Ex Parte Hiipakka et al

Patent Trial and Appeal Board

Dec 18, 2012

11321796 (P.T.A.B. Dec. 18, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JARMO HIIPAKKA, SEPPO INGALSUO,
and PEKKA WALLIUS
____________

Appeal 2009-013782
Application 11/321,796
Technology Center 2100
____________

Before JOHN A. JEFFERY, JENNIFER L. McKEOWN,
and JAMES B. ARPIN, Administrative Patent Judges.

ARPIN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-28. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm-in-part.

STATEMENT OF THE CASE
Appellants’ invention is directed to a media subsystem of a processing
element which includes a plurality of elements and a latency manager. See
generally Abstract; Spec. 8:18–9:3. The plurality of elements are capable of
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processing media data, including a plurality of instances, wherein a first
element inserts a length of media data into a buffer from which a second
element reads the length of media data for subsequent output from the media
subsystem. Abstract; Spec. 8:18–9:3. The latency manager is capable of
determining a latency requirement of the media subsystem, and then
dynamically tuning the length of media data inserted into the buffer based
upon the latency requirement. Abstract; Spec. 8:18–9:3. Claim 1 is
reproduced below with disputed limitations emphasized:
1. A media subsystem operable with an apparatus, the media
subsystem comprising:
a processor configured to function as a plurality of elements
configured to process media data including a plurality of instances
wherein a first element is configured to insert a length of media
data into at least one buffer from which a second element is
configured to thereafter read the length of media data for
subsequent output from the media subsystem, at least some of the
instances being initiated by the second element waking up the first
element from a reduced- power sleep state,
wherein the processor is also configured to function as a
latency manager configured to determine a latency requirement of
the media subsystem, the latency comprising a delay between user
interaction with the apparatus and a corresponding change in the
output from the media subsystem,
wherein the latency manager is configured to dynamically tune
the length of media data inserted into the at least one buffer based
upon the latency requirement, being configured to tune the length
of media data including being configured to increase or decrease
the length of media data inserted into the at least one buffer during
at least one instance, and
wherein the latency manager is configured to determine the
latency requirement and tune the length of media data as the
plurality of elements process the media data.

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THE REJECTIONS
1. The Examiner rejected claims 1, 3, 5-8, 10, 12-15, 17, 19-22, 24,
and 26-28 under 35 U.S.C. § 103(a) as unpatentable over Applicants’
Admitted Prior Art (AAPA) and Van Gassel (US 2007/0204124 A1;
published Aug. 30, 2007; filed Nov. 22, 2004). Ans. 3-7.1
2. The Examiner rejected claims 2, 4, 9, 11, 16, 18, 23, and 25 under
35 U.S.C. § 103(a) as unpatentable over AAPA, Van Gassel, and
Dharmarajan (US 6,374,148 B1; issued Apr. 16, 2002).2 Id. at 8-10.

OBVIOUSNESS REJECTION OVER AAPA AND VAN GASSEL
The Examiner finds that AAPA teaches or suggests all of the
limitations of representative claim 1, except for (1) the processor also
configured to function as a latency manager configured to determine a
latency requirement, (2) the latency manager configured to dynamically tune
the length of media data, and (3) the latency manager configured to
determine the latency requirement and tune the length of media data while
the plurality of elements process the media data. Ans. 3-4. The Examiner
finds, however, that Van Gassel teaches or suggests each of these missing
limitations, and that a person of ordinary skill in the relevant art would have
an apparent reason to combine these references, in concluding that claim 1
would have been obvious. Id. at 4-5. Further, the Examiner finds that

1 Throughout this opinion, we refer to (1) the Appeal Brief (Br.) filed
October 31, 2008; and (2) the Examiner’s Answer (Ans.) mailed March 18,
2009.
2 The Examiner also rejected claims 1-14 under 35 U.S.C. § 101 as allegedly
directed to non-statutory subject matter. Final Rej. 4-5. The Examiner
withdrew this rejection. Ans. 2.
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independent claims 8, 15, and 22 have limitations corresponding to those of
claim 1 and fall with claim 1. Id. at 3-5. Moreover, the Examiner finds that
claims 2-7, 9-14, 16-21, and 23-28, each of which depends from one of
claims 1, 8, 15, or 22, are rendered obvious by AAPA and Van Gassel, alone
or in combination with Dharmarajan. Id. at 5-10.
With respect to claim 1, Appellants argue that AAPA and Van Gassel
do not teach or suggest a latency manager configured (1) to determine a
latency requirement, and (2) to dynamically tune the length of the media
data inserted into media buffers based on the latency requirement. Br. 9-11.
Moreover, Appellants argue that there is no apparent reason to combine
AAPA and Van Gassel to achieve the claimed invention. Id. at 11-14.
Similarly, Appellants argue that this combination of references does not
teach or suggest the additional limitations of claims 5, 12, 19, and 26. Id. at
14-15. With respect to claims 6, 13, 20, and 27, Appellants make the same
arguments presented with respect to claim 5, but also argue that Van Gassel
teaches the summing of bit rates of multiple data streams, rather than the
selection of the lowest latency requirement, as required by claims 6, 13, 20,
and 27. Id. at 15-16. Finally, with respect to claims 7, 14, 21, and 28,
Appellants again make the same arguments presented with respect to claim
1, but also argue that Van Gassel fails to teach or suggest determining a
latency requirement for a first element based on an event reflective of the
latency requirement. Id. at 16.

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ISSUES
(1) Under § 103, has the Examiner erred in rejecting claim 1 by finding
that AAPA and Van Gassel, collectively, would have taught or
suggested the disputed limitations?
(2) Is the Examiner’s reason to combine the teachings of AAPA and Van
Gassel supported by articulated reasoning with some rational
underpinning to justify the obviousness conclusion?
(3) Under § 103, has the Examiner erred by finding that AAPA and Van
Gassel, collectively, would have taught or suggested:
(a) that “the latency manager is configured to determine a latency
requirement of the apparatus based upon a latency requirement of
the first element,” as recited in claim 5?
(b) that “the latency manager is configured to set the latency
requirement of the subsystem equal to the lowest latency
requirement of the first elements,” as recited in claim 6?
(c) that “the latency manager is configured to determine a latency
requirement of the apparatus based upon an event reflective of the
latency requirement,” as recited in claim 7?

ANALYSIS
1. Claims 1, 3, 8, 10, 15, 17, 22, and 24.
a. Claim Construction.
We begin our analysis by construing the disputed limitations of claim
1 which recites, in pertinent part, that
the processor is also configured to function as a latency
manager configured to determine a latency requirement of the
media subsystem, the latency comprising a delay between user
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interaction with the apparatus and a corresponding change in
the output from the media subsystem,
wherein the latency manager is configured to
dynamically tune the length of media data inserted into the at
least one buffer based upon the latency requirement, being
configured to tune the length of media data including being
configured to increase or decrease the length of media data
inserted into the at least one buffer during at least one instance,
and
wherein the latency manager is configured to determine
the latency requirement and tune the length of media data as the
plurality of elements process the media data.
In construing this limitation, we apply the broadest reasonable meaning of
the words in their ordinary usage, as those words would be understood by
one of ordinary skill in the art, taking into account any definitions supplied
by Appellants’ Specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997).
Referring to Figure 3, Appellants describe a latency manager as
performing two functions. First, the latency manager, such as latency
manager 44, determines the latency requirement of the media subsystem.
Br. 2; see also Fig. 3. Second, the latency manager dynamically tunes the
length of media data inserted into at least one buffer, such as media buffers
36a, 36b, 42.3 Br. 2-3 (citing Spec. 11:14-12:9); see also Fig. 3.
The “latency requirement” (emphasis added) is not defined expressly
in the Specification. Nevertheless, latency is defined in the claim as
“comprising a delay between user interaction with the apparatus and a
corresponding change in the output from the media subsystem.” The

3 Appellants explain that the “length” of buffered data may be a measure of
the amount of data buffered or a temporal measure. See Spec. 2:15-17.
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“apparatus” may be either a media source, such as a video capture device,
e.g., a camcorder (see Spec. 11:24-27) or a playback device, e.g., speakers
25 or display 26 (see Fig. 2).
Appellants describe that the latency manager may determine the
subsystem’s latency requirement in at least the following manners. First, the
latency manager may determine the latency requirement based upon an
event reflective of the latency requirement.4 Spec. 4:22-24. An event
reflecting of the latency requirement may include user-interaction events
and/or higher-level events. Id. at 14:5-11. User-interaction events may
include the activation of a user input interface lock indicating that lower
latency in not required. Id. at ll. 11-14. Higher-level events may include a
selectable operating mode for media playback or manually and/or
automatically-initiated power save modes. Id. at ll. 14-22. Both types of
events may be associated with the absolute and/or relative lengths of data.
Id. at ll. 22-23. Second, the latency manager may determine the latency
requirement based upon the latency requirement of the first element, e.g.,
applications 32a, 32b of Figure 3. Id. at 4:24-31. For example, the latency
manager may set the latency requirement equal to the lowest latency
requirement of multiple first elements.5 Id. at 4:31–5:2. Thus, we construe
the latency requirement as a latency associated with the absolute and/or
relative lengths of data and determined at least in either of these manners.
The latency manager may determine the latency requirement of the
first element, e.g., applications 32a, 32b, either explicitly or implicitly. For

4 This manner of determining the latency requirement is recited in claims 7,
14, 21, and 28.
5 This example of determining the latency requirement is recited in claims 6,
13, 20, and 27.
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example, an explicitly-determined latency requirement may be an absolute
length of data, such as 5 milliseconds, or a relative length of data, such as a
percentage of the buffer capacity, for insertion into a buffer per wake-up
instance. Spec. 13:5-9. The latency manager may implicitly determine the
latency requirement based on the buffering parameters for the first element,
such as the length of media data written by a first element to its buffer before
entering the sleep state to determine a maximum latency the subsystem can
tolerate. Id. at ll. 9-14.
Claim 1 recites that the latency manager is “configured to tune the
length of media data including being configured to increase or decrease the
length of media data inserted into the at least one buffer during at least one
instance.” See supra note 3 (definition of “length”). Appellants describe
that the latency manager may dynamically tune the length of media data
based on the subsystem’s latency requirement in at least one of the following
manners for reduced power consumption or reduced latency. Spec. 3:17-21.
First, the latency manager may tune the subsystem by changing the size of
one or more of the buffers of the first and/or second elements to insert more
or less data into their respective buffers. Id. at 11:18-20. Second, the
latency manager may tune the subsystem by causing the first or second
elements to insert more or less data into their respective buffers. Id. at ll. 21-
23. Third, the latency manager may tune the subsystem by increasing or
decreasing the wake-up point of the first and/or the second element, thereby
altering the shut-down/wake-up cycle of the subsystem. Id. at ll. 23-27.
Regardless which of these manners may be used, the result is an increase or
decrease in the “length” of media data inserted to a buffer of the first or
second element based on the latency requirement. Id. at ll. 27-30. Thus, we
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construe the phrase “to dynamically tune the length of media data” to
include increasing or decreasing the amount or duration of media data
inserted to a buffer by any of these described manners.
b. Teaching or Suggesting Claim Limitations.
Appellants argue that AAPA and Van Gassel fail to teach or suggest a
latency manager configured to determine a latency requirement of the media
system. Br. 9. The definition of latency from claim 1 also is provided in the
Background of the Invention section of the Specification (Spec. 2:17-19) and
is identified by the Examiner as part of AAPA (Ans. 12). Although
Appellants acknowledge that AAPA teaches latency as that term is used in
claim 1, Appellants argue that Van Gassel does not teach or suggest the
latency manager of Appellants’ claim 1. Br. 9. In particular, Appellants
argue that, instead, Van Gassel teaches a system and method for reducing
power consumption of data storage devices, including a data buffer that is
sized as a function of the bit rate of media data streams, rather than a latency
requirement. Id. at 9-10.
Referring to Figure 3, however, the Examiner finds that Van Gassel’s
determination of the data stream bit rate (step 32) and of the optimal buffer
size (step 33) corresponds to Appellants’ latency manager’s determining the
latency requirement. Ans. 12. Van Gassel describes that latency is
associated with a standby mode (id. (citing Van Gassel, ¶ [0004])) and the
stream bit rate from high and low bit rate applications (id. (citing Van
Gassel, ¶¶ [0025]-[0028])). “[T]he period of time in standby mode in
combination with the bit-rate requirement of the data stream” determines the
latency requirement. Advisory Action 2; see also Ans. 4-5, 14-15.
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Appellants argue that Van Gassel’s bit rates do not correspond to a
“requirement” or to a required delay, such as the latency of AAPA or of
claim 1. Br. 10. Nevertheless, Van Gassel describes the bit rate as a
parameter of the application, e.g., 128 kbps for playing back music and 27
Mbps for a camcorder. Van Gassel, ¶ [0025]; see also Van Gassel, ¶ [0028]
(indicating that there may be a tabular or algorithmic relationship between
bit rate and buffer size). Thus, we find that the bit rate may be “required” by
Van Gassel’s application. Further, Van Gassel teaches that “the optimum
buffer size of the subsystem’s memory will vary over time with respect to
different applications using the subsystem.” Van Gassel, ¶ [0025]. Thus,
the Examiner finds that Van Gassel’s determining a stream bit rate and an
optimum buffer size is associated with its standby mode to determine the
amount of data stored in the buffer. Ans. 14-15. As noted above,
Appellants’ latency manager may implicitly determine the latency
requirement based on the buffering parameters for an application, such as
the length of media data written by the application to its buffer before
entering the sleep state to determine a maximum latency that the subsystem
can tolerate. Spec. 13:9-14. Therefore, we find no error in the Examiner’s
finding that Van Gassel teaches or suggests a processor configured to
function as a latency manager configured to determine the latency
requirement.
Referring again to Figure 3, Van Gassel describes that, once the
optimum buffer size is determined (step 33), the buffer size may be adjusted
to that optimum buffer size (step 34). Van Gassel, ¶ [0028]. Such an
adjustment to buffer size corresponds to dynamically tuning the length of the
media data inserted into at least one buffer, as recited in claim 1. Ans. 5, 13;
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see also Spec. 11:18-30. Moreover, Appellants acknowledge that, “to the
extent that Van Gassel changes the size of its buffer, one may also argue that
Van Gassel inherently changes the delay between user interaction and
corresponding change in the output (i.e., changes the latency).” Br. 10
(emphasis added). Appellants argue, however, that the latency manager of
claim 1 dynamically tunes the length of media data “based upon the latency
requirement,” but that Van Gassel teaches that bit rate is the basis for the
change in the buffer size. Id. Nevertheless, to the extent that bit rate in
combination with a period of time in a standby mode corresponds to the
latency requirement (Ans. 4-5, 15-16), we find no error in the Examiner’s
finding that Van Gassel teaches or suggests dynamically tuning the length of
buffered media data “based upon the latency requirement.”
c. Apparent Reason to Combine.
Appellants argue that the Examiner fails to demonstrate an apparent
reason for combining AAPA and Van Gassel to achieve the invention recited
in claim 1. Br. 11-12. First, Appellants argue that the proposed combination
of AAPA and Van Gassel would require (1) “incorporating Van Gassel’s
power saving method into AAPA” and (2) modification of Van Gassel’s
power saving method. Br. 12 (emphasis added). With respect to
Appellants’ argument regarding the incorporation of Van Gassel into AAPA,
we note that “[t]he test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the
primary reference . . . . Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981). For the reasons set forth above, we
find that the Examiner demonstrates that Van Gassel teaches or suggests the
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limitations of claim 1 that are missing from AAPA. Further, because Van
Gassel teaches or suggests that the period of time in standby mode in
combination with the bit rate requirement of the data stream determines the
latency requirement, and because Van Gassel uses values corresponding to
the latency requirement to dynamically tune its buffers to avoid excessive
power consumption (Spec. 3:17-21), we are not persuaded that the proposed
combination would change Van Gassel’s power saving method.
Appellants argue that the Examiner relies on mere conclusory
statements to support the combination of AAPA and Van Gassel. Br. 13.
We disagree. The Examiner explains why a person of ordinary skill in the
relevant art would have an apparent reason to modify the teachings of
AAPA in view of the teachings of Van Gassel to achieve the invention of
claim 1. Ans. 17-18. Further, we note that the power consumption
limitations recognized in AAPA (Spec. 2:24–3:9) and the power savings
solutions taught by Van Gassel (Van Gassel, ¶ [0028]) provide an apparent
reason for their combination. Ans. 4-5, 14-15. Thus, the Examiner’s
citation to KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007), is appropriate.
If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and
a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his
or her skill.
KSR, 550 U.S. at 417. Therefore, we find that the Examiner’s reason to
combine the teachings of AAPA and Van Gassel is supported by articulated
reasoning with some rational underpinning to justify the obviousness
conclusion.
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We, therefore, do not find that the Examiner has erred in rejecting
independent claim 1, as well as independent claims 8, 15, and 22, which are
not argued separately. See Br. 13. We also do not find that the Examiner
has erred in rejecting claims 3, 10, 17, and 24, which respectively depend
from independent claims 1, 8, 15, and 22, and which are not argued
separately.
2. Claims 5, 12, 19, and 26.
Claim 5 depends from independent claim 1 via intervening claim 3.
Claim 5 recites that, in the media subsystem of claim 3, “the latency
manager is configured to determine a latency requirement of the apparatus
based upon a latency requirement of the first element.” Claims 12, 19, and
26 depend indirectly from claims 8, 15, and 22, respectively, and include
corresponding limitations. Although Appellants argue claims 5, 12, 19, and
26 separately, the arguments with respect to these claims are substantially
similar to those regarding AAPA and Van Gassel with respect to claim 1.
Br. 14. For the reasons set forth above, those arguments are not persuasive.
See Ans. 19. To the extent that Appellants repeat the additional limitation of
these claims and assert that the limitation is not taught or suggested by the
combined references, this assertion does not constitute an argument on the
merits, because “[a] statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim.”
37 C.F.R. § 41.37(c)(1)(vii). We, therefore, do not find that the Examiner
erred in rejecting claims 5, 12, 19, and 26.
3. Claims 6, 13, 20, and 27.
Claim 6 depends from independent claim 1 via intervening claims 3
and 5. Claim 6 recites that, in the media subsystem of claims 3 and 5, “the
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latency manager is configured to set the latency requirement of the
subsystem equal to the lowest latency requirement of the first elements.”
(Emphasis added.) Claims 13, 20, and 27 depend indirectly from claims 8,
15, and 22, respectively, and include corresponding limitations. According
to Van Gassel, “[i]n the case of multiple simultaneous streams, the sum of
the bit-rates of all of the streams is regarded.” Van Gassel, ¶ [0026]
(emphasis added). The Examiner contends that Van Gassel teaches or
suggests adjusting the size of the buffer to the lowest latency requirement for
the plural first elements. Ans. 20. Nevertheless, the Examiner fails to
demonstrate that the latency requirement associated with the sum of the bit-
rates of multiple data streams teaches or suggests a latency requirement
“equal to the lowest latency requirement of the first elements,” as recited in
claim 6 (emphasis added). Br. 16. We, therefore, find that the Examiner
erred in rejecting claims 6, 13, 20, and 27.
4. Claim 7, 14, 21, and 28.
Claim 7 depends from independent claim 1 and recites that, in the
media subsystem of claim 1, “the latency manager is configured to
determine a latency requirement of the apparatus based upon an event
reflective of the latency requirement.” (Emphasis added.) Claims 14, 21,
and 28 depend directly from claims 8, 15, and 22, respectively, and include
corresponding limitations. Although Appellants argue claims 7, 14, 21, and
28 separately, the arguments with respect to these claims are substantially
similar to those regarding AAPA and Van Gassel with respect to claim 1.
Br. 16. For the reasons set forth above, those arguments are not persuasive.
See Ans. 20.
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Van Gassel teaches that, upon receipt of a request for transferring data
from application 41, a scheduler 42 starts a new data stream and
“recalculates the optimum buffer size for that particular configuration of the
stream.” Van Gassel, ¶ [0031]. The Examiner finds that this request for
transferring data is “an event reflective of the latency requirement.” Ans. 7,
21; see also Spec. 14:14-22 (describing a selective operating mode for media
playback as a reflective event). Because the Examiner finds that, in Van
Gassel, this event results in the adjustment of the buffer size, the Examiner
also finds that a new latency requirement is determined based on the stream
bit rate associated with the new data stream. Ans. 7, 21. We, therefore, do
not find that the Examiner erred in rejecting claims 7, 14, 21, and 28.
For the reasons set forth above, we sustain the obviousness rejection
of independent claim 1. Further, we sustain the obviousness rejection of
independent claims 8, 15, and 22 and of dependent claims 3, 5, 7, 10, 12, 14,
17, 19, 21, 24, 26, and 28. Nevertheless, for the reasons set forth above, we
do not sustain the obviousness rejection of claims 6, 13, 20, and 27.

OBVIOUSNESS REJECTION OVER AAPA, VAN GASSEL,
AND DHARMARAJAN
We also sustain the Examiner’s obviousness rejection of claims 2, 4,
9, 11, 16, 18, 23, and 25 over AAPA, Van Gassel, and Dharmarajan.
Although Appellants argue these claims separately, Appellants merely rely
on the same arguments alleging deficiencies in AAPA and Van Gassel in
connection with the obviousness rejection of independent claims 1, 8, 15,
and 22, from which these claims depend. Br. 17. For the reasons discussed
above, we are not persuaded by these arguments. Therefore, we sustain this
rejection.
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CONCLUSION
The Examiner did not err in rejecting claims 1-5, 7-12, 14-19, 21-26,
and 28 under § 103. The Examiner, however, erred in rejecting claims 6, 13,
20, and 27 under § 103.

DECISION
Accordingly, we affirm the Examiner’s rejection of claims 1-5, 7-12,
14-19, 21-26, and 28 and reverse the Examiner’s rejection of claims 6, 13,
20, and 27.
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).

AFFIRMED-IN-PART

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