Jiao Wang et al.

Patent Trials and Appeals Board

Jul 18, 2019

14861049 - (D) (P.T.A.B. Jul. 18, 2019)

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.
14/861,049 09/22/2015 Jiao Wang 1458-140123 7006
109712 7590 07/18/2019
Advanced Micro Devices, Inc.
c/o Davidson Sheehan LLP
6836 Austin Center Blvd.
Suite 320
Austin, TX 78731
EXAMINER
SLATER, ALISON T
ART UNIT PAPER NUMBER
2487
NOTIFICATION DATE DELIVERY MODE
07/18/2019 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):
AMD@DS-patent.com
docketing@ds-patent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JIAO WANG and YING ZHANG
___________

Appeal 2018-0085721
Application 14/861,0492
Technology Center 2400

_________________

Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
NABEEL U. KHAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 and 3–20 (all pending claims). Final Act. 1. Claim 2 is
canceled. App. Br. 12. We have jurisdiction under 35 U.S.C. § 6.
We affirm-in-part.

1 In this Decision, we refer to Appellants’ Appeal Brief (“App. Br.,” filed
June 11, 2018) and Reply Brief (“Reply Br.,” filed August 28, 2018); the
Final Office Action (“Final Act.,” mailed November 14, 2017); the
Examiner’s Answer (“Ans.,” mailed July 6, 2018); and the originally filed
Specification (“Spec.,” filed September 22, 2015).
2 Appellants assert ATI Technologies ULC is the real party-in-interest. App.
Br. 1.
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STATEMENT OF THE CASE
Introduction
Appellants’ recited methods and systems relate to video encoding and
decoding systems and methods. Spec. ¶ 1. Known video coding techniques
utilize predictive encoding in which spatial redundancy between successive
images in a sequence is leveraged. Id. ¶ 2. In such techniques, an image is
divided into a plurality of blocks and, for each block, a “most-similar block”
in a previous reference image is determined. Id. The block to be encoded
may then be encoded by identifying the corresponding block in the reference
image and encoding a movement value of that block in the next sequential
image. Id. Some encoding standards buffer recently used reference images
at both the transmitting (encoding) side and the receiving (decoding) side of
a communication channel and may synchronize the reference images stored
in the buffer in both the transmitter and the receiver to assure that the same
set of reference images can be used on both sides of the channel. Id. ¶ 3.
In such image communication channels, a transmitted image may be
lost or corrupted at the receiver and, in real-time image communications, “it
often is impracticable to arrange for retransmission of the corrupted
reference picture, and the decoder may be forced to continue with decoding
of subsequent pictures that were predicted from the corrupted reference
picture.” Id. ¶ 4. Prior approaches mitigate this problem by insertion of
intra-coded picture information such as periodic insertion of an
Instantaneous Decoder Refresh (“IDR”) picture to start anew with a group of
encoded images. Id. ¶ 5. However, such intra-coded information can
decrease compression efficiency for the transmitted stream of images. Id.
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Appellants’ invention purports to mitigate loss/corruption of images
transmitted over a communication channel without negatively impacting
compression efficiency. Id. ¶ 13. Appellants’ Figure 6 is reproduced below.

Figure 6 is an illustration of the encoding of images resulting from the
claimed invention. Id. ¶ 39. In panel 601 of Figure 6, encoder 112 has
generated and transmitted to decoder 120 encoded pictures “K,” “K+1,” and
“K+2” in which image “K” was used as a reference picture for encoding
images “K+1” and “K+2.” Id. Encoder 112 uses decoded picture buffer
(“DPB”) 124 to store recently encoded pictures and decoder 120 uses DPB
126 to store decoded pictures. See id. ¶ 20, Fig. 1. As indicated by the
shading of image “K,” that reference image was corrupted in transmission.
Id.
In panel 602 of Figure 6, responsive to receipt of corrupted reference
image “K,” decoder 120 sends signal 604 to encoder 112 indicating that
image “K” was corrupted. Id. ¶ 40. Responsive to receipt of signal 604,
encoder 112 searches DPB 124 “and identifies picture K-5 as being a long-
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term reference picture that is earlier in the decoding order than picture K.”
Id.
In panel 603 of Figure 6, encoder 112 is reconfigured to use picture
“K-5” as a reference picture and is sent to decoder 120 as a new reference
picture. Id. ¶ 41. Pictures “K+4” and “K+5” are then encoded using Image
“K+3” (the retrieved K-5 reference picture) as the new reference picture. Id.
Thus, according to Appellants, “a transmission error that impacted the
reference picture K is contained so as to impact only a limited number of
decoded pictures (pictures K, K+1, and K+2) and is recovered from without
requiring the bitrate-intensive insertion of an IDR picture or a GDR picture
or other intra-coding process.” Id.
Of the claims on appeal, claims 1, 7, 11, 14, and 17 are independent.
Claims 1, 3, and 4, reproduced below, are illustrative.
1. In a video coding system, a method comprising:
transmitting a first encoded picture from an encoder for
reception by a decoder as part of an encoded bitstream, the first
encoded picture being a first reference picture for one or more
subsequent pictures in the encoded bitstream;
receiving, at the encoder, an indication from the decoder
that there was an error in receiving the first encoded picture;
selecting a second reference picture from a first buffer of
reference pictures at the encoder, the second reference picture
being earlier than the first reference picture in an encoding order
of the encoded bitstream, wherein the second reference picture is
selected in response to receiving an indication that there was an
error in receiving the first encoded picture;
configuring the encoder to encode a current picture for the
encoded bitstream using the second reference picture and in
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response to the first buffer having a reference picture earlier than
the first reference picture in the encoding order; and
generating a signal, by the encoder, indicating that the first
reference picture is a non-reference picture in the first buffer of
reference pictures.
App. Br. 12.
3. The method of claim 1, further comprising:
in response to the first buffer not having a reference
picture earlier than the first reference picture in the encoding
order, configuring the encoder to encode at least one of an
instantaneous decoder refresh (IDR) picture or a graduated
decoder refresh (GDR) picture for insertion into the encoded
bitstream.
App. Br. 12.
4. The method of claim 1, wherein:
selecting the second reference picture comprises limiting
selection of the second reference picture to one of a set of one or
more long-term reference pictures in the first buffer of reference
pictures.
App. Br. 13.

Objections and Rejections
The Examiner objects to certain phrases in claims 9 and 18. Final
Act. 3.
The Examiner rejects claims 8 and 18 under 35 U.S.C. § 112(b) as
indefinite and under § 112(d) as an improper dependent form. Final Act. 3–
5.
The Examiner rejects claims 1, 4–8, 10–18, and 20 under 35 U.S.C.
§ 102(a)(1) as anticipated by Wang et al. (U.S. Patent Publication No.
2013/0077687 A1) (“Wang”). Final Act 5–12.
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The Examiner rejects claims 3, 9, and 19 under 35 U.S.C. § 103 as
obvious over Wang and Ma et al. (U.S. Patent Publication No.
2016/0102030 A1) (“Ma”). Final Act. 12–13.

ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). Arguments not made are waived. See 37 C.F.R.
§ 41.37(c)(1)(iv). Unless otherwise indicated, we adopt the Examiner’s
findings in the Final Office Action and the Answer as our own and add any
additional findings of fact appearing below for emphasis.

THE OBJECTION
Specifically, the Examiner objects to claim 9’s recitation that an error
recovery module is to configure the encoder because such passive language
is not limiting of the claim. Final Act. 3. The Examiner also objects to
claim 18’s reference to “the reference picture” finding that the phrase should
refer to “the second reference picture.” Id.
Appellants do not respond to the objection.
Ordinarily an objection is petitionable to the Director and a rejection
is appealable to the Board. When an issue of new matter is the subject of
both an objection and a rejection (i.e., a written description rejection), both
the objection and rejection is appealable. See MPEP § 2163.06(II). The
Examiner has not made a new matter rejection in this case and, thus, there is
no basis for us to decide these objections in conjunction with a related
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written description (new matter) rejection. Thus, if Appellants wish to
oppose the objections, Appellants should petition the Director under
37 C.F.R § 1.181. Therefore, these objections are not before us because we,
generally, lack jurisdiction over such petitionable matters. See, e.g., MPEP
§ 706.01 (“[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”).

THE 112 REJECTION
The Examiner rejects claim 8 under 35 U.S.C. § 112(b) as indefinite
because “the limitation ‘having a reference picture earlier than the first
reference picture in the encoding order’ renders the claim indefinite because
it is unclear whether ‘a reference picture’ refers to the second reference
picture or another reference picture.” Final Act. 3–4. The Examiner also
rejects claim 18 as indefinite because of a similar recitation. Id. at 4.
Based on these same indefinite recitations, the Examiner also rejects
claims 8 and 18 under § 112(d) as written in an improper dependent form.
Id. at 4–5.
Appellants do not argue these rejections and, thus, we summarily
sustain the Examiner’s rejection of claims 8 and 18 under 35 U.S.C.
§§ 112(b) and (d).

THE 102 REJECTION
1. Claims 1, 5–8, 10–18, and 20
Regarding claim 1, the Examiner finds all steps of independent
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method claim 1 are taught by Wang. Final Act. 5–7.
a. Selecting Step
In particular, the Examiner finds the step of selecting is taught by
Wang’s disclosure of encoding “next picture(s) using only those reference
pictures that are known correct at the decoder side for inter prediction
reference” and reference picture subsets that “identify long-term reference
pictures based on whether the long-term reference pictures are earlier
in display order.” Id. at 6 (citing Wang ¶¶ 71, 72, 431, 432). The
Examiner further finds that Wang teaches the selecting step being responsive
to receipt of an indication that there was an error in receipt of a first picture
in that Wang’s decoder detects (infers) that a reference picture is lost “and
may take some action to improve the situation, e.g., by notifying the
encoder side.” Id. (citing Wang ¶ 431).
The Examiner additionally finds Wang teaches that the identifier for
pictures may be numeric values (picture order count or “POC”) that indicate
the output order of the set of pictures where pictures with smaller POC
values are displayed (output) earlier than pictures with larger POC values.
Ans. 3 (citing Wang ¶ 110). The Examiner further finds Wang teaches such
temporal values indicate which pictures can be used for coding a current
picture such that “a picture with a particular temporal_id value can possibly
be a reference picture for pictures with equal or greater temporal_id values,
but not vice-versa.” Id. (citing Wang ¶ 83). Therefore, the Examiner
contends “if the decoder sends a message that the picture was lost, an earlier
encoded frame may be sent, i.e., a reference picture with a lower
temporal_id.” Id. at 4.
Appellants argue, “Wang teaches selecting reference pictures for a
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reference picture subset based on the order of the reference picture relative
to a current picture being encoded. Wang nowhere teaches selecting a
reference picture earlier in an encoding order than a first reference
picture.” App. Br. 6–7 (citing Wang ¶ 71); see also Reply Br. 2–3.
Appellants further argue, “In other words, claim 1 provides for selecting of a
reference picture based on that reference picture's order relative to another
reference picture. In contrast, Wang teaches selecting a reference picture for
a subset based on the reference picture's order relative to a picture being
encoded.” Id. at 7. Specifically in response to the Examiner’s discussion of
Wang’s paragraph 431, Appellants argue Wang teaches only that the
encoder encodes a next picture using a “known correct” reference picture but
does not teach that a “known correct” reference picture is “earlier than the
lost reference picture, nor that the known correct reference picture is
selected to be earlier in a picture order than the lost reference picture.” Id.
(citing Wang ¶ 431).
We are not persuaded by Appellants’ arguments. “A claim is
anticipated only if each and every element as set forth in the claim is found,
either expressly or inherently described, in a single prior art reference.”
Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir.
1987). An anticipatory reference is not required to duplicate word for word
what is in the claims. Standard Havens Prods, Inc. v. Gencor Indus, Inc.,
953 F.2d 1360, 1369 (Fed. Cir. 1991). The anticipation requirement that
every element of a claim appears in a single reference accommodates
situations where the common knowledge of “technologists” is not recorded
in a reference, i.e., where technical facts are known to those in the field of
the invention. Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1269
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(Fed. Cir. 1991). Further, a reference anticipates a claim if it discloses the
claimed invention “such that a skilled artisan could take its teachings in
combination with his own knowledge of the particular art and be in
possession of the invention.” In re Graves, 69 F.3d 1147, 1152 (Fed. Cir.
1995) (emphasis in the original)(citation omitted). In other words, the prior
art references must be considered from the perspective of a person of
ordinary skill in the art.
We agree with the Examiner that Wang discloses, in response to the
encoder receiving notification that a reference picture was lost at the
decoder, the encoder encodes a next picture “using only those reference
pictures that are known correct at the decoder side.” Wang ¶¶ 431, 432.
Although “known correct” reference pictures at the decoder could include
reference pictures that are later in sequence than the lost reference picture,
one of ordinary skill would understand that earlier reference pictures that
were not lost would be in the set of reference pictures that are known to be
correct (not lost or corrupted) in the decoder. An ordinarily skilled artisan
would understand Wang to disclose that such an earlier reference picture
would typically be used to encode a next picture—i.e., a reference picture
earlier in sequence of transmission to the decoder than the lost reference
picture that caused the encoder to be notified of a loss. Later reference
pictures may not have even arrived yet at the decoder at the time the lost
reference picture is detected but earlier reference pictures that were not lost
would still be available for use in the subsets of pictures saved in both the
encoder and the decoder.
Accordingly, we are not persuaded the Examiner erred in finding that
Wang teaches the selecting step of claim 1.
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b. Generating Step
The Examiner also finds Wang teaches the step of generating a signal
indicating that a reference picture is now a non-reference picture in that, in
Wang, each picture in the encoder’s lists of subsets of pictures is designated
as either a reference picture or a non-reference picture. Final Act. 7 (citing
Wang ¶ 52). The Examiner further finds that Wang discloses that both the
encoder and the decoder “may construct multiple lists that each includes
identifiers (i.e., signals) of a subset of the potential reference pictures.” Ans.
4 (citing Wang ¶ 9).
Appellants argue that cited paragraph 52 of Wang only teaches that
when a picture is decoded (in the decoder), it can be either reference or non-
reference but the paragraph fails to teach generating such an indicative
signal by the encoder. App. Br. 8. Appellants further argue that cited
paragraph 9 of Wang only teaches an indication that a particular picture is
“part of a given subset of reference pictures.” Reply Br. 3. Appellants
contend “[t]his is not the same as, or equivalent to indicating a reference
picture is a non-reference picture as provided by claim 1.” Id.
We are not persuaded by Appellants unsupported argument. It is well
settled that mere attorney arguments and conclusory statements, which are
unsupported by factual evidence, are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take
the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d
775, 782 (CCPA 1977). Appellants’ attorney merely asserts that the
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presence (or absence) of a picture identifier in Wang’s lists of reference
pictures is not the same as the recited generated signal. The Examiner has
asserted that the presence of an identifier of a picture in an encoder’s list of
reference pictures is the same as the recited generated signal but Appellants,
bearing the burden of persuasion, fail to explain persuasively why the
Examiner’s assertions are in error.
Accordingly, we are not persuaded the Examiner erred in finding that
Wang teaches the generating step of claim 1.

c. Conclusion Regarding Claims 1, 5–8, 10–18, and 20
In view of the above discussion, we are not persuaded the Examiner
erred in rejecting claim 1. Appellants argue the rejection of claims 5–8, 10–
18, and 20 (including independent claims 7, 11, 14, and 17) together with
independent claim 1. App. Br. 8, 9.
Accordingly we sustain the rejection of claims 1, 5–8, 10–18, and 20.

2. Claim 4
Claim 4 depends from claim 1 and further recites that the selecting
step further comprises “limiting selection of the second reference picture to
one of a set of one or more long-term reference pictures in the first buffer of
reference pictures.”
The Examiner finds Wang teaches this further limitation in that POC
values (identifiers of reference pictures) are limited to a defined range of
values. Final Act. 7 (citing Wang ¶ 113). The Examiner further finds
“Wang discloses that a decoded picture buffer (DPB) (i.e., a first buffer)
stores decoded pictures, including reference pictures.” Ans. 5 (citing Wang
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¶ 9).
Appellants argue Wang’s paragraph 113 “teaches only that picture
order count values can be restricted to certain values, and that those values
can be used to identify which reference pictures are long-term reference
pictures,” but fails to teach that the selection of a reference picture is limited.
App. Br. 8.
We are persuaded by Appellants’ argument. Claim 4 requires that the
selection of a reference picture be limited to selecting from “one of a set of
one or more long-term reference pictures.” We agree with Appellants that
the Examiner’s findings merely indicate that the identifier of each reference
picture in Wang’s lists is limited to a certain range of values (e.g., a 32-bit
value) but the cited portions of Wang do not indicate that any particular one
reference picture from a subset of pictures in the list is selected.
Accordingly, we do not sustain the Examiner’s rejection of claim 4.

THE 103 REJECTION
Claim 3 depends from claim 1 and further recites that, in response to
the lack of an appropriate, earlier, reference frame to be selected,
“configuring the encoder to encode at least one of an instantaneous decoder
refresh (IDR) picture or a graduated decoder refresh (GDR) picture for
insertion into the encoded bitstream.” Claims 9 and 19, dependent indirectly
from claims 7 and 17, respectively, include similar limitations.
The Examiner rejects claims 3, 9, and 19 under 35 U.S.C. § 103 as
obvious over Wang and Ma relying Wang as applied to claim 1, relying on
Ma for the additional limitation of claim 3, and articulating a reason for the
combination (“so that subsequent frames may be free of error
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propagation.”). Final Act. 12–13 (citing Ma ¶ 72 (“video destination may
feed back the packet loss information to the video encoder to trigger the
insertion of an Instantaneous Decoder Refresh (IDR) frame”)); Ans. 5–6.
Appellants argue that the cited paragraph 72 of Ma teaches “that an
IDR frame is inserted in response to an indication of packet loss that has
affected a transmitted frame” but does not teach that the encoder is
configured to send an IDR frame “in response to a buffer not having a
reference picture earlier than a first reference picture in an encoding
order as provided by claim 3.” App. Br. 10.
We are unpersuaded by Appellants’ argument. The Examiner relies
on Wang as applied to claim 1 for teaching the selection step to select
another reference picture in response to an error in a previously transmitted
reference picture (i.e., selecting an earlier reference picture). Final Act. 6;
Ans. 3–4. One of ordinary skill in the art would understand that, implied in
the selection step as disclosed by Wang, is the possibility that no other
reference picture qualifies for selection (i.e., no earlier reference picture is
available for selection). Thus, it would be suggested to the ordinarily skilled
artisan that some other remedy for the lost transmission would be desired
and the Examiner finds Ma provides such an alternative remedy—feed back
to the encoder (configuring the encoder) to send an IDR frame. Ma ¶ 72.
Accordingly, we are not persuaded the Examiner erred in rejecting
claim 3. Appellants do not separately argue the rejection of claims 9 and 19
(App. Br. 10) and, thus, for the same reasons as claim 3, we are unpersuaded
of Examiner error in rejecting claims 9 and 19. Therefore, we sustain the
Examiner’s rejection of claims 3, 9, and 19.

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DECISION
We affirm the Examiner’s decision rejecting claims 8 and 18 under
35 U.S.C. § 112(b).
We affirm the Examiner’s decision rejecting claims 8 and 18 under
35 U.S.C. § 112(d).
We affirm the Examiner’s decision rejecting claims 1 and 5–8, 10–18,
and 20 under 35 U.S.C. § 102(a)(1).
We affirm the Examiner’s Decision rejecting claims 3, 9, and 19
under 35 U.S.C. § 103.
We reverse the Examiner’s decision rejecting claim 4 under 35 U.S.C.
§ 102(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).

AFFIRMED-IN-PART