14258199 (P.T.A.B. Dec. 26, 2018)

Ex Parte Weksler et al

Patent Trial and Appeal BoardDec 26, 2018

14258199 (P.T.A.B. Dec. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/258,199 04/22/2014 58127 7590 12/26/2018 FERENCE & ASSOCIATES LLC 409 BROAD STREET PITTSBURGH, PA 15143 FIRST NAMED INVENTOR Arnold S. Weksler 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. RPS920130248USNP(710.398) 6243 EXAMINER NGUYEN,VU ART UNIT PAPER NUMBER 2619 MAIL DATE DELIVERY MODE 12/26/2018 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 ARNOLD S. WEKSLER, NATHAN J. PETERSON, RUSSELL SPEIGHT V ANBLON, and JOHN CARL MESE (Applicant: Lenovo (Singapore) Pte. Ltd.) Appeal2018-005949 1 Application 14/258, 199 Technology Center 2600 Before JENNIFER S. BISK, BETH Z. SHAW, and NORMAN H. BEAMER, Administrative Patent Judges. BEAMER, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-3, 5-12, and 14--20. Claims 4 and 13 are cancelled. We have jurisdiction over the pending rejected claims under 35 U.S.C. Â§ 6(b ). We affirm. 1 Appellants identify Lenovo (Singapore) Pte. Ltd. as the real party in interest. (App. Br. 3.) Appeal2018-005949 Application 14/258, 199 THE INVENTION Appellants' disclosed and claimed invention is directed to determining the type of the video content, received from a video source, based on data related to the video content, and in response updating an attribute, such as frame rate, used by a display to display the video content. (Abstract.) Independent claim 1 and dependent claim 2, reproduced below, are illustrative of the subject matter on appeal: 1. A method, comprising: receiving, from a video source, dynamic video content; distinguishing, using a processor, between types of the dynamic video content, wherein each of the types of the dynamic video content is associated with an attribute used by a display; and updating, based on the type, the attribute used by a display to display the dynamic video content; wherein the video type is based on program guide information and at least one of: content metadata, stream rate information, resolution information, compression technique information, video source information, and one or more frames of the video content. 2. The method of claim 1, wherein the attribute comprises a refresh rate. REJECTIONS The Examiner rejected claims 1-3, 5-12, and 14--20 under 35 U.S.C. Â§Â§ 112(a) and 112(b) as failing to comply with the written description requirement and as indefinite. (Final Act. 3--4.) 2 Appeal2018-005949 Application 14/258, 199 The Examiner rejected claims 1-3, 5, 6, 9-12, 14, 15, and 18-20 under 35 U.S.C. Â§ I03(a) as being unpatentable over Juenger (US 2008/0100598 Al, pub. May 1, 2008) and Trollope et al. (US 2015/0186511 Al, pub. July 2, 2015). (Final Act. 5-9.) The Examiner rejected claims 7, 8, 16, and 17 under 35 U.S.C. Â§ I03(a) as being unpatentable over Juenger, Trollope, and "Dynamic Refresh Rate," Media Portal (2015). (Final Act. 9-10.) ISSUES ON APPEAL Appellants' arguments in the Appeal and Reply Briefs present the following issues: 2 First Issue: Whether the claims are invalid as failing to comply with the written description requirement and as indefinite. (App. Br. 17-18.) Second Issue: Whether the Examiner erred in finding the combination of Juenger and Trollope teaches or suggests the independent claim 1 limitation, "distinguishing ... between types of the dynamic video content, wherein each of the types of the dynamic video content is associated with an attribute used by a display," and the commensurate limitations of independent claims 10 and 20. (App. Br. 18-20.) ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments that the Examiner has erred. Except for the Section 112 2 Rather than reiterate the arguments of Appellants and the positions of the Examiner, we refer to the Appeal Brief (filed Dec. 4, 2017); the Reply Brief (filed May 22, 2018); the Final Office Action (mailed June 30, 2017); and the Examiner's Answer (mailed Mar. 22, 2018) for the respective details. 3 Appeal2018-005949 Application 14/258, 199 rejections, we disagree with Appellants' arguments, and adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the Office Action from which this appeal is taken (Final Act. 5-1 O); and (2) the reasons set forth by the Examiner in the Examiner's Answer in response to Appellants' Appeal Brief (Ans. 13-14), and concur with the conclusions reached by the Examiner. First Issue In rejecting the claims under 35 U.S.C. Â§Â§ 112(a), the Examiner finds that the phrase "dynamic video content," added by amendment during prosecution, is without support in the original disclosure and thus fails to comply with the written description requirement. (Final Act. 3.) The Examiner also concludes the phrase is indefinite under 35 U.S.C. Â§Â§ 112(b), because "[t]he specification provides no definition for the term, and there is no clear meaning in the art." (Final Act. 4.) Appellants argue "dynamic" video, as opposed to "static" video, is a well understood concept in the field - i.e., dynamic video changes from frame to frame, while static video does not. In addition, the use of "dynamic" video in the claims is implicitly supported by the discussion in the specification of the need to accommodate different refresh rates for different types of video content depicting motion: "sports, movies, soap operas, sitcoms, etc., are all types of moving, or dynamic, video content, as opposed to static video content (e.g., a PowerPoint slide, etc.)." (App. Br. 18; Spec. ,r 16) We agree with Appellants. As Appellants state: [W]hen a disclosure describes a claimed invention in a manner that permits one skilled in the art to reasonably conclude that the inventor possessed the claimed invention the written 4 Appeal2018-005949 Application 14/258, 199 description requirement is satisfied. MPEP Â§ 2163. This possession may be shown in any number of ways and an Applicant need not describe every claim feature exactly because there is no in head verba requirement. (MPEP Â§ 2163). Stated differently, an Applicant is not constrained to the terminology used in the application as filed. Rather, to satisfy the written description requirement, all that is required is "reasonable clarity." (MPEP Â§ 2163.02). Also, an adequate description may be made in any way through express, implicit, or even inherent disclosures in the application, including words, structures, figures, diagrams, and/or formulae. (MPEP Â§Â§ 2163(1), 2163.02). (App. Br. 17.) Therefore, we do not sustain the Examiner's Section 112 rejections. Second Issue With respect to the independent claim limitation at issue, the Examiner relies on the disclosure in Juenger of providing dynamic refresh rates for displays, in which the refresh rate is adjusted in response to a determination of the type of content or application being displayed, "such as a game, movie or other form of moving graphics .... " (Final Act. 5-6; Juenger ,r 38.) Appellants argue the Examiner errs because: The "type" of image content, as the term is used in Juenger, refers to whether the image is a non-dynamic or static image (e.g., powerpoint) or a moving video (e.g., movies, video games, etc.) .... In other words, Juenger merely distinguishes between a static and a moving image. Juenger does not make any further distinction between, for example, a category or type of video content as in the claimed limitations." 5 Appeal2018-005949 Application 14/258, 199 (App. Br. 19-20.) Appellants further argue, "nowhere in Juenger, or any of the remaining references, is it disclosed that 'each of the types of the dynamic video content is associated with a refresh rate.'" (App. Br. 20.) However, although Juenger does distinguish between static and dynamic video, it also distinguishes between different types of dynamic video, and it associates content with refresh rate: [T]he MPEG 2 encoding algorithm can detect motion in successive frames and adjust the refresh rate as needed. For example, a gaming application or DVD player application may warrant an increase in a refresh rate. As such, the refresh rate can be increased when a gaming application or DVD player application may be executed and decreased when the gaming application or DVD player application may be terminated. For example, various types of video or video content, such as some video games, movies, and other types of video or video content can be provided within the video display content. Video or video content can include relatively high-speed motion frame rates that can require a higher refresh rates to display video content. (Juenger ,r,r 223-25.) Accordingly, we are not persuaded by Appellants' arguments concerning the teachings of Juenger, and agree with the Examiner's findings. (Ans. 14.) Appellants further argue the Examiner has failed to articulate a sufficient basis for relying on the combination of Juenger and Trollope. (App. Br. 18-19.) However, we are not persuaded by the conclusory assertions of Appellants. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). The Examiner correctly relies on the disclosure in Trollope of the use of electronic program information and metadata to gather information about 6 Appeal2018-005949 Application 14/258, 199 video content, and as such would be useful in combination with Trollope to adjust refresh rate in response to such determinations. (Final Act. 6.) Appellants do not point to any evidence of record that the combination relied upon would be "uniquely challenging or difficult for one of ordinary skill in the art" or "represented an unobvious step over the prior art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418-19 (2007)). The Examiner's findings are reasonable because the skilled artisan would "be able to fit the teachings of multiple patents together like pieces of a puzzle" because the skilled artisan is "a person of ordinary creativity, not an automaton." KSR, 550 U.S. at 420-21. We are persuaded the claimed subject matter exemplifies the principle that " [ t ]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416. Accordingly, we sustain the Examiner's obviousness rejections of independent claims 1, 9, 15, and 21. CONCLUSION For the reasons discussed above, we do not sustain the Examiner's rejection of the claims as failing to comply with the written description requirement and as indefinite. Also for the reasons discussed above, we sustain the Examiner's obviousness rejections of claims 1, 10, and 20 over Juenger and Trollope. In addition, we sustain the obviousness rejections of claims 2, 3, 5, 6, 9, 11, 12, 14, 15, 18, and 19 over Juenger and Trollope, and of claims 7, 8, 16, and 17 7 Appeal2018-005949 Application 14/258, 199 over Juenger, Trollope, and "Dynamic Refresh Rate," which rejections are not argued separately with particularity. Because we affirm at least one ground of rejection with respect to each claim on appeal, the Examiner's decision is affirmed. See 37 C.F.R. Â§ 4I.50(a)(l). DECISION The Examiner's rejections of claims 1-3, 5-12, and 14--20 are affirmed. 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)(l)(iv). AFFIRMED 8