Ex Parte Miloslavsky

Board of Patent Appeals and Interferences

Jul 5, 2006

08948530 (B.P.A.I. Jul. 5, 2006)

The opinion in support of the decision being entered today was not written for
publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________

Ex parte ALEC MILOSLAVSKY
_______________

Appeal No. 2006-1092
Application No. 08/948,530
_______________

ON BRIEF
_______________

Before JERRY SMITH, BARRY, and MACDONALD, Administrative Patent
Judges.

JERRY SMITH, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on the appeal under 35 U.S.C. § 134 from the
examiner’s rejection of claims 6-9 and 14-16, which constitute all the claims
pending in this application.
The disclosed invention pertains to an Internet-Protocol Network
Telephony routing system with a routing processor for routing calls based on
information stored in an associated database regarding operation and status of
possible destinations for the call. In some embodiments, destinations are call
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centers and information in the database is collected and processed at the call
centers. Information is collected, processed, and forwarded to the database to
enhance call-routing efficiency and accuracy.

Representative claim 6 is reproduced as follows:

6. An Internet Protocol Network Telephony (IPNT) call-routing system for
routing incoming IPNT calls to at least one agent workstation in an IPNT-capable
call center, comprising:

an initial call-processing system in the Internet receiving IPNT calls from
customers in the Internet, and including a Service Control Point (SCP) processor
routing the incoming IPNT calls to selected agent addresses at the at least one
call center;

characterized in that the SCP processor uses activity information,
including one or more of call volume, agent status, and agent skills, received
from the at least one call center to select the agent addresses at agent
workstations in the at least one call center to route the incoming IPNT calls.

The examiner relies on the following references:

6,064,730 Ginsberg May 16, 2000
(filed Jun. 9, 1997)

6,044,144

5,884,032
Becker et al. (Becker)

Bateman et al. (Bateman)
Mar. 28, 2000
(filed Feb. 7, 1997)

Mar. 16, 1999
(filed Sep. 25, 1995)

5,848,143 Andrews et al. (Andrews) Dec. 8, 1998
(filed Nov. 5, 1996)

The following rejections are on appeal before us:
1. Claims 6-8 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ginsberg in view of Becker.
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2. Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ginsberg in view of Becker and Bateman.
3. Claims 6-9 and 14-16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Andrews in view of Becker.
Rather than repeat the arguments of appellant or the examiner, we make
reference to the brief and the answer for the respective details thereof.

OPINION
We have carefully considered the subject matter on appeal, the rejections
advanced by the examiner and the evidence of obviousness relied upon by the
examiner as support for the rejections. We have, likewise, reviewed and taken
into consideration, in reaching our decision, the appellant's arguments set forth in
the brief along with the examiner’s rationale in support of the rejections and
arguments in rebuttal set forth in the examiner’s answer.
It is our view, after consideration of the record before us, that the evidence
relied upon and the level of skill in the particular art would have suggested to one
of ordinary skill in the art the obviousness of the invention as set forth in the
claims on appeal. Accordingly, we affirm.
We consider first the rejection of claims 6-8 under 35 U.S.C. § 103(a)
based on Ginsberg and Becker. In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to support the legal
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conclusion of obviousness. See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d
1596, 1598 (Fed. Cir. 1988). In so doing, the examiner is expected to make the
factual determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17,
148 USPQ 459, 467 (1966). The examiner must articulate reasons for the
examiner’s decision. In re Lee, 277 F.3d 1338, 1342, 61 USPQ2d 1430, 1434
(Fed. Cir. 2002). In particular, the examiner must show that there is a teaching,
motivation, or suggestion of a motivation to combine references relied on as
evidence of obviousness. Id. at 1343. The examiner cannot simply reach
conclusions based on the examiner’s own understanding or experience - or on
his or her assessment of what would be basic knowledge or common sense.
Rather, the examiner must point to some concrete evidence in the record in
support of these findings. In re Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693,
1697 (Fed. Cir. 2001). Thus the examiner must not only assure that the requisite
findings are made, based on evidence of record, but must also explain the
reasoning by which the findings are deemed to support the examiner’s
conclusion. However, a suggestion, teaching, or motivation to combine the
relevant prior art teachings does not have to be found explicitly in the prior art, as
the teaching, motivation, or suggestion may be implicit from the prior art as a
whole, rather than expressly stated in the references. The test for an implicit
showing is what the combined teachings, knowledge of one of ordinary skill in the
art, and the nature of the problem to be solved as a whole would have suggested

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to those of ordinary skill in the art. In re Kahn, 441 F.3d 977, 987-88, 78
USPQ2d 1329, 1336 (Fed. Cir. 2006) citing In re Kotzab, 217 F.3d 1365, 1370,
55 USPQ2d 1313 (Fed. Cir. 2000). See also In re Thrift, 298 F. 3d 1357, 1363,
63 USPQ2d 2002, 2008 (Fed. Cir. 2002). These showings by the examiner are
an essential part of complying with the burden of presenting a prima facie case of
obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992). If that burden is met, the burden then shifts to the applicant to
overcome the prima facie case with argument and/or evidence. Obviousness is
then determined on the basis of the evidence as a whole and the relative
persuasiveness of the arguments. See Id.; In re Hedges, 783 F.2d 1038, 1039,
228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472, 223
USPQ 785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052, 189
USPQ 143, 147 (CCPA 1976). Only those arguments actually made by appellant
have been considered in this decision. Arguments which appellant could have
made but chose not to make in the brief have not been considered and are
deemed to be waived [see 37 CFR § 41.37(c)(1)(vii)(2004)].
Regarding independent claim 6, the examiner's rejection essentially finds
that Ginsberg teaches every claimed feature except for a service control point
(SCP) processor that receives agent information from a plurality of call centers
and stores such information in a database to route incoming calls to the call
center [answer, pages 3 and 4]. The examiner cites Becker as disclosing a call

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center router and data server with a database that stores information about the
status of the agents at the call center [answer, page 4]. The examiner finds that,
in view of Becker, it would have been obvious to one of ordinary skill in the art at
the time of the invention to modify Ginsberg to couple a plurality of call centers
with the Internet for reporting the agent information to a data server and use such
information to route incoming calls to the call center to balance the load between
call centers [answer, page 4].
Appellant argues that Ginsberg does not teach or have motivation for an
initial call-processing system in the Internet including a service control point that
receives agent information from a plurality of call centers for storing in the
database to route the incoming calls to the call center [brief, page 14]. According
to appellant, Ginsberg's routing system is at the customer premises serving only
that customer. Because the customer provides all routing functions and
decisions, appellant argues that no need exists for central computerized routing
intelligence at the Internet level [id.].
The examiner responds that Ginsberg's control and signaling module 275
reads on the claimed SCP processor. The examiner notes that the control and
signaling module is coupled to databases 352, 354, and 356 that provide
information that is used to route incoming calls from server 200 to an available
agent at call center 250 [answer, page 6]. The examiner also contends that
because incoming calls are routed to agents using Internet protocol, the
components are at the Internet level [id.].
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Appellant also argues that Becker does not receive agent information from
multiple call centers for storing in a database to route incoming calls in a call
center. According to appellant, Becker teaches that for each call received at the
network switch 30, the individual call centers are queried for agent availability,
load status, etc. Thus, Becker does not teach storing call status information or
any other call routing information in a database at the Internet network level
[brief, page 15]. Appellant also argues that Becker lacks any teaching of
Internet equipment capable of performing the database and SCP functions at the
Internet level [id.].
The examiner responds that Becker's computer/telephony interface (CTI)
data collection server 38 collects data from call centers from CTI server 60 via
Internet 26 [answer, pages 6 and 7]. According to the examiner, the call center
router in Becker uses this information to determine which call center has an
available agent and route the call accordingly [answer, page 7].
We will sustain the examiner's rejection of claims 6-8. As an initial matter,
we agree with the examiner's interpretation that "an initial call-processing system
in the Internet receiving IPNT calls from customers in the Internet" (emphasis
added) does not preclude the Internet-based system of Ginsberg in view of the
scope and breadth of the claim language.
Ginsberg teaches that a "call" originates from the customer's "interactive
display device" 175 (e.g., a computer/display device) that is provided with an
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Internet browser program [Ginsberg, col. 3, lines 10-21]. Control and signaling
module 275 obtains call center status information from call center 250, which can
be an Internet-based switch [Ginsberg, col. 4, lines 2-6]. If an agent is currently
available, the control and signaling module enables the switching element 250 to
establish a communications link from the customer's telephone 150 to the agent.
Notably, the communications link may be Internet-based packet communication
[Ginsberg, col. 4, lines 20-37]. In our view, such an Internet-based call routing
system fully reads on "an initial call-processing system in the Internet receiving
IPNT calls from customers in the Internet" as claimed.
Although appellant argues that Ginsberg's routing system is at the
customer premises and serves only that customer and thus does not require
central computerized routing intelligence including SCP processors, we note that
appellant's arguments are not commensurate with the scope of the claim
language. In short, Ginsberg's Internet-based call routing is "in the Internet"
given the limitation its broadest reasonable interpretation. Moreover, we agree
with the examiner that Ginsberg's control and signaling module 275 reads on the
claimed SCP processor given the term its broadest reasonable interpretation.
Although the examiner indicates that Ginsberg differs from claim 6 in
calling for an SCP processor that receives agent information from a plurality of
call centers and storing such information in a database to route incoming calls to
the call center [answer, pages 3 and 4], we find no such limitations in claims 6-8.
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Claim 6 merely recites, in pertinent part, routing incoming calls to "selected agent
addresses at [the] at least one call center" [emphasis added]. Such language
does not require a plurality of call centers, but rather one or more call centers.
The call routing system of Ginsberg fully reads on this limitation. Moreover, we
find no recitation of a database in claims 6-8. In our view, the teachings of
Ginsberg appear anticipatory for at least claim 6.
Nevertheless, obviousness rejections can be based on references that
happen to anticipate the claimed subject matter. In re Meyer, 599 F.2d 1026,
1031, 202 USPQ 175, 179 (CCPA 1979). We agree with the examiner that the
teachings of Becker are reasonably combinable with Ginsberg essentially for the
reasons stated by the examiner.
Becker's CTI data collection server 38 continuously collects data from
each call center 50 via a CTI server 60 located at each call center [Becker, col. 8,
lines 45-55]. Call center router 36 then retrieves this data from the CTI data
collection server via wide area network 26 to determine if the intended
destination call center has sufficient current availability to accept the call.
Availability is determined by total number of agent workstations, agents currently
handling calls, current number of calls in the queue, and the rate of incoming
calls [Becker, col. 8, lines 57-63]. Data is also collected regarding agent
availability [Becker, col. 8, line 64 - col. 9, line 10]. Since both Becker and
Ginsberg are in the same field of endeavor, we find Becker's teaching reasonably
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combinable with Ginsberg so that calls could be effectively routed to an available
call center selected from multiple call centers.
In addition, contrary to appellant's argument, we find that Becker
reasonably teaches storing information used to route incoming calls at the
Internet network level. In particular, we note that Becker's call center router 36,
CTI data collection server 38, and each call center's CTI server are connected to
wide area network (WAN) 26. Thus, data collection and retrieval for call routing
purposes as described above is performed at the WAN level which reasonably
suggests the Internet network level to the skilled artisan. The examiner's
obviousness rejection is therefore sustained.
Furthermore, since appellant has not separately argued the patentability of
dependent claims 7 and 8, these claims fall with independent claim 6. The
rejection of claims 7 and 8 is therefore sustained.
Likewise, we will sustain the examiner's rejection of dependent claim 9
under 35 U.S.C. § 103(a) as being unpatentable over the teachings of Ginsberg
in view of Becker and Bateman. We find that (1) the examiner has established at
least a prima facie case of obviousness for this claim on pages 4 and 5 of the
answer, and (2) appellant has not persuasively rebutted the examiner's prima
facie case. The rejection is therefore sustained.
We now consider the rejection of claims 6-9 and 14-16 under 35 U.S.C. §
103(a) based on Andrews and Becker. Regarding independent claims 6, 14, and
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16, the examiner's rejection essentially finds that Andrews discloses every
claimed feature except for (1) the database to be located in the Internet, (2) the
database located remote from the call centers, and (3) routing incoming calls to
the call centers [answer, page 5]. The examiner cites Becker as disclosing (1) an
SCP processor that stores information about the call centers, and (2) a CTI
processor for collecting data about the call center for routing incoming calls
[answer, pages 5 and 6]. The examiner finds that, in view of Becker, it would
have been obvious to one of ordinary skill in the art at the time of the invention to
modify Andrews to locate the database in Andrews remote from the call centers
to share information among the call centers and enhance reliability [answer, page
6].
Appellant argues that Andrews does not teach any intelligent routing at the
Internet level because the routing server (48, 480) is at the customer premises
[brief, page 15]. Appellant further argues that Andrews does not teach or
suggest an initial call processing system in the Internet including an SCP
processor as claimed [brief, pages 16 and 17]. Appellant also argues that
Andrews' database is not connected to a routing server in the Internet and does
not store processed information about IPNT call centers as claimed. The
examiner responds that Andrews teaches (1) connecting database 54 to routing
server 48 in Fig. 2, and (2) connecting database 476 to routing server 480 in Fig.
10 that routes incoming calls to the call center via the Internet [answer, page 7].

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The examiner further notes that an SCP processor is a device that includes a
database for receiving an incoming message and selects the destination within
the database for routing the call [answer, pages 6 and 7]. With this construction,
the examiner concludes that the combined teachings of the cited prior art
disclose an SCP processor in the Internet [answer, page 7].
Appellant also argues that Becker does not receive agent information from
multiple call centers to store in a database to route incoming calls [brief, page
17]. The examiner responds that Becker's system collects call center data at the
network level and uses this data to route incoming calls to the appropriate call
center depending on agent availability [answer, page 7].
We will sustain the examiner's rejection of claims 6-9 and 14-16. We find
that appellant has not persuasively rebutted the examiner's prima facie case of
obviousness. In a first embodiment, Andrews discloses a system for optimally
routing calls to agents in a workgroup that utilizes a central controller 30. As
shown in Fig. 2, central controller 30 comprises a routing engine 48 associated
with a database that comprises database manager 52 and database storage
means 54. The routing engine uses data retrieved from the database to
calculate the optimal way to route calls in the system including routing the call
depending on agent availability [Andrews, col. 6, lines 28-62; Fig. 2].
In the embodiment of Fig. 9, Andrews discloses a routing system that,
among other things, routes Internet calls placed by Internet callers 410, 412 to

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agent systems 402, 404, 406 via Internet network 408 [Andrews, col. 11, lines
54-55; Fig. 9]. Central controllers 30A', 30B' control individual Internet servers
within the Internet 408 to optimally route Internet calls through the Internet 408 to
the agent systems [Andrews, col. 11, lines 60-64]. See also Andrews, col. 18,
lines 13-27 (text of claim 1). Notably, such Internet-based call routing is
conducted in a manner that is functionally similar to that used by the central
controllers to optimally route calls through networks 12, 14, 16 to agent systems
402, 404, 406 [Andrews, col. 11, lines 60-67].1 In our view, Andrews' Internet-
based call routing system fully reads on a call-processing system in the Internet
including an SCP processor and an Internet routing server in the Internet with a
database connected to the routing server as claimed.
Furthermore, we find that the examiner's reliance on Becker for the
teaching of using a CTI data collection server for collecting data regarding the
status of agents from multiple call centers at the network level for call routing is
reasonable and the reference is reasonably combinable with Andrews. As noted
previously, Becker's routing engine uses data retrieved from the database to
calculate the optimal way to route calls to multiple call centers. Specifically,
Becker's CTI data collection server 38 continuously collects data from each call

1 We also note that Andrews states that central controllers 30A', 30B' operate in a substantially
similar manner to that of controllers 30A and 30B of another embodiment [Andrews, col. 11, lines
57-67]. In this embodiment, Andrews shows in Fig. 6A that primary central controller 30A
comprises a database manager 52A and database storage means 54A similar to the first
embodiment. Furthermore, Andrews notes that the operation of system 200 in this embodiment
is substantially similar to system 10 of the first embodiment [Andrews, col. 8, lines 51-55].
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center 50 via a CTI server 60 located at each call center [Becker, col. 8, lines 45-
55]. Call center router 36 then retrieves this data from the CTI data collection
server via wide area network 26 to determine if the intended destination call
center has sufficient current availability to accept the call. Since both Andrews
and Becker are in the same field of endeavor, we find Becker's teaching
reasonably combinable with Andrews so that calls could be effectively routed to
an available call center selected from multiple call centers.
In summary, we have sustained the examiner's rejections with respect to
all claims on appeal. Therefore, the decision of the examiner rejecting claims 6-9
and 14-16 is affirmed.

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No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a)(1)(iv).

AFFIRMED

JERRY SMITH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LANCE LEONARD BARRY ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
ALLEN R. MACDONALD )
Administrative Patent Judge )

JS/jaj/kis
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