Ex Parte Oestlund

Patent Trial and Appeal BoardOct 25, 2018

13970178 (P.T.A.B. Oct. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/970, 178 08/19/2013 93379 7590 10/29/2018 Setter Roche LLP 14694 Orchard Parkway Building A, Suite 200 Westminster, CO 80023 FIRST NAMED INVENTOR Nils Oestlund 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 648.0118 8939 EXAMINER MONIKANG, GEORGE C ART UNIT PAPER NUMBER 2651 NOTIFICATION DATE DELIVERY MODE 10/29/2018 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): sarah@setterroche.com pair_avaya@firsttofile.com uspto@setterroche.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NILS OESTLUND Appeal2018-003575 Application 13/970,178 1 Technology Center 2600 Before ST. JOHN COURTENAY III, LARRY J. HUME, and JOYCE CRAIG, Administrative Patent Judges. CRAIG, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. Â§ 134(a) from the Examiner's final rejection of claims 1-20, which are all of the claims pending in this application. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. 1 According to Appellant, the real party in interest is Avaya, Inc. App. Br. 2. Appeal2018-003575 Application 13/970, 178 INVENTION Appellant's application relates to capturing audio information via a plurality of audio capture device pairs, wherein each audio capture device pair comprises a first audio capture device and a second audio capture device. Spec. 3. Claim 1 is illustrative of the appealed subject matter and reads as follows ( emphasis added): 1. A method of operating a microphone selection system, compnsmg: capturing audio information via a plurality of audio capture device pairs, wherein each audio capture device pair comprises a first audio capture device and a second audio capture device that are unique to that audio capture device pair; based on the audio information, determining a difference in audio energy between audio captured by the first and second audio capture devices for each of the plurality of audio capture device pairs; and selecting an audio capture device pair of the plurality of audio capture device pairs having the largest difference in audio energy. REJECTIONS Claims 1, 2, 7, 8, 10-12, 17, 18, and 20 stand rejected under 35 U.S.C. Â§ I03(a) as obvious over the combination of Ishibashi et al. (US 2009/0052688 Al; published Feb. 26, 2009) ("Ishibashi") and Kosteva et al. (US 2011/0058683 Al; published Mar. 10, 2011) ("Kosteva"). Final Act. 3. Claims 3 and 13 stand rejected under 35 U.S.C. Â§ I03(a) as obvious over the combination of Ishibashi, Kosteva, and Togami et al. (US 2011/0082690 Al; published April 7, 2011) ("Togami"). Final Act. 6. Claims 4---6 and 14--16 stand rejected under 35 U.S.C. Â§ I03(a) as obvious over the combination of Ishibashi, Kosteva, and Kobayashi et al. 2 Appeal2018-003575 Application 13/970, 178 (US 2009/0323977 Al; published Dec. 31, 2009) ("Kobayashi"). Final Act. 7. Claims 9 and 19 stand rejected under 35 U.S.C. Â§ I03(a) as obvious over the combination of Ishibashi, Kosteva, and Tsuji et al. (US 2003/0059061 Al; published Mar. 27, 2003) ("Tsuji"). Final Act. 8. ANALYSIS We have reviewed the rejections of claims 1-20 in light of Appellant's arguments that the Examiner erred. We have considered in this decision only those arguments Appellant actually raised in the Briefs. Any other arguments Appellant could have made, but chose not to make, in the Briefs are waived. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). Appellant's arguments are not persuasive of error. We agree with and adopt as our own the Examiner's findings of fact and legal conclusions as set forth in the Answer (Ans. 9-10) and in the Action from which this appeal was taken (Final Act. 3-9). We provide the following explanation for emphasis. In rejecting claim 1 as obvious over the combined teachings and suggestions of Ishibashi and Kosteva, the Examiner found Ishibashi teaches or suggests all the claim limitations except determining the difference in audio energy between the different pairs of audio capturing devices. Final Act. 3--4. The Examiner relied on Kosteva as teaching that limitation. Final Act. 4--5. Appellant contends the Examiner erred in mapping Ishibashi' s sound collecting areas to the claimed "audio capture devices" because Ishibashi' s microphones and sound collecting areas do not necessarily have a one-to- one correspondence. App. Br. 6. Appellant further argues Ishibashi's 3 Appeal2018-003575 Application 13/970, 178 selection of a pair of sound collecting areas is not based on the claimed selection requirement because all of Ishibashi' s microphones receive the sounds collected from each sound collecting area. Id. Appellant further argues that, because Ishibashi uses all microphones to capture sound from any given sound collecting area, no microphone would be unique to any microphone pair. App. Br. 7. We are not persuaded the Examiner erred. The Examiner found each of Ishibashi's sound collecting areas obtains the difference between microphones on the left and right sides of the microphone arrays. Ans. 9, citing Ishibashi, Fig. 3, MLI to MLN (left microphone array); MRI to MRN (right microphone array); ,r 92. The Examiner also found Ishibashi's obtaining the difference between respective microphones on the left and right sides of the microphone array for each sound collecting area teaches or suggests the disputed limitations "capturing audio information via a plurality of audio capture device pairs ... " and "selecting an audio capture device pair of the plurality of audio capture device pairs having the largest difference in audio energy." Ans. 9, citing Ishibashi, Fig. 3, claim 3, ,r,r 97, 101. We find the Examiner's claim interpretation is reasonable and consistent with Appellant's Specification, which describes an audio capture device as a microphone in an audio capture environment, i.e., a room. Spec. 1, 17, Fig. 4. Appellant's Specification also describes an audio capture system 100 as capturing audio within a room, describing in particular that multiple capture devices are positioned to capture audio from different areas in a room. Spec. 23. The goal "to better capture audio from different areas of the room," described in the Specification, describes Ishibashi' s sound collecting areas. Id. 4 Appeal2018-003575 Application 13/970, 178 We further conclude each audio capture device pair recited as being unique to that microphone pair in claim 1 limits such uniqueness merely to within any given microphone pair, not within an entire collection of microphones. In other words, the claim term "unique" merely limits a duplication of the same pair of microphones. This limitation is at least suggested in Ishibashi' s teachings cited by the Examiner in the record. We note Appellant's Specification does not even use the word "unique." Appellant also argues Kosteva does not determine the size of the audio energy difference for the same purpose and only selects an audio capture device pair having the largest difference in energy captured between the devices. App. Br. 7. We are not persuaded by Appellant's argument because Appellant argues the references separately. The test for obviousness is not whether the claimed invention is expressly taught in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. See In re Keller, 642 F.2d 413,425 (CCPA 1981). Here, the Examiner relied on Ishibashi' s signal level difference, taken between the pair of sound collecting areas, with the pair with the largest signal level difference being selected, as teaching the disputed "determining" limitation. Final Act. 4, citing Ishibashi, claim 3. The Examiner cited Kosteva for determining the energy between microphones and selecting the microphone with the largest energy. Final Act. 4. Appellant does not persuasively address the combined teachings of Ishibashi and Kosteva. Nor does Appellant persuasively rebut the Examiner's findings and explanations in the Answer. 5 Appeal2018-003575 Application 13/970, 178 Moreover, our reviewing court guides it is irrelevant that the prior art and the present invention may have different purposes. See Nat 'l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004) ("A finding that two inventions were designed to resolve different problems ... is insufficient to demonstrate that one invention teaches away from another."). It is sufficient that references suggest doing what Appellant did, although Appellant's particular purpose was different from that of the references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re Gershon, 372 F.2d 535, 539 (CCPA 1967)). Thus, in a prima facie case of obviousness, the reference need not recognize the same problem solved by the Appellant. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996); KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,419 (2007) ("[N]either the particular motivation nor the avowed purpose of the [Appellant] controls" when performing an obviousness analysis.). Accordingly, we sustain the Examiner'sÂ§ 103(a) rejection of independent claim 1, as well as the Examiner'sÂ§ 103(a) rejection of independent claim 11, which Appellant argues is patentable for similar reasons. App. Br. 8. We also sustain the Examiner's rejection of dependent claims 2, 7, 8, 10, 12, 17, 18 and 20, not argued substantively or separately with particularity. Id. at 8-9. We also sustain the Examiner's separate Â§ 103(a) rejection of claims 3 and 13, as Appellant does not present separate arguments. App. Br. 9. We also sustain the Examiner's separateÂ§ 103(a) rejection of claims 4---6 and 14--16, as Appellant does not present separate arguments. We also sustain the Examiner's separateÂ§ 103(a) rejection of claims 9 and 19, as Appellant does not present separate arguments. Arguments not made are waived. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). 6 Appeal2018-003575 Application 13/970, 178 DECISION We affirm the Examiner's decision rejecting claims 1-20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 7