Ex Parte Leskuski

Board of Patent Appeals and Interferences

Feb 18, 2011

10097869 (B.P.A.I. Feb. 18, 2011)

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

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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
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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.
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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.
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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
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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”.
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(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
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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

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