Ex Parte Heitz et al

Patent Trial and Appeal Board

Apr 26, 2017

13103445 (P.T.A.B. Apr. 26, 2017)

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.
13/103,445 05/09/2011 Geremy A. Heitz III 030120-077710US 9297
16621 7590 04/28/2017
Morris & Kamlay LLP / 030120
1911 N. Fort Myer Drive
Suite 1050
Arlington, VA 22209
EXAMINER
MAHMOOD, REZWANUL
ART UNIT PAPER NUMBER
2164
NOTIFICATION DATE DELIVERY MODE
04/28/2017 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):
pto @ morriskamlay. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEREMY A. HEITZ III, ADAM BERENZWEIG,
JASON E. WESTON, RON J. WEISS, SALLY A. GOLDMAN,
THOMAS WALTERS, SAMY BENGIO, DOUGLAS ECK,
JAY M. PONTE, and RYAN M. RIFKIN
Appeal 2016-001237
Application 13/103,4451
Technology Center 2100
Before KRISTEN L. DROESCH, JOHNNY A. KUMAR, and
KAMRAN JIVANI, Administrative Patent Judges.
DROESCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek review under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—5, 7—12, and 14—21, all of the pending claims in
the application.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants indicate the real party-in-interest is Google Inc. App. Br. 1.
2 Claims 6 and 13 have been cancelled.
Appeal 2016-001237
Application 13/103,445
BACKGROUND
The disclosed invention relates to a system and method for generating
a playlist from a library of audio tracks. Spec. 13, 24.
CLAIMED SUBJECT MATTER
Representative claim 1, reproduced from the Claims Appendix of the
Appeal Brief, reads as follows (disputed limitations in italics)'.
1. A method of generating a playlist, comprising:
designating a seed track in an audio library, the audio
library comprising audio tracks, each of the audio tracks,
including the seed track, being represented by a construct, each
construct being derived from a frequency representation of a
corresponding audio track and each construct represented by a
vector wherein the frequency representation includes at least
one of a stabilized auditory image and a mel-frequency cepstral
coefficient;
identifying audio tracks in the audio library having
corresponding constructs that are within a range of a
corresponding construct of the seed track, wherein the
corresponding constructs within the range are similar to the
corresponding construct of the seed track;
generating the playlist using at least some of the
identified audio tracks; and
determining the constructs, wherein determining a
construct for an audio track comprises:
obtaining metadata tags for the audio track, the metadata
tags relating to one or more attributes of the audio track;
generating the frequency representation for the audio
track;
generating the construct using both the metadata tags and
the frequency representation; and
ordering tracks in the playlist in accordance with a
randomized decreasing-similarity preference function.
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REFERENCES AND REJECTIONS ON APPEAL
Claims 17—21 stand rejected under 35 U.S.C. § 112, second paragraph
as indefinite.
Claims 1, 7, 9, 10, 12, 14—17, and 19-21 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Theimer et al. (US 2011/0118859 Al;
May 19, 2011) (“Theimer”), Asikainen et al. (US 2011/0238698 Al; Sept.
29, 2011) (“Asikainen”), and Wells et al. (US 8,326,584 Bl; Dec. 4, 2012)
(“Wells”).
Claims 2—5, 11, and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Theimer, Asikainen, Wells, and Weare (US 2011/0087665
Al; Apr. 14, 2011).
Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Theimer, Asikainen, Wells, and Slaney et al. (US 2008/0104111 Al; May 1,
2008) (“Slaney”).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Appeal Brief, the Examiner’s Answer, and Appellants’
arguments in the Reply Brief presented in response to the Answer.
Appellants’ arguments are not persuasive of Examiner error. We agree with,
and adopt as our own, the Examiner’s factual findings and conclusions of
law. We highlight and address specific findings and arguments below for
emphasis.
Rejection under 35 U.S.C. § 112, second paragraph
The Examiner rejected claims 17—21 under 35 U.S.C. § 112, second
paragraph as indefinite on the basis that claims 17, and 19-21 lack
antecedent basis for “the seed track.” See Final Act. 7—8. Appellants do not
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present arguments addressing this rejection. See App. Br. 8—18. Under our
procedural rules, an appeal is presumed to be taken from the rejection of all
of the claims under rejection unless cancelled by an entered amendment.
See 37 C.F.R. § 41.31(c). Therefore, we sustain pro forma the rejection of
claims 17—21 under 35 U.S.C. § 112, second paragraph as indefinite because
Appellants do not address this rejection.
Rejections under 35 U.S.C. § 103
Claims 1—4, 7—10, and 14—21
In addressing the rejection of independent claims 1,14, and 15,
Appellants reproduce and characterize selected disclosures of Theimer cited
in the rejection, and argue that in Theimer “there is no suggestion that any
construct is derived from any frequency representation” as recited in the
claims. App. Br. 11—12 (citing Theimer || 12, 14, 23, 47, Abstract).
Appellants further contend that “Theimer does not teach, disclose, or
suggest, ‘designating a seed track in an audio library,’ where ‘each of the
audio tracks, including the seed track’ are ‘represented by a construct,’
where each construct is ‘derived’ from a ‘frequency representation of a
corresponding audio track’ and where ‘each construct’ is ‘represented by a
vector.’” Id. at 12.
Appellants’ arguments are not persuasive because they do not address
sufficiently the Examiner’s findings that Theimer’s disclosure of an audio
dose teaches the claimed “construct” derived from a frequency
representation of a corresponding audio track, and that Theimer’s disclosure
of a media track already consumed in tracks available in a media player
teaches the claimed “seed track.” See Final Act. 7 (citing Theimer || 12, 14,
23, 47, Figs. 3 4). Appellants acknowledge the aforementioned findings by
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the Examiner, but merely reiterate their argument that “Theimer does not
teach, disclose, or suggest, ‘designating a seed track in an audio library,’
where ‘each of the audio tracks, including the seed track’ are ‘represented by
a construct,’ where each construct is ‘derived from a frequency
representation of a corresponding audio track’ and where ‘each construct’ is
‘represented by a vector.’” App. Br. 12.
Appellants further contend that the relied upon teachings of Theimer
“do not disclose the use of a “vector” at all, much less one that represents a
‘construct ... derived from a frequency representation’ of an audio track.”
App. Br. 12. Appellants also argue that “Asikainen does not teach, disclose,
or suggest, among other things, that the fingerprint or any other ‘construct’
is ‘derived from a frequency representation of a corresponding audio track’
and each construct is ‘represented by a vector.’” Id. at 11; see Reply Br. 6.
Appellants’ arguments are not persuasive because the arguments
address the teachings of Theimer alone and the teachings of Asikainen
alone, instead of addressing the teachings of Theimer and Asikainen as
combined by the Examiner. The Examiner relied on Theimer for teaching
“designating a seed track in an audio library, the audio library comprising
audio tracks, each of the audio tracks, including the seed track, being
represented by a construct, each construct being derived from a frequency
representation of a corresponding audio track” in combination with
Asikainen’s teaching of “each construct represented by a vector.” See Final
Act. 7 (citing Theimer H 12, 14, 23, 47, Figs. 3—4), 9-10 (citing Asikainen
1127, 31, 47—51). One cannot show non-obviousness by analyzing a
reference individually, as Appellants have done here, where the rejection is
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based on a combination of references. See In re Merck & Co., Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986).
Similar to the previous arguments, Appellants contend that “Wells
does not disclose ‘designating a seed track in an audio library,’ where ‘each
of the audio tracks, including the seed track’ are ‘represented by a
construct,’ where each construct is ‘derived from a frequency representation
of a corresponding audio track’ and where ‘each construct’ is ‘represented
by a vector.’” App. Br. 12—13. Appellants’ arguments are misplaced
because, as highlighted above, the Examiner relies on the combined
teachings of Theimer and Asikainen to teach the disputed limitations.
We also are not persuaded by Appellants’ unsupported and conclusory
argument that “[o]ne of ordinary skill in the art at the time of the
invention would not combine Theimer and Asikainen to obtain the feature of
‘designating a seed track in an audio library, the audio library comprising
audio tracks, each of the audio tracks, including the seed track, being
represented by a construct, each construct being derived from a frequency
representation of a corresponding audio track and each construct represented
by a vector... ’ as recited in independent claim 1, and as similarly recited in
independent claims 14 and 15.” App. Br. 10. Argument of counsel cannot
take the place of evidence lacking in the record. Meitzner v. Mindick, 549
F.2d 775, 782 (CCPA 1977); see In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974).
In the Reply Brief, Appellants reproduce and characterize selected
disclosures of Theimer cited in the Final Rejection and Answer, and argue
specifically that “Theimer does not disclose ‘designating a seed track in an
audio library,”’ and “Theimer does not disclose ‘designating a seed track in
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an audio library,’ where ‘each of the audio tracks including the seed track’
are ‘represented by a construct, ’ where each construct is ‘represented by a
vector.’” Reply Br. 4—5 (citing Theimer|| 12, 14, 23, 47). Appellants also
reproduce and characterize selected disclosures of Asikainen cited in the
Final Rejection and Answer, and argue that Asikainen “does not disclose
‘designating a seed track in an audio library,’ where ‘each of the audio
tracks including the seed track’ are ‘represented by a construct,’ where each
construct is ‘represented by a vector.” Id. at 5—6 (citing Asikainen || 27, 31,
47). Appellants’ arguments are not responsive to findings, evidence, or
conclusions of law raised for the first time in the Answer. Compare Ans. 3—
12 with, Final Act. 7—12, 14—24. Arguments raised for the first time in the
Reply Brief are deemed waived and will not be considered by the Board
without a showing of good cause. See 37 C.F.R. § 41.41(b)(2) (2012); see
also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI2010) (informative)
(“[T]he reply brief [is not] an opportunity to make arguments that could
have been made in the principal brief on appeal to rebut the Examiner's
rejections, but were not.”). Appellants do not provide good cause for
consideration of Appellants’ belated arguments. See Reply Br. 4—8.
In addressing the rejection of independent claims 16, 17, and 19—21,
Appellants reproduce and characterize selected disclosures of Asikainen
cited in the Examiner’s rejection, and argue that in Asikainen a feature
vector is generated for content, and, therefore, there is no suggestion that any
construct is derived from any frequency representation. See App. Br. 14—15
(citing Asikainen || 47—51). Appellants contend that “Asikainen does not
disclose that ‘each of the audio tracks, including the seed track’ is
‘represented by a construct,’ where each construct is ‘derived from’ a
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frequency representation of a corresponding audio track.’” Id. at 14.
Appellants’ arguments are not persuasive for the same reasons discussed
above, because the arguments address the teachings of Asikainen alone,
instead of addressing the teachings of Theimer and Asikainen as combined
by the Examiner.
In the Reply Brief, Appellants reproduce and characterize selected
disclosures of Theimer cited in the Final Rejection and Answer, and argue
that “Theimer does not disclose ‘designating a seed track in an audio
library,’ where the ‘audio library’ includes ‘audio tracks,’ with ‘each of the
audio tracks including the seed track’ is a ‘represented by a construct, ’ with
‘each construct being derived from a frequency representation of a
corresponding audio track.’” Reply Br. 7 (citing Theimer || 12, 14, 23, 47).
Appellants’ arguments in the Reply Brief are not responsive to findings,
evidence, or conclusions of law raised for the first time in the Answer.
Compare Ans. 3—12 with, Final Act. 24-47. Arguments raised for the first
time in the Reply Brief are deemed waived and will not be considered by the
Board without a showing of good cause. See 37 C.F.R. § 41.41(b)(2)
(2012); Borden. Appellants do not provide good cause for consideration of
Appellants’ belated arguments. See Reply Br. 4—8.
For all of these reasons, we are not persuaded of error in the rejection
of independent claims 1, 14—17, and 19-21 as unpatentable over Theimer,
Asikainen, and Wells. Appellants do not present separate substantive
arguments addressing dependent claims 2—4, 7—10, and 18. See App. Br.
14—18. Accordingly for the same reason as claims 1, 14-17, and 19—21, we
are not persuaded of error in the rejection of dependent claims 2—4, 7—10,
and 18.
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Claims 5 and 11
Appellants present separate arguments addressing dependent claims 5
and 11. See App. Br. 16. Appellants reproduce selected portions of
paragraphs 23 and 25 of Theimer, cited in the Final Rejection, and present
Appellants’ characterization of the selected disclosures. App. Br. 16—17
(citing Theimer || 23—27, 47, 71). Appellants contend that “Theimer does
not teach, disclose, or suggest that each ‘audio track’ is ‘represented’ by a
‘construct’ that is ‘derived from attributes of [a] corresponding audio track,’
and a ‘seed track’ is ‘represented’ by a ‘corresponding ... construct derived
from an attribute associated with the seed track.’” Id. at 16; see id. at 17.
Appellants’ arguments are not persuasive because they do not address
meaningfully the Examiner’s finding that Theimer teaches generating a
playlist based on constraints which can be audio dose within different
frequency ranges and/or genre, and/or author, and selecting a number of
audio tracks from a database to form a playlist based on the constraints. See
Final Act. 49 (citing Theimer || 23—27, 47, 71). We agree with, and adopt
as our own, the Examiner’s additional detailed findings that Theimer
discloses: (1) determining an audio dose for a particular track in a first
frequency range (citing Theimer 112); (2) determining audio dose within a
first and second frequency range of media tracks available on the media
player (citing Theimer 123); (3) selecting media tracks in a collection of
stored media tracks based on constraints such as genre, author name, or
other preferences, which are attributes, and audio dose within different
frequency ranges (citing Theimer 147); and (4) selecting a number of audio
tracks from a database to form a playlist based on similarity by taking audio
dose and other criteria such as genre or author into consideration (citing
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Theimer 171). See Ans. 11. We also agree with, and adopt as our own, the
Examiner’s additional explanation that “[t]he constraints for selecting each
track can be based on an audio dose within first or second frequency range
and other audio attributes of the track, which is representing audio tracks by
a first constraint derived from a first frequency range and other attributes of
the tracks and/or representing audio tracks by a second constraint derived
from second frequency range and other attributes of the tracks.” See id.
Appellants also argue that “Weare does not disclose that each ‘audio
track’ is ‘represented’ by a ‘construct’ that is ‘derived from attributes of [a]
corresponding audio track,’ and a ‘seed track’ is ‘represented’ by a
‘corresponding ... construct derived from an attribute associated with the
seed track.’” App. Br. 17. Appellants’ arguments are misplaced and not
persuasive because the Examiner relies on Theimer for teaching the disputed
limitations. See Final Act. 49—50.
For these reasons, in addition to the reasons addressing claim 1 above,
Appellants do not persuade us of error in the rejection of dependent claims 5
and 11 as unpatentable over Theimer, Asikainen, Wells, and Weare.
DECISION
We AFFIRM the rejections of claims 1—5, 7—12, and 14—21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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