14305787 (P.T.A.B. Jun. 27, 2018)

Ex Parte Misra et al

Patent Trial and Appeal BoardJun 27, 2018

14305787 (P.T.A.B. Jun. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/305,787 06/16/2014 143308 7590 06/29/2018 FISH & RICHARDSON P.C. (Dolby) PO BOX 1022 MINNEAPOLIS, MN 55440-1022 FIRST NAMED INVENTOR KiranMisra 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. 40305-0016003 4837 EXAMINER LIU,LI ART UNIT PAPER NUMBER 2666 NOTIFICATION DATE DELIVERY MODE 06/29/2018 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): P ATDOCTC@fr.com patents@dolby.com mguo@dolby.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KIRAN MISRA, SACHIN G. DESHPANDE, and CHRISTOPHER A. SEGALL 1 Appeal2018-002089 Application 14/305,787 Technology Center 2600 Before JASON V. MORGAN, ADAM J. PYONIN, and SHARON PENICK, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Introduction This is an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claim 6. This appeal is related to Appeal 2017-011861 (App. No. 15/040,718). App. Br. 2. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellant is the applicant, Dolby International AB, which the Appeal Brief identifies as the real party in interest. App. Br. 1. Appeal2018-002089 Application 14/305,787 Invention Appellant discloses a method for tracking a reference picture on an electronic device. Abstract. Representative Claim 6. An apparatus comprising: a non-transitory computer-readable medium storing a bitstream comprising data representative of a current picture, wherein the data representative of the current picture comprises a wrap indicator, wherein the wrap indicator indicates a transition between two sets of decoded pictures; wherein the wrap indicator is used to determine a picture order count (POC) cycle parameter for one or more long term reference pictures in a decoded picture buffer; wherein the POC cycle parameter indicates a decoded picture set which includes a first long term reference picture; wherein the first long term reference picture is determined based on a designated picture; and wherein the current picture has been encoded based on the first long term reference picture; and a processor configured to signal the bitstream comprising the data representative of the image to a decoder. Rejections The Examiner rejects claim 6 on grounds of non-statutory obviousness-type double-patenting as being unpatentable over claims 1 and 2 of Misra et al. (US 8,768,079 B2; issued July 1, 2014) ("Misra '079"). Final Act. 4. 2 Appeal2018-002089 Application 14/305,787 The Examiner rejects claim 6 under 35 U.S.C. Â§ 102 as being anticipated by Hannuksela (US 7,403,660 B2; issued July 22, 2008). Final Act. 5. UNDISPUTED REJECTION Appellant does not challenge the Examiner's non-statutory obviousness-type double-patenting rejection. As such, we summarily affirm this rejection. FINDINGS AND CONTENTIONS In rejecting claim 6 as being anticipated, the Examiner concludes that the information stored on the recited computer-readable medium represents non-functional descriptive material that fails to "patentably distinguish the medium from a prior art medium capable of embodying the same content." Final Act. 5. Appellant contends the Examiner erred because the claimed features-specifically the wrap indicator data of the stored bitstream- perform "some function with respect to the decoder" to which the bitstream is signaled. App. Br. 8. In particular, Appellant argues: because the wrap indicator is used to determine the [picture order count] cycle parameter which, in tum, indicates the long term reference picture based on which the current picture has been encoded, the claimed bitstream has a particular structure that allows the decoder to determine what picture was used to encode the current picture. Id. at 9. Appellant submits that because "the claimed wrap indicator does perform some function with respect to the decoder ... the features of claim 6 should be given patentable weight." Id. at 8; see also Reply Br. 3. 3 Appeal2018-002089 Application 14/305,787 ANALYSIS Claimed descriptive material is not entitled patentable weight absent a new and unobvious functional relationship between the descriptive material and the underlying device or substrate. See Ex parte Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008) (precedential); see also In re Ngai, 367 F.3d 1336, 1338 (Fed. Cir. 2004). Furthermore, an "[]intended use or purpose usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates." Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Appellant argues the claimed wrap indicator has a functional relationship with an "intended computer system." App. Br. 7. However, claim 6 does not positively recite the computer system as part of the claimed apparatus. Nor does the claim positively recite using the wrap indicator. Instead, claim 6 recites details regarding what the wrap indicator means (i.e., how the wrap indicator is intended to be used) and how the claimed current picture was encoded. Claim 6 does not recite the claimed apparatus using the wrap indicator or performing the steps of encoding a current picture. Instead, the apparatus merely has a non-transitory computer-readable medium storing the recited data and "a processor configured to signal the bitstream comprising the data representative of the image to a decoder." The means by which the current picture was encoded are not recited as part of the claimed apparatus. Moreover, it is the decoder that would use the wrap indicator as intended. See Spec. ,r 47 ("[D]ecoder 102 may include a reference picture tracking module"); id. ,r 51 ("[R ]eference picture tracking module 116 may use .... a 4 Appeal2018-002089 Application 14/305,787 cycle parameter [ decremented] based on wrap indicators"). However, the decoder is not recited as being part of the claimed apparatus. Thus, the claimed apparatus does not use the wrap indicator in the intended manner, nor does the claimed apparatus perform the encoding steps detailed so as to produce the claimed wrap indicator. Appellant argues, "like the data objects in Lowry, the wrap indicator of the bitstream provides increased efficiency in computer operation, i.e., in decoding encoded pictures, and should be given patentable weight." App. Br. 9; see also Reply Br. 3. However, the claimed invention of Lowry realized the increased computer efficiency by imparting "a physical organization on the information stored in [the claimed] memory." In re Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994). That is, the memory itself was improved. Id. at 1584 ("[D]ata stored in accordance with the claimed data structures [was] more easily accessed, stored, and erased"). The improved functionality of the claimed memory in Lowry is what established the functional relationship that gave the data structure patentable weight. Here, neither the claimed non-transitory computer-readable medium nor the claimed processor have improved functionality as a result of the claimed wrap indicator or as a result of how the current picture was formed. Rather, it is a decoder signaled by the processor-a decoder which is not claimed as part of the apparatus-that has potentially improved functionality. For these reasons, we agree with the Examiner that the claimed wrap indicator, lacking a functional relationship with the claimed apparatus, is not entitled patentable weight. Accordingly, we sustain the Examiner's 35 U.S.C. Â§ 102 rejection of claim 6. 5 Appeal2018-002089 Application 14/305,787 DECISION We affirm the Examiner's decision rejecting claim 6. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 6