DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
Figures 1-4 are designated by a legend --Background Art-- which is interpreted to indicate Prior Art because only that which is old is illustrated. See MPEP § 608.02(g). Specification explicitly states in Paragraphs 28, 36-39: “Conventional restriction values will he described with reference to Figs. 1 to 4. … In the HEVC standard, the restriction value …” Wang Table 2 confirms those features indeed correspond to conventions documented in the HEVC standard. Not until Paragraph 40 does Applicant designate: “Therefore, in the present technology, it is proposed …,” which clearly distinguishes a solution proposed by the Applicant from the problem in what Applicant believes to be in the conventional solution in Figs. 3-4.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-4 are rejected as being directed toward patent ineligible subject matter under 35 U.S.C. 101, under the “Revised Patent Subject Matter Eligibility Guidance” issued on January 7, 2019 (Federal Register, Vol. 84, No. 4, 50).
The claims are directed to statutory categories of methods, apparata (under Step 1).
Upon analysis of the present claims under the broadest reasonable interpretation (under Step 2A, prong one), the claims appear to recite a judicial exception, an abstract idea directed to transmitting processed data of “transmitting a bitstream generated by encoding.”
The claims include several categories of this abstract idea: information (a bitstream, a flag, a restriction value), collecting information (a bitstream generated by encoding); outputting information (transmitting), and/or analyzing information using mathematical relationships (following equation (1)). These categories have been identified as abstract ideas by the Federal Circuit as summarized in Electric Power Group, LLC v. ALSTOM SA, 830 F. 3d 1350, 1354 (Fed. Cir. 2016):
Information as such is an intangible. See Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 451 n.12, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007); Bayer AG v. Housey Pharm., Inc., 340 F.3d 1367, 1372 (Fed. Cir. 2003). Accordingly, we have treated collecting information, including when limited to particular content (which does not change its character as information), as within the realm of abstract ideas. See, e.g., Internet Patents, 790 F.3d at 1349; OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014); CyberSource Corp. 1354*1354 v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011). In a similar vein, we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category. See, e.g., TLI Commc'ns, 823 F.3d at 613; Digitech, 758 F.3d at 1351; SmartGene, Inc. v. Advanced Biological Labs., SA, 555 Fed.Appx. 950, 955 (Fed. Cir. 2014); Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011); SiRF Tech., Inc. v. Int'l Trade Comm'n, 601 F.3d 1319, 1333 (Fed. Cir. 2010); see also Mayo, 132 S.Ct. at 1301; Parker v. Flook, 437 U.S. 584, 589-90, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978); Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972). And we have recognized that merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis. See, e.g., Content Extraction, 776 F.3d at 1347; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014).
Upon consideration of the record (under Step 2A, prong two), Examiner did not find that the additional elements of the present claims integrate the judicial exception into a practical application of that judicial exception “in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” The additional elements, when considered individually or in a claim as a whole, “ processing circuitry, … a bitstream generated by encoding”, do not seem to reflect a substantive improvement in the functioning of a computer, or an improvement to other technology or technical field under the standards of the present judicial guidance; (processing circuitry embodies a general purpose computer, and encoding steps are not performed by the present claims); do not seem use a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim (processing circuitry is a general technology not limited to a particular machine); do not seem to effect a transformation or reduction of a particular article to a different state or thing (transmission of data is not a physical transformation of an article).
This is further evidenced in that the additional elements, merely includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea (processing circuitry configured to …); adds insignificant extra-solution activity to the judicial exception (i.e. a bitstream generated by encoding which is not performed within the scope of the claim); do no more than generally link the use of a judicial exception to a particular technological environment or field of use (i.e. linked to a computer or other well-established activities of a computer in the art like transmitting and calculating).
Substantially similar subject matter has been found ineligible in Gottschalk v. Benson, 409 U.S. 63, 175 U.S.P.Q. 673 (1972) (using common computing elements in conversion of numerical information is ineligible); TLI Communications LLC v. AV Automotive LLC, (Fed Cir. May 17, 2016) (Method for recording, transmitting, organizing, and administering digital images is ineligible).
Finally, the claimed elements, when considered individually and in combination (under step 2B), do not seem to provide an Inventive Concept that is “significantly more” than the ineligible subject matter. The claims simply append well-understood, routine, conventional activities previously known to the industry to the judicial exception, at a high level of generality (i.e. processing circuitry configured to transmit).
The claims should be amended to include meaningful limitations within the technical field.
Claim Construction
Note that, for purposes of compact prosecution, multiple reasons for rejection may be provided for a claim or a part of the claim. The rejection reasons are cumulative, and Applicant should review all the stated reasons as guides to improving the claim language and advancing the prosecution toward an allowance.
Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed by a method claim, or by claim language that does not limit an apparatus claim to a particular structure. However, examples of claim language, although not exhaustive, that may raise a question as to the limiting effect of the language in a claim are: (A) “adapted to” or “adapted for” clauses; (B) “wherein” clauses; and (C) “whereby” clauses. M.P.E.P. 2111.04. Other examples are where the claim passively indicates that a function is performed or a structure is used without requiring that the function or structure is a limitation on the claim itself. The clause may be given some weight to the extent it provides "meaning and purpose” to the claimed invention but not when “it simply expresses the intended result” of the invention. In Hoffer v. Microsoft Corp., 405 F.3d 1326, 1329, 74 USPQ2d 1481, 1483 (Fed. Cir. 2005). Further, during prosecution, claim language that may or may not be limiting should be considered non-limiting under the standard of the broadest reasonable interpretation. See M.P.E.P. 904.01(a); In re Morris, 127 F.3d 1048, 44 USPQ2d 1023 (Fed. Cir. 1997).
Also note: Changes to the shape of prior art structures are considered obvious absent persuasive evidence that the particular changes would produce non-obvious results. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.); also see KSR International Co. v. Teleflex Inc. (KSR), 550 U.S. 398, 415, 82 USPQ2d 1385 (2007).
Changes to the dimensions of prior art structures are considered obvious absent persuasive evidence that the particular changes would produce non-obvious results. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984) (the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device).
"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113(I).
Claim Rejections - 35 USC § 103
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over prior art admitted by the Applicant in the Specification (“AAPA”) in view of US 20140192895 to Chen (“Chen”). Note that AAPA includes the industry standard HEVC and “JCTVC-I0255” described as NPL1 in the Specification, Paragraphs 2-4 and provided in an IDS.
Regarding Claim 1: “An image processing device comprising
[processing circuitry] configured to transmit a bitstream generated by encoding according to an encoding standard (AAPA, Specification, Paragraphs 36-37 refer to “the HEVC standard.” In “the High Efficiency Video Coding (HEVC) standard presently under development, and extensions of such standards, to transmit, receive and store digital video information more efficiently,” where the transmitted and received video is in the form of a coded bitstream. See Chen, Paragraphs 3, 29, 107, and Fig. 1. See treatment of processing circuitry and statement of motivation below.
Note that “a bitstream generated by encoding according to an encoding standard” is a product-by-process claim in which the patentability of the bitstream (or the process of its transmission) does not depend on its method of production. See Claim Construction above. For this reason, the details of the encoding standard do not have bearing on the patentability of the processing circuitry configured to transmit a bitstream as cited in the prior art with respect to substantively identical set of video coding standards as described in the Specification. The reasons for rejection of the following claim elements are cumulative and they are provided for purposes of compact prosecution:
in which a horizontal size of one tile is restricted for each level by a corresponding restriction value, ” (“In the HEVC standard, … the maximum picture width is set for each level … Fig. 3 shows an example of the restriction value … at level 4” AAPA, Specification, Paragraphs 36-37. For example, the fixed value can be limited by the picture size because a picture is partitioned into tiles or by the restrictions on memory bandwidth of a particular decoder because the decoder must be able to buffer the video data for processing, as described in AAPA, JCTVC-I0255, Fig. 1 and Page 3, section 3. This feature is also similar to features in Chen, Paragraphs 40, 99 and 236-239 and Wang, Paragraph 28 and Table 2.)
wherein the restriction value is enabled by a flag in the bitstream, (For example “When picture n has PicOutputFlag equal to I , its DPB output time to,dpb(n) is derived by … The output of the current picture is specified as follows.” enables output of the picture and its corresponding flags and derived values. See Chen, Paragraphs 180-182. See statement of motivation below.)
“wherein the restriction value is set according to each level that defines maximum resolution and frame rate and the following equation (1) using a maximum value MaxLumaPs of the number of luminance picture samples [Math. 1]”
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(As noted above, the tile size is limited by the maximum picture size. For example, the picture can be partitioned into two vertical tiles as in AAPA, JCTVC-I0255, Fig. 1, thus the maximum tile width in this case is 0.5 of the maximum picture width. And the maximum picture width can be determined “In the HEVC standard, the restriction value Max_pic_width_vps_in_luma_samp!es that restricts the maximum picture width is set for each level based on the maximum value MaxLumaPs of the number of luminance picture samples. … the restriction value Max_pic_width_vps_in_luma_samp!es is set to Sprt(MaxLumaPsx8).” AAPA, Specification, Paragraphs 36-37. In this example, the chosen maximum tile width calculates to be: 0.5 * Max_pic_width_vps_in_luma_samp!es = 0.5 * Sprt(MaxLumaPsx8) .
This knowledge in the art is confirmed to be part of HEVC in Wang, Table 2 at the bottom of page 16 and top of page 17: “For each layer in the output layer set, the value of pic_width_in_luma_samples shall be less than or equal to Sqrt( MaxLumaPs * 8 ),” and that the maximum tile dimensions are at most 0.5 of the respective picture dimensions in Wang, Paragraph 28 and noted in Table 2. Therefore, the claimed choice of dimension was known and thus obvious to select.)
AAPA JCTVC-I0255 does not teach an “image processing device, … processing circuitry” however it is well established that HEVC and VVC video encoding and decoding standards are performed by a processing device.
This is confirmed by Chen in the context of coding video under HEVC and similar standards: “one or more computers or one or more processors to retrieve instructions, code and/or data structures for implementation of the techniques described in this disclosure.” Chen, Paragraph 332.
In this, “a video coder (e.g., a video encoder or a video decoder) may be configured to perform the following methods.” Chen, Paragraph 7.
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to supplement the teachings of AAPA to use an image processing device as taught in Chen, in order to implement video encoding and decoding under the industry standards. Chen, Paragraph 332.
Finally, in reviewing the present application, there does not seem to be objective evidence that the claim limitations are particularly directed to: addressing a particular problem which was recognized but unsolved in the art, producing unexpected results at the level of the ordinary skill in the art, or any other objective indicators of non-obviousness.
Regarding Claim 2: “The image processing device according to claim 1, wherein the restriction value is set according to a maximum size of the image.” (As noted in Claim 1, since the image is partitioned into tiles, the tile size is naturally restricted to the maximum size of the image. For example, “If one considers a resolution of 1920x1080 … we propose for certain levels lo restrict the maximum tile width to 30 LCU (or to 1920 luma pixels.),” and thus according to a maximum size of the image. AAPA, JCTVC-I0255, Fig. 1 and Page 3, section 3, as well as Chen, Paragraph 99.)
Claim 3, “An image processing method comprising: transmitting a bitstream…” is rejected for reasons stated for Claim 1 because the apparatus of Claim 1 performs the method steps of Claim 3.)
Claim 4 is rejected for reasons stated for Claim 2 in view of the Claim 3 rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
As cited in the priority application US 20150264373 to Wang (“Wang”) describes the HEVC features which are discussed in AAPA
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/MIKHAIL ITSKOVICH/Primary Examiner, Art Unit 2483