Ex Parte GuptaDownload PDFPatent Trial and Appeal BoardNov 24, 201412326636 (P.T.A.B. Nov. 24, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PUNEET K. GUPTA ____________________ Appeal 2012-007892 Application 12/326,636 Technology Center 2400 ____________________ Before CARLA M. KRIVAK, CARL W. WHITEHEAD JR., and HUNG H. BUI, Administrative Patent Judges. PER CURIAM DECISION ON APPEAL Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1 and 3.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.3 1 The Real Party in Interest is Metriscape, Br. 3. 2 Claim 2 has been canceled and is not on appeal. 3 Our decision refers to Appellant’s Appeal Brief filed November 15, 2011 (“App. Br.”); Examiner’s Answer mailed December 21, 2011 (“Ans.”); and original Specification filed December 2, 2008 (“Spec.”). Appeal 2012-007892 Application 12/326,636 2 STATEMENT OF THE CASE Appellant’s Invention Appellant’s invention discloses a communication system equipped with a single, comprehensive application (software) to integrate (1) an instant message (IM) interface and a calendar interface. Spec. 18:18–24. Users are connected via a network where software code operating on a user’s device (e.g., laptop or mobile device) allows the user to organize and categorize IM contacts, detect online activity and location of contacts, share calendars of selected contacts and merge his or her calendar with another user’s calendar if the other user has authorized sharing. The merged calendar provides one user information regarding at least open dates and times common to two users. Id. at 42:17–45:10, Figs. 10–11, and Abstract. Representative Claim Claim 1 is the only independent claims on appeal. Representative claim 1 is reproduced below: 1. A communication system comprising: an instant messaging software application executing on a computerized appliance from a non-transitory machine-readable medium, the application comprising: code categorizing and organizing contacts; code detecting online activity and current online location of listed contacts; a shared calendar utility wherein individual users may indicate and schedule future activities by date and time, including ability for each user to authorize sharing parameters such that other users may view other users schedules; and code providing one user ability to merge his or her calendar with another user’s calendar if the other user has authorized sharing, the merged calendar providing the one user Appeal 2012-007892 Application 12/326,636 3 information regarding at least open dates and times common to the two users. App. Br. 12 (Claims Appendix) (emphasis added). Evidence Considered Shah US 2005/008048 A1 Apr. 14, 2005 Tam US 7,118,073 B1 Mar. 6, 2007 Groves US 7,383,308 B1 Jun. 3, 2008 Examiner’s Rejections4 (1) Claim 1 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Shah, Groves, and Tam. Ans. 5–7. (2) Claim 3 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Shah, Groves, Tam, and Swearingen. Ans. 7–8. Issues on Appeal Based on Appellant’s arguments, the dispositive issue on appeal is whether the combination of Shah, Groves, and Tam discloses or suggests “a shared calendar utility wherein individual users may indicate and schedule future activities by date and time, including ability for each user to authorize sharing parameters such that other users may view other users schedules” and “code providing one user ability to merge his or her calendar with 4 In Appellant’s Appeal Brief, Appellant also identifies an objection to claim 1. App. Br. 8. However, that objection has been withdrawn and, as such, is no longer on appeal. Ans. 4. Appeal 2012-007892 Application 12/326,636 4 another user’s calendar if the other user has authorized sharing” as recited in Appellant’s independent claim 1. App. Br. 9–11. ANALYSIS As an initial matter, we note Appellant’s independent claim 1 includes a wherein clause containing optional elements, i.e., “wherein individual users may indicate and schedule future activities by date and time, including ability for each user to authorize sharing parameters such that other users may view other users schedules” (emphasis added). In our view, such a wherein clause does not narrow the scope of the claim because these limitations are stated in the possibility or probability form “may.” As a matter of linguistic precision, “optional elements do not narrow the claim because they can always be omitted.” See In re Johnston, 435 F.3d. 1381, 1384 (Fed. Cir. 2006). Assuming arguendo that weight may be given to the disputed “wherein” clause, we find the preponderance of evidence supports the Examiner’s findings that: (1) Shah discloses “code providing one user ability to merge his or her calendar with another user’s calendar if the other user has authorized sharing” and (2) Tam discloses “a shared calendar utility wherein individual users may indicate and schedule future activities by date and time, including ability for each user to authorize sharing parameters such that other users may view other users schedules” as recited in Appellant’s independent claim 1. Ans. 9–16 (citing Shah ¶ 86; Tam 9:1– 6, 12:19–38, 28:24-30, 29:6–27, Fig. 26, Fig. 28 and Fig. 29). In the absence of Appellant’s response, we also find the combined teachings of Appeal 2012-007892 Application 12/326,636 5 Shah, Groves, and Tam would have suggested the subject matter of Appellant’s independent claim 1. Accordingly, we sustain the Examiner’s obviousness rejection of independent claim 1 and its dependent claim 3, which was not argued separately, for the reason set forth in the Answer, which we incorporate herein by reference. DECISION As such, we AFFIRM the Examiner’s final rejection of claims 1 and 3. 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). AFFIRMED lp Copy with citationCopy as parenthetical citation