International Business Machines Corporation

Patent Trials and Appeals BoardNov 23, 2020

2019006937 (P.T.A.B. Nov. 23, 2020)

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. 15/344,145 11/04/2016 Giulia Carnevale DE920160168US1_8134-0150 8444 73109 7590 11/23/2020 Cuenot, Forsythe & Kim, LLC 20283 State Road 7 Ste. 300 Boca Raton, FL 33498 EXAMINER SCHREIBER, CHRISTINA MARIE ART UNIT PAPER NUMBER 2837 NOTIFICATION DATE DELIVERY MODE 11/23/2020 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GIULIA CARNEVALE, MARCO GIANFICO, CIRO RAGUSA, and ROBERTO RAGUSA Appeal 2019-006937 Application 15/344,145 Technology Center 2800 ____________ Before JEFFREY B. ROBERTSON, N. WHITNEY WILSON, and MICHAEL G. McMANUS, Administrative Patent Judges. McMANUS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the Examiner’s decision to reject claims 1–25. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as IBM Corporation. Appeal Brief dated March 26, 2019 (“Appeal Br.”) 1. Appeal 2019-006937 Application 15/344,145 2 CLAIMED SUBJECT MATTER The Specification indicates that there are a variety of conventionally known systems capable of transcribing musical recordings to musical notation. Specification dated Nov. 4, 2016 (“Spec.”) ¶ 1. The present application generally relates to a method of detecting the use of vibrato bar technique while playing a stringed instrument. Id. ¶ 4. This may permit a system to discern and transcribe not only notes and/or durations, but also the use of vibrato bar technique by instrumentalists. Id. ¶¶ 2, 4. Claim 1 is illustrative of the subject matter on appeal and is reproduced below with certain limitations bolded for emphasis: 1. A method of detecting vibrato bar technique, comprising: analyzing, using a processor, a note signal of a string instrument to detect a selected instrumental technique from a plurality of instrumental techniques; analyzing, using the processor, a noise signal of the string instrument to detect a change in frequency of the noise signal; and generating, using the processor, a vibrato bar event responsive to detecting the selected instrumental technique and the change in frequency of the noise signal. Appeal Br. 16 (Claims App.) (reformatted for clarity). DISCUSSION The Examiner rejects claims 1–25 as anticipated by Ierymenko (US 9,117,428 B2, issued Aug. 25, 2015) under 35 U.S.C. § 102(a)(1). Final Office Action (“Final Act.”) 2–4. In support of the rejection, the Appeal 2019-006937 Application 15/344,145 3 Examiner finds that “Ierymenko teaches analyzing a note signal, or technique command, to detect a selected instrumental technique, analyzing a noise signal such as muting or damping, to detect a change in frequency, and generating a vibrato effect command through pitch analysis in response to the selected technique and change in frequency.”2 Id. (emphasis added). Appellant argues that the rejection is in error and should be reversed. Appeal Br. 13–14. Appellant contends that Ierymenko does not teach the claimed step of “analyzing . . . a noise signal of the string instrument to detect a change in frequency of the noise signal.” Id. at 13; id. at 16 (Claims App.) (emphasis added). Appellant argues that the Examiner errs in determining that the “muting or damping” of Ierymenko satisfies the “noise signal” limitation. Appellant directs us to Ierymenko’s teachings regarding muting and damping. The term “muting” refers to an action performed by the instrumentalist and can be a technique command. The term “damping” is performed by a motion control system. Damping may be the response to a muting command of technique. Ierymenko col. 7:25–29. Appellant concludes that “muting/damping are an instrumental technique – not a noise signal.” Appeal Br. 13. In the Examiner’s Answer, the Examiner contends that “[a] noise signal can be any signal or command that effects noise/sound.” Examiner’s 2 In the Final Office Action dated June 26, 2018, the Examiner sets forth two theories of anticipation by Ierymenko. Final Act. 2. The first theory was subsequently withdrawn. Ans. 3. Accordingly, we address only the second theory herein. Appeal 2019-006937 Application 15/344,145 4 Answer dated August 12, 2019 (“Ans.”) 4. The Examiner concludes that “a command or signal, such as muting/damping, resulting from a selected instrumental/playing technique, that effects the vibration and resulting noise can be a noise signal as claimed.” Id. In its Reply Brief, Appellant argues that the Rejection, as clarified in the Answer, is predicated on an erroneous construction of the term “noise signal.” Reply Brief dated Sept. 25, 2019 (“Reply Br.”) 3. Appellant argues that claim 1’s separate use of “note signal” and “noise signal” indicates an intent that the terms have separate meanings. Id. at 3. Appellant further directs us to the Specification’s teaching that “[a] noise signal is a signal of a string of the string instrument that is determined not to include or specify a note.” Id. at 4 (citing Spec. ¶ 36). Appellant additionally relies on the Specification’s teaching to “differentiate note signals from noise signals.” Id. (citing Spec. ¶ 50). We find Appellant’s arguments to be persuasive. The claims plainly use the terms “note signal” and “noise signal” to describe different phenomena. See, e.g., claims 3 and 10. Further, the Specification distinguishes between the two signals as follows: Using audio analysis techniques, the system is capable of determining which signals from the string instrument are note signals and which signals are noise signals. A note signal is a signal of a string of the string instrument that is determined to include or specify a note. The note signals are signals of strings that are being played or are sounding. A noise signal is a signal of a string of the string instrument that is determined not to include or specify a note. The noise signals are, in effect, the signals of strings that are not being played. Spec. ¶ 36. Appeal 2019-006937 Application 15/344,145 5 In view of the foregoing, we determine that a “note signal” of the claims differs from a “noise signal” of the claims. We further determine that the Examiner has not shown that the muting or damping commands of Ierymenko falls within the ambit of the term “noise signal” as properly construed. Accordingly, Appellant has shown reversible error in the rejection. As the rejection relies on the same theory with regard to all claims (see Final Act. 2–4), Appellant has shown reversible error with regard to the rejection of all claims. CONCLUSION The Examiner’s rejection is reversed. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–25 102(a)(1) Ierymenko 1–25 REVERSED