Ex Parte Auffret et alDownload PDFBoard of Patent Appeals and InterferencesAug 23, 201110396698 (B.P.A.I. Aug. 23, 2011) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JEAN-MARC AUFFRET, JEAN-FRANCOIS JESTIN and XAVIER MARJOU ____________ Appeal 2009-011555 Application 10/396,698 Technology Center 2400 ____________ Before GREGORY J. GONSALVES, JEFFREY S. SMITH and BRUCE R. WINSOR, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-9, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2009-011555 Application 10/396,698 2 Invention Appellants’ invention relates to a streaming method for transmitting telephone system notifications to Internet terminal devices in real time. In the course of an application involving real-time notification of a client by a telephone switching system, a connection between the client and a server is opened. Notification messages transmitted from the telephone switching system to the server are adjusted and sent to the client in the format of a programming language code executable by the client’s browser. The programming language codes are subsequently executed by the browser, whereby the respective notification messages are displayed at the client. For transmission of the notification messages from the server to the browser a streaming method such as HTTP streaming is used so that the connection remains open while notification messages are to be sent. Abstract. Representative Claim 1. A method for an application involving real-time notification of a client by a telephone switching system, comprising: a) opening a connection between the client and a server; b) transmitting notification messages from the telephone switching system to the server; c) adjusting the notification messages at the server for sending them in the form of a programming language code that is executable by the client’s browser; d) using an HTTP streaming mechanism for transmission of the notification from the server to the browser though the open connection, whereby the connection between the client and the server remains open in the intervening period between the transmission of individual notification messages; and Appeal 2009-011555 Application 10/396,698 3 e) executing the programming language codes by the browser whereby the respective notification messages are displayed or outputted at the client. Prior Art Markgraf US 6,181,691 B1 Jan. 30, 2001 Request for Comment (RFC) 2068, “Hypertext Transfer Protocol – HTTP/1.1,” January 1997, pp. 1, 2, and 43. Examiner’s Rejections Claims 1-9 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Markgraf and Official Notice. Claim Groupings In view of Appellants’ arguments in the Appeal Brief, we will decide the appeal on the basis of claim 1. See 37 C.F.R. § 41.37(c)(1)(vii). ISSUES (1) Did the Examiner err in finding that Markgraf teaches “programming language code that is executable by the client’s browser” as recited in claim 1? (2) Did the Examiner present evidence to show that “using a streaming mechanism for transmission of the notification from the server to the browser through the open connection” would have been obvious to a person of ordinary skill in the art? Appeal 2009-011555 Application 10/396,698 4 FINDINGS OF FACT We adopt the findings of fact made by the Examiner in the Final Rejection and the Examiner’s Answer as our own. PRINCIPLES OF LAW Claim Construction During examination, claims are to be given their broadest reasonable interpretation consistent with the specification, and the language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). The Office must apply the broadest reasonable meaning to the claim language, taking into account any definitions presented in the specification. Id. (citations omitted). Obviousness “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). ANALYSIS Appellants contend that Markgraf does not teach “adjusting the notification message at the server for sending them in the form of a programming language code that is executable by the client’s browser” as recited in claim 1. In particular, Appellants contend that Figures 3 through 6 of Markgraf do not show a response that is clearly associated with the http response sent by the server to the client. App. Br. 4. Appeal 2009-011555 Application 10/396,698 5 The Examiner finds that a message from the telephone switching system of Markgraf is converted into an HTTP response by the server and sent to the client’s browser as shown in Figure 2 and discussed in col. 3, ll. 25-35. The Examiner further finds that the “programming language code that is executable by the client’s browser” encompasses the HTTP response sent to the client’s browser as taught by Markgraf. Ans. 6-7. Appellants respond that HTTP is a protocol, not executable program code. To support this argument, Appellants cite a definition of HTTP from a Web site. Reply Br. 3. Appellants’ definition of HTTP refers to extrinsic evidence that we have not considered. The place for extrinsic evidence in an appeal from an Examiner’s rejection is the Evidence Appendix of the Appeal Brief. An Evidence Appendix requires, inter alia, a statement setting forth where in the record the evidence was properly presented to, and entered into the record by, the Examiner. See 37 C.F.R. § 41.37(c)(1)(ix)(“Reference to unentered evidence is not permitted in the brief.”).1 Moreover, Appellants have not presented evidence to show that the alleged definition from the cited Web site was publicly available on the date alleged by Appellants. We have thus not attempted to retrieve, nor have we considered, Appellants’ extrinsic evidence. 1 For persuasive power, evidence should be submitted for evaluation, as opposed to merely alleging existence of the evidence. As one problematic example, an applicant might cite one narrower definition among several that are available, which does not necessarily reflect the “broadest reasonable” interpretation for the term in question. Or an applicant might, without deceptive intent, redact language in a document that broadens, or actually contradicts, the hearsay statement that is presented. Appeal 2009-011555 Application 10/396,698 6 In the Summary of Claimed Subject Matter section of the Appeal Brief, Appellants state that the claim term “adjusting the notification message (MgRg, MgCt) at the server (CtC) for sending them in the form of a programming language code that is executable by the client’s browser” is discussed on page 2, lines 14-18 of the Specification, which states that “[n]otification messages to be sent from the server to the client are encoded so that they are represented in the form of a programming language code executable by the client’s browser, e.g. JavaScript, HTTP or an XML-type language….” Further, Appellants’ claim 9 recites “programming language codes for execution by client-side browsers are generated in … HTTP.” Therefore, we construe the term “programming language code that is executable by the client’s browser,” when read in light of Appellants’ Specification, as encompassing the HTTP response taught by Markgraf. We agree with the Examiner that Markgraf teaches “adjusting the notification message at the server for sending them in the form of a programming language code that is executable by the client’s browser” as recited in claim 1. Appellants also contend that the Examiner has not presented evidence to show that “using a streaming mechanism for transmission of the notification from the server to the browser through the open connection” would have been obvious to a person of ordinary skill in the art. In particular, Appellants contend that the Examiner has not provided evidence to show why a person of ordinary skill in the art would have replaced the standard HTTP connection of Markgraf with a persistent HTTP connection, and that using an HTTP persistent connection does not imply that a streaming mechanism is used. App. Br. 4-5. Appeal 2009-011555 Application 10/396,698 7 The Examiner finds that using the persistent HTTP connection provides several advantages, including reducing network congestion. The Examiner also finds that the “HTTP streaming mechanism” recited in claim 1 encompasses a connection between a client and a server that remains open. The Examiner further finds that the persistent connection between the client and server taught by HTTP/1.1 remains open and is therefore an “HTTP streaming mechanism” within the meaning of claim 1. Ans. 7-8. Appellants respond that a person of ordinary skill in the art would not have applied the persistent connection taught by HTTP/1.1 to the system of Markgraf, because a drawback of HTTP/1.1 is pipelining, which may cause the server to be blocked and deny service. To support this argument, Appellants cite an explanation of pipelining from a Web site. Reply Br. 5-7. Appellants again refer to extrinsic evidence that we have not considered. Given that the HTTP/1.1 reference states that an advantage of using HTTP/1.1 is pipelining, and that HTTP implementations should implement persistent connections (RFC p. 43), we find Appellants’ argument that pipelining is a drawback of HTTP/1.1 unpersuasive and contradicted by the evidence provided by the Examiner. We agree with the Examiner that the combination of Markgraf and the HTTP/1.1 reference cited in support of Official Notice teaches “using a streaming mechanism for transmission of the notification from the server to the browser through the open connection” as recited in claim 1. We sustain the rejection of claim 1 under 35 U.S.C. § 103. Appellants have not provided arguments for separate patentability of claims 2-9, which fall with claim 1. Appeal 2009-011555 Application 10/396,698 8 CONCLUSIONS OF LAW (1) The Examiner did not err in finding that Markgraf teaches “programming language code that is executable by the client’s browser” as recited in claim 1. (2) The Examiner present evidence to show that “using a streaming mechanism for transmission of the notification from the server to the browser through the open connection” would have been obvious to a person of ordinary skill in the art. DECISION The rejection of claims 1-9 under 35 U.S.C. §103(a) as being unpatentable over Markgraf and Official Notice is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(f). AFFIRMED tj Copy with citationCopy as parenthetical citation