidt. Br. 16-18.
1 The rejection of claims 10, 22, and 34 under 35 U.S.C. § 112, first
paragraph, has been withdrawn. Ans. 10.
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Application 12/122,629
We have reviewed the Examiner's rejections in light of Appellants'
arguments the Examiner has erred. We disagree with Appellants'
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Final Act. 3-11)
and (2) the reasons set forth by the Examiner in the Examiner's Answer in
response to Appellants' Appeal Brief (Ans. 10-20) and concur with the
conclusions reached by the Examiner.
The Examiner has provided an eminently comprehensive, thorough,
and persuasive analysis of and rebuttal to Appellants' arguments, which
requires no supplementation nor would it benefit from our further
commentary. We agree with the Examiner that (i) Appellants' arguments
addressing the deficiencies of Schmidt fail to address the Examiner's finding
that Yoon teaches or suggests the disputed limitation, and (ii) Appellants'
argument that the combination of Yoon with Schmidt is improper because it
would change a principle of operation in Schmidt is not supported by
sufficient evidence or line of reasoning to be persuasive of Examiner error.
We note attorney arguments and conclusory statements that are unsupported
by factual evidence are entitled to little probative value. See In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984). We further note Appellants' argument improperly
relies on wholesale incorporation of systems rather than what the
combination would suggest.
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
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Appeal2014-007531
Application 12/122,629
the references \vould have suggested to those of ordinary skill
in the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981). The artisan is not compelled
to blindly follow the teaching of one prior art reference over the other
without the exercise of independent judgment. See Lear Siegler, Inc. v.
Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984). We are further mindful
that the skilled artisan would "be able to fit the teachings of multiple patents
together like pieces of a puzzle" because the skilled artisan is "a person of
ordinary creativity, not an automaton." KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 420, 421 (2007). Here, Appellants have not demonstrated the
Examiner's proffered combination in support of the conclusion of
obviousness would have been "uniquely challenging or difficult for one of
ordinary skill in the art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
For the reasons set forth by the Examiner, we are unpersuaded of error
in the rejection of independent claim 1. Accordingly, we sustain the
rejection of independent claim 1 and, for the same reasons, the rejection of
independent claims 13 and 25, under 35 U.S.C. §103(a) over Schmidt and
Yoon, together with the rejection of dependent claims 2, 4, 5, 8, 10, 14, 16,
17, 20, 22, 26, 28, 29, 32, 34, and 37, which are not separately argued. We
further sustain the rejection of dependent claims 3, 6, 15, 18, 27, and 30
under 35 U.S.C. §103(a) as being unpatentable over Schmidt, Yoon, and
Gupta, as these dependent claims are also not separately argued.
DECISION
The Examiner's decision to reject claims 1-6, 8, 10, 13-18, 22, 25-
30, 32, 34, and 37 is affirmed.
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Appeal2014-007531
Application 12/122,629
}Jo time period for taking any subsequent action in connection \'l1ith
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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