Ex Parte Kamat et al

Patent Trial and Appeal BoardFeb 15, 2019

14812002 (P.T.A.B. Feb. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/812,002 07/29/2015 48500 7590 02/20/2019 SHERIDAN ROSS P.C. 1560 BROADWAY, SUITE 1200 DENVER, CO 80202 FIRST NAMED INVENTOR Durgesh Kamat 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. 4366-747 9387 EXAMINER LOUIS-FILS, NICOLE M ART UNIT PAPER NUMBER 2646 NOTIFICATION DATE DELIVERY MODE 02/20/2019 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 DURGESH KAMAT, PUNEET KUMAR, and PRACH! KAJARIA 1 Appeal2018-006921 Application 14/812,002 Technology Center 2600 Before JENNIFER S. BISK, LARRY J. HUME, and JULIET MITCHELL DIRBA, Administrative Patent Judges. DIRBA, Administrative Patent Judge. DECISION ON APPEAL 2 This is a decision on appeal under 35 U.S.C. Â§ 134(a) of the Final Rejection of claims 1-8, 11-14, 18, and 19. The Examiner objected to claims 9, 10, 15-17, and 20. Final Act. 1, 6. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 According to Appellants, Avaya Inc. is the real party in interest. App. Br. 2. 2 Our decision relies upon Appellants' Appeal Brief, filed Apr. 2, 2018 ("App. Br."); Appellants' Reply Brief, filed June 25, 2018 ("Reply Br."); Examiner's Answer, mailed Apr. 24, 2018 ("Ans."); Final Office Action, mailed Nov. 27, 2017 ("Final Act."); and the original Specification, filed July 29, 2015 ("Spec."). Appeal2018-006921 Application 14/812,002 BACKGROUND Appellants' disclosed embodiments and claimed invention relate to a telephony system that manages a call disconnection. Spec. ,r 1; Abstract. Claim 1, reproduced below, is representative of the subject matter on appeal (emphasis added to contested limitation): 1. A server, comprising: a network interface configured to receive and route calls; a data store comprising a forking record for a called device indicating an associated forked device; a processor configured to receive a call, access the forking record, determine the call is addressed to the called device and, in response to the determination, generate a forked call to the forked device, and cause the network interface to route the forked call to the forked device; and the processor being further configured to, in response to the network interface receiving a disconnect message from the forked device, route the received call to a voicemail server associated with at least one of the called device and the forked device. App. Br. 12 (Claims App'x). THE REJECTION Claims 1-8, 11-14, 18, and 19 stand rejected under 35 U.S.C. Â§ I02(a)(2) as anticipated by Shtiegman (US 2008/0002820 Al, published Jan. 3, 2008). CLAIM GROUPING Based on Appellants' arguments (App. Br. 4--10) and our discretion under 3 7 C.F .R. Â§ 41.3 7 ( c )( 1 )(iv), we decide the appeal of anticipation 2 Appeal2018-006921 Application 14/812,002 Rejection RI of claims 1-8, 11-14, 18, and 19 on the basis of representative claim 1. 3 ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. To the extent Appellants have not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. Â§ 4I.37(c)(l)(iv). We disagree with Appellants' arguments with respect to claim 1. We highlight and address specific findings and arguments regarding this claim for emphasis as follows. Anticipation Rejection of Claim 1 Claim 1 recites "receiving a disconnect message from the forked device." Appellants argue that Shtiegman fails to disclose this limitation. App. Br. 4--10; Reply Br. 1-5. Specifically, Appellants argue Shtiegman is deficient because the claim requires the "disconnect message" to be sent from a forked device after a call has been answered by the forked device. Id. 3 When addressing the dependent claims, Appellants primarily rely upon the arguments presented for claim 1, but also state "[ a ]dditional reasons supporting allowance of the dependent claims is [sic] also believed to be evident." App. Br. 10. Appellants neither identify specific limitations from these claims, nor provide any substantive arguments regarding these limitations. Id. Accordingly, we do not consider Appellants to separately argue these dependent claims. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential); see also 37 C.F.R. Â§ 4I.37(c)(l)(iv) (2014) ("The arguments shall explain why the examiner erred as to each ground of rejection contested by appellant."). 3 Appeal2018-006921 Application 14/812,002 Accordingly, we first evaluate the proper construction of the claim term "disconnect message." During prosecution, claims must be given their broadest reasonable interpretation in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. A cad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard, we interpret claim terms using "the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant's specification." In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appellants contend a "disconnect message" requires an ongoing call, i.e., a call that was previously answered. 4 App. Br. 6-7; Reply Br. 2-3. In support, Appellants point to the ordinary use of the word "disconnect," reasoning that "it would be nonsensical to disconnect devices that are not connected." App. Br. 6. In addition, Appellants point to an "SIP Protocol" document to support Appellants' understanding of the term "disconnect." 4 We note that, although Appellants sometimes cast the dispute in terms of whether a connection (of any sort) is a prerequisite for a "disconnect message," Appellants' arguments make it clear that the salient issue is whether a call must be connected (i.e., answered) before a disconnect message can be sent. See, e.g., App. Br. 6 (reasoning that "disconnect" requires a "connect" and then asserting that "disconnect" cannot be equated with "no answer"); id. at 7 ("Counter to [sic] the Examiner's position 'temporarily unavailable, no answer, do not disturb' are not disconnect messages."); id. at 9 (equating connected with answered and connected call); Reply Br. 4 ("Appellant maintains that there is no connection when a call is placed but results in any one of 'temporarily unavailable, no answer, do not disturb or a failure in the system."'). 4 Appeal2018-006921 Application 14/812,002 Id.; see id. at 4 (introducing and defining "SIP Protocol"); see also id. at 15- 17 ("Dictionary Appendix" allegedly quoting excerpts of the SIP Protocol). The Examiner responds the claim does not require "that the call has been connected," and the Examiner submits that the language of claim 1 does not exclude a disconnect message caused by a forked device being temporarily unavailable, not answering, or set to "do not disturb." Ans. 2-3. We are not persuaded by Appellants' arguments regarding the meaning of "disconnect message." First, even if the term "disconnect" suggests the termination of an existing connection, Appellants fail to show that a post-answer connection, specifically, is required. Second, we have considered, but place no weight on, Appellants' reference to the SIP Protocol-this document is not a dictionary or technical treatise, and it would constitute improper new evidence. 5 See 37 C.F.R. Â§ 4I.37(c)(2) ("A brief shall not include ... any new or non-admitted affidavit or other Evidence."); id. Â§ 41.30 (defining evidence to include things that tend to prove or disprove a fact, except for "dictionaries"); see also Phillips v. A WH Corp., 415 F.3d 1303, 1322-23 (Fed. Cir. 2005) (en bane) (noting that "dictionaries and technical treatises" aid in the construction of claim terms). In particular, the excerpts of the SIP Protocol in Appellants' "Dictionary Appendix" do not aid in the construction of the term "disconnect message." They do not define the term "disconnect" or "disconnect message," and in 5 Further, Appellants submit that excerpts from the SIP Protocol are quoted in Appellants' "Dictionary Appendix," but Appellants fail to include a copy of the SIP Protocol itself. In addition, Appellants fail to identify where the SIP Protocol can be found in the Application's file history. (Appellants inclusion of a website link is insufficient, as it fails to make a clear record.) 5 Appeal2018-006921 Application 14/812,002 fact, the appendix fails to even include the word "disconnect." App. Br. 15- 17. Rather, we review the Specification for guidance on the broadest reasonable interpretation of the term "disconnect message." See Phillips, 415 F.3d at 1315 (emphasizing specification's importance in claim construction). Although the Specification refers to "disconnect message" only once (Spec. ,r 18), it discusses a "disconnect" in the context of several different embodiments. Notably, several of these "disconnects" occur before a call is answered. E.g., id. ,r,r 10, 46-48, 51, 65. For example, Figure 2 shows a situation where a called party 104 "has not answered forked device 112" because, for example, forked device 112 is busy. Id. ,r 46. Forked device 112 reports disconnect 202 to call server 110 to indicate that it is busy. Id. ,r 48. Figure 3 depicts another pre-answer scenario where a disconnect is sent when a device is "busy, disconnected, drops or indicates that the call should be dropped." Id. ,r 51. In addition, the context of the claims indicates a "disconnect message" may be sent before a call is answered. See Phillips, 415 F.3d at 1314 (noting other claims can provide insight into the meaning of a term). Claim 4, which depends from claim 1, states that "device busy[] and unavailable" are two of the possible "reason[ s] for the disconnect" associated with the disconnect message. App. Br. 12 (Claims App 'x). 6 If a disconnect message is sent because a device is busy, then it follows that the call was not 6 While dependent claim 4 may be seen as narrowing the scope of independent claim 1 under the doctrine of claim differentiation (see Howmedica Osteonics Corp. v. Zimmer, Inc., 822 F.3d 1312, 1323 (Fed. Cir. 2016)), we note claim 1, while broader, must therefore at least encompass the narrower embodiment recited in dependent claim 4. 6 Appeal2018-006921 Application 14/812,002 answered. This further demonstrates that the "disconnect message" recited in claim 1 can be sent before a call is answered and connected. Thus, the Specification describes embodiments of a "disconnect" that occur before a call has been answered, and the claims do not preclude sending a "disconnect message" before a call is answered and connected. Accordingly, as a matter of claim construction, we conclude that the recited "disconnect message" does not require a call to have been answered. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996) (noting that a construction that excludes a preferred embodiment "is rarely, if ever, correct and would require highly persuasive evidentiary support"). Given this construction, Appellants' arguments fail to show error in the Examiner's factual findings of anticipation of claim 1. In particular, the Examiner pointed to paragraphs 250 and 251 of Shtiegman for the disputed limitation. Final Act. 4. The cited paragraphs state: LS [Live Server] would run the call timers. When there is no answer, LS would send out a CANCEL for the existing INVITEs, and ensure that the right forwarding rules are applied on no answer. LS also ensures that the time criterion for forwarding calls are respected. LS finally retargets the call to the call forward on no answer destination, which is usually set to Voicemail for UC enabled users. Shtiegman ,r,r 250-51. With respect to this passage, Appellants only argue that Shtiegman's CANCEL message fails to disclose a disconnect message because it occurs upon a "'no answer' state." App. Br. 8 (emphasis removed). 7 However, as explained above, this is not commensurate with the 7 In the Reply Brief, Appellants also state this "portion of Shtiegman, and the entirety of the reference, [are] silent to any teaching of any forked device 7 Appeal2018-006921 Application 14/812,002 broadest reasonable interpretation of claim 1, which does not require a call to be answered. The Examiner found Shtiegman discloses receiving a disconnect message from a forked device and, in response, routing the received call to voicemail. Final Act. 2, 4 (citing Shtiegman ,r,r 250-51, 135, and Fig. 65, among other passages). We agree that the reference discloses the claim limitation. E.g., Shtiegman ,r,r 239--51 ( disconnect message disclosed by CANCEL message), Fig. 65 ( described ,r,r 646-4 7, disconnect message disclosed by deflection to voicemail); see also id. ,r,r 296-303 ( describing embodiment where user sends caller to voicemail). Accordingly, we are not persuaded of error in the Examiner's finding that Shtiegman discloses "receiving a disconnect message from the forked device," as recited by claim 1. Finally, Appellants assert that the Examiner took official notice that error messages taught the claimed "disconnect message." App. Br. 7; Reply Br. 2. However, we find the Examiner's factual findings regarding the disclosure of Shtiegman do not constitute official notice. See MPEP Â§ 2144.03 (9th ed. 2018) (providing for official notice "of facts not in the record" or regarding "'common knowledge"'). Further, Appellants fail to explain "why [a] noticed fact is not considered to be common knowledge or well-known in the art," and thus, even assuming the Examiner did rely upon or any disconnect from aforked device." Reply Br. 2 (emphasis in original). Appellants did not previously contend that Shtiegman fails to disclose a forked device. See generally App. Br. 4--10. In addition, we see no error in the Examiner's finding that Shtiegman discloses a forked device. See Final Act. 4 ( citing Shtiegman ,r 249 for "rout[ing] the forked call to the forked device"); Shtiegman ,r 249 ("LS forks the call to the user's endpoints .... "); see also id. ,r,r 24 7--48 ( disclosing call forking to a user's endpoint and/ or team members). 8 Appeal2018-006921 Application 14/812,002 official notice, a fact we do not acknowledge, Appellants do not adequately traverse any finding of official notice. See id. ("To adequately traverse [a finding of official notice], an applicant must ... stat[ e] why the noticed fact is not considered to be common knowledge or well-known in the art.") Accordingly, this argument does not persuade us of error. Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the cited prior art to disclose the disputed limitation of claim 1, nor do we find error in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection of independent claim 1, and grouped claims 2-8, 11-14, 18, and 19, which fall therewith. See Claim Grouping, supra. DECISION We AFFIRM the Examiner's decision rejecting claims 1-8, 11-14, 18, and 19. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). See 37 C.F.R. Â§ 4I.50(f). AFFIRMED 9