Ex Parte Michaelis

Patent Trial and Appeal Board

Mar 23, 2018

13490702 (P.T.A.B. Mar. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/490,702 06/07/2012
48500 7590 03/27/2018
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
FIRST NAMED INVENTOR
Paul Roller Michaelis
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.
4366-545 3333
EXAMINER
TRAN,PABLON
ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
03/27/2018 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):
cjacquet@sheridanross.com
pair_Avaya@firsttofile.com
edocket@sheridanross.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL ROLLER MICHAELIS
Appeal2017-008445
Application 13/490,702 1
Technology Center 2600
Before ROBERT E. NAPPI, JOHN P. PINKERTON, and
SCOTT E. BAIN, Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Non-Final Rejection of claims 1--4, 6-9, 11, 12, 14--16, 18-20, 22, and 23,
which constitute all the claims pending in the application. Claims 5, 10, 13,
17, and 21 have been cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 Appellant identifies Avaya Inc. as the real party in interest. App. Br. 2.
Appeal2017-008445
Application 13/490,702
STATEMENT OF THE CASE
The Claimed Invention
Appellant's invention relates to providing a "tactile indication" (such
as vibration of a phone) indicating transmission "quality impairments" in a
cellular communication between devices, such as a phone call between
mobile phones. Spec. 1. Specifically, the invention is directed to a "second"
device detecting a harmful acoustic factor in a "first" device during
communication between the devices (such as the user of the first device
speaking too loudly into the microphone, or an echo or background noise
around the microphone), and notifying the user of the first device of the
impairment. Id. at 1-2. Claims 1, 12, and 16 are independent. Claim 1 is
illustrative of the invention and the subject matter of the appeal, and reads as
follows (with disputed limitations emphasized):
1. A method for providing an alert to a user of a first
communication device, comprising:
detecting a transmission impaired condition observed by
a second communication device, wherein the first
communication device is a communication endpoint that
includes a display and wherein the transmission impairment
comprises an acoustic signal associated with an audio input
received by a microphone of the first communication device;
determining that the user of the first communication device
should be alerted to the detected condition;
determining that the display is not in view of the user of
the first communication device, wherein a tactile alert is
generated after determining that the display is not in view of the
user of the first communication device;
after generating the tactile alert, receiving input from the
user of the first communication device; and
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Application 13/490,702
in response to the received input, providing information
identifying the detected condition.
App. Br. 8 (Claims App'x) (emphases added).
The Rejection on Appeal
Claims 1--4, 6-9, 11, 12, 14--16, 18-20, 22, and 23 stand rejected
under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Meloche et al.
(US 8,483,679 B2; iss. July 9, 2013) ("Meloche"). Non-Final Act. 2-5.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellant's
arguments presented in this appeal. Arguments which Appellant could have
made but did not make in the Briefs are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). On the record before us, we are not persuaded the
Examiner erred. We adopt as our own the findings and reasons set forth in
the rejection from which the appeal is taken and in the Examiner's Answer,
and provide the following discussion for highlighting and emphasis.
Appellant argues the Examiner erred in finding Meloche teaches or
suggests detecting a transmission impairment condition "observed by a
second communication device" and determining "the user of [a] first
communication device should be alerted" to the detected condition, as
recited in claim 1. 2 App. Br. 6-7 (emphases added). According to
Appellant, the Examiner finds Meloche (the sole reference relied upon)
teaches both end user devices in communication experience the "impaired
2 Appellant argues all claims on appeal as a group (App. Br. 7), and we
choose claim 1 as representative of the group. 37 C.F.R. 41.37(c)(iv).
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Application 13/490,702
communication condition." Id. Appellant contends this teaching contradicts
claim 1, which is directed to an impairment "not experienced by both
devices equally," but rather to an impairment originating in one device, such
as "when one user is speaking too loud." App. Br. 6 (emphasis added). We,
however, are not persuaded.
First, as the Examiner observes, the language of claim 1 does not
recite whether an impairment is "experienced by both devices equally," as
Appellant argues. Ans. 3. Rather, as set forth above, claim 1 recites a
second device observes the impairment condition, and thereafter the first
device "should be alerted" to the condition. App. Br. 8. Thus, Appellant's
argument that Meloche teaches both end users experiencing an impairment
does not advance Appellant's argument of Examiner error.
Second, as the Examiner finds, Meloche teaches a second
communication device observing a transmission impaired condition (Ans. 3
(citing Meloche col. 1, 11. 36-45)) and alerting the first communication
device of the impairment (Ans. 4 (citing Meloche col. 8, 11. 1-11)). See also
Meloche Fig. 3 (diagram illustrating impairment detection and notification
between two devices in communication), col. 6, 11. 42--45, col. 8, 11. 20-32;
Non-Final Act. 2-3. Appellant does not explain any alleged error in these
findings, and we discern no error therein.
In the Reply Brief, Appellant argues that even if Meloche teaches a
second device detecting a transmission impairment and notifying the first
device, the impairment detected in Meloche is not "an acoustic signal
associated with an audio input received by a microphone of the first
communication device," as recited in claim 1. Reply Br. 3. This newly
raised argument (not responsive to any new findings in the Answer),
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Application 13/490,702
however, is waived as untimely (37 C.F.R. § 41.41(b)(2)). Even if our
reviewing court were to find it was timely raised, we would find the
argument to be unpersuasive because the "BACKGROUND" of Appellant's
own Specification indicates that "excessively loud speaking, echo, and
background sounds" (i.e., all acoustic impairments) were impairments
known in the art. Spec. 1; Non-Final Act. 3.
For the foregoing reasons, we are not persuaded the Examiner erred.
Accordingly, we sustain the obviousness rejection of claims 1--4, 6-9, 11,
12, 14--16, 18-20, 22, and 23.
DECISION
We affirm the Examiner's decision rejecting claims 1--4, 6-9, 11, 12,
14--16, 18-20, 22, and 23.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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