Ex Parte Nadalin et al

Patent Trials and Appeals Board

Apr 12, 2019

14816892 - (D) (P.T.A.B. Apr. 12, 2019)

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.
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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.
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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
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... [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:
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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
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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
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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
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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.
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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.
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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
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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
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