Ex Parte Gartner

Patent Trial and Appeal Board

Jun 10, 2016

12241958 (P.T.A.B. Jun. 10, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/241,958 09/30/2008
136582 7590 06/14/2016
STEVENS & SHOWALTER, LLP
Box AVAYA Inc.
7019 Corporate Way
Dayton, OH 45459-4238
FIRST NAMED INVENTOR
Jeffrey G. Gartner
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
508069-US-NP (CSM)
(A047)
7963
EXAMINER
BOOKER, KELVIN
ART UNIT PAPER NUMBER
2127
NOTIFICATION DATE DELIVERY MODE
06/14/2016 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):
pto@sspatlaw.com
pair_avaya@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY G. GARTNER
Appeal2015-000045
Application 12/241,958
Technology Center 2100
Before ALLEN R. MacDONALD, KARA L. SZPONDOWSKI, and
MICHAEL M. BARRY, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2015-000045
Application 12/241,958
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
23--44. We have jurisdiction under 35 U.S.C. § 6(b ).
Exemplary Claim
Exemplary claim 1 under appeal reads as follows (emphasis and
formatting added):
1. An appliance comprising:
a connection to a telecommunications network;
an energy-consuming element; and
an energy-use controller for performing at least one of:
(i) de-activating the energy consuming element and
(ii) activating the energy-consuming element,
wherein the performing is based on
(A) a location of a user relative to the location of the
appliance, and
(B) a presence information about the user,
wherein the presence information comprises
[(i)] a mood of the user and
further comprises
[(ii)] at least one of
[(a)] a willingness of the user to
accept a telecommunications
message from the
telecommunications network, and
[ (b)] an ability of the user to accept
the telecommunications message
via a specific mode of
communication.
2
Appeal2015-000045
Application 12/241,958
Rejection on Appeal
The Examiner rejected claims 23--44 under 35 U.S.C. § 102(b) as
being anticipated by Launey et al. (US 5,086,385, issued Feb. 4, 1992). 1
Appellant's Contention
Appellant contends that the Examiner erred in rejecting claim 23
under 35 U.S.C. § 102(b) because:
Launey fails to disclose or suggest performing actions
based upon "presence information about the user, ...
[comprising] a mood of the user" as recited in claims 23, 30 and
37. Presence information of the present application and as
recited in claims 23, 30 and 37 does not refer to a physical
location, but instead refers at least to a mood of the user, i.e.,
the user's mood is used as an input data point to determine in
part the presence information. Moods as disclosed in the
present application are emotional states of mind, and examples
of moods are listed at p.3, i-f[OOlO] of the as-filed application
(corresponding to i1 [0022] of the published application).
App. Br. 9, emphasis omitted.
Issue on Appeal
Did the Examiner err in rejecting claim 23 as being anticipated?
ANALYSIS
We agree with the Appellant's above recited contention.
1 Separate patentability is not argued for claims 24--44. Although Appellant
appeals "the rejection of dependent claims 25, 29, 32, 36, 39 and 43 on
separate grounds" (App. Br. 10), the presented argument is repetitive to the
presence/mood argument made for claim 23 (App. Br. 9). Such a repetitive
argument is not deemed to be an argument for separate patentability.
3
Appeal2015-000045
Application 12/241,958
CONCLUSIONS
(1) Appellant has established that the Examiner erred in rejecting
claims 23--44 as being anticipated under 35 U.S.C. § 102(b ).
(2) Claims 23--44 have not been shown to be unpatentable.
DECISION
The Examiner's rejection of claims 23--44 is reversed.
REVERSED
4