Ex Parte Roberts et al

Patent Trial and Appeal BoardJun 17, 2014

10208189 (P.T.A.B. Jun. 17, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DALE T. ROBERTS, DAVID HYMAN, and STEPHEN WHITE ____________ Appeal 2011-010423 Application 10/208,189 Technology Center 2400 ____________ Before DENISE M. POTHIER, ERIC B. CHEN, and JEREMY J. CURCURI, Administrative Patent Judges. POTHIER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82. Claims 6, 17, 22-64, 67-69, 71, and 74-80 have been canceled. App. Br. 4. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Invention Appellants’ invention relates to identifying recordings. Information is extracted from an unknown recording. Extracted information includes the filename, if the recording is in a particular format, and if the recording is on Appeal 2011-010423 Application 10/208,189 2 a removable medium. Algorithmically determined fingerprints can also be extracted from the recording. The information extracted is compared with corresponding information in a database. Identification starts with available methods, including using a hash ID or a unique ID or text. Fingerprint matching is used to confirm other matches. See Abstract. Claim 1 is reproduced below with the key disputed limitations emphasized: 1. A method of identifying recording tracks, comprising: extracting information about an unknown recording track stored in media possessed by a user and at least one algorithmically determined, track-based fingerprint derived from at least one of audio or video information in at least one portion of the unknown recording track; determining a possible identification of the unknown recording track using at least one piece of the information extracted from the unknown recording track and an identification database of corresponding information for reference recordings; and identifying the unknown recording track when the possible identification based on each of the at least one piece of the information in combination with the at least one algorithmically determined, track-based fingerprint identifies a single reference recording with respective confidence levels. The Examiner relies on the following as evidence of unpatentability: Lau US 7,548,851 B1 June 16, 2009 (filed Oct. 11, 2000) Wells US 7,328,153 B2 Feb. 5, 2008 (July 22, 2002 and claiming priority to Provisional App. No. 60/306,911, filed July 20, 2001) Appeal 2011-010423 Application 10/208,189 3 The Rejections Claims 1-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82 are rejected under 35 U.S.C. § 112, ¶ 2, as being indefinite. Ans. 3-4. Claims 1-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82 are rejected under 35 U.S.C. § 102(e) as anticipated by Lau. Ans. 4-13. Claims 1-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82 are also rejected under 35 U.S.C. § 102(e) as anticipated by Wells. Ans. 13-20. THE INDEFINITENESS REJECTION Regarding representative claim 1, the Examiner finds the claim is indefinite, because the phrase “‘respective confidence levels’ lacks the requisite degree of specificity that would allow one skilled in the art to comprehend the metes and bounds of such a phrase when applied to the particular art at hand” and that “one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.” Ans. 4. Appellants argue that the claim is definite. App. Br. 10-12; Reply Br. 1-2. Appellants state that the phrase, “confidence level” is well known in the art and is used throughout the disclosure. App. Br. 11; Reply Br. 1-2. Appellants further argue that the disclosure shows an aggregate confidence level and provides a specific example of setting confidence levels. See App. Br. 11 (citing Fig. 4B and Spec. ¶ 58); Reply Br. 1-2 (citing Spec. ¶ 58). ISSUE Under § 112, second paragraph, has the Examiner erred in rejecting claim 1 by finding that the phrase “respective confidence levels” is indefinite? Appeal 2011-010423 Application 10/208,189 4 ANALYSIS Based on the record before us, we find no error in the Examiner’s rejection that the phrase, “respective confidence levels,” is indefinite. The test for definiteness under 35 U.S.C. § 112, second paragraph is “whether those skilled in the art would understand what is claimed when the claim is read in light of the specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted); see also In re Packard, 2014 WL 1775996, at *5 (Fed. Cir. May 6, 2014) (citing In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989)). Appellants provide evidence of written description support for the phrase, “confidence levels” under 35 U.S.C. § 112, first paragraph, for example, by using this phrase or variants (e.g., “level of confidence” in Fig. 4B) within the disclosure. However, this evidence fails to demonstrate whether an ordinarily skilled artisan would have understood what the boundaries or the scope of the “respective confidence levels” are. Appellants discuss Figure 4B and Paragraph 58 to demonstrate that two different confidence levels can be aggregated or considered when identifying an unknown track. See App. Br. 11 (citing Fig. 4B and Spec. ¶ 58); Reply Br. 1-2 (citing Spec. ¶ 58). For example, Paragraph 58 describes an example, where a 99% text match (e.g., relates to a piece of information) and an 85% audio fingerprint match (e.g., relates to a fingerprint), are used to determine a match. See Spec. ¶¶ 57-58; Fig. 4B. Other than this one example with specific percentages, the disclosure fails to describe the boundaries of the recited “respective confidence levels.” We further will not import into the claims a particular embodiment appearing in the written description. See SuperGuide Corp. v. DirecTV Enterprises, Inc., Appeal 2011-010423 Application 10/208,189 5 358 F.3d 870, 875 (Fed. Cir. 2004). Nor do we believe Appellants intended to limit the claims to this particular embodiment, where the claims – as is here – recite non-specific “respective confidence levels.” Curiously, Paragraph 58 describes each of these percentages as a “level of accuracy” and not a confidence level. Spec. ¶ 58. Yet, Appellants contend that this passage describes confidence levels. See App. Br. 11; Reply Br. 1-2 (citing Spec. ¶ 58). For this reason, we are not persuaded that one skilled in the art would have understood the phrase, “confidence levels,” when read in light of the disclosure, to have a meaning limited to statistical confidence levels. App. Br. 11.1 This entire discussion begs the question as to what is the scope of recitation “respective confidence levels.” The disclosure states these accuracy “levels for each component” can be set or adjusted by an administrator. Spec. ¶ 58. But again, no boundaries regarding accuracy levels have been disclosed, rendering the boundaries limitless. The sole example and the general discussion fail to describe with precision or clarity what range of percentages define the metes and bound of the “respective confidence levels.” Thus, when read in light of the disclosure, an artisan would not have understood the boundaries or scope of the recited “respective confidence levels.” 1 There is no evidence in the record where the article authored by Justin Redd was entered by the Examiner as required by 37 C.F.R. § 41.37(c)(1)(ix). Appellants only indicate the reference was cited in an Information Disclosure Statement (IDS). See App. Br., Evidence App’x. No initialed copy of the IDS can be found in the record. Unentered evidence is not permitted in the Appeal Brief. See 37 C.F.R. § 41.37(c)(1)(ix). Appeal 2011-010423 Application 10/208,189 6 For the foregoing reasons, Appellants have not persuaded us of error in the rejection of independent claim 1, independent claims 16, 65, and 66, which recite commensurate limitations, and claims 2-5, 7-15, 18-21, 70, 72, 73, 81, and 82 not separately argued with particularity. THE ANTICIPATION REJECTION OVER WELLS Given the above discussion, we will construe the claims as best understood. Regarding illustrative claim 1, the Examiner finds that Wells discloses the identifying step. See Ans. 13 (citing Wells 6:1-4, 9:10-32, 26:36-50). Appellants argue that a single fingerprint is used in Wells to identify a sound recording and that statistical confidence levels are not applied. App. Br. 13. Appellants also contend that the distance measurements made by Wells are not the same as the recited “confidence levels.” App. Br. 13-14; Reply Br. 3-4. ISSUE Under § 102, has the Examiner erred in rejecting claim 1 by finding that Wells identifies an unknown recording track, when the possible identification based on extracted information from an unrecording track in combination with an algorithmically determined, track-based fingerprint identifies a single reference recording with respective confidence levels? ANALYSIS Based on the record, we find no error in the Examiner’s rejection. First, as Appellants admit, Wells discloses using both a fingerprint extracted from a sound recording and a compact lookup code to identify a sound Appeal 2011-010423 Application 10/208,189 7 recording. See App. Br. 13 (citing Wells 6:2-3). As such, Wells discloses identifying an unknown recording track based on each of information (e.g., a compact lookup code) and at least one algorithmically determined track- based fingerprint (e.g., small fingerprint). Wells 6:1-5. Second, as the Examiner suggests (Ans. 24), the above discussion related to the scope of the claims indicates that the recited “respective confidence levels” is not limited to a statistical or probabilistic confidence level as Appellants argue. In fact, the “confidence level” is so broadly recited that an accuracy level or other types of levels encompasses the entire range of “respective confidence levels” (e.g., from 0 to 100%). Given this breadth, Wells discloses the recited identifying step that identifies a recording with “respective confidence levels.” As the Examiner explains, Wells uses two possible methods for determining a match from a fingerprint. Ans. 13 (citing Wells 9:10-32). Wells discloses both an exact match option (e.g., 100% acceptance level) and a fuzzy match option (e.g., something less than 100% defined by “a scalar value, which sets a boundary of what is and is not a match”). Wells 9:31-32; see also Ans. 24-25 (citing Wells 9:10-20, 32-48). Additionally, Wells discusses that a “fuzzy match” is “a measure of closeness or similarity between a candidate fingerprint and the reference fingerprints” (Wells 25:56-58), disclosing that there is a “confidence level” used to determine a recording match. Additionally, Wells discusses using a compact look up code to identify the recording track. Wells 6:1-3. Although Wells does not state what kind of “confidence level” is used, Wells necessarily uses some process of looking up a code or using of the code to detect the unknown Appeal 2011-010423 Application 10/208,189 8 recording track. See id. As such, some “respective” confidence level between 0 and 100 percent accuracy to the compact lookup code is also applied to identify the sound recording based on the lookup code. Moreover, Wells discloses identifying the sound recording based on both of these respective confidence levels. See Wells 6:1-5, 9:10-32. Independent claims 16, 65, and 66 similarly recite “respective confidence levels.” Appellants do not separately argue these claims. App. Br. 12-14. We are not persuaded the Examiner erred in rejecting these claims for the above-discussed reasons. For the foregoing reasons, Appellants have not persuaded us of error in the rejection of independent claim 1 and claims 2-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82 not separately argued with particularity. THE ANTICIPATION REJECTION OVER LAU The Examiner additionally rejects all the claims on appeal based on Lau under § 102. Ans. 4-13. Our conclusion that the Examiner did not err in rejecting claims 1-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82 based on Wells renders it unnecessary to reach the propriety of the Examiner’s decision to reject those same claims using Lau on the same ground. Cf. In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009). As such, we will not discuss the merits of the Examiner’s rejection of the same claims based on a different reference. CONCLUSION The Examiner did not err in rejecting claims 1-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82 under §112, second paragraph. Appeal 2011-010423 Application 10/208,189 9 The Examiner did not err in rejecting claims 1-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82 under § 102 based on Wells. We do not reach the merits of the rejection under § 102 based on Lau. DECISION The Examiner’s decision rejecting claims 1-5, 7-16, 18-21, 65, 66, 70, 72, 73, 81, and 82 is affirmed. 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 tj