DETAILED ACTION
Double Patenting
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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No. 11,979,631. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘631 patent requires all the features of the instant invention and is narrower in scope. Therefore, the instant invention is effectively a genus of the ‘631 patent. However, a species always anticipates a genus.
For example, in regards to claim 1, the ‘631 patent requires extra features such as determining the expected total quantity of frames in a group of pictures, the anchor frame is associated with a scene change, determining the audio signal deviates from an audio level, and an audio time. Essentially, the ‘631 patent explicitly requires the extra determining steps which are left out of the instant application. Therefore, all the features are known. Additionally, the instant application uses the terminology I-frame as opposed to anchor frame, however, those of ordinary skill recognize the equivalence of these elements.
In regards to claims 2-4, these claims are analogous to claims 2-4 of the ‘631 patent.
In regards to claim 5, this claim is analogous to claim 22 of the ‘631 patent.
In regards to claim 6, this claim is analogous to claim 23 of the ‘631 patent.
In regards to claim 7, this claim is analogous to claim 25 of the ‘631 patent.
In regards to claim 8-20, these claims are analogous to claims 1-7 of the instant application and therefore are rejected for similar reasoning as these claims.
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.
Claim(s) 1-2, 5-9, 12-16 and 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Itoh et al. US 2006/0153540 hereinafter referred to as Itoh in view of Carson et al. US 2013/0141643 hereinafter referred to as Carson.
In regards to claim 1, Itoh teaches:
“A method comprising: based on determining that a quantity of dependent frames of a first plurality of frames in a video signal is less than an expected quantity of dependent frames”
Itoh paragraph [0141] teaches in the preferred embodiment described above, one VOBU is supposed to consist of a single GOP that is made up of 15 frames as shown in FIG. 7. However, at a so-called "scene change" timing at which the scene of the object or the program changes into a quite different one, a smaller number of frames may be included in one GOP. For example, by allocating an I-frame to a frame at which the scene change has been detected, the GOP may be cut off at the previous frame even if the number of frames is still less than 15. In that case, the previous GOP and the new GOP may include 15 frames combined. The Examiner interprets that detecting the scene change is equivalent to detecting the video signal has less than an expected quantity of frames because Itoh teaches that at a scene change a smaller number of frames is included in the GOP.
“determining, by a computing device, an I-frame of a second plurality of frames subsequent to the first plurality of frames”
Ito paragraph [0141] teaches by allocating an I-frame to a frame at which the scene change has been detected, the GOP may be cut off at the previous frame even if the number of frames is still less than 15. In that case, the previous GOP and the new GOP may include 15 frames combined. The Examiner interprets that in order to allocate the I-frame, it must be determined which frame is the I-frame for the subsequent GOP.
“and causing, by the computing device … the video signal to be synchronized with the audio signal”
Itoh paragraph [0142] teaches it has not been mentioned particularly how to process audio frames. However, the audio frames to be played back synchronously with the video frames of the last VOBU are preferably included in the same last VOBU, too.
“and based on a deviation in an audio level in an audio signal”
Carson paragraph [0067] teaches Generally, the module 154 operates concurrently with the modules 140, 150 discussed above in an effort to detect frames in which little or no visual data are expressed (e.g., dark or black frames). Additionally or alternatively, the module 154 may detect abrupt changes in scene. Carson paragraph [0068] teaches The idea is that such video frames may, at least in some instances, be accompanied by a temporary silence or other step-wise change in the audio data, as in the case of a scene change (e.g., abrupt change in the visual content with regard to the displayed setting, action, or other parameters). A climaxing soundtrack of music or other noise, for example, may abruptly end with a change of visual scene. Conversely, an abrupt increase in noise, music and/or action sounds may commence with a new scene, such as a cut to an ongoing battle, etc. Carson paragraph [0069] teaches a detected black frame and/or a detected visual scene change by the visual detection module 154 may be reported to an audio scene change detector 156 of the module 130 (FIG. 3), which will commence with an analysis of the corresponding audio data for a step-wise change in the audio stream. As before, verification operations such as filtering, voting, etc. may be applied to ensure that an out of sync condition is not inadvertently induced because of the presence of audio content in an extended blackened video scene. It would have been obvious for a person with ordinary skill in the art before the invention was effectively filed to have modified Itoh in view of Carson to have included the features of “and based on a deviation in an audio level in an audio signal” because due to a number of factors including network and receiver based delays, the audio and video portions of the content may sometimes become out of synchronization (sync). This may cause, for example, the end user to notice that the lips of an actor in a video track do not align with the words in the corresponding audio track (Carson [0004]).
In regards to claim 2, Itoh/Carson teach all the limitations of claim 1 and further teach:
“wherein the causing the video signal to be synchronized with the audio signal comprises delaying, by a time duration based on an audio time associated with the deviation in the audio level and a video time associated with the I frame, one of the video signal or the audio signal relative to the other of the video signal or the audio signal”
Carson paragraph [0059] teaches the detector 138 analyzes the audio frames to search for an audio segment with the identified sequence of phonemes. If a match is found, the resulting audio frames are classified as a detected audio event, and the relative timing between the detected audio event and the detected visual event is determined by the timing circuit 139. Adjustments in the timing of the respective sequences are thereafter made to resynchronize the audio and video streams; for example, if the video lags the audio, samples in the audio may be delayed to resynchronize the audio with the video essence. Carson paragraph [0075] and Figure 12 teach a first video watermark (VW-1) 170 has been inserted into the video frames 114, and a corresponding first audio watermark (AW-1) 172 has been inserted at a presentation time T1. The Examiner interprets that these marks are placed prior to the first frame in the sequence of pictures which would be an I-frame. It would have been obvious for a person with ordinary skill in the art before the invention was effectively filed to have modified Itoh in view of Carson to have included the features of “wherein the causing the video signal to be synchronized with the audio signal comprises delaying, by a time duration based on an audio time associated with the deviation in the audio level and a video time associated with the I frame, one of the video signal or the audio signal relative to the other of the video signal or the audio signal” because due to a number of factors including network and receiver based delays, the audio and video portions of the content may sometimes become out of synchronization (sync). This may cause, for example, the end user to notice that the lips of an actor in a video track do not align with the words in the corresponding audio track (Carson [0004]).
In regards to claim 5, Itoh/Carson teach all the limitations of claim 1 and further teach:
“further comprising: verifying synchronization of the video signal with the audio signal by comparing a time of silence in the audio signal with a time of a start of a plurality of frames in the video signal”
Carson paragraph [0068] teaches The idea is that such video frames may, at least in some instances, be accompanied by a temporary silence or other step-wise change in the audio data, as in the case of a scene change (e.g., abrupt change in the visual content with regard to the displayed setting, action, or other parameters). A climaxing soundtrack of music or other noise, for example, may abruptly end with a change of visual scene. Conversely, an abrupt increase in noise, music and/or action sounds may commence with a new scene, such as a cut to an ongoing battle, etc. Carson paragraph [0069] teaches a detected black frame and/or a detected visual scene change by the visual detection module 154 may be reported to an audio scene change detector 156 of the module 130 (FIG. 3), which will commence with an analysis of the corresponding audio data for a step-wise change in the audio stream. As before, verification operations such as filtering, voting, etc. may be applied to ensure that an out of sync condition is not inadvertently induced because of the presence of audio content in an extended blackened video scene. It would have been obvious for a person with ordinary skill in the art before the invention was effectively filed to have modified Itoh in view of Carson to have included the features of “further comprising: verifying synchronization of the video signal with the audio signal by comparing a time of silence in the audio signal with a time of a start of a plurality of frames in the video signal” because due to a number of factors including network and receiver based delays, the audio and video portions of the content may sometimes become out of synchronization (sync). This may cause, for example, the end user to notice that the lips of an actor in a video track do not align with the words in the corresponding audio track (Carson [0004]).
In regards to claim 6, Itoh/Carson teach all the limitations of claim 1 and further teach:
“wherein the deviation in the audio level in the audio signal corresponds to a portion of the audio signal having a corresponding audio level below a lower threshold level or above an upper threshold level”
Carson paragraph [0068] teaches The idea is that such video frames may, at least in some instances, be accompanied by a temporary silence or other step-wise change in the audio data, as in the case of a scene change (e.g., abrupt change in the visual content with regard to the displayed setting, action, or other parameters). A climaxing soundtrack of music or other noise, for example, may abruptly end with a change of visual scene. Conversely, an abrupt increase in noise, music and/or action sounds may commence with a new scene, such as a cut to an ongoing battle, etc. The Examiner interprets that silence of a step-wise change has implicit thresholds. For example, the transition between no sound and some sound represents some threshold. Also, the difference in sound that creates a step requires a threshold. It would have been obvious for a person with ordinary skill in the art before the invention was effectively filed to have modified Itoh in view of Carson to have included the features of “wherein the deviation in the audio level in the audio signal corresponds to a portion of the audio signal having a corresponding audio level below a lower threshold level or above an upper threshold level” because due to a number of factors including network and receiver based delays, the audio and video portions of the content may sometimes become out of synchronization (sync). This may cause, for example, the end user to notice that the lips of an actor in a video track do not align with the words in the corresponding audio track (Carson [0004]).
In regards to claim 7, Itoh/Carson teach all the limitations of claim 1 and further teach:
“wherein the causing the video signal to be synchronized with the audio signal is further based on a drift value corresponding to a difference between a video time, associated with the I-frame, and an audio time associated with the deviation”
Carson paragraph [0085] teaches Other timing evaluation techniques can be employed as desired. The amount of time differential between the expected times when the respective audio and video frames are expected to be output can be calculated and compared to a suitable threshold, and adjustments only made if the differential exceeds this threshold. It would have been obvious for a person with ordinary skill in the art before the invention was effectively filed to have modified Itoh in view of Carson to have included the features of “wherein the causing the video signal to be synchronized with the audio signal is further based on a drift value corresponding to a difference between a video time, associated with the I-frame, and an audio time associated with the deviation” because due to a number of factors including network and receiver based delays, the audio and video portions of the content may sometimes become out of synchronization (sync). This may cause, for example, the end user to notice that the lips of an actor in a video track do not align with the words in the corresponding audio track (Carson [0004]).
In regards to claim 8, Itoh/Carson teach all the limitations of claim 1 and claim 8 contains similar limitations. Therefore, claim 8 is rejected for similar reasoning as applied to claim 1.
In regards to claim 9, Itoh/Carson teach all the limitations of claim 8 and claim 9 contains similar reasoning as applied to claim 2. Therefore, claim 9 is rejected for similar reasoning as applied to claim 2.
In regards to claim 12, Itoh/Carson teach all the limitations of claim 8 and claim 12 contains similar reasoning as applied to claim 5. Therefore, claim 12 is rejected for similar reasoning as applied to claim 5.
In regards to claim 13, Itoh/Carson teach all the limitations of claim 8 and claim 13 contains similar reasoning as applied to claim 6. Therefore, claim 13 is rejected for similar reasoning as applied to claim 6.
In regards to claim 14, Itoh/Carson teach all the limitations of claim 8 and claim 14 contains similar reasoning as applied to claim 7. Therefore, claim 14 is rejected for similar reasoning as applied to claim 7.
In regards to claim 15, Itoh/Carson teach all the limitations of claim 1 and claim 15 contains similar limitations. Therefore, claim 15 is rejected for similar reasoning as applied to claim 1.
In regards to claim 16, Itoh/Carson teach all the limitations of claim 8 and claim 16 contains similar reasoning as applied to claim 2. Therefore, claim 16 is rejected for similar reasoning as applied to claim 2.
In regards to claim 19, Itoh/Carson teach all the limitations of claim 8 and claim 19 contains similar reasoning as applied to claim 5. Therefore, claim 19 is rejected for similar reasoning as applied to claim 5.
In regards to claim 20, Itoh/Carson teach all the limitations of claim 8 and claim 20 contains similar reasoning as applied to claim 6. Therefore, claim 20 is rejected for similar reasoning as applied to claim 6.
Claim(s) 3 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Itoh in view of Carson in view of Uchimura et al. US 2011/0194844 hereinafter referred to as Uchimura.
In regards to claim 3, Itoh/Carson teach all the limitations of claim 1 but do not explicitly teach:
“wherein the expected quantity of dependent frames is based on supplemental enhancement information indicating the expected quantity of dependent frames”
Uchimura paragraph [0146] teaches in the offset metadata, the number of frames (number of frames) of the GOP in which the offset metadata is included in the SEI is described using eight bits. This feature is nothing more than a combination of familiar elements (known frames in a GOP, enhancement information to indicate quantity of frames) according to known methods (transmitting SEI so that the number of frames in the GOP are known). For clarification, Itoh teach that the number of frames in the GOP need to be known (e.g. 15 frame) so that it can be determined if less than the expected number of frames are present. Uchimara teaches using a enhancement information to indicate the number of expected frames in a GOP. Using the SEI is merely a known method to determine if the number of frames in the GOP is less than the expected number and does not provide any unpredictable results because it merely results in providing the knowledge of how any frames are in the GOP. It has been held that “[t]he combination of familiar elements according to known methods is likely to be obvious when it does not more than yield predictable results.” KSR., 127 S. Ct. at 1739, 82 USPQ2d at 1395 (2007) (Citing Graham, 383 U.S. at 12).
In regards to claim 10, Itoh/Carson teach all the limitations of claim 8 and claim 10 contains similar reasoning as applied to claim 3. Therefore, claim 10 is rejected for similar reasoning as applied to claim 3.
In regards to claim 17, Itoh/Carson teach all the limitations of claim 8 and claim 17 contains similar reasoning as applied to claim 3. Therefore, claim 17 is rejected for similar reasoning as applied to claim 3.
Claim(s) 4 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Itoh in view of Carson in view of Spracklen et al. US 9,674,562 hereinafter referred to as Spracklen.
In regards to claim 4, Itoh/Carson teach all the limitations of claim 1 and further teach:
“further comprising: determining, based on a type of content associated with the audio signal and the video signal, an allowable … drift value, wherein the causing the video signal to be synchronized with the audio signal comprises synchronizing the video signal with the audio signal based on an … drift value being greater than the allowable … drift value”
Carson paragraph [0085] teaches other timing evaluation techniques can be employed as desired. The amount of time differential between the expected times when the respective audio and video frames are expected to be output can be calculated and compared to a suitable threshold, and adjustments only made if the differential exceeds this threshold. The Examiner further interprets that dark frames or silence is a type of content. It would have been obvious for a person with ordinary skill in the art before the invention was effectively filed to have modified Itoh in view of Carson to have included the features of “wherein the causing the video signal to be synchronized with the audio signal is further based on a drift value corresponding to a difference between a video time, associated with the I-frame, and an audio time associated with the deviation” because due to a number of factors including network and receiver based delays, the audio and video portions of the content may sometimes become out of synchronization (sync). This may cause, for example, the end user to notice that the lips of an actor in a video track do not align with the words in the corresponding audio track (Carson [0004]).
Itoh/Carson do not explicitly teach:
“allowable average drift value” and “average drift value”
Spracklen column 17 line 65 through column 18 line 1 and Figure 10 teaches The average A/V drift is around 300 ms, which is higher than the 50 ms of drift measured for local playback of the same video, and higher than the 100 ms when drift becomes noticeable to a user. It would have been obvious for a person with ordinary skill in the art before the invention was effectively filed to have modified Itoh/Carson in view of Spracklen to have included the features of “allowable average drift value” and “average drift value” because in order to ensure proper quality of delivery, it is necessary to automatically monitor video quality, audio quality, and the synchronization of audio and video (Spracklen column 1 lines 56-57).
In regards to claim 11, Itoh/Carson teach all the limitations of claim 8 and claim 11 contains similar reasoning as applied to claim 4. Therefore, claim 11 is rejected for similar reasoning as applied to claim 4.
In regards to claim 18, Itoh/Carson teach all the limitations of claim 8 and claim 18 contains similar reasoning as applied to claim 4. Therefore, claim 18 is rejected for similar reasoning as applied to claim 4.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL E TEITELBAUM, Ph.D. whose telephone number is (571)270-5996. The examiner can normally be reached 8:30AM-5:00PM EST.
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/MICHAEL E TEITELBAUM, Ph.D./ Primary Examiner, Art Unit 2422
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