DETAILED ACTION
1. Claims 1, 3-6, 8, and 10-14 are pending in this continuation application for reissue of US Patent 10,580,415 (hereinafter “the '415 patent”) issued from application no. 15/978,342 (“the ‘342 application”). Claims 1-16 are original patent claims. In this reissue application, claim 1 has been amended and claims 2, 7, 9, 15-16 have been cancelled. Claims 1, 3-6, 8, and 10-14 are currently pending.
Prior or Concurrent Proceedings
2. Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceed-ing in which the ‘415 patent is or was involved. These proceedings would include interferences, reissues, reexaminations, and litigation.
Information Material to Patentability
3. Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is mate-rial to patentability of the claims under consideration in this reissue appli-cation.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
Notice of Pre-AIA or AIA Status
4. The present application is being examined under the pre-AIA first to invent provisions.
Rejection under 35 U.S.C. 251
5. The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. §251 that form the basis for the rejections under this section made in this Office action:
(a) IN GENERAL.—Whenever any patent is, through error, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
6. Claims 1, 3-6, 8, and 10-14 are rejected as being based upon a defective reissue declaration under 35 U.S.C. 251. See 37 CFR 1.175. The nature of the defect(s) in the October 27, 2017 Declaration is set forth below.
The reissue oath/declaration filed with this application is defective because it fails to properly identify at least one error which is relied upon to support the reissue application. See 37 CFR 1.175 and MPEP § 1414. MPEP 1414 II.(B) states in part: “In identifying the error, it is sufficient that the reissue oath/declaration identify a single word, phrase, or expression in the specification or in an original patent claim, and how it renders the original patent wholly or partly inoperative or invalid.” The statement of error in the oath/declaration fails to specifically identify an error. "Any error in the claims must be identified by reference to the specific claim(s) and the specific claim language wherein lies the error." See MPEP 1414 II. (C).
7. Claims 1, 3-6, 8, and 10-14 are rejected under 35 U.S.C. 251 pursuant to 37 CFR 1.177(b). Instant reissue application presents original claims 1, 3-6, 8, and 10-14, with an amendment to claim 1, to correct errors. However, these claims are being examined in the reissue application 18/792,998 (“the ‘998 application”), and will be superseded by the reissuance of claims in the ‘998 application. Only one set of original patent claims, in its original or amended form, can be examined in a reissue application family. See MPEP 1451.
To overcome this rejection, Applicant may cancel all original patent claims and present the amended claims as new claims.
Double Patenting – Non-Statutory
8. The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
9. Claims 1, 3-6, 8, and 10-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-6, 8, and 10-14 of copending applications 18/792,998, 18/793,789, 18/793,790, 18/793,788, 18/793,527 and over claims 3-6, 8, 10-16 of copending applications 18/793,791, 18/793,792, 18/793,794 in view of Canadian Patent App. CA 2792452 (“Villemoes”).
Claims in the instant application and the copending applications are from the same patent claims of the parent patent/application. The only difference is the added limitation of the amended claim 1. Villemoes discloses a combiner (FIG 1, 104) for combining the bandwidth limited audio signal comprising the core frequency band (102) and a manipulated patched signal comprising the upper frequency band (103), which is derived from the patched signal by manipulation (FIG 26, 1030) to acquire the bandwidth extended signal. A combiner is well known in the art as evidenced by Villemoes. Applying a known technique (i.e., manipulating a signal using a spectral band replication parameter) to a known device (i.e., audio signal processing device) ready for improvement to yield predictable result is obvious under KSR v. Teleflex.
Claim Rejections - 35 USC § 102
10. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
11. Claims 1, 3-6, and 8 are rejected under pre-AIA 35 U.S.C. 102(a) as being anticipated by Villemoes.
12. With respect to claim 1, Villemoes discloses an apparatus for generating a bandwidth extended signal from a bandwidth limited audio signal, the bandwidth limited audio signal comprising a plurality of consecutive bandwidth limited time blocks, each bandwidth limited time block comprising at least one associated spectral band replication parameter comprising a core frequency band and the bandwidth extended signal comprising a plurality of consecutive bandwidth extended time blocks, the apparatus comprising:
a patch generator (FIG. 1, 103) for generating a patched signal comprising an upper frequency band using a bandwidth limited time block of the bandwidth limited audio signal;
wherein the patch generator is configured to perform a harmonic patching algorithm (p. 32, lines 15-17) to acquire the patched signal;
wherein the apparatus is configured to acquire the bandwidth extended signal depending on the patched signal (see FIG. 1; see also p. 32, l. 7-8);
wherein the patch generator is configured to perform the harmonic patching algorithm for a current bandwidth extended time block of the plurality of consecutive bandwidth extended time blocks using a timely preceding bandwidth limited time block of the plurality of consecutive bandwidth limited time blocks of the bandwidth limited audio signal (see FIG. 2, 204 and p. 16, l. 15-24);
wherein the timely preceding bandwidth limited time block timely precedes the current bandwidth limited time block in the plurality of consecutive bandwidth limited time blocks of the bandwidth limited audio signal (p. 16, l. 15-24 or 16:15-24),
the apparatus further comprising
a combiner (FIG 1, 104) for combining the bandwidth limited audio signal comprising the core frequency band (102) and a manipulated patched signal comprising the upper frequency band (103), which is derived from the patched signal by manipulation (FIG 26, 1030) to acquire the bandwidth extended signal.
13. With respect to claim 3, Villemoes discloses the apparatus in accordance with claim 1,
wherein the patch generator is configured for applying the harmonic patching algorithm to the timely preceding bandwidth limited time block using a bandwidth extension factor of two (15:25-28);
wherein the patch generator is configured for generating from the core frequency band of the timely preceding bandwidth limited time block a first target frequency band of the current bandwidth extended time block (16:15-24); and
wherein the patch generator is configured for applying a copy-up patching algorithm (9:1-6) for copying up the first target frequency band of the current bandwidth extended time block generated from the core frequency band of the timely preceding bandwidth limited time block to a second target frequency band of the current bandwidth extended time block.
14. With respect to claim 4, Villemoes discloses the apparatus in accordance with claim 1,
wherein the patch generator is configured for applying the harmonic patching algorithm to the timely preceding bandwidth limited time block using a bandwidth extension factor of two (15:25-28);
wherein the patch generator is configured for generating from the core frequency band of the timely preceding bandwidth limited time block a first target frequency band of the current bandwidth extended time block (16:15-24);
wherein the patch generator is configured for applying the harmonic patching algorithm to the timely preceding bandwidth limited time block using a bandwidth extension factor of three (15:25-28); and
wherein the patch generator is configured for generating from the core frequency band of the timely preceding bandwidth limited time block a second target frequency band of the current bandwidth extended time block (16:15-24).
15. With respect to claim 5, Villemoes discloses the apparatus in accordance with claim 1, wherein the patch generator is configured for continuously applying the harmonic patching algorithm to each bandwidth limited time block of the bandwidth limited audio signal (see FIG 1, input to the system is a bit stream).
16. With respect to claim 6, Villemoes discloses the apparatus in accordance with claim 1, further comprising:
a provider for providing a patching algorithm information (5:33-35, application of a patching scheme that applies a mixed patching consisting of harmonic patching and copy-up patching requires a provider to provide the algorithm information);
wherein the patch generator is configured for performing a copy-up patching algorithm for a timely preceding bandwidth extended time block using the timely preceding bandwidth limited time block or a timely succeeding bandwidth limited time block for a timely succeeding bandwidth extended time block, the timely succeeding bandwidth limited time block timely succeeding the current bandwidth limited time block (5:33-35);
wherein the patch generator is configured for using the patched signal for the current bandwidth extended time block generated from the harmonic patching algorithm in response to the patching algorithm information (5:33-35).
17. With respect to claim 8, Villemoes discloses the apparatus in accordance with claim 6, wherein the provider is configured for providing the patching algorithm information in dependence on a signal analysis of the bandwidth limited audio signal (see 4:12-19, and 5:33-35, application of patching algorithms is in dependence on signal analysis filter banks of the input audio signal).
Conclusion
18. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Woo H Choi whose telephone number is (571) 272-4179. The examiner can normally be reached on weekdays between 9:00 am to 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Hetul Patel can be reached on 571-272-4184. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Woo H. Choi/
Primary Examiner, Art Unit 3992
Conferees:
/Cameron Saadat/Primary Examiner, Art Unit 3992
/ALEXANDER J KOSOWSKI/Supervisory Patent Examiner, Art Unit 3992