Ex Parte Chavez

Patent Trial and Appeal Board

Dec 12, 2017

13599774 (P.T.A.B. Dec. 12, 2017)

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.
13/599,774 08/30/2012 David L. Chavez 4366JKH-48 1434
48500 7590
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
MCADAMS, BRAD
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
12/14/2017 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 DAVID L. CHAVEZ
Appeal 2017-001138
Application 13/599,774
Technology Center 2400
Before JEAN R. HOMERE, BRADLEY W. BAUMEISTER, and
AARON W. MOORE, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 3—11, 13, 15, 17, 18, and 21—24, which constitute all claims
pending in this application. App. Br. 2. Claims 2, 12, 14, 16, 19, and 20
have been canceled. Id. We have jurisdiction under 35 U.S.C. § 6(b).1
We affirm.
1 Appellant identifies the real party in interest as Avaya Inc. App. Br. 2.
Appeal 2017-001138
Application 13/599,774
Introduction
According to Appellant, the claimed subject matter is directed to a
method and system for visually prioritizing different types of messages
(e.g., voicemail, email, short message system, multimedia message,
interactive voice response (IVR) message, and social media message) on a
user device (304). Spec. 1; Figs. 1,3. In particular, upon receiving a first
message of a first type and a second message of a second type, a
communication server (104) classifies the messages (312) according to their
identified types to thereby visually display the messages on the user
interface according to a predetermined priority (316) or order of importance
associated with the messages. Id. at 6.
Representative Claim
Independent claim 1 is representative and reads as follows:
1. A method of providing a representation of messages,
comprising:
receiving, by a processor, a first message at a first
communication device, wherein the first message is a first
message type, wherein the first communication device is a
communication device of a user;
determining, by the processor, a classification for the first
message;
based on the determined classification for the first
message, selecting, by the processor, a location in a graphic
display in which to place a visual indication of the first
message;
receiving, by the processor, a second message at the first
communication device, wherein the second message is a second
message type and wherein the first message and the second
message comprise two of: a voice mail message, a missed call
message, an email, a short message system message, a
multimedia messaging service message, an Interactive Voice
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Response (IVR) system communication, and a social media
message;
determining, by the processor, a classification for the
second message, wherein the second message is the IVR system
communication and wherein the IVR system is not associated
with the user; and
based on the determined classification for the second
message, selecting, by the processor, a location in the graphic
display in which to place a visual indication of the second
message, wherein the determined classification for the second
message is associated with a non-human source, and wherein
the location of the visual indication of the second message is
reserved for IVR system communications.
Prior Art Relied upon
Pinard US 7,072,450 B1 July 4, 2006
Balk US 2009/0041052 A1 Feb. 12,2009
Sood US 2009/0313346 A1 Dec. 17,2009
Rejection on Appeal
Claims 1, 3—11, 13, 15, 17, 18, and 21—24 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the combination of Sood,
Pinard, and Balk. Final Act. 2—9.
CONTENTIONS AND ANALYSIS
We consider Appellant’s arguments seriatim, as they are presented in
the Appeal Brief, pages 7—13, and the Reply Brief, pages 4—8.2 We are
2 Rather than reiterate all the arguments of Appellant and all the Examiner’s
findings, we refer to the Appeal Brief (filed September 16, 2016) (“App.
Br.”), the Reply Brief (filed October 19, 2016) (“Reply Br.”), and the
Answer (mailed October 6, 2016) (“Ans.”) for the respective details. We
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unpersuaded by Appellant’s contentions. Except as otherwise indicated
hereinafter, we adopt as our own the findings and reasons set forth in the
Final Action, and the Examiner’s Answer in response to Appellant’s Appeal
Brief. Final Act. 2—9; Ans. 2—13. However, we highlight and address
specific arguments and findings for emphasis as follows.
First, Appellant argues that the combination of Sood, Pinard, and Balk
does not teach or suggest “determining, by a processor, a classification for
the second message, wherein the second message is the IVR system
communication and wherein the IVR system is not associated with the user”,
as recited in independent claim 1. App. Br. 8. According to Appellant,
although Balk discloses that a Public Branch Exchange (PBX) may have an
IVR system as part of a voicemail server, the disclosed voicemail messages
are a different type other than the claimed IVR system communication not
associated with the user. Id. at 9 (citing Balk || 23—24). Id. In particular,
Appellant argues the following:
The user communication device of Balk cannot
distinguish between an interaction with an IVR system and a
user calling another user. The PBX system and the user
communication device of Balk only knows is [sic] that a voice
call is being made. The user communication device in Balk
does not know if there is an actual person or an IVR system on
the other end of the call. There is no disclosure in Balk that
determines if an IVR system communication is being made
versus a call to another user. While it is known that users can
interact with an IVR system or voicemail, claim 1 recites that
the user communication device classifies an IVR system
have considered in this Decision only those arguments Appellant actually
raised in the Briefs. Any other arguments Appellant could have made but
chose not to make in the Briefs are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2012).
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communication that is not. . . voice interactions, such as
voicemail message, user calls etc., which is clearly not the case
in Balk.
Id. at 10—11.
Second, Appellant argues that the proposed combination does not
teach “wherein the location of the visual indication of the second message is
reserved for IVR system communications,” as recited in independent
claim 1. Id. at 11. According to Appellant, Balk is devoid of any teaching
regarding classifying IVR system communication in a user communication
device. Id. Therefore, Appellant argues that Balk does not remedy the
deficiencies of Pinard and Sood, which only deal with classifying emails, to
teach the disputed limitations. Id.
These arguments are not persuasive. At the outset, we note that
Appellant’s originally-filed Specification does not support the disputed
claim language.3 Although Appellant emphasizes that the claim language
requires classifying a second message identified as the IVR system
communication wherein the IVR system is not associated with the user,
Appellant has not shown where in the Specification support is provided for
the disputed claim recitation. Likewise, we do not find any support in the
Specification for the recitation of reserving the location of the visual
indication of the second message for the IVR communication system.
We thus consider the scope and meaning of the disputed “IVR system
communication,” which must be given the broadest reasonable interpretation
consistent with Appellant’s disclosure, as explained in In re Morris:
3 In the event of further prosecution, the Examiner should consider rejecting
the claims under 35 U.S.C. § 112, first paragraph, as failing to comply with
the written description requirement.
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[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997); see also In re Zletz,
893 F.2d 319, 321 (Fed. Cir. 1989) (stating that “claims must be interpreted
as broadly as their terms reasonably allow”). Our reviewing court further
states, “the ‘ordinary meaning’ of a claim term is its meaning to the ordinary
artisan after reading the entire patent.” Phillips v. AWH Corp., 415 F.3d
1303, 1321 (Fed. Cir. 2005) (enbanc).
Appellant’s Specification states in relevant part the following:
The different message endpoints 116 represent endpoints
that may engage in communications with the multimodal
communication device 108. Accordingly, examples include
short message service (SMS) 120, multimedia messaging
service (MMS) 124, voice telephony 128, email 132, and social
media 136 endpoints or sources. Such endpoints or sources 116
may comprise stand alone devices and/or multimodal devices.
Such endpoints or sources 116 are also typically associated with
a user, however this is not necessarily the case. For example,
an endpoint 116 may comprise an automated device, such as an
interactive voice response (IVR) system.
Spec. 4:24—31 (emphasis added).
The emphasized portion of Appellant’s Specification above indicates
that the IVR system is an automated device, which may serve as one of the
endpoints engaged in communication with the multimodal communication
device. Although the cited text above also indicates that certain endpoints
are typically associated with a user, it does not particularly identity
endpoints that are not associated with the user, let alone specifically
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identifying the IVR device as being a non-user associated endpoint.
Likewise, the cited text does not indicate that a visual location is specifically
reserved for the IVR system. Consequently, we broadly but reasonably
construe the IVR system, consistent with Appellant’s Specification, as an
automated communication device serving as an endpoint in the multimodal
communication.
Further, we note Appellant’s arguments are not responsive to the
rejection made by the Examiner. In particular, the Examiner relied upon the
combination of Sood, Pinard, and Balk to reject the claims, whereas
Appellant’s arguments focus primarily on Balk’s teachings while only
superficially addressing the merits of Sood and Pinard. More particularly,
the Examiner relied upon Sood for its teaching of a communication device
classifying received email messages to visually prioritize the messages in a
user interface. Final Act. 3 (citing Sood H 34-45, Fig. 1). Further, the
Examiner relied upon Pinard for its teaching of classifying different types of
messages associated with different endpoints. Id. at 4 (citing Pinard 3:19—
27, Figs. 1, 2A). Additionally, the Examiner relied upon Balk for its
teaching of the IVR system type to complement the types of communication
devices in the Sood-Pinard combination. Id. at 4—5 (citing Balk H 23—28).
We agree with the Examiner that Balk’s disclosure of the IVR module
teaches an automated communication device serving as an endpoint in a
multimodal communication system, and thereby comports with our
construction of the IVR system recited in the disputed limitations.
Balk 1117,23.
Furthermore, we note that Appellant’s arguments are tantamount to an
individual attack against the references. One cannot show non-obviousness
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by attacking the references individually where the rejections are based on
combinations of references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986); see also In re Keller, 642 F.2d 413, 425—26 (CCPA 1981). In
particular, Appellant’s argument about Balk not teaching classifying the IVR
system is misplaced because the Examiner relied upon the combination of
Sood, Pinard, and Balk for that teaching. Final Act. 5.
We find the Examiner’s proposed combination of the cited teachings
of the relied-upon references is no more than a simple arrangement of old
elements with each performing the same function it had been known to
perform, yielding no more than one would expect from such an arrangement.
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Id. at 416. The
ordinarily-skilled artisan, being “a person of ordinary creativity, not an
automaton,” would be able to fit the teachings of the cited references
together like pieces of a puzzle to predictably result communication system
that classifies the different message types including an IVR communication
to visually prioritize the messages in selected locations on the user interface.
Id. at 420—21. Because Appellant has not demonstrated that the Examiner’s
proffered combination would have been “uniquely challenging or difficult
for one of ordinary skill in the art,” we agree with the Examiner that the
proposed modification would have been within the purview of the ordinarily
skilled artisan. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 419-21).
Accordingly, we are not persuaded of error in the Examiner’s
obviousness rejection of claim 1.
Regarding the rejection of claim 23, Appellant argues that the
proposed combination of references does not teach “wherein the first
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message is displayed using a third dimension, wherein the third dimension
displays a relative height of one of the first message and the second message
to indicate an urgency associated with the one of the first and second
messages.” App. Br. 12. In particular, Appellant argues that Pinard
discloses using height of a message as a third dimension indicating the
number of emails, as opposed to indicating the urgency of emails. Id. at 12—
13.
This argument is not persuasive. As correctly noted by the Examiner,
the height of the message displayed by Pinard indicates message priority or
urgency. Ans. 12 (citing Pinard Fig. 2A, 5:51—66). Accordingly, we are not
persuaded of error in the Examiner’s rejection of claim 23.
Regarding the rejection of claims 3—11, 13, 15, 17, 18, 21, 22, and 24,
because Appellant has either not presented separate patentability arguments
or has reiterated substantially the same arguments as those previously
discussed for patentability of claim 1 above, those claims fall therewith. See
37C.F.R. §41.37(c)(l)(vii).
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DECISION
For the above reasons, we affirm the Examiner’s rejections of claims
1,3-11, 13, 15, 17, 18,4 and 21-24.
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
4 Claim 18 recites a computer-readable medium, which scope appears to
include non-transitory media. In the event of further prosecution, the
Examiner should consider rejecting claim 18 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. See Ex parte Mewherter, 107
USPQ2d 1857 (PTAB 2013) (precedential).
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