Ex Parte Auffret et al

Board of Patent Appeals and Interferences

Aug 23, 2011

10396698 (B.P.A.I. Aug. 23, 2011)

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.

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Application 10/396,698

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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
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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?

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Application 10/396,698

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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.
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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.
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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.
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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.

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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

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