11315473 (P.T.A.B. Sep. 17, 2012)

Ex Parte Mendiratta et al

Patent Trial and Appeal BoardSep 17, 2012

11315473 (P.T.A.B. Sep. 17, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/315,473 12/22/2005 Veena B. Mendiratta LUC-584/Mendiratta 2-11-9 1239 47382 7590 09/17/2012 Carmen Patti Law Group, LLC One N. LaSalle Street 44th Floor Chicago, IL 60602 EXAMINER KEEHN, RICHARD G ART UNIT PAPER NUMBER 2456 MAIL DATE DELIVERY MODE 09/17/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte VEENA B. MENDIRATTA, TUSHAR SHAH, and GUSTAVUS H. ZIMMERMAN, III ____________________ Appeal 2010-003937 Application 11/315,473 Technology Center 2400 ____________________ Before ALLEN R. MacDONALD, JEREMY J. CURCURI, and RAMA G. ELLURU, Administrative Patent Judges. ELLURU, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-003937 Application 11/315,473 2 STATEMENT OF CASE Introduction Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appellants’ Invention Appellants’ invention is “directed to wireless data calls and more specifically to how charges for wireless data calls are processed.” (Spec., ¶ [02]). Exemplary Claim 1. A method for processing data calls comprising the steps of: receiving a data call origination request from a wireless handset supported by a mobility service provider at a switching node of the telecommunication network, the data call origination request containing a URL destination of a destination web server; determining if an owner of the destination web server has agreed to pay for at least a portion of the telecommunication service charge by the mobility service provider for providing wireless access to the wireless handset for the data call; if the destination web server has agreed to pay for at least a portion of the telecommunication service charge by the mobility service provider, generating a call detail record associated with said data call that contains information indicating that the owner of the destination web server will be responsible for at least the portion of the telecommunication service charge by the mobility service provider; transmitting packets from the wireless handset to the destination web server. Appeal 2010-003937 Application 11/315,473 3 Prior Art Relied Upon MATSUMOTO US 2002/0133599 A1 Sep. 19, 2002 GONZALES-CAIAZZO US 2004/0143839 A1 Jul. 22, 2004 DOWLING US 7,032,009 B2 Apr. 18, 2006 GAINSBORO US 7,106,843 B1 Sep. 12, 2006 Rejections on Appeal1 1. Claims 1, 3-14, and 16-20 stand rejected under 35 U.S.C. § 103(a) as being obvious over Matsumoto in view of Gainsboro. (Ans. 3- 17, 20-24). 2. Claim 2 stands rejected under 35 U.S.C. § 103(a) as being obvious over Matsumoto and Gainsboro in view of Dowling. (Ans. 17-19). 3. Claim 15 stands rejected under 35 U.S.C. § 103(a) as being obvious over Matsumoto and Gainsboro in view of Gonzales-Caiazzo. (Ans. 19-20).2 1 Separate patentability is not argued for dependent claims 3-13 and 16-20. (App. Br. 9). Except for our ultimate decision, these claims are not discussed further herein. Separately rejected dependent claims 2 and 15 are subject to this appeal, but also are not separately argued. These unargued rejections are not further addressed herein except that they stand or fall with the rejection of the claims from which claims 2 and 15 depend. 2 Appellants’ request that an alleged “new ground” raised by the Examiner be stricken is improper on appeal to the Board. (Reply Br. 2). We note that the Examiner’s reference to “encrypted ‘wireless’ phones” was part of a response to Appellants’ argument raised in Appellants’ brief, and not a rejection. In any event, Appellants have not engaged the proper process to raise this issue. Any allegation that an Examiner’s Answer contains a new ground of rejection, not identified as such, is waived if not timely raised (i.e., by filing the petition within two months of the Examiner’s Answer) pursuant to a petition under 37 CFR 1.181(a). Appeal 2010-003937 Application 11/315,473 4 Appellants’ Contentions Appellants contend that Gainsboro does not teach or suggest: 1. “determining if an owner of the destination web server has agreed to pay for at least a portion of the telecommunication service charge by the mobility service provider for providing wireless access to the wireless handset for the data call,” as recited in claim 1 (App. Br. 4-6); 2. generating a call detail record (CDR) as required in claim 1 (App. Br. 7-8); and 3. “receiving by the wireless handset a message from the switching node indicating that the owner of the destination web server has agreed to pay for at least a portion of the telecommunications service charge accessed by the mobility service provider for providing wireless communications to the wireless handset for the data call,” as recited in claim 14 (App. Br. 8). Issue on Appeal Did the Examiner err in finding that Gainsboro teaches the disputed claim limitations, as recited in claims 1 and 14? Appeal 2010-003937 Application 11/315,473 5 ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. Based on Appellants’ arguments, we are not persuaded of error in the Examiner’s findings. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. Appellants argue that Gainsboro does not teach or suggest “determining if an owner of the destination web server has agreed to pay for at least a portion of the charge by the mobility service provider for providing wireless service to the wireless handset to support the data call origination from the wireless handset.” (App. Br. 5-6). According to Appellants, Gainsboro merely describes a conventional called party collect call situation with a middle monitor, i.e., Gainsboro’s FMU unit, for security reasons associated with calls originating from a prison. (App. Br. 6). Appellants argue that Gainsboro’s acceptance of a collect call by a called party is not effective with regard to cellular phone charges incurred by the originating party, i.e., the charges incurred by the originating cell phone from its cellular service provider would not be paid by the called party even if the called party agreed to accept a collect call. The Examiner relied upon Gainsboro for the concept of accepting phone charges (Ans. 23 (citing Gainsboro 29:35-41)), and not for “cellular phone charges.” (Ans. 21-22). And as the Examiner points out “cellular phone charges” are not claimed. (Ans. 22). Rather, claim 1 recites “telecommunication service charge by the mobility service provider for providing wireless access to the wireless handset for the data call.” Appeal 2010-003937 Application 11/315,473 6 (Emphasis added). The Examiner finds that the claim language does not necessarily indicate paying for “call origination charges” as argued by Appellants (App. Br. 6; Reply Br. 3) and that “call origination charges,” as argued by Appellants, is not claimed. (Ans. 23). Although we do not rely on it for our decision, we note that the prior art teaches or suggests collect calls for wireless originating calls. See e.g., U.S. Patent No. 6,067,082 (PCT filed Nov. 8, 1993) ¶ (305) (“For example, a sequential transmission number is prepared for linking via wireless telephone with a wireless telephone station in block A1 of country A and making an operated-assisted collect call via the telephone station A to the block B1 of country B). Next, Appellants argue that a CDR is a well-known term of art and means a computer record produced by a telephone exchange containing details of a call that passed through it. (App. Br. 7). Thus, Appellants argue, the costs kept by the private operated FMU in Gainsboro are not a CDR, or an equivalent of a CDR because any cost information kept by the FMU is not available to the telephone exchange and would not be part of the telephone exchange’s computation of costs for a call. (App. Br. 7-8; Reply Br. 4). We agree that Gainsboro teaches a CDR as defined by Appellants. (Ans. 23-24 (citing Gainsboro 45:18-33)). Specifically, Gainsboro teaches a computer generated record for minutes used/remaining, broken down by which party is responsible for the costs of the communication. (Id.) In addition, the system handling the call monitoring and facilitating the call (i.e., the telephone exchange as argued by Appellants) produces a computer generated display (i.e., the computer record as argued by Appellants). (Id.) Therefore, we are not persuaded of error in the Examiner’s findings that Appeal 2010-003937 Application 11/315,473 7 Gainsboro teaches the disputed limitations of claim 1. We therefore sustain the Examiner’s rejection of claim 1 and claims 2-13, which are not separately argued. Lastly, Appellants make the same argument with respect to the disputed limitation of claim 14 as claim 1. (App. Br. 8). For the same reasons discussed above with respect to claim 1, we are not persuaded of error in the Examiner’s finding that Gainsboro teaches the disputed limitation of claim 14. We therefore sustain the Examiner’s rejection of claim 14 and claims 15-20, which are not separately argued. CONCLUSIONS The Examiner has not erred in rejecting claims 1 and 14 as being unpatentable under 35 U.S.C. § 103(a) for the reasons discussed above, and claims 2-13 and 15-20, which were not separately argued, for the same reasons. DECISION We affirm the Examiner’s decision to reject claims 1-20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED ke