Ex Parte RuwischDownload PDFPatent Trial and Appeal BoardMay 19, 201411674424 (P.T.A.B. May. 19, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/674,424 02/13/2007 Dietmar RUWISCH 2222.5040001 4496 26111 7590 05/20/2014 STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C. 1100 NEW YORK AVENUE, N.W. WASHINGTON, DC 20005 EXAMINER ROBERTS, SHAUN A ART UNIT PAPER NUMBER 2657 MAIL DATE DELIVERY MODE 05/20/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DIETMAR RUWISCH ___________ Appeal 2011-008898 Application 11/674,424 Technology Center 2600 ____________ Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and JOHNNY A. KUMAR, Administrative Patent Judges. WHITEHEAD, JR., Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008898 Application 11/674,424 2 STATEMENT OF THE CASE Appellant is appealing the final rejection of claims 1-37 under 35 U.S.C. § 134(a). Appeal Brief 5. We have jurisdiction under 35 U.S.C. § 6(b) (2012). We reverse and enter new grounds of rejection in accordance with 37 C.F.R. § 41.50 (b). Introduction The invention is directed to “[t]echniques for performing speech recognition in a communication device with a voice dialing function.” Abstract. Representative Claim (Emphasis Added) 1. A method comprising: upon receipt of a voice input, generating, using a communication device, input feature vectors from voice input; calculating, using the communication device, a likelihood vector sequence from the input feature vectors indicating a likelihood in time of an utterance of phonetic units, the likelihood vectors having a dimensionality corresponding to the phonetic units; warping, using the communication device, the likelihood vector sequence to phonetic word models; calculating, using the communication device, word model match likelihoods from the phonetic word models; and determining, using the communication device, a best matching one of the word model match as recognition result. Appeal 2011-008898 Application 11/674,424 3 Rejections on Appeal Claims 1-5, 13, 14, 22-28, 36 and 37 stand rejected under 35 U.S.C. §102 (b) as being anticipated by Garner (U.S. Patent Number 6,801,891 B2; issued October 5, 2004). Answer 4-8. Claims 6, 12, 16, 19, 20, 29 and 35 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Garner and Majaniemi (U.S. Patent Number 6,393,403 B1; issued May 21, 2002). Answer 8-10. Claims 7, 15 and 30 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Garner and Rose (U.S. Patent Number 7,457,750 B2; issued November 25, 2008). Answer 10-11. Claims 8-11 and 31-34 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Garner, Rose and Majaniemi. Answer 11-13. Claims 17 and 18 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Garner, Majaniemi and Rose. Answer 14-15. Claim 21 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Garner, Majaniemi and Ruwisch (U.S. Patent Number 6,683,961 B2; issued January 27, 2004). Answer 15-16. ANALYSIS Rather than reiterate the arguments of Appellant and the Examiner, we refer to the Appeal Brief (filed December 16, 2010), the Answer (mailed February 8, 2011), and the Reply Brief (filed April 7, 2011) for the respective details. We have considered in this decision only those arguments Appellant actually raised in the Briefs. Any other arguments which Appellant could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). Appellant contends: Appeal 2011-008898 Application 11/674,424 4 Garner does not anticipate at least the feature of “the likelihood vectors having a dimensionality corresponding to the phonetic units,” as recited in claim 1, and analogous features using respective language in claims 14, 22, 23, 24, and 37 because (a) “likelihood vectors having a dimensionality corresponding to the phonetic units” is not necessarily present in Garner; (b) the Examiner improperly applies “common and well known” to an anticipation rejection; and (c) Garner fails to disclose vectors (both feature and likelihood). Appeal Brief 13. “It is well settled that a prior art reference may anticipate when the claim limitations not expressly found in that reference are nonetheless inherent in it. Under the principles of inherency, if the prior art necessarily functions in accordance with, or includes, the claimed limitations, it anticipates.” In re Cruciferous Sprout Litig., 301 F.3d 1343, 1349 (Fed. Cir. 2002) (citations omitted) (internal quotation marks omitted). “Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations omitted) (internal quotation marks omitted). The Examiner finds from employing extensive calculations that Garner anticipates the claimed likelihood vectors because it is inherently known in order to determine the input sequences each phonetic unit must correspond to a likelihood vector. Answer 4-5. Appellant further contends: Garner nowhere discloses (or teaches or suggests) at least the recited feature vectors or likelihood vectors, even using the legally permissible “broadest reasonable interpretation” of the term “vector” in light of the specification and one of ordinary Appeal 2011-008898 Application 11/674,424 5 skill in the art. Notably, the term “vector” does not appear anywhere in Garner. The “broadest reasonable interpretation” of a “vector” must be consistent with the recited “likelihood vectors having a dimensionality corresponding to the phonetic units.” No concept exists anywhere in Garner that has any number of dimensions (such as, by way of non-limiting example, an x- axis, a y-axis, a z-axis, etc.), let alone “a dimensionality corresponding to the phonetic units,” as recited in claims 1, 14, 22, 23, 24, and 37. Appeal Brief 17. We find Appellant’s arguments to be persuasive because Garner does not remotely indicate the employment of likelihood vectors and therefore we disagree with the Examiner’s finding of inherency for the reasons articulated above. Subsequently, we do not sustain the Examiner’s anticipation rejection of claims 1-5, 13, 14, 22-28, 36 and 37. We also do not sustain the Examiner’s obviousness rejections of claims 6-12, 15-21, and 29-35 because neither Majaniemi, Rose and Ruwisch cure the noted deficiencies of Garner. NEW GROUNDS OF REJECTION Although we decline to reject every claim under our discretionary authority under 37 C.F.R. 41.50(b), we emphasize that our decision does not mean the remaining claims are patentable. Rather, we merely leave the patentability determination of these claims to the Examiner. See MPEP § 1213.02. We reject claims 22 to 36 under 35 U.S.C. § 101 as being directed to non-statutory subject matter. Appeal 2011-008898 Application 11/674,424 6 Independent claims 22, 23 and 24 recite “[a] tangible computer- readable medium having instructions stored thereon” or variations thereof. The broadest reasonable interpretation of the “computer-readable medium” language of independent claims 22, 23 and 24, when read in light of Appellant’s Specification, is inclusive of transitory propagating signals. See Ex parte Mewherter, 107 USPQ2d 1857, 1862 (PTAB 2013) (precedential). “A transitory, propagating signal [however] . . . is not a ‘process, machine, manufacture, or composition of matter.’ [These] four categories define the explicit scope and reach of subject matter patentable under 35 U.S.C. § 101; thus, such a signal cannot be patentable subject matter.” In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007). Specifically, signals are unpatentable “as failing a tangibility requirement to be ‘manufactures’” because they are not tangible media. Nuijten 500 F.3d at 1366 (emphasis added). DECISION The Examiner’s 35 U.S.C. §102 rejection of claims 1-5, 13, 14, 22-28, 36 and 37 is reversed. The Examiner’s 35 U.S.C. §103 rejections of claims 6-12, 15-21, and 29-35 are reversed. This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection.., shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: Appeal 2011-008898 Application 11/674,424 7 (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner .... (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record .... REVERSED 37 C.F.R. § 41.50(b) tj Copy with citationCopy as parenthetical citation