Ex Parte Nadalin et alDownload PDFPatent Trials and Appeals BoardApr 12, 201914816892 - (D) (P.T.A.B. Apr. 12, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/816,892 08/03/2015 Eric Nadalin 155371 7590 04/16/2019 FisherBroyles, LLP - Vonage 4316 Brookside Dr. Alexandria, VA 22312 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. 10297-023US1 3740 EXAMINER CHANG, TIJLIAN ART UNIT PAPER NUMBER 2455 NOTIFICATION DATE DELIVERY MODE 04/16/2019 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): docketing@fisherbroy les .com patent@fisherbroyles.com john. eisenhart@fisherbroy les. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIC NADALIN, ISABELLE LEE, and FERNANDO SAN MARTIN Appeal2018-007329 Application 14/816,892 1 Technology Center 2400 Before JOSEPH L. DIXON, HUNG H. BUI, and JON M. JURGOV AN, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-27 and 29-31, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 2 1 According to Appellants, the real party in interest is NEXMO Inc. App. Br. 3. 2 Our Decision refers to Appellants' Appeal Brief ("App. Br.") filed February 5, 2018; the Reply Brief ("Reply Br.") filed July 11, 2018; Examiner's Answer ("Ans.") mailed May 11, 2018; Final Office Action Appeal2018-007329 Application 14/816,892 STATEMENT OF THE CASE Appellants' invention relates to "systems and methods for adaptive routing" by "evaluating a factor associated with [a] primary route [ used to transmit a plurality of messages] with respect to a corresponding factor associated with each alternate route [ for potentially transmitting the plurality of messages]" and "based on the evaluation, determining whether one of the alternate routes should replace the primary route for transmission of the plurality of messages." Title ( capitalization altered); Spec. ,r 3. Claims 1 and 14 are independent. Representative claim 1 is reproduced below: 1. A computer-implemented method comprising: identifying a primary route being used to transmit a plurality of messages, wherein the primary route comprises one or more channels each associated with a particular message type; identifying one or more alternate routes for potentially transmitting the plurality of messages, wherein each alternate route comprises one or more channels each associated with a particular message type; evaluating at least one factor associated with the primary route with respect to at least one corresponding factor associated with each alternate route, wherein the at least one factor comprises communication regulations or restrictions; and based on the evaluation, determining whether one of the alternate routes should replace the primary route for transmission of the plurality of messages. App. Br. 20-25 (Claims App'x). ("Final Act.") mailed August 3, 2017; and original Specification ("Spec.") filed August 3, 2015. 2 Appeal2018-007329 Application 14/816,892 Desai et al. ("Desai") Frederick et al. ("Frederick") Goodman Gassend Hettervik et al. ("Hettervik") Davis et al. ("Davis") Evidence Considered US 2016/0112941 Al Apr. 21, 2016 US 2014/0173002 Al June 19, 2014 US 2005/0177599 Al Aug. 11, 2005 US 2013/0279472 Al Oct. 24, 2013 US 2016/0127370 Al May 5, 2016 US 2014/0075506 Al Mar. 13, 2014 Examiner's Rejections (1) Claims 1-10, 13-23, 26, 27, and 30 stand rejected under 35 U.S.C. § 103 as being unpatentable over Desai, Frederick, and Goodman. Final Act. 3-15. 3 (2) Claims 11 and 24 stand rejected under 35 U.S.C. § 103 as being unpatentable over Desai, Frederick, Goodman, and Gassend. Final Act. 15- 16. (3) Claims 12 and 25 stand rejected under 35 U.S.C. § 103 as being unpatentable over Desai, Frederick, Goodman, and Hettervik. Final Act. 16. ( 4) Claims 29 and 31 stand rejected under 35 U.S.C. § 103 as being unpatentable over Desai, Frederick, Goodman, and Davis. Final Act. 16-1 7. 3 The Examiner also rejected claim 28. Final Act. 15. Claim 28, however, was cancelled by Amendment on October 16, 2017, as evidenced by the Examiner's Advisory Action dated October 27, 2017. 3 Appeal2018-007329 Application 14/816,892 ANALYSIS Claims 1-3, 5-16, 18-27, and 29-31 With respect to independent claim 1, the Examiner finds Desai' s method for automatic selection of a connection teaches a method identifying a primary route being used to transmit a plurality of messages, and one or more alternate routes for potentially transmitting the messages, as claimed. Final Act. 4 (citing Desai ,r,r 39--40, 58, Fig. 7). The Examiner further finds Desai' s connection selection method evaluates at least one factor associated with the primary route with respect to a corresponding factor associated with alternate routes to determine whether an alternate route should replace the primary route, as claimed. Final Act. 4--5 (citing Desai ,r,r 39--40, 98). To support the conclusion of obviousness, the Examiner relies on (1) Frederick for teaching primary and alternate routes for message delivery comprise "one or more channels each associated with a particular message type" and (2) Goodman for teaching evaluating a factor associated with a primary route with respect to a corresponding factor associated with an alternate route, the factor comprising "communication regulations or restrictions," as claimed. Final Act. 5---6 (citing Frederick ,r,r 56, 179, Fig. 1; Goodman ,r 38). Appellants dispute ( 1) the Examiner's factual findings regarding Frederick, and (2) the Examiner's rationale for combining Desai, Frederick, and Goodman. In particular, Appellants argue "Frederick is incapable to deliver[] a plurality of messages as claimed" because Frederick's messaging method makes "a decision about which route to use ... each time that a message is to be delivered to the user." App. Br. 10; Reply Br. 5 (citing Frederick ,r,r 151-157, Fig. 20). Appellants further argue the combination of Desai and Goodman cannot teach the claimed "evaluating at least one factor 4 Appeal2018-007329 Application 14/816,892 ... [that] comprises communication regulations or restrictions" because Goodman's "[a]nti-spam laws and regulations ... apply to the delivery of email messages" but "have no applicability to audio channels that are used to carry [Desai's] audio telephone calls." App. Br. 11 (emphasis added); see also Reply Br. 5-6. Appellants also dispute the Examiner's rationale for combining the references, and assert the skilled artisan "would not modify Desai's routing methods based on the teachings of Frederick and Goodman." Reply Br. 3. In particular, Appellants argue Desai is not combinable with Frederick and Goodman because (i) "modify[ing] Desai's methods so that they require the extra steps of Goodman's methods ... would cause unacceptable delay in the setup of a new telephone call [in Desai]," and (ii) "Frederick's methods for selecting an available route are necessarily more time consuming than the one [method] disclosed in Desai." App. Br. 13-14; Reply Br. 3---6. Appellants' arguments are not persuasive. Instead, we find the Examiner has provided a comprehensive response to Appellants' arguments supported by a preponderance of evidence. Ans. 3-9. Therefore, we adopt the Examiner's findings and explanations provided therein. Id. For additional emphasis, we note Frederick does not "make a new routing decision each time that a message is ready for delivery" as Appellants assert. See Reply Br. 5 ( emphasis added). Rather, Frederick discloses channel rankings ( and thus, message routing) may be periodically evaluated, such that one routing channel may be selected to route multiple messages. Ans. 4 (citing Frederick ,r,r 48, 61, 68-71). For example, Frederick's messaging system may identify one routing channel to transmit multiple messages or events: 5 Appeal2018-007329 Application 14/816,892 The channel rankings 150 may be determined according to subscriber history ... correspond[ing] to a complete or partial record of the interaction between subscriber 120 and social networking service 110 or notification engine 130 for a defined time period ( e.g., days, weeks, years, etc.). For example, the channel rankings 150 may be higher for a particular delivery channel if the subscriber 120 has a subscriber history which indicates a preference for or a greater likelihood to respond to that delivery channel. ... [T]he decision of whether and how to transmit an event 115 to a subscriber 120 may depend on a correlation between the event 115 and the channel rankings 150. Subscriber preferences set by the subscriber 120 . . . may comprise an explicit indication by the subscriber 120 that certain types of events should always be or should never be communicated via a particular delivery channel. Preferences may comprise an explicit indication by the subscriber 120 that certain delivery channels are preferred or are not preferred for the communication of events or for the communication of certain types of events. [A] machine learning component 220 may be operative to adjust weights which are specific to a delivery channel but global across type of event, to adjust weights which are specific to a type of event but global across delivery channel, and to adjust weights which are specffic to both delivery channel and type of event. These weights may be combined together during the determination of the channels 145 by channel component 140. In some embodiments, two events may be combined together whenever more than one event is pending for a subscriber 120, whenever more than one event of the same type is pendingfor a subscriber 120, or whenever more than one event is pending for a subscriber 120 across a particular delivery channel. Frederick ,r,r 48, 50, 68, 73 ( emphases added). Based on Frederick's teachings, we are not persuaded by Appellants' contention that "Frederick is incapable to deliver[] a plurality of messages as 6 Appeal2018-007329 Application 14/816,892 claimed" and that "a decision about which route to use is made [by Frederick] each time that a message is to be delivered to the user." App. Br. 10; Reply Br. 5. We also note Desai alone teaches identifying a primary route for transmitting multiple messages, the "primary route compris[ing] one or more channels each associated with a particular message type" as recited in claim 1. Claim 1 merely requires the primary route ( and similarly, the alternate route) to comprise one channel associated with a message type. Desai teaches a primary route ( and similarly, an alternate route) includes one channel associated with a message type. See Desai ,r,r 23 ("some connections may only support audio calling, others may also support low definition video calling, and others may support high definition audio and video calling"), 27 ("connection types may illustratively include Wi-Fi 205 that can support data and voice calls over VoIP, cellular circuit-switched voice 210, cellular packet-switched data 215, wireline 220 such as Ethernet and PSTN, and various other connections 225 such as Whitespace, Bluetooth, and the like"); Ans. 5 ( citing Desai ,r,r 22-23, 27); Final Act. 4. This is commensurate with the description of a channel's associated message type in Appellants' Specification. (See Spec. ,r,r 9, 25, 27). Appellants further argue the combination of Desai and Goodman does not teach the claimed evaluation of a route "factor compris[ing] communication regulations or restrictions" because Goodman's "[a]nti-spam laws and regulations, which apply to the delivery of email messages, have no applicability to [Desai' s] audio channels that are used to carry audio telephone calls." App. Br. 11. The Examiner responds that (1) the term "SP AM may include unwanted text messages (i.e., SpaSMS), and unwanted VoIP (i.e., SPIT)" and (2) "it would have been obvious for one of ordinary 7 Appeal2018-007329 Application 14/816,892 skill in the art to apply [Goodman's] anti-SPAM regulation compliance to other regulations related to phone calls (e.g., do-not-call regulations)." Ans. 7 (citing https://en.wikipedia.org/wiki/Spamming). In the Reply Brief, Appellants argue "[ n ]either Goodman, nor any knowledge generally available to those of ordinary skill in the art would teach how to prevent the setup or completion of unwanted telephone calls" using do-not-call regulations. Reply Br. 6. Appellants also assert "Goodman is able to identify a particular email message as likely being a SP AM message because Goodman can review the content and form of the email message" but "[w]hen one is dealing with the setup of telephone calls, this is not possible." Reply Br. 6 ( emphasis added). We remain unpersuaded by Appellants' arguments because neither Goodman, nor the Examiner's rejection requires reviewing the content of communications to identify spam. Rather, Goodman may identify spam by checking a recipient's information ( e.g., email address) against do-not spam lists. For example, Goodman teaches a client "may query a do-not-spam list" or a "do-not-send[] list maintained by the federal government, the Direct Marking Association, or any other [governments] or organizations" to "determine if recipient 108 is included in such a list," and "[i]frecipient 108 is included in such a do-not-spam list, client 104 may determine not to send communication 124 to recipient 108 or may send communication 124 to recipient 108 via a compliant channel." See Goodman ,r 32. Goodman's client is also able to "identify[] the telephonic address from which an incoming telephone call is sent (e.g., a caller identification (ID) machine)." See Goodman ,r 29. Further, Goodman describes "query[ing] a phone bank 222 using a telephonic address from which incoming communication 204 is transmitted in order to determine the location of recipient" to identify that 8 Appeal2018-007329 Application 14/816,892 location's anti-spam rules, laws, and regulations. See Goodman ,r,r 37-38, 40. We therefore agree with the Examiner it would have been obvious to a skilled artisan to apply Goodman's anti-spam screening to telephone calls. Ans. 7; Final Act. 6. Additionally, Desai determines best transmission routes by evaluating message characteristics (e.g., emergency calls) and message restrictions (e.g., connection policies for job-related calls), thereby also suggesting evaluation of "communication regulations or restrictions" as claimed and described in Appellants' Specification. See Desai ,r,r 45, 4 7. 4 We are also unpersuaded that a skilled artisan would not combine Desai with Frederick because "Frederick's methods for selecting an available route are necessarily more time consuming than the [ method] disclosed in Desai." App. Br. 13-14; see also Reply Br. 2-5. Appellants' support for this argument relies upon Appellants' previous argument that Frederick makes a new routing decision each time a message is to be delivered. Reply Br. 4--5; App. Br. 9-10, 13, 15. As discussed supra, we are not persuaded by Appellants' argument that Frederick makes a new routing decision each time a message is to be delivered. Appellants additionally argue "modify[ing] Desai's methods so that they require the extra steps of Goodman's methods ... would cause unacceptable delay in the setup of a new telephone call [in Desai]." App. Br. 13-15; see also Reply Br. 3. Appellants argue Goodman causes "a thirty to forty second [ routing] delay" which is unacceptable for telephone calls. 4 Appellants' Specification provides that "Communication Regulations, Laws, or Regional Requirements" include "[a]n indication of whether the channel can be used based on the content type, ... privacy, or data security." See Spec. ,r 38, Table 1. 9 Appeal2018-007329 Application 14/816,892 App. Br. 14. Appellants further argue Goodman's approach is not suitable for Desai because Goodman "use[ s] considerably more system resources to achieve routing than Desai's methods." App. Br. 14; Reply Br. 3. However, Appellants have provided insufficient evidence supporting these arguments. Ans. 8. We agree with the Examiner that Goodman is combinable with Desai to advantageously enable compliance with anti-spam laws and regulations. Ans. 8-9. For these reasons, Appellants' arguments have not persuaded us of Examiner error. Accordingly, we sustain the Examiner's obviousness rejection of claim 1, and similarly, independent claim 14 for which Appellants provide the same arguments, and dependent claims 2, 3, 5-10, 13, 15, 16, 18-23, 26, 27, and 30 argued for their dependency. App. Br. 15- 16. With respect to dependent claims 11, 12, 24, 25, 29, and 31, Appellants provide substantially the same arguments as for independent claims 1 and 14, and additionally argue that Gassend, Hettervik, and Davis do not cure the alleged deficiencies of Desai, Frederick, and Goodman. App. Br. 17-18. Because we find the combination of Desai, Frederick, and Goodman is not deficient, Gassend, Hettervik, and Davis are not needed to cure any deficiency, and therefore we sustain the rejection of dependent claims 11, 12, 24, 25, 29, and 31 for the reasons stated with respect to the independent claims. 10 Appeal2018-007329 Application 14/816,892 Claims 4 and 17 Claim 4 depends from claim 1 and further recites: tracking over a period of time an average length of time to receive a delivery receipt based on a transmitted message over a particular channel of the primary route, wherein the at least one factor further comprises channel delivery receipt delay, and wherein evaluating the factor comprises determining that the delivery receipt delay of the particular channel of the primary route exceeds a maximum delay threshold. App. Br. 21 (Claims App'x). The Examiner finds Frederick's paragraphs 65 and 109 teach "tracking over a period of time an average length of time to receive a delivery receipt based on a transmitted message over a particular channel of the primary route," as claimed. Final Act. 10 ( citing Frederick ,r 65); Ans. 9 (citing Frederick ,r 109). The Examiner further finds Frederick's paragraphs 66, 68, 90, and 109 teach a route evaluation factor "comprises channel delivery receipt delay" and "evaluating the factor comprises determining that the delivery receipt delay of the particular channel of the primary route exceeds a maximum delay threshold." Final Act. 10-11 ( citing Frederick ,r,r 66, 68, 90); Ans. 9. Appellants argue Frederick does not teach or suggest "evaluating channels based on the respective delivery receipt delay occurring on the channels" and "determining that the delivery receipt delay of the particular channel of the primary route exceeds a maximum delay threshold," as required by claim 4. Reply Br. 7-8; App. Br. 17. We agree with Appellants. Frederick's "automatic response" in paragraph 109 is used "for determining presence" of a mobile device (i.e., determining whether a user is present on the mobile device and has not 11 Appeal2018-007329 Application 14/816,892 disconnected or turned off the device). See Frederick ,r 109; see also Frederick ,r,r 122-123. The "time-to-live (TTL) timer" described in Frederick's paragraph 90 is similarly used to determine whether a mobile device is available. See Frederick ,r 90. Frederick, however, does not disclose the use of a channel evaluation factor ("channel delivery receipt delay") for evaluating a channel by "determining that the delivery receipt delay of the particular channel of the primary route exceeds a maximum delay threshold" as required by claim 4 in view of base claim 1. Reply Br. 8; App. Br. 16-17. As the Examiner has not identified sufficient evidence to support the rejection of claim 4, we do not sustain the Examiner's§ 103 rejection of claim 4, and claim 17 reciting similar limitations. CONCLUSION On the record before us, we conclude Appellants have not demonstrated the Examiner erred in rejecting claims 1-3, 5-16, 18-27, and 29-31 under 35 U.S.C. § 103, but have demonstrated the Examiner erred in rejecting claims 4 and 17 under 35 U.S.C. § 103. DECISION As such, we affirm the Examiner's Final Rejection of claims 1-3, 5- 16, 18-27, and 29-31 under 35 U.S.C. § 103. However, we reverse the Examiner's Final Rejection of claims 4 and 17 under 35 U.S.C. § 103. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 12 Copy with citationCopy as parenthetical citation