QUALCOMM Incorporated

Patent Trials and Appeals BoardJun 17, 2021

2020001096 (P.T.A.B. Jun. 17, 2021)

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. 14/807,687 07/23/2015 Wei Pu 1414-561US01/146098 1030 15150 7590 06/17/2021 Shumaker & Sieffert, P. A. 1625 Radio Drive, Suite 100 Woodbury, MN 55125 EXAMINER LEE, Y YOUNG ART UNIT PAPER NUMBER 2419 NOTIFICATION DATE DELIVERY MODE 06/17/2021 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): ocpat_uspto@qualcomm.com pairdocketing@ssiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte WEI PU, RAJAN LAXMAN JOSHI, JOEL SOLE ROJALS, FENG ZOU, MARTA KARCZEWICZ, and JIANLE CHEN ____________________ Appeal 2020-001096 Application 14/807,687 Technology Center 2400 ____________________ Before ELENI MANTIS MERCADER, JAMES R. HUGHES, and JAMES W. DEJMEK, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1–4, 6–8, 16–19, 21–23, and 31. Appellant has canceled claims 5, 9, 20, and 24, and withdrawn claims 10–15 and 25–30 from consideration. See Amdt. 2–9 (filed December 19, 2018). We have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b). We reverse. 1 Throughout this Decision, we use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies Qualcomm Incorporated as the real party in interest. Appeal Br. 3. Appeal 2020-001096 Application 14/807,687 2 STATEMENT OF THE CASE Introduction Appellant’s disclosed and claimed invention generally relates to video coding, particularly “the use of palettes for indexing pixel value data when coding video data.” Spec. ¶ 2. Claim 1 is illustrative of the subject matter on appeal and is reproduced below: 1. A method of encoding video data, comprising: receiving video data comprising one or more blocks, each block associated with a table indexing pixel values contained within the block, the table having one or more entries each specifying an index to be associated with a different pixel value; for a block of the one or more blocks: dividing the block into a plurality of sub-blocks, each sub- block comprising an array of pixels; selecting a sub-block scanning order for the sub-blocks of the block, the scanning order specifying an order in which the plurality of sub-blocks is to be encoded, based at least in part upon a distribution of pixel values within the block and based on a bit rate for encoding the block according to the scanning order; for a first sub-block of the plurality of sub-blocks, selecting a first pixel scanning order, the first pixel scanning order specifying an order in which the pixels of the first sub- block are to be encoded, based at least in part upon a distribution of pixel values within the first sub-block and based on a bit rate for encoding the first sub-block according to the first pixel scanning order; for a second sub-block of the plurality of sub-blocks, selecting a second pixel scanning order, the second pixel scanning order specifying an order in which the array of pixels of the second sub-block are to be encoded, based at least in part upon a distribution of pixel values in the array of pixels within the second sub-block and based at least in part upon a bit rate for Appeal 2020-001096 Application 14/807,687 3 encoding the second sub-block according to the second pixel scanning order, wherein the first pixel scanning order limits candidate scanning orders from which the second pixel scanning order is selected; and encoding the block using the selected sub-block scanning order, wherein the first sub-block is encoded using its selected first pixel scanning order, wherein the second sub-block is encoded using its selected second pixel scanning order, and wherein at least a portion of the array of pixels of the first sub- block and at least a portion of the array of pixels of the second sub-block are encoded using the index values corresponding to the entries of the table. The Examiner’s Rejection Claims 1–4, 6–8, 16–19, 21–23, and 31 stand rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Döne Bugdayci, et al., AHG10: Improvements on palette coding, JCTVC-Q0071, Joint Collaborative Team on Video Coding (JCT-VC) of ITU-T SG 16 WP3 and ISO/IEC JTC 1/SC29/WG11, 1–8 (March/April 2014) (“Bugdayci”). Final Act. 2–5. ANALYSIS2 Appellant asserts, inter alia, the Examiner’s rejection is in error because Bugdayci does not qualify as prior art. Appeal Br. 10–12; Reply Br. 5–8. In particular, Appellant argues the Examiner has not established that the Bugdayci reference was publicly available prior to Appellant’s 2 Throughout this Decision, we have considered the Appeal Brief, filed August 16, 2019 (“Appeal Br.”); the Reply Brief, filed November 22, 2019 (“Reply Br.”); the Examiner’s Answer, mailed September 25, 2019 (“Ans.”); and the Final Office Action, mailed February 14, 2019 (“Final Act.”), from which this Appeal is taken. Appeal 2020-001096 Application 14/807,687 4 effective filing date of July 24, 2014. Appeal Br. 10–12; Reply Br. 5–8. Appellant states that in Samsung Electronics, Inc. v. Infobridge PTE, 929 F.3d 1363 (Fed. Cir. 2019), the Federal Circuit found that a document from the Joint Collaborative Team on Video Coding (i.e., “JCTVC-F803”) “was not available as prior art because it was not publicly available.” Appeal Br. 11. Appellant argues the fact pattern in the instant matter mirrors that in Infobridge. Appeal Br. 11; Reply Br. 7. To wit, Appellant argues “the presence of [Bugdayci] on the JCT-VC website does not establish sufficient public availability because, in the language of Infobridge, ‘a skilled artisan would not have been able to locate [JCTVC-Q0071] [(i.e., Bugdayci)] on the JCT-VC website—even assuming the JCT-VC website itself was accessible—by exercising reasonable diligence.’” Reply Br. 7 (quoting Infobridge, 929 F.3d at 1371); see also Appeal Br. 11. The Examiner finds Bugdayci was published on March 27, 2014. Ans. 4. Additionally, the Examiner notes that “Bugdayci was submitted as prior art by the [A]ppellant in the IDS [(information disclosure statement)]” filed on April 4, 2016. Ans. 4. Although prior art may be created by admissions of Appellant (see, e.g., In re Fout, 675 F.2d 297, 300 (CCPA 1982)), mere inclusion of a reference on an IDS is not an admission by the applicant that a reference qualifies as prior art. See Riverwood Int’l Corp. v. R.A. Jones & Co., 324 F.3d 1346, 1355 (Fed. Cir. 2003); see also 37 C.F.R. § 1.97(h) (“The filing of an information disclosure statement shall not be construed to be an admission that the information cited in the statement is, or is considered to be, material to patentability as defined in § 1.56(b).”). Appeal 2020-001096 Application 14/807,687 5 Whether a reference qualifies as printed publication is a legal conclusion based on underlying factual findings. M&K Holdings, Inc. v. Samsung Elecs. Co., 985 F.3d 1376, 1379 (Fed. Cir. 2021). Such a determination involves a case-by-case inquiry as to whether the putative prior art document was publicly accessible. In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004). “A reference will be considered publicly accessible if it was ‘disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence, can locate it.’” Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331, 1348 (Fed. Cir. 2016) (quoting Kyocera Wireless Corp. v. Int'l Trade Comm’n, 545 F.3d 1340, 1350 (Fed. Cir. 2008)); see also Acceleration Bay, LLC v. Activision Blizzard Inc., 908 F.3d 765, 772 (Fed. Cir. 2018) (public accessibility “has been called the touch- stone” in determining whether a reference qualifies as a printed publication). Infobridge related to an appeal of a Board decision in which the Board determined a reference was not shown to be publicly available prior to a patent’s critical date and, therefore, could not be considered prior art. 3 Infobridge, 929 F.3d at 1365. In Infobridge, as it relates to the JCT-VC website, our reviewing court agreed with the Board that there was not sufficient evidence of record that “ordinarily skilled artisans ‘who were not part of JCT-VC’ would have known about or found the JCT-VC website.” 3 We note that in Infobridge, the court ultimately vacated the Board’s decision regarding whether the reference was publicly accessible based on evidence that a link to the document was emailed to members of a JCT-VC listserv. Infobridge, 929 F.3d at 1373–75. The court reiterated the relevant inquiry is the extent that the reference “could be located by an interested person exercising reasonable diligence.” Infobridge, 929 F.3d at 1374 (alterations omitted). Appeal 2020-001096 Application 14/807,687 6 Infobridge, 929 F.3d at 1371. The court also agreed with the Board that there was no evidence in the record that even if one were aware of the JCT- VC website, that one would be able to locate the reference by exercising reasonable diligence. Infobridge, 929 F.3d at 1371–72. “[A] work is not publicly accessible if the only people who know how to find it are the ones who created it.” Infobridge, 929 F.3d at 1372. More recently, in M&K Holdings, our reviewing court upheld the Board’s decision that a different JCT-VC document was publicly accessible and, accordingly, was available as prior art. M&K Holdings, 985 F.3d at 1377–78, 83. The court noted that the Board’s decision rested on several pieces of evidence, including expert testimony, findings of reference availability, distribution of documents via the JCT-VC website, and evidence of title-search functionality. M&K Holdings, 985 F.3d at 1380–82. The court further noted the Board had found that “the JCT-VC organization as a whole was prominent among the community of skilled artisans” and that this “finding[. . . was] supported by substantial evidence.” M&K Holdings, 985 F.3d at 1381 (emphasis added). The court also reiterated that although a hosting website is not required to have search functionality, “given the prominence of JCT-VC, the dispositive question is whether interested users of the JCT-VC website could have located [the references] through reasonable diligence.” M&K Holdings, 985 F.3d at 1381. Again, the court determined that the Boards decision that the documents could have been located using reasonable diligence was “supported by substantial evidence.” M&K Holdings, 985 F.3d at 1381. Here, unlike the record developed in M&K Holdings, the record does not include evidence that an ordinarily skilled artisan could have accessed Appeal 2020-001096 Application 14/807,687 7 the JCT-VC website and located the Bugdayci reference. Rather, on its face Bugdayci indicates a date (March 18, 2014) on which the document was saved and an indication that it was discussed or presented at a meeting held in Valencia, Spain over the period of March 27–April 4, 2014. See Bugdayci 1. There is no evidence in the record of whether the document was posted to the JCT-VC website at this time, who attended the meeting, or if the document had been otherwise publicly disseminated. Instead, the record is more akin to that in Infobridge, where there is no evidence of record that an interested party exercising reasonable diligence could have accessed Bugdayci. Although we are not foreclosing the possibility that Bugdayci could be prior art to Appellant’s claimed invention if there were a preponderance of evidence to support such a determination, constrained by the record, there is insufficient evidence to support that Bugdayci was publicly accessible prior to Appellant’s effective filing date. As such, Bugdayci is not available as a prior art reference. Because we find it dispositive that the Examiner has not shown by a preponderance of evidence that Bugdayci qualifies as prior art, we do not address other issues raised by Appellant’s arguments related to the pending claims. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an administrative agency is at liberty to reach a decision based on “a single dispositive issue”). For the reasons discussed supra, we do not sustain the Examiner’s rejection of claims 1–4, 6–8, 16–19, 21–23, and 31. Appeal 2020-001096 Application 14/807,687 8 CONCLUSION We reverse the Examiner’s decision rejecting claims 1–4, 6–8, 16–19, 21–23, and 31 under 35 U.S.C. § 102(a)(1). DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 6–8, 16–19, 21– 23, 31 102(a)(1) Bugdayci 1–4, 6–8, 16–19, 21– 23, 31 REVERSED