Ex Parte Bar-Yoav

Patent Trial and Appeal Board

Dec 6, 2016

12572015 (P.T.A.B. Dec. 6, 2016)

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.
12/572,015 10/01/2009 RONEN BAR-YOAV 4366YDT-56 3068
48500 7590 12/08/2016
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
ZENATI, AMAL S
ART UNIT PAPER NUMBER
2656
NOTIFICATION DATE DELIVERY MODE
12/08/2016 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
pair_Avay a @ firsttofile. com
edocket @ sheridanross .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONEN BAR-YOAV
Appeal 2016-001010
Application 12/572,015
Technology Center 2600
Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and
DENISE M. POTHIER, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2016-001010
Application 12/572,015
STATEMENT OF THE CASE
Appellant’s invention manages incoming telephone calls. Spec. 11.
The invention addresses the problem of handling calls in a fast,
non-disruptive manner. Id. ^ 8. In one embodiment, a data-collection
module determines if a user is occupied (e.g., in a meeting, at lunch,
traveling) by monitoring the user’s calendar, Facebook entries, or other
presence indicators. Id. 114. Likewise, for incoming calls, the data
collection module also researches the caller’s contacts, social network sites,
and the like. Id. 115. Next, a dynamic-scripting module combines the
user’s data with the caller’s data to determine an appropriate call-response
script. Id. 116. For example, the dynamic-scripting module personalizes a
script by selecting the appropriate voice message and inserting appropriate
detail into a message. Id. Lastly, the call-response module performs this
script and logs the response. Id. 117. Claim 1 is illustrative:
1. A Call Response System comprising:
(A) a data-collection module for collecting parameters
(i) of an incoming call and
(ii) of a recipient for the incoming call;
(B) electronically interfaced to the data-collection module,
a dynamic-scripting module
(i) for electronically configuring a response
scenario according to prioritized combinations of the
parameters to obtain a configured scenario and
(ii) for substituting a component for at least one
respective open variable within the configured scenario;
and
(C) electronically interfaced to the dynamic-scripting
module, a call-response module
(i) for transmitting aspects of the component
substituted configured scenario to obtain a transmitted
scenario and
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(ii) for recording aspects of the transmitted scenario,
wherein the data-collection module, the dynamic-scripting
module, and the call-response module are software driven
components, and wherein no user interaction occurs
during the configuring the response scenario and the
substituting the component.
THE REJECTION
The Examiner rejected claims 1—20 under 35 U.S.C. § 103(a) as
unpatentable over Schwartz (US 6,950,503 B2; issued Sept. 27, 2005) and
Mullis (US 7,266,190 Bl; issued Sept. 4, 2007). Final Act. 2—7.1
CONTENTIONS
In the Final Rejection, the Examiner finds that Schwartz discloses
every recited element of claim 1 except for teaching (1) the recited
electronic interface to the data collection and configuring a response
scenario and (2) the limitation “wherein no user interaction occurs” during
this configuring, but relies on Mullis as teaching this feature in concluding
the claim would have been obvious. See Final Act. 2—3. In the Answer,
however, the Examiner finds that Schwartz alone discloses every recited
element of claim 1. Ans. 2—5.
Appellant argues that Schwartz lacks the three electronically
interfaced modules recited in claim 1. App. Br. 8; Reply Br. 4—6.
According to Appellant, Schwartz’s user sets an availability status.
1 Throughout this opinion, we refer to (1) the Final Rejection mailed October
10, 2014 (“Final Act.”); (2) the Appeal Brief filed March 2, 2015
(“App. Br.”); (3) the Examiner’s Answer mailed August 14, 2015 (“Ans.”);
and (4) the Reply Brief filed October 14, 2015 (“Reply Br.”).
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Reply Br. 5. Appellant contends that, in the claimed system, a user is not
required to do this because the data-collection module collects parameters
for an incoming call and is electronically interfaced to a dynamic-scripting
module. Id. at 6; see also App. Br. 8—9 (discussing the interfacing).
Appellant further argues that Schwartz does not teach the limitation
“wherein no user interaction occurs during” the recited configuring and
substituting. App. Br. 10-11; Reply Br. 6. Appellant contends that
Schwartz teaches away from the dynamic-scripting module’s limitations
because Schwartz’s mediation system’s automated (e.g., electronic)
components are limited. App. Br. 9, 11. According to Appellant, Schwartz
teaches that a person is the call mediator and this person is required for any
actions regarding configuring a response scenario. Reply Br. 6; see also
App. Br. 9, 11.
Appellant further contends that Schwartz lacks a dynamic scripting
module. App. Br. 9. According to Appellant, Schwartz’s monitoring is not
dynamically scripting because monitoring is an action that is separate and
distinct from any type of dynamic scripting. Id.
Appellant further argues against the Mullis reference. Id. at 8, 10;
Reply Br. 6—7. Appellant further argues that Schwartz and Mullis may not
be properly combined because a human call mediator is required for any
actions configuring a response scenario. See App. Br. 10-11.
ISSUES
Under § 103, has the Examiner erred by finding that Schwartz would
have taught or suggested:
I. the three electronically-interfaced modules recited in claim 1 ?
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II. an electronic interface between data-collection and dynamic­
scripting modules, as recited in claim 1?
III. no user interaction occurs during the configuring the response
scenario and the substituting the component, as recited in claim 1?
ANALYSIS
Claims 1, 10, 13, and 15
We begin by noting, as does Appellant (Reply Br. 4), that the
Examiner’s grounds of rejection articulated in the Final Rejection differ
from those in the Answer. Compare Final Act. 2—3 with Ans. 2—5. In the
Final Rejection, the Examiner cites Mullis for teaching the limitations at
issue (Final Act. 3)—a position that Appellant attempts to rebut in the
Appeal Brief (App. Br. 8, 10). But in the Answer, the Examiner finds that
Schwartz teaches all limitations of claim 1. Ans. 2.
Nevertheless, Appellant did not petition this shift under 37 C.F.R.
§ 41.40(a). Instead, Appellant presented arguments in the Reply Brief
directed to the Examiner’s new position. See Reply Br. 4. We, therefore,
address the Examiner’s new position based on Schwartz alone (Ans. 2—5),
and we confine our discussion to that reference. We deem any reliance on
Mullis as cumulative, and any error in this regard harmless.
I.
Claim 1 has three modules: a data-collection module, a dynamic­
scripting module, and a call-response module. Claim 1 further requires
electronically interfacing these modules.
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On this record, we see no error in the Examiner’s finding that
Schwartz’s mediation system corresponds to the recited three interfaced
modules. Ans. 4 (citing Schwartz, Fig. 1, item 10; Fig. 2, item 20).
Schwartz’s mediation system is automated by a data-processing device to
perform operations on behalf of the subscriber. Schwartz, col. 8,1. 65-
col. 9,1. 8, cited in Ans. 4. To implement this virtual mediation, Schwartz
uses computer components: processors, workstations, memory, disks, and
the like. Schwartz, col. 5,11. 11—43, cited in Ans. 3. In light of Schwartz’s
computer-based implementation, the Examiner’s finding that Schwartz’s
mediation system 10 uses electronic interfaces in implementing the claimed
functional aspects (Ans. 3 4) is reasonable, and Appellant’s arguments to
the contrary (App. Br. 8; Reply Br. 4—6) are unpersuasive.
II.
Appellant’s argument that Schwartz’s system is dependent on a
person setting availability status because Schwartz lacks an electronic
interface between data-collection and dynamic-scripting (App. Br. 8—9;
Reply Br. 6) is unpersuasive. Specifically, this argument ignores the
teaching that Schwartz responds automatically based on contextual
information (Schwartz, col. 10,11. 35—45, cited in Ans. 3). Schwartz’s
system determines a response to an incoming communication using data.
Schwartz, col. 9,11. 22—39. To be sure, Schwartz’s system can act based on
a user’s commands (see, e.g., id., col. 8,11. 18—20), as pointed out by
Appellant (Reply Br. 5). But the Examiner finds (Ans. 3), and we agree,
Schwartz’s system can also act automatically based on contextual
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information associated with the mediation subscriber. See Schwartz, col. 9,
11. 2-8.
Contextual information relates to experiences, action, and information
associated with a communication. Id., col. 10,11. 35—45, cited in Ans. 3.
Like the recited collected parameters, contextual information includes
incoming-call parameters—e.g., the mediated party’s phone number
(Schwartz, col. 10,11. 35—45)—or the call-recipient parameters—e.g., the
mediation device’s location, presence, and others {id., cols. 11—12, Table 1).
And like the recited interface between Appellant’s data-collection and
dynamic-scripting module, Schwartz uses collected information to perform a
system-defined default action. Id., col. 9,11. 22—25, col. 10,11. 57—59.
Given this disclosure {id.), the Examiner’s finding that Schwartz has an
electronic interface between a data-collection module and a dynamic­
scripting module (Ans. 4) has at least a rational basis on this record.
III.
We likewise find unavailing Appellant’s contention that Schwartz
teaches away from the claimed invention because a person is required for
any actions regarding configuring a response scenario. App. Br. 9, 11;
Reply Br. 5—6. In particular, Schwartz’s system performs actions on behalf
of the mediation subscriber (the person). Schwartz, col. 8,1. 65—col. 9,1. 8.
To be sure, the subscriber can act in response to an inbound call. See, e.g.,
id., col. 8,11. 18—20, cited in Reply Br. 5. But the subscriber can also do
nothing—i.e., neither accept nor defer the call. Schwartz, col. 9,11. 9-21. If
the subscriber does nothing, the system can perform a system-imposed
follow-through action. Id., col. 9,11. 17—21. Because Schwartz’s system is
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automated in this way, we do not see how Schwartz criticizes, discredits, or
otherwise discourages investigation into the recited automated electronic
component as required for teaching away. See Norgren Inc. v. Int 7 Trade
Comm’n, 699 F.3d 1317, 1326 (Fed. Cir. 2012) (citation omitted); see also
In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006).
Contrary to Appellant’s argument that monitoring availability does
not teach or suggest dynamic scripting, we disagree that Schwartz’s system
merely monitors availability. App. Br. 9. Rather, Schwartz’s system
automatically takes programmed default actions based on at least the
collected data. Schwartz, col. 9,11. 22—25, col. 10,11. 57—59. Appellant has
not distinguished these programmed actions from the recited dynamic
scripting. See App. Br. 9. In fact, the Specification does not define
“dynamic scripting” or “configuring” to further constrain our interpretation
of how this scripting and configuring must be carried out. See Spec. ]Hf 38,
40-41.
Here, the claim only requires that the dynamic scripting module
configures a response such that no user interaction occurs during this
configuring. Likewise, Schwartz’s mediation system can schedule a time to
talk if the incoming communication is urgent (i.e., configuring a response),
among other default actions carried out in the absence of user interaction.
Id., col. 7,11. 40-56, cited in Ans. 4. So like the recited dynamic scripting
module, we agree that Schwartz teaches that “no user interaction occurs
during” when the mediation system is configuring a response scenario. See
Ans. 4—5.
We are also unpersuaded by Appellant that Schwartz lacks a dynamic­
scripting module that can (1) substitute a component for at least one
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respective open variable within the electronically configured scenario, and
(2) obtain electronically a configured scenario. See App. Br. 9; Reply Br. 6.
In the Answer, the Examiner finds that preparing Schwartz’s contextual
decision information corresponds to the recited substituting and obtaining,
where a message communicating availability corresponds to the recited open
variable. Ans. 3 (citing Schwartz, col. 10,11. 35—45; col. 13,11. 13—30). In
response, Appellant contends that a person is Schwartz’s call mediator, and
this person is required for substituting within the recited scenario and
configuring the scenario. Reply Br. 6 (citing Ans. 3). We, however,
disagree that a person is required. As discussed above, Schwartz’s system
can also act automatically based on the Examiner-cited contextual
information (Ans. 3) when performing a default action. See Schwartz,
col. 9,11. 2—8. On this record, the weight of the evidence favors the
Examiner’s position.
To the extent that Appellant’s combinability and teaching-away
arguments (App. Br. 10—11) are germane to the rationale presented in the
Answer, which solely relies on Schwartz (Ans. 2—5), we are unpersuaded.
Specifically, these combinability and teaching-away arguments are premised
on the assumption that Schwartz’s user is required for any actions
configuring a response scenario. See App. Br. 10-11. For the above-
discussed reasons, we disagree. Accordingly, we sustain the Examiner’s
rejection of claim 1, and claims 10, 13,2 and 15, not argued separately with
particularity. See id. at 12; Reply Br. 7.
2 Although Appellant nominally argues claims 1 and 13 separately
(App. Br. 20; Reply Br. 14), we nonetheless group these claims together.
Although Appellant quotes the language of claim 13 and summarily alleges
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Claim 2
We also sustain the Examiner’s rejection of claim 2, which recites that
the call-response module includes logic for transforming alphanumeric
aspects into an equivalent synthesized speech.
At the outset, we note the particular passages in Schwartz cited in the
Final Rejection differ from those cited in the Answer’s Response to
Arguments. Compare Final Act. 4 (citing Schwartz, Fig. 10, item 216f,
Fig. 11, item 314) with Ans. 7 (citing Schwartz, col. 14,11. 20-45).
Nevertheless, Appellant did not petition this procedural inconsistency.
Rather, in the Reply Brief, Appellant argues that Schwartz lacks a
transformation because Schwartz uses written numbers to signify what is
taught to be spoken. Reply Br. 7—8.
We, however, are not persuaded of error in the Examiner’s findings.
In particular, Schwartz uses a synthesized voice to communicate to the
mediated party that the mediation subscriber is unavailable. Schwartz,
col. 14,11. 25—29. Because Schwartz’s synthesized voice communicates a
personalized message, this passage suggests to one of ordinary skill that
some programming and data transformation is used to generate the speech.
See id. Moreover, skilled artisans further would have understood that
alphanumeric data could have been used to represent messages. On this
record, the weight of the evidence favors the Examiner’s position.
that the claim is “additionally patentable” because the cited prior art lacks
those limitations, Appellant does not argue claim 13 with particularity, but,
rather, reiterates arguments made for claim 1. We, therefore, group these
claims accordingly.
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Accordingly, we are not persuaded that the Examiner erred in
concluding that claim 2 would have been obvious.
Claim 3
We also sustain the Examiner’s rejection of claim 3, which recites that
the call-response module includes logic for logging responses and initiating
a predetermined follow-up event to the transmitted scenario.
We again note that the particular passages in Schwartz cited in the
Final Rejection differ from those cited in the Answer’s Response to
Arguments. Compare Final Act. 4—5 (citing Schwartz, Fig. 10, item 216f,
Fig. 11, item 314) with Ans. 7 (citing Schwartz, col. 13,11. 45—69; col. 14,
11. 1—15; Fig. 10, item 216f, Fig. 11, item 314). But Appellant’s arguments
in the principal Brief only address Schwartz’s Figures 10 and 11.
App. Br. 12-13.
Nevertheless, Appellant did not petition this procedural inconsistency.
In the Reply Brief, Appellant argues that Schwartz is silent regarding a call-
response module. Reply Br. 8.
We, however, are not persuaded. Appellant’s arguments do not
address—let alone persuasively rebut—the Examiner’s additional passages
in Schwartz’s columns 13 and 14 on page 7 of the Answer. See id. In the
cited portions, Schwartz explains that the system assesses a “communication
history” when preparing a follow-through action. Schwartz, col. 13,11. 57—
62, cited in Ans. 7. Furthermore, Schwartz shows a list of callers coupled
with the text “RETURN” and “CAFFED.” Schwartz, Fig. 6. Therefore, the
Examiner’s finding that Schwartz logs a response and initiates a follow-up
event has at least a rational basis that has not been persuasively rebutted. On
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this record, then, the weight of the evidence favors the Examiner’s position.
Ans. 7.
Accordingly, we are not persuaded that the Examiner erred in
concluding that claim 3 would have been obvious.
Claim 4
We also sustain the Examiner’s rejection of claim 4. Claim 4 further
limits the parameters collected by the data-collection module to include
“presence parameters,” among other parameters. Claim 4 also limits the
script fragments to a “pre-recorded message fragment,” among others.
Lastly, claim 4 limits the dynamic response to a call forward, among other
possible responses.
We again note that the particular passages in Schwartz cited in the
Final Rejection differ from those cited in the Answer’s Response to
Arguments. Compare Final Act. 5 (citing Schwartz, col. 8,11. 9-15; col. 9,
11. 63—67; col. 10,11. 1—10) with Ans. 7 (citing Schwartz, Table 1, col. 7,
11. 20—34; Fig. 4, item Dl, among others).
Appellant’s arguments in the principal Brief only address the
Examiner-cited passages in the Final Rejection—i.e., Schwartz’s columns 9
and 10. App. Br. 13—14. Rather than respond to the newly cited passages,
in the Reply Brief, Appellant summarily concludes that Schwartz is silent
regarding the limitations of claim 4. Reply Br. 8—9.
Regarding element (A), the Examiner finds that Schwartz’s presence
of a party, which defines availability in the system (Schwartz, col. 11,
Table 1), corresponds to the recited presence parameters. Ans. 8. Regarding
element (B), the Examiner further finds that Schwartz’s greeting (Schwartz,
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col. 7,11. 20-34) corresponds to the recited pre-recorded message fragment.
Ans. 8. Regarding element (C), the Examiner finds that Schwartz’s default
actions Dl, including forward to remote voicemail (Schwartz, Fig. 4,
item Dl), corresponds to the recited call forward dynamic response. Ans. 8.
Given these uncontested findings in view of the other cited passages, the
weight of the evidence favors the Examiner’s position.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 4.
Claim 5
We also sustain the Examiner’s rejection of claim 5, which recites that
the data-collection module includes query-response access to at least one
database providing at least one profile enhancement for a parameter selected
from the following list: an identifier of the initiator of the incoming call, and
an identifier of the recipient of the incoming call.
We again note that the particular passages in Schwartz cited in the
Final Rejection differ from those cited in the Answer’s Response to
Arguments. Compare Final Act. 5 (citing Schwartz, col. 8,11. 5—15; col. 9,
11. 44—67) with Ans. 8—9 (citing Schwartz, col. 11,11. 50-67; col. 12,11. 1—
65; Fig. 2, label 32). Nevertheless, Appellant did not petition this procedural
inconsistency.
Appellant’s arguments in the principal Brief only address Schwartz’s
teachings in columns 8 and 9. See App. Br. 14—15. In the Reply Brief,
Appellant argues that the cited portions of Schwartz in the Answer relate to
information that is used to control communications between parties.
Reply Br. 9—10.
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We, however, are not persuaded. Here, like the recited interface
between Appellant’s data-collection and dynamic-scripting module,
Schwartz uses collected information to perform a system-defined default
action. Schwartz, col. 9,11. 22—25, col. 10,11. 57—59. For example,
Schwartz’s mediation steps can be based on Table 1 ’s contextual
information. Id., col. 10,11. 65—67. Like claim 5’s recited identifier of the
incoming call’s initiator, Schwartz’s contextual information includes an
“Identity” and mediated party’s number and address—e.g., the number of
call’s initiator. Id., cols. 11—12, Table 1, cited in Ans. 8—9.
Because claim 5 only requires at least one profile enhancement for a
parameter selected from the list, it is sufficient that the Examiner
demonstrates that Schwartz teaches one parameter from the list. On this
record, the Examiner’s finding has at least a rational basis that has not been
persuasively rebutted, and the weight of the evidence favors the Examiner’s
position. Ans. 8—9.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 5.
Claim 6
We also sustain the Examiner’s rejection of claim 6, which recites that
the call-response module transfers the call to the recipient at a profile
enhancement provided address.
We note that the Examiner relies on Mullis in the Final Rejection, yet
also turns to Schwartz in the Answer’s Response to Arguments. Compare
Final Act. 5 (citing Mullis, Fig. 9, items 624 and 626) with Ans. 9 (citing
Schwartz, col. 14,11. 19-29; Fig. 4, item Dl; Mullis, col. 6,11. 52—65).
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Nevertheless, Appellant did not petition this procedural inconsistency.
Rather, in the Reply Brief, Appellant argues that the cited portion of
Schwartz relates only to a user that states that he will return a person’s call.
Reply Br. 10.
We see no error in the Examiner’s broad, but reasonable, construction
of “profile enhancement provided address” in light of the Specification. The
Specification discloses that the call-response module transfers a call to the
recipient at a profile enhancement provided address—for example, from a
work phone to a mobile telephone, home telephone, SMS, and email.
Spec. 125. Apart from this example, the Specification does not define the
term “address.”
The Examiner finds that Schwartz’s call-forward settings in Schwartz
corresponds to the recited profile enhancement provided address. Ans. 9
(citing Schwartz, Fig. 4, item Dl). Schwartz’s Figure 4 shows that the user
can forward calls to voicemail, an assistant, or a device message center.
Schwartz, Fig. 4. Fike the disclosed profile enhancement provided address
(Spec. 125), these settings include strings identifying the call-forwarding
destinations—e.g., “123-456-AAAA,” “123-456-BBBB,” and “123-456-
CCCC.” Schwartz, Fig. 4.
That is, Schwartz does not merely disclose that a user states that he
will return a person’s call. Reply Br. 10. Rather, Schwartz provides
enhanced addresses corresponding the call-forwarding destinations. See
Schwartz, Fig. 4. Therefore, the Examiner’s finding has at least a rational
basis, which has not been persuasively rebutted. On this record, then, the
weight of the evidence favors the Examiner’s position. Ans. 9.
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Therefore, we are not persuaded that the Examiner erred in rejecting
claim 6.
Claim 7
We also sustain the Examiner’s rejection of claim 7. Claim 7 depends
from claim 4, and recites that the call-response module transmits a
component substituted configured scenario to the incoming call.
In the Final Rejection, the Examiner cites Schwartz column 10, lines 1
to 25. Final Act. 6. In the Answer, however, the Examiner further cites
passages from Schwartz’s columns 6, 7, and 14, as well as Mullin’s
column 6, lines 50 to 64. Ans. 9. But in the Reply Brief, Appellant does not
explain why these findings are erroneous apart from conclusory assertions.
See Reply Br. 11. The Examiner’s new findings, while acknowledged by
Appellant {id.), are not persuasively rebutted to show why the Examiner
erred. On this record, then, the weight of the evidence favors the
Examiner’s position.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 7.
Claim 8
We also sustain the Examiner’s rejection of claim 8, which recites, in
pertinent part, one of the three modules resides on a hardware entity that is a
communication manager configured to direct an incoming call.
In the Final Rejection, the Examiner cites Mullis Figure 9, labels 610
and 624, and column 10, lines 1 to 25. Final Act. 6. In the Answer,
however, the Examiner cites Schwartz Figure 4, item D1 and column 14,
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lines 19 to29, as well as Mullis, column 6, lines 52 to 65. Ans. 9. These
new findings, while acknowledged by Appellant {id.), are not persuasively
rebutted to show why the Examiner erred. In the Reply Brief, Appellant
explains that Schwartz relates to a user that states he will return a person’s
call, and Mullis relates to only setting a forwarding number. Reply Br. 11—
12.
But the Examiner-cited portions of Schwartz disclose more than a user
that states he or she will return a person’s call. See Schwartz, col. 14,11. 19-
29. Rather, the cited portions relate to a mediated follow-through operation,
which is engaged by the mediation system. Id. Because the cited portion
discusses an automated mediation system that manages voice-based
communication {id.), the Examiner’s finding that this passage discloses the
recited communication manager has at least a rational basis, which has not
been persuasively rebutted. On this record, the weight of the evidence
favors the Examiner’s position. Ans. 9.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 8.
Claim 9
We, however, do not sustain the Examiner’s rejection of claim 9,
which recites, in part, a programming module for writing, editing, and
recording programming commands and generating software parameters from
programming commands.
In the Final Rejection, the Examiner finds that Mullis discloses the
recited programming module in Figures 10 and 15. Final Act. 6. In the
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Answer, however, the Examiner analyzes the limitations from claim 8, but
labels the analysis as pertaining to claim 9. Ans. 10.
Appellant argues that Mullis lacks the recited programming module.
App. Br. 17. According to Appellant, Mullis’s user interface allows a
communications network to receive information from a subscriber. Id.
(citing Mullis, Fig. 10). Appellant further contends that Mullis’s Figure 15
shows how an interactive-voice-response (IVR) system interacts with a
subscriber and a network. App. Br. 17.
Mullis’s subscriber can modify settings for a phone line using
interface system 602. Mullis, col. 17, col. 4—25. Figures 10 and 15 are
flow-charts showing how the subscriber interacts with the system to enter or
change these settings. See id. Although Mullis’s system allows the user to
send phone-service settings (see, e.g., id., Fig. 10, item 664; id., Fig. 16,
item 1316), the Examiner has not shown that these settings correspond to the
recited programming commands, which then generate software parameters.
See Final Act. 6. Accordingly, we are persuaded that the Examiner erred in
rejecting claim 9.
Because this issue is dispositive regarding the Examiner’s error in
rejecting these claims, we need not address Appellant’s other arguments.
Claims 11 and 173
We, however, do sustain the Examiner’s rejection of claims 11 and
17. In the Final Rejection, the Examiner cites Mullis column 6, lines 20 to
3 Although Appellant nominally argues claims 11 and 17 separately
(compare App. Br. 18; Reply Br. 13 with App. Br. 21; Reply Br. 16),
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65 and column 7, lines 1 to 64. Final Act. 6. In the Answer, the Examiner
cites Schwartz Figure 4, column 7, lines 1 to 55, and column 9, lines 8 to 20
Ans. 10. These new findings, while acknowledged in part by Appellant
(Reply Br. 13,16 (citing Schwartz, col. 9,11. 8—20)), are not persuasively
rebutted to show why the Examiner erred. On this record, then, the weight
of the evidence favors the Examiner’s position.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 11 and 17.
Claim 12
We also sustain the Examiner’s rejection of claim 12 which recites, in
pertinent part, that the data-collection module system monitors a user status
electronically using only real-time information.
In the Appeal Brief, Appellant argues that Schwartz’s subscriber—a
person—selects the options, instead of a data-collection module interfaced
with other modules to adjust the response scenario, as recited in claim 12.
App. Br. 19; Reply Br. 13—14. According to Appellant, a person must
choose an option from a follow-through action menu. Id.
We disagree. As discussed in connection with claim 1, Schwartz’s
subscriber can also do nothing—i.e., neither accept nor defer the call.
Schwartz, col. 9,11. 9-21. If the subscriber does nothing, the system can
perform a system-imposed follow-through action. Id., col. 9,11. 17—21.
Accordingly, we are unpersuaded that the subscriber must choose an action
to initiate a response (App. Br. 19).
Appellant repeats the arguments made for claim 11 as the arguments for
claim 17. We, therefore, group these claims accordingly.
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We are unpersuaded that Schwartz lacks the data-collection module
interfaced with the other modules (App. Br. 19; Reply Br. 13—14) because
Schwartz’s mediation steps, i.e., the functions carried out by the other
modules, can be based on Table 1 ’s contextual information, which is
monitored by Schwartz’s data collection module. Schwartz, col. 10,11. 65—
67. Schwartz’s Table 1 lists several parameters representing user’s real-time
status, as pointed out by the Examiner (Ans. 11). For instance, Table 1
discloses a location parameter automatically determined by a Global
Positioning System. Schwartz, cols. 11—12, Table 1, cited in Ans. 11.
Based on this disclosure, the Examiner’s finding that Schwartz discloses a
data collection module monitoring a user status electronically using only
real-time information, as recited in claim 12, is reasonable. Because
Schwartz’s mediation steps are based on the contextual information, it is
also reasonable that an interface exists to communicate the contextual
information.
In the Reply Brief, Appellant notes that the Examiner provides the
same rationale for claims 12 and 18, but Appellant does not explain why the
Examiner’s rationale is deficient. Id.
To be sure, claim 18 depends from claim 12, and recites additional
limitations regarding claim 12’s monitoring step. Nevertheless, the
Examiner discusses the limitations of claim 12—i.e., monitoring user status
electronically using only real-time information—and makes several findings
regarding these features. Ans. 11. For the above-discussed reasons, the
Examiner’s findings have at least a rational basis, which has not been
persuasively rebutted. On this record, then, the weight of the evidence
favors the Examiner’s position. Id.
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Therefore, we are not persuaded that the Examiner erred in rejecting
claim 12.
Claim 16
We, however, do not sustain the Examiner’s rejection of claim 16,
which recites, in part, collecting parameters without reference to a database
pre-programmed by a user.
In the Final Rejection, the Examiner finds that Mullis collects
parameters substantially simultaneously as electronically configuring a
response and without reference to a database. Final Act. 9 (citing Mullis,
Fig. 9, items 626 and 626). In the Answer, the Examiner quotes and
analyzes the limitations from claim 6, but labels this analysis as pertaining to
claim 16. Ans. 9.
Appellant argues that Mullis does not collect parameters without
reference to the pre-programmed database. App. Br. 20. According to
Appellant, Mullis’s Figure 9 shows that a person can set up how a call is to
be handled during certain times of the day. Id. Appellant contends that a
user pre-programs these settings in a database. Id.
Mullis connects calls if the calling party’s number is on an
encumbered-line bypass list. Mullis, col. 1,11. 49-52. The called party
configures this encumbered-line bypass list. Id., col. 16,11. 27—33. Figure 9
shows that calls from certain phone numbers have been selected to bypass
encumbrances on the line during certain hours of the day or week. Id.; see
also Mullis, Fig. 9, items 626 and 626, cited in Final Act. 9. Information
manager 610 is then used to determine these preferences associated with a
user. Mullis, col. 15,11. 19-21.
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Because Mullis’s called party adds numbers to the database, which are
later used to determine whether to bypass encumbrances on the line, we are
persuaded that Mullis does not reference to a database pre-programmed by a
user. See App. Br. 20. Accordingly, we are persuaded that the Examiner
erred in rejecting claim 16.
Because this issue is dispositive regarding the Examiner’s error in
rejecting these claims, we need not address Appellant’s other arguments.
Claim 18
We sustain the Examiner’s rejection of claim 18 reciting that
monitoring a user status includes comparing information set by the user to
electronically-monitored information.
In the Final Rejection, the Examiner cites Schwartz column 12,
lines 23 to 65, Table 1. Final Act. 7. These findings, while acknowledged
by Appellant in the principal Brief (App. Br. 22), are not persuasively
rebutted to show why the Examiner erred. In the Answer, the Examiner
discusses claim 18 with parent claim 12. Ans. 11. In the Reply Brief, apart
from noting that claims 12 and 18 have different limitations, Appellant again
does not explain persuasively why the Examiner’s findings in the rejection
are erroneous. See Reply Br. 17. Although the Examiner discusses these
claims together despite their different limitations, the Examiner nonetheless
provides separate factual findings for each. See Final Act. 6—7.4
4 Notably, Appellant’s allegation that the Examiner provides the same
citations for the rejections of claims 12 and 18 on page 17 of the Reply Brief
is technically incorrect. On page 7 of the Final Rejection, the Examiner cites
Schwartz’s column 10, lines 61 to 67, in rejecting claim 12, but cites
column 12, lines 23 to 65, in rejecting claim 18. Nevertheless, to the extent
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On this record, the Examiner’s rejection is not persuasively rebutted.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 18.
Claim 19
We also sustain the Examiner’s rejection of claim 19 reciting that the
data-collection module establishes a priority status based on a presence
status of a user that is real-time data obtained electronically and is not pre­
programmed in a database by the user.
In the Final Rejection, the Examiner cites Schwartz’s Table 1. Final
Act. 7. These findings, while acknowledged by Appellant in the principal
Brief (App. Br. 22), are not persuasively rebutted to show why the Examiner
erred. In the Answer, the Examiner presents additional findings. Ans. 11—
12. But in the Reply Brief, apart from noting that claims 13 and 19 have
different limitations, Appellant again does not explain persuasively why the
Examiner’s findings in the rejection are erroneous. See Reply Br. 17.
Although the Examiner discusses these claims together despite their
different limitations, the Examiner nonetheless provides separate factual
findings for each. See Final Act. 7 (citing Mullis Fig. 9 in rejecting claim
13, but citing Schwartz Table 1 in rejecting claim 19). Accordingly, the
Examiner’s rejection is not persuasively rebutted on this record.
that Appellant’s argument is intended to refer to the Examiner’s response to
Appellant’s arguments on page 11 of the Answer, which inartfully addresses
both claims together, we nevertheless are unpersuaded of error in the
Examiner’s rejection for the reasons indicated in the opinion. We, therefore,
deem any error associated with addressing both claims together in the
Examiner’s Answer harmless.
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Therefore, we are not persuaded that the Examiner erred in rejecting
claim 19.
Claims 14 and 20
Claims 14 and 20 depend from claims 13 and 19, respectively, and
recite similar features. Claim 14 recites, in part, determining a user’s
presence status from “a social media presence indicator.” Claim 20 recites a
similar limitation but uses the term “social network site presence indicator.”5
Appellant argues that Schwartz lacks a social media presence
indicator. App. Br. 20, 23; Reply Br. 15, 17—18. Apart from acknowledging
the Examiner’s finding that Schwartz teaches this limitation in Table 1,
Appellant does not explain persuasively why the Examiner’s finding in the
rejection is erroneous. See Reply Br. 15, 17—18.
Moreover, the Examiner’s finding that Schwartz’s presence data
corresponds to “a social media presence indicator” and “social network site
presence indicator” (Ans. 12) has at least a rational basis. The Specification
states that social network sites include Linkedln and Facebook. Spec. 115.
But apart from this discussion, the Specification does not define “a social
media presence indicator” or “social network site presence indicator” to so
limit its interpretation.
Schwartz’s mediation steps are based on Table 1 ’s contextual data.
Schwartz, col. 10,11. 65—67. Table 1 shows a “Presence” type, which
includes instant-message presence information. Id., cols. 11—12, Table 1,
cited in Final Act. 7, Ans. 12. Because instant messages allow a user to
5 In the Reply Brief, Appellant refers to the “social network site presence
indicator” as a “social media presence indicator.” Reply Br. 18.
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connect with friends and other contacts and, in that sense, at least suggests a
form of social media (as recited in claim 14) or a social network (as recited
claim 20), the Examiner’s finding has at least a rational basis, which has not
been persuasively rebutted. On this record, then, the weight of the evidence
favors the Examiner’s position. Ans. 9.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 14 and 20.
CONCLUSION
Under § 103, the Examiner did not err in rejecting claims 1—8, 10—15,
and 17—20, but erred in rejecting claims 9 and 16.
DECISION
The Examiner’s decision rejecting claims 1—20 is affirmed-in-part.
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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