Ex Parte Landsman et al

Patent Trial and Appeal Board

Aug 19, 2016

11292645 (P.T.A.B. Aug. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
111292,645
100692 7590
AOL Inc./Finnegan
FILING DATE
12/02/2005
08/23/2016
901 New York Ave., NW
Washington, DC 20001
FIRST NAMED INVENTOR
Richard A. Landsman
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.
10587.0058-00000 2922
EXAMINER
CHACKO, JOE
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
08/23/2016 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):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD A. LANDSMAN and TIMOTHY T. SULLIV AN 1
Appeal2014-009422
Application 11/292,645
Technology Center 2400
Before JASON V. MORGAN, MIRIAM L. QUINN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
T , 1 , • 1mroaucnon
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1, 2, 4--14, and 16-27. App. Br. 5. Claims 3 and 15 are
canceled. Req. for Reconsideration 3, 6 (July 7, 2011). We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify AOL Inc. as the real party in interest. App. Br. 3.
Appeal2014-009422
Application 11/292,645
Invention
Appellants disclose determining, using a presence module that
monitors the computer usage activity of an intended recipient, the likelihood
that the intended recipient is currently available to communicate via at least
one communication mechanism. Abstract.
Exemplary Claim
Claim 1, reproduced below \vith key limitations emphasized, is
representative:
1. A method for determining a likelihood that an intended
recipient will respond to a communication from a sender, the
method comprising:
monitoring usage of a computer by the intended recipient
for indications that the intended recipient has used the computer
to participate in communications with the sender, the
communications including a most recent communication, the
indications including the intended recipient operating software
or navigating a graphical user interface locally at the computer
to communicate with the sender;
storing, in a database, data reflecting the time of the most
recent communication sent from the intended recipient to the
sender;
determining, based on at least an elapsed time since the
time of the most recent communication sent from the intended
recipient to the sender, the likelihood that the intended
recipient will respond to a subsequent communication from the
sender; and
providing to the sender an indicator of the likelihood that
the intended recipient will respond to the subsequent.
2
Appeal2014-009422
Application 11/292,645
Rejections
The Examiner rejects claims 1, 2, 5-14, and 17-272 under 35 U.S.C.
§ 103(a) as being unpatentable over Kessen et al. (US 2006/0026253 Al;
published Feb. 2, 2006), Gusler et al. (US 2003/0105822 Al; published June
5, 2003), and Olmsted et al. (US 2009/0201132 Al; published Aug. 13,
2009). Final Act. 5-12.
The Examiner rejects claims 4 and 16 under 3 5 U.S. C. § 1 0 3 (a) as
being unpatentable over Kessen, Gusler, Olmsted, and Salmi et al. (US
2003/0028597 Al; published Feb. 6, 2003). Final Act. 12-13.
ISSUE
Did the Examiner err in finding the combination of Kessen, Gusler,
and Olmsted teaches or suggests "determining, based on at least an elapsed
time since the time of the most recent communication sent from the intended
recipient to the sender, the likelihood that the intended recipient will respond
to a subsequent communication from the sender," as recited in claim 1?
ANALYSIS
We agree with and adopt as our own the Examiner's findings of facts
and conclusions as set forth in the Answer and in the Action from which this
appeal was taken. We have considered Appellants' arguments, but do not
find them persuasive of error. We provide the following explanation for
emphasis.
2 The Examiner erroneously omits claim 19 from the statement of the
rejection, but immediately includes claim 19 in the body of the rejection.
Final Act. 5. We hold this typographical error harmless.
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Appeal2014-009422
Application 11/292,645
In rejecting claim 1, the Examiner finds Kessen's predicting of the
availability of an instant messaging user in an instant messaging system
teaches or suggests determining the likelihood that the intended recipient
will respond to a subsequent communication from the sender. Final Act. 5
(citing Kessen i-f 33). The Examiner relies on Gusler's log file transcripts,
which may include instant message timestamps, to teach or suggest the time
of the most recent communication sent from one party such as Kessen's
intended recipient to another party such as Kessen's sender. Final Act. 6
(citing Gusler Fig. 4A, i-f 42). And, the Examiner relies on Olmsted's
determination-based on a prolonged lack of change in a unique ID-that a
respondent has likely stopped viewing a printed media (and simply left the
printed media open) to teach or suggest Kessen's determining being based
on at least an elapsed time since Gusler's time of the most recent
communication sent from the intended recipient to the sender. Final Act. 6
(citing Olmsted Fig. 6, i-f 46).
Appellants contend the Examiner erred because Olmsted merely
"discloses a time period that has 'elapsed since the unique ID was
previously logged."' App. Br. 13 (citing Olmsted ,-r 46). Thus, Appellants
argue "Olmsted does not log every communication because it focuses on
how long the receiver has been communicating with the RFID .... That is,
Olmsted looks at a total communication time rather than a time since the last
communication." Id.
Appellants' arguments are not persuasive because, as the Examiner's
findings show, Olmsted determines if a received unique ID has changed
(i.e., if a new communication, such as a new unique ID, has been received)
within a maximum time period. Ans. 11-12 (citing Olmsted i-f 46). The
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Appeal2014-009422
Application 11/292,645
receipt of a unique ID in Olmsted is a form of communication that indicates
activity (i.e., that a printed media was not just left open). Because Olmsted
teaches or suggests using an elapsed time to indicate whether an individual
is active, we agree with the Examiner that Olmsted teaches or suggests the
use of at least an elapsed time to make a determination such as Kessen's
predicting of the availability of an instant messaging user.
Appellants argue that Olmsted fails to teach or suggest determining
the likelihood of a user responding based on at least an elapsed time since
the time of the most recent communication sent from the intended recipient
to the sender. App. Br. 13. However, the Examiner relies on Kessen and
Gusler, not Olmsted, to teach or suggest determining the likelihood of a user
responding and the time of the most recent communication sent from the
intended recipient to the sender. Final Act. 5---6 (citing Kessen i-f 33; Gusler
Fig. 4A, i-f 42). Appellants' arguments regarding Olmsted alone are not
responsive to the Examiner's rejection, and, therefore, are unpersuasive.
Appellants also argue that "a plausible combination of the references
has not been presented" (App. Br. 14) and that Olmsted, Kessen, and Gusler
would be rendered unsuitable for their intended purposes (id.). See also
Reply Br. 3 ("serious questions remain in terms of how the references are
being combined by the Examiner and what would be the resulting
combination"). However, the Examiner's findings and conclusions are
properly based on what Olmsted, Kessen, and Gusler would have taught or
suggested to an artisan of ordinary skill, as detailed above and in the
Examiner's Final Action and Answer.
For these reasons, we agree with the Examiner that the combination of
Kessen, Gusler, and Olmsted teaches or suggests "determining, based on at
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Appeal2014-009422
Application 11/292,645
least an elapsed time since the time of the most recent communication sent
from the intended recipient to the sender, the likelihood that the intended
recipient will respond to a subsequent communication from the sender," as
recited in claim 1.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 1, and claims 2, 5-14, and 17-27, which Appellants do not argue
separately. App. Br. 12. Appellants do not make additional arguments with
respect to claims 4 and 16. Therefore, for these same reasons, we also
sustain the Examiner's 35 U.S.C. § 103(a) rejection of claims 4 and 16.
DECISION
We affirm the Examiner's decision rejecting claims 1, 2, 4--14, and
16-27.
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(±).
AFFIRMED
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