Justin Earl. Ballard

Patent Trials and Appeals Board

Jan 31, 2020

14633232 - (D) (P.T.A.B. Jan. 31, 2020)

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.
14/633,232 02/27/2015 JUSTIN EARL BALLARD CHTR-2014-08 1920
14333 7590 01/31/2020
Meagher Emanuel Laks Goldberg & Liao, LLP
ONE PALMER SQUARE
SUITE 325
Princeton, NJ 08542
EXAMINER
FALEY, KATHERINE A
ART UNIT PAPER NUMBER
2652
NOTIFICATION DATE DELIVERY MODE
01/31/2020 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):
14333-docket@meagheremanuel.com
molech@meagheremanuel.com
tmeagher@meagheremanuel.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JUSTIN EARL BALLARD
____________

Appeal 2019-000004
Application 14/633,232
Technology Center 2600
____________

Before ST. JOHN COURTENAY III, KALYAN K. DESHPANDE, and
CATHERINE SHIANG, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–8 and 13–20, which are all the claims pending and
rejected in the application.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies Charter Communications Operating, LLC as the real
party in interest. Appeal Br. 3.
2 The Examiner objects to claims 9–12 for being dependent from a rejected
independent claim, but such claims are allowable if rewritten in independent
form. Final Act. 11. Therefore, the objection of claims 9–12 is not before
us.
Appeal 2019-000004
Application 14/633,232

2
STATEMENT OF THE CASE
Introduction
The present invention relates to “audio volume control and, more
particularly but not exclusively, automatically stabilizing a volume of
different audio streams/contents to predefined boundary levels which may be
requested by a user.” Spec. 1:4–6.
According to a first aspect of the invention, a method
(performed by an electronic device) comprising: setting
minimum and maximum threshold volumes defining respective
minimum and maximum acceptable volumes for audio signals;
buffering an audio signal for a predefined time interval from an
audio stream; determining whether the buffered audio signal
has volume peaks exceeding the maximum threshold volume
and has volume valleys falling below the minimum threshold
volume; calculating a volume adjustment for the buffered audio
signal using a predefined algorithm for modifying a volume
corresponding to the buffered audio signal, so that by applying
the calculated volume adjustment, the volume corresponding to
the buffered audio signal including the determined one or more
of volume peaks and valleys is limited by the maximum and
minimum threshold volumes during the predefined time
interval; and providing the buffered audio signal modified
according to the calculated volume adjustment to a playout
device for playing out the audio stream.

Spec. 1:24–2:8. Claim 1 is exemplary:

1. A method, performed by an electronic device, the
method comprising:
setting minimum and maximum threshold volumes
defining respective minimum and maximum acceptable
volumes for audio signals;
buffering an audio signal for a predefined time interval
from an audio stream;
determining whether the buffered audio signal has
volume peaks exceeding the maximum threshold volume and
Appeal 2019-000004
Application 14/633,232

3
has volume valleys falling below the minimum threshold
volume;
calculating a volume adjustment for the buffered audio
signal using a predefined algorithm for modifying a volume
corresponding to the buffered audio signal, so that by applying
the calculated volume adjustment, the volume corresponding to
the buffered audio signal including determined volume peaks
exceeding the maximum threshold volume being attenuated to a
level below the maximum threshold volume during the
predefined time interval, and the volume corresponding to the
buffered audio signal including determined volume valleys
below the minimum threshold volume level being amplified to
a level above the minimum threshold volume during the
predefined time interval; and
providing the buffered audio signal modified according
to the calculated volume adjustment to a play-out device for
playing out the audio stream;
wherein said electronic device is configured to process
said audio signal to provide a corresponding sequence of
buffered audio signals modified according to respective
calculated volume adjustments.

References and Rejection3

Claims
Rejected
35 U.S.C. § References
1–8, 13–20 103 Tracey (US 2013/0272543 A1; published
October 17, 2013), Walden (US 5,130,665;
issued July 14, 1992)

3 Throughout this opinion, we refer to the (1) Final Office Action dated
November 3, 2017 (“Final Act.”); (2) Appeal Brief dated April 5, 2018
(“Appeal Br.”); and (3) Examiner’s Answer dated July 26, 2018 (“Ans.”).
Appeal 2019-000004
Application 14/633,232

4
ANALYSIS
Obviousness
On this record, and based upon a preponderance of the evidence, we
find the Examiner did not err in rejecting claim 1, for the reasons discussed
infra.
We disagree with Appellant’s arguments, and we adopt the
Examiner’s findings and conclusions in (i) the action from which this appeal
is taken and (ii) the Answer that are consistent with our analysis below.
I
Appellant argues Tracey does not teach “determining . . . volume
valleys falling below the minimum threshold volume,” as recited in claim 1.
See Appeal Br. 9–13. In particular, Appellant argues “the portion of Tracey
cited . . . refers to discarding loudness values likely to be associated with
silence rather than ‘determining volume values falling below the minimum
threshold volume’ as claimed.” Appeal Br. 9–10 (original emphases
omitted). Appellant contends “Tracey unambiguously does not pertain to
minimum volume levels” and the “Examiner seems to be improperly
applying a ‘not necessarily clear’ standard to negate a lack of support for her
position.” Appeal Br. 10, 12 (original emphases omitted). Appellant asserts
the term “loudness” is at every instance in Tracey directed
toward notions of whether or not a signal is too loud rather than
not loud enough; namely, whether the signal exhibits a loudness
level above a maximum loudness level or threshold loudness
level etc.. There is not one single instance within Tracey where
minimum volume levels are considered or processed or even
relevant to the disclosed purpose or embodiments in any way.
Appeal Br. 11 (original emphases omitted).
Appeal 2019-000004
Application 14/633,232

5
The “not necessarily clear” standard seems to be used by
the Examiner to improperly grasp at some notion that a “target
loudness level” consistently discussed within Tracey as
pertaining to maximum or peak volume may somehow also
pertain to a target minimum volume level.
Appeal Br. 12.
Appellant has not persuaded us of error, because Appellant’s
arguments are not directed to the Examiner’s specific findings. The
Examiner finds—and Appellant does not dispute—Walden teaches
“determining . . . volume valleys falling below the minimum threshold
volume.” See Final Act. 4; Walden 2:29–31 (“When the level of the audio
signal applied to the inlet port 24 is less than the level set by the minimum
level control 28 . . ., the volume controller 14 is enabled and increases the
level of the control signal applied to the amplifier gain control port 20
thereby to increase the gain of the amplifier”) (emphasis added). Therefore,
the Examiner does not rely on Tracey to disclose that claim limitation.4
Further, we determine that Appellant’s arguments (Appeal Br. 9–13)
are unpersuasive because Appellant does not provide sufficient objective
evidence to support such arguments. See In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997) (“attorney argument [is] not the kind of factual evidence
that is required to rebut a prima facie case of obviousness”); Meitzner v.

4 To the extent Appellant is arguing the Examiner is precluded from
modifying Tracey’s method to include Walden’s minimum threshold
volume, because Tracey does not disclose “process[ing] minimum volume
levels” (Appeal Br. 12), that argument is unpersuasive. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418–19 (2007) (“If the claim extends to what is
obvious, it is invalid under § 103” and “the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.”).
Appeal 2019-000004
Application 14/633,232

6
Mindick, 549 F.2d 775, 782 (CCPA 1977) (“Argument of counsel cannot
take the place of evidence lacking in the record.”).
II
Appellant contends the “deficiencies of Tracey are not cured by the
teachings of Walden.” Appeal Br. 14 (original emphasis omitted).
First, Appellant argues:
The teachings of Walden cannot be operably applied to
those of Tracey, and any combination would still not provide
the claimed invention. For example, even if a continuous
amplification increase/decrease of Walden was used within the
context of Tracey, the segments of Tracey would necessarily
become so small as to avoid improper amplification (avoid
signals above a max and below a min within a time interval)
that Tracey would operate in a substantially continuous mode.
This is precisely the type of problem solved by the claimed
invention.
Appeal Br. 14.
The above arguments are unpersuasive because they are not directed
to the Examiner’s proposed combination, which does not include “a
continuous amplification increase/decrease of Walden” (Appeal Br. 14). See
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (the test for obviousness is not
whether a secondary reference’s features can be bodily incorporated into the
structure of the primary reference).
Second, Appellant advances attorney arguments about various
features of Walden and argues such features are “[i]n contrast to the
claimed invention.” Appeal Br. 14. Appellant’s attorney arguments
are unpersuasive, because Appellant does not provide sufficient
objective evidence to show Walden indeed includes such features.
See Geisler, 116 F.3d at 1470; Meitzner, 549 F.2d at 782. In any
Appeal 2019-000004
Application 14/633,232

7
event, Appellant’s arguments are unpersuasive because they are not
directed to the Examiner’s proposed combination, which does not
include the various features argued by Appellant. See Keller, 642
F.2d at 425.
III
Appellant contends:
Tracey does NOT disclose or suggest at least the
following limitations of claim 1:
. . . whether the buffered audio signal has volume peaks
exceeding the maximum threshold volume and has . . .;
calculating a volume adjustment for the buffered audio
signal using a predefined algorithm for modifying a volume
corresponding to the buffered audio signal, so that by applying
the calculated volume adjustment, the volume corresponding to
the buffered audio signal including determined volume peaks
exceeding the maximum threshold volume being attenuated to a
level below the maximum threshold volume during the
predefined time interval, and the volume corresponding to the
buffered audio signal including determined volume valleys
below the minimum threshold volume level being amplified to
a level above the minimum threshold volume during the
predefined time interval;
Appeal Br. 9 (original emphases omitted).
We disagree. The above limitations include the term “minimum
threshold volume,” which we already discussed in Section I above: because
Walden teaches the claimed “minimum threshold volume,” Tracey does not
need to teach that claim term again. To the extent Appellant is arguing the
remaining limitations (other than the claimed “minimum threshold volume”)
separately, Appellant’s general arguments are insufficient to show Examiner
error. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely points
out what a claim recites will not be considered an argument for separate
Appeal 2019-000004
Application 14/633,232

8
patentability of the claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011) (holding that “the Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art”).

Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of independent claim 1.
For similar reasons, we sustain the Examiner’s rejection of claims 2–8
and 13–20, because Appellant does not advance separate substantive
arguments regarding those claims. See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
We affirm the Examiner’s decision rejecting claims 1–8 and 13–20
under 35 U.S.C. § 103.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § References Affirmed Reversed
1–8, 13–20 103 Tracey,
Walden
1–8, 13–
20

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).

AFFIRMED