John Sidney. Stewart

Patent Trials and Appeals Board

Oct 22, 2019

15114560 - (D) (P.T.A.B. Oct. 22, 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.
15/114,560 07/27/2016 John Sidney STEWART 2013P00065WOUS 9424
72109 7590 10/22/2019
MYERS WOLIN, LLC
100 HEADQUARTERS PLAZA
NORTH TOWER, 6TH FLOOR
MORRISTOWN, NJ 07960-6834
EXAMINER
DUFFIELD, JEREMY S
ART UNIT PAPER NUMBER
2498
NOTIFICATION DATE DELIVERY MODE
10/22/2019 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):
patent@myerswolin.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOHN SIDNEY STEWART
____________________

Appeal 2018-006944
Application 15/114,560
Technology Center 2400
____________________

Before JENNIFER S. BISK, LARRY J. HUME, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.

BISK, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–22, which are all claims pending in
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Throughout this Decision we have considered the Specification filed July
27, 2016 (“Spec.”), the Final Rejection mailed December 10, 2017 (“Final
Act.”), the Appeal Brief filed March 8, 2018 (“Appeal Br.”), the Examiner’s
Answer mailed April 27, 2018 (“Ans.”), and the Reply Brief filed June 26,
2018 (“Reply Br.”).
2 We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Thomson
Licensing. Appeal Br. 3.
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BACKGROUND
Appellant’s disclosed embodiments and claimed invention relate to
“synchronizing audio and video respectively received by two different
receiving devices.” Spec. 2:1–6. Claim 1, reproduced below, is illustrative
of the subject matter on appeal:
1. A method for synchronizing playback of a program
including a video and associated first audio at a first electronic
device with playback of a second audio associated with the
program at a second electronic device that also receives the
video, the method comprising:
decoding, by a video decoder in the second electronic
device, the video, and outputting the decoded video;
decoding, by an audio decoder in the second electronic
device, the second audio and outputting the decoded second
audio for playing back by the second electronic device;
receiving a user command to synchronize the playback of
the video at the first electronic device and playback of the
second audio at the second electronic device;
responsive to the user command, the method further
comprising:
capturing, by a capturing device in the second electronic
device, the playback of the video at the first electronic device;
determining, by the second electronic device, an offset
between the outputted decoded video and the captured video;
and
adjusting outputting of the decoded second audio
according to the offset, so that the playback of the first audio at
the first electronic device is synchronized with the playback of
the second audio at the second electronic device.
Appeal Br. 16 (Claims App.).
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REJECTIONS
Claims 1–4 and 6–11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of US 2015/0120953 A1, published April
30, 2015 (“Crowe”) and WO 2012/038506 A1, published March 29, 2012
(“Bichot”). Final Act. 4–10.
Claims 5 and 12–22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Crowe, Bichot, and US 2013/0124664
A1, published May 16, 2013 (“Fonseca”). Final Act. 10–15.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 41.37(c)(1)(iv). Appellant argues all the rejected claims together. Appeal
Br. 14. As permitted by 37 C.F.R. § 41.37, we decide the Appeal for the
rejection of all rejected claims based on claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
We have considered all of Appellant’s arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Rejection of Claims Under 35 U.S.C. § 103
The Examiner cites to Crowe as teaching the bulk of the limitations of
claim 1, including “determining, by the second electronic device, an offset
between the outputted decoded video” and reference data. Id. at 5–6 (citing
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Crowe ¶¶ 24, 40–45, 49). Because “Crowe does not clearly teach capturing,
by a capturing device in the second electronic device, the playback of the
video at the first electronic device,” the Examiner relies on Bichot for this
limitation (id. at 6 (citing Bichot Fig. 4, 10:8–20)), as well as for
“determining, by the second electronic device, an offset between the
outputted decoded video and the captured video” (id. (emphasis added)
(citing Bichot 7:22–33)) (the “determining offset limitation”).
Appellant argues the cited references do not teach or suggest the
determining offset limitation. First, Appellant contends that “Crowe’s
technique is based on ‘using the playback latencies,’ which is different”
from what is claimed in the determining offset limitation. Appeal Br. 10.
Second, Appellant asserts that Bichot “never discloses, teaches[,] or suggests
determining an offset between the outputted decoded video and the captured
video,” instead only mentioning “comparing and synchronizing.” Id. at 11.
In response, the Examiner explains that “the claims do not provide
any indication as to what an ‘offset’ entails” and that Crowe discloses an
“adjusted offset,” which is “determined using the difference between the
playback latencies of each media playback device.” Ans. 16 (citing Crowe
¶ 43). According to the Examiner, Crowe’s adjusted offset is encompassed
by the claimed offset. Ans. 16. The Examiner adds that “Bichot teaches a
second device captures video frames from the displayed video content and
compares the video frames to reference data, wherein the reference data may
be a video frame from the video flow” and “[a]ny offset that is generated
between the renderings of the two flows is thereby compensated by delaying
a flow to a receiving device.” Ans. 16–17 (citing Bichot 9:28–33, 10:12–
27). According to the Examiner, Bichot’s delay is also encompassed by the
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claimed offset. Ans. 17. Thus, the Examiner finds that both Crowe and
Bichot teach a portion of the determining offset limitation and the
combination teaches its entirety.
We agree with the Examiner’s reading of Crowe and Bichot as
teaching or suggesting the claimed offset, and we also agree with the
Examiner’s conclusion that the combination of Crowe and Bichot teach or
suggest the determining offset limitation. Moreover, Appellant does not
respond to the Examiner’s findings in the Answer (see Reply Br. 1–7), and
consequently, does not show error in them.
Appellant also argues that the Examiner has not provided a proper
rationale to combine Crowe and Bichot. Appeal Br. 12–13; Reply Br. 2–5.
According to Appellant, “[t]he blanket motivation statement that the
combination provides ‘a more accurate synchronization’ . . . falls short of the
proper analysis necessary for an obviousness finding.” Appeal Br. 12.
Moreover, Appellant contends that, because “Crowe already claims to solve
the problem of synchronization,” the motivation of “a more accurate
synchronization cannot be obtained.” Id. at 12–13; Reply Br. 2–3. Finally,
Appellant argues that “Bichot relies on a comparison between captured
video frames and reference data,” which one of ordinary skill in the art
would have recognized takes time such that in Bichot’s system “sound will
always lag behind the video” and, therefore, “Bichot provides a
synchronization that is less accurate than Crowe’s.” Appeal Br. 13; Reply
Br. 3.3

3 In the Reply Brief, Appellant additionally argues that “Bichot actually
impairs Crowe because Crow[e] does not require the devices to be within
line of sight.” Reply Br. 4–5. Because Appellant does not explain what
“good cause” there might be to consider this new argument, it is untimely.
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In response, the Examiner explains that “the Bichot reference provides
a method of capturing and comparing video frames in order to provide an
offset for synchronization and, therefore, provides ‘a more accurate
synchronization’ than the methods of Crowe.” Ans. 18. In addition, the
Examiner points to Bichot as providing an additional reason to combine its
disclosed subject matter with Crowe by stating that its purpose is to
“overcome the aforementioned disadvantages which makes it possible to
synchronize two audio and/or video flows provided by different sources or
transmitted via different transport protocols to a single receiving device
and/or intended to be rendered by different rendering devices.” Id. at 18–19
(citing Bichot, 2:31–3:2). Finally, the Examiner adds that the combination
of Bichot and Crowe is an example of “the use of a known technique to
improve similar devices (methods, or products) in the same way.” Id. at 19
(citing KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007)).
We are not persuaded of error in the Examiner’s findings. Appellant
responds to the Examiner’s Answer by explaining that, because “Bichot was
filed before Crowe,” the “disadvantages” discussed by Bichot cannot be
referring to anything in Crowe. Reply Br. 4. An express teaching,
suggestion, or motivation in the prior art is not, however, a requirement for
an obviousness determination. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418–19 (2007). Indeed, the disadvantages referred to in Bichot are the same

See 37 C.F.R. 41.41(b)(2). Moreover, this argument is not commensurate
with the claim language because nothing in the claim requires the devices to
be within line of sight. See Appeal Br. 16 (Claims App.) (requiring only that
“a capturing device in the second electronic device” capture the playback of
the video).

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as those referred to in Crowe and in the Specification. Compare Bichot
2:17–26 (describing synchronization problems between “audio and/or video
flows” that are “performed by different rendering devices”); with Crowe
¶¶ 12–14 (discussing issues of unsynchronized presentation “across multiple
media playback devices”); and Spec. 2:1–6 (“[W]hen two electronic devices
respectively receiving a video stream and an audio stream, the
synchronization between the respective playbacks cannot be achieved
easily.”).
Moreover, Appellant does not contend the Examiner’s proposed
modifications are beyond the level of skill of one of ordinary skill in the art,
and Appellant does not assert the modifications are more than the use of
known elements to yield predictable results. Appellant states that a more
accurate synchronization cannot be obtained over Crowe’s system (Appeal
Br. 12–13; Reply Br. 2–3) and “Bichot provides a synchronization that is
less accurate than Crowe’s” (Appeal Br. 13; Reply Br. 3). However,
Appellant does not provide any evidence to support these assertions or
explain why the Examiner’s statement to the contrary is incorrect. See
Ans. 18 (“As stated, the Bichot reference provides a method of capturing
and comparing video frames in order to provide an offset for
synchronization and, therefore, provides ‘a more accurate synchronization’
than the methods of Crowe.”); Appeal Br.13 (explaining that in Bichot “the
sound always will lag behind the video” with no citations to Bichot or any
other evidence of record). Indeed, contrary to Appellant’s unsupported
assertion that in Bichot “the sound always will lag behind the video,” Bichot
itself states that its method for processing multimedia data results in
synchronous sound and video. Bichot 3:26–28 (“Moreover, the data of the
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two multimedia flows are synchronized so that their rendering by a display
device and/or audio device is synchronous.”).
Accordingly, Appellant does not persuade us of error in the
Examiner’s factual findings or ultimate legal conclusion of obviousness of
claim 1 over the combination of Crowe and Bichot. We sustain the
Examiner’s obviousness rejection of independent claim 1 and claims 2–22,
which fall with claim 1.
CONCLUSION
We affirm the Examiner’s rejection of claims 1–22 under 35 U.S.C.
§ 103.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1–4, 6–11 103 Crowe, Bichot 1–4, 6–11
5, 12–22 103 Crowe, Bichot,
Fonseca
5, 12–22
Overall
Outcome
1–22

AFFIRMED