Appeal 2007-0982
Application 09/886,685
The Examiner identifies at page 5 of the Answer that Shaw teaches
the use of one (1) frame per second (fps) which is an integer fraction of 24
fps. Although Appellants argue that only integer multiple or integer
fractions of thirty (30) fps are taught or suggested by either reference (Br. 5
and Reply Br. 1), we find no evidence to the contrary that one (1) fps is an
integer fraction of both 24 fps and of 30 fps. Therefore, Appellants’
argument concerning Shaw’s use of 30 fps is unpersuasive since it is not
commensurate with the scope of the claim language which clearly covers
integer fractions of 24 fps. Since one (1) fps is taught at Shaw column 6,
lines 23-26, we find that Shaw teaches all of the claimed limitations. In re
Meyer, 599 F.2d 1026, 1031, 202 USPQ 175, 179 (CCPA 1979) (noting that
obviousness rejections can be based on references that happen to anticipate
the claimed subject matter).
With that said, we additionally conclude that it would have been
obvious to one of ordinary skill in the relevant art at the time of the
invention to have selected the rate of frames per second to be 24 fps as
taught and fairly suggested by Hung at column 1 since that is disclosed to be
the minimum rate at which still images are viewed by the human eye appear
as continuous video. Therefore, the rate of 24 fps or higher would have been
desirable. We find that Hung merely discusses an exemplary television
display video at 30 fps for the sake of understanding. Appellants contend
that Shaw teaches away from the use of 24 fps (Br. 4). We find no express
teaching away from the use of the minimum rate of 24 fps as contended by
Appellants.
While Appellants contend that Hung is merely teaching that 24 fps is
the minimum fps at column 1, we note that Hung specifically recites 24 fps
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