Avaya, Inc.

Patent Trials and Appeals Board

Jan 19, 2021

2019005145 (P.T.A.B. Jan. 19, 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.
14/137,544 12/20/2013 Gordon R. Brunson 4366YDT-229 9736
48500 7590 01/19/2021
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
LIN, JSING FORNG
ART UNIT PAPER NUMBER
2446
NOTIFICATION DATE DELIVERY MODE
01/19/2021 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):
cjacquet@sheridanross.com
edocket@sheridanross.com
pair_Avaya@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_________________

Ex parte GORDON R. BRUNSON

_________________

Appeal 2019-005145
Application 14/137,544
Technology Center 2400
_________________

Before JASON V. MORGAN, DEBORAH KATZ, and
JON M. JURGOVAN, Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review2, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1–22. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM-IN-PART.

1 We use the word “Appellant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party-in-interest as Avaya, Inc. (Appeal Br. 2.)
2 We consider the Final Office Action issued October 12, 2018 (“Final
Act.”), the Appeal Brief filed March 4, 2019 (“Appeal Br.”), the Examiner’s
Answer issued on April 22, 2019 (“Ans.”), and the Reply Brief filed June
20, 2019 (“Reply Br.”).
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Application 14/137,544

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The Examiner rejects claims 1, 3–5, 7–10, 12–14, 16–18, 20–22 under
35 U.S.C. § 103 over Rose3 and Cooper.4 (Final Act. 7–11.) The Examiner
also rejects claims 6, 11, and 19 under 35 U.S.C. § 103 over Rose, Cooper,
and Nielsen.5 (See Final Act. 12–13.)
Appellant’s Specification is directed to sharing control of electronic
pointers and the like in a real-time collaboration session, such as a
webconference. (Spec. ¶ 1.)
Appellant’s claim 1 is representative and recites:
A method, comprising:
establishing, by a server connected to a network, a
collaboration session between a first device connected to the
network and a second device connected to the network, the
collaboration session having an audio portion and a visual
portion, and wherein the visual portion comprises a visual
content of the collaboration session and a pointer;
monitoring, by the server, activity on the audio portion;
determining, by the server, that the second device is
active on the audio portion; and
in response to determining that the second device is
active on the audio portion, transferring, by the server, pointer
control of the pointer, from the first device to the second
device, thereby enabling the second device to affect the pointer
of the visual portion while the first device maintains control of
the visual content portion of the visual content.

(Appeal Br. 12.)

3 Rose, U.S. Patent Application Publication 2015/0149195 A1, published
May 28, 2015.
4 Cooper, U.S. Patent 6,795,106 B1, issued September 21, 2004.
5 Nielsen, U.S. Patent Application Publication 2015/0007060 A1, published
January 1, 2015.
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Findings of Fact
1. Rose is directed to an interactive, web-based mechanism for a
session between a radiologist and a clinician in which radiographic images
are viewed on a computer, the radiologist shares the images with the
clinician, and the interactive interface allows the radiologist to give control
of the mouse to the clinician to enhance communication during the session.
(See Rose abstract.)
2. Rose teaches establishing, by a server connected to a network, a
collaboration session between a first device connected to the network and a
second device connected to the network. (See Rose ¶¶ 27, 43 Fig. 1; see
Final Act. 7.)
3. Rose teaches that the collaboration session established over the
network has an audio portion and a visual portion, wherein the visual portion
comprises a visual content of the collaboration session and a pointer. (See
Rose ¶¶ 27, 43 Fig. 1; see Final Act. 7.)
4. Rose teaches determining that a second device is active,
receiving a request from a clinician to control the mouse or pointer, and
transferring control of the mouse or pointer from the first device to the
second device. (See Rose ¶¶ 73–74; see Final Act. 7–8.)
5. Rose teaches: “Initially, the mouse movement indicator 90 is
controlled by the radiologist 60 at her workstation 64, such as in FIG. 10A.
At some point during the interactive session 200, the clinician 40 may
request control of the mouse (block 132). . . . At some point, the radiologist
60 approves of the clinician mouse control request (134), which may be
made by selecting an icon, by invoking a keystroke sequence, or by other
means.” (Rose ¶¶ 73–74.)
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6. Rose teaches that after control of the pointer is transferred from
the first device to the second device, the second device is enabled to affect
the point of the visual portion even though the first device maintains control
of the visual content. (See Rose ¶¶ 68–72; see Final Act. 8.)
7. Rose does not teach that the server monitors activity on the
audio portion or that the server determines that the second device is active
on the audio portion. (See Final Act. 8.)
8. Cooper is directed to video conference station with an image
analyzer and a camera controller. (Cooper abstract.)
9. Cooper teaches monitoring activity from an audio portion,
determining that a second device is active, and transferring control from a
first device to a second device, all through a server. (See Cooper 9:10–50;
Fig. 3; see Final Act. 8.)
Analysis
Claims 1, 3–5, 7–10, 12–14, 16–18, 20–22
The Examiner finds that it would have been obvious to one of
ordinary skill in the art to modify the mechanism of Rose in view of Cooper
by monitoring activity on the audio portion and determining that the second
device is active on the audio portion. (See Final Act. 8.) The Examiner
determines that one of ordinary skill would have been motivated to make
this modification because it would allow controlling the conferencing system
more efficiently. (See id.)
Appellant argues that because Rose teaches that the radiologist
decides whether or not to grant control of the mouse to the clinician and
Cooper teaches only detecting who should be the subject of a video portion
of a single video conferencing station, the method of claim 1 is not obvious.
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(See Appeal Br. 4–5.) Many of Appellant’s arguments are based on
teachings of Cooper not relied upon by the Examiner to reject the pending
claims. We are not persuaded by these arguments because all of the features
of Cooper need not be incorporated into the method or system of Rose for
the Appellant’s claims to have been obvious to one of ordinary skill in the
art.
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.

In re Keller, 642 F.2d 413, 425 (CCPA 1981).
For example, Appellant argues that Cooper monitors intra-site
components and not “activity on the audio portion” “between a first device
connected to the network and a second device connected to the network,” as
recited in claim 1. (See Appeal Br. 6.) Appellant points to the teaching in
Cooper of:
As will be described in greater detail below, a video
conferencing station (e.g., video conferencing station 102 or
video conferencing station 104) incorporating the teachings of
the present invention includes an innovative image analyzer
utilizing face recognition technology to analyze and monitor
video frames received from a first camera to automatically
detect an interested party such as, for example, an active
conference participant (i.e., main speaker) from one or more
local conference participants. In one embodiment, this function
is invoked upon detecting audio from one or more of the audio
input sources (described more fully below).

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(Cooper, 4:20–31 (emphasis added by Appellant); see Appeal Br. 6.)
Appellant points further to the teaching in Cooper of

Each of the video cameras is used to capture and convert video
images of conference participant(s) at each of video
conferencing stations 102 and 104, respectively, into video
conferencing signals for video conferencing stations 104 and
102, respectively.

(Cooper 7:30–34 (emphasis added by Appellant); see Appeal Br. 6.)
Appellant argues that Cooper fails to teach monitoring of an audio signal
between two devices engaged in an audio-video interactions over a network.
(See Appeal Br. 6.) Similarly, Appellant argues that Cooper teaches
determining which camera will provide feed into a conference, not which
participant in the conference will have their camera image used for a feed to
remote participants. (See Reply Br. 2.)
We are not persuaded by Appellant’s argument because, as the
Examiner explains, Cooper is cited only for its teaching of monitoring audio
activity of plural audio signals. (See Final Act. 8, Ans. 5.) Cooper is not
relied upon for a broader teaching of determining who should be subject of a
video portion provided by a single video conferencing or for determining
which camera will be used for feed to remote participants. Instead, Rose
teaches monitoring the keystroke activity of a request for control of the
pointer over a network. As the Examiner explains, the teachings of Cooper
need not be bodily incorporated into the method of Rose for Appellant’s
method to have been obvious. (See Ans. 6.)
We are also not persuaded by Appellant’s argument that adding
Cooper to Rose would enable two clinicians to have one of their images
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presented to the radiologist, based on which clinician is speaking, in light of
the teaching in Cooper of a determination of which camera to provide a feed
from among more than one participant. (See Reply Br. 3.) The Examiner’s
rejection does not rely on the teaching in Cooper of selecting image from
several participants and this teaching need not be used to modify the method
of Rose to render Appellant’s claimed method obvious.
Appellant argues further that Cooper teaches directing the camera to
participants within the same physical setting, not to participants on a video
conference. (See Appeal Br. 7.) This argument is unpersuasive for the same
reasons explained above. The Examiner did not rely on Cooper for its
teaching of choosing participants within the same physical setting, but only
for its teaching of monitoring activity on the audio portion and effecting
transfer of control when a second device is active on the audio portion. (See
Final Act. 8.)
Appellant argues further that Cooper teaches detecting who is
speaking the loudest, not who is speaking versus who is not speaking. (See
Appeal Br. 7.) Appellant also argues that Cooper teaches control of audio
output for an active participant, not pointer control, which is the action
claimed in Appellant’s claim 1. (See id. 8.) We are unpersuaded by these
arguments because the Examiner’s rejection is based on the ability to select
a participant by audio output. Other features of the method taught in
Cooper, for example that audio output is determined by the volume of the
audio or that the result of the selection is a video feed instead of pointer
control, do not detract from the teaching relied upon by the Examiner.
These further aspects of audio selection taught in Cooper do not render the
claimed method nonobvious.
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Appellant argues, in the Reply Brief, that Rose does not “monitor
some activity” as claimed, relying instead on entry of a command to control
the pointer. (See Reply Br. 1–2.) Because a keystroke is an activity, we are
not persuaded by this argument that the Examiner erred in relying on the
teachings of Rose.
Appellant also argues there would have been no motivation to
combine the teachings of Cooper with those of Rose. (See Appeal Br. 9.)
According to Appellant, modifying Rose to include the monitoring of an
audio portion to refine image data would render Rose unsatisfactory for its
intended purpose because Rose teaches a pointer that is viewed by two
parties on different devices connected by a network, whereas Cooper teaches
causing camera output to focus on the loudest speaker at one site. (See
Appeal Br. 9.) Appellant argues that “[t]o substitute video control for mouse
control is similarly nonsensical.” (Appeal Br. 9.) Appellant argues further
that
the proffered modification would signal Rose that the party not
controlling the pointer is speaking (by being active on the audio
portion) and, in response thereto, transfer control of the pointer
to the speaking party. As a result, Rose’s teaching that it is a
request for the pointer that may or may not be granted by the
party currently controlling the pointer (see, Rose, Fig. 12, step
134 and ¶0074) be rendered useless. . . . Rose wishes to provide
a system whereby a radiologist and a clinician may discuss an
image and, if requested, allow pointer control to be transferred.
Rose would be rendered unsatisfactory if the clinician, upon
saying anything, would cause the pointer to be transferred.

(Appeal Br. 9–10.) Thus, Appellant argues that the intent of Rose is
contrary to the intent of the method recited in Appellant’s claim 1—to
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transfer control of the pointer when the second device is active on the audio
portion.
We are not persuaded by Appellant’s argument because the prior art
need not have explicitly stated the need for a method of transferring control
of a pointer from a first device to a second device, over a server, when the
second device is active in the audio portion of a collaboration session, as
recited in Appellant’s claim 1.
To determine whether there was an apparent reason to combine
the known elements in the way a patent claims, it will often be
necessary to look to interrelated teachings of multiple patents;
to the effects of demands known to the design community or
present in the marketplace; and to the background knowledge
possessed by a person having ordinary skill in the art. To
facilitate review, this analysis should be made explicit. But it
need not seek out precise teachings directed to the challenged
claim's specific subject matter, for a court can consider the
inferences and creative steps a person of ordinary skill in the art
would employ.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007). The Court
instructed that “if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill.” Id. 417. Here, the Examiner
finds that it would have been obvious to modify Rose in view of Cooper in
order to transfer pointer control to include monitoring activity on the audio
portion, as taught by Cooper because doing so would allow one to control a
conferencing system more efficiently. (See Final Act. 8.)
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Appellant does not persuade us that the Examiner erred in rejecting
claim 1 as being obvious over the combination of Rose and Cooper.
Appellant does not present separate arguments against the rejection of
independent claims 8 and 14 or the claims that depend on claims 1, 8, and
14. Accordingly, we affirm the rejection of these claims.
Claims 6, 11, and 19
The Examiner also rejects claims 6, 11, and 19 as being obvious over
Rose, Cooper, and Nielsen. (See Final Act. 12–13.) Appellant’s claim 6
recites: “The method of claim 1, wherein transferring pointer control to the
second device is conditional upon determining, by the server, that a second
user associated with the second device has been speaking for a length of
time beyond a threshold amount of time.” (Appeal Br. 12.)
Nielsen is directed to systems and methods for interactive news
forums that facilitate structured discussions via a computer network. (See
Nielsen Abstract.) The Examiner cites Nielsen for the teaching of providing
participants in such a discussion with a predetermined amount of time to
express a point. (See Final Act. 12, citing Nielsen ¶ 122 (“Each participant
may have a predetermined amount of time or characters to express their
point.”).) The Examiner determines that one of ordinary skill in the art
would have considered it obvious to configure the transferring of pointer
control to a second device, as suggested by the teachings of Rose modified
by the teachings of Cooper, conditional upon determining that a second user
associated with the second device exceeds a threshold of a predetermined
length of time, as taught by Nielsen. (See id.)
Appellant argues that “[n]o combination of Rose, Cooper, and Nielsen
teaches or suggests transfer of a pointer based on delaying the pointer
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transfer until the active speaker is active for longer than a threshold
amount.” (See Appeal Br. 10.) Appellant argues further that modifying
Rose in light of the teachings of Nielsen would render the method of Rose
unsatisfactory for its intended purpose because implementing a
predetermined time for which mouse control in Rose would be taken away
from the radiologist and given to the clinician is counter to the purpose of
Rose. (See Reply Br. 4.)
We are persuaded by Appellant’s argument because Nielsen teaches
only taking away control after a predetermined length of time is reached, not
giving control after the threshold of a predetermined time is reached. The
time determination taught in Nielsen does not depend on meeting a
threshold, wherein the resulting change in control may never be reached if
the threshold is not satisfied. We are persuaded that Nielsen does not
suggest the additional limitations recited in claims 6, 11, or 19.
Accordingly, we reverse the rejection of these claims.
Conclusion
Upon consideration of the record and for the reasons given, we affirm-
in-part the Examiner’s rejection.
In summary:
Claims
Rejected
35 U.S.C. § References Affirmed Reversed
1, 3–5, 7–10,
12–14, 16–
18, 20–22
103 Rose, Cooper 1, 3–5, 7–10,
12–14, 16–
18, 20–22

6, 11, 19 103 Rose, Cooper,
Nielsen
6, 11, 19
Overall
Outcome
1, 3–5, 7–10,
12–14, 16–
18, 20–22
6, 11, 19
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED-IN-PART