Ex Parte Moore et al

Patent Trial and Appeal Board

Feb 20, 2014

10975595 (P.T.A.B. Feb. 20, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD G. MOORE, GUNA D. GUNASEKAR,
PHILLIP E. LAWSON-SHANKS, and DARRYL W. SHAW
____________

Appeal 2011-009493
Application 10/975,595
Technology Center 2600
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Before ROBERT E. NAPPI, DANIEL N. FISHMAN, and
CATHERINE SHIANG, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 3-6, 8-15, 17-20, 22-29, 31-34, 36-48, and 50. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.
In reaching the decision, we have considered only the arguments that
Appellants actually raised. Arguments that Appellants did not make are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2010).

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STATEMENT OF THE CASE
The present invention relates to integrated communication services.
See generally Spec., 1. Claim 1 is exemplary:
1. A computer-implemented method for providing a plurality of
communication services supported by a data network and a telephony
network, the communication services deployed as an overlay network
encompassing the data network and the telephony network, the method
comprising employing a processor to perform the following steps:
assigning a primary identifier unique to the overlay network to a user
for access to the communication services, wherein the primary identifier is
used by a party seeking to communicate with the user via one of the plurality
of communication services;
mapping the primary identifier to one of a plurality of secondary
identifiers corresponding to the respective communication services,
wherein the one secondary identifier is used to establish a
communication session between the party and the user; and
tracking network activities corresponding to the communication
services and occurring during the course of providing the communication
services for logging and auditing of the network activities.

THE REJECTIONS
Claims 1, 4-6, 8-10, 15, 18-20, 22-24, 29, 32-34, 36-38, 43, 45-48,
and 50 are rejected under 35 U.S.C. § 103(a) as being unpatentable over
Pepe (US 5,742,905), and Campbell (US 6,292,801 B1).
Claims 3, 17, 31, and 44 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Pepe, Campbell, and the Examiner’s Official
Notice.
Claims 11-14, 25-28, and 39-42 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Pepe, Campbell, and Bagley (US 6,963,928 B1).
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ISSUES
Under 35 U.S.C. § 103, has the Examiner erred by finding Pepe
teaches
(1) “the communication services deployed as an overlay network
encompassing the data network and the telephony network” and
(2) “assigning a primary identifier unique to the overlay network to a
user for access to the communication services”
as recited in claim 1 (emphasis added)?

ANALYSIS
Claims 1, 4-6, 8-10, 15, 18-20, 22-24, 29, 32-34, 36-38, 43, 45-48 and 50
On this record, we find the Examiner did not err in rejecting claim 1.
Issue 1
Appellants assert Pepe does not teach an overlay network because
based on Appellants’ definitions of an overlay network, neither the Internet
nor the Personal Communications Internetworking (“PCI”) network of Pepe
is an overlay network. See App. Br. 7-11; Reply Br. 2-5.1 Appellants
contend Pepe’s PCI does not encompass the data network and the telephony
network, and is not built on top of another network. See App. Br. 9; Reply
Br. 3.

1 Appellants’ contention that Pepe’s Internet is not an overlay network (App.
Br. 8; Reply Br. 3-4) is unpersuasive because Appellants simply assert
Pepe’s Internet does not meet Appellants’ first definition, but does not offer
any analysis in the Appeal Brief (App. Br. 8), and does not provide adequate
analysis in the Reply Brief (Reply Br. 3-4).
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We disagree with Appellants’ arguments (App. Br. 7-11; Reply Br. 2-
5), and agree with the Examiner’s conclusions. We adopt the Examiner’s
reasoning and findings on pages 3-4 and 15-17 of the Answer as our own.
We emphasize the following: First, Appellants’ arguments center on the
definition of an “overlay network,” but Appellants’ various definitions are
neither cohesive nor credible. Indeed, Appellants offer three separate
definitions of an overlay network, none of which is supported by credible
evidence. Appellants’ first definition is “a computer network that is built on
top of another network, wherein nodes of the overlay network may be
considered as being connected by links, each link corresponding to a path
through one or more physical links in the underlying network.” App. Br. 8.
Appellants cite no support for the definition and therefore, the definition
amounts to pure attorney argument. Appellants’ second definition is “a
virtual network which is [a] subset of the nodes of one or more networks that
have agreed to be mutually accessible in pursuit of some common purpose.”
App. Br. 9. Appellants cite a URL dated in 2005 (after the date of this
invention) and thus not credible for our analysis. Appellants’ third
definition is “an overlay network must be built on top of another network,
sharing a subset of nodes, for example.” App. Br. 9. Again, Appellants do
not cite any support for the definition, and the definition is purely attorney
argument.
Second, instead of using one credible definition for their arguments,
Appellants’ definition is a moving target, and Appellants do not offer any
rationale as to how they decide to select a given definition. Appellants use
their first definition to assert an Internet is not an overlay network (App. Br.
8), but switch to the second definition to contend Pepe’s PCI network is not
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an overlay network (App. Br. 9), and then switch to the third and first
definitions (App. Br. 9). As a result, Appellants’ arguments—based on
unsupported definitions that are moving targets—are speculative and do not
persuasively rebut the Examiner’s findings.
In light of Appellants’ failure to offer a credible definition of an
overlay network, the Examiner reasonably interpreted the term overlay
network to encompass Pepe’s PCI network. See Ans. 15; Pepe, Fig. 1. The
Examiner’s interpretation is consistent with the Specification. For example,
the Specification states: “the services overlay network 101 supports
telephony services over data communication systems . . . the services
overlay network 101 has connectivity via an overlay network common
interface 150 to a public data network, such as the global Internet 153[.]”
Spec. ¶¶ 24-27. Consistent with the Specification, Pepe’s PCI network
supports telephony services and connects to a data network. See Ans. 15;
Pepe, Fig.1; col. 5. The Examiner also reasonably maps the claim limitation
“encompassing the data network and the telephony network” to Pepe’s PCI
network connecting to the data network and telephony network (Ans. 15;
Pepe, Figs. 1-4). Again, the Examiner’s interpretation of the limitation is
consistent with the Specification—overlay network 101 connects to the data
network and telephony network (Spec., Fig. 1; [0024]; [0027]). Finally, the
Examiner reasonably interprets Pepe’s PCI network as built on top of the
wireline networks or the wireless network. See Ans. 3-4, 15. The
Examiner’s interpretation is consistent with the Specification because Pepe’s
PCI mirrors the Specification’s overlay network 101 as to whether the
network is built on top of another network. See Pepe, Fig. 1; Spec., Fig. 1.
Appellants argue Pepe’s PCI is an interface and thus not on top of another
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network, but one may argue the same for the Specification’s overlay
network 101. Further, whether a reference teaches a claim limitation “is not
an ‘ipsissimis verbis’ test” In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).2
We further observe under Appellants’ first definition, Appellants fail
to rebut the Examiner’s findings that Pepe’s PCI is an overlay network. As
discussed above, Pepe’s PCI is built on top of another network. Further,
while Appellants assert “there are no nodes within the PCI that may be
considered connected to links corresponding to a path through physical links
of some underlying network,” (App. Br. 9; Reply Br. 3), Appellants do not
offer any analysis—let alone show—Pepe’s PCI does meet Appellants’ first
definition of an overlay network.
To whatever extent, if any, Pepe’s PCI network does not qualify as an
overlay network under a credible and proper definition, Appellants have not
shown that on this record. Nor will we speculate in that regard here in the
first instance on appeal.

Issue 2
Appellants assert Pepe does not teach assigning a primary identifier
unique to the overlay network to a user because the number is not unique to
the overlay network, and Pepe does not teach an overlay network. See App.
Br. 10-11; Reply Br. 4-5.

2 The Examiner separately interprets Pepe’s PCI network as built on top of
the Public Switched Telephone Network (PSTN), because the PCI network
connects to the Internet, which is built on top of the PSTN. See Ans. 17;
Pepe 5:38-40 (“The e-mail terminal 22 may be connected to a data packet
network, such as Internet, whose packets are carried over phone lines.”)
(emphasis added).
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We disagree with Appellants’ arguments (App. Br. 10-11; Reply Br.
4-5), and agree with the Examiner’s conclusions. We adopt the Examiner’s
reasoning and findings on pages 4 and 18 of the Answer as our own. We
emphasize the following: The relevant claim limitation recites “assigning a
primary identifier unique to the overlay network to a user for access to the
communication services” (emphasis added). As a result, the Examiner
reasonably interprets the claim limitation “primary identifier unique to the
overlay network to a user” to encompass Pepe’s disclosure of a single
personal telephone number for a given PCI subscriber. See Ans. 18; Pepe
25:12-15 (“PCI subscribers are assigned a single personal telephone for both
voice and data communication”). Further, as discussed above, Appellants
fail to persuasively rebut the Examiner’s findings that Pepe teaches an
overlay network. Therefore, Appellants have not persuasively rebutted the
Examiner’s findings that Pepe teaches assigning a primary identifier unique
to the overlay network to a user for access to the communication services.
Because Appellants fail to persuasively rebut the Examiner’s findings,
we sustain the Examiner’s rejection of claim 1, and claims 4-6, 8-10, 15, 18-
20, 22-24, 29, 32-34, 36-38, 43, 45-48 and 50 for the same reason.

Claims 3, 17, 31, and 44

On this record, we find no error in the Examiner’s rejection of claims
3, 17, 31, and 44. Appellants argue the claims are allowable because the
additionally cited Examiner’s Official Notice (EON) does not cure the
alleged deficiencies of Pepe and Campbell. We find those contentions
unpersuasive for the reasons discussed above. Therefore, we sustain the
rejection of claims 3, 17, 31, and 44.
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Claims 11-14, 25-28, and 39-42

On this record, we find no error in the Examiner’s rejection of claims
11-14, 25-28, and 39-42. Appellants argue the claims are allowable because
the additionally cited Bagley reference does not cure the alleged deficiencies
of Pepe and Campbell. We find those contentions unpersuasive for the
reasons discussed above. Therefore, we sustain the rejection of claims
11-14, 25-28, and 39-42.

DECISION
The Examiner’s decision rejecting claims 1, 3-6, 8-15, 17-20, 22-29,
31-34, 36-48, and 50 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)(1)(iv).

AFFIRMED

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