Avaya Inc.

Patent Trials and Appeals Board

Jun 29, 2021

2020002248 (P.T.A.B. Jun. 29, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/600,268 01/20/2015 Wendy J. Holmes 4366-687 6712
48500 7590 06/29/2021
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
MAHMOOD, REZWANUL
ART UNIT PAPER NUMBER
2164
NOTIFICATION DATE DELIVERY MODE
06/29/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
cjacquet@sheridanross.com
edocket@sheridanross.com
pair_Avaya@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WENDY J. HOLMES and DAVID SKIBA
____________

Appeal 2020-002248
Application 14/600,268
Technology Center 2100
____________

Before KARL D. EASTHOM, SCOTT B. HOWARD, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

AMUNDSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1, 3–7, 9, 10, and 12–20, i.e., all pending claims. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest
as Avaya Inc. Appeal Br. 2.
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STATEMENT OF THE CASE
The Invention
The Specification states that the invention “is generally directed
toward searching databases and more particularly toward phonetic speech
searches.” Spec. ¶ 1.2 The Specification explains that “[p]honetic speech
search involves searching a database containing audio records for words and
phrases by matching a model of the expected possible sound patterns of the
search term.” Id. ¶ 2. But “phonetic searching can suffer from false
matches on similar-sounding but unwanted phrases.” Id. For instance,
“searching for the word ‘contract’ in speech that contains the word ‘contact’
is likely to give false matches.” Id. And if “there is a large amount of audio
containing similar-sounding but unwanted phrases, the extent of these false
matches can lead to poor search results.” Id. Hence, the invention
endeavors to provide “an improved phonetic speech searching solution that
avoids false matching problems, but also utilizes simple search strategies.”
Id. ¶ 4.
Exemplary Claim
Independent claim 1 exemplifies the claims at issue and reads
as follows:
1. A phonetic search engine, comprising:
a processor executing a requestor interface configured
to receive one or more search terms for a phonetic search to be

2 This decision uses the following abbreviations: “Spec.” for the
Specification, filed January 20, 2015; “Final Act.” for the Final Office
Action, mailed January 30, 2019; “Appeal Br.” for the Appeal Brief, filed
June 25, 2019; “Ans.” for the Examiner’s Answer, mailed November 25,
2019; and “Reply Br.” for the Reply Brief, filed January 27, 2020.
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performed on a database containing phonetically-searchable
content;
the processor executing a database operator module
configured to format a database query that includes at least
some of the one or more search terms received at the requestor
interface;
the processor executing a phonetic analysis module
configured to modify the database query to comprise an
exclusion operator and an operand comprising a phonetically-
confusable term associated with the one or more search terms;
and
the processor executing the modified search on the
database and returning search results therefrom.
Appeal Br. 14 (Claims App.).
The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability under 35 U.S.C. § 103, the Examiner
relies on the following prior art:
Name Reference Date
David et al. (“David”) US 2004/0064468 A1 Apr. 1, 2004
Abbott et al. (“Abbott”) US 2009/0043581 A1 Feb. 12, 2009
Ju et al. (“Ju”) US 2012/0323967 A1 Dec. 20, 2012
Ivchenko US 2016/0092508 A1 Mar. 31, 2016 (filed Dec. 29, 2014)
The Rejections on Appeal
Claims 1, 4–7, 9, 10, 13–17, 19, and 20 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Abbott, Ju, and Ivchenko. Final Act. 7–22.
Claims 3, 12, and 18 stand rejected under 35 U.S.C. § 103 as
unpatentable over Abbott, Ju, Ivchenko, and David. Final Act. 22–24.
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ANALYSIS
We have reviewed the rejections in light of Appellant’s arguments
that the Examiner erred. For the reasons explained below, we concur with
the Examiner’s conclusions concerning unpatentability under § 103. We
adopt the Examiner’s findings and reasoning in the Final Office Action and
Answer. See Final Act. 2–24; Ans. 3–15. We add the following to address
and emphasize specific findings and arguments.
The § 103 Rejection of Claims 1, 4–7, 9, 10, 13–17, 19, and 20
CLAIM 1: MODIFY THE DATABASE QUERY TO
COMPRISE AN EXCLUSION OPERATOR AND AN OPERAND
As noted above, the § 103 rejection of claim 1 rests on Abbott, Ju, and
Ivchenko. See Final Act. 7–10. Appellant argues that the Examiner erred in
rejecting claim 1 because the references fail to teach or suggest the
following limitation in claim 1: “a phonetic analysis module configured to
modify the database query to comprise an exclusion operator and an operand
comprising a phonetically-confusable term associated with the one or more
search terms.” See Appeal Br. 4–9; Reply Br. 1–7. The Examiner cites the
combined disclosures in Abbott, Ju, and Ivchenko as teaching or suggesting
the disputed limitation in claim 1. See Final Act. 3–8, 8–10; Ans. 3–8.
Specifically, Appellant asserts that Abbott “provides a filtering” that
“reduces the number of false positives” but “does not seek to exclude
phonetically confusable terms.” Appeal Br. 6–7 (citing Abbott ¶¶ 34–35);
see Reply Br. 3–6. Appellant also asserts that Ju teaches “merging results in
an inclusion of photonically-confusable [sic] terms, so that a search for a
word with a ‘B’ sound further includes words with a ‘V’ sound,” but “fails
to teach the claimed exclusion of photonically-confusable [sic] terms.”
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Appeal Br. 4–5 (emphases by Appellant) (citing Ju ¶ 25); see also Reply
Br. 6. In addition, Appellant contends that “[w]hile Ivchenko may modify a
query that has an exclusion operator, it does not modify the query to have an
exclusion operator as claimed.” Appeal Br. 7–8 (emphases by Appellant)
(citing Ivchenko ¶¶ 44–45); see also Reply Br. 6–7.
Appellant’s arguments do not persuade us of Examiner error because
they do not address the Examiner’s application of the references to the
disputed limitation in claim 1. See Final Act. 8–10; Ans. 3–8. For instance,
the Examiner cites Ju, not Abbott, as teaching or suggesting modifying a
database query to comprise “a phonetically-confusable term associated with
the one or more search terms” according to claim 1. Final Act. 4, 9 (citing
Ju ¶¶ 15–16, 25, 66); Ans. 6–7 (citing Ju ¶¶ 15–16, 25, 66).
Specifically, Ju discloses (1) modifying a database query by merging
phonetically confusing characters into “a reduced search character set to
account for possible speech misrecognitions,” (2) searching with the reduced
search character set, and (3) using a relaxed recognition criteria to determine
a match for the reduced search character set. Ju ¶¶ 25, 42, 54; see also id.
¶¶ 21, 38. That disclosure teaches or suggests modifying a database query to
comprise “a phonetically-confusable term associated with the one or more
search terms” according to claim 1. Final Act. 4, 9; Ans. 6–7.
Further, contrary to Appellant’s contention, Ivchenko discloses
modifying a database query to include “an exclusion operator and an
operand” according to claim 1. Final Act. 5–6, 9–10 (citing Ivchenko
¶¶ 18–19, 40, 57); Ans. 8 (citing Ivchenko ¶¶ 18–19, 40, 57). In particular,
Ivchenko describes three kinds of search operators:
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(1) “a ‘required’ operator that indicates that search engine
216 should only include, in the search results, records
that contain the term to which the required operator is
being applied”;
(2) “an ‘optional’ operator that indicates that the search
engine 216 should attempt to include, in the search
results, records that contain the term to which the
optional operator is being applied without requiring that
the term be present in the search results”; and
(3) “an ‘exclusion’ operator that indicates that the search
engine 216 should exclude, from the search results, any
records that contain the term to which the exclusion
operator is being applied.”
Ivchenko ¶ 40; see also id. ¶ 41, Fig. 4.
Ivchenko explains that “the symbol ‘+’ is used as the required
operator, the symbol ‘?’ is used as the optional operator, and the symbol ‘-’
is used as the exclusion operator.” Ivchenko ¶ 42. Ivchenko also explains
that “the required operator ‘+’ can be treated as an AND operator, the
optional operator ‘?’ can be treated as an OR operator, and the exclusion
operator - can be treated as a NOT operator.” Id. ¶ 47.
Ivchenko discloses rewriting an initial search query containing an
optional operator using a required operator and an exclusion operator.
Ivchenko ¶ 18. Ivchenko explains that rewriting the initial search query may
involve replacing the optional operator with a required operator and an
exclusion operator. Id. ¶ 19. Ivchenko does not indicate that the initial
search query must contain an exclusion operator. Id. ¶¶ 18–19. Hence,
Ivchenko teaches or suggests modifying a database query to include “an
exclusion operator and an operand” according to claim 1. Final Act. 5–6,
9–10; Ans. 8.
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As Appellant notes, Ivchenko discusses an example where an initial
search query contains an exclusion operator. Ivchenko ¶¶ 46–47, Fig. 5; see
also Appeal Br. 8–9 (quoting Ivchenko ¶¶ 47–48). But even in that example
exclusion operators replace optional operators in the rewritten search query
for search terms “B” and “C.” Id. ¶¶ 46–47, Fig. 5. Hence, that example
discloses modifying a database query to include “an exclusion operator and
an operand” according to claim 1. That example does so because claim 1
uses the transitional term “comprising” and, therefore, encompasses
“unrecited elements,” e.g., an exclusion operator in an unmodified database
query. See Regeneron Pharm., Inc. v. Merus N.V., 864 F.3d 1343, 1352
(Fed. Cir. 2017) (citing Manual of Patent Examining Procedure § 2111.03).
As the Examiner correctly finds, “[r]ewriting a query to include an exclusion
operator and an operand comprising one or more search terms intended to be
excluded is modifying a query to comprise an exclusion operator and an
operand.” Final Act. 6; Ans. 8.
In addition, Abbott discloses “a phonetic analysis module configured
to modify the database query” according to claim 1. Final Act. 3–4, 7–9
(citing Abbott ¶¶ 8, 25, 28, 34–35, 50, 54, 69, 74); Ans. 4–6 (citing Abbott
¶¶ 8, 25, 28, 34–35, 50, 53–54, 59, 69, 74); Abbott ¶¶ 8, 25, 28, 34–35, 50,
53–54, 59, 69, 74. Among other things, Abbott explains that a “phonetic
data miner takes user generated search terms, such as words or phrases,” and
“forms phonetic search queries.” Abbott ¶ 53. Abbott also explains that a
“search module” identifies “occurrences of each phonetic search string in a
phonetic index” and “produces a confidence score for each possible match
that can be used to rank the results.” Id. ¶ 59.
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For the reasons discussed above, the combined disclosures in Abbott,
Ju, and Ivchenko teach or suggest “a phonetic analysis module configured to
modify the database query to comprise an exclusion operator and an operand
comprising a phonetically-confusable term associated with the one or more
search terms” according to claim 1. See Final Act. 3–6, 8–10; Ans. 3–8;
Abbott ¶¶ 8, 25, 28, 34–35, 50, 53–54, 59, 69, 74; Ju ¶¶ 15–16, 25, 42,
54, 66; Ivchenko ¶¶ 18–19, 40, 46–47, 57, Fig. 5.
MOTIVATION TO COMBINE THE REFERENCES
Appellant “maintains that the proffered combination of Abbott, Ju,
and Ivchenko lacks motivation.” Appeal Br. 9; see id. at 12; Reply Br. 7–9.
According to Appellant, “the proffered motivation must demonstrate a
motivation to achieve the claimed invention.” Reply Br. 8 (citing Microsoft
Corp. v. Parallel Networks Licensing, LLC, 715 F. App’x 1013 (Fed. Cir.
2017)); see also Appeal Br. 10.
Appellant quotes the Examiner’s findings that (1) “[t]he motivation to
combine Abbott and Ju would be to have an effective user interface enabling
a user to input a spelled character sequence to retrieve data from a database”
and (2) “[a] further motivation to combine Abbott and Ju would be to
recognize possible ambiguity in spelling resulting from any user or system
errors.” Appeal Br. 10–11 (quoting Final Act. 5); see also Final Act. 5;
Ans. 7. Appellant then contends that “a motivation to allow a user to input
spelled character sequences or to recognize ambiguity in spelling from user
or system errors fails to demonstrate a motivation to provide that which is
recited by claim 1.” Appeal Br. 11.
We disagree that the Examiner fails to identify reasons that would
have prompted an ordinarily skilled artisan to combine the teachings of the
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references to achieve the claimed invention. See Final Act. 5–6, 9–10 (citing
Ju ¶ 2; Ivchenko ¶¶ 2–3); Ans. 7, 9, 12–13, 15. As discussed above, the
Examiner cites the combined disclosures in Abbott, Ju, and Ivchenko as
teaching or suggesting the disputed limitation in claim 1. See Final Act.
3–8, 8–10; Ans. 3–8.
For the Abbott-Ju-Ivchenko combination, the Examiner correctly
finds that an ordinarily skilled artisan would have been motivated to
combine Ju’s teachings with Abbott’s teachings to provide an improved user
interface for retrieving data from a database that “recognize[s] possible
ambiguity in spelling.” See Final Act. 5, 9 (citing Ju ¶ 2); Ans. 7, 12, 15.
Thus, the Examiner identifies a reason that would have prompted an
ordinarily skilled artisan to combine Ju’s teachings with Abbott’s teachings.
Moreover, any “need or problem known in the field of endeavor at the
time of invention and addressed by the patent can provide a reason for
combining” references. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007). “[T]he desire to enhance commercial opportunities by improving a
product or process is universal . . . .” DyStar Textilfarben GmbH v. C.H.
Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006); see also In re Peterson,
315 F.3d 1325, 1330 (Fed. Cir. 2003). An “implicit motivation to combine”
may result from a desire to make a product or process “stronger, cheaper,
cleaner, faster, lighter, smaller, more durable, or more efficient.” DyStar,
464 F.3d at 1368.
Further, for the Abbott-Ju-Ivchenko combination, the Examiner
correctly finds that an ordinarily skilled artisan would have been motivated
to combine Ivchenko’s teachings with the teachings of Abbott and Ju to
“reduce computational expense to process search queries by rearranging
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search operators for search queries.” See Final Act. 6, 10 (citing Ivchenko
¶¶ 2–3); Ans. 9, 13, 15. Consistent with that finding, Ivchenko explains that
the invention concerns techniques for “rearranging search operators for a
search query” to improve “search queries suffer[ing] from excessive
computational expense.” Ivchenko ¶¶ 2–3. Hence, the Examiner provides
“articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
Appellant argues that the Examiner relies on “improper hindsight” to
“cherry pick” certain disclosures “to arrive at the claims.” Appeal Br. 11;
see Reply Br. 9.
We disagree that the Examiner relies on “improper hindsight” in
rejecting claim 1 for obviousness based on Abbott, Ju, and Ivchenko. An
explicit analysis “whether there was an apparent reason to combine” the
references reduces “the risk of . . . patent examiners falling prey to hindsight
bias.” See KSR, 550 U.S. at 418, 421. Here, the Examiner’s explicit
analysis of reasons to combine the references demonstrates that the
Examiner did not fall prey to hindsight bias. See Final Act. 5–6, 9–10
(citing Ju ¶ 2; Ivchenko ¶¶ 2–3); Ans. 7, 9, 12–13, 15; Ju ¶ 2; Ivchenko
¶¶ 2–3.
OTHER ARGUMENTS
Appellant argues that the proposed combination renders the prior art
“unsatisfactory for its intended purpose” because the proposed combination
does not add “a similar sounding character, as Ju teaches,” but instead
“exclude[s] such a similar sounding character.” Appeal Br. 12. Appellant
also argues that the proposed combination changes the “principle of
operation of a reference” because Ju “explicitly teaches” adding a similar
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sounding character to a search, whereas the proposed combination
“removes” a similar sounding character from a search. Id.
Appellant’s arguments do not persuade us of Examiner error because
they rest on a misunderstanding of Ju’s disclosure. See Ans. 14–15. As
discussed above, Ju discloses (1) modifying a database query by merging
phonetically confusing characters into “a reduced search character set to
account for possible speech misrecognitions,” (2) searching with the reduced
search character set, and (3) using a relaxed recognition criteria to determine
a match for the reduced search character set. Ju ¶¶ 25, 42, 54; see also id.
¶¶ 21, 38. Creating “a reduced search character set” for a search achieves a
result contrary to adding a similar sounding character to a search. As the
Examiner properly reasons, “[r]emoving or replacing is a form of exclusion,
not a form of addition as appellant claims.” Ans. 14. Hence, contrary to
Appellant’s arguments, Ju does not disclose adding a similar sounding
character to a search. See Appeal Br. 12.
SUMMARY FOR CLAIM 1
For the reasons discussed above, Appellant’s arguments have not
persuaded us that the Examiner erred in rejecting claim 1 for obviousness
based on Abbott, Ju, and Ivchenko. In our view, the claimed subject matter
exemplifies the principle that “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR, 550 U.S. at 416. Hence, we sustain the
§ 103 rejection of claim 1.
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INDEPENDENT CLAIMS 10 AND 17 AND
DEPENDENT CLAIMS 4–7, 9, 13–16, 19, AND 20
Appellant does not argue patentability separately for independent
claims 10 and 17 or dependent claims 4–7, 9, 13–16, 19, and 20. See Appeal
Br. 3–12; Reply Br. 1–9. Hence, we sustain the § 103 rejection of these
independent and dependent claims for the same reasons as claim 1. See
37 C.F.R. § 41.37(c)(1)(iv).
The § 103 Rejection of Claims 3, 12, and 18
Claim 3 depends from claim 1; claim 12 depends from claim 10; and
claim 18 depends from claim 17. Appellant does not argue patentability
separately for these dependent claims. See Appeal Br. 3–12; Reply Br. 1–9.
Hence, we sustain the § 103 rejection of these dependent claims for the same
reasons as claims 1, 10, and 17. See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
We affirm the Examiner’s decision to reject claims 1, 3–7, 9, 10, and
12–20.
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4–7, 9,
10, 13–17,
19, 20
103 Abbott, Ju, Ivchenko
1, 4–7, 9,
10, 13–17,
19, 20

3, 12, 18 103 Abbott, Ju, Ivchenko, David 3, 12, 18
Overall
Outcome
1, 3–7, 9,
10, 12–20
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED