Avaya Inc.

Patent Trials and Appeals Board

Feb 2, 2021

2019005310 (P.T.A.B. Feb. 2, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/673,440 03/30/2015 Ori Modai 648.0134 1348
93379 7590 02/02/2021
Setter Roche LLP
1860 Blake Street
Suite 100
Denver, CO 80202
EXAMINER
FEILD, JOSEPH H
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
02/02/2021 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):
pair_avaya@firsttofile.com
sarah@setterroche.com
uspto@setterroche.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ORI MODAI and JOHN YOAKUM
____________

Appeal 2019-005310
Application 14/673,440
Technology Center 2600
____________

Before JOHNNY A. KUMAR, CATHERINE SHIANG, and
SCOTT E. BAIN, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–20, which are all the claims pending and rejected in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies Avaya Inc. as the real party in interest. Appeal Br. 2.

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Application 14/673,440

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STATEMENT OF THE CASE
Introduction
The present invention relates to “telemedicine services.” Spec. ¶ 2.
In a particular embodiment, a method provides collecting
medical telemetry of a user of the user communication device
and processing the medical telemetry to identify abnormalities
therein. Upon identifying at least one abnormality in the medical
telemetry, the method provides determining whether the at least
one abnormality indicates that the user is experiencing a health
issue. After determining that the at least one abnormality
indicates that the user is experiencing the health issue, the
method provides transferring a health notification indicating the
health issue to the application service provider.
Spec. ¶ 4.
Claim 1 is exemplary:
1. A non-transitory computer readable storage medium
having instructions stored thereon that, when executed by a user
communication device, direct the user communication device to
communicate with an application service provider based on
medical telemetry, the method comprising:
collecting medical telemetry of a user of the user
communication device;
processing the medical telemetry to identify
abnormalities therein;
upon identifying at least one abnormality in the medical
telemetry, determining whether the at least one abnormality
indicates that the user is experiencing a particular health issue
of a plurality of health issues that could be indicated by
abnormalities in the medical telemetry;
after determining that the at least one abnormality
indicates that the user is experiencing the health issue,
transferring a health notification indicating the health issue
from the user communication device to the application service
provider, wherein the application service provider uses the
health issue indicated by the health notification to determine a
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routing within the application service provider for a user
communication with the user communication device and a
priority for the user communication relative to other user
communications being handled by the application service
provider, wherein each health issue of the plurality of health
issues is associated with a respective priority relative to other
health issues of the plurality of health issues.

References and Rejections2
Claims
Rejected
35 U.S.C. § References
1–9, 11–20 103 Tran (US 2014/0055284 A1, published
Feb. 27, 2014), Libbus (US
2015/0015417 A1, published Jan. 15,
2015), Campbell (US 2004/0183668 A1,
published Sept. 23, 2004).
10 103 Tran, Libbus, Campbell, Bittman (US
9,368,014 B1, issued June 14, 2016)

ANALYSIS
Obviousness
On this record, the Examiner did not err in rejecting claim 1.
We have reviewed and considered Appellant’s arguments, but such
arguments are unpersuasive. To the extent consistent with our analysis
below, we adopt the Examiner’s findings and conclusions in (i) the action
from which this appeal is taken and (ii) the Answer.3

2 Throughout this opinion, we refer to the (1) Final Office Action dated Jan.
25, 2018 (“Final Act.”); (2) Appeal Brief dated Aug. 7, 2018 (“Appeal Br.”);
(3) Examiner’s Answer dated May 2, 2019 (“Ans.”); and (4) Reply Brief
dated July 2, 2019 (“Reply Br.”).
3 To the extent Appellant advances new arguments in the Reply Brief
without showing good cause, Appellant has waived such arguments. See 37
C.F.R. § 41.41(b)(2).
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Appellant contends neither Campbell nor Libbus teaches “wherein the
application service provider uses the health issue indicated by the health
notification to determine a routing within the application service provider for
a user communication with the user communication device and a priority for
the user communication relative to other user communications being handled
by the application service provider,” as recited in claim 1. See Appeal Br.
7–8; Reply Br. 2–3. In particular, Appellant argues:
A mere alarm signal [from Campbell] is not a user
communication with a user device, as required by claim 1. Even
if Tran and Libbus disclose a user communication with a user
device, there is no teaching or suggestion in Campbell that the
disclosed alarm signal prioritization would be used for
prioritizing anything analogous to a user communication.
Instead, the alarm signal of Campbell is most analogous to the
health notification of claim 1 with the health issue indicated by
the health notification being analogous to the alarm type. As
such, Campbell discloses that the health notification of claim 1
itself would be prioritized in a queue based on the indicated
health issue. Campbell does not disclose that something other
than the health notification, such as a user communication, would
be prioritized based on the health issue, as is required by claim
1.
Moreover, the alarm signal discussed above is simply
delivered to the next available operator when the alarm signal
reaches the top of the queue. The advisory action asserts that this
functionality qualifies as determining a routing within the
application service provider, as required by claim 1. However,
the routing determination of claim 1 is based on the health issue,
7 which is most analogous to the alarm type, as previously noted.
The routing of an alarm signal to an operator in Campbell is not
based on the alarm type. Instead, only the alarm signal's position
in the queue is based on the alarm type. Campbell does not
consider alarm type for any other reason. That is, Campbell does
not consider alarm type when routing an alarm signal to the
queue or routing the alarm signal from the queue to an operator.
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Alarm type is only considered within the queue after the alarm
signal has been routed there and before being routed out.
Therefore, Campbell fails to disclose using a health issue to
determine a routing within an application service provider, as
required by claim 1.

Appeal Br. 7; see also Reply Br. 3.
In the Reply Brief, Appellant contends:
the Examiner’s answer asserts that patient data received by the
backend server in Libbus is equivalent to the health notification
of claim 1. . . . the user communication of claim 1 is a user
communication with the user communication device that
transferred the health notification. Even if the alert was
considered a user communication, the alert would be a user
communication with the backend server or the doctor’s device
rather than the device that transferred the patient data. Thus, even
if Libbus taught determining a priority for an alert, Libbus fails
to teach determining a priority for a user communication with the
user communication device of claim 1. Similarly, since the alert
is not a user communication with the user communication device
of claim 1, determining that the alert should be routed to the
doctor cannot be considered a routing determination for the user
communication of claim 1.
Reply Br. 2.
Appellant’s arguments are unpersuasive, as Appellant does not
provide sufficient objective evidence to support the arguments. See In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“attorney argument [is] not
the kind of factual evidence that is required to rebut a prima facie case of
obviousness”); Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977)
(“Argument of counsel cannot take the place of evidence lacking in the
record.”).
Further, because the Examiner relies on the combination of Tran,
Libbus, and Campbell to teach the disputed claim limitation, Appellant
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cannot establish nonobviousness by attacking the references individually.
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
Examiner finds—and Appellant does not dispute—Tran teaches
“transferring a health notification indicating the health issue from the user
communication device to the application service provider.” Final Act. 5.
Therefore, Tran teaches the claim terms “a health notification indicating the
health issue,” “the user communication device,” and “the application service
provider.” As a result, Appellant’s arguments that neither Libbus nor
Campbell teaches those terms (Appeal Br. 7; Reply Br. 2) are unpersuasive,
because they are not directed to the Examiner’s specific findings.
The Examiner further finds—and Appellant does not persuasively
dispute—Libbus teaches “uses . . . to determine a routing within . . . for a
user communication with.” See Final Act. 5–6; Libbus ¶ 193 (“A step 296
issues an alert from the back end server in response to the patient data and/or
notification. For example, a change in patient hydration status can be sent to
an attending nephrologist for a patient who is treated with dialysis.”).4

4 In the Reply Brief and for the first time, Appellant belatedly argues that
“[a]n alert issued by the backend server to, e.g., a doctor, is then equated to
the user communication of claim 1 [by the Examiner]. . . . [A] mere alert is
not a user communication, especially not a user communication akin to that
described in the specification of the present application (see . . . the
examples of claim 2).” Reply Br. 2. Appellant’s arguments are untimely, as
the Examiner presented the same finding in the Final Action (Final Act. 5–6)
and Appellant has not demonstrated any “good cause” for the belated
presentation. See 37 C.F.R. § 41.41(b)(2). In any event, Appellant’s
arguments are unpersuasive, because Appellant does not adequately explain
why the Examiner’s finding is incorrect in light of the Specification. In
addition, Appellant’s reference to claim 2 is unpersuasive, because claim 2
depends on claim 1, and thus has a narrower scope than claim 1.
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The Examiner further finds—and Appellant does not persuasively
dispute—Campbell teaches “determine . . . a priority for the . . .
communication relative to other . . . communications being handled by the
application service provider.” Final Act. 7; Campbell ¶ 50 (“The central
station software places the alarm signal into a queue along with the other
alarm signals which are waiting for delivery to the next available operator.
The queue prioritizes the alarm signals by type (fire, medical panic, hold up,
burglary, etc.) and event time.”).
Because Appellant does not critique the Examiner’s rationale for
combining the disclosures of the cited references, Appellant has not shown
the Examiner erred in concluding Tran, Libbus, and Campbell collectively
teach “the application service provider uses the health issue indicated by the
health notification to determine a routing within the application service
provider for a user communication with the user communication device and
a priority for the user communication relative to other user communications
being handled by the application service provider,” as required by claim 1
(Final Act. 4–8).
Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of independent claim 1.
We also sustain the Examiner’s rejection of claims 2 and 4–20, as
Appellant does not advance separate substantive arguments about those
claims. See 37 C.F.R. § 41.37(c)(1)(iv).
Regarding dependent claim 3, Appellant argues neither Campbell nor
Libbus teaches “wherein the routing comprises an agent to which the user
communication is directed and wherein the agent comprises one of a
plurality of agents and is trained to handle the health issue.” See Appeal Br.
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8–9; Reply Br. 4. However, Appellant’s attorney arguments are
unpersuasive, as Appellant does not provide sufficient objective evidence to
support the arguments. See Geisler, 116 F.3d at 1470; Meitzner, 549 F.2d at
782. Further, Appellant’s arguments about Libbus (Appeal Br. 9) are
unpersuasive because they focus on limitations of claim 1, which claim 3
depends from. As discussed above, the Examiner relies on the combination
of Tran, Libbus, and Campbell to teach claim 1, Appellant cannot establish
nonobviousness by attacking Libbus individually. See Merck & Co., 800
F.2d at 1097. Therefore, and for similar reasons discussed above with
respect to claim 1, we sustain the Examiner’s rejection of dependent claim 3.

CONCLUSION
We affirm the Examiner’s decision rejecting claims 1–20 under 35
U.S.C. § 103.
In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–9, 11–20 103 Tran, Libbus,
Campbell
1–9, 11–20
10 103 Tran, Libbus,
Campbell, Bittman
10
Overall
Outcome
1–20

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). See 37
C.F.R. § 41.50(f).
AFFIRMED