Ex Parte Faller

Patent Trial and Appeal Board

Nov 5, 2012

11403530 (P.T.A.B. Nov. 5, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/403,530 04/13/2006 Christof Faller Faller 23 8812
47386 7590 11/06/2012
RYAN, MASON & LEWIS, LLP
1300 POST ROAD
SUITE 205
FAIRFIELD, CT 06824
EXAMINER
CHAWAN, VIJAY B
ART UNIT PAPER NUMBER
2658
MAIL DATE DELIVERY MODE
11/06/2012 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 CHRISTOF FALLER
____________________

Appeal 2010-003811
Application 11/403,530
Technology Center 2600
____________________

Before DEBRA K. STEPHENS, JUSTIN BUSCH, and
LYNNE E. PETTIGREW, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL
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Application 11/403,530

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Appellant appeals under 35 U.S.C. § 134(a) (2002) from a final
rejection of claims 1-23. We have jurisdiction under 35 U.S.C. § 6(b).

We REVERSE.
Introduction
According to Appellant, the invention relates to buffer control
techniques for digital audio broadcasting (DAB) and other types of digital
communication systems. (Spec. 1, §Field of the Invention).

STATEMENT OF THE CASE

Exemplary Claims
Claims 1 and 17 are exemplary claims and are reproduced below:
1. In a communication system, a method for controlling a buffer
level, said method comprising the steps of:

partitioning a signal into a sequence of successive
frames;

estimating a distortion rate for a plurality of said frames;
and

selecting a distortion by a buffer control element such
that said distortion is minimized and such that a variance of said
buffer level is bounded by a specified value.

17. A communication system, comprising:

a buffer control element for determining a distortion
DRd[k] such that an estimated average bitrate R[k] is equal to a
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desired bitrate Rd, wherein said average bitrate R[k] is estimated
locally in time for a plurality of frames; and
an encoder for encoding each of said frames with
said distortion DRd[k] based on a perceptual model.

References
Smyth US 5,956,674 Sep. 21, 1999

Rejections
(1) Claims 1-23 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter.
(2) Claims 1-23 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Smyth.

GROUPING OF CLAIMS

Based upon Appellant’s arguments, we select representative claim 1
to decide this appeal under 35 U.S.C. § 101 for the group consisting of
claims 1-23. (See App. Br. 5-6).
Based upon Appellant’s arguments, we address claims 1-23 as a group
to decide this appeal under 35 U.S.C. § 102(b).

ISSUE 1
35 U.S.C. § 101: claims 1-23

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Appellant contends the claimed methods or system of claims 1 and 14
describe controlling a buffer level and transforming a signal to a selected
distortion (App. Br. 5; Reply Br. 2-3). Thus, according to Appellant, the
transformation provides a useful, concrete, and tangible result (id.).
Similarly, with respect to claims 6, 12, 17, and 22, Appellant argues the
claimed methods or system describe a transformation (App. Br. 6; Reply Br.
3).
Issue 1: Has the Examiner erred in concluding the invention as
recited is directed to non-statutory subject matter?

ANALYSIS
Based on our review, we conclude the claims are directed to statutory
subject matter. With respect to the method claims 1, 6, and 12, we
determine the recited invention is not abstract. For example, claim 1 recites
partitioning a signal into frames - smaller portions - upon which an analysis
is performed. With respect to system claims 17 and 22, we also conclude
the recited invention is directed to statutory subject matter. Again, we
conclude the claim does not recite an abstract idea.
Accordingly, the Examiner erred in rejecting claims 1-23 under
35 U.S.C. § 101 as being directed to non-statutory subject matter.

ISSUE 2
35 U.S.C. § 102(b): claims 1- 23
Appellant argues the invention is not anticipated by Smyth (App. Br.
6). Specifically, “Smyth teaches ‘the window size is selected as a function
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of the ratio of the transmission rate to the encoder sampling rate so that the
size of the output frame is constrained to lie in a desired range’” (App. Br.
8 (emphasis in original)). However, according to Appellant, Smyth does not
disclose or suggest selecting a distortion (id.).

Issue 2: Has the Examiner erred in finding Smyth discloses the
invention as recited in claims 1-23?

ANALYSIS
We conclude that the rejection of claims 1-23 lacks the requisite
specificity needed for the establishment of a prima facie case of anticipation.
The Examiner bears the initial burden of presenting a prima facie case of
unpatentability (In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). A
prima facie case is established when the party with the burden of proof
points to evidence that is sufficient, if uncontroverted, to entitle it to prevail
as a matter of law. See Saab Cars USA, Inc. v. United States, 434 F.3d 1359,
1369 (Fed. Cir. 2006). Here, that burden has not been met in a manner
enabling proper review. For us to sustain the Examiner’s rejection, we
would need to resort to impermissible speculation or unfounded assumptions
or rationales to cure the deficiencies in the factual bases of the rejection
before us. In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Accordingly,
the Examiner has not shown Smyth anticipates the rejection as recited in
claims 1- 23. Therefore, the Examiner erred in rejecting claims 1-23 under
35 U.S.C. § 102(b) for anticipation by Smyth.

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DECISION
The Examiner’s rejection of claims 1-23 under 35 U.S.C. § 101 as
being directed to non-statutory matter is reversed.
The Examiner’s rejection of claims 1-23 under 35 U.S.C. § 102(b) as
being anticipated by Smyth is reversed.

REVERSED

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