Ex Parte Chavez et alDownload PDFPatent Trial and Appeal BoardOct 20, 201612722262 (P.T.A.B. Oct. 20, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121722,262 03/11/2010 48500 7590 10/24/2016 SHERIDAN ROSS P,C 1560 BROADWAY, SUITE 1200 DENVER, CO 80202 FIRST NAMED INVENTOR David L. Chavez 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 4366-463 2729 EXAMINER ZENATI, AMAL S ART UNIT PAPER NUMBER 2656 NOTIFICATION DATE DELIVERY MODE 10/24/2016 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 pair_Avaya@firsttofile.com edocket@sheridanross.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID L. CHAVEZ and LARRY J. HARDOUIN Appeal2015-005785 Application 12/722,262 1 Technology Center 2600 Before BRUCE R. WINSOR, IRVINE. BRANCH, and MICHAEL J. ENGLE, Administrative Patent Judges. ENGLE, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 3-5, 7-11, and 13-23, which are all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Technology The technology relates to starting an application upon the termination of a communications session. Abstract. Claims 1 and 22 are illustrative and reproduced below with the limitations at issue emphasized: 1. A method for initiating a process, comprising: establishing a first communication session between a first party associated with a communication device and a second party associated with a second communication device; 1 Appellants state the real party in interest is Avaya Inc. App. Br. 2. Appeal2015-005785 Application 12/722,262 during the first communication session, identifying one or more variables associated with the first communication session and comparing the one or more variables associated with the first communication session to one or more rules to determine a first process to initiate, wherein the one or more rules specifies the one or more variables that are to be present in order to initiate the first process; detecting a termination of the first communication session; and in response to detecting the termination of the first communication session, initiating the first process. 22. The method of claim 1, wherein the first communication session further includes a third communication device, wherein the termination of the first communication session is with respect to the first communication device such that the first process initiated in response to detecting the termination of the first communication session collects information including content from at least a portion of the communication session between the second communication device and the third communication device, and wherein the first process provides a first output to the first party containing at least a portion of the collected information. Rejections Claims 1, 3-5, 7-11, and 13-23 stand rejected under 35 U.S.C. § 103(a) as obvious over one or more of Bataillard (GB 2,403,621 A; Jan. 5, 2005); Cyriac et al. (US 8,537,981 Bl; Sept. 17, 2013); and Ali et al. (US 7,379,538 Bl; May 27, 2008). Final Act. 2, 9 (Apr. 17, 2014); Non-Final Act. 2 (Sept. 18, 2013); Ans. 3-12. ISSUES 1. Did the Examiner err in concluding that independent claims 1, 14, and 18 were obvious in light of Bataillard and Cyriac considered individually or in combination? 2 Appeal2015-005785 Application 12/722,262 2. Did the Examiner err in finding the combination of Cyriac and Bataillard teaches or suggests "identifying at least the first party to the first communication session," as recited in claim 3? 3. Did the Examiner err in concluding that dependent claims 4, 5, 7, and 20 were obvious in light of Cyriac? 4. Did the Examiner err in finding Cyriac teaches or suggests "determining a second process to initiate in response to the termination of the first communication session," as recited in claim 8? 5. Did the Examiner err in finding Cyriac teaches or suggests "the second process provides an output to at least one of the first party and the second party," as recited in claim 9? 6. Did the Examiner err in finding Cyriac teaches or suggests "a third communication device, wherein an output from the at least one operation of the one or more sequenced applications is provided to the third communication device," as recited in claim 15? 7. Did the Examiner err in finding Cyriac teaches or suggests "collects information including content from at least a portion of the communication session between the second communication device and the third communication device" and "the first process provides a first output to the first party containing at least a portion of the collected information," as recited in claim 22? ANALYSIS We have only considered those arguments Appellants raised in the briefs. Arguments that Appellants could have made but chose not to have not been considered and are deemed waived. 37 C.F.R. § 41.37(c)(l)(iv). 3 Appeal2015-005785 Application 12/722,262 ISSUE 1 Claims 1, 14, and 18: Bataillard Independent claim 1 recites "during the first communication session, ... comparing the one or more variables associated with the first communication session to one or more rules to determine a first process to initiate." The other independent claims (14 and 18) recite similar limitations for activities "during" a communication session. Bataillard relates to "[n]otifying a caller of a user's availability following a missed call." Bataillard at Abstract Title. When a caller attempts to call a user and the call attempt is terminated ( eg because the user is engaged, not answering, or, in the case of mobile telephones, out of range), the call attempt is recognised ( eg in response to a message left on the user's voicemail system) and the caller's contact details are identified. When the user subsequently becomes available, or decides to let callers know that he is available ( eg by pressing a dedicated "availability" key on the telephone handset), an availability message is generated and sent to the caller using the caller's contact details. Id. at Abstract. The Examiner finds "Bataillard[] showes [sic] all the limitation[ s] of independent claims 1, 14, and 18."2 Ans. 3. Specifically, the Examiner finds that ( 1) Bataillard' s attempted call resulting in a voicemail constitutes the claimed "first communication session"; (2) the identification of the caller's contact details constitutes the claimed one or more variables; and 2 The rejection in the Final Action was for obviousness under 35 U.S.C. § 103(a). Final Act. 2. We note, however, "[i]t is well settled that anticipation is the epitome of obviousness." In re McDaniel, 293 F.3d 1379, 1385 (Fed. Cir. 2002) (quotation omitted). 4 Appeal2015-005785 Application 12/722,262 (3) consulting which particular callers the user specifies should be sent availability messages constitutes the claimed "rules." Id. at 3--4. Appellants contend the Examiner erred because consulting Bataillard's "rules" for availability messages "occurs after the call attempt," not during the call attempt. Reply Br. 3. We agree with Appellants. According to Bataillard, "[o]nce the user becomes available and reviews missed calls and voice mail messages ... , he can decide whether or not to send an availability message." Bataillard 17: 13-15 (emphasis added). A call is missed and a voice mail message is played back after the call attempt is over. Thus, Bataillard teaches the decision to send an availability message occurs later when the user becomes available, not during the call attempt. Accordingly, we do not sustain the Examiner's rejection of claims 1, 14, and 18 or their dependent claims based on Bataillard alone. Claims 1, 10, 11, 13, and21: Cyriac The Examiner finds that "given the broadest reasonable interpretation, Cyria[ c] clearly teaches ... all limitation[ s] of independent claims 1, 14, and 18." Ans. 6 (emphasis removed). Cyriac relates to "interrupting a conference call for an emergency situation." Cyriac Title (uppercase removed). Figure 4 outlines the steps in Cyriac' s process. First, when an event occurs, the urgency and location of the event are determined. Id. at 8:58---65, FIG. 4. Next, "the recipients for the event notification are identified" based on "comparing the location of communication devices 112, 124 to the location and risk/urgency level of the event." Id. at 8:66-9:3. An event notification message is then prepared for each recipient, and different messages may be prepared for different recipients. Id. at 9:20-30. The next step is determining if a recipient is 5 Appeal2015-005785 Application 12/722,262 already on a call. Id. at 9:31-34. "If a recipient is actively participating in a call, then the notification agent 120 interrupts the connection of the recipient's call," such as "by breaking the connection between the switch and the recipient's communication device 112, 124." Id. at 9:34--39. After successful interruption, "then the event notification and the corresponding message therein can be transmitted to the recipient." Id. at 9:47-50. "Once the event notification has been successfully transmitted, it is determined if the call that has been interrupted should be resumed," which may be "based upon the risk and/or urgency associated with the event." Id. at 10:3---6. In the present application, Claim 1 recites "during the first communication session, identifying one or more variables associated with the first communication session." Appellants argue "the variables relied upon by the Examiner appear to be associated with the 'event' and not the first communication session." Reply Br. 4. Appellants also argue the Examiner has not shown identifying variables "during the first communication session." App. Br. 14--15. We are not persuaded of error. The Examiner relies on Cyriac "comparing the location of communication devices 112, 12 4 to the location and risk/urgency level of the event." Ans. 5 (italics added, original emphasis omitted). The Examiner finds Cyriac teaches "identifying variables: such as ... (2) identify recipients based upon the switch 108 or IP addresses that they are using." Id. (citing Cyriac 9:1- 19) (emphasis omitted). We agree with the Examiner that the location of call recipients falls within the broadest reasonable interpretation of "variables associated with the first communication session," and that the locations are identified "during" the call. 6 Appeal2015-005785 Application 12/722,262 Claim 1 also recites "comparing the one or more variables associated with the first communication session to one or more rules to determine a first process to initiate." Appellants contend "the Examiner has not identified one or more rules." App. Br. 15; Reply Br. 4. We are not persuaded of error. The Examiner correctly finds Cyriac teaches "comparing the location of communication devices 112, 124 to the location and risk/urgency level of the event" to identify which recipients to notify of the event. Cyriac 8:66- 9:3; Ans. 5-6. Appellants have not sufficiently addressed this teaching. Claim 1 further recites "detecting a termination of the first communication session" and "in response to detecting the termination of the first communication session, initiating the first process." Appellants contend "Cyriac teaches quite the opposite; instead of terminating the call to provide an event notification, Cyriac teaches interrupting the call" and "after the event notification has been provided, the call may be resumed or terminated." Reply Br. 7. However, we are not persuaded of error. Cyriac teaches the system "may interrupt the call by breaking the connection between the switch and the recipient's communication device." Cyriac 9:36-39 (emphasis added). Thus, we agree with the Examiner that Cyriac's teaching of interrupting the call meets the claimed "termination." The prior art need not use the same words as the patentee. Teva Pharm. Indus. Ltd. v. AstraZeneca Pharm. LP, 661F.3d1378, 1384 (Fed. Cir. 2011). Accordingly, we sustain the Examiner's rejection of independent claim 1 based on Cyriac, whether considered alone or in combination with Bataillard, and dependent claims 10, 11, 13, and 21, which Appellants argue are patentable for similar reasons. See App. Br. 22-23, 33; 37 C.F.R. § 41.37(c)(l)(iv). 7 Appeal2015-005785 Application 12/722,262 Claims 14, 16, and 17: Cyriac For claim 14, in addition to any arguments in common with claim 1, Appellants contend the Examiner "failed to consider the Appellant's previously entered amendments," yet Appellants fail to identify the specific amended limitations they believe have not been addressed. App. Br. 24 (emphasis omitted). Accordingly, we are not persuaded of error. With respect to Cyriac, Appellants contend: Cyriac fails to teach .... during the first communication session, the application sequence process compares one or more variables associated with the first communication session to one or more rules to determine one or more sequenced applications to be applied in association with the first communication session and the one or more rules specifies the one or more variables that are to be present in order to initiate the determined one or more sequenced applications. App. Br. 27. However, Appellants have not adequately explained this argument, particularly given the Answer relying on Cyriac' s teaching of an event notification message interrupting a call between two participants and using rules based on the location of the participants' communication devices to determine who should receive a message. Ans. 5---6. Appellants also contend that "nowhere has the Examiner addressed the feature of a second communication device associated with a second party, wherein the second communication device is included in the first communication session." App. Br. 26. Yet the Examiner relies upon "participants of one or more calls," including the communication device labeled "112 for the [claimed] second communication device." Ans. 5. Accordingly, we sustain the Examiner's rejection of claim 14 based on Cyriac, whether considered alone or in combination with Bataillard, and 8 Appeal2015-005785 Application 12/722,262 claims 16 and 1 7, which Appellants argue are patentable for similar reasons. See App. Br. 28; 37 C.F.R. § 41.37(c)(l)(iv). Claims 18 and 19: Cyriac As with claim 14, Appellants contend "several features in claim 18 have not been addressed as it appears the Examiner has failed to consider the Appellant's previously entered amendments." App. Br. 29 (emphasis omitted). Yet, as above, Appellants fail to identify which specific amended limitations they believe the Examiner failed to address. Appellants further contend the Examiner fails to show "the application sequence process accesses the set of sequenced application rules during a first communication session." App. Br. 31. However, Appellants do not adequately support this argument, and we are not persuaded of error as Cyriac teaches determining which devices should receive a notification message while those devices are on a call, as discussed above. Accordingly, we sustain the Examiner's rejection of claim 18 based on Cyriac, whether considered alone or in combination with Bataillard, and claim 19, which Appellants argue is patentable for similar reasons. See App. Br. 32; 37 C.F.R. § 41.37(c)(l)(iv). lSSUE2 Claim 3: Cyriac & Bataillard Claim 3 recites "identifying at least the first party to the first communication session." The Examiner finds "Bataillard teaches upon connecting a caller to a voice message system ... , the caller may [be] asked for contact information." Ans. 7 (citing Bataillard 7: 15-19). Appellants contend "such identifying information is related to a communication attempt," not a communication session. App. Br. 17 (emphasis added). We 9 Appeal2015-005785 Application 12/722,262 are not persuaded by Appellants' argument. We agree with the Examiner that a caller being connected to a voice message system and leaving a voice message falls within the broadest reasonable interpretation of a "communication session." For the same reason, we reject Appellants' argument that "Bataillard explicitly teaches away from establishing a first communication session" because it only teaches an "attempt." App. Br. 36. Appellants also contend any combination of Cyriac and Bataillard is improper because the combination would render Bataillard "unsatisfactory for its intended purpose." App. Br. 35. Specifically, Appellants argue "Bataillard solves a problem concerning what to do when a communication attempt is unsuccessful" whereas Cyriac teaches what to do when "a communication session is established or successful." Id. (emphasis added). However, this generalized argument fails to address the specific combination for claim 3, where the only use of Bataillard is the simple idea of identifying the caller (Ans. 7), a teaching which applies regardless of whether a communication attempt was successful. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 420-21 (2007) ("The idea that a designer hoping to make an adjustable electronic pedal would ignore Asano because Asano was designed to solve the constant ratio problem makes little sense" because "[ c ]ommon sense teaches ... that familiar items may have obvious uses beyond their primary purposes"). For example, although not necessary for our decision, we note that Cyriac also teaches identifying the devices on a call, a teaching which the Examiner relies upon for all of the independent claims. E.g., Cyriac 8:67-9: 19; Ans. 5---6. We find Appellants' further contention that "there is no motivation nor suggestion to combine Bataillard with Cyriac" unpersuasive for the same 10 Appeal2015-005785 Application 12/722,262 reasons. App. Br. 37. As the Supreme Court has explained, "[a] person of ordinary skill is also a person of ordinary creativity, not an automaton" and "[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 421, 416. Here, Appellants have not persuaded us against the Examiner's conclusion of obviousness based on the familiar element of Bataillard relied upon for claim 3 (i.e., identifying the caller). Accordingly, we sustain the Examiner's rejection of claim 3 over the combination of Cyriac and Bataillard. ISSUE 3 Claim 4, 5, 7, and 20: Cyriac For claims 4, 5, 7, and 20, the Final Action relied on teachings from Bataillard. Final Act. 7, 9. In the Answer, the Examiner relied on further teachings from Cyriac. Ans. 7-8, 10-11. Appellants "note" that the reasoning in the Examiner's Answer is different from that in the Final Action (Reply Br. 8-9), but Appellants did not petition "to designate a rejection as a new ground of rejection in an examiner's answer" under 37 C.F.R. § 41.40(a) and Appellants do not provide any substantive argument against the teachings of Cyriac for these claims. Accordingly, we sustain the Examiner's rejection of claims 4, 5, 7, and 20 based on Cyriac alone or in combination with Bataillard. IssuE4 Claim 8: Cyriac For claim 8, Appellants' only argument against the Examiner's findings for Cyriac is premised on Cyriac "fail[ing] to teach a termination of the first communication session." Reply Br. 8. We reject this "termination" 11 Appeal2015-005785 Application 12/722,262 argument for the same reasons as in claim 1. Accordingly, we sustain the Examiner's rejection of claim 8 based on Cyriac alone or in combination with Bataillard. ISSUE 5 Claims 9 and 23: Cyriac For claim 9, Appellants argue Cyriac "fails to teach that the reconnection of the recipients provides an output to at least one of the first party and the second party." Reply Br. 8. However, Appellants have not further explained this argument, and we are not persuaded by it. First, Cyriac does teach or suggest output to both parties once a call is restored: "the recipients may be reconnected to the call (step 436). This way the call can continue, or at a minimum the recipients that may be impacted by the event can quickly talk to the other participants to tell them they will call back later." Cyriac 10:7-12. Second, Appellants' argument does not address the Examiner's actual rejection, which was instead based on Cyriac teaching "different event notifications" for different recipients. Ans. 9. Accordingly, we sustain the Examiner's rejection of claim 9 based on Cyriac alone or in combination with Bataillard, and claim 23, which Appellants argue is patentable for similar reasons. See App. Br. 35; 37 C.F.R. § 41.37(c)(l)(iv). ISSUE 6 Claim 15: Cyriac Claim 15 recites "a third communication device, wherein an output from the at least one operation of the one or more sequenced applications is provided to the third communication device." Appellants contend "the Examiner fails to identify what output is being provided to a third 12 Appeal2015-005785 Application 12/722,262 communication device." Reply Br. 9. We agree with the Examiner, though, as Cyriac teaches "the notification agent 120 is operable to interrupt multiple calls and provide multiple event notifications to a number of recipients using a single call." Cyriac 9:65-10:2 (emphasis added); Ans. 9-10. Accordingly, we sustain the rejection of claim 15 based on Cyriac alone or in combination with Bataillard. ISSUE 7 Claim 22: Cyriac Claim 22 recites "the first process initiated in response to detecting the termination of the first communication session collects information including content from at least a portion of the communication session between the second communication device and the third communication device" and "the first process provides a first output to the first party containing at least a portion of the collected information." The Examiner relies on claim 7 of Cyriac teaching "third and fourth participants are participating in the common call with the first and second recipients" and "maintaining the connection between the third and fourth participants while the first and second recipients have their connections interrupted." Ans. 11; see also Final Act. 10 (citing Cyriac 9:58-10:30, FIG. 4). However, we agree with Appellants that the cited portions of Cyriac do not teach collecting information about the ongoing communication session, nor teach providing output to the first party (i.e., the party whose connection was terminated) where the output contains at least a portion of the collected information. Reply Br. 9; App. Br. 34. Accordingly, we do not sustain the Examiner's rejection of claim 22. 13 Appeal2015-005785 Application 12/722,262 DECISION For the reasons above, we affirm the Examiner's decision rejecting claims 1, 3-5, 7-11, 13-21, and 23. 3 We reverse the Examiner's decision rejecting claim 22. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(±). AFFIRMED-IN-PART 3 In the event of further prosecution, the Examiner may wish to consider any applicability of 35 U.S.C. § 101 to independent claim 1 and its dependent claims. Whereas the other independent claims recite limitations requiring execution on a server, claim 1 could be performed by the mental processes of two individuals talking who just happened to have mobile phones in their pockets, as the claim does not expressly require the utilization of any communication device or server. 14 Copy with citationCopy as parenthetical citation