Ex Parte Ayzenberg

Patent Trial and Appeal Board

Aug 31, 2017

13315251 (P.T.A.B. Aug. 31, 2017)

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.
13/315,251 12/08/2011 Oscar Ayzenberg 155843 3192
111523 7590 09/05/2017
The Marbury Law Group/Qualcomm
11800 Sunrise Valley Drive, 15th Floor
Reston, VA 20191
EXAMINER
YEH, EUENG NAN
ART UNIT PAPER NUMBER
2669
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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):
ptonoticesqc @marburylaw.com
ocpat_uspto@qualcomm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OSCAR AYZENBERG
Appeal 2015-005744
Application 13/315,251
Technology Center 2600
Before JUSTIN BUSCH, TERRENCE W. McMILLIN, and
CARL L. SILVERMAN, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1—25. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-005744
Application 13/315,251
CLAIMED SUBJECT MATTER
Claims 1 and 12 are independent claims. The claims relate generally
to enhancing video image quality and, more specifically, to sharpening a
video image by applying variable gain to DCT coefficients. Spec. 1:10-19.
In particular, the claims are directed to modifying a known shift averaging
technique to “shape at least some of the DCT coefficients (e.g., the non-DC
coefficients) using a variable gain or other shaping function to sharpen the
image without introducing additional blockiness.” Id. at 6:21—7:7. Claim 1
is reproduced below with the disputed limitation italicized:
1. A method of processing a digital image divided into a
plurality of blocks, comprising:
shifting a block of the digital image by x vertical
pixels and y horizontal pixels to produce a shifted digital
image block;
applying a discrete cosine transform (DCT) to the
shifted digital image block to produce a DCT coefficient;
applying a non-linear transform to the DCT
coefficient to produce a modified DCT coefficient, the
non-linear transform being configured to amplify the DCT
coefficient by a gain which varies as a function of a value
of a parameter of the DCT coefficient;
applying an inverse DCT to the modified DCT
coefficient to produce a modified shifted digital image
block;
shifting the modified shifted digital image block by
—x vertical pixels and —y horizontal pixels to produce a
realigned digital image block;
repeating the acts of shifting by x and y pixels,
applying the DCT, applying the non-linear transform,
applying the inverse DCT, and shifting by -x and -y pixels
for a plurality of different values of x and y to produce
additional realigned digital image blocks; and
combining the plurality of realigned digital image
blocks to produce a processed digital image.
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Application 13/315,251
REJECTIONS
Claims 1—22 stand rejected under 35 U.S.C. § 103(a) as unpatentable
in view of Applicant Admitted Prior Art (Spec. 7:22—8:8, Fig. 1 (“AAPA”))
and Kojokaro (US 2007/0025447 Al; July 28, 2007). Final Act. 7-16.
Claims 23—25 stand rejected under 35 U.S.C. § 103(a) as unpatentable
in view of AAPA, Kojokaro, and Kumwilaisak (US 2010/006912 Al; Mar.
18,2010). Non-Final Act. 16—18.
ANALYSIS
Appellant argues Kojokaro does not teach or suggest that the non­
linear transform (NLT) applied to a DCT coefficient of an image signal is
“configured to amplify the DCT coefficient by a gain which varies as a
function of a value of a parameter of the DCT coefficient” (the “disputed
limitation”), as recited in the claims. App. Br. 4—6; Reply Br. \—A.
Appellant also contends a person having ordinary skill in the art would not
have attempted the Examiner’s proposed combination. App. Br. 6—7; Reply
Br. 5—6. Lastly, Appellant asserts Figure 1 and page 7, line 22 through page
8, line 8 of his Specification are not admitted prior art. App. Br. 7—10;
Reply Br. 6—7. Appellant does not dispute that the material identified as
AAPA teaches or suggests the subject matter for which the Examiner relies
upon AAPA.1
Because the Examiner relies on AAPA as teaching or suggesting the
majority of the subject matter recited in the independent claims, see Final
Act. 7—9, 11—13, we address whether the identified portions of Appellant’s
Specification are properly treated as admitted prior art before addressing
1 Arguments Appellant did not make in the Briefs have not been considered
and are waived. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/315,251
Appellant’s arguments regarding Kojokaro’s teachings and whether an
ordinarily skilled artisan would have made the proposed combination.
Alleged Admitted Prior Art From Appellant’s Specification
Appellant contends subject matter identified as prior art, but that is the
work of the inventive entity, may not be considered prior art against the
claims. See App. Br. 8—9. We agree. However, the question before us is
whether the evidence indicates that the subject matter identified as admitted
prior art is the work of Appellant or that of another.
Appellant argues Figure 1 of Appellant’s Specification is not admitted
prior art and that there is no evidence to support such a finding. App. Br. 7;
Reply Br. 6—7. In particular, Appellant contends that the Specification’s
description of Figure 1 as a “conventional” technique distinguishes it from
the Specification’s description of Aria Nosratinia’s known technique
{Enhancement of JPEG-Compressed Images by Re-application of JPEG, 27
J. of VLSI Signal Proc. Sys. 69—79 (2001)) (hereinafter, “Nosratinia”).
App. Br. 7—8; See Spec. 6—8 (describing Nosratinia). Appellant argues the
Specification “contrasts the conventional technique with a ‘known’
technique as described in Nosratinia.” App. Br. 7 (citing Spec. 6).
Appellant asserts that, because the Specification describes Figure 1 as a
“conventional” technique that is “similar” to Nosratinia, the Specification
differentiates Figure 1 from the prior art disclosed by Nosratinia. App. Br.
8.
Appellant also asserts “the term ‘conventional’ is used [in the
Specification] merely to identify the subject matter of which the claimed
invention provides an improvement,” and the mere identification of subject
matter to be improved does not render that subject matter prior art. Id.
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Appellant further contends Ex parte Vineis, Appeal No. 2008-5873, 2009
WL 460702, at *5 (PTAB Feb. 24, 2009) supports his assertion that
describing subject matter as conventional in the Specification does not
render the subject matter admitted prior art. Id. at 9; Reply Br. 7.
The Examiner finds Appellant’s assertion that the use of the term
“conventional” merely indicates subject matter upon which the claimed
invention improves supports the Examiner’s finding that the “conventional”
subject matter is prior art. Ans. 7. The Examiner also finds the term
“conventional” means “conforming or adhering to accepted standards” or
“ordinary rather than different or original.'1'’ Id. (quoting an online
dictionary).
Appellant does not appear to contest that the subject matter the
Examiner designates as AAPA was known prior to Appellant’s claimed
invention. Rather, Appellant’s argument rests on his assertion that the
Examiner has failed to meet his burden and the following distinction: the
Specification’s reference to “known” subject matter identifies prior art
subject matter that is the work of another (in this instance Nosratinia), but
the Specification’s reference to “conventional” subject matter merely
identifies subject matter upon which the present invention improves, and
which may be the work of another. See App. Br. 7.
It may be possible for an applicant to identify subject matter as
conventional without serving as an admission that the subject matter is the
work of another. However, contrary to Appellant’s assertions, the context
and Appellant’s use of the term conventional in the Specification supports
the Examiner’s finding that Appellant’s subject matter described as
conventional is not the work of the inventor.
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Application 13/315,251
First, we note that Appellant’s reliance on Ex parte Vineis is
misplaced. In that case, the Board of Patent Appeals and Interferences (our
predecessor tribunal) found “the recited semiconductor substrate [was] not
admitted prior art” merely because Appellants relied “on techniques that are
‘traditionally’ used or ‘conventional’ in the course of forming their
substrate.” Vineis, 2009 WL 460702, at *5. Thus, the panel found the
recited substrate (with its particular features) was not admitted prior art. Id.
The panel did not find that the techniques themselves, which the
specification identified as traditionally used or conventional, were not
admitted prior art. Id.
Additionally, we disagree that the Specification’s reference to some
techniques as conventional (i.e., Figure 1) and others as known (i.e.,
Nosratinia) show Appellant intended to distinguish “known” techniques as
the work of another and “conventional” techniques as those upon which the
invention improves. Examples contradicting Appellant’s argument include
the Specification’s description of problems with “conventional up-scaling
techniques [that] produce artifacts” and a “conventional technique for
enhancing picture quality.” See Spec. 6:4—20. There is no indication that
the identified conventional up-scaling and enhancement techniques are
subject matter upon which Appellant’s claimed invention improves. Even
more persuasive evidence that Appellant’s alleged distinction is illusory is
the same paragraph describing the conventional enhancement technique
describes the same technique, in the same paragraph, as a “known
technique.” Spec. 6:9—20.
Furthermore, Appellant implicitly concedes Nosratinia is admitted
prior art by attempting to distinguish the disclosed known techniques of
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Application 13/315,251
Nosratinia from the conventional techniques discussed in the Specification.
See, e.g., App. Br. 7—8. However, similar to the enhancement technique
discussed above, Appellant’s Specification describes Nosratinia’s known
“shift-averaging technique,” and later describes an aspect of the invention as
improving upon “the shift averaging technique described above” by shaping
the DCT coefficients using variable gain or different shaping functions.
Spec. 6:21-7:7.
Finally, we agree with the Examiner that the Specification’s
description of Figure 1 as depicting a “technique similar to the one described
by Nosratinia” indicates Figure 1 is a representation of the work of
Nosratinia. We are not persuaded by Appellant’s assertion that the use of
the term “similar” repudiates an understanding that the technique depicted in
Figure 1 is the work of another, at least to the extent relied upon by the
Examiner as teaching the recited limitations in the claims. More
specifically, it is unclear how Appellant’s Figure 1 differs from Section 3
and Figures 3 and 5 of Nosratinia for purposes of what Figure 1 is relied
upon as teaching.
Appellant argues he has not made any statement identifying AAPA as
the work of another or as prior art. Id. at 7, 9; Reply Br. 7. Noticeably
missing, however, is an assertion that the subject matter of the AAPA is
Appellant’s work. Rather, Appellant carefully crafts his argument and
asserts there is no need to proffer evidence that the AAPA is Appellant’s
own work, arguing that the Examiner has not demonstrated that Figure 1 is
the work of another. See App. Br. 9.
However, as discussed, the evidence we do have before us supports
the Examiner’s findings. In addition, we note Appellant’s failure to assert,
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let alone support, that the AAPA is his own work and not that of another
given Appellant’s unique position to provide evidence clarifying whether the
subject matter identified as AAPA is his own work or that of another. On
this record, for the reasons discussed above, we find the preponderance of
the evidence indicates that Figure 1 depicts subject matter of another, and
that the Examiner properly characterized the AAPA from Appellant’s
Specification as admitted prior art.
Kojokaro’s Disclosures and The Proposed Combination
The Examiner explains that the difference between Appellant’s claims
and AAPA is merely the particular amplification of the NLT—i.e., that the
gain by which the DCT coefficients are multiplied is “a function of a value
of a parameter of the DCT coefficients.” Final Act. 9. The Examiner relies
on Kojokaro to teach the disputed limitation. Id. at 9—10 (finding Kojokaro
teaches or suggests a filter for an NLT matrix whose value “varies as a
function of the value of the magnitude parameter of the DCT coefficient in
order to subdue data noise”). The Examiner further explains that Kojokaro
discloses “[fjurther computations such as amplifying or subduing certain
values of the DCT coefficients matrix may also be accomplished by using
other real numbers to change the values of a DCT coefficients matrix.” Ans.
4 (quoting Kojokaro 1122). The Examiner finds this disclosure of Kojokaro
teaches or suggests the gain “varies in order to amplify or subdue certain
values of the DCT (i.e., function to DCT coefficients).” Id. (emphasis
added). The Examiner finds a person of ordinary skill in the art would have
modified AAPA with the identified known technique in Kojokaro “to reduce
data noise and enhance data quality,” which is a combination of known
techniques yielding a predictable result. Id. at 11.
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Application 13/315,251
Appellant argues Kojokaro discloses the amount of filtering is based
on the motion vector between a macroblock and a matching reference
macroblock and the variance of the computed residual signal such that
Kojokaro’s gain is not a function of the value of the DCT coefficient, as
claimed. App. Br. 4—5; Reply Br. 3^4. Appellant also argues an ordinarily
skilled artisan would not have made the proposed combination because the
processing described in Appellant’s Figure 1 is applied to a decoded video
signal, whereas Kojokaro relates to encoding a source video input to reduce
noise during compression. App. Br. 6; Reply Br. 5. Appellant further
argues an ordinarily skilled artisan would not have made the proposed
combination because Kojokaro filters DCT coefficients of a residual signal
as opposed to the macroblocks themselves, and because Kojokaro could not
be implemented in the technique described in Appellant’s Figure 1, which
does not use motion vectors. App. Br. 6—7; Reply Br. 5—6.
To the extent Appellant argues Kojokaro only filters DCT coefficients
of a residual signal and not to the macroblocks themselves, we disagree. In
particular, Kojokaro explicitly discloses that “[i]n some embodiments, the
residual signal is the data which is filtered whereas in other embodiments the
actual DCT coefficients may be filtered.” Kojokaro 1101.
Appellant’s argument that a person having ordinary skill in the art
would not have combined Kojokaro with AAPA because Kojokaro relates to
encoding a source video input to reduce noise during compression is
similarly unpersuasive. Kojokaro explicitly states that “although the
invention will be disclosed and described in terms of identifying, qualifying
and selectively filtering noise from images of a video stream using varying
filter strengths, the invention is not limited to this field.” Kojokaro 139.
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More particularly, Kojokaro explains that the noise filter, which the
Examiner relies on for teaching the disputed limitation, “can be substituted
in other stages of the encoding or decoding process [or] used alone or in any
other combination to perform different functions.” Id.\Yll. Moreover,
although Kojokaro describes using its techniques for video compression,
Kojokaro explicitly discloses that it is not limited to such applications. Id. |
134.
Although we agree with Appellant that certain portions of Kojokaro
discuss determining filter values being based on the motion vector and the
variance, Kojokaro does not preclude other factors from influencing the
filtering matrix values. Kojokaro ^fl[ 111, 122, 132. Moreover, Kojokaro
does not require use of a motion vector to calculate its filter matrices. At
least one example described by Kojokaro relates to “I pictures,” which have
no motion vector associated with them. Id. H 91, 95 (“For I pictures, there
are no motion vectors and no reference pictures, so the prediction is forced
to zero.”). Accordingly, Appellant’s argument that Kojokaro could not be
implemented in the system of Appellant’s Figure 1 without motion vectors is
also unpersuasive.
Finally, we are also unpersuaded by Appellant’s argument that
Kojokaro does not teach or suggest the disputed limitation because its filter
is based on the motion vector and the variance of the residual signal. As
already discussed, Kojokaro’s filter matrix values may be based on factors
other than or in addition to the motion vector and the variance. In particular,
we agree with the Examiner’s finding that Kojokaro discloses other
embodiments that may use any real number “instead of ones and zeros for
the desired level of filtering,” and that “computations such as amplifying or
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subduing certain values of the DCT coefficients matrix may also be
accomplished by using other real numbers to change the values of a DCT
coefficient matrix.” Kojokaro |122. Appellant has not responded to the
Examiner’s findings regarding that portion of Kojokaro and, accordingly,
has not explained sufficiently why Kojokaro’s disclosure of amplifying
certain values of DCT coefficients does not teach or suggest varying the gain
as a function of the value of the DCT coefficients.
For the reasons discussed above, we are not persuaded the Examiner
erred in rejecting independent claims 1 and 12. The Examiner finds the
combination of AAPA and Kojokaro teaches the additional limitations
recited in dependent claims 2—11 and 13—22, which ultimately depend from
claims 1 and 12, respectively. Final Act. 13—16. The Examiner finds the
combination of AAPA, Kojokaro, and Kumwilaisak teaches or suggests the
subject matter recited in dependent claims 23—25, each of which depends
from independent claim 12. Final Act. 16—18. Appellant does not present
separate substantive arguments for any of the dependent claims.
Accordingly, we are not persuaded the Examiner erred in rejecting
dependent claims 2—11 and 13—25 for the same reasons as discussed above.
DECISION
We affirm the Examiner’s decision to reject claims 1—25 under
35 U.S.C. § 103(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
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