Xin Fang et al.Download PDFPatent Trials and Appeals BoardSep 6, 201913009083 - (D) (P.T.A.B. Sep. 6, 2019) Copy Citation 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. 13/009,083 01/19/2011 Xin Fang QC101914 1078 12371 7590 09/06/2019 Muncy, Geissler, Olds & Lowe, P.C./QUALCOMM 4000 Legato Road, Suite 310 Fairfax, VA 22033 EXAMINER LE, PETER D ART UNIT PAPER NUMBER 2488 NOTIFICATION DATE DELIVERY MODE 09/06/2019 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): meo.docket@mg-ip.com meo@mg-ip.com ocpat_uspto@qualcomm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte XIN FANG, WEI SHI, and GERALD PAUL MICHALAK Appeal 2018-007762 Application 13/009,083 Technology Center 2400 Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and MICHAEL M. BARRY, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellants1 appeal from the Examiner’s decision to reject claims 1, 2, 4–8, 10–14, 16–20, and 22–30. Non-Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We decided a previous appeal, 2014-009445, on August 11, 2016, affirming the rejection of all then-pending claims. We reverse. 1 We use the word “Appellants” to refer to “Applicants” as defined in 37 C.F.R. § 1.42(a). Appellants identify the real party in interest as QUALCOMM Incorporated. Appeal Br. 3. Appeal 2018-007762 Application 13/009,083 2 CLAIMED SUBJECT MATTER The claims are directed to dynamic video switching. Spec. Title. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A dynamic codec allocation method, comprising: receiving a plurality of datastreams; determining a respective codec loading factor for each datastream in the plurality of datastreams; assigning the plurality of datastreams to a hardware codec, in order by the respective codec loading factor and starting with the highest respective codec loading factor, until the hardware codec is loaded to substantially maximum capacity; assigning the remaining datastreams of the plurality of datastreams to a software codec, based on the hardware codec being loaded to substantially maximum capacity; receiving a new datastream; determining a codec loading factor for the new datastream; and reassigning, based on reception of the new datastream, at least one datastream of the plurality of datastreams that was previously assigned to the hardware codec to the software codec based on the codec loading factor of the new datastream being higher than the codec loading factor of the at least one datastream. App. Br. 26 (Claims Appendix). REFERENCES The prior art relied upon by the Examiner is: Yan US 2009/0324108 Al Dec. 31, 2009 Nishimaki US 2010/0325638 Al Dec. 23, 2010 Chiang, Hardware/Software Real-Time Relocatable Task Scheduling and Placement in Dynamically Partial Reconfigurable Systems, June 2007, National Chung Cheng University. Appeal 2018-007762 Application 13/009,083 3 REJECTIONS2 Claims 1, 7, 13, and 193 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the applicant regards as the invention. Non-Final Act. 5–7; Ans. 5–6. Claims 1, 2, 5–8, 11–14, 17–20, and 23–30 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nishimaki and Chiang. Non- Final Act. 7–18; Ans. 7–18. Claims 4, 10, 16, and 22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nishimaki, Chiang, and Yan. Non-Final Act. 19– 20; Ans. 19–20. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments the Examiner has erred. We agree with Appellants’ conclusions as to the rejections of the claims. 35 U.S.C. § 112 According to the Examiner, the following limitation renders [claims 1, 7, 13, and 19] indefinite (emphasis added): “reassigning, . . . , at least one datastream of the plurality of datastreams that was previously assigned to the hardware code to the software codec based on the codec loading factor of the new datastream being higher . . . .” 2 The rejection of claims 1, 7, 13, and 19 (Non-Final Act. 4–5) under 35 U.S.C. § 101 has been withdrawn (Ans. 21). 3 Although not enumerated among the rejected claims, for purposes of this Appeal we consider the rejection of base independent claims 1, 7, 13, and 19 to extend to dependent claims 2, 4–6, 8, 10–12, 14, 16–18, 20, and 22–30 that would inherit the alleged indefiniteness of their respective base claims. Appeal 2018-007762 Application 13/009,083 4 Non-Final Act. 6. The Examiner finds the limitation indefinite because, in the situation wherein the codec loading factor is based on a battery energy level, a new datastream requiring a higher battery energy would replace a datastream requiring a lower battery energy level presently assigned to a hardware codec. Id. However, the Examiner finds a replacement increasing power consumption is contrary to the action that should be taken. Id. That is, according to the Examiner: It is understood by one ordinarily skilled in the art that when the codec loading factor based on a battery energy level for a new datastream is higher than a previously assigned data stream (i.e. a new datastream requires a higher battery energy than previously assigned datastream), reassigning the previously assigned datastream to software codec should not be performed to make room for the new datastream requiring higher battery energy (because a datastream requiring lower battery energy level should run on a hardware codec so as to save battery energy of the hardware codec). Id. (emphasis added). The Examiner concludes the term “higher” is rendered indefinite by the contradiction between the language of the claims and what one skilled in the art would understand to be a desired action under the recited conditions. Id. at 6–7. Appellants argue there is no contradiction because it is not necessarily true that a reassignment resulting in increased battery energy requirement should be avoided. App. Br. 15. [E]ven if there may be situations where a new datastream has both a higher codec loading factor and a higher battery energy consumption, it may be desirable to assign the new datastream to a hardware codec because of the preference for increased system performance regardless of any energy efficiency of assigning the datastream to a software codec. Id. at 15–16. Appeal 2018-007762 Application 13/009,083 5 Appellants’ argument is persuasive of Examiner error. The Examiner provides insufficient explanation of why an increased battery energy requirement is undesirable under all conditions such that it is at odds with requirements set forth by the claims. Furthermore, even if a claim were to require an operation that one skilled in the art would prefer to avoid, there is no requirement a claim cover only improvements that are advances in the art. The claims are not rendered indefinite because, according to the Examiner, the scope of the claims include an undesirable operation. We find no contradiction internal to the claims; the claims do require decreasing a battery energy requirement. Accordingly we conclude the claims are not indefinite and we do not sustain the rejection under 35 U.S.C. § 112, second paragraph. 35 U.S.C. § 103 According to the Examiner, a broad but reasonable interpretation of the claimed loading factor of a datastream includes a priority of the datastream. Non-Final Act. 8. Applying this interpretation, the Examiner finds Nishimaki’s resource priority calculation step ST59 responsive to an execution request teaches determining a loading factor for a new datastream. Id. at 9. The Examiner relies on Nishimaki’s disclosure of task assignment among codecs in combination with Chiang’s disclosure of reducing power consumption by switching a hardware task to a software task for teaching the step of: reassigning, based on reception of the new datastream, at least one datastream of the plurality of datastreams that was previously assigned to the hardware codec to the software codec based on the codec loading factor of the new datastream being Appeal 2018-007762 Application 13/009,083 6 higher than the codec loading factor of the at least one datastream. Id. at 10. Appellants contend, rather than assigning a loading factor to a datastream as required by claim 1, Nishimaki discloses assigning a priority to a resource capable of executing an application, not to the application executed by the codec. App. Br. 21; Reply Br. 5–6. The Examiner responds: Nishimaki, Table 4 teaches Application 51-3 having the lower priority is (re-)assigned to Software codec 81-1 in view of Chiang Sect. 1.3, p. 5: disclosing ‘Dynamic Hardware-Software Switching’ to teach the reassigning of the datastream 51-1 (previously assigned to hardware codec 14-1) to software codec 81-1 based on the respective codec loading factor in mid-stream. Ans. 27 (emphasis omitted). Appellants reply, arguing Nishimaki’s Table 4 shows that priority assignments are associated with resources, not applications or, as recited by the claims, datastreams. Reply Br. 5–6. In particular, Appellants direct attention to Software codec 81-2 of Table 4 having an assignment priority value of 2 although no application is assigned to the codec. Id. at 6. Thus, Appellants argue “[t]here is simply no disclosure or suggestion in Nishimaki that [priority] is assigned to, or determined for, an application in Nishimaki, such as Application 51-1, 51-2, or 51-3.” Id. Appellants’ argument is persuasive of reversible Examiner error. The Examiner has failed to explain why Nishimaki’s resource priority teaches or suggests determining a codex loading factor of a new datastream and reassigning a datastream from a hardware codec to a software codec based on the codec loading factor of the new datastream being higher than the Appeal 2018-007762 Application 13/009,083 7 codec loading factor of the datastream being reassigned. Because we agree with at least one of the arguments advanced by Appellants, we need not reach the merits of Appellants’ other arguments. Accordingly, we do not sustain the rejection of independent claim 1 or, for the same reasons, the rejection of independent claims 7, 13, and 19 under 35 U.S.C. § 103(a) or the rejection of dependent claims 2, 5, 6, 8, 11, 12, 14, 17, 18, 20, and 23–30. Furthermore, we do not sustain the rejection of claims 4, 10, 16, and 22 under 35 U.S.C. § 103(a) as the Examiner’s application of the Yan reference fails to cure the deficiency in the base rejection addressed above. DECISION We reverse the Examiner’s rejections under 35 U.S.C. §§ 103(a) and 112. REVERSED Copy with citationCopy as parenthetical citation