Ex Parte Kisilev et al

Patent Trials and Appeals Board

Oct 17, 2014

11888395 - (D) (P.T.A.B. Oct. 17, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte PAVEL KISILEV and SUK HWAN LIM

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Appeal 2012-007517
Application 11/888,395
Technology Center 2600
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Before MICHAEL J. STRAUSS, JOHN A. EVANS, and
DANIEL J. GALLIGAN, Administrative Patent Judges.

GALLIGAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) of the
Examiner’s rejection of claims 1–20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.2

1 The Appeal Brief identifies Hewlett-Packard Development Company, LP,
Hewlett-Packard Company, and HPQ Holdings, LLC as the real parties in
interest. App. Br. 1.
2 Our decision refers to Appellants’ Appeal Brief filed on October 12, 2011
(“App. Br.”); Appellants’ Reply Brief filed April 10, 2012; Examiner’s
Answer mailed February 17, 2012 (“Ans.”); and original Specification filed
July 31, 2007 (“Spec.”).
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Application 11/888,395

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STATEMENT OF THE CASE
Claims on Appeal
Appellants’ application relates to signal processing. Spec. 1. Claim 1
is reproduced below:
1. A signal-processing system comprising:
a processing component; and
a signal-processing routine executed by the processing
component that, at each of one or more currently considered
scales of resolution greater than a lowest resolution scale,
processes an input signal to produce an output signal by
downscaling either the input signal or a signal
derived from the input signal to produce a signal that is input to
a next-lower resolution scale,
upscaling a signal received from a lower-resolution
scale to produce a first intermediate signal from which the
output signal to a next-higher-resolution scale is produced, and
robustly filtering at least one of the input signal or
the intermediate signal, wherein the values of all pixels
neighboring and including each pixel are used to generate a
robustly-filtered pixel value corresponding to each pixel in the
signal being robustly filtered.

Examiner’s Rejections
(1) Claims 1–10 stand rejected under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. Ans. 4–6.
(2) Claims 1–20 stand rejected provisionally for obviousness-type
double patenting over U.S. Patent Application No. 12/079,227,
which is now U.S. Patent 8,417,050. Ans. 6–8.
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Application 11/888,395

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(3) Claims 1–20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gendel3 and Vuylsteke.4 Ans. 8–18.

ANALYSIS
Rejection under 35 U.S.C. § 101
Claim 1 is directed to a “signal-processing system comprising,” inter
alia, “a processing component; and a signal-processing routine executed by
the processing component . . . .” The Examiner found that claim 1 may be
embodied as pure software and lacks definite structure and, therefore, is not
patent eligible subject matter. Ans. 5–6. We do not agree that claim 1 is
directed to pure software as found by the Examiner.5 Therefore, we do not
sustain the rejection of claims 1–10 under 35 U.S.C. § 101.6

Rejection under 35 U.S.C. § 103(a)
Appellants argue that the Examiner erred in interpreting “robustly
filtering” and “robustly-filtered.” App. Br. 6–12. Appellants argue that the
Specification defines robust filtering as a two-part process, “one directed to

3 U.S. Patent 6,141,459, issued Oct. 31, 2000.
4 Vuylsteke et al., U.S. Patent 5,467,404, issued Nov. 14, 1995.
5 Should there be further prosecution of this application (including any
review for allowance), the Examiner may wish to determine if claim 1 is a
single means claim and, therefore, not compliant with 35 U.S.C. § 112 ¶ 1.
See In re Hyatt, 708 F.2d 712, 714 (Fed. Cir. 1983).
6 Should there be further prosecution of this application (including any
review for allowance), the Examiner may wish to review claims 1–20 for
compliance under 35 U.S.C. § 101 in light of the recently issued preliminary
examination instructions on patent eligible subject matter. See “Preliminary
Examination Instructions in view of the Supreme Court Decision in Alice
Corporation Pty. Ltd. v. CLS Bank International, et al.,” Memorandum to
the Examining Corps, June 25, 2014.
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Application 11/888,395

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a filtering-type operation and one directed to ameliorating or removing
artifacts and noise amplification produced by the filtering-type operation.”
App. Br. 11. Appellants quote several pages of a section in the Specification
entitled “Robust Filtering” to support their argument that this is a specially-
defined term requiring a two-part process. App. Br. 7–10 (quoting Spec. 11,
l. 24 – 15, l. 15). Appellants further argue the second step is identified in the
Specification as the function ψ, which “is used to remove any new local
maxima and minima introduced by robust filtering.” App. Br. 10.
Claims 1 and 11 recite: “robustly filtering at least one of the input
signal or the intermediate signal, wherein the values of all pixels
neighboring and including each pixel are used to generate a robustly-filtered
pixel value corresponding to each pixel in the signal being robustly filtered.”
The claim language itself does not require robust filtering to be a two-part
process. Although we apply the broadest reasonable interpretation in light
of the Specification, we do not import limitations from the Specification into
the claims. Phillips v. AWH Corp., 415 F.3d 1303, 1316, 1323 (Fed. Cir.
2005) (en banc). Appellants argue that “robust filtering can be expressed
as” the following formula:
, , ,
App. Br. 10. However, this formula is not recited in the claims.
Furthermore, the Specification states that this formula refers to the operation
of Figure 10, which is just one embodiment. Spec. 15, ll. 1–4; Spec. 2,
ll. 24–25 (“Figure 10 illustrates one embodiment of a robust-filtering
operation that represents an embodiment of the present invention.”).
Following this, the Specification provides an alternate formulation for the
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filter operation. Spec. 15, ll. 4–7. The Specification then states: “Many
different, alternative robust-filter operations are possible.” Spec. 15, l. 7.
The Specification further states: “Many different non-linear and linear
functions may be employed in addition to, or instead of one or both of ψ and
φ in alternative embodiments.” Spec. 15, ll. 13–15. Thus, rather than
defining the term “robustly filtering,” as Appellants allege, the “Robust
Filtering” section of the Specification broadly describes various
embodiments.
Furthermore, the “Robust Filtering” section of the Specification
undermines Appellants’ argument. As the Examiner pointed out, the fact
that function ψ, which Appellants argue is the second step of the robust
filtering process, “is used to remove any new local maxima and minima
introduced by robust filtering” (Spec. 14, ll. 10–12) indicates that this step is
not part of the robust filtering process, but rather follows robust filtering.
Ans. 22–23.
Based on the foregoing, we are not persuaded by Appellants’
arguments that “robustly filtering” is necessarily a two-part process or
should be limited to a particular formula not recited in the claims.
Appellants argue that the combination of Gendel and Vuylsteke does
not teach or suggest the two-step robust filtering process and, thus, does not
render obvious the subject matter of the claims. App. Br. 11–12; Reply Br.
4–7. Because we are not persuaded by Appellants’ arguments concerning
the interpretation of “robustly filtering,” we are likewise not persuaded that
the Examiner erred in concluding that the combination of Gendel and
Vuylsteke renders obvious the subject matter of the claims. As such, we
sustain the rejection of claims 1–20 under 35 U.S.C. § 103(a).
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Application 11/888,395

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Obviousness-Type Double Patenting Rejection
Appellants do not address the provisional obviousness-type double
patenting rejection over U.S. Patent Application No. 12/079,227. See App.
Br. 3–4 (“Appellants defer addressing the provisional double-patenting
rejection until claims in one of the two relevant patent applications are
issued.”). U.S. Patent Application No. 12/079,227 issued as U.S. Patent
8,417,050 on April 9, 2013. Because the application on which this rejection
is based has issued as a patent, the rejection is no longer provisional. Thus,
we have jurisdiction. Because Appellants do not address the obviousness-
type double patenting rejection, we summarily sustain this rejection.

DECISION
We affirm the Examiner’s rejection of claims 1–20.
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)(iv).

AFFIRMED

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