Ex Parte Lobig

Patent Trial and Appeal Board

Nov 24, 2014

10505002 (P.T.A.B. Nov. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte NORBERT LOBIG
____________

Appeal 2012-005096
Application 10/505,002
Technology Center 2600
____________

Before CARLA M. KRIVAK, CARL W. WHITEHEAD JR., and
CHARLES J. BOUDREAU, Administrative Patent Judges.

BOUDREAU, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 23–48. Claims 1–22 have been canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 Appellant identifies Nokia Siemens Networks GmbH & Co. KG as the real
party in interest. App. Br. 2.
Appeal 2012-005096
Application 10/505,002

2
STATEMENT OF THE CASE
Appellant’s Claimed Invention
Appellant’s claimed invention relates to “an IVR system (interactive
voice response system) for supplying functions and resources for services
encompassing interactive voice response or output of announcements,” as
well as “methods for dealing with resource bottlenecks in the IVR system.”
Spec. ¶ 2.2
Representative Claims
Independent claims 23, 35, and 41, reproduced below, are
representative of the subject matter on appeal. Disputed limitations are
italicized.
23. An IVR (interactive voice response) system for providing
resources for services comprising interactive voice response or
output of announcements, the IVR system comprising:
at least one IVR (Interactive Voice Response) server, said
IVR server having a plurality of control interfaces, said IVR
server having at least one user data interface for user data
switched by switching systems;
a mechanism for recognizing resource bottlenecks; and
a mechanism for handling resource bottlenecks, wherein
a plurality of switching systems have access to said IVR
server;
wherein each one of said plurality of switching systems has
exclusive access to at least one of said plurality of control
interfaces; and
wherein the resources of the interactive voice response
(IVR) system are capable of being used by more than one of
said plurality of switching systems having access.

2 References to “Spec.” refer to the Substitute Specification received
August 18, 2004.
Appeal 2012-005096
Application 10/505,002

3
35. A method for handling resource bottlenecks in an
interactive voice response (IVR) system, comprising:
starting an application in the interactive voice response
(IVR) system by a switching system, wherein the application
requires resources;
halting the application in the interactive voice response IVR
system if resources required to run the application in the
interactive voice response IVR system are not available;
terminating the application in the interactive voice response
IVR system if whilst waiting for resources the application is
halted for a period of time which exceeds a limit value; and
sending an error message to the switching system in the
event of terminating the application in the interactive voice
response IVR system.

41. A. method for handling resource bottlenecks in an
interactive voice response (IVR) system, comprising:
requesting the execution of an application in the interactive
voice response (IVR) system by a switching system;
determining, with the interactive voice response (IVR)
system, the resources required in the interactive voice response
(IVR) system for the execution of the application;
checking, with the interactive voice response (IVR) system,
the availability of the required resources;
reserving the required resources; and
starting an application in the interactive voice response
(IVR) system if the checking has a positive result;
wherein in the event of the check yielding a negative result,
either:
the execution of the application is rejected and an
error message is sent to the switching system, or
the application waits for the required resources for a
limited period of time, and the execution of the
application is rejected and an error message is sent to
Appeal 2012-005096
Application 10/505,002

4
the switching system if the required resources do not
become available during the period of time.
Prior Art Relied Upon
The Examiner relies upon the following prior art in rejecting the
claims on appeal:

Sawyer US 5,794,140 Aug. 11, 1998
Shtivelman US 6,118,866 Sept. 12, 2000
Bateman US 6,311,231 B1 Oct. 30, 2001
Khuc US 6,459,788 B1 Oct. 1, 2002
Kung US 6,570,855 B1 May 27, 2003
Judkins US 6,587,556 B1 July 1, 2003
Deichstetter US 6,788,783 B1 Sept. 7, 2004

Rejections on Appeal
Claims 23–26, 29–31, 33, and 34 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Shtivelman, Khuc, and Bateman.
Ans. 5–12.
Claims 35–48 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shtivelman, Khuc, and Deichstetter. Ans. 12–30.
Claim 27 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shtivelman, Khuc, and Kung. Ans. 30–31.
Claim 28 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shtivelman, Khuc, and Sawyer. Ans. 31.
Claim 32 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shtivelman, Khuc, and Judkins. Ans. 31–33.

Appeal 2012-005096
Application 10/505,002

5
ANALYSIS
Rather than repeat all of Appellant’s arguments and the Examiner’s
findings, we refer to the Appeal Brief filed October 12, 2011, Examiner’s
Answer mailed December 23, 2011, and Reply Brief filed February 15,
2012, for the respective details.3 We highlight particular findings and
arguments below for emphasis.
We have considered in this Decision only those arguments Appellant
actually raised in the Briefs. Any other arguments Appellant could have
made but chose not to make in the Briefs are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).
Claims 23–34
The Examiner finds Shtivelman teaches all elements of claim 23,
except for the recited mechanisms for recognizing and handling resource
bottlenecks, which the Examiner finds are taught by Khuc, and the recited
IVR server having a plurality of control interfaces, which the Examiner finds
is taught by Bateman. Ans. 5–8. With respect specifically to the recited
“wherein a plurality of switching systems have access to said IVR server;
wherein each one of said plurality of switching systems has exclusive access
to at least one of said plurality of control interfaces,” the Examiner cites

3 We note a corrected Examiner’s Answer was mailed on January 23, 2012,
adding Sawyer, Kung, and Judkins to the listing of references under the
heading “(8) Evidence Relied Upon.” As noted above, those references
were cited in connection with the respective rejections under heading
“(9) Grounds of Rejection” in the original December 23, 2011 Answer. For
consistency with Appellant’s page number references in the Reply Brief,
which states it is “[r]esponsive to the Examiner’s Answer, dated December
23, 2011” (see Reply Br. 1), we refer to the original Answer in this Decision.
Appeal 2012-005096
Application 10/505,002

6
column 3, lines 33–45, as well as elements 13 and 15 of Figure 1 of
Shtivelman. Id. at 6.
Appellant argues “[t]here is no teaching relating to a plurality of
switching systems that have exclusive access to at least one of a plurality of
control interfaces of an IVR server,” as recited in claim 23, in Shtivelman.
App. Br. 11. According to Appellant, “Shtivelman teaches a link 22 that
links one switching apparatus 16 to the IVR 21 in order to divert incoming
calls, which are intended for a call center 13 15, to the IVR 21.” Id. “It
appears that only one switching apparatus 16 accesses the IVR 21 . . . .” Id.
Appellant further argues, “[n]either call center 13 nor call center 15 has
exclusive access to a control interface of the IVR 21.” Id. at 12.
In response to Appellant’s arguments, the Examiner further finds:
Shtivelman teaches monitoring call loading, wherein a process
may be programmed for just a particular switch . . . (Col. 6
lines 30-40). Additionally, Shtivelman goes on to teach
dedicated switches such as one group serving San Jose, a
second group serving San Francisco, etc. This is clearly
creating an exclusive dedication for switches. Another example
of dedicated switched [sic] is in rescue dispatch and emergency
services, wherein calls are prioritized dependent on a call-
threshold (Col. 7 lines 33-39).
[A]s shown . . . in Fig. 1 of Shtivelman, the prioritization of
dispatch and emergency as well as dedicated groups for San
Francisco and San Jose are implemented via Fig. 1, wherein
switching stations 49 and 51 are connected by IVR network 11
containing IVR server 31, and interface with stations 63, 65,
each containing computers and telephone combinations.
Ans. 34.
We agree with Appellant the cited portions of Shtivelman do not teach
or suggest a plurality of switching systems each having exclusive access to
Appeal 2012-005096
Application 10/505,002

7
at least one of a plurality of IVR server control interfaces, as recited in claim
23. As argued by Appellant, the Examiner’s identification of Shtivelman’s
“network” 11 specifically as “IVR network 11” and “T-server” 31 as “IVR
server 31” appears to be unsupported by Shtivelman’s disclosure. See Reply
Br. 2. We further note switches 49 and 51 appear to bear at most a
tangential relationship with IVR unit 21 in Figure 1 and Shtivelman’s
specification. We agree with Appellant that there is no evidence that
Shtivelman’s switches 49 and 51 have exclusive access to control interfaces
of the IVR server. See Reply Br. 3.
Accordingly, we reverse the Examiner’s rejection of claim 23, as well
as the rejections of claims 24–34 dependent from it.
Claims 35–40
The Examiner finds, inter alia, Shtivelman and Khuc fail to teach
“halting the application in the IVR system if resources required to run the
application in the interactive voice response IVR system are not available,”
and “sending an error message to the switching system in the event of
terminating the application in the interactive voice response IVR system” as
recited in claim 35, but that it would have been obvious to one of ordinary
skill in the art at the time of the invention to modify the system of
Shtivelman in view of Khuc “to incorporate halting the application if
resources required in the interactive voice response IVR system are not
available and sending an error message to the switching system in the event
of terminating as taught by Deichstetter.” Ans. 15–16.
Appellant argues the Examiner erred in finding Deichstetter teaches
either the recited “halting” step, App. Br. 13, or the recited “sending” step,
id. at 12. With respect to the halting step in particular, Appellant contends
Appeal 2012-005096
Application 10/505,002

8
“[i]n Deichstetter, the application is never started so clearly the application
is not halted.” App. Br. 14.
In response to Appellant’s argument, the Examiner cites Deichstetter
as teaching that a digital loop carrier generates and transmits a distribution
resource error message if customer premises equipment is not available and
that a telecommunications switch preferably receives the distribution
resources error message and applies terminating call features. Ans. 38. The
Examiner also cites Deichstetter as teaching that “if a call cannot be
established between the digital loop carrier and the customer premise
equipment, for example, due to a lack of distribution resources,” the digital
loop carrier “returns a distribution resource error to the telecommunications
switch,” and “[p]referably, the telecommunications switch applies a
terminating call feature.” Id. The Examiner concludes, “[t]herefore,
Deichstetter explicitly teaches the unavailability of resources as well as an
error message sent and call termination during communication via a switch
and call handling routine.” Id.
Although we discern no error in the Examiner’s finding that
Deichstetter teaches sending an error message and applying call terminating
features when customer premises equipment is not available, claim 35
recites “terminating” and “sending an error message” as steps distinct from
the recited “halting” step. Because we agree with Appellant the cited
portions of Deichstetter do not teach or suggest the recited step of “halting
the application in the interactive voice response IVR system if resources
required to run the application in the interactive voice response IVR system
are not available,” we do not sustain the Examiner’s rejection of claim 35 or
its dependent claims 36–40.
Appeal 2012-005096
Application 10/505,002

9
Claims 41–48
With respect to claim 41, the Examiner finds, inter alia, Khuc teaches
the step of “checking, with the interactive voice response (IVR) system, the
availability of the required resources,” Ans. 20–21, while Deichstetter
teaches “wherein in the event of the check yielding a negative result, either:
the execution of the application is rejected and an error message is sent to
the switching system,” or an “error message is sent to the switching system
if the required resources do not become available during the period of time,”
Ans. 22–23.
Appellant alleges error in the Examiner’s findings, arguing that
neither Khuc nor Deichstetter teaches the recited checking step or wherein
clause. Having fully considered the Examiner’s findings and Appellant’s
arguments, we are not persuaded of Examiner error.
As found by the Examiner (see Ans. 20), for example, Khuc at
column 3, lines 22–45, teaches a call center resource processor that, among
other things, “monitor[s] call center resource availability and bottlenecks”
and that “[t]his information can then be used as a basis for . . . decisions
regarding usage of call center processing.” Khuc 3:41–45. Notably,
Appellant does not address this specific finding except in a conclusory
fashion, stating merely that “Column 3, lines 40-45 teach using data relating
to call center resource utilization and bottlenecks as a basis regarding call
center processing,” and that “[t]he referenced portions of Khuc et al. have
nothing to do with the steps of claim 41 . . . .” .
Regarding Deichstetter, Appellant argues:
Deichstetter does not teach anything related to checking
whether the resources required in an interactive voice response
system for executing an application are available. Deichstetter
Appeal 2012-005096
Application 10/505,002

10
determines whether the customer equipment in the form of a
telephone 114 on the called line is unavailable or available. If
the telephone 114 on the called line is available, but the call
cannot be set up because of a distribution error, then an error
message is sent. This has nothing to do with determining
whether the telephone 114 has available resources to execute an
application, but rather has to do with handling a distribution
error.
Further, Deichstetter does not teach that when an interactive
voice response system does not have available resources
required for executing an application, either: the execution of
the application is rejected and an error message is sent to the
switching system, or the application waits for the required
resources for a limited period of time, and the execution of the
application is rejected and an error message is sent to the
switching system if the required resources do not become
available during the period of time.
App. Br. 16–17 (internal citations omitted).
The Examiner’s rejection of claim 41 is based on the combined
teaching of Shtivelman, Khuc, and Deichstetter, and as mentioned above, the
Examiner found Khuc teaches the disputed checking step. Accordingly, we
do not find Appellant’s above argument that Deichstetter “does not teach
anything related to checking whether the resources required in an interactive
voice response system for executing an application are available” persuasive
of error. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“[O]ne cannot
show non-obviousness by attacking references individually where, as here,
the rejections are based on combinations of references.”).
Regarding the disputed wherein clause, the Examiner finds
Deichstetter teaches a digital loop carrier determining whether customer
premise equipment is available, and if not, generating and transmitting a
distribution resource error message indicating the error, as well as a
Appeal 2012-005096
Application 10/505,002

11
telecommunications switch receiving the distribution resources error
message and applying terminating call features. Ans. 22–23. We discern no
error in the Examiner’s finding. Appellant’s quotation of claim language
along with an assertion that it is not taught by Deichstetter is non-persuasive.
See 37 C.F.R. § 41.37(c)(vii) (“A statement which merely points out what a
claim recites will not be considered an argument for separate patentability of
the claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(“[W]e hold that the Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art.”).
Appellant raises additional arguments regarding Deichstetter at pp. 6–
7 of the Reply Brief. We have considered those additional arguments and
find them unpersuasive. Again, as explained by the Examiner, see Ans. 19–
23, 43–45, the rejection is not based on Deichstetter alone, but Deichstetter
has been incorporated in the combination with Shtivelman and Khuc, both of
which teach interactive voice response (IVR) systems. Rather, Deichstetter
is relied upon for its teaching of, for example, “generat[ion of] a distribution
resource error message that is transmitted to [a] telecommunication switch
which applies terminating call features . . . in response to the distribution
resource error message.” See, e.g., Ans. 23. Thus, Appellant’s arguments
such as “[n]ever once does Deichstetter mention an interactive voice
response (IVR) system,” “never once does Deichstetter mention the
availability of the required resources in an interactive voice response (IVR)
system or an application being executed in an IVR system,” and “the
distribution error in Deichstetter has nothing to do with the availability of
Appeal 2012-005096
Application 10/505,002

12
the required resources in an interactive voice response (IVR) system, or an
application being executed in an IVR” are unpersuasive. Reply Br. 7.
Because Appellant has not persuaded us of error in the Examiner’s
rejection of claim 41, we accordingly sustain that rejection as well as the
Examiner’s rejection of dependent claims 42–48, the merits of which were
not separately argued.

DECISION
The Examiner’s rejections of claims 23–40 under 35 U.S.C. § 103(a)
are reversed.
The Examiner’s rejection of claims 41–48 under 35 U.S.C. § 103(a) is
affirmed.
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.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART

tj