Ex Parte Samuelsson et al

Patent Trial and Appeal Board

Feb 23, 2017

13508442 (P.T.A.B. Feb. 23, 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.
13/508,442 04/25/2013 Jonatan Samuelsson 9900-34860US2 6971
20792 7590
MYERS BIGEL, P.A.
PO BOX 37428
RALEIGH, NC 27627
EXAMINER
RAHMAN, MOHAMMAD J
ART UNIT PAPER NUMBER
2487
MAIL DATE DELIVERY MODE
02/23/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATAN SAMUELS SON and
RICKARD SJOBERG
Appeal 2017-002050
Application 13/508,4421
Technology Center 2400
Before JOSEPH L. DIXON, LARRY J. HUME, and JOHN D. HAMANN,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 2, 4, 6—9, 11—17, 19-22, 24, 26—29, 31—40, 42^48,
and 50—64. Appellants canceled claims 3, 5, 10, 18, 23, 25, 30, 41, and 49.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Telefonaktiebolaget
LM Ericsson (publ). App. Br. 1.
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Application 13/508,442
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed and claimed inventions "generally relate to
reference picture management in connection with video encoding and
decoding, and in particular to reference picture signaling and buffer
management." Spec. 1,11. 4^-5 ("TECHNICAL FIELD").
Exemplary Claims
Claims 1, 59, and 61, reproduced below, are representative of the
subject matter on appeal (emphasis added):
1. A method of decoding an encoded representation
of a picture in a video stream of multiple pictures, said method
comprising:
retrieving, using a decoder configured to decode said
encoded representation of said picture, buffer description
information defining at least one reference picture from said
encoded representation of said picture;
determining, based on said buffer description
information, at least one picture identifier identifying a
respective reference picture among said at least one reference
picture as decoding reference for said picture,
wherein determining said at least one picture identifier
comprises determining, based on said buffer description
information, at least one picture order count (POC) value
identifying said respective reference picture as decoding
reference for said picture; and
2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
June 20, 2016); Reply Brief ("Reply Br.," filed Nov. 23, 2016); Examiner's
Answer ("Ans.," mailed Sept. 28, 2016); Final Office Action ("Final Act.,"
mailed Jan. 28, 2016); and the original Specification ("Spec.," filed
May 7, 2012).
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updating a decoded picture buffer based on said at least
one picture identifier, wherein updating said decoded picture
buffer comprises marking all reference pictures present in said
decoded picture buffer not being associated with any of said at
least one picture identifier determined based on said buffer
description information as unused for reference.
59. The method of claim 1, wherein said determining
is performed without use of a Memory Management Control
Operations (MMCO) command.
61. The method of claim 1, wherein marking
comprises marking as unused for reference all reference
pictures that are present in said decoded picture buffer but are
not identified in said buffer description information, before
decoding said picture.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Wang et al. ("Wang") US 2008/0260034 A1 Oct. 23, 2008
Lu et al. ("Lu") US 2010/0208828 Al Aug. 19, 2010
Koyabu et al. ("Koyabu") US 2010/0238822 Al Sept. 23, 2010
Peter Borgwardt, Multi-picture Buffer Semantics for Interlaced
Coding, JVT-C049, 1—18 (May 10, 2002) (hereinafter
"Borgwardt").
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Rejections on AppeaP
Rl. Claims 1, 2, 4, 6-9, 16, 17, 19, 21, 22, 24, 28, 29, 36, 39, 40,
42, 43, 47, 48, 50, 51, and 56 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Borgwardt and Lu. Final Act. 5.
R2. Claims 11-15, 20, 26, 27, 31-35, 38, 4A46, 52-55, and 57-64
stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Borgwardt, Lu, and Wang. Final Act. 15.
R3. Claims 1,21, 39, 40, 48, and 56 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Koyabu, Borgwardt,
and Lu. Final Act. 22.
CLAIM GROUPING
Based on Appellants' arguments (App. Br. 7—12), we decide the
appeal of obviousness Rejection Rl of claims 1, 2, 4, 6—9, 16, 17, 19, 21, 22,
24, 28, 29, 36, 39, 40, 42, 43, 47, 48, 50, 51, and 56 on the basis of
representative claim 1; we decide the appeal of obviousness Rejection R2 of
claims 61—64 on the basis of representative claim 61; and we decide the
appeal of obviousness Rejection R3 of claims 1, 21, 39, 40, 48, and 56 on
the basis of representative claim 1. We decide the appeal of obviousness
Rejection R2 of separately argued claim 59, infra.
Remaining claims 11—15, 20, 26, 27, 31—35, 38, 44^46, 52—55, 57, 58,
and 60 in Rejection R2, not argued separately, stand or fall with the
respective independent claim from which they depend.3 4
3 We note the § 101 rejection of claims 1 and 40 was withdrawn by the
Examiner. See "Notice of Panel Decision from Pre-Appeal Brief Review,"
mailed May 19, 2016.
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ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments that
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claims 1, 2, 4,
6—9, 11—17, 19-22, 24, 26—29, 31—40, 42-48, and 50-64, and we incorporate
herein and adopt as our own: (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken, and (2) the reasons
and rebuttals set forth in the Examiner's Answer in response to Appellants'
arguments. We incorporate such findings, reasons, and rebuttals herein by
reference unless otherwise noted. However, we highlight and address
specific findings and arguments regarding claims 1, 59, and 61 for emphasis
as follows.
1. $103 Rejection R1 of Claims E 2, 4, 6—9, 16, 17, 19, 21, 22, 24, 28,
29. 36. 39. 40. 42. 43. 47. 48. 50. 51. and 56
Issue 1
Appellants argue (App. Br. 7—9; Reply Br. 4—6) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Borgwardt and Lu is in error. These contentions present us
with the following issue:
4 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv)
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Did the Examiner err in finding the cited prior art combination teaches
or suggests "[a] method of decoding an encoded representation of a picture
in a video stream of multiple pictures" wherein, inter alia, "determining said
at least one picture identifier comprises determining, based on said buffer
description information, at least one picture order count (POC) value
identifying said respective reference picture as decoding reference for said
picture," as recited in claim 1?
Analysis
Appellants contend the Examiner erred in rejecting claim 1 because
"the Final Action appears to rely on Borgwardt and Lu as allegedly teaching
the existence of: (a) an ordered set of reference pictures; (b) Memory
Management Control Operations (MMCO); and (c) a buffer status." App.
Br. 8 (citing Final Act. 5). The Examiner allegedly erred because:
[T]he mere existence of the above items (a)-(c) does not
disclose or suggest determining (i) a POC value identifying a
reference picture based on (ii) buffer description information
defining the reference picture, as recited in independent Claim
1. In other words, the mere existence of the above items (a)-(c)
does not disclose or suggest the relationship between the
(i) POC value and (ii) buffer description information recited in
independent Claim 1. The rejection of independent Claim 1
over the alleged combination of Borgwardt and Lu is therefore
clearly erroneous for at least this reason.
App. Br. 8.
Appellants further argue the Examiner erred because "the MMCO
commands discussed in Borgwardt are an example of the prior art over
which the present application may provide a significant advantage."
App. Br. 9.
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Appellants additionally argue:
[T]he MMCO commands discussed in Borgwardt not only
fail to disclose or suggest "determining, based on said buffer
description information, at least one picture order count (POC)
value identifying said respective reference picture as decoding
reference for said picture," as recited in independent Claim 1,
but further, are an example of the prior art over which the
present application may provide a significant advantage.
(See, e.g., Present Application Publication, paragraphs [0070]
and [0153].) Appellant thus respectfully submits that
independent Claim 1 is non-obvious for at least the reason that
the MMCO commands discussed in Borgwardt are an example
of the prior art over which the present application may provide
a significant advantage. The rejection of independent Claim 1
over the alleged combination of Borgwardt and Lu is therefore
clearly erroneous for at least this additional reason.
Id.
We first note the test for obviousness is what the combined teachings
of the prior art would have suggested to the hypothetical person of ordinary
skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellants
have not challenged the combinability of the teachings of Borgwardt and Lu.
In response to Appellants' allegations, the Examiner finds Borgwardt's
decoder stores a reference frame for inter-picture decoding in a multi-picture
buffer and replicates the buffer of the encoder. Ans. 3 (citing Borgwardt
§ 9.1.1,11,11. 1—3). "[S]o, the frames in the multi-picture buffer are stored
with a reference number; if prediction from preciously-decoded picture is
required, it needs to be signaled ... so[] a reference index parameter is
transmitted for decoding the current picture using the reference frame from
the multi-picture buffer. Id. (citing Borgwardt, § 8.4.5,11,11. 1—3). The
Examiner cites Appellants' published application (Ans. 4—5 (citing published
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application || 56—58)), "[ejxamples of such picture identifiers include
Picture Order Count (POC), frame number (frame_num) or POC and an
additional identifier (additional_picture_id).... In an embodiment, the
picture identifier itself, such as POC or POC plus an additional identifier,
can be used to unambiguously identify the reference picture." Spec. 10,11.
15—23. We agree with the Examiner's findings regarding the teachings and
suggestions of Borgwardt.
The Examiner makes further findings regarding Lu's teaching that a
slice can be decoded by referring to a reference list and that reference
pictures are stored in the decoded picture buffer (Ans. 4 (citing Lu 125)),
and concludes it would be obvious
to decode an information that refers to the multi-picture buffer
and refers to the reference picture index for decoding the
current picture. Borgwardt in view of Lu discloses the concept
of determining, based on said buffer description information, at
least one picture order count (POC) value identifying said
respective reference picture as decoding reference for said
picture.
Ans. 4. We agree with the Examiner's findings and legal conclusions.
We agree with the Examiner because Appellants' arguments against
the references separately are not persuasive of Examiner error. Additionally,
in the Reply Brief, Appellants argue, "Borgwardt provides MMCO
commands that are an example of the prior art over which the present
application may provide a significant advantage." Reply Br. 4.
We find Appellants' assertions amount to unsupported attorney
argument, and, therefore, we give them little weight, if any. See In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Huang, 100
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Application 13/508,442
F.3d 135, 139-40 (Fed. Cir. 1996). Therefore, we do not find error in the
Examiner's reliance on the combined teachings and suggestions of
Borgwardt and Lu.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1, and grouped
claims 2, 4, 6-9, 16, 17, 19, 21, 22, 24, 28, 29, 36, 39, 40, 42, 43, 47, 48, 50,
51, and 56 which fall therewith. See Claim Grouping, supra.
2. $ 103(a) Rejection R2 of Claims 61—64
Issue 2
Appellants argue (App. Br. 11—12; Reply Br. 7) the Examiner's
rejection of claim 61 under 35 U.S.C. § 103(a) as being obvious over the
combination of Borgwardt, Lu, and Wang is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 1, "wherein marking comprises marking as
unused for reference all reference pictures that are present in said decoded
picture buffer but are not identified in said buffer description information,
before decoding said picture," as recited in claim 61?
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Analysis
With respect to claim 61, Appellants contend the Examiner erred
because the section of Borgwardt relied upon by the Examiner (App. Br. 11
(citing Final Act. 21—22 and Borgwardt § 8.2.11)) states
"the Re-Mapping of Picture Numbers" is what "takes effect
before the slice is decoded." . . . [and] in contrast with marking
a picture as used or unused for reference before decoding the
picture, Borgwardt discusses re-mapping picture numbers
before a slice is decoded. Borgwardt's (a) re-mapping of
picture numbers before a slice is decoded does not disclose or
suggest the claimed subject matter of (b) marking a picture as
used or unused for reference before the decoding.
App. Br. 12.
"In the patentability context, claims are to be given their broadest
reasonable interpretations . . . limitations are not to be read into the claims
from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
1993) (citations omitted). Any special meaning assigned to a term "must be
sufficiently clear in the specification that any departure from common usage
would be so understood by a person of experience in the field of the
invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473,
1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip.,
Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee may act as its own
lexicographer and assign to a term a unique definition that is different from
its ordinary and customary meaning; however, a patentee must clearly
express that intent in the written description"). Absent an express intent to
impart a novel meaning to a claim term, the words take on the ordinary and
customary meanings attributed to them by those of ordinary skill in the art.
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Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed.
Cir. 2003) (citation omitted).
In response to Appellants' contentions, the Examiner finds, with
respect to Borgwardt's teaching of subsequent picture decoding, "it is
obvious that this action is prior to the decoding of the next slice, also, a reset
command can mark all pictures in the multi-picture buffer as 'unused.'"
Ans. 6 (citing Borgwardt || 8.2.11, 8.2.13.1). The Examiner concludes, and
we agree under the broadest reasonable interpretation:
[I]t is obvious to the ordinary skill in the art that all the pictures
in the multi-picture buffer can be marked unused prior to
decoding the next slice except the transmitted reference picture
information. Therefore, Borgwardt in view of Lu further in
view of Wang discloses marking comprises marking as unused
for reference all reference pictures that are present in said
decoded picture buffer but are not identified in said buffer
description information, before decoding said picture.
Ans. 6.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 61, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 61, and grouped
claims 62—64 which fall therewith. See Claim Grouping, supra.
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3. $103 Rejection R2 of Claim 59
Issue 3
Appellants argue (App. Br. 10-11; Reply Br. 6—7) the Examiner's
rejection of claim 59 under 35 U.S.C. § 103(a) as being obvious over the
combination of Borgwardt, Lu, and Wang is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 1, "wherein said determining is performed
without use of a Memory Management Control Operations (MMCO)
command," as recited in claim 59?
Analysis
Appellants contend the Examiner erred in rejecting claim 59 because:
Borgwardt involves performing (i) the "determining" operation
based on (iii) MMCO commands. (See Final Action, pages 3
and 5.) Borgwardt therefore does not disclose or suggest
performing the claimed (i) "determining" operation without
using an (iii) MMCO command. For at least this reason,
Appellant respectfully submits that the Final Action's rejection
of dependent Claim 59 is clearly erroneous.
App. Br. 11 (emphases omitted).
In response to Appellants' arguments, the Examiner finds, and we
agree, "Koyabu discloses, association of POC with the transmitted PPS
before the MMCO operation is looked at." Ans. 5 (citing Koyabu, Fig. 6,
steps SI2—S20 before step S22 in the depicted algorithm). Therefore, "it is
obvious to the ordinary skill in the art to determine the reference index for
the currently decoding block without using the MMCO operation." Id.
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We agree with the Examiner because Appellants are again arguing the
references separately, when the rejection under § 103 is for what the
combination of prior art references would have taught or suggested to a
person with skill in the art. See Keller, 642 F.2d at 425.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 59, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of dependent claim 59.
4. $103 Rejection R3 of Claims E 21, 39, 40, 48, and 56
Issue 4
Appellants argue (App. Br. 22—23; Reply Br. 6) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Koyabu, Borgwardt, and Lu is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests "[a] method of decoding an encoded representation of a picture
in a video stream of multiple pictures" wherein, inter alia, "determining said
at least one picture identifier comprises determining, based on said buffer
description information, at least one picture order count (POC) value
identifying said respective reference picture as decoding reference for said
picture," as recited in claim 1?
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Analysis
Appellants contend:
Independent Claims 1, 21, 39, 40, 48, and 56 also stand
rejected under 35 U.S.C. § 103(a) over Koyabu in view of
Borgwardt further in view of Lu. The Final Action concedes,
however, that "Koyabu does not appear to explicitly disclose
wherein determining said at least one picture identifier
comprises determining, based on said buffer description
information, at least one picture order count (POC) value
identifying said respective reference picture as decoding
reference for said picture." (Final Action, page 22.) Moreover,
Appellant respectfully submits that the alleged combination of
Borgwardt and Lu does not disclose or suggest this subject
matter of independent Claim 1 that is missing from Koyabu, for
at least the reasons discussed above.
For at least the above reasons, Appellant respectfully
submits that the rejection of independent Claim 1 over Koyabu
in view of Borgwardt further in view of Lu is clearly erroneous.
App. Br. 10.
The Examiner sets forth detailed findings and conclusions regarding
Rejection R3 of claim 1, which we incorporate herein and adopt as our own.
Ans. 4—5.
We agree with the Examiner because Appellants merely recite
portions of the claim limitations and contend that the references do not teach
the limitations. App. Br. 10. Such statements are not considered to be
arguments. 37 C.F.R. § 41.37(c)(l)(iv) ("A statement which merely points
out what a claim recites will not be considered an argument for separate
patentability of the claim"); In reLovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) ("[W]e hold that the Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
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of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art"). Thus, we do not find Appellants'
arguments to be persuasive.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1, and grouped
claims 21, 39, 40, 48, and 56 which fall therewith. See Claim Grouping,
supra.
5. Rejection R2 of Claims Not Separately Argued
In view of the lack of any substantive or separate arguments directed
to obviousness Rejection R2 of claims 11—15, 20, 26, 27, 31—35, 38, 44-46,
52—55, 57, 58, and 60 under § 103 (see App. Br. 12), not separately or
substantively argued, we sustain the Examiner's rejection of these claims.
Arguments not made are waived.5
REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief (Reply Br. 4—7) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
5 Appellants merely argue, "[t]he remaining dependent claims are patentable
at least per the patentability of the respective ones of the independent claims
from which they depend." App. Br. 12.
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Examiner’s Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellants have not shown.
CONCLUSIONS
(1) The Examiner did not err with respect to obviousness Rejection
R1 of claims 1, 2, 4, 6-9, 16, 17, 19, 21, 22, 24, 28, 29, 36, 39, 40, 42, 43,
47, 48, 50, 51, and 56 under 35 U.S.C. § 103(a) over the cited prior art
combination of record, and we sustain the rejection.
(2) The Examiner did not err with respect to obviousness Rejection
R2 of claims 11—15, 20, 26, 27, 31—35, 38, 44-46, 52—55, and 57—64 under
35 U.S.C. § 103(a) over the cited prior art combination of record, and we
sustain the rejection.
(3) The Examiner did not err with respect to obviousness Rejection
R3 of claims 1, 21, 39, 40, 48, and 56 under 35 U.S.C. § 103(a) over the
cited prior art combination of record, and we sustain the rejection.
DECISION
We affirm the Examiner's decision rejecting claims 1, 2, 4, 6—9, 11—
17, 19-22, 24, 26-29, 31^10, 42-48, and 50-64.
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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