Appeal No. 2000-1540
Application No. 09099,617
other functions, such as quantization level selection can be
controlled.
Whether it was because the examiner recognized the weakness
of his position in this regard, or for whatever reason, the
examiner indicates an alternative interpretation in order to
reject the claims under 35 U.S.C. 102(b). The examiner, quite
reasonably, contends that since the claims call for “at least one
block,” this may include only one block. From that hypothesis,
the examiner contends that if there is only one block, then each
frame may constitute only one block and the block bit rate would
be the same as the frame bit rate. Thus, the allocation would be
among only one block. Since there is only one way to allocate
the target frame bit among one block, the examiner concludes that
there is an inherency at play here and that “no reference is
needed for the rejection of this part of [the] claim” [answer-
page 6].
While the examiner’s approach is creative and shows some
well thought out initiative, which we appreciate, after long and
careful consideration to this argument we will still not sustain
the rejection of the claims under 35 U.S.C. 102(b) despite a lack
of position on the record by appellants regarding this
interpretation (appellants have not filed a reply brief).
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