Ex Parte Forte

Board of Patent Appeals and Interferences

Sep 25, 2009

09879917 (B.P.A.I. Sep. 25, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte STEPHEN P. FORTE
________________

Appeal 2009-001884
Application 09/879,917
Technology Center 2600
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Decided: September 28, 2009
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Before ROBERT E. NAPPI, MARC S. HOFF, and
ELENI MANTIS MERCADER, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL

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This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1-26 and 29.1 We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm the Examiner’s rejection of these claims.

INVENTION
The invention is directed to a device and method of using a wireless
device as a virtual office telephone so that features such as voice mail,
corporate calling plans, and direct extension dialing may be utilized without
specialized cellular equipment or handsets. See generally Spec. 1-4. Claim
1 is representative of the invention and reproduced below:
1. A telecommunication device comprising:
a telephony interface, said telephony interface for
receiving a telephone call via a first communication path and
identifying a dialed telephone number associated with the
call, said telephony interface using the dialed telephone
number to retrieve at least one wireless telephone number
and at least one user preference from a storage medium, said
telephony interface using said at least one retrieved user
preference to route the call to at least two wireless
destination telephone numbers substantially simultaneously
via respective second and third communication paths, and
said telephony interface connecting the call to a user by
connecting said first communication path to the second or
third communication path when the second or third
communication path is authenticated by the user,
wherein said dialed telephone number and at least one of
said at least two wireless destination telephone numbers are
associated with an enterprise telecommunication network
consisting solely of wireless devices and wherein the other
of said at least two wireless destination telephone numbers is

1 Claims 27-28 were cancelled in an Amendment filed August 30, 2006.
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not associated with the enterprise telecommunication
network.

REFERENCES
Karpus US 5,884,191 Mar. 16, 1999

Hartmaier US 5,978,672 Nov. 2, 1999

Jackson US 6,275,577 B1 Aug. 14, 2001
(filed Aug. 21, 1998)

Cox US 2002/0013141 A1 Jan. 31, 2002
(filed Oct. 3, 20012)

Chow US 6,711,401 B1 Mar. 23, 2004
(filed Dec. 13, 1999)

LaPierre US 6,771,761 B1 Aug. 3, 2004
(filed Dec. 29, 1999)

REJECTIONS AT ISSUE
The Examiner rejected claims 1-3,3 5, 8, 10-13, 15-18, and 26 under
35 U.S.C. § 103(a) as being unpatentable over Hartmaier in view of Jackson
and LaPierre. Ans. 3-6.
The Examiner rejected claims 4, 6, 7, and 14 under 35 U.S.C. § 103(a)
as being unpatentable over Hartmaier in view of Jackson, LaPierre, and
Chow. Ans. 8-11.

2 Effective filing date: Apr. 28, 1994.
3 Claim 3 was inadvertently left out of the statement of rejection by the
Examiner. However, the rejection of this claim is found on page 6 of the
Examiner’s Answer.
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The Examiner rejected claim 9 under 35 U.S.C. § 103(a) as being
unpatentable over Hartmaier in view of Jackson, LaPierre, and Cox. Ans.
11.
The Examiner rejected claims 19-23, 25, and 29 under 35 U.S.C. §
103(a) as being unpatentable over Hartmaier in view of Jackson, LaPierre,
and Karpus. Ans. 12-16.
The Examiner rejected claim 24 under 35 U.S.C. § 103(a) as being
unpatentable over Hartmaier in view of Jackson, LaPierre, Karpus, and
Chow. Ans. 16-17.

ISSUES
Rejection of claims 1-3, 5, 8, 10-13, 15-18, and 26 under 35 U.S.C. § 103(a)
as unpatentable over Hartmaier in view of Jackson and LaPierre
Claims 1-3, 5, 8, 10-13, and 15-18
Appellant argues on pages 14-17 of the Appeal Brief and pages 3-4 of
the Reply Brief that the Examiner’s rejection of claims 1-3, 5, 8, 10-13, and
15-18 is in error. We select independent claim 1 as representative of the
group comprising claims 1-3, 5, 8, 10-13, and 15-18 since Appellant does
not separately argue any of the claims with particularity. 37 C.F.R. §
41.37(c)(1)(vii). Appellant argues that Hartmaier, Jackson, and LaPierre do
not teach the claim limitations of claim 1.
Thus, with respect to claims 1-3, 5, 8, 10-13, and 15-18, Appellant’s
contentions present us with the issue: has Appellant shown that the
Examiner erred in finding that Hartmaier in view of Jackson and LaPierre
teaches the claim limitations set forth in claim 1?

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Claim 26
Appellant argues on pages 17-18 of the Appeal Brief and pages 3-4 of
the Reply Brief that the Examiner’s rejection of claim 26 is in error. Claim
26 contains similar limitations to claim 1. Appellant presents many of the
same arguments discussed above with respect to claim 1. App. Br. 17-18;
Reply Br. 3-4. Appellant additionally argues that the Examiner improperly
combined the references.
Thus, Appellant’s arguments with respect to the Examiner’s rejection
of claim 26 presents us with the same issue as claim 1. Additionally, with
respect to claim 26, Appellant’s contention presents us with the additional
issue: has Appellant shown that the Examiner erred in combining Hartmaier
with Jackson and LaPierre?

Rejection of claims 4, 6, 7, and 14 under 35 U.S.C. § 103(a) as unpatentable
over Hartmaier in view of Jackson, LaPierre, and Chow
Appellant argues on pages 18-19 of the Appeal Brief and pages 3-4 of
the Reply Brief that the Examiner’s rejection of claims 4, 6, 7, and 14 is in
error. Claims 4, 6, 7, and 14 contain similar limitations and are dependent
upon claim 1. Appellant presents many of the same arguments discussed
above with respect to claim 1. App. Br. 18-19; Reply Br. 3-4. Appellant
additionally argues that the combination of Chow with Hartmaier, Jackson,
and LaPierre is in error. App. Br. 19.
Thus, Appellant’s arguments with respect to the Examiner’s rejection
of claims 4, 6, 7, and 14 present us with the same issue as claim 1.
Additionally, with respect to claims 4, 6, 7, and 14, Appellant’s contention
presents us with the additional issue: has Appellant shown that the Examiner
erred in combining Chow with Hartmaier, Jackson, and LaPierre?
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Rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over
Hartmaier in view of Jackson, LaPierre, and Cox
Appellant argues on pages 19-20 of the Appeal Brief and pages 4-5 of
the Reply Brief that the Examiner’s rejection of claim 9 is in error. Claim 9
contains similar limitations and is dependent upon claim 1. Appellant
presents many of the same arguments discussed above with respect to claim
1. App. Br. 19-20; Reply Br. 4-5.
Thus, Appellant’s arguments with respect to the Examiner’s rejection
of claim 9 presents us with the same issue as claim 1.

Rejection of claims 19-23, 25, and 29 under 35 U.S.C. § 103(a) as
unpatentable over Hartmaier in view of Jackson, LaPierre, and Karpus
Appellant argues on pages 20-23 of the Appeal Brief and pages 4-5 of
the Reply Brief that the Examiner’s rejection of claims 19-23, 25, and 29 is
in error. Claims 19 and 29 contain similar limitations and claims 20-23 and
25 are dependent upon claim 19. Appellant argues that Karpus does not
teach “generating and sending a simulated dial tone to the wireless telephone
and providing access to [an] enterprise telecommunication network . . . [that]
consists solely of wireless communication devices.” App. Br. 22; Reply Br.
4-5.
Thus, Appellant’s arguments with respect to the Examiner’s rejection
of claims 19-23, 25, and 29 present us with the issue: has Appellant shown
that the Examiner erred in finding that Karpus teaches generating and
sending a simulated dial tone to the wireless telephone and providing access
to an enterprise telecommunication network that consists solely of wireless
devices?
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Rejection of claim 24 under 35 U.S.C. § 103(a) as unpatentable over
Hartmaier in view of Jackson, LaPierre, Karpus, and Chow
Appellant argues on page 23 of the Appeal Brief and pages 4-5 of the
Reply Brief that the Examiner’s rejection of claim 24 is in error. Claim 24
contains similar limitations and is dependent upon claim 19. Appellant
presents many of the same arguments discussed above with respect to claim
19. App. Br. 23; Reply Br. 4-5.
Thus, Appellant’s arguments with respect to the Examiner’s rejection
of claim 24 presents us with the same issue as claim 19.

FINDINGS OF FACT
Hartmaier
1. Hartmaier discloses an interface between private data network
applications and wireless network applications (WIN). Col. 8, ll.
65-67.
2. The interface allows a caller to call a particular number and not
know the difference between whether the called network is
wireless, private wired, or a combination of the two. In addition,
resident applications such as voice mail and private dialing plans
are accessible. Col. 9, ll. 1-14.
3. When a caller calls a cell or a private branch exchange (PBX)
number, the call is routed, by the system, to the location where the
person called is most likely to answer. Col. 12, ll. 10-23.
4. When a caller calls a private branch exchange number and the
system is set for the call to be forwarded to the cell phone, the
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private branch exchange (PBX) forwards the call to the cell phone.
Col. 12, ll. 24-27.
Jackson
5. Jackson discloses a method of simultaneously routing a call to one
or more telephone numbers where a caller may be reached. Col. 1,
ll. 7-11.
6. An incoming call is provided to a switching system that routes the
call to a plurality of devices such as a wireless telephone, a pager,
and an answering machine. Each of the devices has a different
telephone number. Col. 2, ll. 3-12.
7. The router determines the identity of the caller and the number
called and determines where the call is to be routed based on a
comparison between the received information and the screening
list. Col. 2, ll. 13-24.
8. When the screening requires the received call to be routed to the
pager and wireless phone, the router simultaneously routes the call
to both devices so that the call is available for connection
immediately by either. Col. 2, ll. 25-28.
9. Subsequently, the user can choose to answer or connect to the call
by pushing the “call” or “on” key on the wireless phone. Col. 2, ll.
31-36.
LaPierre
10. LaPierre discloses a system that provides call routing to multiple
telephone numbers or devices via a single telephone number. Col.
1, ll. 7-10.
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11. A subscriber registers alternate destinations with a universal
number. When a caller calls the universal number the caller is
given an option to connect to any of the registered devices or lines.
Col. 1, l. 65-col. 2, l. 3.
12. The available devices to connect to include: landlines, cellular
telephones, wireless telephones, fax machines, modems, and other
similar devices. Col. 2, ll. 3-6, col. 3, ll. 42-47.
Karpus
13. Karpus discloses “an interface system for connecting various
accessory devices to a radiotelephone.” Col. 1, ll. 56-58.
14. Wireless communication links connect the interface device to all of
the other devices, which include a radiotelephone handset, a
speakerphone, and a modem. Col. 3, ll. 3-11, 50-52; Fig. 1A.
15. In order to notify the radiotelephone handset or the speakerphone
that access has been granted to the device, the user is provided
with a simulated dial tone. Col. 4, ll. 49-54.

PRINCIPLES OF LAW
Office personnel must rely on Appellant’s disclosure to properly
determine the meaning of the terms used in the claims. Markman v.
Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995) (en banc).
“[I]nterpreting what is meant by a word in a claim ‘is not to be confused
with adding an extraneous limitation appearing in the specification, which is
improper.’” In re Cruciferous Sprout Litig., 301 F.3d 1343, 1348 (Fed. Cir.
2002) (citation omitted) (internal quotation marks omitted).
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On the issue of obviousness, the Supreme Court has stated that “[t]he
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).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, 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. . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
Id. at 417. “One of the ways in which a patent’s subject matter can be
proved obvious is by noting that there existed at the time of invention a
known problem for which there was an obvious solution encompassed by the
patent’s claims.” Id. at 419-20.
The Examiner bears the initial burden of presenting a prima facie case
of obviousness, and Appellant has the burden of presenting a rebuttal to the
prima facie case. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Appellant has the burden, on appeal to the Board, to demonstrate error in the
Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006).

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ANALYSIS
Rejection of claims 1-3, 5, 8, 10-13, 15-18, and 26 under 35 U.S.C. § 103(a)
as unpatentable over Hartmaier in view of Jackson and LaPierre
Claims 1-3, 5, 8, 10-13, and 15-18
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 1-3, 5, 8, 10-13, and 15-18. Appellant argues
that Hartmaier does not teach the following claim limitations found in claim
1:
[a] telephony interface for receiving a telephone call via a first
communication path[,] . . . identifying a dialed telephone
number associated with the call, [and] . . . using the dialed
telephone number to retrieve . . . at least one user preference . . .
to route the call to at least two wireless destination telephone
numbers substantially simultaneously via respective second and
third communication paths
or “[a] telephony interface connecting the call to a user by connecting [the]
first communication path to the second or third communication path when
the second or third communication path is authenticated by the user.” App.
Br. 15; Reply Br. 3-4. The Examiner has found that Hartmaier discloses a
“telephony interface for receiving a telephone call via a first communication
path and identifying a dialed telephone number associated with the call” and
“using the dialed telephone number to retrieve at least one wireless
telephone number and at least one user preference.” Ans. 4. The Examiner
has found that Jackson teaches routing
the call to at least two wireless destination telephone numbers
substantially simultaneously via respective second and third
communication paths, and . . . connecting the call to a user by
connecting the first communication path to the second or third
communication path when the second or third communication
path is authenticated by the user.
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Ans. 4. Appellant’s statements merely conclude that this finding is in error
without citing evidence or further explanation. We consider such a
conclusory assertion without supporting explanation or analysis particularly
pointing out errors in the Examiner’s reasoning to fall short of persuasively
rebutting the Examiner’s prima facie case of obviousness. See Oetiker, 977
F.2d at 1445.
Appellant additionally argues that Jackson does not teach routing the
call to two numbers simultaneously or connecting the call to either the
second or third communication paths when one of the paths is authenticated.
App. Br. 15-16. Appellant argues that Jackson only forwards a call to the
wireless phone since a pager can only receive a notification and not a call.
App. Br. 16-17; Reply Br. 3. Additionally, Appellant argues that since a call
cannot be answered by through the use of a pager after authentication,
Jackson fails to meet the claimed limitation. However, claim 1 recites “to
route the call to at least two wireless destination telephone numbers
substantially simultaneously . . . [and] connecting the call to a user by
connecting said first communication path to the second or third
communication path” (emphasis added). Therefore, the scope of the claim
only requires the ability to connect to the user through one of the wireless
destination telephone numbers.
Jackson teaches that a call is routed to a wireless phone and a pager
simultaneously so that a connection is immediately available by either
device. FF 8. Subsequently, the user can choose to answer the call by
pushing the “call” or “on” key on the wireless phone. FF 9. As a result,
Jackson teaches sending a call to two wireless devices simultaneously and
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connecting to the wireless phone upon an authorization action by the user.
Therefore, Appellant’s argument is not found to be persuasive.
Additionally, Appellant argues that Jackson does not teach the
authentication process recited in claim 1. App. Br. 17. Appellant argues
that the authentication process of claim 1 requires that the user answer the
phone and press another key. App. Br. 17. However, claim 1 recites
“connecting said first communication path to the second or third
communication path when the second or third communication path is
authenticated by the user.” Appellant’s Specification does not provide a
specific definition for “authenticated.” As such, we adopt the Examiner’s
interpretation that the call is “authenticated” by the user by accepting the call
after screening it to be reasonable. Ans. 4. As noted above, when a call is
placed to the wireless phone, the user can choose to answer the call by
pushing the “call” or “on” key of the wireless phone. FF 9. The act of
pushing the “call” or “on” key is considered the authentication process
according to the Examiner’s interpretation. Therefore, Appellant’s argument
is not found to be persuasive.
Accordingly, for the reasons stated above, we sustain the Examiner’s
rejection of claims 1-3, 5, 8, 10-13, and 15-18.

Claim 26
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 26. Claim 26 contains similar limitations to
claim 1. Appellant’s arguments present the same issues discussed with
respect to claim 1. App. Br. 17. In addition, Appellant argues that it would
not have been obvious to combine the references. App. Br. 18. Appellant’s
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statement merely concludes that this finding is in error without citing
evidence or further explanation. We consider such a conclusory assertion
without supporting explanation or analysis particularly pointing out errors in
the Examiner’s reasoning to fall short of persuasively rebutting the
Examiner’s prima facie case of obviousness. See Oetiker, 977 F.2d at 1445.
Appellant’s additional argument that there is no motivation to
combine the references is similarly not persuasive. App. Br. 18. The
Supreme Court found that a teaching, suggestion, or motivation to combine
the references was not required. KSR, 550 U.S. at 419. The Court
characterized the TSM test merely as “helpful insight.” Id. at 418. In KSR,
the Supreme Court has stated that “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” Id. at 416. We find that the combination of
Hartmaier with Jackson and LaPierre would have yielded predictable results.
As stated above, Jackson teaches routing a call to two numbers
simultaneously and connecting the call to at least one of the devices. FF 8,
9. LaPierre teaches a system wherein the telecommunication system uses
wireless devices. FF 12. Hartmaier teaches a system that allows call
redirection and cell forwarding. FF 3, 4. Therefore, we consider using
Hartmaier’s system of call redirection and forwarding with Jackson’s routing
system to route calls to two numbers simultaneously to LaPierre’s system
that uses wireless devices as nothing more than using known devices to
perform known functions. As such, the combination would have been
obvious.
Even if the TSM test were still required, the Examiner has provided a
motivation to combine the references. Ans. 5. The Examiner stated, on
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page 5 of the Answer, that the combination would “ensure that the called
party can be reached” (citing Jackson) and would “provide a universal
number that can be linked to multiple destinations associated with one user”
(citing LaPierre). Ans. 5. Appellant merely argues that there is no
motivation because the Examiner is using impermissible hindsight. App. Br.
18. Therefore, Appellant’s argument has not identified an error in the
Examiner’s reasoning as to why the skilled artisan would have combined the
teachings. In the absence of such argument and evidence, the Examiner’s
finding that a skilled artisan would have combined the references is
sufficient, as the Examiner has established that the combination is a
predictable use of prior art elements according to their established functions.
Therefore, for the reasons stated above, we sustain the Examiner’s
rejection of claim 26.

Rejection of claims 4, 6, 7, and 14 under 35 U.S.C. § 103(a) as unpatentable
over Hartmaier in view of Jackson, LaPierre, and Chow
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 4, 6, 7, and 14. Claims 4, 6, 7, and 14
ultimately depend upon claim 1 and as such include the same limitations
discussed supra with respect to claim 1. Appellant’s arguments present the
same issues discussed with respect to claim 1. App. Br. 18-19. Therefore,
we sustain the Examiner’s rejection of claims 4, 6, 7, and 14 for the reasons
discussed supra with respect to claim 1. In addition, Appellant argues that
Chow does not make up for the deficiencies found in the rejection of claim 1
and it would not have been obvious to combine the references. App. Br. 19.
Appellant’s statement merely concludes that this finding is in error without
citing evidence or further explanation. We consider such a conclusory
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assertion without supporting explanation or analysis particularly pointing out
errors in the Examiner’s reasoning to fall short of persuasively rebutting the
Examiner’s prima facie case of obviousness. See Oetiker, 977 F.2d at 1445.
Therefore, for the reasons stated above, we sustain the Examiner’s
rejection of claims 4, 6, 7, and 14.

Rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over
Hartmaier in view of Jackson, LaPierre, and Cox
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 9. Claim 9 ultimately depends upon claim 1
and as such includes the same limitations discussed supra with respect to
claim 1. Appellant’s arguments present the same issues discussed with
respect to claim 1. App. Br. 19-20. Therefore, we sustain the Examiner’s
rejection of claim 9 for the reasons discussed supra with respect to claim 1.

Rejection of claims 19-23, 25, and 29 under 35 U.S.C. § 103(a) as
unpatentable over Hartmaier in view of Jackson, LaPierre, and Karpus
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 19-23, 25, and 29. Claim 19 recites
“generating and sending a simulated dial tone to the wireless telephone.”
Appellant argues that none of the references teach the limitation found in
claim 19 since Karpus teaches sending the simulated dial tone to a telephone
accessory and not the telephone itself. App. Br. 21-23; Reply Br. 4-5.
Appellant argues that the Examiner’s interpretation of the term “wireless
telephone” is unreasonably broad and inconsistent with an interpretation of
one of ordinary skill in the art. Reply Br. 4-5. Appellant points to the
Specification to contend that a “wireless telephone” is a cellular device that
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does not use a dial tone. Reply Br. 4. However, we decline to adopt
Appellant’s narrow construction of “wireless telephone” to include only
cellular devices since that would require importing limitations that are not
recited in the claims from the Specification. In addition, Appellant has not
provided any evidence that in light of the Specification the term “wireless
telephone” would be understood by those skilled in the art to exclude
Karpus’s wireless handset. Therefore, we find the Examiner’s interpretation
of “wireless telephone” as being a wireless handset to be sufficient. As a
result, Karpus does teach the claim limitation of claim 19.
Karpus discloses a system wherein an access grant is communicated
to the user of a wireless radiotelephone handset by providing a simulated
dial tone to the wireless radiotelephone handset. FF 15. This is equivalent
to sending a simulated dial tone to a wireless telephone, as claimed. As
such, we sustain the Examiner’s rejection of claims 19-23, 25, and 29.

Rejection of claim 24 under 35 U.S.C. § 103(a) as unpatentable over
Hartmaier in view of Jackson, LaPierre, Karpus, and Chow
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 24. Claim 24 ultimately depends upon claim
19 and as such includes the same limitations discussed supra with respect to
claim 19. Appellant’s arguments present the same issues discussed with
respect to claim 19. App. Br. 23. Therefore, we sustain the Examiner’s
rejection of claim 24 for the reasons discussed supra with respect to claim
19.

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CONCLUSIONS OF LAW
Appellant has not shown that the Examiner erred in finding that
Hartmaier in view of Jackson and LaPierre teach the claim limitations set
forth in claim 1.
Appellant has not shown that the Examiner erred in combining
Hartmaier with Jackson and LaPierre.
Appellant has not shown that the Examiner erred in combining Chow
with Hartmaier, Jackson, and LaPierre.
Appellant has not shown that the Examiner erred in finding that
Karpus teaches generating and sending a simulated dial tone to the wireless
telephone and providing access to an enterprise telecommunication network
that consists solely of wireless devices.

SUMMARY
The decision of the Examiner to reject claims 1-26 and 29 is affirmed.
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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