Adobe Inc.

Patent Trials and Appeals Board

Nov 22, 2021

2020004549 (P.T.A.B. Nov. 22, 2021)

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.
14/639,919 03/05/2015 Sven Duwenhorst P5068-US 9763
108982 7590 11/22/2021
FIG. 1 Patents
116 W. Pacific Avenue
Suite 200
Spokane, WA 99201
EXAMINER
ELJAIEK, ALEXANDER L
ART UNIT PAPER NUMBER
2651
NOTIFICATION DATE DELIVERY MODE
11/22/2021 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):
Fig1Docket@fig1patents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SVEN DUWENHORST
____________

Appeal 2020-004549
Application 14/639,919
Technology Center 2600
____________

Before: JOHNNY A. KUMAR, JASON J. CHUNG, and
MICHAEL T. CYGAN, Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Adobe Inc. as the real party in
interest. Appeal Br. 2.
Appeal 2020-004549
Application 14/639,919
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THE INVENTION
Appellant’s claimed invention is directed to audio loudness
adjustment techniques. (Spec. ¶ 4).
Independent claims 1 and 11, reproduced below, are representative of
the subject matter on appeal:
1. In a digital audio environment to adjust primary and secondary
sound data originating as part of an audio signal by one or more
computing devices, a method comprising:
determining, by the one or more computing devices,
loudness measures of the audio signal, the loudness measures
indicating a sound intensity of portions of the audio signal;
identifying, by the one or more computing devices,
which of the portions correspond to the primary sound data of
the audio signal and which of the portions correspond to the
secondary sound data of the audio signal based, in part, on a
comparison of a noise floor estimate generated for each portion
to a loudness measure selected to represent the portion;
receiving, by the one or more computing devices, input
via one user interface element to set a target dynamic range
parameter that defines a desired difference between the
loudness measures of the primary and secondary sound data of
the audio signal respectively;
responsive to receiving the input, computing, by the one
or more computing devices, adjustments to the loudness
measures for at least one of the portions corresponding to each
of the primary and secondary sound data of the audio signal
based on the target dynamic range parameter;
and
generating, by the one or more computing devices, an
adjusted audio signal in which the primary and secondary sound
data substantially have the desired difference in the loudness
measures across the adjusted audio signal by applying the
computed adjustments to the audio signal; and
outputting, by the one or more computing devices, digital
audio content comprising the adjusted audio signal.

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11. A method, implemented by at least one computing device,
the method comprising:
feeding an audio signal into a delay line, the audio signal
having primary and secondary sound data that originate from
the audio signal;
identifying the primary sound data of the audio signal
and the secondary sound data of the audio signal based, in part,
on a comparison of a noise floor estimate generated for each
portion of the audio signal to a loudness measure selected to
represent the portion of the audio signal, the noise floor
estimate generated and the loudness measure selected using the
audio signal as delayed by the delay line;
generating a graphical user interface for display that
includes:
a first waveform representation configured to represent
an unadulterated version of the audio signal; and
a second waveform representation configured to
represent an adjusted version of the audio signal that is
adjustable in substantially real-time as input is received via one
or more user interface elements; and
after the primary and secondary sound data are identified
and responsive to receiving an input via one of the user
interface elements to change a target dynamic range parameter
which defines a desired difference in loudness between the
primary and secondary sound data respectively, updating the
second waveform representation in substantially real-time to
reflect adjustments to the loudness of each of the primary and
secondary sound data, the adjustments computed according to
the input to change the target dynamic range parameter; and
outputting digital audio content comprising the audio
signal having the adjustments applied to the audio signal.
Appeal Br. 26, 27, 29, and 30 (Claims App.).

REJECTIONS
The Examiner made the following rejections:
Claims 11–17 stand rejected under 35 U.S.C. § 112(b) or 35 U.S.C.
§ 112 (pre-AIA), second paragraph, as being indefinite.
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Claims 1 and 7–10 stand rejected under 35 U.S.C. § 102(a)(l) as being
anticipated by Eppolito (US 2013/0054251 A1, published Feb. 28, 2013)
(“Eppolito”).
Claims 2–4 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Eppolito in view of Skovenborg (US 9,565,508 B1, issued
Feb. 7, 2017) (“Skovenborg”).
Claims 5 and 6 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Eppolito in view of Ramirez (US 8,189,797 B1, issued
May 29, 2012) (“Ramirez”).
Claims 11–20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Ramirez in view of Eppolito, and further in view of
Skovenborg.
ANALYSIS
Rejection under 35 U.S.C. § 112 (b)
The Examiner rejects claims 11–17 as being indefinite on the
following basis:
The recited limitation “each portion of the audio signal” lacks
sufficient antecedent basis in the claim because it is not
particularly clear how each portion of the audio signal
distinguishes between primary and secondary sound data. For the
sake of argument, is the primary sound data that originates from
the audio signal distinct from the secondary sound data that
originates from the same in the time domain? One of ordinary
skill in the art could readily interpret the primary sound data and
the secondary sound data to be sound data at different temporal
locations within the audio signal. Or for the sake of argument, is
the primary sound data that originates from the audio signal
distinct from the secondary sound data that originates from the
same in the frequency domain? One of ordinary skill in the art
could equally interpret the primary sound data and the secondary
sound data to be sound data at different frequency bands within
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the audio signal. . . . . Since one of ordinary skill in the art cannot
adequately ascertain the metes and bounds of the limitation “each
portion of the audio signal” as it relates to the primary and
secondary sound data, Examiner believes that claim 11 should be
rejected for failing to distinctly define the subject matter to be
protected by a patent grant.
Ans. 18, 19.
Appellant disagrees:
Initially, Appellant submits that distinguishing between each
portion of the audio signal and primary and secondary sound data
of the audio signal is not pertinent to a determination regarding
whether antecedent basis is proper. Additionally, Appellant
maintains that there is proper antecedent basis in claim 11 for the
notion of each “portion” for the following reasons.
The term “portion” is first introduced in claim 11 in the
phrase “each portion of the audio signal,” and thus “portion”
properly is not immediately preceded by “the”. In terms of
antecedent basis, there is also no requirement that a claim recite
a multiple of a given term before referring to each instance of the
term. In the context of claim 11, for instance, there is no
requirement that claim 11 recite “portions” before reciting “each
portion.”
Reply Br. 3 (emphasis added).
At the outset, we note that “[i]ndefiniteness under 35 U.S.C. § 112 ¶ 2
is an issue of claim construction and a question of law.” Cordis Corp. v.
Boston Scientific Corp., 561 F.3d 1319, 1331 (Fed. Cir. 2009) (citing
Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1319 (Fed. Cir. 2008)).
Claim 11 recites, inter alia:
[I]dentifying the primary sound data of the audio signal and the
secondary sound data of the audio signal based, in part, on a
comparison of a noise floor estimate generated for each portion
of the audio signal to a loudness measure selected to represent
the portion of the audio signal

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Appeal Br. 29, (Claims App.).
Also, paragraph 17 of Appellant’s Specification discloses “[u]sing the
techniques described herein, portions of the audio recording are adjusted so
that the primary and secondary sound data have substantially the desired
difference in loudness. To achieve this result, some portions of the audio
recording are amplified (or attenuated) and some portions are leveled.”
Based on our interpretation of the above claimed limitation, we see no
language that is indefinite in Appellant’s independent claim 11 regarding the
“each portion” limitation. The Examiner faults claim 11 for its recitation of
“each” portion because no prior “portion” was recited in the claim. Final
Act. 3. However, if the scope of a claim would be reasonably ascertainable
by those skilled in the art, then the claim is not indefinite. Ex parte
Porter, 25 USPQ2d 1144, 1145 (Bd. Pat. App. & Inter. 1992) (“controlled
stream of fluid” provided reasonable antecedent basis for “the controlled
fluid”); see Bose Corp. v. JBL, Inc., 274 F.3d 1354, 1359, 61 USPQ2d 1216,
1218-19 (Fed. Cir 2001) (holding that recitation of “an ellipse” provided
antecedent basis for “an ellipse having a major diameter” because “[t]here
can be no dispute that mathematically an inherent characteristic of an ellipse
is a major diameter"). In claim 11, the Examiner has not provided findings
to show that one having ordinary skill in the art would not understand an
audio signal to be comprised of, or divisible into, portions.
Furthermore, although the Examiner has provided examples of
multiple interpretations of “each portion” allegedly falling within the scope
of the claim, the Examiner has not sufficiently explained how these
examples cause the scope to be not “reasonably ascertainable” rather than
merely broad. Mere “[b]readth is not indefiniteness.” SmithKline Beecham
Corp. v. Apotex Corp., 403 F.3d 1331, 1341 (Fed. Cir. 2005) (citing In re
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Gardner, 427 F.2d 786, 788 (CCPA 1970); see also In re Johnson, 558
F.2d 1008, 1016 n.17 (CCPA 1977); In re Miller, 441 F.2d 689, 693 (CCPA
1971); MPEP § 2173.04 (“Breadth Is Not Indefiniteness”). In this case, we
conclude that “each portion of the audio signal” has antecedence to “primary
and secondary sound data.” We note the Examiner has not considered the
aforementioned portions of the Specification (¶ 17) that provide context, as a
matter of claim construction. Nor has the Examiner fully developed the
record to apply a lower threshold of indefiniteness in accordance with the
broadest reasonable interpretation consistent with the Specification, as
applied during patent examination. See Ex parte Miyazaki, 89 USPQ2d
1207, 1212 (BPAI 2008) (precedential); Ex parte McAward, Appeal 2015-
006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential); see
also In re Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir. 2014). See infra,
n.3 (We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification.).
Accordingly, for essentially the same reasons argued by Appellant in
the Briefs, as further discussed above, we are constrained on this record to
reverse the Examiner’s rejection of claims 11–17, under 35 U.S.C. § 112(b).
Rejection under 35 U.S.C. § 102
ISSUE
The pivotal issue is whether the Examiner erred in finding that
Eppolito discloses the limitations of “receiving, by the one or more
computing devices, input via one user interface element to set a target
dynamic range parameter that defines a desired difference between the
loudness measures of the primary and secondary sound data of the audio
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signal respectively,” as recited in independent claim 1. See Appeal Br. 11–
16; Reply Br. 4–10 (disputed limitations emphasized).
We adopt the Examiner’s findings on pages 20–27 of the Answer, and
we add the following primarily for emphasis. We note that if Appellant
failed to present arguments on a particular rejection, we will not review
those uncontested aspects of the rejection unilaterally. See Ex parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (precedential); Hyatt v. Dudas, 551 F.3d
1307, 1313–14 (Fed. Cir. 2008) (The Board may treat arguments Appellant
failed to make for a given ground of rejection as waived.).
Appellant argues that Eppolito fails to anticipate Appellant’s claim 1
because
[r]ather than receiving input via a single user interface element-
such as via a single slider-Eppolito’s FIG. 1 demonstrates
receiving user input in relation to at least four separate elements.
. . . . In particular, Eppolito demonstrates receiving input via the
following four separate, illustrated elements of FIG. 1 to perform
an audio dynamic range compression operation: (1) audio
compression parameter detection UI item 155, (2) adjustment
handle 172, (3) adjustment handle 174, and (4) adjustment
handle 176. . . . Eppolito’s receipt of input contrasts with
receiving input via “one user interface element,” as claimed.
Appeal Br. 12, 13.
Appellant also contends that “Eppolito is simply missing a ‘target
dynamic range parameter’ as recited in claim 1.” (Appeal Br. 16).
We are not persuaded by Appellant’s arguments. The Examiner has
identified the relevant portions of Eppolito and has provided sufficient
explanation with corresponding citations to various parts of the reference for
disclosing the disputed limitations. Final Act. 3–5.
Regarding Appellant’s argument about “one user interface,” the
Examiner “reasonably interpreted the claim limitation of ‘one user interface
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element’ to cover a single slider bar, or a drop down that allows a user to
select a value, or a text field enabling a user to type in a value, and/or other
types of user interface elements that may be used to enable the user to adjust
the target dynamic range parameter.” Ans. 20.
As to Appellant’s contention about Eppolito’s “four separate
elements,” we agree with the Examiner that in Eppolito:
[N]ot all of said four separate elements are required to receive
user input in order to perform the audio dynamic range
compression operation. To be sure, Eppolito discloses that the
audio compression parameter detection UI item 155 causes the
media editing application to perform automatic detection of
audio compression settings on the audio content of a media clip.
Id. at [0044]. The selection of the audio compression parameter
detection UI item 155 may be received from a cursor controller,
from a touchscreen, or from a keyboard input. Id. Eppolito
elaborates that the noise gate, threshold, and ratio parameters as
determined by the automatic detection process can be further
adjusted by the user by using the three adjustment handles 172,
174, and 176. Id. at [0048]. Put another way, adjustment handles
172, 174, and 176 may receive user input after the audio
compression parameter detection UI item 155 received user input
to perform audio dynamic range compression operation(s).
Ans. 25 (emphasis added).
Regarding Appellant’s argument about “target dynamic range
parameter,” we agree with the Examiner that:
Eppolito’s uniformity specification parameter is germane, on the
other hand, as it determines the amount of dynamic range
compression that is to be applied to the audio content. Id. In
essence, Eppolito’s audio compression parameter generator 520
derives the set of audio compression parameters based on the
user specification 560 in order to perform the audio compression
setting detection as illustrated in FIGS. 5 and 6. Id. at [0058],
[0063], and [0064].
…
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The target range is defined according to user preference such as
by the user specification 560 or by the “Dynamic Range” field in
the conversion inspector window 130 of the GUI 100 of FIG. 1.
Id. Moreover, Eppolito discloses that the target range 1240 of
FIG. 12 specifies a range of output audio levels into which a
range of input audio levels is to be compressed by the audio
compressor. Id. at [0097]. In some embodiments, the target
range 1240 is based on an ideal preset. Id. Some embodiments
determine this ideal preset based on empirical results. Id. Some
embodiments also allow adjustment of this preset according to
user preference, whereby such user preference in these
embodiments can be specified by a user of a media editing
application. Id.
Eppolito’s uniformity specification parameter is
therefore fully compliant with “a target dynamic range
parameter that defines a difference between loudness
measures of primary and secondary sound data of an audio
signal,” as claimed.
Ans. 26, 27 (emphasis added).
“During examination, ‘claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.’” In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citation omitted); In re Morris,
127 F.3d 1048, 1053–54 (Fed. Cir. 1997). Where no explicit definition for a
term is given in the specification, the term should be given its ordinary
meaning and broadest reasonable interpretation. E-Pass Techs., Inc. v.
3Com Corp., 343 F.3d 1364, 1368 (Fed. Cir. 2003). The ordinary and
customary meaning of a claim term is the meaning that the term would have
to a person of ordinary skill in the art in question at the time of the invention.
Phillips v. AWH Corp., 415 F.3d 1303, 1319 (Fed. Cir. 2005) (en banc).
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Thus, the Examiner’s claim interpretations of “one user interface
elemen” and “target dynamic range parameter” do not exclude the
disclosure of Eppolito.
Further, we note that claim 1 recites “one user interface” rather than
“only one user interface.” Thus, even if there were inputs from more than 1
user interface element in Eppolito, Eppolito would disclose the “one user
interface” limitation.
We have considered Appellant’s Reply Brief but find it unpersuasive
in rebutting the Examiner’s responses.
Thus, we affirm the Examiner’s anticipation rejection of independent
claim 1, as well as the dependent claims 7–10 not separately argued. See
Appeal Br. 16.
The Examiner did not err in rejecting claims 1 and 7–10 under
35 U.S.C. § 102.
Rejections under 35 U.S.C. § 103
Appellant argues (Appeal Br. 16) the patentability of dependent
claims 2–6 based on the same reasons presented for claim 1, which were
found to be unpersuasive. As set forth above, Appellant has not persuaded
us the Examiner erred.
With respect to independent claims 11 and 18, Appellant repeats the
same arguments against Eppolito that were discussed with respect to
disputed limitations of claim 1. Appeal Br. 17–24. Appellant also asserts its
invention is not obvious over Ramirez, Eppolito, and Skovenborg because
Ramirez, and Skovenborg do not cure the deficiencies of Eppolito (id.).
Accordingly, we find these arguments unpersuasive for the reasons
discussed supra.
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Finally, Appellant argues (Appeal Br. 21, 24) the patentability of
dependent claims 12–17, and 19, 20 based on the same reasons presented for
claims 11 and 18, which were found to be unpersuasive.
Therefore, the Examiner did not err in rejecting claims 2–6, and 11–
20 under 35 U.S.C. § 103(a) for obviousness over various combinations of
Eppolito, Skovenborg. and Ramirez.

CONCLUSION

We affirm the Examiner’s decision to reject claims 1–20.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
11–17 112(b) Indefiniteness 11–17
1, 7–10 102 Eppolito 1, 7–10
2–4 103 Eppolito,
Skovenborg
2–4
5, 6 103 Eppolito, Ramirez 5, 6
11–20 103 Ramirez, Eppolito,
Skovenborg
11–20
Overall
Outcome
1–20

TIME PERIOD FOR RESPONSE
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) (2019).

AFFIRMED