Ex Parte Liang et al

Patent Trial and Appeal Board

Jun 29, 2018

12774491 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/774,491 05/05/2010
15093 7590 07/03/2018
Kilpatrick Townsend & Stockton/Qualcomm
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
FIRST NAMED INVENTOR
Liang Liang
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.
093521 (1059677) 8113
EXAMINER
BECK,LERON
ART UNIT PAPER NUMBER
2487
NOTIFICATION DATE DELIVERY MODE
07/03/2018 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):
ipefiling@kilpatricktownsend.com
ocpat_uspto@qualcomm.com
qcomins t@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LIANG LIANG and SZEPO R. HUNG
Appeal2018-001678
Application 12/774,491
Technology Center 2400
Before CARLA M. KRIVAK, CARL W. WHITEHEAD JR., and
JON M. JURGOV AN, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants are appealing the final rejection of claims 1--45 and 47
under 35 U.S.C. § 134(a). Appeal Brief 1. We have jurisdiction under
35 U.S.C. § 6(b) (2012).
We reverse.
Appeal2018-001678
Application 12/774,491
Introduction
"Video encoding techniques may perform video compression via
spatial and temporal prediction to reduce or remove redundancy inherent in
video sequences. A video capture device, e.g., video camera, may capture
video and send it to video encoder for encoding. The video encoder
processes the captured video, encodes the processed video, and transmits the
encoded video data for storage or transmission. In either case, the encoded
video data is encoded to reproduce the video for display. The available
bandwidth for storing or transmitting the video is often limited, and is
affected by factors such as the video encoding data rate."
Appeal Brief 3.
Illustrative Claim
1. A method comprising:
estimating, in a video capture module, a blurriness level
of a frame of video data captured during a refocusing process,
wherein said estimating is based on at least one refocusing
statistic associated with the frame; and
encoding, in a video encoder, the frame based at least in
part on the estimated blurriness level of the frame.
Rejections on Appeal1
Claims 1, 12, 23 and 34 are provisionally rejected on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1, 13, 25 and 36 of copending Application 13/114,844, Park (US
1 The Examiner invokes 35 USC§ 112, 6thparagraph in regard to claims 35-
44. Final Action 7; Advisory Action 7.
2
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Application 12/774,491
Patent Application Publication 2009/0074396 Al; published March 19,
2009; "Park '396") and Gutman (US Patent Application Publication
2010/0278231 Al; published November 4, 2010). Final Action 3-7;
Advisory Action 3-7.
Claim 1 is rejected under 35 U.S.C. § 101 because the claimed
invention is directed to a judicial exception (i.e., a law of nature, a natural
phenomenon, or an abstract idea) without significantly more. Claim 1 is
directed to an abstract idea, specifically that estimating is based on a
refocusing statistic. Answer 26-27.
Claims 1, 3, 12, 14, 23, 25, 34, 36 and 45 stand rejected under pre-
AIA 35 U.S.C. § I03(a) as being unpatentable over Park '396" and Gutman.
Answer 2--4.
Claims 2, 13, 24, 35 and 47 2 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Park, Gutman, and Hsu (US Patent
7,528,883 B2, issued May 5, 2009). Answer 4---6.
Claims 4, 15, 26 and 37 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Park, Gutman, Goldstein (US Patent
Application Publication 2004/0179593 Al, published September 16, 2004),
and Kim (US Patent Application Publication 2009/0244319 Al, published
October 1, 2009; "Kim '319"). Answer 6-8.
Claims 5, 16, 27 and 38 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Park '396, Gutman, Morino (US Patent
6,822,758 Bl, issued November 23, 2004), and Kim '319. Answer 8-9.
Claims 6, 17, 28 and 39 stand rejected under pre-AIA 35 U.S.C.
2 "An Amendment was filed February 21, 2017 to amend claims 1 and 47
and to cancel claim 46." Appeal Brief 1.
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Application 12/774,491
§ I03(a) as being unpatentable over Park '396, Gutman, Morino, and Park
(US Patent Application Publication 2010/0086035 Al, published 2010;
"Park '035"). Answer 9--11.
Claims 7, 18, 29 and 40 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Park '396, Gutman, and Au (US Patent
7,720,148 B2, issued May 18, 2010). Answer 11-12.
Claims 8, 19, 30 and 41 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Park '396, Gutman, Au, and Kim (US
Patent Application Publication 2009/0051783 Al, published 26, 2009; "Kim
'783"). Answer 12-14.
Claims 9, 20, 31 and 42 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Park '396, Gutman, and Kim '783.
Answer 14--15.
Claims 10, 21, 32 and 43 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Park '396, Gutman, Kim '783,
Yamasaki (US Patent 7,084,909 B2, issued August 1, 2006), and Kim '319.
Answer 15-17.
Claims 11, 22, 33 and 44 stand rejected under pre-AIA 35 U.S.C.
§ 103 (a) as being unpatentable over Park '3 96, Gutman, and Yoda (US
Patent Application Publication 2011/0150366 Al, published June 23, 2011).
Answer 17-18.
ANALYSIS
Rejection under 35 USC§ 101
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed July 14, 2017), the Reply Brief (filed
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Application 12/774,491
December 5, 2017), the Answer (mailed October 13, 2017) and the Final
Action (mailed December 21, 2016) for the respective details.
Appellants argue the 35 U.S.C. § 101 rejection of claim 1 is invalid
because the "rejection presents nothing more than a bare conclusion and fails
to articulate any rationale based on any claim language." Appeal Brief 28.
Appellants further argue, "the Advisory Action does not even identify the
allegedly abstract idea that is allegedly recited, making it impossible to
provide any substantive response." Appeal Brief 28.
The Supreme Court has set forth an analytical "framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts." Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 71-73 (2012)). In the first step of the analysis, we determine
whether the claims at issue are "directed to" a judicial exception, such as an
abstract idea. Alice, 134 S. Ct. at 2355. If not, the inquiry ends. Thales
Visionix Inc. v. US., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfzsh, LLC v.
Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims are
determined to be directed to an abstract idea, then we consider under step
two whether the claims contain an "inventive concept" sufficient to
"transform the nature of the claim into a patent-eligible application." Alice,
134 S. Ct. at 2355 (quotations and citation omitted).
Noting that the two stages involve "overlapping scrutiny of the
content of the claims," the Federal Circuit has described "the first-stage
inquiry" as "looking at the 'focus' of the claims, their 'character as a
whole,"' and "the second-stage inquiry (where reached)" as "looking more
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Application 12/774,491
precisely at what the claim elements add-specifically, whether, in the
Supreme Court's terms, they identify an 'inventive concept' in the
application of the ineligible matter to which (by assumption at stage two) the
claim is directed." Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016). In considering whether a claim is directed to an
abstract idea, we acknowledge, as did the Court in Mayo, "all inventions at
some level embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We, therefore, look
to: (1) whether the claims focus on a specific means or method that
improves the relevant technology, or (2) are directed to a result or effect that
itself is the abstract idea, in which the claims merely invoke generic
processes and machinery. See Enfzsh, 822 F.3d at 1336.
Step One: Whether the Claims Are Directed to a Patent-Ineligible
Concept (Abstract Idea)
The Examiner finds:
Claim 1 rejected under 35 U.S.C. [§] 101 because the claimed
invention is directed to non-statutory subject matter. Based upon
consideration of all of the relevant factors with respect to the
claim as a whole, claim 1 is determined to be directed to an
abstract idea, which is not considered statutory as defined in
Alice Corp v. CLS Bank. The present claims are not directed
toward significantly more than an abstract idea itself. Further,
there are no limitations directed toward improvements to another
technology or technical field; improvements to the functioning
of the computer itself; or meaningful limitations beyond
generally linking the use of an abstract idea to a particular
technological environment. The claims should be amended to
include limitations toward the technical field.
Final Action 8; Advisory Action 7-8.
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We do not agree with the Examiner's findings and agree with
Appellants that the rejection fails to identify the abstract idea of claim 1.
Accordingly, we reverse the 35 U.S.C. § 101 rejection of claim 1. Because
we do not find that the claim is directed to an abstract idea we do not need to
analyze or consider the claim under step two.
Rejection under 35 USC§ 103 and double -patenting
It is noted that the Examiner added the Hsu reference to the
obviousness rejections of claims 1, 3-10, 11, 12, 14--23, 25-34, and 36-45.
Advisory Action 8-23. The Hsu reference was later removed from the
obviousness rejections. Answer 2--4, 6-18.
Appellants contend the Gutman reference does not qualify as prior art
to the claimed invention. Appeal Brief 8. Appellants argue:
The Gutman publication was filed on May 4, 2010,
claiming priority to U.S. Prov'l Pat. Appl. No. 61/175,304 ("the
Gutman provisional").[ 3] Appellants' priority date of November
6, 2009 is prior to the Gutman publication's actual filing date of
May 4, 2010. For at least this reason, the cited teachings of the
Gutman publication are prior art only to the extent that the
information relied upon is actually disclosed in the Gutman
provisional.
Appeal Brief 9.
Appellants argue the obviousness rejections based upon Gutman are
invalid because the information relied upon by the Examiner, for example
paragraphs 92, 93, and 99 are not found in the Gutman provisional. Appeal
Brief 10. Appellants contend:
[t]he Gutman provisional thus discloses that blurriness may be
used as a "quality parameter" for "selecting post-processing
filters to be used on a video" (p. 4, 11. 11-16; emphasis added).
3 Gutman provisional application was filed on May 4, 2009.
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This discussion includes no mention of encoding. Such
disclosure of selecting post-processing filters fails to teach the
"information relied upon" by the Office: i.e., "blocks of a frame
are encoded based on a blurring filter being applied to the block
of the frame."
Appeal Brief 11.
The Examiner disagrees with Appellants' contention and states:
[t]he [E]xaminer would like to note that this application has
previously been through the board of appeals. The [E]xaminer
has used the same prior art reference as with the board of appeals.
The [E]xaminer would further note that the board has affirmed
the results deemed by the [E]xaminer using the prior art of
Gutman on 3/25/2016.
Answer 18.
Gutman's prior art status was not an issue before the Board in the
March 25, 2016 Decision and, therefore, the previous decision is not a
validation of Gutman' s priority status. The Examiner finds, "[ o ]n page 4 of
Gutman's provisional application, he discloses blurring measurement which
is sufficient evidence of prior art at the time of the invention with respect to
the blurring information claimed by [A]pplicant." Answer 18. The
Examiner offers no further explanation. Reviewing the Gutman provisional
application, we only find that Gutman discloses on page 4, "[i]n some
embodiments of the invention, the objective quality measure is based on a
weighed sum of grades for a plurality of different quality parameters, such as
blockiness, blurriness, noise, haloing and color bias."
It is not apparent that Gutman's provisional supports the Examiner's
finding that Gutman disclosed "encoding, in a video encoder (Fig 1,
element 102), the frame based at least in part on the estimated blurriness
level of the frame (Fig 3, element 312-314; [0092], lines 9-13; [0093], lines
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1-2; [0099], lines 1-2)." Answer 3; see the Gutman provisional 4. We
understand that Gutman' s provisional incorporates by reference,
publications that mention encoding, however, encoding in itself is
notoriously well known in the technology. It is not evident that Gutman's
provisional discloses the association between the video encoding and the
blurriness level estimation purported by the Examiner. We are constrained
by the record before us and thus find Appellants' arguments that Gutman
does not qualify as prior art persuasive because of the lack of evidence to the
contrary. Accordingly, we reverse the obviousness rejections of independent
claims 1, 12, 23 and 34, as well as, the provisional double patenting rejection
of claims 1, 12, 23 and 34.
DECISION
The Examiner's provisionally nonstatutory obviousness-type double
patenting rejection of claims 1, 12, 23, and 34 is reversed.
The Examiner's 35 U.S.C. § 101 rejection of claim 1 is reversed.
The Examiner's obviousness rejections of claims 1--45 and 47 are
reversed.
REVERSED
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