Ex Parte LeskuskiDownload PDFBoard of Patent Appeals and InterferencesFeb 18, 201110097869 (B.P.A.I. Feb. 18, 2011) Copy Citation The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte WALTER J. LESKUSKI ____________ Appeal 2009-004558 Application 10/097,869 Technology Center 3600 ____________ Before, HUBERT C. LORIN, ANTON W. FETTING, and JOSEPH A. FISCHETTI Administrative Patent Judges. FISCHETTI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-004558 Application 10/097,869 2 STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-4, 6-11, 13-19 and 21-23. Claims 5, 12 and 20 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b) (2002). SUMMARY OF DECISION We AFFIRM. THE INVENTION Appellant claims a system and method for retrieving and modifying data records for rating and billing purposes. (Specification [0001]). Claim 1, reproduced below, is representative of the subject matter on appeal. 1. In an operational support system that supports a plurality of telecommunications services, a method for generating billable data records associated with a customer's use of the plurality of telecommunications services, comprising: gathering data records from a number of network elements, each of the network elements being associated with at least one of the plurality of telecommunications services, wherein a first group of the gathered data records includes start and end times associated with a plurality of voice over Internet protocol (VoIP) communications; identifying information in the data records relevant to rating or billing; generating billable records based on the identifying, wherein the generating comprises: calculating a duration of each of the VoIP communications Appeal 2009-004558 Application 10/097,869 3 based on the start and end times, and inserting the calculated duration in the respective billable record associated with each of the VoIP communications; forwarding the billable records to a rating or billing system; and rating the billable records. THE REJECTION The Examiner relies upon the following as evidence of unpatentability: Savage US 2002/0026394 A1 Feb. 28, 2002 Business Wire: "Portal Software to Support Dialpad Voice Over the Internet Services" by Business High-Tech Editors Oct. 25, 2000, pg.1. M2 Presswire: "Intel to acquire DataKinetics Ltd; Acquisition adds SS7 expertise to Intel's converged network focus" Aug. 10, 2000, pg.1. The following rejections are before us for review. 1. Claims 1, 2, 6, 7, 9, 14 and 15 have been rejected under 35 U.S.C. § 103(a) as being unpatentable over Savage in view of Business Wire. 2. Claims 3, 4, 10 and 11 have been rejected under 35 U.S.C. § 103(a) as being unpatentable over Savage in view of Business Wire and Official Notice. 3. Claims 8, 13, 16, 17, 19 and 21-23 have been rejected under 35 U.S.C. § 103(a) as being unpatentable over Savage in view of Business Wire and further in view of an article by M2 Presswire. Appeal 2009-004558 Application 10/097,869 4 4. Claim 18 has been rejected under 35 U.S.C. § 103(a) as being unpatentable over Savage in view of Business Wire and M2 Presswire. FINDINGS OF FACT We adopt the Examiner’s findings as set forth on pages 3-12 of the Answer. ANALYSIS We affirm the rejections of claims 1-4, 6-11, 13-19 and 21-23. Claims 1, 2, 6, 7, 9-11, 14 and 15 Initially, we find that the Appellant argues independent claims 1 and 9 together as a group. Correspondingly, we select representative claim 1 to decide the appeal of these claims. The Appellant does not provide a substantive argument as to the separate patentability of claims 2, 6, 7, 10-11 14 and 15 that depend from claims 1 or 9. Therefore, claims 2, 6, 7, 10-11 14 and 15 fall with claim 1. See, 37 C.F.R. § 41.37(c)(1)(vii)(2004). Appellant argues that Savage “…do[es] not disclose or suggest gathering data records that include start and end times associated with a service. In contrast, these portions of Savage disclose calculating a bill based on kWh/BTU usage.” (Appeal Br. 8). We disagree with Appellant because the involved unit of measure is a kWh, which is a time-based usage unit, e.g., a kilowatt-hour. As such, we find by inference that to account for time of usage, a start time (t0) and an end time (tfinish), as required by the claims, would need to be established in order to arrive at a Δt corresponding to the time of usage. See KSR Int’l. Co. Appeal 2009-004558 Application 10/097,869 5 v. Teleflex Inc., 550 U.S. 398, 418 (2007). (In making the obviousness determination one “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”) Appellant next argues that Business Wire fails to meet the claim requirement of “gathering data records that include start and end times associated with a plurality of voice over Internet protocol (VoIP) communications, as particularly recited in claim 1”. (Appeal Br. 9). This argument is likewise unpersuasive because Appellant is attacking the reference individually when the rejection is based on a combination of references, and not on Business Wire alone. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Young, 403 F.2d 754, 757-58. More specifically, the Examiner relied on Savage to establish the general teaching of gathering data records that include start and end times associated with a plurality of networks, and only relied on Business Wire for the disclosure of using billing software to collect usage data for VoIP communications (Answer 4- 5). Appellant also challenges the motivation cited by the Examiner because allegedly each of Savage and Business Wire addresses different problems (Appeal Br. 10). Appellant’s argument is not persuasive as to error in the rejection because we find that Business Wire discloses that voice over Internet (VoIP) services is only one of many services for which its billing software is designed to collect money (Business Wire p. 1-2). Similarly, the bill aggregator disclosed in Savage gathers charge data from a number of Appeal 2009-004558 Application 10/097,869 6 different vendors and posts the charge data to a customer account. (Savage [0059]). Thus, each of these systems similarly seeks to accomplish the same goal of tying into plural customer accounts to aggregate billing, and thus would experience similar problems, such as obtaining confidential identification data about each account in order to gain access to the associated billing data. Claims 17-19, 21, 22 Representative claim 17 recites in pertinent part, the data collection unit is configured to: calculate a number of uses of the voice portal service, and insert the calculated number of uses in the billable record associated with the voice portal service. Appellant argues that M2 Presswire: [M]erely discloses combining voice and data communications in areas that include voice portals. Once again, such a general disclosure cannot be fairly construed to disclose or suggest that the company discussed in M2 Presswire calculates a number of uses of a voice portal service and inserts the calculated number of uses in the billable record associated with the voice portal service, as recited in amended claim 17. (Reply Brief 6). We disagree with Appellant because M2 Presswire discloses voice portal services in the context of next generation network solutions. (M2 Presswire, p. 2). Business Wire discloses that its billing software collects money for use with “next generation communications services”. Appeal 2009-004558 Application 10/097,869 7 (Business Wire, p. 1-2). Thus, a person with ordinary skill in the art would understand that a voice portal service could be used to derive money from its use. Savage discloses gathering charge data from a number of different vendors and posting the charge data to a customer account (Savage [0059]). We find that how this charge data is measured, whether by the number of hits or time lapsed, is a predictable variation prompted by market forces. “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 in a different one. If a person of ordinary skill in the art can implement a predictable variation, § 103 likely bars its patentability.” KSR Int’l v. Teleflex Inc., 550 U.S. 398 at 417. Claims 8, 16 and 23 Representative claim 8 recites in pertinent part wherein the plurality of telecommunications services comprises voice portal services, contact center services, voice over Internet protocol services and Internet protocol data services. Appellant argues that “… none of Savage, Business Wire and M2 Presswire, taken singly or in combination, can be fairly construed to disclose or suggest gathering data records from network elements associated with each of these different types of telecommunications services.’ (Appeal Br. 16-17) We disagree because as found, supra, Business Wire discloses that its billing software collects money for using “next generation communications services”. (Business Wire p. 1-2). We find that items, such as voice portal Appeal 2009-004558 Application 10/097,869 8 services, and voice over Internet protocol services, are the type of next generation communication services to which Business Wire contemplates applying its billing software, and therefore we do not find error with the Examiner’s rejection of these claims. We also affirm the rejections of dependent claims 3, 4, 10, 11, 13 and 18 since Appellant has not challenged such with any reasonable specificity (see In re Nielson, 816 F.2d 1567, 1572 (Fed. Cir. 1987)). CONCLUSION OF LAW We conclude the Examiner did not err in rejecting claims 1-4, 6-11, 13-19 and 21-23. DECISION The decision of the Examiner to reject claims 1-4, 6-11, 13-19 and 21- 23 is AFFIRMED. AFFIRMED MP VERIZON PATENT MANAGEMENT GROUP 1320 North Court House Road 9th Floor ARLINGTON VA 22201-2909 Copy with citationCopy as parenthetical citation